Legal Bulletin No. 168

This bulletin was issued on 5 July 2024

Issued 5 July 2024

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

Supreme Court Decision

Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781

Judicial review; jurisdictional error; Appeal Panel of Personal Injury Commission; whether Appeal Panel failed to give substantive consideration to the plaintiff’s ground of appeal; fair reading of Appeal Panel’s reasons; no constructive failure to exercise jurisdiction; medical assessment; proper construction of Medical Assessor’s Certificate; application of Workers Compensation Guidelines; proper construction of “social and recreational activities” scale; whether distinction between activities that occur within or outside of the home; no distinction; focus is on the social and recreational character of an activity; Held – dismiss the plaintiff’s further amended summons filed in Court on 14 June 2024; plaintiff to pay the first defendant’s costs.

Decision date: 26 June 2024 | Before: Stern JA

Presidential Member Decisions

The Star Entertainment Group Ltd v Antoniak [2024] NSWPICPD 37

Consideration of the principles of Anshun estoppel; whether claim for weekly benefits compensation is estopped following a discontinuance of the weekly benefits claim in earlier proceedings; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 applied; adequacy of reasons; Held – Certificate of Determination dated 17 July 2023 revoked; matter remitted to the Workers Compensation Division to be heard and determined by another Member.

Decision date: 21 June 2024 | Before: President Judge Phillips

State of New South Wales (Hunter New England Local Health District) v Sternbeck [2024] NSWPICPD 38

Quantification of ‘pre-injury average weekly earnings’ where a worker has been in receipt of payments of weekly compensation in respect of an earlier injury, during the ‘relevant earning period’; application of Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59; Held – Certificate of Determination dated 1 May 2023 rescinded; matter remitted to the Division Head, Workers Compensation Division, to determine the respondent’s pre-injury average weekly earnings (PIAWE) consistent with these reasons.

Decision date: 25 June 2024 | Before: Acting President Michael Snell

Motor Accidents non-Presidential Member Decisions

Insurance Australia Limited t/as NRMA Insurance v Barsi [2024] NSWPIC 340

Motor Accident Injuries Act 2017; member’s recommendation; application for exemption under section 7.34(1)(b); the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim; the primary ground for unsuitability is the non-availability of witnesses; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation approved by Division Head.

Decision date: 21 May 2024 | Member: Terence Stern OAM

Insurance Australia Limited t/as NRMA Insurance v Barsi [2024] NSWPIC 341

Decision date: 21 May 2024 | Member: Terence Stern OAM

Aguilera v AAI Limited t/as GIO [2024] NSWPIC 323

Motor Accidents Compensation Act 1999; assessment of a claim for damages; liability admitted; claim for past and future economic loss and medical expenses; claimant has no entitlement to damages for non-economic loss; claimant born in 1960 in Chile; assessment conference occurred over four days in-person at the Personal Injury Commission; extent of claimant’s injuries and disabilities in issue; claimant had significant pre-existing degenerative changes at both the soft cervical and lumbar levels; degenerative changes aggravated by the accident; claimant returned to work for almost 18 months following the accident then dismissed; reason for dismissal in issue; Held – past treatment expenses agreed at $12,000; past economic loss awarded after assessing residual earning capacity at $224,124; future economic loss awarded on a buffer basis at $130,000 finding that the claimant would continue to work in some capacity; total damages awarded $393,124.

Decision date: 20 June 2024 | Member: Michael Inglis

BKV v AAI Limited t/as GIO [2024] NSWPIC 325

Motor Accident Injuries Act 2017 (MAI Act); Civil Liability Act 2002; negligence; breach of duty to road user; assessing witness evidence; excessive speed; failing to keep a proper lookout; contributory negligence; 2019 accident; damages agreed; claimant’s car turns across path of insured; “T-bone“ collision; claimant and insured driver’s different accounts; insurer submits claimant’s narrative is inconsistent and reconstruction; claimant perfect traffic record; claimant unconscious; claimant alleges road clear; insured alleges he could not avoid collision; claimant’s three versions before CCTV located shows position of cars before collision; driver and claimant inconsistent; CCTV treated with caution; claimant’s “practice” and “custom”; allowance made for claimant’s psychological condition effecting evidence; insured driver inconsistent on speed; insured consistent that he was too close to brake or avoid collision when claimant turns; claimant’s evidence unreliable; insured reliable apart from conceded points; appropriate speed; insured aware of traffic volume; rely on insured and objective evidence; insured driver’s speed probable contributor to accident; insured breached duty of care; high level of contributory negligence; Held – claimant is entitled to damages; breach of duty of care established; 50% deduction for contributory negligence; decision de-identified.

Decision date: 21 June 2024 | Member: Terence O'Riain

BWH v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 337

Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); claimant in late 20s; suffered non-displaced fracture of the left ankle with associated soft tissue injury, soft tissue injury to the left knee and post-traumatic stress disorder (PTSD); residual symptoms and limitations in the left ankle; knee injury resolved; ongoing psychological symptoms; Medical Assessors certified permanent impairment not greater than 10%, PTSD 5%, left ankle 4%; no entitlement to damages for non-economic loss; approximately a week off work after the accident; returned to work; some limitations due to left ankle injury and PTSD; no current loss of income; allowance for past and future economic loss; total settlement amount $250,000 less $2,422.87 on account of weekly compensation; Held – proposed settlement approved.

Decision date: 26 June 2024 | Senior Member: Brett Williams

Drane v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 338

Motor Accident Injuries Act 2017 (MAI Act); Personal Injury Commission Act 2020 (PIC Act); claim for statutory benefits and insurer’s allegation of 30% contributory negligence; claimant objected to the allegation and referred dispute to the Commission under schedule 2(3)(g) of the MAI Act; preliminary conference held and no appearance by claimant; insurer confirmed that the claimant was retired at the time of the accident and had not been receiving any weekly benefits; claimant confirmed by a message in the portal that a claim for damages was to be made; Member raised in preliminary conference report whether the proceedings should be dismissed; claimant contacted Commission and agreed to the dismissal; Held – the insurer’s decision and any decision by the Member about contributory negligence in the statutory benefits claim was not binding and had no effect in the damages claim as per section 3.44 of the MAI Act; the insurer’s decision and any decision by the Member about contributory negligence in the statutory benefits claim had no impact on the level or payment of any treatment and care expenses as contributory negligence reduced weekly income benefits only as per section 3.38 of the MAI Act; as the claimant was not receiving weekly benefits there was nothing to reduce; proceedings dismissed under section 54(a) of the PIC Act.

Decision date: 26 June 2024 | Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

Gooden v Secretary, Department of Education [2024] NSWPIC 236

Workers Compensation Act 1987; applicant was the subject of a disciplinary enquiry; the outcome of that enquiry was the demotion of the applicant from her role as a principal to that of a classroom teacher; psychiatric injury; Held – the actions of the employer in relation to transfer, demotion and discipline of the applicant were not reasonable considered separately and together; the respondent’s section 11A defence was not made out.

Decision date: 20 June 2024 | Member: Lea Drake

Frost v Inghams Enterprises Pty Ltd [2024] NSWPIC 324

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); claim for $2,115 for replacement crown implant; dispute whether pathology in tooth resulted from accepted injury; matter transferred from Form 1 to Form 2 to enable Directions for Production to be issued; dispute notices vague and failed to provide a proper explanation of the reasons for the dispute in accordance with section 79 of the 1998 Act; respondent did not qualify as an expert dentist; it is submitted that applicant failed to discharge the onus and that there was no evidence that a crown implant was an “artificial aid”; self-insurer failed to comply with State Insurance Regulatory Authority’s (SIRA) Claims Management Guide and SIRA Standards of Practice (April 2022), and the guiding principle in section 42 of PIC Act; the claim was not important or complex, and the small value was disproportionate to the cost to the parties and the Commission; Kooragang Cement Pty Ltd v Bates, Lyons v Master Builders Association of NSW Pty Ltd, Department of Education & Training v Ireland, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd, Herborn v Spotless Services Australia Limited, Thomas v Ferguson Transformers Pty Ltd, and Pacific National Pty Ltd v Baldacchino discussed and applied; Held – crown implant was reasonably necessary and involved an artificial aid; respondent to pay for treatment pursuant to sections 59(A)(6)(a) and 60 of the 1987 Act; matter referred to Principal Registrar with a view to reporting the self-insurer’s conduct to SIRA.

Decision date: 20 June 2024 | Principal Member: Glenn Capel

Hurley v Westpac Banking Corporation [2024] NSWPIC 326

Workers Compensation Act 1987; claim for weekly compensation; general claim for medical expenses; psychological injury accepted; whether injury ongoing; whether applicant has no current work capacity; Held – applicant has no current work capacity; award for the applicant for weekly compensation and medical expenses.

Decision date: 21 June 2024 | Member: Mitchell Strachan

Allan v State of New South Wales (Western Sydney Local Health District) [2024] NSWPIC 327

Workers Compensation Act 1987; claim for compensation pursuant to section 60 for proposed left shoulder surgery; evidence of conservative treatment; whether psychological overlay; where applicant’s expert did not conduct a physical examination; Held – applicant has discharged her onus of establishing that the surgery is reasonably necessary as a result of injury; respondent ordered to pay costs of and incidental to surgery.

Decision date: 21 June 2024 | Member: Rachel Homan

Jennison v Secretary, Department of Education [2024] NSWPIC 330

Workers Compensation Act 1987; sections 17 and 60; alleged hearing loss due to noise exposure; claim for hearing aids pursuant to section 60; dispute as to noisy employer and that hearing aids are reasonably necessary treat as the result of an injury; Blaney Shire Council v Lobley, McGowan v Secretary, Department of Education and Communities, Dawson and others trading as The Real Crane Syndicate v Dawson, Murphy v Allity Management Services Pty Ltd cited; Held – that the applicant has sustained injury in the form of noise induced hearing loss; that the applicant was employed by the respondent in employment to the nature of which the injury, noise induced hearing loss, is due for the purposes of section 17(1)(a)(ii); that the supply and fitting of binaural hearing aids to the applicant is reasonably necessary as a result of injury, noise induced hearing loss; the injury has materially contributed to the need for hearing aids; the respondent pursuant to section 60 to pay the costs of the supply and fitting of binaural hearing aids in accordance with the applicable Workers Compensation (Hearing Aid Fees) Order.

Decision date: 24 June 2024 | Member: John Turner

McGarry v Potez Pty Ltd (in liquidation) t/as Essential Hygiene Services [2024] NSWPIC 331

Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted injuries to left and right shoulders in a fall; whether cervical spine injury in same event; significant delay in reporting injury to cervical spine; physiotherapy notes demonstrate symptoms and treatment at cervical spine approximately six weeks after injurious event; Onassis v Vergottis and Jowett v S & R Jowett Pty Ltd considered; Held – applicant sustained cervical spine injury; matter remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment.

Decision date: 24 June 2024 | Member: Rachel Homan

Omba Pty Ltd ATF Turner Family Trust v Kelly & Anor [2024] NSWPIC 332

Death claim; determination of dependency, apportionment, and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, Wratten v Kirkpatrick & Ors discussed and applied; Held – death benefit and agreed interest apportioned and orders for payment.

Decision date: 25 June 2024 | Principal Member: Glenn Capel

Welch v Modderkolk [2024] NSWPIC 333

Worker suffered an accepted injury to her left elbow and involving her ulnar nerve when she was pinned between a cow and a metal pole; dispute as to whether she also suffered an injury to her cervical spine and left shoulder, not initially recorded by her general practitioner; Mason v Demasi; Davis v Council of the City of Wagga Wagga; Nominal Defendant v Clancy; Held – all claims remitted to the President for referral to a Medical Assessor.

Decision date: 25 June 2024 | Member: Catherine McDonald

Smith v Transport for NSW [2024] NSWPIC 334

Applicant certified as having no legal capacity and unable to proceed or give instructions; Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited discussed; Held – proceedings dismissed for want of due despatch.

Decision date: 25 June 2024 | Principal Member: Glenn Capel

Leonard v Allity Management Services Pty Ltd [2024] NSWPIC 335

Workers Compensation Act 1987; claim for compensation pursuant to section 60; consideration of applicant’s statement, medical reports and other treatment records, and claim correspondence; consideration of whether the work-related aggravation, acceleration and/or exacerbation of the underlying disease condition of the applicant’s lumbar spine has ceased and as such, is the medical treatment recommended as reasonably necessary as a result of an injury as required by sections 59 and 60; Murphy V Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates, Taxis Combined Services (Victoria) Pty Ltd v Schokman, Sutherland Shire Council v Baltica General Insurance Co Ltd, Diab v NRMA Limited considered; Held – the applicant is entitled to compensation pursuant to section 60; the surgery proposed (an anterior lumbar discectomy and interbody fusion at L5/S1 and a posterior decompression at L3) is a reasonably necessary medical treatment as a result of the continuing effects of the injury the applicant sustained as a result of the aggravation, acceleration and/or exacerbation of an underlying disease process with a deemed date of injury of 5 October 2018.

Decision date: 25 June 2024 | Member: Anne Gracie

Hudson v State of New South Wales (NSW Ambulance Service) [2024] NSWPIC 336

Claim for the cost of bilateral hearing aids as being reasonably necessary as a result of undisputed noise induced hearing loss; the respondent asserts, that the minor degree of occupational hearing loss was insufficient to justify the provision of hearing aids; differing results of audiograms relied upon by the applicant and respondent; detailed examination of the medical evidence; Murphy v Allity, Taxis Combined Services (Victoria) Pty Ltd v Schokman, Bluescope Steel v Sekulovksi, and Diab v NRMA Insurance Ltd referred to; Held – award for the applicant and the respondent ordered to pay for the provision of bilateral hearing aids pursuant to the Workers Compensation Act 1987 and the Workers Compensation (Hearing Aid Fees) Order 2023.

Decision date: 25 June 2024 | Member: Diana Benk

Motor Accidents Medical Review Panel Decisions

QBE Insurance (Australia) Limited v Sayed [2024] NSWPICMP 385

Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 15 July 2021; a medical dispute arose as to whether or not the injury which the claimant sustained was a threshold injury; Held – the injury to the cervical spine was accepted as causally related to the motor vehicle accident, and caused a non-threshold injury; Medical Assessor Herald’s determination was affirmed; the injury referred for assessment was a non-threshold injury.

Decision date: 13 June 2024 | Panel Members: Member Terence Stern OAM, Dr Drew Dixon, and Dr Les Barnsley | Injury module: Spine

Hassim v QBE Insurance (Australia) Limited [2024] NSWPICMP 386

Motor Accidents Compensation Act 1999; medical review panel; psychological injury; panic disorder; agoraphobia; anxiety; whole person impairment (WPI); permanent impairment; self-care and personal hygiene; social and recreational activities; travel; social functioning; concentration, persistence and pace; adaption; pre-existing condition; on 13 October 2022 Medical Assessor (MA) Sidorov certified a major depressive disorder with anxious distress was not caused by the accident; Held – pre-existing predisposition to anxiety and depression but not at level of diagnosable condition at the time of the accident; diagnosis of panic disorder and agoraphobia; WPI assessed at 17% caused by accident; certificate of MA Sidorov revoked; new certificate issued.

Decision date: 17 June 2024 | Panel Members: Member Susan McTegg, Dr Wayne Mason, and Dr Samson Roberts | Injury module: Mental and Behavioural

AAI Limited t/as AAMI v Hodges [2024] NSWPICMP 387

Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of a threshold injury dispute; Medical Assessor (MA) Fukui had determined the claimant had non-threshold psychiatric injuries namely post-traumatic stress disorder and major depressive disorder; claimant was driving his car behind a car driven by his son when another car which was being chased by the police collided with the rear of the claimant’s vehicle became airborne and collided with the rear of the claimant’s son’s car; the claimant had some physical injuries assessed by MA Home as threshold injuries; claimant had not had any psychiatric treatment, had not reported symptoms to his GP after the first month; the claimant was re-examined via Microsoft Teams; Held – Panel found the circumstances of the accident could have caused a psychiatric injury and did cause the psychiatric injury; Panel accepted the claimant’s explanation as to why he did not report things to his GP or seek treatment (he was an intensely private and independent person who had an abusive childhood); Medical Assessment Certificate of MA Fukui confirmed.

Decision date: 17 June 2024 | Panel Members: Member Belinda Cassidy, Dr Wayne Mason, and Dr Melissa Barrett | Injury module: Mental and Behavioural

Loudaros v AAI Limited t/as GIO [2024] NSWPICMP 391

Motor Accidents Compensation Act 1999; claimant’s application for review under section 63; claimant sustained physical injuries in accident on 21 October 2017 and developed psychological condition; Medical Assessor (MA) Samuell found a Major Depressive Disorder but certified that it was not caused by the accident and the claimant had no permanent impairment caused by the accident; claimant’s physical impairments certified as not greater than 10% and there were issues of excessive weight gain (due to the claimant’s physical injuries), the development of eczema, and a gambling problem; Held – claimant had developed a Major Depressive Disorder caused by the accident due to his physical injuries, ongoing pain, diminished ability to exercise, and weight gain; whole person impairment assessed at 7%; Medical Assessment Certificate of MA Samuell revoked; no matter of principle.

Decision date: 20 June 2024 | Panel Members: Member Belinda Cassidy, Dr Paul Friend, and Dr Christopher Rikard-Bell | Injury module: Mental and Behavioural

AAI Limited t/as GIO v Skaf [2024] NSWPICMP 392

Motor Accidents Compensation Act 1999; treatment and care dispute; claimant alleges injury to right shoulder, amongst other injures; Held – Panel not satisfied on the balance of probabilities that the claimant sustained an injury to the right shoulder; lack of contemporaneous medical evidence of any complaint; examination in weeks/months following accident showed normal range of motion which is contrary to the assertion the accident caused a tear of the shoulder; treatment determined to not be related to an injury caused by the motor accident and not reasonable and necessary.

Decision date: 20 June 2024 | Panel Members: Member Elizabeth Medland, Dr Shane Moloney, and Dr Geoffrey Stubbs | Treatment Type: Radiological Investigations, Surgery, and Physiotherapy

Dangol v Allianz Australia Insurance Limited [2024] NSWPICMP 393

Motor Accident Injuries Act 2017; threshold injury; post-traumatic stress disorder (PTSD); adjustment disorder with anxiety and persistent depressive disorder; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 23 July 2020; Medical Assessor (MA) Verma found claimant sustained an adjustment disorder with depressed mood which is a threshold injury for the purposes of the Act; Held – claimant did not satisfy DSM-5 criteria for PTSD due to the absence of avoidance symptoms; claimant sustained an adjustment disorder with anxiety and a persistent depressive disorder which is not a threshold injury; Medical Assessment Certificate of MA Verma revoked.

Decision date: 20 June 2024 | Panel Members: Member Susan McTegg, Dr Gerald Chew, and Dr Wayne Mason| Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Parkinson v Avondale University College Ltd [2024] NSWPICMP 394

Appeal by claimant from 8% whole person impairment (WPI) assessment for psychological injury; whether Medical Assessor (MA) failed to apply Ballas v Department of Education (State of NSW) (Ballas); whether social and recreational activities assessment vitiated by reference to travel; whether category excludes participation with close intimates; Held – Ballas passages relied on were obiter, the ratio decidendi concerning the decision of the delegate; Ballas and Lancaster v Foxtel Management (Lancaster) considered; Lancaster interpretation adopted; no logical reason for excluding participation with close intimates from participating in activities; relevant fact being such participation itself; there is no error in an incidental reference to another category such as travel when describing the activities performed pursuant to this category; claimant an art lover who went to galleries and art classes; travel inevitable concomitant.

Decision date: 20 June 2024 | Panel Members: Member John Wynyard, Dr Michael Hong, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Farr v Secretary (Department of Communities and Justice) [2024] NSWPICMP 395

Appeal from assessment of 8% for psychologically injured corrective services officer; whether Medical Assessor (MA) erred by not applying American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA5 guidelines); whether MA erred by applying gardening activities to two categories of the Psychiatric Impairment Rating Scale (PIRS); whether MA erred by failing to review one of the expert reports; chapter 11 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment,4^thed, 1 March 2021 (the Guides) excludes AMA5 guidelines; gardening activities relevant to both categories; Lancaster v Foxtel Management referred to; impugned expert report related to date of injury and referral by consent orders made it irrelevant; presumption of regularity that it would have been read; Jones v Registrar applied; Held – Medical Assessment Certificate confirmed.

Decision date: 20 June 2024 | Panel Members: Member John Wynyard, Dr Graham Blom, and Dr Ash Takyar | Body system: Psychological/Psychiatric

El Masri v D&J Formwork (AUST) Pty Ltd [2024] NSWPICMP 396

Appeal from claimant alleging psychological injury as a result of shoulder injury in 2018; whether maximum medical improvement (MMI) reached; Held – MMI not reached; claimant underwent fourth shoulder surgery two weeks before assessment; claimant invited to consider his condition immediately prior to that surgery; claimant came to Australia from Lebanon aged 25, functionally illiterate and with little insight into his condition; moreover only commenced treatment two months prior to assessment; Medical Assessment Certificate revoked and no MMI found.

Decision date: 20 June 2024 | Panel Members: Member John Wynyard, Dr Graham Blom, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Australian Unity Home Care Service Pty Ltd v Garcia [2024] NSWPICMP 397

Assessments of the right upper and lower extremities; the employer appealed because the Medical Assessor did not examine the contralateral left side; respondent worker agreed as to error; a re-examination was considered necessary in the circumstances; full range of movement on left side; Held – Medical Assessment Certificate confirmed.

Decision date: 21 June 2024 | Panel Members: Member Jane Peacock, Dr Roger Pillemer, and Dr James Bodel | Body system: Lumbar Spine, Right Upper Extremity, and Right Lower Extremity

Floorwise Australia Pty Ltd v Wallace [2024] NSWPICMP 399

Workplace Injury Management and Workers Compensation Act 1998; lumbar spine assessments; appeal by the employer alleged Medical Assessor failed to make a deduction under section 323 and sought a deduction of one-third to two-thirds be made by the Medical Appeal Panel (MAP); Held – the pre-existing condition has contributed to the overall level of permanent impairment assessed and the MAP considers that a deduction of one-tenth should be made to take account of the pre-existing condition’s contribution to the overall level of permanent assessed and that a deduction of one-tenth is not at odds with the available evidence; Medical Assessment Certificate revoked.

Decision date: 24 June 2024 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson, and Dr Alan Home | Body system: Respiratory, Lumbar Spine, and Scarring

Ralph Lauren Australia Pty Ltd v Zunic [2024] NSWPICMP 401

Respondent suffered laceration injury to middle finger of right hand for which she had surgery following which she developed complex regional pain syndrome (CRPS), about which there was no dispute; at the time the Medical Assessor (MA) assessed the degree of permanent impairment from her injury she did not meet the criteria of Table 17-1 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed, 1 March 2021 (the Guidelines) for a diagnosis of CRPS to be made, which finding party challenged in the appeal; MA assessed the degree of the appellant’s permanent impairment by reference to the restricted range of movement she had in her fingers of right hand and by reference to sensory deficits; both parties agreed MA made an error by converting impairment respondent had of each of the joints of her fingers to hand impairment rather than combining the finger impairment for each joint of the finger and then converting the overall finger impairment to hand impairment; whether MA provided sufficient reasons for his grading of the severity of the respondent’s sensory deficits; Held – MA provided sufficient reasons for his grading of the severity of the respondent’s sensory deficits; Medical Assessment Certificate revoked.

Decision date: 25 June 2024 | Panel Members: Member Marshal Douglas, Dr Roger Pillemer, and Dr Mark Burns | Body system: Right Upper Extremity and CRPS

Kasmaei v Roads and Maritime Services [2024] NSWPICMP 403

Self-represented appellant; fresh evidence considered; re-examination required; Medical Assessor (MA) erred in providing an extremely brief certificate with limited contents in the Medical Assessment Certificate’s (MAC) body; Held – MA erred with respect to his assessments with respect to the Psychiatric Impairment Rating Scale categories of travel, self-care and personal hygiene, social and recreational activities, social functioning, and employability; MAC revoked.

Decision date: 25 June 2024 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr John Baker | Body system: Psychological/Psychiatric

Webb v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management [2024] NSWPICMP 404

Appellant submits that the Medical Assessor (MA) erred in failing to consider treatment effects in accordance with Chapter 1.32 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed, 1 March 2021 (the Guidelines); Zoric v Secretary, Department of Education & Ors considered; Held – no error by MA; Medical Assessment Certificate confirmed.

Decision date: 26 June 2024 | Panel Members: Member Deborah Moore, Dr John Baker, and Dr Michael Hong | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decision

Wei v Allianz Australia Insurance Limited [2024] NSWPICMR 12

Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about calculation of pre-accident weekly earnings (PAWE); claimant had period of 6.3 weeks of leave without pay during the 12 months before the accident and argued that schedule 1 clause 4(1) did not apply but that clause 4(2)(a) applies; claimant said he was not earning continuously for the 12 months before the accident because for the 6.3 week period he did not earn any money; Held – the focus of “earns continuously” in cl 4(4) is on the period of permanent employment not the period of payment; while he was not receiving income or pay during the 6.3 weeks he satisfied the definition of earns continuously for the whole 12 month period before the accident; Allianz Insurance Australia Limited v Shahmiri applied; clause 8E of the Workers Compensation Regulation 2016 and clause 8AE of the Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020 referred to.

Decision date: 26 June 2024 | Merit Reviewer: Belinda Cassidy

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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