Legal Bulletin No. 132

Issued 13 October 2023

Welcome to the one hundred and thirty second 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.

Supreme Court Decision

Amos v AAI Limited t/as GIO [2023] NSWSC 1193

Administrative law; procedural fairness; Review Panel under Motor Accident Injuries Act 2017; failure to provide reasonable opportunity to deal with crucial issue; practical injustice; Held – decision quashed., matter remitted to the President of the Personal Injury Commission to be dealt with a differently constituted Review Panel.

Decision date: 6 October 2023 | Before: Rothman J

Presidential Member Decision

Hernandez v State Rail Authority of NSW [2023] NSWPICPD 61

Workers compensation; scope of remitter to a non-presidential Member for re-determination from a decision of a Presidential Member; whether renal and cardiac conditions related to ingestion of medication prescribed to treat back injury; Held – the Member’s Certificate of Determination dated 20 July 2022 is confirmed.

Decision date: 3 October 2023 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

QBE Insurance (Australia) Limited v Castino [2023] NSWPIC 416

Motor Accident Injuries Act 2017; claimant was a pedestrian hit at low speed by a car; she sustained a fractured left talus in her left leg and wore a moon boot and a leg brace for a period of between four and six weeks; insurer accepted liability for common law damages; past economic loss was agreed between the parties at $6,200; $30,000 agreed as a buffer for future economic loss; claimant received total of $37,194 with $2,400 deducted for repayment of past weekly benefits paid by insurer; claimant understood binding nature of the settlement and was precluded from making a further claim for damages for the accident; Held – that the offer of settlement was satisfactory and was approved under section 6.23(2)(b).

Decision date: 16 August 2023 | Member: Ray Plibersek

Allianz Australia Insurance Limited v Yang [2023] NSWPIC 414

Motor Accident Injuries Act 2017; claimant was driving her car attempting to merge when she was rear-ended by another car; she sustained a fractured little finger on her left hand; offer of settlement in the sum of $5,000; claimant received statutory benefits in the sum of $398.64 paid by the insurer; insurer to receive credit for the sum of $398.64 out of the settlement sum; claimant understood binding nature of the settlement and was precluded from making a further claim for damages for the accident; Held – that the offer of settlement was satisfactory and was approved under section 6.23(2)(b).

Decision date: 18 August 2023 | Member: Ray Plibersek

Scott AAI Limited t/as GIO [2023] NSWPIC 509

Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under section 7.36(3) and 7.36(4); motorcycle being driven by the claimant  attempting to overtake a state transit bus; claimant failed to see insured bus driver activated left turn indicator; collision occurred between both vehicles; insured bus driver admitted the bus had a blind spot in regards to vehicles overtaking on the left hand side of the bus; claimant is a manager of a tyre retailer; claim for non-economic loss, past and future economic loss; Held – claimant is entitled to damages for non-economic loss and past and future economic loss

Decision date: 28 September 2023 | Member: David Ford

Workers Compensation non-Presidential Member Decisions

Teague v Remedial Building Services Australia Pty Ltd [2023] NSWPIC 511

Claim for lumbar fusion surgery; injury and causation not in issue; only dispute surrounds whether the proposed surgery is reasonably necessary; the respondent contends the applicant should undertake a further discogram before the proposed surgery, and also further conservative treatment; Held – the proposed surgery is reasonably necessary as a result of the injury at issue; the fact further conservative treatment is available does not preclude the proposed surgery from being reasonably necessary; Diab v NRMA Limited applied; the proposed surgery is reasonably necessary; the respondent is to pay the costs of and incidental to the proposed surgery.

Decision date: 28 September 2023 | Member: Cameron Burge

Berry v State of New South Wales (Sydney Local Health District) [2023] NSWPIC 513

Claim for permanent impairment compensation; injuries by way of hearing loss and lumbar spine accepted and competing Independent Medical Examiners (IME) agree as to respective whole person impairment (WPI); alleged cervical spine injury disputed; applicant had cochlear implants in or about 2004; on 25 Feb 2021, she suffered a serious fall in the course of her employment, striking her head on the corner of a wall and relevantly injuring her head and lumbar spine; there is no issue the applicant suffered hearing loss and a lumbar spine injury in the fall at issue; the parties’ IMEs both assess 6% WPI from the hearing loss and 6% WPI form the lumbar spine injury; the alleged cervical spine injury is disputed; Held – on balance, the evidence discloses the applicant suffered an injury to her cervical spine in the incident at issue; although the applicant does not require corroboration to be accepted by the Commission and is regarded by all practitioners as an honest and reliable historian, corroboration of cervical spine symptoms is found in the physiotherapy notes from the weeks immediately following the injury; accordingly, the applicant’s cervical spine will be referred for medical assessment; a dispute arose as to the terms of any assessment; the applicant submitted the lumbar spine should also be referred, as there may be an interplay between the cervical impairment and that of the lumbar spine; the respondent submitted there was no dispute as to the lumbar impairment and accordingly it should not be referred; the referral will be only of the cervical spine, and the matter listed for further preliminary conference after the Medical Assessment Certificate is issued for the aggregation of any impairment to the cervical spine to the agreed impairment to the lumbar spine and that arising from loss of hearing.

Decision date: 28 September 2023 | Member: Cameron Burge

Australia Indigenous Leadership Centre v icare Workers Insurance & Ors [2023] NSWPIC 514

Workers Compensation Act 1987; claim by uninsured employer pursuant to section 145(3) that it is not liable in respect of the compensation payments made by the first respondent to the second respondent; consideration of statement evidence, medical reports and other treatment records, claim correspondence, and factual material; consideration of the circumstances of the second respondent’s injury and whether it was a compensable injury in accordance with section 4; consideration of whether the second respondent’s employment with the applicant was connected with New South Wales in accordance with section 9AA; Martin v R J Hibbens Pty Limited, Workers Compensation Nominal Insurer v O’Donohue, Avon Products Pty Limited v Falls, Attorney General’s Department v K, AV v AW, and Klemke v Grenfell Commodities Pty Limited considered; Held – the second respondent sustained a disease injury in the course of her employment with the applicant, in accordance with section 4; the injury will be deemed to have occurred on 21 July 2020, in accordance with section 15; the second respondent’s employment as at 21 July 2020 was connected with New South Wales, in accordance with section 9AA; the first respondent has made a payment of $133,298.17 to or in respect of the second respondent in relation to the disease injury, and has issued a valid notice dated 16 November 2022 to the applicant, in accordance with section 145(1), requiring the applicant to reimburse that amount to it; pursuant to section 145(3), the applicant is liable in respect of the payment made of $133,298.17; the order sought by the applicant is refused.

Decision date: 28 September 2023 | Member: Gaius Whiffin

Lindenberg v The Northern Rivers Conservatorium Arts Centre INC [2023] NSWPIC 517

The applicant sought a finding that she had suffered consequential injuries to her thoracic spine and both upper extremities (shoulders) following a frank injury to her cervical spine; the claim was unsuccessful; consideration regarding the absence of any history of complaint to or investigations by treating doctors concerning the alleged consequential injuries from the date of injury until consultation with an Independent Medical Examiner arranged by the applicant’s representative; Held – there was no consequential injury to the applicant’s thoracic spine and upper extremities (shoulders) following a frank injury to the applicant’s cervical spine on 3 February 2020; award for the respondent in relation to these alleged injuries.

Decision date: 29 September 2023 | Member: Lea Drake

Conte v Farsaci Pty Ltd [2023] NSWPIC 518

Claim for replacement breast implant surgery following weight fluctuations post-injury; the applicant suffered accepted injuries in a serious fall in the course of her employment; the respondent paid for two rounds of surgery, the need for which was brought about by significant weight gain post-injury; the surgery was successful and the applicant then lost a significant amount of weight, leading to alteration in the appearance of her pre-injury breast implants; the respondent disputed the surgery was reasonably necessary as a result of the injury; Held – the applicant need only prove the injury made a material contribution to the need for surgery in order to satisfy the “as a result of” test, and the presence of other, non-work-related factors which are also causative of the requirement for surgery does not mean the need for surgery lacks the requisite causal connection to employment; Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman followed; the respondent having paid for gastric sleeve and gastric bypass surgery, it has effectively conceded the applicant’s weight gain was causally linked to the injury at issue; the subsequent large loss of weight by the applicant is, adopting a common sense approach to the causal chain, therefore said to be linked to the injury; that fluctuation in weight is, on balance, accepted by the medical experts in the case as a causative factor in the change in shape of the applicant’s breasts post-injury; that being so, the requirement for the proposed surgery can be said to have arisen “as a result of” the injury at issue; Kooragang Cement Pty Ltd v Bates applied; applying the criteria set out in Diab v NRMA Ltd, the proposed surgery is also reasonably necessary; respondent ordered to pay the costs of and incidental to the proposed surgery.

Decision date: 29 September 2023 | Member: Cameron Burge

BMT v Bank of Queensland Ltd [2023] NSWPIC 519

Workers Compensation Act 1987; claim for weekly compensation in respect of psychological injury; worker stood down following allegations of misconduct; whether pressure to resign before disciplinary investigation concluded; credibility; whether injury pursuant to section 4 and section 11A(3); whether defence pursuant to section 11A(1) made out; Held – the applicant sustained a psychological injury which was predominantly caused by reasonable action with respect to discipline; award for the respondent.

Decision date: 29 September 2023 | Member: Rachel Homan

Lee v Racing NSW [2023] NSWPIC 520

Workers Compensation Act 1987; claim for surgery for jockey/horse trainer; whether injury is a personal or disease injury pursuant to section 4; whether falls off horses should be categorised as personal injuries; whether principle in Rail Services Australia v Dimovski applicable; Held – facts of nature of applicant’s employment indicated that section 4(b) was applicable; applicant’s employment analogous to that of a shearer; award for applicant.

Decision date: 3 October 2023 | Member: John Wynyard

Li v Fusun International Pty Ltd [2023] NSWPIC 523

Workers Compensation Act 1987; claim for permanent impairment; injury to the right ankle and right hindfoot disputed under section 4(a); consequential condition of the right knee disputed; contemporaneous evidence; histories in clinical records; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Department of Aging, Disability and Home Care v Findlay, Davis v Council of the City of Wagga Wagga, Mason v Demasi; and Munce v Thomson Cool Rooms Pty Ltd considered and applied; Held – the applicant suffered fractures to the first, second, third and fourth distal phalanges of the right foot and an injury to the right forefoot (the dorsum of the foot) arising out of or in the course of his employment with the respondent on 10 June 2016 within the meaning of section 4(a) and section 9A; the applicant suffered a consequential condition to his right ankle as a result of the injuries to his right foot in the course of his employment with the respondent on 10 June 2016; the applicant did not suffer injuries to the right hindfoot, right ankle and right knee arising out of or in the course of his employment with the respondent on 10 June 2016 within the meaning of section 4(a) and section 9A; the applicant did not suffer a consequential condition to his right knee as a result of the injuries to his right foot referred in the course of his employment with the respondent on 10 June 2016; right lower extremity (fractures to the first, second, third and fourth distal phalanges of the right foot and an injury to the right forefoot - the dorsum of the foot and the right ankle) remitted to the President for referral to a Medical Assessor for an assessment of whole person impairment; the respondent is to pay the applicant’s reasonably necessary medical and related expenses in respect of the injuries to his first, second, third and fourth distal phalanges of the right foot and the injury to his right forefoot and right ankle as a result of injury on 10 June 2016 under section 60 on the production of accounts, receipts and/or Medicare notice of charge.

Decision date: 4 October 2023 | Member: Anthony Scarcella

Motor Accidents Medical Review Panel Decisions

Chaaya v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 474

Review of decision of Medical Assessor (MA) Assem dated 26 September 2022; claimant injured in motor vehicle accident on 7 September 2020 in rear end collision with limited impact; claimant injured his cervical spine, lumbar spine, right shoulder and right hand; parties agreed that injuries to the cervical spine, lumbar spine and right shoulder are threshold injuries; the only matter for determination was the injury to the claimant’s right third metacarpophalangeal joint; issue of causation concerning the MCP joint; claimant had prior injury to his right hand in 2008; Panel satisfied that the claimant did have an injury to his third right MCP joint consisting of a partial tear of a superficial component of the radial collateral ligament but the Panel was not satisfied that this injury was causally related to the accident; Held – certificate of MA Assem affirmed.

Decision date: 22 September 2023 | Panel Members: Member Alexander Bolton, Dr Michael Couch, and Dr Drew Dixon | Injury module: Spine and Upper Limb

QBE Insurance (Australia) Limited v O'Sullivan [2023] NSWPICMP 475

Motor Accident Injuries Act 2017; dispute related to whether physical injury was a threshold injury; claimant involved in a motor accident on 13 May 2021 from head on collision; claimant had asymptomatic but probably pre-existing pathology at C3/4; claimant re-examined; contemporaneous clinical records showed onset of neck pain and referred pain in the C3/4 distribution following motor accident; clinical expertise of Medical Assessor from Panel examining claimant supported finding that motor accident aggravated pre-existing pathology at C3/4; nature of motor accident capable of aggravating disc pathology; finding made that the motor accident aggravated the C3/4 disc causing protrusion trough the annulus fibrosus; partial rupture of a ligament constitutes a non-threshold injury; Held – original assessment of non-threshold injury  confirmed.

Decision date: 26 September 2023 | Panel Members: Principal Member John Harris, Dr Neil Berry, and Dr Drew Dixon | Injury module: Spine

Gorgiovski v QBE Insurance (Australia) Limited [2023] NSWPICMP 476

Review of a certificate and reasons of Medical Assessor (MA) Cameron dated 14 December 2021; MA had found that injuries to the cervical spine, shoulders, lumbar spine and head were all threshold injuries; claimant was involved in an accident on 2 September 2018 when a car to his left tried to enter the road without stopping; claimant submits that he suffered a traumatic brain injury with a loss of consciousness which should be classified as a non-threshold injury; MA Wan examined the claimant and found no evidence of a significant head injury on testing; Held – in light of no documented loss of consciousness, and no evidence of radiculopathy in lumbar spine and cervical spine, the Panel confirmed the decision of MA Cameron and was satisfied that the claimant had suffered threshold injuries to his cervical spine, lumbar spine, head, right shoulder and left shoulder.

Decision date: 26 September 2023 | Panel Members: Member Alexander Bolton, Dr Tai-Tak Wan, and Dr Drew Dixon | Injury module: Spine, Upper Limb, and Brain Injury

Insurance Australia Limited t/as NRMA Insurance v El Ayoubi [2023] NSWPICMP 477

Review of certificate of Medical Assessor (MA) Castle-Burton dated 16 August 2022; claimant involved in a motor vehicle accident on 18 March 2013; MA Jones issued a whole person impairment (WPI) assessment on 22 September 2015 that the claimant did not sustain psychiatric injury; MA Wilding issued a certificate on 23 March 2016 that the claimant had 0% WPI for physical injuries; MA Takyar issued a certificate on 8 April 2019; the claimant required domestic assistance from the date of the accident to the date of medical assessment and thereafter for the remainder of the claimant’s life due to psychiatric disabilities; on 4 December 2019 a medical Review Panel found that domestic assistance would only have been required for the first three months following the accident; matter referred to MA Castle-Burton who issued a certificate determining that the claimant needed assistance due to psychiatric disabilities from the date of the accident to 18 June 2013; insurer sought review of this assessment; Panel determined that the claimant’s restrictions were limited and that the disability she claimed would not be limited by any psychiatric disability; Held – that the certificate of MA Castle-Burton revoked; the claimant is entitled to domestic assistance for 2.75 hours per week from the date of the accident to 18 July 2013 as a result of psychiatric disabilities and no allowance for the future.

Decision date: 27 September 2023 | Panel Members: Member Alexander Bolton, Dr Anup Mangipudi, and Ms Dawn Piebenga | Injury module: Treatment Type: Domestic Assistance

Mun v Allianz Australia Insurance Limited [2023] NSWPICMP 478

Motor Accident Injuries Act 2017; dispute related to whether physical injury was a threshold injury and various treatment disputes; claimant involved in a motor accident on 18 March 2020 from rear end collision causing secondary collision; claimant sustained various injuries including to the neck and back; claimant re-examined; no basis to finding radiculopathy at any time; claimant sustained soft tissue injuries only; various treatment disputes concerning reasonable and necessary, causation and recovery; symptoms and degenerative pathology prior to motor accident; contemporaneous clinical records showed various injuries consistent with motor accident; radiculopathy not established; pain not a sign of radiculopathy; motor accident caused threshold injuries; various findings made on reasonable and necessary and causation; recovery; decision in Kotb v AAI Ltd overtaken by recent amendment; Panel has power to determine the issue of recovery by reason of the recent amendment; findings made about some treatments would improve the claimant’s recovery; Held - original assessment of threshold injury confirmed; treatment disputes revoked and new certificates issued.

Decision date: 27 September 2023 | Panel Members: Principal Member John Harris, Dr Neil Berry, and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb; Treatment Type: Medical Specialist Consultations, Gym/Exercise Program, Radiological Investigations and Medication – Prescription.

AAI Limited t/as GIO v Georges [2023] NSWPICMP 480

Dispute about whether the degree of permanent impairment of the claimant as a result of physical injury caused by the accident is greater than 10%; whether the claimant suffered from gastro-oesophageal intestinal disease as a result of the accident; medical assessment under review certified that the injuries caused by the accident gave rise to a permanent impairment greater than 10%; Held – the claimant’s injuries as a result of the accident did not give rise to permanent impairment greater than 10%; the certificate of Medical Assessor Berry is revoked.

Decision date: 28 September 2023 | Panel Members: Member Terence Stern OAM, Dr Shane Moloney, and Dr Philip G Truskett AM | Injury module: Spine, Upper Limb and Digestive System

Gray v Allianz Australia Insurance Limited [2023] NSWPICMP 481

Claimant was a driver in a stationary car hit from behind by a truck and another car; injuries reported include neck, thoracic spine, lumbar spine, both shoulders both hips and legs; accident occurred in 2004; 17-year delay in bringing application; Review Panel found the cervical spine, thoracic spine, lumbar spine, hips, legs and shoulder injury were a soft tissue injury; all the injuries sustained by the claimant were soft tissue injuries which resolved about 12 months after the accident; claimant had ongoing intermittent and low level symptoms of neck and lumbar spine pain; none of the claimant’s ongoing complaints or symptoms were caused or aggravated by the motor accident in 2004; claimant’s experienced acute cervical spine pain and left shoulder disability in 2018 which was not caused by the motor accident; none of his ongoing complaints or symptoms such as the C5 nerve root compression or problems at the L5 level were caused by or contributed by the motor accident in July 2004; claimant’s cervical and lumbar spine symptoms and complaints were ongoing for some years before and after the motor accident and were caused by age-related degenerative spinal disease; Held – original medical certificate affirmed.

Decision date: 28 September 2023 | Panel Members: Member Ray Plibersek, Dr Geoffrey Stubbs, and Dr Drew Dixon | Injury module: Spine, Upper and Lower Limb

Aleksic v QBE Insurance (Australia) Limited [2023] NSWPICMP 482

Motor Accident Injuries Act 2017; dispute related to whether psychological injury was a threshold injury; claimant involved in a motor accident on 24 February 2020 when a kangaroo collided with the vehicle; previous injury on 1 February 2020 from sideswipe collision; claimant had pre-existing major depressive disorder in remission which was aggravated by the previous motor accident; 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: 28 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

Green v Life Without Barriers [2023] NSWPICMP 479

Whether Medical Assessor (MA) correctly rated appellant’s impairment in social and recreational activities; whether MA provided adequate reasons for his rating of appellant’s impairment in social and recreational activities; Appeal Panel held when Medical Assessment Certificate (MAC) is read as whole, the MA adequately disclosed his reasons for his rating of the appellant’s impairment in social and recreational activities and it was open to him to make the rating he did; Held – MAC upheld.

Decision date: 27 September 2023 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier, and Dr Douglas Andrews| Body system: Psychiatric/Psychological

Adams v State of New South Wales (Central Coast Local Health District) [2023] NSWPICMP 483

Worker alleges error by the Medical Assessor (MA) in finding a pre-existing psychiatric condition and in assigning Class I to the psychiatric impairment rating scale (PIRS) category of self-care; worker alleges that in finding a pre-existing condition the MA had misconstrued the evidence, failed to provide adequate reasons, and denied the worker procedural fairness; Wingfoot Australia Partners Pty Limited v. Kocak and re Minister for Immigration & Multicultural Affairs: ex parte Lam considered and applied; Held – that the appellant had not proven error; Medical Assessment Certificate confirmed.

Decision date: 29 September 2023 | Panel Members: Member Paul Sweeney, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

CBH v Kelvin Baxter Transport Pty Ltd [2023] NSWPICMP 484

Appeal from Medical Assessment Certificate (MAC) finding of 14% for injury to nervous system after claimant suffered brain damage following a coughing fit at work; whether Medical Assessor (MA) had not applied Chapter 5.4 of the Guides or misinterpreted them in failing to assess the emotional and behavioural impairments caused by the injury; whether MA assessment of Clinical Dementia Rating (CDR) was affected by error; claimant re-examined; Held – MAC revoked.

Decision date: 29 September 2023 | Panel Members: Member John Wynyard, Dr Mark Burns, and Dr Robin Fitzsimons | Body system: Nervous System

Secretary, Department of Education v Baxter [2023] NSWPICMP 485

Workplace Injury Management and Workers Compensation Act 1998; appellant relied on grounds for appeal provided in section 327(3)(b), (c) and (d); appeal based on grounds for appeal in section 327(c) and (d) relied on the same evidence on which the appellant relied in support of the ground for appeal in section 327(3)(b); Appeal Panel held that the appellant did not establish that the information within that evidence could not reasonably have been obtained by appellant before the medical assessment and hence the ground for appeal provided in section 327(3)(b) was not established; Appeal Panel also held that because the appellant did not establish that it could not reasonably have obtained that evidence before the medical assessment the Appeal Panel was unable to receive it pursuant to section 328 with the consequence that the grounds for appeal in s327(c) and (d) were also not established; Held – Medical Assessment Certificate confirmed.

Decision date: 3 October 2023 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Dr John Baker | Body system: Psychiatric/Psychological

Lockwood v Kempsey Shire Council [2023] NSWPICMP 486

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in making a deduction pursuant to section 323; the Panel agreed; there was no history of lower back dysfunction before 2005, and the appellant resumed full time work and also playing rugby league; the methodology taken by the AMS to “assume” the appellant had 5% whole person impairment (DRE II) before the 9 March 2016 injury was incorrect; Held – Medical Assessment Certificate revoked.

Decision date: 3 October 2023 | Panel Members: Member Deborah Moore, Dr David Crocker, and Dr J Brian Stephenson | Body system: Spine and Scarring

Princi v Sydney Trains [2023] NSWPICMP 487

Workplace Injury Management and Workers Compensation Act 1998; appellant worker alleged error by the Medical Assessor in the application of a one-half deduction under section 323; the Appeal Panel was not satisfied as to error because a one-tenth deduction was at odds with the available evidence and the Appeal Panel could discern no error in the application of a deduction of one-half to take account of the contribution of the pre-existing condition of the knee to the level of permanent impairment assessed; Held – Medical Assessment Certificate confirmed.

Decision date: 4 October 2023 | Panel Members: Member Jane Peacock, Dr James Bodel, and Dr Greg McGroder | Body system: Left and Right Lower Extremity

Peppernell v Thirlmere Hotel Pty Ltd [2023] NSWPICMP 488

Appellant worker alleged error by the Medical Assessor (MA) in the failure to rate impairment for Chronic Regional Pain Syndrome Type 1 (CRPS1; the Appeal Panel was satisfied as to error because the physical findings of the MA were not consistent with his reasoning; the Appeal panel considered that a re-examination was necessary; criteria for CRPS 1 satisfied on re-examination; Held – Medical Assessment Certificate revoked.

Decision date: 4 October 2023 | Panel Members: Member Jane Peacock, Dr James Bodel, and Dr David Crocker | Body system: Spine, Left and Right Lower Extremity

Vadala v Burwood Council [2023] NSWPICMP 489

Worker suffered injury to cervical spine and right shoulder and had consequential condition of scarring from laminectomy to cervical spine; Medical Assessor (MA) assessed worker’s permanent impairment relating to cervical spine by reference to DRE Cervical Category II, which both parties agreed was wrong and that the assessment should have been by reference to DRE Cervical Category III; unclear from MA’s findings whether worker met criteria for finding of radiculopathy; unclear from MA’s findings whether MA examined the flexion of the worker’s right shoulder; worker re-examined; Held – Medical Assessment Certificate revoked.

Decision date: 4 October 2023 | Panel Members: Member Marshal Douglas, Dr James Bodel, and Dr Margaret Gibson | Body system: Spine and Right Upper Extremity

Lee v Exponential Recruitment Pty Ltd [2023] NSWPICMP 490

Appellant alleged error in the assessment under four categories under the psychiatric impairment rating scale (PIRS) namely, self-care and personal hygiene, social and recreational activities, social functioning, and employability; the ratings in all classes were open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed.

Decision date: 4 October 2023 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Graham Blom | Body system: Psychiatric/Psychological

Beveridge v Staffpond Pty Ltd t/as Terry White Chemmart [2023] NSWPICMP 491

Whether Medical Assessor (MA) considered clause 1.32 of the Guidelines; whether MA’s rating of appellant’s impairment in concentration, persistence and pace correct and whether MA considered persistence and pace; whether MA’s rating of appellant’s impairment in social functioning correct; Appeal Panel held clause 1.32 was not engaged as treatment had not resulted in either total or substantial elimination of appellant’s impairment; Appeal Panel held that MA had considered the cognitive tasks the appellant was able to do and the duration she could do those tasks and the effort it took her to do them; MA accordingly evaluated all matters relevant to rating the appellant’s impairment in concentration, persistence and pace and it was open to the MA to rate the appellant’s impairment in this scale as he did; the Appeal Panel held it was open to the MA to rate the appellant’s impairment in social functioning as he did; Held – Medical Assessment Certificate confirmed.

Decision date: 4 October 2023 | Panel Members: Member Marshal Douglas; Dr Nicholas Glozier, and Dr John Baker | Body system: Psychiatric/Psychological

Motor Accidents Merit Review Decision

Kuljanin v Allianz Australia Insurance Limited [2023] NSWPICMR 50

Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; whether the degree of permanent impairment as a result of the injury is greater than 10%; section 3.12; cessation of weekly payments; pending claim for damages; whether weekly payments continue if there is a medical dispute under division 7.5; Held – the reviewable decision is affirmed.

Decision date: 28 September 2023 | Merit Reviewer: Katherine Ruschen

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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