Legal Bulletin No. 116

Issued 23 June 2023

Welcome to the hundred and sixteenth 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

Stocks v Insurance Australia Limited trading as NRMA Insurance [2023] NSWSC 677

Administrative law; judicial review; application for further assessment under section 62 of the Motor Accidents Compensation Act 1999 (NSW); where delegate correctly identified legal test to be applied; whether the reasons of the delegate indicate impermissible or incorrect analysis of the additional information; Held – no error identified; order that the Amended Summons filed 25 January 2023 be dismissed.

Decision date: 21 June 2023 | Before: Chen J

Motor Accidents non-Presidential Member Decisions

Hall v Transport Accident Commission of Victoria [2023] NSWPIC 267

Motor Accident Injuries Act 2017; assessment of claim for damages; section 7.36(4);the claimant was injured when he went off the road whilst riding his motorcycle after the insured’s vehicle emerged on his right whilst exiting a caravan park; the insurer has admitted breach of duty of care on the part of its insured but alleges contributory negligence of 50% on the part of the claimant; the parties agree that the claimant’s injuries exceed the 10% whole person impairment threshold; matters requiring assessment are contributory negligence, non-economic loss, past and future economic loss; expert reports; Held –the amount of damages for this claim are assessed as $800,000 which includes the statutory benefits paid by the insurer; order for costs; breach of duty of care, loss and damage as a result established.

Decision date: 8 May 2023 | Member: Hugh Macken

Telebrico v QBE Insurance (Australia) Limited [2023] NSWPIC 268

Motor Accident Injuries Act 2017; assessment of claim for damages; section 7.36(4); claimant a married 50-year-old woman; involved in a motor accident; rear-end collision with the claimant’s vehicle whilst stationary at lights; five vehicles involved; airbag did not deploy; the insurer admitted liability for the claim and paid statutory benefits; claimant suffered injuries to neck, right shoulder, right arm, left shoulder and back; past economic loss; past superannuation; Fox v Wood damages; future loss of earning capacity; Held – the amount of damages assessed in respect of this claim is $251,421; economic loss is reduced by statutory benefits paid under section 4.10; orders for costs.

Decision date: 5 June 2023 | Member: Gary Patterson

Allianz Australia Insurance Limited v Davison [2023] NSWPIC 269

Motor Accident Injuries Act 2017; section 6.23;settlement approval; $32,000; pedestrian 60% contributory negligence; 58-year-old male; left hip labral tear, whole person impairment 3%; past and future economic losses only; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 5 June 2023 | Member: Shana Radnan

Dewar v Allianz Australia Insurance Limited [2023] NSWPIC 270

Motor Accident Injuries Act 2017; assessment of claim for damages; section 7.36(4); claimant is a 61-year-old woman who suffered injuries in a motor accident on 6 April 2021; the claimant was travelling as a passenger in the insured bus when she fell off her seat; duty of care; breach of duty of care; Held – for the purposes of sections 3.11 and 3.28 the motor accident was not caused wholly or mostly by the fault of the claimant; the amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $3,960 inclusive of GST.

Decision date: 8 June 2023 | Member: Maurice Castagnet

Rodic v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 273

Motor Accident Injuries Act 2017; assessment of claim for damages; section 7.36(1);the claimant, a 43-year-old woman, was injured in a rear-end collision; two impacts; claimant sustained injuries; jolted and jarred forwards and then backward again; claim for injuries to neck, shoulders and back affecting legs and arms (pain and tingling); claimant working two jobs; Held – insured the owner and/or driver of the motor vehicle at fault in this claim for liability to pay to the claimant any damages and statutory compensation; the insurer has admitted liability and breach of its insured driver’s breach of duty of care; sub-sections 7.36(3) and 7.36(4); the amount of damages for this claim is $640,077; order for costs.

Decision date: 13 June 2023 | Member: Terence O'Riain

Workers Compensation non-Presidential Member Decisions

Cannell v Secretary, Dept of Communities and Justice [2023] NSWPIC 215

Claim in respect of lump sum benefit; applicant previously assessed at 12% whole person impairment (WPI), now wishes to be reassessed based upon deterioration of her condition; Held –finding that the Personal Injury Commission has jurisdiction to hear the application; the Certificate of Determination is set aside.

Decision date: 9 May 2023 | Senior Member: Elizabeth Beilby

Valesini v Star Track Express Pty Limited [2023] NSWPIC 271

Application to revoke Certificate of Determination (COD) pursuant to section 57(1) of the Personal Injury Commission Act 2020 (2020 Act) and to remit to the President of the Personal Injury Commission (Commission) to determine whether the matter may be referred for further assessment of permanent impairment; the worker suffered an agreed injury in 2011 and was the subject of medical assessment in the Commission on 3 June 2021, leading to a COD issued for 14% whole person impairment; since that time, the applicant has undergone further surgery to a previously assessed body part and seeks to have the COD revoked and a further medical assessment undertaken; the application is opposed; Held –there is fresh evidence now available; in exercising the broad discretion concerning reconsiderations, the Commission must take into account the policy requirement of finality of litigation and the obligation to rectify any clearcut injustice; one circumstance where a reconsideration may take place is where there is fresh evidence, as opposed to more evidence: Railcorp NSW v Registrar of the WCC of NSW; acting as required by section 43 of the 2020 Act according to equity, good conscience and the substantial merits of the case without regards to technicalities or legal forms, it is appropriate in the circumstances of this matter to revoke the previous COD pursuant to section 57(1) of the 2020 Act; matter remitted to the President to determine whether one of the grounds specified in section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) has been made out, and if so whether the matter can be referred for further assessment as an alternative to appeal as provided by section 329(1) of the 1998 Act.

Decision date: 8 June 2023 | Member: Cameron Burge

Greenwood v Secretary, Department of Education (TAFE) [2023] NSWPIC 272

Claim for cost of hearing aids; injury and noisy employment not in issue; whether hearing aids are reasonably necessary as a result of accepted injury given nature and extent of applicant’s binaural hearing loss; Held – the hearing aids are reasonably necessary as a result of the applicant’s injury; the report of the hearing aids trial demonstrates the actual benefits obtained from their use by the applicant, including the mitigation of his hearing loss and tinnitus; respondent to pay the costs of and incidental to the hearing aids as quoted in the Application.

Decision date: 9 June 2023 | Member: Cameron Burge

Laundess v ISS Property Services Pty Ltd [2023] NSWPIC 274

Workers Compensation Act 1987; claim for weekly payments and section 60 expenses denied as injuries not within employment; whether fall when leaving employment premises to switch off interior vehicle light arose out of or in the course of employment; whether authorisation can be inferred regarding section 11;  Held– section 11 applicable; applicant independent in her work as school cleaner; supervisor said she would probably have authorised applicant to leave premises to turn car light off; section 11 considered and applied; worker’s injury did not arise out of or in the course of employment pursuant to section 4(a); Davidson v Mould, Humphrey Earl Ltd v Speechley and Bill Williams Pty Ltd v Williams considered and applied, but deemed section 11 injury; award for the applicant.

Decision date: 13 June 2023 | Member: John Wynyard

Henry v Pizza Pro Pty Limited [2023] NSWPIC 275

The applicant suffered a number of injuries when assaulted by persons in the course of his employment as a pizza delivery person on 9 May 2017; injuries to his cervical spine, left upper limb (wrist), left upper limb (shoulder), left upper temporomandibular joint (TMJ) and a psychological injury were accepted by the respondent; Held – the applicant did not injure his thoracic spine in the course of his employment on 9 May 2017.

Decision date: 13 June 2023 | Member: Stephen Churches

Barakat v Serco Australia Pty Ltd & Ors [2023] NSWPIC 276

Workers Compensation Act 1987; claim in respect of lump sum death benefit; Held – orders made pursuant to section 29 regarding dependency and apportionment.

Decision date: 13 June 2023 | Senior Member: Elizabeth Beilby

Steel Supplies Logistics Pty Limited v Thurgar & Ors [2023] NSWPIC 277

Workers Compensation Act 1987; claim in respect of lump sum death benefit; dependency; section 4; Held – orders made pursuant to section 25 regarding dependency and apportionment.

Decision date: 13 June 2023 | Senior Member: Elizabeth Beilby

BGR v Golden Ag Trust & Ors [2023] NSWPIC 278

Workers Compensation Act 1987;claim in respect of lump sum death benefit; dependency; section 4; Held – orders made pursuant to section 29 regarding dependency and apportionment.

Decision date: 14 June 2023 | Senior Member: Elizabeth Beilby

Motor Accidents Medical Review Panel Decisions

Ni v AAI Limited t/as AAMI [2023] NSWPICMP 241

The claimant suffered injury whilst riding a pushbike on 19 January 2021; the claimant was assessed by Medical Assessor Wallace who was subsequently found to have a conflict of interest; the Panel found no evidence of radiculopathy in lumbar spine; claimant sustained soft tissue injury of the lumbar spine and left sacroiliac joint; left shoulder, no evidence of injury to the shoulder joint or the rotator cuff; persisting pain and tenderness in left shoulder; sustained soft tissue injury to the left shoulder; any soft tissue injury to right shoulder and left hip now resolved; claimant sustained soft tissue injury to left leg now largely resolved; Panel observed severe psychological sequalae; remedial massage to left leg recommended by general practitioner, effective because the claimant’s left leg condition largely resolved; future remedial massage is a passive treatment and not likely to ameliorate effect of soft tissue injuries; Chinese herbal treatment of limited value in acute phase of injury; no medically accepted peer reviewed evidence to show use of Chinese herbal treatments effective in the long term; Panel of view Chinese herbal remedies unlikely to assist in recovery; Held –  soft tissue injury to the left shoulder, the lumbar spine, the right shoulder, the left hip and left legare all threshold injuries; remedial massage and Chinese Herbal remedies relate to the injury caused by the accident; up to 20 past remedial massage sessions reasonable and necessary; past and future Chinese herbal remedies and future remedial massage not reasonable and necessary.

Decision date: 24 May 2023 | Panel Members: Member Susan McTegg, Dr Tai-Tak Wan and Dr Michael Couch | Injury module: Spine, Upper and Lower Limb; Treatment Type: Remedial Massage and Chinese Herbal Remedies

Kairouz v Allianz Australia Insurance Limited [2023] NSWPICMP 242

The claimant suffered injury in a motor vehicle accident on 31 March 2021; claimant 70-years-old at date of accident; Medical Assessor (MA) Woo found the following injuries were threshold injuries: cervical spine, soft tissue injury; lumbar spine, soft tissue injury; bilateral shoulder, soft tissue injury and left wrist, soft tissue injury; Held –tenderness and restriction of movement of cervical spine; no evidence of radiculopathy; soft tissue injury to cervical spine; CT of lumbosacral spine reported multilevel degenerative changes; no evidence of radiculopathy; soft tissue injury to lumbar spine; no recorded complaint of shoulder pain until seven months post-accident; claimant said left shoulder became painful more than six months after accident; supraspinatus tear left shoulder not caused by accident; both shoulders had decreased range of movement consistent with degenerative changes and claimant’s age; claimant sustained soft tissue injury to left shoulder; claimant sustained soft tissue injury to right shoulder now resolved; on examination normal range of wrist movement; no complaint left wrist pain until December 2021; pain caused by pre-existing osteoarthritic condition; certificate of MA Woo revoked; claimant sustained threshold injuries to lumbar spine, cervical spine and both shoulders; injury to left wrist and hand not caused by accident.

Decision date: 24 May 2023 | Panel Members: Member Susan McTegg; Dr Shane Moloney and Dr Geoffrey Stubbs | Injury module: Spine and Upper Limb

Allianz Australia Insurance Limited v Wagemans [2023] NSWPICMP 243

The claimant suffered injury in a motor vehicle accident as a pedestrian on 3 September 2019; Medical Assessor (MA) Bodel certified all injuries threshold injuries except for the right shoulder; claimant furnished MA with an MRI scan of the right shoulder dated 15 September 2022 which had not been served on the insurer; the application for review was founded on the basis there had been a denial of procedural fairness; insurer disputed the claimant sustained a non-threshold injury to the right shoulder but conceded if Panel finds small full-thickness tear of the supraspinatus tendon shown on the MRI scan was caused by the accident the tendon tear would constitute a non-threshold injury; Held – tendon tear caused by accident where claimant pedestrian, where claimant fell on right side, where claimant sustained abrasions of right shoulder; where GP recorded right shoulder painful on 6 September 2019, where right shoulder included in Application; having regard to consistency of presentation and complaint accident was contributing cause to development of the supraspinatus tendon tear; supraspinatus tendon tear is a non-threshold injury.

Decision date: 2 June 2023 | Panel Members: Member Susan McTegg, Dr Neil Berry and Dr Shane Moloney | Injury module: Spine and Upper Limb

Allianz Australia Insurance Limited v Mercer [2023] NSWPICMP 244

Motor Accidents Compensation Act 1999; the claimant suffered injury on 31 October 2017 when as a pedestrian, she was struck by the insured; the dispute related to the assessment of permanent impairment of the lumbar only as the parties had agreed that the other body parts were assessed at 7%; Wood v Insurance Australia Group Ltd applied; claimant re-examined by both Medical Assessors who found dysmetria assessed at 5%; finding consistent with various other medical examinations; motor accident contributed to condition based on the absence of pre-existing lumbar spine complaints in the period proximate to the accident; contemporaneous complaint of back symptoms; significant impact, effect of increased weight on the claimant’s back condition caused by the other injuries and consistent lumbar spine complaints since the motor accident; Held – original assessment confirmed.

Decision date: 2 June 2023 | Panel Members: Principal Member John Harris, Dr Wing Chan and Dr Michael Couch | Injury module: Spine, Upper and Lower Limb and Minor Skin

Elizondo v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 245

Motor Accident Injuries Act 2017; the claimant suffered injury when the insured vehicle ran into the right-hand door; issue whether claimant suffered only threshold injuries; initial clinical note did not refer to right shoulder pain; initial clinical note by physiotherapist one week later referred to right shoulder pain; initial absence of complaint may be an omission; post-accident scan showed full thickness tear of the supraspinatus tendon; pre-accident right shoulder scan did not show a tear; trauma from accident involving a history of impact into the right shoulder capable of tearing or aggravating a pre-existing condition; clinical examination consistent with right shoulder tear and in accordance with the opinion of the treating specialist; finding made that claimant either tore or aggravated a pre-existing tear of the supraspinatus tendon; held to be not a threshold injury; Held – right shoulder injury not a threshold injury; original assessment revoked.

Decision date: 5 June 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson and Dr Mohammed Assem | Injury module: Spine and Upper Limb

Salucci v CIC Allianz Insurance Limited [2023] NSWPICMP 246

Motor Accidents Compensation Act 1999; assessment of impairment of injuries to: neck/cervical spine, soft tissue injury, musculoligamentous injury; mid back/thoracic spine, soft tissue injury; low back/lumbar spine, L5/S1 radiculopathy; left hip, aggravation/acceleration of congenital dysplasia and right elbow, ulnar nerve neuropathy, sensory deficit; the suffered injuries in a motor accident on 12 May 2017; collision on the passenger side front door and back door of his car pushing his car into the air and landing on the other side of the road; claimant wearing seatbelt but airbags not deployed; claimant previously injured in motor vehicle accident in 1996 assessed at 20% whole person impairment (WPI) due to cervical complaint; claimant owns own business; Held – original certificate revoked and new certificate issued; the injuries caused by the motor accident give rise to a permanent impairment of 24%, and is greater 10%; the Panel finds that can be no deduction from the impairment found in the claimant’s cervical spine on the basis of his 1996 injury.

Decision date: 5 June 2023 | Panel Members: Member Robert Foggo, Dr Shane Moloney and Dr Geoffrey Stubbs | Injury module: Spine, Upper and Lower Limb

El Shaimy v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 247

Motor Accident Injuries Act 2017; medical assessment of threshold (then minor) injury and insurer’s review of Medical Assessor (MA) Assem’s decision under section 7.26; claimant injured in bus accident (bus rear ended by a truck driven allegedly at speed); claimant alleged injury to neck, back and saphenous nerve injury in left lower limb; lack of clarity in body parts referred for assessment and only neck and left lower limb assessed; MA not satisfied saphenous nerve not injured and no evidence of radiculopathy or tear to any discs or ligaments in the neck; insurer submitted lower back injury should not be reviewed; Held– Panel determined lower back injury should be assessed; no re-examination was required; lumbar spine injured in the accident; claimant’s treating neurologist and MA had found three and four signs of radiculopathy when they examined the claimant and relying on the decision of David v Allianz Australia Insurance Limited; Panel satisfied claimant had sustained a non-threshold injury to his lumbar spine; Medical Assessment Certificate of MA revoked.

Decision date: 5 June 2023 | Panel Members: Member Belinda Cassidy, Dr Geoffrey Stubbs and Dr Shane Moloney | Injury module: Spine and Lower Limb

Xie v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 248

Motor Accidents Compensation Act 1999; assessment of impairment of psychiatric injury; claimant pedestrian struck by insured vehicle; re-examination by both Medical Assessors; diagnosed with post-traumatic stress disorder and depression; claimant remained in full-time employment; injury impacted on social and recreational activities and social functioning; no impact on other categories; Held – claimant assessed at 1% impairment; original certificate confirmed.

Decision date: 5 June 2023 | Panel Members: Principal Member John Harris, Dr Christopher Rikard-Bell and Dr Doron Samuell | Injury module: Mental and Behavioural

Al Kalash v AAI Limited t/as GIO [2023] NSWPICMP 249

Review of certificate and reasons of Medical Assessor Home dated 7 March 2022 about whether the claimant had suffered threshold or non-threshold injuries; areas in dispute being the claimants cervical spine, lumbar spine, thoracic spine, right shoulder and headaches; claimant had radiological evidence of a tear of the supraspinatus tendon; insurer argued that the supraspinatus tendon tear arose on the background of osteoarthritis in the shoulder of a degenerative nature and similar submissions with respect to the posterior annulus tear at the C6/7 level; no history of the claimant complaining of neck pain or seeking medical assistance pre-accident; Panel satisfied that the tear to the right shoulder was not part of the ageing process as submitted by the insurer and no complaint by the claimant about right shoulder pain pre-accident; Held – Panel concluded that injuries to the claimant cervical spine and right shoulder are non-threshold injuries.

Decision date: 6 June 2023 | Panel Members: Member Alexander Bolton, Dr Shane Moloney and  Dr Drew Dixon | Injury module: Spine and Upper Limb

Akther v QBE Insurance (Australia) Limited [2023] NSWPICMP 250

Motor Accident Injuries Act 2017; the claimant suffered injury from a rear end collision on 14 September 2020; the claimant suffered various soft tissue injuries; pulmonary embolism (PE) diagnosed in early October 2020; issue of causation of PE and whether it was a threshold injury; claimant did not suffer from anti-phospholipid syndrome as early blood tests were a false positive and subsequent test was negative; no other reason for PE other than bed rest following motor accident; time frame for onset of pain associated with PE consistent with cause being immobility following motor accident; PE causes lung tissue damage due to the blockage; not an injury that connects, supports or surrounds other structures or organs in definition; otherwise not an issue to soft tissue as defined in the parenthesis of the definition; Held –PE not a threshold injury; original assessment revoked.

Decision date: 7 June 2023 | Panel Members: Principal Member John Harris Dr Christopher Grainge and Dr Ian Cameron | Injury module: Respiratory

Harb v AAI Limited t/as AAMI [2023] NSWPICMP 251

Motor Accident Injuries Act 2017; medical assessment of threshold (then minor) injury and insurer’s review of Medical Assessor (MA) Woo’s decision under section 7.26; claimant injured in T-bone collision from passenger side; claimant alleged injuries to neck, back, right arm and shoulder, left knee and thigh and chest; MA found all injuries to be threshold injuries; only injury in issue was the right shoulder injury; claimant had long standing shoulder injuries and before the accident was booked in for shoulder surgery which occurred after the accident; comparison of pre and post-accident radiology revealed pre-existing rotator cuff tear had further progressed; issue of causation of further tear; Held –no additional documents required and no re-examination necessary; Panel accepted evidence of claimant and satisfied claimant injured right shoulder in accident and that mechanism of accident could have and did cause a further tear of the rotator cuff; MA’s Medical Assessment Certificate revoked and new Certificate issued that right shoulder injury was a non-threshold injury.

Decision date: 7 June 2023 | Panel Members: Member Belinda Cassidy, Dr Wing Chan and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb

QBE Insurance (Australia) Limited v Narcisi [2023] NSWPICMP 252

Motor Accident Injuries Act 2017; threshold injury for alleged pelvic fracture and right shoulder injury from motor bike injury in September 2020; claimant’s pelvis impacted petrol tank; symptoms post-accident consistent with fracture; initial symptoms of tenderness consistent with non-displaced fracture; Medical Assessor viewed scan and agreed with CT scan report by radiologist; right shoulder injured at football three weeks prior to the accident; pathology consistent with dislocation; no complaint of right shoulder pain at time of motor accident; any further dislocation would have resulted in immediate and severe pain; not satisfied that any right shoulder pathology caused by the motor accident; Held –claimant suffered non-threshold injury; original assessment confirmed.

Decision date: 7 June 2023 | Panel Members: Principal Member John Harris, Dr Mohammed Assem and Dr Drew Dixon | Injury module: Spine, Upper and Lower Limb

Narcisi v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 253

Motor Accident Injuries Act 2017; threshold injury for alleged coccyx fracture and back injury from motor bike injury in September 2019; disc bulges in lower back not caused by motor accident; scan evidence not suggestive of traumatic pathology; pathology was common findings; short period of recovery suggested soft tissue injury; radiologist suggested possible coccyx fracture; symptoms post-accident inconsistent with fracture; Held – claimant suffered threshold injuries; original assessment confirmed.

Decision date: 7 June 2023 | Panel Members: Principal Member John Harris, Dr Mohammed Assem and Dr Drew Dixon | Injury module: Spine and Upper Limb

Allianz Australia Insurance Limited v Premdas-Rogers (No 1) [2023] NSWPICMP 254

The claimant sustained injury in an accident on 18 December 2014 (the 2014 accident) resulting in amputation of left index and middle fingers; the claimant sustained injury in a subsequent accident on 14 July 2016 (the 2016 accident) which resulted in cervical disc protrusion and C5/6 disc replacement surgery; treatment disputes relating to both accidents; causation of ulnar nerve injury; treatment relating to ulnar nerve injury; past and future pain management; Held – following 2016 accident loss of power in left hand and increasingly dropping things;ulnar nerve injury related to the 2016 accident; initial radicular pain/radiculopathy masked the ulnar nerve injury in the left arm; symptoms of C7 radiculopathy and ulnar nerve injury difficult to differentiate clinically; treatment related to ulnar nerve injury relates to 2016 accident and is reasonable and necessary in the circumstances; finding that pain management related to 2014 accident was reasonable and necessary to date of 2016 accident; thereafter pain management related to 2016 accident and reasonable and necessary to date; future pain management related to injury caused by 2016 accident but not reasonable and necessary in circumstances.

Decision date: 7 June 2023 | Panel Members: Member Susan McTegg, Dr Shane Moloney and Dr Thomas Rosenthal | Injury module: Treatment Type: Other, Radiological Investigations, Surgery, Medical Specialist Consultation, Pain Management Program

Allianz Australia Insurance Limited v Premdas-Rogers (No 2) [2023] NSWPICMP 255

The claimant sustained injury in an accident on 14 July 2016 (the 2016 accident) which resulted in cervical disc protrusion and C5/6 disc replacement surgery; an earlier accident on 18 December 2014 (the 2014 accident) resulted in amputation of left index and middle fingers; treatment disputes relating to both accidents; causation of ulnar nerve injury; treatment relating to ulnar nerve injury; past and future pain management; Held – following 2016 accident loss of power in left hand and increasingly dropping things;ulnar nerve injury related to the 2016 accident; initial radicular pain/radiculopathy masked the ulnar nerve injury in the left arm; symptoms of C7 radiculopathy and ulnar nerve injury difficult to differentiate clinically; treatment related to ulnar nerve injury relates to 2016 accident and is reasonable and necessary in the circumstances; held pain management related to 2014 accident was reasonable and necessary to date of 2016 accident; thereafter pain management related to 2016 accident and reasonable and necessary to date; future pain management related to injury caused by 2016 accident but not reasonable and necessary in circumstances.

Decision date: 8 June 2023 | Panel Members: Member Susan McTegg, Dr Shane Moloney and Dr Thomas Rosenthal | Injury module: Treatment Type: Other, Radiological Investigations, Surgery, Medical Specialist Consultation, Pain Management Program, Acupuncture

AAI Limited t/as GIO v O'Loughlin [2023] NSWPICMP 256

Review of decision of Medical Assessor (MA) Ho dated 7 December 2021 about injuries being minor or non-minor (now threshold injuries); the MA determined that injuries to the claimant’s cervical spine, lumbar spine and right shoulder were minor; claimant has sought a review of the original decision of the MA; motor vehicle accident on 4 November 2020; claimant alleged radiculopathy but none evident on examination and no signs as specified in clause 5.6 of the Motor Accident Guidelines, Version 9.1 effective date 1 April 2023, and no evidence of non-verifiable radiculopathy; Held – Panel satisfied that the claimant had only suffered soft tissue injuries.

Decision date: 8 June 2023 | Panel Members: Member Alexander Bolton, Dr Shane Moloney and Dr Tai-Tak Wan | Injury module: Spine, Upper and Lower Limb

Stankovic v QBE Insurance (Australia) Limited [2023] NSWPICMP 257

Motor Accidents Compensation Act 1999; the claimant suffered injury on 13 September 2017; the dispute related to the assessment of permanent impairment of psychological injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applied; claimant diagnosed with post-traumatic stress disorder; assessments made in accordance with Psychiatric Impairment Rating Scale (PIRS) categories; Held – claimant assessed at 5% permanent impairment for the psychological injury; original assessment revoked.

Decision date: 8 June 2023 | Panel Members: Member Gary Patterson, Dr Glen Smith and Dr Michael Li Ying Hong | Injury module: Mental and Behavioural

Tomic v AAI Limited t/as GIO [2023] NSWPICMP 258

Motor Accident Injuries Act 2017; medical assessment of threshold injury and insurer’s review under section 7.26; claimant involved in a rear-end collision alleging injuries to cervical and thoracic spine, left and right shoulder; Medical Assessor (MA) Gorman assessed all injuries as “minor” (now threshold) injuries; issue in cervical spine, presence of radiculopathy at any time since the accident; issue with shoulders, whether labral tear caused by the accident; Held –  Panel not satisfied claimant had or has had cervical radiculopathy at any time since the accident; cervical injury a threshold injury; Panel satisfied tear to posterosuperior labrum could be caused by the accident and was caused in the accident; shoulder injury not a threshold injury; MA’s Medical Assessment Certificate revoked; no issue of principle.

Decision date: 8 June 2023 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon and Dr Mohammed Assem | Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Secretary, Department of Transport v Wills [2023] NSWPICMP 259

Workplace Injury Management and Workers Compensation Act 1998; psychological Injury; appellant employer alleged error in respect of the extent of deduction the Medical Assessor (MA) made under section 323; the MA made a deduction of one-tenth; the Appeal Panel found that a deduction of one-tenth was at odds with the available evidence of a chronic pre-existing psychological condition; Held –  Medical Assessment Certificate revoked; a deduction of one-third accorded with the available evidence.

Decision date: 13 June 2023 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychiatric/Psychological

Dotlic v Now Careers Pty Ltd [2023] NSWPICMP 260

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in making a deduction pursuant to section 323; the Appeal Panel found ample evidence of a pre-existing condition that contributed to the impairment; Held – Medical Assessment Certificate confirmed.

Decision date: 13 June 2023 | Panel Members: Member Deborah Moore, Dr Roger Pillemer and Dr Mark Burns | Body system: Lumbar Spine

Sutherland Shire Council v Dixon [2023] NSWPICMP 261

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant employer alleged error in respect of the extent of deduction the Medical Assessor (MA) made under section 323; the MA made a deduction of one-tenth; the Appeal Panel was not satisfied as to error; Held – Medical Assessment Certificate confirmed.

Decision date: 13 June 2023 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychiatric/Psychological

Friend v Allstaff Australia Sydney Pty Ltd [2023] NSWPICMP 262

Whether Medical Assessor (MA) provided any or adequate reasons for not assessing appellant had radiculopathy; whether MA provided any or adequate reasons for assessing appellant’s impairment relating to activities of daily living (ADLs) was 2% whole person impairment (WPI); Appeal Panel found that MA provided clear and adequate reasons for finding appellant did not have radiculopathy and his finding was correct; Appeal Panel considered that the MA’s reasons for his assessment of the appellant’s impairment relating to ADLs were sparse but the assessment was nevertheless correct; Held – Medical Assessment Certificate confirmed.

Decision date: 14 June 2023 | Panel Members: Member Marshal Douglas, Dr Drew Dixon and Dr James Bodel | Body system: Lumbar Spine and Scarring (TEMSKI)

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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