Legal Bulletin No. 137

Issued 17 November 2023

Welcome to the one hundred and thirty seventh 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 Decisions

Fletcher International Exports Pty Ltd v Lee [2023] NSWPICPD 67

Workers compensation; jurisdiction to determine a claim involving section 38 of the Workers Compensation Act 1987; Lee v Bunnings Group Pty Ltd and Ferro v Mercon Group Pty Ltd [2023] distinguished; Roberts vUniversity of Sydney considered; Held – the appeal is dismissed; the Certificate of Determination dated 9 August 2023 is confirmed.

Decision date: 3 November 2023 | Before: President Judge Phillips

Australian Nursing Home Foundation Ltd v Xu [2023] NSWPICPD 68

Workers compensation; assessment of the evidence; consideration of the entirety of the evidence; credibility; whether the Member considered all of the relevant evidence; Raulston v Toll Pty Limited Minister for Immigration and Multicultural Affairs v Yusuf applied; Held – the Certificate of Determination dated 9 August 2022 is revoked; matter is remitted to another non-presidential member for determination.

Decision date: 3 November 2023 | Before: Acting Deputy President Michel Perry

A1 Granny Flats v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 69

Workers compensation; proceedings concerning the Commission’s determination of an uninsured employer’s liability for reimbursement pursuant to section 145 of the Workers Compensation Act 1987; employer bears the onus of proof in challenging a section 145 notice; Raniere Nominees Pty Limited v Daley applied; nature of section 145 proceedings is not “inquisitorial”; South Western Sydney Area Health Service v Edmonds applied; deemed date of injury affixed by section 15(1)(a) of Workers Compensation Act 1987; Inghams Enterprises Pty Ltd v Thoroughgood; previously unnotified matters to be considered in context of guiding principle, section 42 of the Personal Injury Commission Act 2020; elements of section 11A of the Workers Compensation Act 1987 to be broadly approached; provision of employment benefits; Northern New South Wales Local Health Network v Heggie and Canterbury Bankstown Council v Gazi applied; practitioner’s obligation to clearly identify error in grounds of appeal; Kowalski v Repatriation Commission and Construction, Forestry, Maritime, Mining and Energy Union v Quirk considered; Held – Certificate of Determination dated 9 December 2022 is confirmed.

Decision date: 6 November 2023 | Before: President Judge Phillips

Think Education Services Pty Ltd v BVA [2023] NSWPICPD 70

Workers compensation; pre-filing statement struck out by order of the President; sections 151DA(3) and 151DA(4) of the Workers Compensation Act 1987; Pasminco Cockle Creek Smelter Pty Ltd v Gardner, Workers Compensation Nominal Insurer v England, Kurt’s Plumbing Services Pty Ltd v Shahin and John Lacey EarthMoving Pty Ltd v Campbell-Willis considered; Held – the respondent claimant’s pre-filing statement is struck out.

Decision date: 6 November 2023 | Before: President Judge Phillips

State of New South Wales (NSW Police Force) v Wakefield [2023] NSWPICPD 71

Workers compensation; psychological and physical injuries, whether the incapacity flowing from the injuries entitled two awards of weekly payments; Sedrak v Rooty Hill RSL Club Ltd, Stewart v State of NSW (NSW Police Force), State of New South Wales v Stewart discussed; Harrington v New South Wales Police Force, Cordina Chicken Farms Pty Ltd v Thoa Hong Le discussed and applied; Kesen v Luke Singer Pty Ltd applied; principles applicable to disturbing a member’s discretionary decision; Micallef v ICI Australia Operations Pty Ltd applied; adequacy of reasons section 294(2) of the Workplace Injury Management and Workers Compensation Act; rules 73 and 78(2) of the Personal Injury Commission Rules 2021; Held – Member’s Certificate of Determination dated 3 November 2022 is partly amended and otherwise confirmed.

Decision date: 7 November 2023 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as AAMI v Saez [2023] NSWPIC 591

Motor Accident Injuries Act 2017; section 6.23; settlement approval; 59-year-old claimant was riding his bicycle in the Byron Bay region when the insured driver collided with the bike hurling the claimant onto the roadway causing fractures to his right clavicle, left fibula, right rotator cuff injury and post-traumatic stress disorder; whole person impairment assessed by the insurer’s psychiatrist at 17%; claimant working as a cleaner certified unfit for work for 73 weeks; thereafter certified fit for volunteer work for up to 10 hours per fortnight; insurer paid statutory benefits in the sum of $23,682.16; proposed settlement included calculated amounts for past and future economic loss plus superannuation and a Fox v Wood component totalling $182,343; non-economic loss proposed in the sum of $250,000; settlement proposal rounded up to $435,000; Held – settlement within the range of potential damages assessment if the claim was to proceed to assessment; settlement just, fair and reasonable; settlement approved.

Decision date: 8 November 2023 | Member: Elyse White

CFD v AAI Limited t/as AAMI [2023] NSWPIC 592

Motor Accident Injuries Act 2017; whether for the purposes of section 3.1 the injury suffered by CFD resulted from a motor accident in this State; whether bike involved in incident was a “motor vehicle” as defined; whether section 1.9 is engaged; whether incident was a “motor accident”; Held – the bike involved in the incident was not a “motor vehicle”; definition of “motor accident” not met; injury was a result of being pushed by a pedestrian; neither section 1.9 or section 3.1 engaged.

Decision date: 8 November 2023 | Senior Member: Brett Williams

Pearce v AAI Limited t/as AAMI [2023] NSWPIC 595

Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under 7.36(3) and 7.36(4); claimant was the rider of a motorcycle involved in a collision with insured vehicle; insurer admitted liability and no allegation of contributory negligence; claimant suffered injuries to right knee, right foot, right hand, extensive scarring to right knee, right forearm, right foot, right elbow, right ankle and right shoulder; chronic post-traumatic stress disorder and chronic adjustment disorder with features of depressed mood resulting in an assessment of whole person impairment of 15%; claimant is a chartered accountant; claim for non-economic loss, past and future economic loss; Held – claimant is entitled to damages for non-economic loss, past and future economic loss.

Decision date: 9 November 2023 | Member: David Ford

Workers Compensation non-Presidential Member Decisions

White v Marist Youth Care Limited [2023] NSWPIC 578

Workers Compensation Act 1987; the worker established in prior proceedings that he suffered a work injury when he fell down steps injuring his back and sustaining a secondary psychological injury; present claim pursuant to section 66 for primary psychological injury; absence of symptoms supporting primary psychological injury in statement, clinical notes and not referenced by treating psychiatrist; weight to be attached to report supporting claim; absence of reasoning; errors in history; Hancock v East Coast Timber Products Pty Ltd applied; criteria for establishing post-traumatic stress disorder; DSM-5; finding of nature of injury matter for the Commission; Jaffarie v Quality Casting Pty Ltd applied; Held – applicant had not established that he sustained a primary psychological injury in the form of post-traumatic stress disorder; award for the respondent.

Decision date: 2 November 2023 | Principal Member: John Harris

Rao v Warrumbungle Shire Council [2023] NSWPIC 579

Workers Compensation Act 1987; weekly benefits claim in relation to psychological injury; respondent disputes injury and alleges non work-related matters were the main contributing factor to her psychological condition; capacity for employment also in dispute; Held – the applicant suffered a psychological injury in the course of her employment, to which her employment was the main contributing factor under section 4(b)(i); the preponderance of the medical evidence supports a finding of total incapacity for employment for the period claimed; respondent ordered to pay weekly compensation.

Decision date: 2 November 2023 | Member: Diana Benk

Barretto v Parramatta City Council [2023] NSWPIC 581

Claim for permanent impairment for hearing loss and the cost of digital hearing aids; dispute as to the deemed date of injury between two insurers of the respondent; reference to Hay v Commonwealth Steel Company P/L and Penrith Rugby League Club v Van Poppel; Held – the deemed date of injury is when the worker is last employed in employment the nature of which the injury is due and not when the worker was last exposed to loud noise when in that employment.

Decision date: 3 November 2023 | Member: John Isaksen

Holman Webb Lawyers Pty Ltd v AAI Limited t/as GIO [2023] NSWPIC 582

Workers Compensation Regulation 2016; assessment of costs; consent judgment in Supreme Court against two defendants; GIO received partial payback of workers compensation payments; no damages paid by GIO; applicant seeks costs of $74,250 calculated on gross judgment in accordance with stage 6 of schedule 7; GIO offers stage 8 costs of $20,600 plus GST on basis that no settlement or damages paid by GIO; parties unable to reach agreement; Held – costs to be calculated in accordance with stage 8 of schedule 7 as no monetary damages paid by GIO; if stage 6 applied, the costs would be calculated on the balance of the unpaid payback, these costs being less that stage 8 costs; respondent ordered to pay $21,000 plus GST being the maximum payable for professional costs in accordance with stage 8 of schedule 7; applicant ordered to pay the respondent’s costs of the assessment of $1,200 plus GST.

Decision date: 3 November 2023 | Principal Member: Glenn Capel

Wu v State of New South Wales (Southern NSW Pathology Service) [2023] NSWPIC 583

Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33, medical and related expenses of pursuant to section 60 and lump sum compensation for permanent impairment pursuant to section 66; in relation to alleged psychological injury as a result of bullying and harassment in the course of employment and to which the applicant’s employment was the main contributing factor pursuant to section 4(b)(i); respondent raised a dispute pursuant to section 11A(1) on the ground of “discipline”; Held – applicant sustained a primary psychological injury pursuant to sections 11A(3) and 4(b)(i), with deemed date of injury of 4 March 2014, arising out of and in the course of her employment and, further, the applicant’s employment was the main contributing factor to contracting the disease; defence pursuant to section 11A(1) is not established; matter remitted to the President for referral to a Medical assessor for assessment of whole person impairment; respondent to pay the claimed medical and related expenses pursuant to section 60, upon production of accounts, receipts or Medicare Notice of Charge; after the issue of a Medical Assessment Certificate, the matter is to be relisted for a further conference to address the issue of the applicant’s entitlement to weekly compensation and quantification of any weekly compensation.

Decision date: 3 November 2023 | Member: Karen Garner

Towney v Secretary Department of Communities and Justice [2023] NSWPIC 584

Workers Compensation Act 1987; psychological injury; defence under section 11A relating to performance appraisal; requirement for reasonableness of conduct relied on and causal link with injury; the applicant suffered an accepted psychological injury; the respondent raised a defence per section 11A and relied on performance appraisal; the respondent tendered no statement evidence in support of its defence; it relied solely on source material and medical evidence. In particular, the respondent did not tender any evidence which traversed the applicant’s statement evidence that he had been pressured and felt bullied into signing a performance improvement plan; that the plan was not implemented appropriately and that it was left in place too long; the respondent also failed to traverse in statement evidence the applicant’s allegations he had complained about his supervisor’s conduct which he contended also caused his injury, and that he made a formal complaint about her; absent such evidence, the respondent has not discharged its onus of proving the conduct on which it relied was reasonable; as the test for a successful section 11A defence is twofold, namely whole or predominant cause and the conduct being objectively reasonable, the failure by the respondent to prove reasonableness is fatal to its defence; Held – matter remitted to President for referral to Medical Assessor to determine applicant’s permanent impairment.

Decision date: 3 November 2023 | Member: Cameron Burge

Shipley v Visscher Caravelle Australia Pty Ltd [2023] NSWPIC 585

Workers Compensation Act 1987; claim for compensation pursuant to section 60 for the costs of and incidental to a proposed cervical spine surgery; whether injury to cervical spine in two workplace incidents; where pre-existing degenerative pathology; where contemporaneous medical records only described symptoms in other parts of the spine; Held – applicant sustained an injury to his cervical spine in the first workplace incident; applicant failed to discharge onus of demonstrating injury to cervical spine in the second event; material contribution from first injury to condition requiring surgery; proposed surgery is reasonably necessary medical treatment; respondent to pay the costs of and incidental to the proposed surgery.

Decision date: 3 November 2023 | Member: Rachel Homan

Martin v Queensland Property Investments [2023] NSWPIC 586

Workers Compensation Act 1987; claim for weekly compensation pursuant to section 38; dispute as to whether the applicant had been paid 260 weeks of weekly compensation in respect to a neck injury for the purposes of section 39; meaning of “injury” for the purposes of section 39; whether the applicant entitled to weekly compensation pursuant to section 41 following surgery to the cervical spine; principle of statutory interpretation where conflict between general and specific legislative provisions;  Jaffarie v Quality Castings Pty Ltd, Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Live-stock Corp (No 2), Commercial Radio Coffs Harbour Ltd v Fuller, and Purcell v Electricity Commission of New South Wales considered and applied; Held – that the applicant has received an aggregate period of 260 weeks of weekly compensation in respect of the injury to her cervical spine and therefore has no entitlement to further weekly compensation pursuant to section 39; the applicant has no entitlement to weekly payments of compensation pursuant to section 41 as a result of any incapacity resulting from the C5-C7 anterior cervical decompression and fusion + ICBG surgery performed by Dr Bhisham Singh on 19 April 2023; that there is an award for the respondent in respect to the claim for weekly compensation.

Decision date: 3 November 2023 | Member: John Turner

Harper v State of New South Wales - Fire and Rescue NSW [2023] NSWPIC 587

Workers Compensation Act 1987; claim for compensation pursuant to section 67; claim for costs uplift; consideration of applicant’s statement, medical reports and other treatment records, claim correspondence, and factual material; consideration of the competing submissions in relation to the application for an uplift in relation to costs; considered Tyler v Marsden Industries, Bourke v State of New South Wales (Ambulance Service of NSW), Pen v Arborglen Pty Ltd and Regal Paints Pty Ltd v Wasson; Held – the applicant is entitled to compensation for pain and suffering pursuant to section 67 in the sum of $25,000 representing 50% of a most extreme case; respondent ordered to pay the applicant’s costs as agreed or assessed with a 10% uplift for complexity.

Decision date: 3 November 2023 | Member: Anne Gracie

Hassoun v All Systems Furniture Pty Ltd [2023] NSWPIC 588

Claim for permanent impairment and cost of cervical spine surgery; lumbar injury accepted; dispute is as to cervical injury and whether any such injury brought about the need for fusion surgery carried out in 2020; Held – the applicant suffered a cervical spine injury in the work-related injury at issue; the fact he did not have that injury investigated until approximately 3 or 4 months after the injury against a background where his treatment was preoccupied with his lumbar injury is not fatal to his claim; on balance, weighing up the totality of the evidence, the Commission is satisfied a cervical spine injury was suffered in the incident at issue; the surgery carried out in 2020 was reasonably necessary as a result of the 2011 workplace injury, as the injury made a material contribution to the need for it; there is no suggestion the surgery was not reasonably necessary; the dispute was as to the cause of the need for it; accordingly, the claim for section 66 compensation is remitted to the President for referral to a Medical Assessor, along with the accepted lumbar injury; the respondent is to pay the applicant’s section 60 expenses, including but not limited to the costs of and incidental to the 2020 neck surgery.

Decision date: 6 November 2023 | Member: Cameron Burge

Loding v Interpark Australia Pty Ltd [2023] NSWPIC 590

The applicant sought a finding that his lumbar spine had been injured in an accident in June 2021; the respondent opposed the payment on the basis that the applicant’s treating doctors had not noted any lumbar spine injury but had rather concentrated on and treated his neck injury; finding for the applicant on the basis of the complaints of back injury made to the respondent’s IME very closely following the accident; Held – medical treatment sought found to be reasonable in all the circumstances.

Decision date: 7 November 2023 | Member: Lea Drake

Baker v Southern Metropolitan Cemeteries Trust [2023] NSWPIC 593

Workplace Injury Management and Workers Compensation Act 1998; the applicant suffered psychological injury in 2013; assessed by Medical Assessor in 2016 as having 9% permanent impairment; appeal to an Appeal Panel was dismissed; application to Appeal Panel to reconsider its decision pursuant to section 378; section 378 repealed on 1 March 2021; discussion of unexercised rights in schedule 1 clause 14D of the Personal Injury Commission Act 2020; Dimos v Gordian Runoff Pty Ltd discussed and applied; applicant’s evidence prior to the establishment day (1 March 2021) was a statement and did not include medical opinion establishing an increase in permanent impairment caused by the injury; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales applied; Held – applicant did not satisfy an unexercised right; no entitlement to restore matter to refer to an Appeal Panel.

Decision date: 8 November 2023 | Principal Member: John Harris

Lang v Secretary, Department of Education [2023] NSWPIC 596

Claim for weekly compensation and expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) in respect of a psychological injury; applicant a resident of Queensland at the time of lodgement of the Application to Resolve a Dispute; whether matter federally impacted; where disputes notified pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 by reference to sections 4, 9A, 33 and 11A(1) of the 1987 Act; whether the disputes by reference to sections 4, 9A and 33 were colourable or arguable; whether the Commission would be exercising judicial power in determining the disputes; Kanajenahalli v State of New South Wales (Western New South Wales Local Health District), Chetty v Queanbeyan-Palerang Regional Council and Citta Hobart Pty Ltd v Cawthorn considered; Held – the respondent’s disputes by reference to sections 4, 9A and 33 were colourable or arguable; it is arguable that in determining the application the Commission would exercise judicial power; proceedings dismissed.

Decision date: 9 November 2023 | Member: Rachel Homan

Motor Accidents Medical Review Panel Decisions

Vivolo v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 544

Motor Accident Injuries Act 2017; various treatment disputes; claimant involved in a motor accident on 9 July 2020 whilst riding a scooter and struck by insured vehicle; claimant re-examined by both Medical Assessors; inconsistencies noted on examination; claimant established that he sustained various injuries; delay in onset of symptoms to right shoulder and right hip incompatible with injury to those body parts; separate findings made on each of the nine treatments on the separate issues of causation and reasonable and necessary; Held – medical assessment revoked; various findings made on treatment disputes.

Decision date: 24 October 2023 | Panel Members: Principal Member John Harris, Dr Geoffrey Stubbs, and Dr Alan Home | Injury module: Treatment Type: Facet Joint Injections, Other

Irving v QBE Insurance (Australia) Limited [2023] NSWPICMP 545

The claimant sustained injury in a motor vehicle accident on 9 September 2014; after the accident she developed pain and swelling in her right upper arm; on 1 October 2014 a thrombosis involving the right upper limb veins was diagnosed; the claimant underwent removal of the right first rib to prevent re-narrowing and re-thrombosis of the vein; claimant also developed pain in the lumbar spine; dispute as to causation of the deep vein thrombosis (DVT); whole person impairment (WPI), treatment (past and future) and domestic assistance (past) relating to the DVT; Medical Assessor (MA) Cameron found DVT caused by accident, assessed 2% WPI; certified all treatment past and future related to right upper limb DVT caused by accident; found domestic assistance in relation to right upper limb DVT not caused by accident and not reasonable and necessary in circumstances; Held – certificate of MA revoked; venous thrombosis in right upper arm caused by accident; soft tissue injury to lumbar spine caused by accident; 2% WPI assessed for right upper limb thrombosis assessed under Table 17 of the AMA 4 Guides; 0% WPI for injury to lumbar spine; 0% WPI for surgical scarring; no assessable impairment for excision of the right rib; past medical treatment related to right upper limb DVT related to injury caused by the accident and reasonable and necessary in circumstances; no future treatment required for right upper limb DVT; future treatment not related to injury caused by accident and not reasonable and necessary in circumstances; need for domestic assistance related to injury caused by the accident; with the consent of the parties the Panel assessed whether domestic assistance reasonable and necessary; Panel assessed need for 2 hours per week domestic assistance related to right upper limb DVT was reasonable and necessary in the circumstances during the periods 9 September 2014 to 24 February 2015, 6 March 2015 to 7 June 2019 and 26 July 2019 to date.

Decision date: 30 October 2023 | Panel Members: Member Susan McTegg, Dr Wing Chan, and Dr Margaret Gibson | Injury module: Upper Limb, Spine, Scarring - Scarring; Treatment Type: Radiological investigations, Physiotherapy Treatment, Medical Specialist Consultations, Domestic Assistance - Causation, GP Consultations, Surgery, Medical - Over the Counter, Other

Hirmiz v AAI Limited t/as GIO [2023] NSWPICMP 546

Motor Accidents Compensation Act 1999; medical assessment by Medical Assessor (MA) Cameron of whole person impairment (WPI) and treatment and claimant’s review under section 63; original assessment of 8 separate injuries and 28 individual treatment disputes; Panel directed parties to confer; issues narrowed to that of cervical and lumbar spine surgery and WPI arising from neck and lower back injuries; main issue one of causation; Held – Panel satisfied no previous complaints of neck pain and no pre-existing impairment, surgery related to injuries and reasonable and necessary as conservative measures failed to relieve pain; WPI 25%; Panel satisfied fusion surgery to L5/S1 was related to the accident and reasonable and necessary in the circumstances; claimant had long-standing back complaints leading up to 2010 L5/S1 discectomy and some continuing mild symptoms; WPI 20% due to surgery less 5% for pre-existing condition; certificates of MA revoked.

Decision date: 30 October 2023 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr Drew Dixon | Injury module: Upper and Lower Limb, Spine, Scarring - Scarring; Treatment Type: Medication - Prescription, Physiotherapy Treatment, Medical Specialist Consultations, Domestic Assistance - Causation, Domestic Assistance - Reasonable and Necessary, GP Consultations, Surgery, Facet/z Joint Injections, Gym/Exercise Program

Phillips v QBE Insurance (Australia) Limited [2023] NSWPICMP 547

Motor Accidents Compensation Act 1999; car ran off road collided with tree in April 2017; claimant back seat passenger; issue of delayed onset of back pain of a few days explained by immobility, absence of prior symptoms and other plausible explanation; herniated disc at L5/S1 caused by motor accident and resulted in need for surgery; subsequent fall in 2018 caused herniated disc and further surgery at L4/5; discussion of effect of subsequent injury, clause 1.34 of the Guidelines and Slade v Insurance Australia Ltd; claimant re-examined; radiculopathy at L5/S1 level; subsequent onset of radiculopathy explicable by weakened disc due to operation and scar enhancement; lumbar spine assessed at DRE III due to radiculopathy; L5/S1 scar assessed at 1%; Held – medical assessment revoked; claimant assessed at 11% impairment.

Decision date: 31 October 2023 | Panel Members: Principal Member John Harris, Dr Drew Dixon, and Dr Neil Berry | Injury module: Upper and Lower Limb, Spine, Scarring - Scarring, Digestive System

Sudan v QBE Insurance (Australia) Limited [2023] NSWPICMP 548

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) and treatment (neurosurgeon referral and physiotherapy) by Medical Assessor Wijetunga and claimant’s review under section 7.26; claimant injured in April 2018 alleging injuries to neck, back, shoulders and right knee; main issue was causation due to previous slip and fall (2014), previous car accident (2015) and previous shoulder problems including surgery; claimant attended GP in the weeks and days before the accident complaining of neck and back pain and was referred for scans; Held – Panel found claimant injured his cervical spine by way of an exacerbation; WPI 5% less 5% for a previous asymptomatic condition; Panel also found claimant injured thoracic spine by way of an exacerbation but no evidence of a pre-accident symptomatic impairment and WPI 5%; Panel not satisfied claimant injured his lower back in the accident therefore no impairment; Panel also not satisfied a discrete injury occurred to the shoulders but that any shoulder impairment was related to his neck injury; WPI assessed at 0% due to near normal range of motion; Panel satisfied claimant sustained right knee injury and WPI assessed at 2%; total impairment not greater than 10% but different % to original assessor therefore certificate revoked; physiotherapy treatment not allowed due to uncertainty of what the treatment was for, and certificate revoked; referral to a neurosurgeon was allowed and certificate confirmed.

Decision date: 1 November 2023 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron, and Dr Chris Oates | Injury module: Upper and Lower Limb, Spine; Treatment Type: Physiotherapy Treatment, Medical Specialist Consultations

Dang v Allianz Australia Insurance Limited [2023] NSWPICMP 549

Motor Accident Injuries Act 2017; claimant was a driver of a car hit on its right side at an intersection; injuries reported to left shoulder, right knee, right shoulder and cervical spine were caused by the accident; original assessment found the cervical spine at 5% whole person impairment (WPI), the right and left shoulders both at 2% WPI and the right knee at 0% WPI; Held – original medical certificate revoked; on review the Panel assessed the claimant’s total WPI as 6% for both shoulders and 0% for all the other injuries; total WPI of 6%; claimant’s had a prior history of injuries to his lumbar spine, left leg and left knee and also more recently to his right ankle; soft tissue injury to cervical spine but has no radiculopathy.

Decision date: 1 November 2023 | Panel Members: Member Ray Plibersek, Dr Shane Moloney, and Dr Mohammed Assem | Injury module: Upper and Lower Limb, Spine

QBE Insurance (Australia) Limited v Simonds [2023] NSWPICMP 550

Motor Accident Injuries Act 2017; whether physical injury to the lumbar spine was a threshold injury; motor vehicle accident on 19 July 2019, when four wheel drive in which claimant was a passenger fell from a bridge, landing on its roof; previous history of back injury; claimant did not establish that the accident caused other than threshold injury to the lumbar spine; Held – Medical Assessor’s determination of non-threshold injury set aside.

Decision date: 2 November 2023 | Panel Members: Member Terence Stern OAM, Dr Mohammed Assem, and Dr Geoffrey Stubbs | Injury module: Upper and Lower Limb, Spine

Simonds v QBE Insurance (Australia) Limited [2023] NSWPICMP 551

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI); Medical Assessor (MA) determined that claimant had WPI of 7%; review application by the claimant under section 7.26; claimant alleged injuries to her shoulders, neck, and low back in a motor accident on 19 July 2019; Held – determination that the Certificate of MA Hyde-Page, that the injury did not give rise to WPI of greater than 10%, be confirmed.

Decision date: 2 November 2023 | Panel Members: Member Terence Stern OAM, Dr Mohammed Assem, and Dr Geoffrey Stubbs | Injury module: Upper and Lower Limb, Spine

Pavlovic v AAI Limited t/as AAMI [2023] NSWPICMP 552

Motor Accidents Compensation Act 1999; medical assessment by Medical Assessor (MA) Cameron of whole person impairment and claimant’s review under section 63; claimant injured on 20 November 2017 in rear end collision; claimant alleges injuries to his neck, back, jaw, chest, both shoulders and both legs; MA found only impairment to the neck 5% due to presence of guarding and non-verifiable radicular symptoms; Held – claimant’s evidence unreliable due to inconsistent histories; claimant did not injure his head and jaw; claimant injured his chest, soft tissue and no impairment; claimant injured his neck, thoracic and lumbar spine; neck, no guarding and non-verifiable radicular symptoms too variable to be reliable; DRE I 0%; thoracic, no guarding and no non-verifiable radicular symptoms, DRE I 0%; lumbar spine non-verifiable radicular symptoms also too variable to be reliable but due to the presence of guarding, DRE II 5%; no direct injury to either shoulder and shoulder range of motion too variable to be reliable indicator of impairment and 0% impairment found; no injury to either leg and no assessable impairment; while outcome of assessment the same, due to different findings of injury and impairment, certificate of MA revoked; no issue of principle.

Decision date: 2 November 2023 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson, and Dr Chis Oates | Injury module: Spine, Facial Injury and Impairment, Upper and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

Jones v H E & M E Morris Pty Ltd - Harvey Morris Motor Cycles & Ors [2023] NSWPICMP 553

The appellant submitted that the Medical Assessor (MA) erred in his assessments in four of the psychiatric impairment rating scale categories; the Panel found no errors in three but error in social and recreational activities; in addition, error by the MA in adding 2% for the effects of treatment when no evidence to support this; Held – Medical Assessment Certificate revoked.

Decision date: 3 November 2023 | Panel Members: Member Deborah Moore, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Cordero v Sydney Children's Hospital House Limited (Ronald McDonald House) [2023] NSWPICMP 554

Worker sustained injury to her right shoulder and elbow and lumbar spine in the course of her employment; Medical Assessor (MA) assessed 10% whole person impairment after making a deduction of one-tenth for pre-existing injury or condition of the lumbar spine; appellant worker submitted MA in error in making deduction; Panel satisfied pre-existing condition in lumbar spine was due to appellant’s employment with respondent; Held – Medical Assessment Certificate revoked.

Decision date: 6 November 2023 | Panel Members: Senior Member Kerry Haddock, Dr Alan Home, and Dr Chris Oates | Body system: Right Upper Extremity and Spine

Motor Accidents Merit Review Decision

Pal v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 57

Motor Accident Injuries Act 2017; dispute about weekly payment of statutory benefits under division 3.3; dispute about pre-accident weekly earnings; schedule 1, clause 4(1); business conducted by a corporation; corporation as a separate legal-entity; earnings received from the corporation; compliance with directions; sections 42 and 54 of the Personal Injury Commission Act 2020; rule 77 of the Personal Injury Commission Rules 2021; power to dismiss proceedings; Held – the application for a merit review is set aside.

Decision date: 7 November 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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