Legal Bulletin No. 141

Issued 15 December 2023

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

Supreme Court Decisions

Pombinho v Coca-Cola Europacific Partners API Pty Ltd [2023] NSWSC 1536

Administrative law; certiorari issued; limitations to grounds of appeal raised; meaning of “grounds of appeal”; assessment de novo; correction of error; error of law and jurisdiction; Held – determination of the Appeal Panel and the Medical Assessment Certificate quashed; remitted to the President of the Personal Injury Commission of New South Wales, to be determined, in accordance with law.

Decision date: 12 December 2023 | Before: Rothman J

Espana v Architectural Projects Pty Ltd [2023] NSWSC 1504

Administrative law; judicial review; Medical Appeal Panel review of Medical Assessment Certificate by Authorised Medical Specialist; several jurisdictional errors asserted; whether the Appeal Panel took into account an irrelevant consideration; whether the Appeal Panel failed to engage with evidence; whether the Appeal Panel misapplied the Guidelines; no jurisdictional error established; Held – summons dismissed.

Decision date: 14 December 2023 | Before: Garling J

Tagg v Racing New South Wales [2023] NSWSC 1547

Administrative law; judicial review; Workplace Injury and Management and Workers Compensation Act 1988 (NSW); decision of Medical Appeal Panel; where Appeal Panel fell into jurisdictional error; failure to apply relevant criteria; failure to provide adequate reasons for its decision and disclose its actual path of reasoning; failure of Appeal Panel to correct the errors of the medical assessor; Held – decision quashed; matter is referred back to the President of the Personal Injury Commission to be dealt with according to law by a differently constituted Appeal Panel.

Decision date: 14 December 2023 | Before: Schmidt AJ

Motor Accidents non-Presidential Member Decision

Insurance Australia Limited t/as NRMA Insurance v Shahedunnisa [2023] NSWPIC 641

Motor Accident Injuries Act 2017; settlement approval in the sum of $125,000; 37-year-old female; past and future economic only; no entitlement to non-economic loss; 1% whole person impairment; right wrist fracture open reduction and fixation now healed; small allowance for past loss and intermittent ongoing future loss; buffers awarded; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 28 November 2023 | Member: Shana Radnan

Cheng v Allianz Australia Insurance Limited [2023] NSWPIC 642

Motor Accident Injuries Act 2017; miscellaneous dispute; whether for the purposes of section 3.38 the insurer is entitled to reduce statutory benefits payable in respect of the motor accident; the injured person turning left at intersection with four lane road and the insured turning right from holding bay; both entering four lane road and some metres beyond the intersection collision between both vehicle; the insurer alleged injured person 50% negligent; Held – injured person changed lanes into path of insured; for the purposes of section 3.38, the insurer is entitled to reduce statutory benefits payable in respect of the accident by 50%.

Decision date: 28 November 2023 | Member: Shana Radnan

McWilliams v Allianz Australia Insurance Limited [2023] NSWPIC 646

Assessment of Damages; pedestrian; culpability of claimant; contributory negligence deduction of 50%, 53-year-old male working as a butcher; 16% whole person impairment; non-economic loss $325,000; claim for past and future economic losses based on replacement labour cost and likely early retirement; expert accounting report noting difficulty establishing replacement loss on tax returns; little dispute on nature of injuries both physical; ongoing left knee, likely future surgery, knee reconstruction and psychological impact; Held – buffers awarded for both past and future economic loss.

Decision date: 1 December 2023 | Member: Shana Radnan

Workers Compensation non-Presidential Member Decisions

Parkin v MyHealth Services Pty Ltd [2023] NSWPIC 643

Workers Compensation Act 1987; section 11A(1); reasonable action taken or proposed to be taken by or on behalf of the employer in respect to redundancy and/or dismissal; psychological injury; claim for weekly compensation pursuant to sections 36 and 37 as well reasonably necessary medical and treatment expenses pursuant to section 60; reliance by the respondent on issue not previously notified; section 289A of the Workplace Injury Management and Workers Compensation Act 1998; Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Irwin v Director-General of Education, Ivanisevic v Laudet Pty Ltd, Burton v Bi-Lo Pty Ltd, Melder v Ausbowl Pty Ltd,and AMP Bank Ltd v Ayoub considered and applied; Held – the respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s psychological injury sustained on 1 March 2023 was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline and/or redundancy within the meaning of section 11A(1); due to psychological injury sustained on 1 March 2023 the applicant has had no current capacity for work from 2 March 2023 to date and continues to have no current capacity for work.

Decision date: 30 November 2023 | Member: John Turner

Sirijovski v Coles Supermarkets Australia Pty Ltd [2023] NSWPIC 644

Workers Compensation Act 1987; claim for weekly compensation and medical and related treatment expenses for psychological injury following disciplinary action and dismissal after worker discovered using his personal Flybuys card on customers’ transactions; whether action taken by or on behalf of the respondent was reasonable pursuant to section 11A(1); extent of incapacity resulting from injury; Held – although it was reasonable for disciplinary action to be commenced, the respondent failed to discharge its onus of demonstrating that the process undertaken was reasonable; certificates of capacity issued by general practitioner relied on to find that the applicant had no current work capacity.

Decision date: 30 November 2023 | Member: Rachel Homan

Palanca-Barros v Retaining Specialists Pty Ltd [2023] NSWPIC 645

Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted work injury; whether proposed six-month trial of medicinal cannabis was reasonably necessary treatment as a result of the work injury; Held – treatment with a six-month trial of medicinal cannabis is reasonably necessary medical treatment as a result of the work injury.

Decision date: 30 November 2023 | Member: Karen Garner

Khan v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 647

Notices for Production served by applicant on first respondent and first respondent’s solicitors; objection to Notices for Production; failure to serve Notice of Objection in accordance with Personal Injury Commission Rules 2021; directions made for service of Notice of Objection and Notice of Opposition; first respondent provided “interim replies” and failed to “reply formally” after extension of time sought was granted; first respondent made email submissions and attached further documents after the expiry of the extended time limit; neither the email nor the documents was taken into account; Held –Notice for Production on first respondent’s solicitors wholly set aside; Notice for Production on first respondent set aside in part; first respondent to produce report of investigation commissioned by iCare, if report held, and subject to any claim of privilege.

Decision date: 1 December 2023 | Senior Member: Kerry Haddock

Aguwa v Wesley Community Services Ltd [2023] NSWPIC 648

Claim for psychological injuries; claim for weekly benefits compensation; issue arisen regarding the correctness of the respondent’s calculation of the applicant’s pre-injury average weekly earnings (PIAWE); consideration of applicant’s statement, employment and earnings documentation, medical reports and other treatment records, other factual material, as well as claim correspondence; consideration of whether the pay increase which the applicant received in July 2022 allowed the application of clause 8C of the Workers Compensation Regulation 2016 (the Regulation) to the calculation of her PIAWE, because it both amounted to a change of an ongoing nature to the applicant’s employment arrangement, as well as a financially material change to the earnings of the applicant; Cain v Tamworth Aboriginal Medical, Firth v HammondCare, Bhatia v Cameron Logistics Pty Limited, Project Blue Sky Inc v Australian Broadcasting Authority, Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue,and Military Rehabilitation and Compensation Commission v May considered; Held – clause 8C of the Regulation applies so as to adjust the applicant’s ‘relevant earning period’ for the purpose of calculating her PIAWE; the adjusted earning period will be between her pay increase in July 2022 and the date when she ceased working on 4 March 2023; the applicant’s PIAWE will therefore be calculated at $1,799.67; awards in favour of the applicant pursuant to sections 36 and 37 of the Workers Compensation Act 1987 for the period from 4 March 2023 to date and on a continuing basis; the respondent will be given credit for all weekly compensation payments made already during this period.

Decision date: 1 December 2023 | Member: Gaius Whiffin

Brodie v Secretary, Department of Education & Ors [2023] NSWPIC 649

The applicant suffered an injury in the employ of the first and second respondents; the second respondent sought to be removed from any referral to a medical assessor to assess whole person impairment on the basis that any effect of the injury suffered by the applicant in its employ had ceased; application refused; Held – found that the applicant was suffering from a disease and the second respondent was the last relevant employer.

Decision date: 5 December 2023 | Member: Lea Drake

Liehr v BC Sands Pty Ltd [2023] NSWPIC 651

Workers Compensation Act 1987; consequential condition; section 66; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, State of New South Wales v Bishop, Kooragang Cement Pty Ltd v Bates,and Briginshaw v Briginshaw considered and applied; Held – the applicant sustained a consequential condition of his left shoulder as a result of the accepted worker related injury to the right shoulder on 26 February 2020.

Decision date: 6 December 2023 | Member: John Turner

Meiners v Newcastle Polished Concrete Pty Ltd [2023] NSWPIC 652

Claim for weekly payments and medical expenses for bilateral inguinal hernia injury to the lumbar spine; respondent disputes that injury was sustained in the course of employment; reference to AV v AW; extent of incapacity of worker and consideration of suitable employment; reference to relevant award rates of pay; reference to Wollongong Nursing Home P/L v Dewar and Husnain Pty Ltd v Workers Compensation Nominal Insurer & Another; Held – the worker sustained injury in the course of his employment with the respondent; award of weekly payments of compensation for various periods of total and partial incapacity and the payment of medical expenses for treatment.

Decision date: 6 December 2023 | Member: John Isaksen

FirmGuard Pty Ltd (in Liquidation) v Workers Compensation Nominal Insurer (iCare) [2023] NSWPIC 653

Miscellaneous application seeking orders that applicant not liable to reimburse amount specified in a section 145(1) notice; section 145(1) notice served on corporate employer; proceedings under section 145(3) not pursued by corporate employer; corporate employer now in liquidation and certificate served under section 145A on the applicant as a culpable director; whether the Commission has jurisdiction to make the orders sought; Raniere Nominees Pty Ltd v Daley considered; Held – a section 145(1) notice can only be served on employer or that employer’s insurer; only a person served with a notice under section 145(1) can apply to the Commission for a determination under section 145(3); the letter sent to the applicant serving a section 145A certificate was not a section 145(1) notice; section 145A provides no statutory power for the Commission to make the orders sought; section 145A establishes a pathway for the recovery of a statutory debt in a court of competent jurisdiction; miscellaneous application dismissed.

Decision date: 6 December 2023 | Member: Rachel Homan

Motor Accidents Medical Review Panel Decisions

Allianz Australia Insurance Limited v Skaf [2023] NSWPICMP 625

Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed she sustained injuries to the cervical spine, thoracic spine, lumbar spine, bilateral legs, bilateral shoulders, sternum/chest and head in a motor accident on 29 October 2021; Medical Assessor (MA) Cameron determined that the claimant sustained injuries to those parts of the claimant’s body caused by the motor accident and that all except for the cervical spine injury were threshold injuries; review sought by the insurer under section 7.26; consideration and application of section 1.6 and clauses 5.7, 5.8 and 5.9 of the Motor Accident Guidelines; Held – as a result of the motor accident, the claimant sustained soft tissue injuries to the cervical spine, thoracic spine, lumbar spine, right leg, left leg, bilateral shoulders, sternum/neck and head; all the said injuries are threshold injuries; the certificate of MA Cameron dated 26 September 2022 is revoked.

Decision date: 27 November 2023 | Panel Members: Member Anthony Scarcella, Dr Christopher Oates, and Dr Alan Home | Injury module: Spine, Brain Injury, Upper and Lower Limb

Dokoza v AAI Limited t/as GIO [2023] NSWPICMP 626

Motor Accident Injuries Act 2017; claimant involved in a motor accident on 2 September 2020 from rear-end collision; issue of threshold injury; claimant re-examined by both Medical Assessors; finding of non-threshold psychological injury based on the absence of prior psychological history, the absence of any other explanation for the psychological symptoms, acceptance based of the claimant’s account of her symptoms and presentation and the observations of the treating psychologist; Held – medical assessment revoked; finding made that claimant suffered a non-threshold psychological injury.

Decision date: 28 November 2023 | Panel Members: Principal Member John Harris, Dr John Baker, and Dr Gerald Chew | Injury module: Mental and Behavioural

Kovacs v AAI Limited t/as AAMI [2023] NSWPICMP 627

Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 8 November 2021 when the vehicle she was driving was rear-ended by the insured vehicle; where the Medical Assessor at first instance found threshold injuries; where there were prior injuries to the lower back and neck; where there was an injury to the right shoulder about six weeks before the motor accident and an ultrasound scan performed on 12 January 2021 showed no tear to tendons; where an MRI scan performed two months after the accident on 12 April 2021 showed rotator cuff tears to the infraspinatus and supraspinatus tendons; Held – original assessment revoked; finding that the injury to the right shoulder caused by the motor accident was a non-threshold injury.

Decision date: 28 November 2023 | Panel Members: Member Maurice Castagnet, Dr Sophia Lahz, and Dr Thomas Rosenthal | Injury module: Spine, Brain Injury, Upper and Lower Limb

QBE Insurance (Australia) Limited v Beatty [2023] NSWPICMP 629

Review of decision of Medical Assessor (MA) Moloney dated 30 November 2022 about whether a consultation with the claimants neurosurgeon was reasonable and necessary; claimant involved in motor vehicle accident on 16 June 2018 injuring his cervical and lumbar spines; claimant had a pre-accident history of symptomatic neck pain but not to a considerable degree and he was asymptomatic at the time of the accident working as an arborist; the accident was sudden and unexpected forcing the claimants car into another direction and colliding with a pole which it knocked down; Panel satisfied that the claimant’s complaints prior to the accident with regard to his neck and shoulders were minor but following the accident there was a major change to those symptoms; Panel was satisfied that the claimant’s injuries necessitated an anterior cervical discectomy and fusion surgery at C5/6 and C6/7 levels which was reasonable and necessary and that a consultation with the claimants treating neurosurgeon was reasonable and necessary; Held – certificate and reasons of MA Moloney was affirmed.

Decision date: 29 November 2023 | Panel Members: Member Alexander Bolton, Dr Thomas Rosenthal, and Dr Geoffrey Stubbs | Injury module: Treatment Type: Medical Specialist Consultation

Ameer v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 630

Motor Accidents Injuries Act 2017; review of assessment by single Medical Assessor (MA); whether the accident gave rise to a threshold injury pursuant to section 1.6(2); the MA had found that an injury to the cervical spine disc pathology with annular fissures causing C7 radiculopathy was not a threshold injury under schedule 2 section 2(e); MA had found that cervical spine disc pathology with annular fissure causing C7 radiculopathy with pain referred to both shoulders was caused by the accident; Peet v NRMA Insurance Ltd and Wallace v Kam referred to; where the test of causation under 5D(1)(a) of the Civil Liability Act 2001 was discussed at [16]; clinical examination by the Panel of the cervical spine, lumbar spine, and shoulders did not support the finding of a non-threshold injury; no clinical signs of radiculopathy in the cervical and lumbar spines; no annular fissure; Held – certificate of MA revoked; Panel certifies that the claimant’s injury, caused by the accident, was a threshold injury.

Decision date: 29 November 2023 | Panel Members: Member Terence Stern OAM, Dr Philip Truskett, and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb

Workers Compensation Delegate Decision

Chetty v Trans-West Insurance Brokers (NSW) Pty Ltd [2023] NSWPIC 639

Workers Compensation Act 1987; applicant was an insurance broker/assistant account manager who suffered accepted psychological injury; work capacity decision issued by insurer identified suitable work as a customer service manager; whether the applicant was able to work in suitable employment having regard to section 32A; Held – weight of medical opinion supported the applicant had no current work capacity; work capacity decision set aside; award for the applicant in relation to payment of weekly benefits compensation.

Decision date: 10 November 2023 | Delegate: Stephanie Small

Workers Compensation Medical Appeal Panel Decisions

Scavera v A & G Formwork Pty Ltd [2023] NSWPICMP 631

Injury to face, trigeminal nerve and visual system; appeal by worker on the basis that the lead assessor had removed part of the assessment of whole person impairment made by non-lead assessor; Panel held that lead assessor had no power to remove part of the assessment made by non-lead assessor and assessment by non-lead assessor was within the terms of the referral; Held – Medical Assessment Certificate revoked.

Decision date: 30 November 2023 | Panel Members: Member Carolyn Rimmer, Dr Mark Burns, and Dr Robert Payten | Body system: Facial Disfigurement, Trigeminal Nerve and Visual System

Gouveia v Coles Group Limited [2023] NSWPICMP 632

Appeal from assessment of whole person impairment; whether the assessor erred in his assessment of the thoracic spine or scarring; whether he erred in making a deduction of one tenth for pre-existing degeneration of the lumbar spine; Held – Medical Assessment Certificate revoked and replaced.

Decision date: 1 December 2023 | Panel Members: Member Richard J Perrignon, Dr Margaret Gibson, and Dr Mohammed Assem | Body system: Spine and Skin

State of New South Wales (NSW Health Pathology) v Markovska [2023] NSWPICMP 634

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in failing to make a deduction under section 323 contrary to the weight of evidence with respect to the lumbar spine, and further erred in respect of the gastrointestinal injury; Panel found no error as regards the lumbar spine but error in respect of the gastrointestinal injury; Panel required further evidence and eventually the pathology material was made available; Panel found on review of the endoscopy findings, the that the respondent’s symptoms are due to helicobacter pylori not to her medication intake; Held – Medical Assessment Certificate revoked.

Decision date: 1 December 2023 | Panel Members: Member Deborah Moore, Dr John Garvey, and Dr Neil Berry | Body system: Spine, Left Upper Extremity, Upper and Lower Gastrointestinal Tract, and Scarring (TEMSKI)

Steggles Pty Ltd v Yuan [2023] NSWPICMP 635

Workplace Injury Management and Workers Compensation Act 1998; the appellant alleged error in the failure of the Medical Assessor to make a deduction under section 323 for the contribution of a pre-existing condition to the overall level of permanent impairment assessed and failed to give adequate reasons; Medical Appeal Panel not satisfied as to error; Held – Medical Assessment Certificate confirmed.

Decision date: 4 December 2023 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson, and Dr David Crocker | Body system: Spine, Left and Right Upper Extremity, and Scarring

Ledger v Secretary, Department of Communities and Justice [2023] NSWPICMP 636

Role of the worker’s statement; Bojko v ICM Property Service and Pitsonas v Registrar of the Workers Compensation Commission referred to; assessment under the psychiatric impairment rating scale; Ferguson v State of NSW and Parker v Select Civil Pty Ltd; Held – Medical Assessment Certificate confirmed.

Decision date: 4 December 2023 | Panel Members: Member Catherine McDonald, Dr Nicholas Glozier, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Dolan v Health Services Union NSW [2023] NSWPICMP 637

Workplace Injury Management and Workers Compensation Act 1998; whether the deduction of 50% Medical Assessor (MA) made under section 323(1) for the proportion of the appellant’s permanent impairment that was due to a pre-existing condition was correct; Appeal Panel held that based on the evidence and for the reasons MA explained making an assumption under section 323(2) that the deductible proportion is 10% would be at odds with the evidence; Appeal Panel held that based on the evidence and for the reasons MA explained it was open to the MA to make a deduction of 50% under section 323(1); Held – Medical Assessment Certificate confirmed.

Decision date: 4 December 2023 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Clarence Heavy Haulage Pty Ltd v Hutchings [2023] NSWPICMP 638

Assessment of respondent’s permanent impairment from injury involving several body parts and systems; whether Medical Assessor (MA), by obtaining one reading of respondent’s blood pressure, carried out an adequate examination of respondent’s cardiovascular system; whether MA erred by finding respondent did not have a relevant pre-existing condition; Appeal Panel held MA did not conduct thorough examination; Appeal Panel held that the evidence established the respondent had pre-existing hypertension and that this condition contributed to respondent’s permanent impairment, and MA consequently erred by finding respondent did not have pre-existing condition; respondent re-examined; Held – Medical Assessment Certificate revoked

Decision date: 5 December 2023 | Panel Members: Member Marshal Douglas, Dr Richard Haber, and Dr Mark Burns | Body system: Spine, Nervous System, Urinary and Reproductive System and Cardiovascular

Coles Supermarkets Australia Pty Ltd v Byrne [2023] NSWPICMP 639

Workplace Injury Management and Workers Compensation Act 1998; appellant alleged error in the failure of the Medical Assessor (MA) to make a deduction under section 323 for the contribution of a pre-existing condition to the overall level of permanent impairment assessed and failed to give adequate reasons; a deduction can only be made if the prior condition of the knee has contributed to the overall level of permanent impairment assessed; here the level of permanent impairment assessed is based on the fact that there has been a knee replacement; the fact that the worker was asymptomatic is a factor to be taken into account but is not determinative; the respondent progressed within little time (6 years) after injury to a total knee replacement; on the available evidence the knee replacement was performed because of both the injury and the long standing changes to the knee; the prior condition of the knee should have been taken into account by the MA and as the contribution of the prior condition would be too difficult or costly to determine, a deduction of one-tenth which is not at odds with the available evidence, should have been made. Medical Appeal Panel satisfied as to error; Held – Medical Assessment Certificate revoked.

Decision date: 5 December 2023 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson, and Dr Gregory McGroder | Body system: Left Lower Extremity

Quintero v Osvaldo A Duarte trading as Paint n Drill [2023] NSWPICMP 640

Worker alleges that Medical Assessor (MA) erred in assigning 0% whole person impairment of the cervical and lumbar spinal segments and the right lower extremity knee; and failed to give adequate reasons for his assessment of these body parts; Held – that as the MA had performed a comprehensive examination of the spinal segments and given adequate reasons for his findings, there was no proven error in respect of the spinal segments; that the brief reasons given by the MA in respect of the right knee did not enable the Panel to understand the actual path of his reasoning; Wingfoot Australia Partners Ltd v Kocak applied; after re-examination in respect of the right knee Medical Assessment Certificate revoked.

Decision date: 5 December 2023 | Panel Members: Member Paul Sweeney, Dr Drew Dixon, and Dr Mohammed Assem | Body system: Nervous System, Spine, Facial Disfigurement, Respiration and Right Lower Extremity

The GEO Group Australia Pty Ltd v Cicerkofski [2023] NSWPICMP 641

Workplace Injury Management and Workers Compensation Act 1998; alleged error due to failure to adhere to paragraph 11.10 of the WorkCover Guidelines and alleged error to deduct 20% under section 323 with suggestion assessment the pre-existing psychological condition was “too costly to determine”; Held – Medical Assessment Certificate confirmed; consideration of tension between paragraph 11.10 of the WorkCover Guidelines and section 323.

Decision date: 5 December 2023 | Panel Members: Member Jacqueline Snell, Dr Nicholas Glozier, and Dr Ash Takyar | Body system: Psychological/Psychiatric

State of New South Wales (Ambulance Service of NSW) v Martin [2023] NSWPICMP 642

Workplace Injury Management and Workers Compensation Act 1998; appellant alleged error in the assessment under one of the categories under the psychiatric impairment rating scale (PIRS) namely, concentration, persistence and pace; the rating of class 3 was open to the Medical Assessor (MA) and the Panel could discern no error; appellant also alleged error in the failure to make deduction under section 323 in respect of a secondary psychological injury; a deduction can only be made under section 323 if the pre-existing condition had contributed to the overall level of permanent impairment assessed; here the primary psychological injury of a persistent depressive disorder and post-traumatic stress disorder explains the current impairments rated under the PIRS scale.; the post-traumatic stress disorder can properly on the evidence be understood as a condition of delayed onset, where the precipitating events were much earlier and occurred at the same time of the earlier secondary psychological injury, and resulted in delayed symptoms, the severity of which are consistent with the current impairments assessed under the PIRS scale; accordingly there is no basis upon which to make a section 323 deduction and the Appeal Panel can discern no error in the failure by the MA to do so; Held – Medical Assessment Certificate confirmed.

Decision date: 5 December 2023 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Ian Holland t/as Heytman & Holland v Husejnovic [2023] NSWPICMP 643

Workplace Injury Management and Workers Compensation Act 1998; noise induced hearing loss; no deduction appropriate for period of self-employment; Commissioner for Railways v Bain, Rico v Roads and Traffic Authority, Blayney Shire Council v Lobley, A & G Engineering Pty Ltd v Civitarese,and OneSteel Ltd v Devine considered and applied; on the evidence, no deduction appropriate for overseas military service; Pereira v Siemens Limited referred to; Held – Medical Assessment Certificate confirmed.

Decision date: 6 December 2023 | Panel Members: Member Catherine McDonald, Dr Robert Payten, and Dr Thandavan Raj | Body system: Hearing

Dipre v GHA Solutions Pty Ltd [2023] NSWPICMP 644

The appellant sustained a displaced trimalleolar fracture and underwent open reduction and internal fixation; impairment of left leg assessed at 6% and the surgical scar at 3%; appeal limited to skin assessment; appellant claimed skin impairment at 7%; Medical Assessor (MA) not qualified to assess skin impairment greater than 4% pursuant to clause 14.7 of the Guidelines; demonstrable error established as the MA did not have the qualifications under the Guidelines to assess the claim for assessment of the skin as made; appellant re-examined; examination findings showed scarring most closely falls into the 3-4% range; distinct colour contrast between the skin condition and the surrounding skin as a result of pigmentary changes; scarring easily locatable; able to easily locate the skin condition, and in some areas suture marks are clearly visible; some interference with an activity of daily living; scars non-adherent; applying best fit; skin impairment assessed at 3%; Held – Medical Assessment Certificate confirmed.

Decision date: 6 December 2023 | Panel Members: Principal Member John Harris, Dr Geoffrey Curtin, and Dr Gregory McGroder | Body system: Left Lower Extremity and Skin

Simmons v Janala Pty Ltd [2023] NSWPICMP 645

Appeal from assessment of whole person impairment; whether the assessor erred in omitting to assess scarring or peripheral nerve damage of the right upper limb; whether he erred in omitting to warn the appellant of a potential finding of inconsistency, and assessment by analogy; Held – Medical Assessment Certificate revoked and replaced.

Decision date: 6 December 2023 | Panel Members: Member Richard J Perrignon, Dr Mark Burns, and Dr Drew Dixon | Body system: Left Upper Extremity and Scarring and Peripheral Nerve Damage

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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