Legal Bulletin No. 106

Issued 14 April 2023

Welcome to the one hundred and sixth 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

Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334

Administrative law; review of medical assessment by Appeal Panel; judicial review of Appeal Panel Decision; Assessment of whole person impairment; deduction for previous injury or pre-existing condition or abnormality; jurisdictional error and error of law on face of the record; Held – the second defendant’s decision dated 15 July 2022 is set aside; the matter is remitted to the Personal Injury Commission to be redetermined according to law.

Decision date: 5 April 2023 | Before: Griffiths AJ

Presidential Member Decision

Lee v Fletcher International Exports Pty Ltd [2023] NSWPICPD 16

Personal Injury Commission Act 2020; workers compensation; reconsideration of remittal decision; section 57; federal jurisdiction; workers compensation matter application remitted by District Court to usual decision maker; Division 3.2, sections 26(5) and 26(6); Held – orders made on remittal from District Court confirmed.

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

Motor Accidents non-Presidential Member Decisions

QBE Insurance (Australia) Limited v McLean [2023] NSWPIC 130

Settlement approval; fatal motor accident; claim under the Compensation To Relatives Act 1897; claimant’s adult son riding motorcycle through intersection when struck by the insured vehicle turning across his path; liability wholly admitted; deceased son working full time; financial contribution and dependency established; settlement amount increased to $150,000 after discussion; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 14 March 2023 | Member: Gary Patterson

Insurance Australia Limited t/as NRMA Insurance v Hills [2023] NSWPIC 131

Motor Accident Injuries Act 2017; 75-year-old male; injured whilst riding a motorcycle suffered multiple abrasions and severe injury to right shoulder resulting in a right reverse shoulder arthroplasty with glenoid bone graft; still suffers from continual discomfort and restriction of movement of the shoulder; entitled to damages for non-economic loss and past economic loss; Held – the proposed settlement is just, fair and reasonable; the proposed settlement is approved under section 6.23(2)(b).

Decision date: 24 March 2023 | Member: David Ford

QBE Insurance (Australia) Limited v Patwary [2023] NSWPIC 132

Application for exemption from damages assessment lodged by the insurer pursuant to the provisions of section 7.34 of the Motor Accident Injuries Act 2017 (2017 Act) and specifically pursuant to rule 99(2)(a) and (b) of the Personal Injury Commission Rules 2021; whether the claim involves complex legal or factual issues or complex issues in the assessment of the amount of the claim and whether the claim involves issues of liability, including contributory negligence, fault or causation; availability of witnesses to attend the assessment conference; Held – claim did not involve such complex issues as submitted by the insurer and witness availability was not an issue after further enquires made by the insurer; this claim is suitable for assessment under the provisions of  the 2017 Act.

Decision date: 27 March 2023 | Member: David Ford

Insurance Australia Limited t/as NRMA Insurance v BDO [2023] NSWPIC 134

Motor Accident Injuries Act 2017; damages claim; approval of a settlement under section 6.23; claimant self-represented; claimant involved in a multi nose to tail accident; neck and shoulder injuries; frozen shoulder diagnosed and arthroscopic capsular release performed with excellent results; worked for the Electoral Commission; initial total incapacity increasing hours to 50% capacity; gradual return to full time work earning substantially more than pre accident earnings; settlement offer included past loss of earnings of $126,294.62 plus future buffer of $43,333.54 for loss of earnings; Held –settlement approved; parties reminded of claimant's entitlement under sections 3.24 and 3.26; the claimant and the insurer have agreed to settle the claim for damages in the sum of $169,628.16; the proposed settlement is approved in accordance with section 6.23.

Decision date: 29 March 2023 | Member: Elyse White

Bizannes v AAI Limited t/as GIO [2023] NSWPIC 135

Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant suffered injury while alighting from a bus at a bus stop; whether for the purposes of section 3.1 the injury resulted from a motor accident in this State; consideration of sections 1.9, 1.4 and 3.1; whether inference can be drawn as to reason for actions of passenger in front of claimant where there was a gap of between two to four feet between the stairs of the bus and the curb; Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness, McLennan v Nominal Defendant, State of New South Wales v Fuller-Lyons, Nominal Defendant v Hawkins, Leach v The Nominal Defendant and Toll Pty Ltd v Harradine applied; Held – where it was found that the bus had been parked at an angle to the curb, and that the distance between the bottom step of the bus and the curb was between two to four feet, and having regard to the apparent logic of events, inference drawn that the passenger in front of the claimant stopped on the bottom step of the bus as he was alighting, and stepped back, because he perceived the gap between the step and the curb and needed to judge the distance between either the step and the road or the step and the curb, before alighting from the bus; the effective cause of the incident was a combination of the position in which the bus had been brought to a stop and the actions of the passenger when confronted with the gap; one proximate cause of the injury was the driving of the bus; injury was a result of both the driving of the bus and a dangerous situation caused by the driving of the bus; the injury was caused during both the driving of the bus and a dangerous situation caused by the driving of the bus; the injury fell within the terms of section 1.9 and resulted from a “motor accident”; having established that his injury results from a motor accident in this State, the claimant is entitled to statutory benefits under Part 3; section 3.1(1) has been satisfied.

Decision date: 29 March 2023 | Senior Member:  Brett Williams

Allianz Australia Insurance Limited v Uehling [2023] NSWPIC 136

Motor Accident Injuries Act 2017; settlement approval; 60-year-old driver involved in a rear end collision whilst stationary in his vehicle; sustained full thickness injury to left arm resulting in severe hyperpigmentation; no further ongoing medical issues; self-employed investment property consultant entitled to damages for past economic loss only; Held – the proposed settlement is just, fair and reasonable; the proposed settlement is approved under section 6.23(2)(b).

Decision date: 30 March 2023 | Member: David Ford

Workers Compensation non-Presidential Member Decisions

Taylor-Craig v Smartgroup Benefits Pty Ltd [2023] NSWPIC 137

Workers Compensation Act 1987; dispute regarding the applicant’s pre-injury average weekly earnings (PIAWE); whether bonus payments should be included in the calculation of the PIAWE having regard to the terms of the applicant’s contract and clause 6(2)(d) of Schedule 3; Held – the respondent had a discretion to pay the bonuses under the terms of the contract, so such payments were made without obligation; the bonus payments are excluded from the calculation of the PIAWE; award for the applicant; credit for payments already made.

Decision date: 30 March 2023 | Principal Member: Glenn Capel

Juklen v Blacktown City Council [2023] NSWPIC 138

Claim for a declaration that proposed surgery reasonably necessary; whether earlier C5/6 fusion had failed; whether treating surgeon misinterpreted radiology showing artefact at surgery site; whether medico-legal expert for respondent correct in finding that applicant’s florid presentation made the artefact of little relevance; whether catastrophizing by applicant relevant; Held – Member ordered general opinion from Medical Assessor that confirmed that the artefact indicated non-union; observations about the persuasive weight of such an opinion and refusal of respondent to accept that opinion and embark on a defence which incorporated much of the over 1000 pages of evidence; claim by respondent that intensive pain management was a potentially effective alternative treatment dismissed; claim that the proposed surgery had no potential for improvement rejected; Diab v NRMA Ltd considered and applied; claimant’s view that many of her symptoms had been caused by the failure of the surgery vindicated; intensive pain management held no potential until the non-union had been addressed;  potential effectiveness significant of recommended surgery; declaration and orders made.

Decision date: 3 April 2023 | Member: John Wynyard

Handcock v Illawarra Retirement Trust [2023] NSWPIC 139

Workers Compensation Act 1987; disputed claim pursuant to section 60 relating to lumbar spine surgery; pursuant to section 60 the proposed lumbar spine surgery involving decompression, removal of synovial cyst and posterior interbody and posterolateral fusion is reasonably necessary treatment as a result of the agreed lumbar injury sustained by the applicant with a date of injury of 17 May 2021 in the course of her employment with the respondent; Held – the respondent is to pay the costs of the proposed surgery pursuant to section 60 in accordance with the workers compensation gazetted rates.

Decision date: 3 April 2023 | Principal Member: Josephine Bamber

Young v Cordina Foods Pty Ltd & others [2023] NSWPIC 140

Workers Compensation Act 1987; claim for cost of hearing aids pursuant to section 60(5); each respondent disputed that it was the last noisy employer; issues of notice and claim; injury; reasonable necessity of medical treatment; consideration of Diab v NRMA Ltd, Unilever Australia Ltd v Petrevska, Inghams Enterprises Pty Ltd v Jones, Dawson and others trading as The Real Cane Syndicate v Dawson, Gregson v L and MR Dimasi Pty Ltd, Westlake v Sydney Symphony Subscribers Committee, Zheng v Xie, Heatcraft Australia Pty Ltd v Lapa, Roads and Traffic Authority of NSW v McNally and Blayney Shire Council v Lobley; Held – award for the first respondent; the second respondent is to pay the costs of the supply and fitting of binaural hearing aids pursuant to section 60(5).

Decision date: 3 April 2023 | Senior Member: Kerry Haddock

Motor Accidents Medical Review Panel Decisions

Insurance Australia Limited t/as NRMA Insurance v BES [2023] NSWPICMP 113

Review of the decision of Medical Assessor (MA); the MA assessed whole person impairment (WPI) of 15% on the basis of a panic disorder with agoraphobia; claimant involved in a motor vehicle accident on 28 January 2017; claimant was a front seat passenger in a car reversing out of a driveway when a collision occurred with another car on the road; the car airbag deployed hitting the claimant in the face while the car was spinning and then hitting another car; claimant suffered both physical and psychiatric injuries; claimant suffered panic attacks with palpitations and experienced fear in public places demonstrating avoidance behaviour; claimant had significant pre-accident issues of a long-standing history of domestic violence in her marriage; claimant examined by the Panel; Held – Panel not satisfied that at the time of the accident the claimant had an ongoing psychiatric disorder; the Panel concluded that the claimant had a mild panic disorder; WPI assessed at 6%.

Decision date: 28 March 2023 | Panel Members: Member Alexander Bolton, Dr Wayne Mason, Dr Matthew Jones | Injury module: Mental and Behavioural

Al-Samer AAI Limited t/as GIO [2023] NSWPICMP 115

Motor Accident Injuries Act 2017; the claimant suffered injury when his rear wheel lost traction causing the motor bike to tip upwards causing the claimant to fall onto his back; the claimant suffered various injuries and severe lacerations abrasions with residual scarring; the dispute related to whether the injury was a minor injury; claimant re-examined; discussion of interpretation of minor injury with reference to skin injury; Dhupar v AAI Ltd applied; other authorities on meaning of skin injury rejected; examination showed claimant suffered injury to the superior cluneal nerve when he fell and landed on the gravel; that skin injury held to be a non-minor injury; other injuries found to be minor; claimants request based on Case Study 48 to have pathology referred outside the Panel for an opinion rejected; previous practice by Review Panels adopting that approach rejected as being outside statutory power, inconsistent with the constitution of the Panel and the requirement to form its own opinion; Held – claimant suffered an injury to a nerve from the various skin injuries; original assessment revoked; finding made that claimant suffered a non-minor injury.

Decision date: 28 March 2023 | Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Geoffrey Stubbs| Injury module: Spine, Upper and Lower Limb and Minor Skin

Stephenson v QBE Insurance (Australia) Limited [2023] NSWPICMP 116

Motor Accident Injuries Act 2017; the claimant suffered injury following a rear end collision; the dispute related to whether the injury was a minor injury; claimant re-examined; shoulder pathology likely pre-existing due to overhead shoulder use such as lifting and gym work; rear-end collision unlikely to have caused or aggravated an internal shoulder tear; other injuries found to be minor injuries; Held – claimant suffered minor injuries; original assessment confirmed.

Decision date: 28 March 2023 | Panel Members: Principal Member John Harris, Dr Neil Berry and Dr Shane Moloney| Injury module: Spine and Upper Limb

Gatt v Insurance Australia Limited t/as NRMA Insurance (No 1) [2023] NSWPICMP 117

Motor Accident Injuries Act 2017; medical dispute about treatment (bilateral shoulder surgery and 8 chiropractic sessions) and review of assessment under section 7.26; original assessment by Medical Assessor Truskett (MA); Held– bilateral shoulder surgery not related to the accident and chiropractic treatment related but not reasonable and necessary; reasons given in Gatt (No 2); Certificate of MA confirmed.

Decision date: 28 March 2023 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson and Dr Shane Moloney| Treatment Types: Surgery and Chiropractic

Insurance Australia Limited t/as NRMA Insurance v Gatt (No 2) [2023] NSWPICMP 120

Motor Accident Injuries Act 2017; medical dispute about whole person impairment (WPI) and treatment (lumbar spine surgery) and review of assessment under section 7.26; original assessment by Medical Assessor Home (MA); claimant was front seat passenger and claimed he was injured in rear end collision; issue of causation of injuries involved; pre-existing spondylolisthesis; pre-accident neck complaints; post-accident fall from chair; initial complaints of pain over shoulders versus pain in shoulder six months later; Held – claimant sustained soft tissue injury to neck causing pain in shoulders; aggravated lumbar spondylolisthesis; no frank or specific injury to either shoulder caused in the accident; in light of causation findings, shoulder surgery not related to accident; chiropractic treatment to neck and lower back related to accident but not reasonable and necessary; accident was material contribution to the need for the lumbar spine fusion surgery; WPI greater than 10%; Certificate of MA in relation to treatment dispute confirmed; certificate of MA in relation to impairment revoked.

Decision date: 30 March 2023 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson and Dr Shane Moloney| Injury module: Spine and Upper Limb

Brown v AAI Limited t/as AAMI [2023] NSWPICMP 121

Motor Accident Injuries Act 2017 (2017 Act); medical assessment of minor injury dispute and claimant’s review under section 7.26; Medical Assessor Cameron had assessed alleged disc bulge and lumbar radiculopathy and found all injuries minor; claimant examined by five Medical Assessors; application for review of one lodged before outcome of some of the other assessments known; outcome of two assessments was that the claimant’s psychological injury and a facial nerve injury was found to be non-minor; Panel invited claimant to discontinue application; claimant asked Panel to proceed on basis the decision would assist the claimant to obtain treatment and recognise the seriousness of the injury; Held– proceedings referred to the President of the Personal Injury Commission to be dismissed under section 54(b) of the Personal Injury Commission Act 2020 (2020 Act) as they are now lacking in substance; discussion of relevance of minor injury decision as the key that unlocks the door to ongoing statutory benefits under Part 3 of the 2017 Act and the entitlement to recover damages under Part 4; guiding principle in section 42 of the 2020 Act referred to and decision of Wood v NRMA Insurance cited and applied.

Decision date: 30 March 2023 | Panel Members: Member Belinda Cassidy, Dr Neil Berry and Dr Mohammed Assem | Injury module: Spine, Upper and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

BGK v Secretary (Department of Education) [2023] NSWPICMP 106

Medical Assessor (MA) declined to assess permanent impairment of appellant because he considered the appellant had not achieved maximum medical improvement (MMI); whether MA correctly applied paragraphs 1.15, 1.16 and 1.34 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed, 1 March 2021; Appeal Panel found MA had not determined appellant should be re-examined; found at re-examination that subsequent to Medical Assessment Certificate (MAC) appellant had started new treatment and as a consequence of which MMI had not been reached; Held – Appeal Panel found degree of permanent impairment of appellant not fully ascertainable and declined to make assessment; MAC confirmed.

Decision date: 24 March 2023 | Panel Members: Marshal Douglas, Dr Graham Blom and Dr Michael Hong | Body system: Psychological/Psychiatric

Sanity Music Stores Pty Ltd v BFL [2023] NSWPICMP 109

Workplace Injury Management and Workers Compensation Act 1998; psychiatric injury; whether Medical Assessor’s (MA) ratings of respondent’s impairment in several of the psychiatric impairment rating scale (PIRS) categories were open to be made based on the evidence, including the history the MA obtained and his findings from examination; whether MA properly considered whether pre-existing condition contributed to respondent's permanent impairment; Held – Appeal Panel found error in Medical Assessment Certificate (MAC) with respect to three PIRS categories and section 323 deduction; MAC revoked.

Decision date: 27 March 2023 | Panel Members: Marshal Douglas, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychological/Psychiatric

Harland (NEE Wrennall) v Adventist Healthcare Limited [2023] NSWPICMP 118

Appeal from assessment of permanent impairment of the lumbar spine; application to admit fresh evidence; whether evidence justified a finding of radiculopathy; whether Medical Assessor erred in making a deduction of 1/10^th for pre-existing disc desiccation; Held – Medical Assessment Certificate revoked and replaced.

Decision date: 29 March 2023 | Panel Members: Richard Perrignon, Dr Mark Burns and Dr Margaret Gibson | Body system: Lumbar Spine and Scarring (TEMSKI)

Williams v State of NSW (Northern NSW Local Health District) [2023] NSWPICMP 119

The appellant submitted that the Medical Assessor (MA) erred in his assessment with respect to five of the psychiatric impairment rating scale (PIRS) categories; Panel agreed the MA erred in two of the five categories; Held – Medical Assessment Certificate revoked.

Decision date: 29 March 2023 | Panel Members: Deborah Moore, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychological/Psychiatric

Barry v State of New South Wales (Northern NSW Local Health District) [2023] NSWPICMP 122

The appellant submitted that the Medical Assessor (MA) erred in his assessment with respect to five of the psychiatric impairment rating scale (PIRS) categories; submissions attempted to introduce new evidence; Panel found they were no more than an attempt to cavil with the MA’s assessments; Panel did accept error with respect to employability; Held – Medical Assessment Certificate revoked.

Decision date: 31 March 2023 | Panel Members: Deborah Moore, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

Winnacott v Community Housing Ltd [2023] NSWPICMP 123

Psychological injury; appellant alleged error in the assessment under one category under the psychiatric impairment rating scale (PIRS) namely, social functioning; the rating in this class was open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed.

Decision date: 31 March 2023 | Panel Members: Jane Peacock, Dr Nicholas Glozier and Dr Douglas Andrews | Body system: Psychological/Psychiatric

De Angelis v Solaris Paper Pty Ltd [2023] NSWPICMP 124

Workplace Injury Management and Workers Compensation Act 1998; impairment resulting from primary psychological injury; worker appealed five of the six psychiatric impairment rating scale (PIRS) categories and deduction made pursuant to section 323; Panel satisfied that there was no error or application of incorrect criteria in four of the five PIRS categories but an error in the assessment of employability; Panel found error in deduction made pursuant to section 323 as made on the basis of an assumption; Held –Medical Assessment Certificate revoked.

Decision date: 3 April 2023 | Panel Members: Carolyn Rimmer, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decisions

Lay v QBE Insurance (Australia) Limited [2023] NSWPICMR 19

Motor Accident Injuries Act 2017; merit review; whether the insurer is entitled to cease weekly payments of statutory benefits after 104 weeks under section 3.12, Division 3.3; whether the claimant’s injury is the subject of a pending claim for damages; Held – the reviewable decision is set aside.

Decision date: 29 March 2023 | Merit Reviewer: Maurice Castagnet

Khalil v Allianz Australia Insurance Limited [2023] NSWPICMR 20

Motor Accident Injuries Act 2017; merit review; dispute about payment of weekly benefits under Division 3.3; meaning of pre-accident weekly earnings (PAWE); Schedule 1, clause 4; whether change in earning circumstances, when change occurred; clause 4(3), clause 4(2)(b); when earner began earning continuously; clause 4(2)(a); sole trader; business expenses; earnings received as an earner; Held – the reviewable decision is affirmed.

Decision date: 31 March 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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