Legal Bulletin No. 131

Issued 6 October 2023

Welcome to the one hundred and thirty first edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.

Presidential Member Decision

Tozlok v Youssef [2023] NSWPICPD 58

Workers compensation; application to extend time to appeal, presence of ‘exceptional circumstances’; Bryce v Department of Corrective Services referred to; alleged factual error; application of Raulston v Toll Pty Ltd; inferences pursuant to Jones v Dunkel – discussion of Payne v Parker; Held ­– the appellant’s application to extend time for the bringing of the appeal in this matter is refused; the orders in the Certificate of Determination dated 8 August 2022 are confirmed.

Decision date: 27 September 2023 | Before: Acting President Michael Snell

Workers Compensation Nominal Insurer v Chester [2023] NSWPICPD 59

Workers compensation; failure to accord procedural fairness; Twist v Randwick Municipal Council referred to; New South 2 Wales Police Force v Winter applied; Held – the Member’s Certificate of Determination dated 16 May 2022 is revoked; the matter is remitted for re-determination by another non-presidential member.

Decision date: 28 September 2023 | Before: Deputy President Elizabeth Wood

BBY v The GEO Group Australia Pty Ltd [2023] NSWPICPD 60

Workers compensation; the opportunity to make submissions is not an invitation to raise a new ground of appeal and leave to do so is required; University of New South Wales v Lee applied; section 15(1)(a) of the Workers Compensation Act 1987; ascertainment of the deemed date of injury; Alto Ford Pty Ltd v Antaw, Stone v Stannard Brothers Launch Services Pty Ltd, and Inghams Enterprises Pty Ltd v Thoroughgood discussed and applied; whether error in the exercise of discretion to admit late evidence; Hamod v State of New South Wales and Nelson Bay Pest Service Pty Limited v Morrison applied; Held – the Member’s Certificate of Determination dated 11 October 2022 is confirmed.

Decision date: 28 September 2023 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Hipkins v AAI Limited t/as GIO [2023] NSWPIC 494

Motor Accident Injuries Act 2017; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28; the claimant was driving his motor vehicle at a speed of 110km along the M1 motorway towards Sydney and was driving in fast lane (lane 3) when the insured driver, without warning, allowed the trailer of his lorry to partially move into lane 3 and this manoeuvre caused the claimant to take immediate evasive action, which caused him to collide with the left rear of the trailer; Held ­– motor accident not caused wholly or mostly by the fault of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee.

Decision date: 18 September 2023 | Member: David Ford

AAI Limited t/as AAMI v Dennett [2023] NSWPIC 505

Motor Accident Injuries Act 2017; 56 year old pedestrian struck by insured motor vehicle whilst running along Military Road; insurer alleged claimant was running on the road but claimant denies this and states he was running on the footpath; insurer alleged in liability notice contributory negligence in the order of 30% pursuant to section 4.17 on the basis the claimant was running on the road in order to pass the insured vehicle and failed to take any adequate care for his own safety; Member not satisfied the evidence to date provided a basis for such an allegation; claimant also stated he believes he is entitled to damages for non-economic loss; however no assessment of his whole person impairment undertaken and the proposed settlement makes no allowance for non-economic loss, section 6.23 of the Act considered; Held – proposed settlement is rejected as member is not satisfied the settlement complies with the applicable requirements of the Act and the Guidelines.

Decision date: 28 September 2023 | Member: Elyse White

Workers Compensation non-Presidential Member Decisions

Riman v IBM Australia Limited [2023] NSWPIC 329

Claim for death benefit by legal personal representative of estate; applicant’s claim deceased’s underlying psychological condition was aggravated by her employment causing injury, and ultimately death by self-harm; Held­ – the applicant must establish her employment was the main contributing factor to the aggravation of the deceased’s underlying condition, of which there can be but one; where there are competing work and non-work factors in play, it is important to weigh up the relevant contributions of both; AV v AW followed; the evidence establishes the causes of the deceased’s aggravation were multi-factorial; the contemporaneous material reveals the predominant issues in the lead up to and at the time of the deceased’s decompensation were non-work related and the applicant’s claim must therefore fail; award for the respondent.

Decision date: 7 July 2023 | Member: Cameron Burge

Cummings v Maryland Motors Pty Ltd t/as John Young Holden [2023] NSWPIC 497

Claimant filed Form 7 application for Assessment by a Medical Assessor; claimant unable to attend scheduled appointment due to his injuries; defendant conceded 15% threshold, so no longer any dispute before the Commission; claimant’s failed to file an Election to Discontinue as directed; no attendance by the claimant and his solicitor at a preliminary conference; Held – no dispute; proceedings dismissed on the grounds that they were frivolous or vexatious or otherwise misconceived or lacking in substance.

Decision date: 22 September 2023 | Principal Member: Glenn Capel

Woodward v Cerebral Palsy Alliance [2023] NSWPIC 498

Claim for cost of total right knee replacement; no dispute as to injury; no dispute the applicant had pre-existing degenerative condition; no dispute the proposed surgery was reasonably necessary treatment for the applicant’s condition; whether the proposed surgery was reasonably necessary as a result of the accepted injury; reliability and credibility of the applicant’s evidence considered; relevance of previous right knee injury considered; pre-existing condition rendered more symptomatic by the injury; Murphy v Allity considered; Held – finding that the injury materially contributed to the need for treatment; responded to pay the cost of an incidental to the total right knee replacement.

Decision date: 25 September 2023 | Member: Jill Toohey

Shaw v Spotless Facility Services (incorrectly sued as Spotless Gutter Cleaning Pty Ltd) [2023] NSWPIC 499

Workers Compensation Act 1987; the applicant claims weekly compensation payable under section 37 and permanent impairment compensation payable under section 66 for multiple injury sustained in a motor vehicle accident; the applicant’s claim is declined; in essence the respondent argued the applicant was on a journey between his place of employment and place of abode when he sustained injury and had failed to satisfy requirement of section 10(3A); Held – the applicant sustained injury in the course of his employment with the respondent; the applicant has entitlement to weekly compensation payable under section 37 and the applicant’s claim for permanent impairment compensation payable under section 66 is remitted to the President for referral to a Medical Assessment for assessment of whole person impairment.

Decision date: 26 September 2023 | Member: Jacqueline Snell

Gaitanis v Programmed Integrated Workforce Limited [2023] NSWPIC 500

Claim for permanent impairment of the lumbar spine and cervical spine; respondent accepts that the worker sustained injury to the lumbar spine but not to his cervical spine; reference to Kennedy Cleaning Services Pty Ltd v Petkoska and North Coast Area Health Service v Felstead; Held – worker sustained an injury to his cervical spine in the course of his employment with the respondent; referral to a Medical Assessor for assessment of permanent impairment of the lumbar spine and cervical spine.

Decision date: 26 September 2023 | Member: John Isaksen

De'Athe v Frost Antiques Pty Ltd [2023] NSWPIC 502

Workers Compensation Act 1987; claim for permanent impairment compensation in relation to psychological injury; fact of injury not in issue, however, the correct date of injury is in issue as there are two insurers on risk during the period leading up to the applicant’s last day of employment with the respondent; the applicant suffered a psychological injury in 1995 while working with the respondent then returned to work in 1997 and continued in employment until ceasing employment on 22 July 2011 owing to the effects of a claimed separate psychological injury; Held – the evidence discloses the conduct causative of the applicant’s psychological injury continued from her return to work in 1997 up to the last date of employment on 22 July 2011; in accordance with section 16(1) the deemed date of injury is that on which the applicant suffered an incapacity of employment caused by her injury, in this instance 22 July 2011; the relevant insurer on risk at the deemed date of injury was EML; accordingly, there will be an award for the respondent in the interests of GIO, and the balance of the claim shall be remitted to the President for referral to a Medical Assessor to determine the applicant’s whole person impairment, subject to any applicable deduction for any ongoing effects of the 1995 injury.

Decision date: 27 September 2023 | Member: Cameron Burge

Burns v Catholic Schools Office-Diocese of Maitland/Newcastle [2023] NSWPIC 503

Workers Compensation Act 1987; claim for benefits in respect of the death of a worker; determination as to whether the applicant was dependent for support upon the worker at the date of her death, and whether there were any other persons dependent for support upon her as at that date; consideration of statement evidence, claim correspondence, and factual material; Held – the applicant was partly dependent for support upon the worker at the date of her death; there were no other persons dependent for support upon the worker at the date of her death; respondent liable to pay the amount of $838,750 in accordance with section 25(1)(a) together with agreed interest; amount to be paid to the applicant in accordance with section 29(1A); award also made in relation to the worker’s funeral expenses.

Decision date: 27 September 2023 | Member: Gaius Whiffin

Motor Accidents Medical Review Panel Decisions

QBE Insurance (Australia) Limited v Kim [2023] NSWPICMP 463

Motor Accidents Injuries Act 2017; claimant was driving her car which was hit on its left-hand side; she sustained injuries to her back, right ankle and right foot; she made an application for treatment and care for a proposed surgery on her right ankle; the Medical Assessor (MA) certified that the proposed surgery would improve the claimant’s recovery; the insurer sought a review; whether the Panel had jurisdiction; Held – the Review Panel did not have jurisdiction to determine a review application of the MA because when originally enacted the words ‘to be provided’ had been removed from Schedule 2 clause 2(b); accordingly, the definition of a “medical assessment matter” in clause 2(b) only applied to the treatment or care that has been provided; it did not extend to treatment “to be provided”; the words “to be provided” were inserted into clause 2 (b) of Schedule 2 when it was amended by the Motor Accident Injuries Amendment Regulation 2022 on 10 June 2022; decision in Obeid v AAI Ltd t/as AAMI followed and applied; additional decisions considered Kotb v AAI Limited t/as GIO and AAI Limited t/as GIO v Stojanov (No 1 and No 2).

Decision date: 15 September 2023 | Panel Members: Member Ray Plibersek, Dr Margret Gibson, and Dr Rhys Gray| Injury module: Treatment Type: Surgery

Waqar v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 465

Claimant was a driver in a stationary car hit from behind by another car; injuries reported to neck, spine, both shoulders and brain - bubbly mucous secretions within the left sphenoid sinus; Held – original medical certificate affirmed; Review Panel found the cervical spine, thoracic spine and left and right shoulder injury were  soft tissue injuries; all the injuries sustained by the claimant are threshold injuries; no evidence of any brain injury caused by the motor accident; the left-sided C5/C6 disc protrusion and left-sided C6 nerve root compression were not caused by the accident; claimant’s cervical spine symptoms and complaints were ongoing for some years before the motor accident; CT scan of the brain found no significant abnormality and no sequalae of traumatic brain injury.

Decision date: 21 September 2023 | Panel Members: Member Ray Plibersek, Dr Tai-Tak Wan, and Dr Geoffrey (Paul) Curtin | Injury module: Spine, Nervous System (neurological), and Upper Limb

Aleksic v AAI Limited t/as GIO [2023] NSWPICMP 466

Motor Accident Injuries Act 2017; injury on 1 February 2020 from sideswipe collision; dispute related to whether psychological injury was a threshold injury; claimant involved in a further motor accident on 24 February 2020; claimant had pre-existing major depressive disorder in remission; claimant re-examined; effects of each motor accident must be considered separately; sufficient if motor accident aggravated, accelerated or exacerbated the pre-existing psychological condition; AAI Ltd v Hoblos and Todev v AAI Ltd applied; contemporaneous clinical records showed increase in psychological symptoms following motor accident; clinical expertise of Medical Assessors from Panel examining claimant supported finding that motor accident aggravated pre-existing psychological condition; nature of motor accident capable of causing or aggravating psychological condition; Held – original assessment revoked; claimant assessed as suffered from non-threshold psychological injury.

Decision date: 21 September 2023 | Panel Members: Principal Member John Harris, Dr Gerald Chew, and Dr Alexey Sidorov | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Brambles Limited v Stanford [2023] NSWPICMP 350

Worker sustained bilateral shoulder injuries in the course of his employment; Medical Assessor (MA) assessed 9% whole person impairment (WPI) of each shoulder and made no deduction for pre-existing injury or condition; appellant employer submitted that evidence before the MA warranted a deduction from the final 17% WPI; MA found no relevant pre-existing condition; Panel satisfied pre-existing condition in right shoulder contributing to the level of impairment assessed and applied a one tenth deduction; Held – Medical Assessment Certificate revoked.

Decision date: 24 July 2023 | Panel Members: Member Caroline Rimmer, Dr James Bodel and Dr Chris Oates | Body system: Left and Right Upper Extremity

Wright v Hayward Family Farming Group [2023] NSWPICMP 400

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor had erred in failing to provide reasons in respect of his assessment of the left knee, where he merely stated: “there were no assessable WPI features” and also erred in the deduction he made pursuant to section 323 in respect of the right knee; The Panel agreed, and a re-examination was arranged; following re-examination the Panel found no impairment of the left lower extremity error but agreed that the section 323 deduction in respect of the right knee was excessive and inconsistent with the whole of the evidence; Held – Medical Assessment Certificate revoked.

Decision date: 23 August 2023 | Panel Members: Member Deborah Moore, Dr Roger Pillemer, and Dr David Crocker | Body system: Right Lower Extremity and Left Lower Extremity

Providence Medical Thornton Pty Ltd v Laroche [2023] NSWPICMP 467

Workplace Injury Management and Workers Compensation Act 1998; employer alleges error by Medical Assessor in failing to make a deduction pursuant to section 323 for a prior injury; worker suffered previous psychological injury in 2010 leading to a Complying Agreement for a 16% whole person impairment (WPI) in 2014; save for a short period in 2018 worker treated with antidepressants consistently until the onset of the psychological illness caused by the subject injury; failure to make a deduction a demonstrable error; Held – Medical Assessment Certificate revoked.

Decision date: 21 September 2023 | Panel Members: Member Paul Sweeney, Dr Nicholas Glozier, and Dr Graham Blom | Body system: Psychiatric/Psychological

Bannon v Secretary, Department of Education [2023] NSWPICMP 468

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; worker appealed with respect to assessment under psychiatric impairment rating scale (PIRS) table for self-care and personal hygiene; argued that the Medical Assessor (MA) should have disclosed his path of reasoning in disagreeing with assessment by psychiatrist qualified on her behalf and had regard to other medical evidence, which was more than three years old; State of NSW v Kaur applied; Guidelines paragraph 1.6 and obligation to assess on the day; other; MA explained why he disagreed with worker’s psychiatrist; Held – Medical Assessment Certificate confirmed.

Decision date: 21 September 2023 | Panel Members: Member Catherine McDonald, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychiatric/Psychological

Costa v JLM Marketing Pty Ltd t/as Marketing Mechanics [2023] NSWPICMP 469

Whether Medical Assessor’s (MA) ratings of appellant’s impairment in social and recreational activities, concentration persistence and pace, and employability did not accord with the history MA obtained; whether MA made a finding he was not qualified to make by finding that appellant had a physical condition of fibromyalgia; whether MA erred by finding appellant had a pre-existing condition and, if not in error, whether MA erred by finding that a proportion of the appellant’s permanent impairment was due to that pre-existing condition; Appeal Panel held it was open to MA to make the ratings he did with respect to the challenged psychiatric impairment rating scale (PIRS) categories; Appeal Panel held that MA did not rely on his expertise or knowledge when finding that the appellant had fibromyalgia, but rather relied on the opinions of appropriately qualified medical specialists contained in forensic medical reports that were before the MA; Held – Appeal Panel held the Medical Assessor was correct on the evidence before him to find that the appellant had a pre-existing condition and that a proportion of the appellant’s permanent impairment was due to that.

Decision date: 22 September 2023 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychiatric/Psychological

Del Vecchio v Nicklaum Pty Ltd t/as Forams Health & Beauty Aids [2023] NSWPICMP 470

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in his application of section 323 because he failed to apply the correct statutory formula for the assessment of the proportion of impairment due to a pre-existing condition or abnormality; Panel found significant evidence of a long-standing pre-existing condition; the deduction under section 323 was appropriate, and not at odds with the evidence; Held – Medical Assessment Certificate confirmed.

Decision date: 25 September 2023 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

Ibrahim v DHL Express (Australia) Pty Ltd [2023] NSWPICMP 471

Workplace Injury Management and Workers Compensation Act 1998; appeal from 2017 Medical Assessment Certificate (MAC) of psychological injury of 7%; MAC never made the subject of a Certificate of Determination; claimant sought increase on account of deterioration over the years since; Held – claimant re-examined as Panel has no power under s 329 to order AMS (as he then was) to re-assess; deterioration found to have occurred and alcohol use disorder acquired as a result; MAC revoked.

Decision date: 26 September 2023 | Panel Members: Member John Wynyard, Dr Nick Glozier, and Dr Graham Blom | Body system: Psychiatric/Psychological

Pathak v Northcott Disability Services Pty Ltd [2023] NSWPICMP 472

The Panel determined that the Medical Assessor (MA) erred in several respects; firstly in stating that the appellant's injuries had 'resolved'; secondly, in making a deduction in respect of his assessment of both shoulders without explanation and thirdly, his findings on physical examination of the cervical spine and the left ankle are inconsistent with and contradictory to the MA’s statement that the injuries have “resolved”; a re-examination was arranged; the Panel accepted the findings and assessment of Dr Bodel; Held – Medical Assessment Certificate revoked.

Decision date: 27 September 2023 | Panel Members: Member Deborah Moore, Dr Neil Berry, and Dr James Bodel | Body system: Spine, Left and Right Upper Extremity, and Left Lower Extremity

Up & Go Bulk Haulage Pty Ltd v Vegara [2023] NSWPICMP 473

Appeal from assessment of whole person impairment (lumbar spine); whether the assessor erred in making an allowance for radiculopathy; if so, whether application should be further examined by the Panel; Held – Medical Assessment Certificate revoked and replaced.

Decision date: 27 September 2023 | Panel Members: Member Richard Perrignon, Dr Alan Home, and Dr Neil Berry | Body system: Spine and Scarring

This publication is for information only. The publication is not legal advice.  The information provided is not a substitute for reading the decisions. The Commission does not accept liability for the information in this publication or for way the information is used.

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