Legal Bulletin No. 138

Issued 24 November 2023

Welcome to the one hundred and thirty eighth 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

Coles Supermarkets Australia Pty Ltd v Gandhi [2023] NSWSC 1251

Workers compensation; claim for compensation; where defendant suffered injury to lumbar spine; where defendant had pre-existing pathology of the lumbar spine; “medical dispute” over degree of whole person impairment (“WPI”); where initial Medical Assessor allowed deduction of one third for impairment of the lumbar spine due to pre-existing condition; initial Medical Assessment Certificate contained demonstrable error; matter referred to Medical Appeal Panel (“MAP”); where MAP held that proportion for deduction could not be determined; where MAP allowed deduction of one tenth for impairment of the lumbar spine applying section 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW); where no reasons were given for MAP’s conclusion that proportion of impairment due to pre-existing condition could not be determined; held MAP erred by applying subs (2) without reasons sufficient to see if there was an error of law; lumbar spine determination quashed; medical assessment; application of Workers Compensation Guidelines; where defendant had gastrointestinal issues he attributed to the use of medications post-surgery; where evidence suggested three matters might have contributed to gastroesophageal reflux; where MAP simply adopted doctor’s findings and made no further comments; whether reasons of the doctor adequately identified a “sign” and a “symptom” to satisfy the Guidelines for upper digestive tract impairment; held reasons inadequate to justify adopting doctor’s assessment; doctor does not adequately consider competing contentions about cause of the ongoing impairment; assessment concerning the digestive tract quashed; administrative law; review of Medical Appeal Panel decision; inadequacy of reasons; error of law; Held – decision of Medical Appeal Panel quashed; matter to be remitted to a differently constituted Appeal Panel.

Decision date: 17 November 2023 | Before: Davies J

Presidential Member Decisions

Sonika Australia Pty Ltd v Workers Compensation Nominal Insurer [2023] NSWPICPD 72

Workers compensation; application for an extension of time; section 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998; Rule 133A of the Personal Injury Commission Rules 2021; whether a substantial injustice would result if leave was not granted; Bryce v Department of Corrective Services; Yacoub v Pilkington (Australia) Ltd; Gallo v Dawson considered and applied; acceptance of uncorroborated evidence; Woolworths Ltd v Warfe; Bi-Lo Pty Ltd v Brown applied; no requirement to accept the whole of the evidence of a witness; Chanaa v Zarour applied; decision-maker not required to accept unchallenged evidence; Masterton Homes Pty Ltd v Palm Assets Pty Ltd; Ellis v Wallsend District Hospital applied; Held – leave to appeal the Principal Member’s Certificate of Determination dated 24 October 2022 is refused.

Decision date: 10 November 2023 | Before: Deputy President Elizabeth Wood

Coles Supermarkets Australia Pty Limited v Moyes [2023] NSWPICPD 73

Workers compensation; hearing loss; section 17 of the Workers Compensation Act 1987; whether worker’s employment was noisy; sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; Held – the Member’s Certificate of Determination dated 18 November 2022 is confirmed.

Decision date: 10 November 2023 | Before: Acting Deputy President Parker SC

Motor Accidents non-Presidential Member Decision

Kouchekisheikhani v Allianz Australia Insurance Limited [2023] NSWPIC 597

Motor Accident Injuries Act 2017; contributory negligence; conflicting versions of events; section 4.17; Turkmani v Visvalingam and T & X Company Pty Limited v Chivas referred to; claim for economic loss; no precise evidence of relevant earning; inconsistent evidence of earnings; consideration of case law on economic loss; Medlin v State Government Insurance Commission, IAG Ltd t/as NRMA Insurance v Damian Mares, Dal v Chol, and Allianz Australia Insurance Ltd v Kerr considered; section 126 of the Motor Accidents Compensation Act 1999 assumptions; section 4.7 of the Motor Accident Injuries Act 2017; Held – claimant’s damages are to be reduced by 40% on account of the claimant’s contributory negligence.

Decision date: 19 September 2023 | Member: Stephen Boyd-Boland

Workers Compensation non-Presidential Member Decisions

Skoko v Charles Sturt University [2023] NSWPIC 589

Claim for whole person impairment for the right knee, left knee as a consequential condition, scarring, and lower digestive tract as a consequential condition; respondent concedes injury to right knee and consequential condition to left knee and scarring but disputes consequential condition affecting lower digestive tract; worker claims that psychological stress as a result of work injury has resulted in aggravation of pre-existing gastrointestinal condition; reference to Moon v Conmah P/L on issue of consequential condition; whether a possible causal connection between the injury and the aggravation of a gastrointestinal condition can be established on the balance of probabilities from an evaluation of the evidence; reference to EMI (Australia) Ltd v Bes and Fernandez v Tubemakers of Australia Ltd; Held – the worker did not sustain a consequential condition affecting the lower digestive tract worker as a result of the work injury to the right knee; the possible cause and the aggravation of the gastrointestinal condition was not “sufficiently close” (Fernandez) to conclude that this was the actual cause of the aggravation; referral for assessment by a Medical Assessor of the right and left lower extremities and scarring.

Decision date: 11 October 2023 | Member: John Isaksen

Thomson v Civforce Traffic Management Pty Ltd [2023] NSWPIC 602

Application for L5/S1 surgery; whether applicant’s experts demonstrated proposed surgery was reasonably necessary; Held – medico-legal expert simply relied on treating surgeon’s opinion when he had referred to many issues that required consideration; treating surgeon’s opinion inconsistent and contradictory; Diab v NRMA Ltd considered; no prima facie case established; onus of proof not met; Hancock v East Coast Timber Products Pty Ltd, Brown v Lewis, and Hernandez v State Rail Authority considered and applied; award respondent.

Decision date: 9 November 2023 | Member: John Wynyard

Jones v AAA Nextt Group Pty Limited [2023] NSWPIC 603

Workers Compensation Act 1987; claim for weekly payments; accepted injury to right foot; applicant filed wages schedule and claimed payments in accordance with the schedule; respondent did not file a wages schedule; no dispute as to incapacity; dispute as to calculation of weekly payments; basis of the dispute by the respondent unclear; respondent did not dispute pre-injury average weekly earnings (PIAWE) or wages schedule; applicant proposed orders in accordance with the wages schedule; respondent proposed general orders as to PIAWE as indexed and section 36 and section 37 periods with liberty to apply if calculations could not be agreed; extensive negotiations at telephone conference and in conciliation; Held – orders proposed by the applicant made.

Decision date: 9 November 2023 | Member: Jill Toohey

Steele v State of New South Wales (South Western Sydney Local Health District) [2023] NSWPIC 604

Right shoulder injury; injury not disputed; no dispute that surgery was reasonably necessary; applicant had undergone surgery at her own expenses; dispute was whether rotator cuff repair surgery was reasonably necessary as result of the injury; evidence weighed in the balance and on the balance of probabilities it was determined that the surgery undertaken was reasonably necessary as a result of the work injury; Held – award for the applicant.

Decision date: 10 November 2023 | Member: Jane Peacock

Boyd v Secretary, Department of Education [2023] NSWPIC 605

Workers Compensation Act 1987; claim for weekly payments of compensation and medical expenses due to psychological injury as a result of the employer implementing a covid vaccine mandate for workers working at schools; whether injury arose out of or in the course of employment; reference to Nunan v Cockatoo Docks & Engineering Co Ltd; whether employment was a substantial contributing factor or the main contributing factor to the injury; respondent also relies upon section 11A defence that injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline and/or dismissal; reference to Irwin v Director General of School Education and Northern NSW Local Health Network v Heggie; whether there is comity between this dispute and three other disputes already decided by the Commission in regard to the covid vaccine mandate for education workers; reference to Secretary, Department of Education v Dawking; Held – worker sustained an injury arising out of her employment; the worker’s employment was the main contributing factor to contracting a disease; judicial comity does not apply as that principle is limited to questions of law and not to factual disputes; the injury was predominantly caused by reasonable action taken by the respondent with respect to discipline on the facts in this dispute.

Decision date: 10 November 2023 | Member: John Isaksen

Christopher v Presbyterian Social Services [2023] NSWPIC 606

Claim for declaration and orders that surgery reasonably necessary; whether hiatal hernia caused by 23 years of lifting disable children weighing up to 30kg; whether proposed additional gastric bypass was reasonably necessary; whether pre-existing GORD condition the cause of the hernia; Held – opinion of treating surgeons preferred that such lifting main contributing cause; gastric bypass also reasonably necessary as part of long term management; Diab v NRMA Ltd and Bartolo v Western Sydney Area Health Service considered and applied.

Decision date: 10 November 2023 | Member: John Wynyard

Isaac v Bedlinen & More Pty Ltd (In Liquidation) [2023] NSWPIC 607

The applicant sought a finding that she had suffered a consequential injury to her left shoulder after an injury to her right shoulder from a frank injury and the nature and conditions of her work; she sought referral to a Medical Assessor in relation to the left and right upper extremity (shoulder); Held – a consequential injury was found.

Decision date: 10 November 2023 | Member: Lea Drake

Pulis v M & S Boileau Pty Ltd ATF Boileau Family Trust [2023] NSWPIC 608

Accepted injury to cervical spine and hearing; dispute regarding alleged right shoulder injury; lack of contemporaneous evidence; applicant’s IME provided no diagnosis; Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Davis v Council of the City of Wagga Wagga, Mason v Demasi Hancock v East Coast Timbers Products Pty Ltd and Paric v John Holland (Constructions) Pty Ltd discussed and applied; Held – the applicant has not discharged the onus of establishing an injury to his right shoulder; award for respondent; referral to a Medical Assessor in respect of cervical spine and hearing.

Decision date: 10 November 2023 | Principal Member: Glenn Capel

Kovacs v Strathfield Municipal Council [2023] NSWPIC 611

Claim for compensation in respect of psychological injury alleged to have occurred as a result of bullying and harassment by supervisor; notice for production requesting supervisor’s personnel file; determination of notice of objection lodged by respondent; relevance; legitimate forensic purpose; Held – notice for production set aside in part.

Decision date: 14 November 2023 | Member: Rachel Homan

Bastin v Pacific Palms Recreation Club Pty Ltd [2023] NSWPIC 612

Workers Compensation Act 1987; whether the applicant was entitled to section 67 compensation having regard to the repeal of that section by the Workers Compensation Legislation Amendment Act 2012; Held – the claim for compensation pursuant to section 67 was not preserved by the Amendment Act nor 2016 Regulation as the claim made prior to 19 June 2012 had resolved and was not capable of being amended to preserve the right to the former benefits.

Decision date: 15 November 2023 | Member: Diana Benk

Nguyen v Rheem Australia Pty Ltd [2023] NSWPIC 613

Workers Compensation Act 1987; claim for weekly payments and medical expenses for injury to the lumbar spine; when weekly payments of compensation are to commence having regard to the evidence and the application of sections 4 and 16; reference to Kennedy Cleaning Services P/L v Petkoska and Australian Conveyor Engineering P/L v Mecha; whether the effects of the injury have continued; the extent of the worker’s capacity for work; reference to Wollongong Nursing Home P/L v Dewar and Popal v Myer Holdings P/L; Held – the effects of the injury to the lumbar spine have continued; the worker was partially incapacitated for work while he remained employed by the respondent; the worker has had no current work capacity since the termination of his employment by the respondent; award of weekly payments of compensation and the payment of medical expenses for treatment of the injury to the lumbar spine.

Decision date: 15 November 2023 | Member: John Isaksen

Leafe v Woolworths Group Limited [2023] NSWPIC 614

Workers Compensation Act 1987; application for the cost of bilateral knee surgery pursuant to section 60 in circumstances where the applicant had previously claimed cost of right knee surgery in earlier proceedings before the Commission at a time when need for left knee surgery was already known; earlier proceedings resolved by consent award with respondent to pay for cost of right knee surgery (only) with no reference to or resolution of left knee expenses; evidence in earlier proceedings essentially identical to current proceedings; whether left knee injury consequential to an accepted right knee injury by reason of favouring that knee; whether left knee surgery reasonably necessary and whether Anshun Estoppel principles applied in the circumstances to the current application; Held – award for the respondent; on balance the applicant had failed to discharge his of proof in seeking to establish that his left knee injury was a consequence of the accepted right knee injury.

Decision date: 15 November 2023 | Member: Christopher Wood

Tomaras v GS Investment Group Pty Ltd T/a All Seasons Bakehouse [2023] NSWPIC 615

Workers Compensation Act 1987;claim for weekly benefits and medical expenses; parties agreed that liability issue would be determined; and if determined in favour of the applicant, directions would be made regarding the disposition of the claim; applicant claimed to have been assaulted by principal of respondent, who denied the assault; issues of credit of both applicant and respondent; cross-examination of applicant; principal was available for cross-examination, but not cross-examined; parties agreed there would be no reliance on Browne v Dunn; some of applicant’s evidence not accepted; contemporaneous photographic evidence of injuries; statement of another employee; and report to police; text messages between applicant and principal of respondent demonstrated relationship that at times appeared friendly; at other times there were complaints by the applicant of abusive treatment, not traversed by the principal; applicant has a long history of psychological disorders; respondent submitted applicant’s evidence was unreliable and could not be accepted because of her pre-existing condition, including psychotic features and paranoia; both the applicant’s and respondent’s independent medical examiners were aware of the applicant’s history, and accepted she had a psychological injury; the respondent’s independent medical examiner opined that, on the assumption that the applicant had not been harassed as alleged, her employment was not the main contributing factor to the injury, but the assumption was not made out; applicant’s ability to give evidence was affected by her distress in recalling events during her employment, rather than any attempt to mislead; consideration of Browne v Dunn, Chanaa v Zarour; Onassis and Calerropoulos v Vergiottis; AV v AW; Held – the applicant sustained injury pursuant to section 4(b)(ii); matter to be listed for further preliminary conference for orders as to disposition of the claim.

Decision date: 15 November 2023 | Senior Member: Kerry Haddock

Motor Accidents Medical Review Panel Decisions

QBE Insurance (Australia) Limited v Fatchurrochim [2023] NSWPICMP 556

Motor Accidents Compensation Act 1999; medical dispute about whole person impairment (WPI) and treatment assessment review under section 63; original Medical Assessor (MA) Bodel; issue of causation of injuries involved; pre-existing cervical impairment and resolved left shoulder condition; work and motor accidents before subject accident; re-examined; Held – claimant sustained soft tissue injuries to right shoulder, lumbar spine, cervical spine aggravating degenerative disc disease; WPI less than 11%; previous impairment certificate revoked and replaced; Panel found treatment arose from subject accident and was reasonable and necessary, but found that less treatment was required than MA Bodel; treatment certificate revoked and replaced.

Decision date: 3 November 2023 | Panel Members: Member Terence O'Riain, Dr Drew Dixon, and Dr Tai-Tak Wan | Injury module: Spine and Upper Limb; Treatment Type: Physiotherapy Treatment, Medical Specialist Consultations, Domestic Assistance - Causation, Domestic Assistance - Reasonable and Necessary, GP Consultations, Acupuncture, and Medical - Over the Counter

AAI Limited t/as GIO v Rocchi [2023] NSWPICMP 557

Motor Accidents Compensation Act 1999; claimant suffered injury in a motor vehicle accident on 21 November 2017; Medical Assessor (MA) determined whole person impairment (WPI) at 25%; MA diagnosed post-traumatic stress disorder, persistent depressive disorder, with intermittent major depressive episodes, and alcohol use disorder; Medical Review Panel (MRP) determined that the claimant met the diagnostic criteria for post-traumatic stress disorder, alcohol use disorder, and intermittent explosive disorder, but did not meet the criteria for persistent depressive disorder; MRP assessed WPI at 13%; Held – the Certificate of the Medical Assessor was revoked, and a replacement Certificate issued.

Decision date: 6 November 2023 | Panel Members: Member Terence Stern OAM, Dr Gerald Chew, and Dr Wayne Mason | Injury module: Mental and Behavioural

Mokdassi v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 559

Motor Accidents Compensation Act 1999; multiple treatment disputes; claimant involved in a motor accident on 31 May 2017; claimant re-examined by Medical Assessors finding that claimant had ongoing injuries to neck and left shoulder; intervening work injury caused need for some of the disputed treatments; 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: 7 November 2023 | Panel Members: Principal Member John Harris, Dr Michael Couch, and Dr Shane Moloney | Injury module: Treatment Type: Physiotherapy Treatment, Medical Specialist Consultations, Domestic Assistance - Causation, Domestic Assistance - Reasonable and Necessary, GP Consultations, Hydrotherapy, Gym/Exercise Program, Psychological Treatment, Pain Management Program, Radiological Investigations and Equipment

Allianz Australia Insurance Limited v Ab Jalil [2023] NSWPICMP 560

Motor Accident Injuries Act 2017; threshold injury dispute and insurer’s review of assessment under section 7.26; Medical Assessor (MA) Herald assessed cervical spine injury after January 2022 accident as non-minor (now non-threshold) due to CT scan finding of April 2022 showing “chronic” 25% compression fracture and no evidence of previous fracture or neck complaints; insurer argued “chronic” indicated not acute and therefore not caused by the accident and that report from GP said no history of neck problems, but GP had only been treating claimant since May 2022; Panel called for pre-accident GP notes, specialist reports and access to digital images; no specialist reports or digital images provided; Held – GP notes confirmed GP had been treating claimant since May 2012 and there were no previous neck complaints; GP records contained two additional scans, MRI of December 2022 and CT scan of October 2023 both of which recorded no loss of vertebral height or fracture; Panel found radiology report of compression fracture in April 2022 was erroneous and was not satisfied there was any compression fracture; on examination one of the five signs of radiculopathy was present but not two or more; review of medical records found no signs of radiculopathy reported at any time since the accident; claimant’s cervical spine injury therefore is a threshold injury; certificate of MA Herald revoked.

Decision date: 8 November 2023 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon, and Dr Lesley Barnsley | Injury module: Spine

BJR v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 561

Motor Accident Injuries Act 2017; medical review panel; review of certificate of Medical Assessor (MA) Samuell who certified aggravation of pre-existing persistent depressive disorder and borderline personality disorder had ceased; Held – certificate of MA Samuell revoked; claimant had several pre-existing psychological injuries which were not stable and were being actively treated at the time of the accident; accident significant causal factor in current psychological condition; accident caused aggravation of post-traumatic stress disorder and borderline personality disorder; current whole person impairment (WPI) 7%; pre-existing WPI 5%; adjustment for the effects of treatment 2% WPI; total WPI 4%.

Decision date: 8 November 2023 | Panel Members: Member Susan McTegg, Dr Matthew Jones, and Dr Michael Li Ying Hong | Injury module: Mental and Behavioural

Lazich v QBE Insurance (Australia) Limited [2023] NSWPICMP 562

Motor Accident Injuries Act 2017; dispute related to assessment of permanent impairment; pre-existing fusion at C6/7; pre-existing symptoms and degeneration at C5/6; ongoing neck treatment by chiropractor at time of motor accident; Post accident histories referred to improving neck condition; post-accident notes suggest C5/6 disc herniated approximately 6 weeks after the motor accident; Panel not satisfied that motor accident caused or aggravated the neck condition; Issue of deduction for pre-existing condition; observation of meaning of clauses 6.31 and 6.33 of the Guidelines; “impairment in the same region” means the three separate spinal regions; claimant was DRE Category IV prior to motor accident; issue of assessment depended upon whether pre-existing fusion at C6/7 was “unrelated or not relevant” to subsequent fusion at C5/6; Held – no injury to cervical spine or other body parts; original assessments confirmed.

Decision date: 8 November 2023 | Panel Members: Principal Member John Harris, Dr Drew Dixon, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Skin

Khanna v Insurance Australia Limited t/as NRMA Insurance (No 7 and 8) [2023] NSWPICMP 563

Motor Accidents Compensation Act 1999; assessment by Medical Assessor Young of whole person impairment (WPI) and treatment, and insurer’s review of assessment under section 63; claimant injured in August 2016 accident; claimant alleged development of a psychiatric or psychological condition due to his current state of cardiac health and having been told there is nothing that can be done to prolong his life; claimant submits current state of cardiac health due to blunt force trauma of seat belt and damage to one cardiac artery stent resulting in cardiac procedures 14 months after the accident and continued deterioration of his condition; insurer argued causation, multiple previous accidents, incidents and events and other conditions affecting the claimant’s current health; no medico-legal evidence from either party; Panel conducted review of documentary evidence from treating practitioners and other related proceedings; Held – claimant was diagnosed with persistent depressive disorder with intermittent major depressive episodes related to his parlous state of health; claimant had WPI of 6% as a result of this condition; Panel relied on findings of related Panels dealing with claimant’s musculoskeletal and cardiac conditions and found claimant’s current state of health was not caused by the accident and therefore psychiatric condition not caused by the accident; while treatment was reasonable and necessary to alleviate his depressive condition, it is not treatment related to the injuries caused by the accidents; certificate as to reasonableness and necessity of treatment revoked; certificates concerning WPI and causation of treatment confirmed.

Decision date: 8 November 2023 | Panel Members: Member Belinda Cassidy, Dr Gerald Chew, and Dr Wayne Mason | Injury module: Mental and Behavioural; Treatment Type: Psychiatric Treatment, Medication - Prescription, and Domestic Assistance – Causation

Workers Compensation Medical Appeal Panel Decisions

Active Crane Hire Pty Ltd v Harris [2023] NSWPICMP 565

Right upper extremity; appellant employer alleged error by the Medical Assessor (MA) in the assessment on the basis of incorrect criteria; Appeal Panel satisfied as to error; based on the examination findings of the MA (namely impingement with full range of movement with symptoms present for at least 12 months), this results in an assessment of 3% upper extremity impairment of 2% whole person impairment as a result of injury; Held – Medical Assessment Certificate revoked.

Decision date: 9 November 2023 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson, and Dr Gregory McGroder | Body system: Right Upper Extremity

Slade v Harrison Barratt Group Pty Ltd [2023] NSWPICMP 566

The appellant submitted that the Medical Assessor erred in failing to adequately assess his right shoulder injury “in accordance with mandated protocols contained in Chapter 16 of AMA 5 Guides; Panel found proper process of examination was done; no errors; Held – Medical Assessment Certificate confirmed.

Decision date: 9 November 2023 | Panel Members: Member Deborah Moore, Dr Drew Dixon, and Dr James Bodel | Body system: Right Upper Extremity

Bankstown District Sports Club Ltd v Manca [2023] NSWPICMP 567

Appeal by employer from Medical Assessor’s (MA) range of motion (ROM) findings; whether MA should have used alternative method to measuring pursuant to the Guides; whether MA’s reasoning adequate to explain his ROM findings when he expressed some reservations about the claimant’s presentation; Held – clinical judgement an important part of whether alternative methods used; MA aware of inconsistencies on presentation; his explanation for accepting the impugned ROM method adequately explained; Ferguson v State of NSW considered and applied; Medical Assessment Certificate confirmed.

Decision date: 13 November 2023 | Panel Members: Member John Wynyard, Dr James Bodel, and Dr David Crocker | Body system: Left Lower Extremity and Right Upper Extremity

Fuller v Secretary, Ministry of Health (Justice & Forensic Mental Health Network) [2023] NSWPICMP 568

Workplace Injury Management and Workers Compensation Act 1998;whether Medical Assessor’s (MA) rating of the appellant worker’s impairment in psychiatric impairment rating scale (PIRS) category of travel correct; whether the MA was correct to make a deduction under section 323(1) for a proportion of the appellant’s permanent impairment that was due to an earlier injury; Appeal Panel held MA’s rating of appellant’s impairment in travel was open to him and therefore correct and that the Medical Assessor was correct to make a deduction under section 323(1); Held – Medical Assessment Certificate confirmed.

Decision date: 13 November 2023 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

International Moulded Plastics Pty Ltd v Simamora [2023] NSWPICMP 569

Assessment of injuries to cervical spine, bilateral carpal tunnel syndrome and hypertension; Medical Assessor (MA) erred in failing to refer to the IME reports of the respondent and provide reasons for the difference in opinions; Panel called for GP records to review assessment of hypertension; Panel assessed injury to carpal tunnel, bilateral carpal tunnel syndrome and hypertension and arrived at the same assessment as made by the MA; Held - Medical Assessment Certificate was confirmed as the review had not led to a different result.

Decision date: 13 November 2023 | Panel Members: Member Carolyn Rimmer, Dr Nigel Ackroyd, and Dr David Crocker | Body system: Left Upper Extremity, Right Upper Extremity, Spine, Cardiovascular System and Scarring/TEMSKI

Oswell v Sublime Install Pty Ltd [2023] NSWPICMP 570

Workplace Injury Management and Workers Compensation Act 1998;the appellant submitted that the Medical Assessor (MA) erred in making a deduction pursuant to section 323; in addition, the appellant seeks a reconsideration of the Medical Assessment Certificate (MAC) on the grounds that the MA did not include an assessment for scarring; Panel held the evidence supported a deduction; the appellant failed to make a claim for scarring; Skates v Hills Industries Ltd considered; no errors; Held – MAC confirmed.

Decision date: 13 November 2023 | Panel Members: Member Deborah Moore, Dr Drew Dixon, and Dr James Bodel | Body system: Spine

Camejo v Homebush Bay Foods Pty Ltd [2023] NSWPICMP 571

Workplace Injury Management and Workers Compensation Act 1998;the worker suffered an accepted right leg (hip, knee and ankle) and back injury in 2021 with surgical scar; a previous back injury in 2015 was assessed at 12% permanent impairment; the Medical Assessor (MA) assessed right lower extremity loss and deducted 30% pursuant to section 323 for the right knee; right lower extremity assessed at 7% and skin at 1%; assessment of 7% for the lumbar spine with a 100% deduction pursuant to section 323; reasons of MA disclosed basis for 30% deduction for the right knee due to prior symptoms and extensive osteoarthritis; reasons of MA for the lumbar spine showed error because there was a complete deduction based on a prior assessment; application of incorrect statutory test; Vannini v Worldwide Demolitions Pty Ltd applied; demonstrable error established for section 323 deduction of lumbar spine; Wingfoot Australia Partners Pty Ltd v Kocak applied; reassessment of section 323 deduction of lumbar spine; reference to pre-existing multilevel degeneration and symptoms; nature of pre-existing pathology made the effects of the injury and impairment worse; 1/10th statutory deduction not applied; finding made of 1/5th deduction pursuant to section 323 for the lumbar spine; Held – assessment revoked, and impairment assessed at 14%.

Decision date: 14 November 2023 | Panel Members: Principal Member John Harris, Dr Roger Pillemer, and Dr Tommasino Mastroianni | Body system: Spine, Right Lower Extremity and Skin (TEMSKI)

Valesini v Startrack Express Pty Ltd [2023] NSWPICMP 572

Worker sustained injury to his left lower extremity (ankle and foot) and consequential condition of his right lower extremity (ankle), and TEMSKI scarring in the course of his employment; approved Medical Assessor (MA) assessed 8% whole person impairment (WPI) and issued Medical Assessment Certificate (MAC) on 22 December 2016; worker made a further claim for WPI and MA assessed 13% WPI and issued a MAC on 3 June 2021; the parties had agreed that the worker’s WPI as a result of TEMSKI scarring was 1%; Certificate of Determination (COD) was issued on 14 September 2021, in respect of 14% WPI; the worker, having undergone surgery to his right ankle, sought a reconsideration of the MAC dated 3 June 2021 and revocation of the COD; on 8 June 2023, the COD was revoked, and the matter remitted to the President; the worker lodged an appeal on the grounds that there had been a deterioration in his condition that resulted in an increase in the degree of permanent impairment; and the availability of additional relevant information; both the worker and the employer relied on additional evidence; the Appeal Panel determined to admit the additional evidence of both the worker and the employer; the Appeal Panel considered that there had been a deterioration in the worker’s condition and therefore error had been established; it was considered necessary for the worker to undergo a re-examination by a Medical Assessor member of the Appeal Panel; MA of the Appeal Panel assessed 9% WPI; Held – MAC dated 3 June 2021 revoked.

Decision date: 14 November 2023 | Panel Members: Senior Member Kerry Haddock, Dr Drew Dixon, and Dr Tommasino Mastroianni | Body system: Left and Right Lower Extremity

Fenner Dunlop Australia Pty Ltd v Abeysinghe [2023] NSWPICMP 573

Workplace Injury Management and Workers Compensation Act 1998;the appellant submitted that the Medical Assessor erred in failing to apply a deduction on account of a pre-existing condition pursuant to section 323; complex medical claim involving a schizoaffective disorder; the Panel found no errors in the Medical Assessment Certificate (MAC) which was thorough and detailed; Held – MAC confirmed.

Decision date: 14 November 2023 | Panel Members: Member Deborah Moore, Dr Graham Blom, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Nicola v Sturdy Components Pty Ltd [2023] NSWPICMP 574

Workplace Injury Management and Workers Compensation Act 1998;appeal against a psychological injury assessment of 7%; whether Medical Assessor (MA) had erred in his assessment of the psychiatric impairment rating scale (PIRS) category of social functioning; whether statement that divorce contemplated justified a moderate class 3 assessment; whether the MA had failed to properly apply the provisions of Chapter 11.10 of the Guides; Held – MA assessment a practical demonstration of the pre-eminence of a clinician; ambiguity of evidence clarified in the history taken; Ferguson v State of New South Wales applied; no error in the mild class 2 assessment made: chapter 11.10 now ultra vires; Camden Council v Harle applied; 1/10th deduction pursuant to section 323 appropriate; Medical Assessment Certificate confirmed.

Decision date: 15 November 2023 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

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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