Legal Bulletin No. 173
This bulletin was issued on 9 August 2024
Issued 9 August 2024
Welcome to the one hundred and seventy third 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.
District Court Decision
Application to District Court under section 26 of Personal Injury Commission Act 2020; applications to Personal Injury Commission (PIC) for workers compensation where the parties are residents of different States; and where respondent is State of NSW for the purposes section 75(iv) of the Constitution (Cth) and the applicant is resident of another State; whether PIC would be exercising federal jurisdiction when determining issues under sections 4, 9, 9A, 11A, 14, 25,26, 32A, 33, 36, 37, 38, 59, 60 and 66 of the Workers Compensation Act 1987 and section 4 of the Workplace Injury Management and Workers Compensation Act 1998.
Decision date: 7 August 2024 | Before: Waugh SC DCJ
Motor Accidents non-Presidential Member Decisions
Tiedemann v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 397
Motor Accident Injuries Act 2017 (MAI Act); miscellaneous claims dispute; whether the incident constituted a motor accident as defined by the MAI Act; claimant was driving a utility vehicle when he came upon a fallen tree blocking the road ahead and he stopped his vehicle with an intention to exit and assess the situation; claimant not aware he had driven into a live powerline that had fallen; the powerline was in contact with the vehicle when the claimant exited the vehicle, which had its ignition running, and in the process he was electrocuted; insurer denied liability for the claim for statutory benefits on the basis that the circumstances of the incident did not satisfy the definition of motor accident contained in section 1.4 of the MAI Act, and the accident did not fall within the provisions of the MAI Act pursuant to the restrictions set out in section 1.9; QBE Insurance (Australia) Ltd v Smith considered; Held – the incident satisfied the definition of motor accident as the claimant was still in the process of driving at the time of the accident and/or was injured during a dangerous situation caused by the driving of the vehicle.
Decision date: 23 July 2024 | Member: Elizabeth Medland
Allianz Australia Insurance Limited v Vella [2024] NSWPIC 401
Motor Accident Injuries Act 2017; settlement approval; injury to both ankles, left knee and fractured ribs; claim for economic loss only; assessment of 0% whole person impairment; claimant unfit at date of accident and since by reason of pre-existing workplace back injury; offer of settlement calculated as a buffer of $10,000 for past economic loss and buffer of $25,000 for future economic loss; Held – where offer is for economic loss only and where claimant is and has been unfit for work by reason of back injury settlement, offer is within range of damages if matter was to proceed to assessment; settlement approved.
Decision date: 26 July 2024 | Member: Susan McTegg
Bamblett v Allianz Australia Insurance Limited [2024] NSWPIC 402
Motor Accident Injuries Act 2017; Personal Injury Commission Rules 2021; miscellaneous claim; whether claimant wholly or mostly at fault; contributory negligence; failing to give way; conflicting versions of events; line of vision; traffic control lights; making right hand turn with safety; Held – motor accident not caused wholly or mostly by the fault of the claimant; 50% contributory negligence.
Decision date: 26 July 2024 | Member: Hugh Macken
Zhang v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 404
Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; claimant riding a bicycle during morning peak in lane 1, collided with vehicle in lane 2; claimant says she rode into lane 2 to get around a bus stationary in lane 1 and was wholly in lane 2 when she was hit from behind by the insured which she had not seen; insured said claimant moved around the bus into her lane without warning, no indicator, no signal and did not look; photographs showed damage to insured vehicle from wing mirror down passenger side and no damage to bike; limited evidence, no statements, no witnesses and no expert evidence; Australian Broadcasting Tribunal v Bond, Blacktown City Council v Hocking, and Insurance Australia Limited t/as NRMA v Richards referred to regarding onus of proof; Held – claimant wholly at fault; insured was not speeding and was keeping a proper lookout; claimant moved without looking and was not keeping a proper lookout; no issue of principle; costs assessed and allowed for two disputes at three quarters of the maximum.
Decision date: 29 July 2024 | Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Hill v Challenge Community Services & Ors [2024] NSWPIC 97
Workers Compensation Act 1987; approval of agreed apportionment of lump sum under section 25(1)(a); worker died from injury sustained in the course of her employment; the deceased’s husband and son were dependent for support upon the deceased worker at the date of her death; no other persons dependent for support upon the deceased worker at the date of her death; Held – payments apportioned 50% to husband, 50% to son; interest as agreed.
Decision date: 1 March 2024 | Principal Member: Josephine Bamber
Hohepa v Truserv Pty Ltd [2024] NSWPIC 398
Workers Compensation Act 1987 (1987 Act); claim for weekly compensation; sections 33, 36, 37 and 38 of the 1987 Act; whether applicant had current work capacity at various times; calculation of weekly benefit; Held – applicant had current work capacity and no current work capacity during various periods; order for payment of weekly compensation made accordingly.
Decision date: 24 July 2024 | Member: Karen Garner
Karan v St Joseph's Hospital [2024] NSWPIC 400
Workers Compensation Act 1987; section 4; injury to left shoulder; consequential left shoulder condition due to accepted right shoulder injury; Kooragang Cement Pty Ltd v Bates, 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, and Briginshaw v Briginshaw considered and applied; Held – the applicant sustained a consequential left shoulder condition as a result of the accepted right shoulder injury sustained on 28 March 2018; matter remitted to the President for referral to a Medical Assessor.
Decision date: 25 July 2024 | Member: John Turner
Kapp v St Josephs Village Ltd [2024] NSWPIC 406
Application for reconsideration of Certificate of Determination to permit application for reconsideration of Medical Appeal Panel decision; Sleiman v Gadalla Pty Ltd, Samuel v Sebel Furniture Pty Ltd and Secretary, Department of Communities and Justice v Cannell; Held – application for reconsideration of Certificate of Determination declined.
Decision date: 29 July 2024 | Member: Catherine McDonald
Zahrouni v BSV Tyre Recycling Australia Pty Ltd [2024] NSWPIC 409
Workers Compensation Act 1987;claim for declaration pursuant to section 60(5); whether applicant satisfied his onus that left shoulder surgery be approved; medical evidence inconsistent and contradictory; clinical notes referred to by expert not lodged; about 2 year lacuna between occurrence of injurious event and first report by medical practitioner who was applicant’s second GP; claim form signed during that lacuna nominated a different GP who did not supply evidence; no explanation given; Jones v Dunkel applied; Held – applicant did not injure his left shoulder; application rejected.
Decision date: 30 July 2024 | Member: John Wynyard
Motor Accidents Medical Review Panel Decisions
QBE Insurance (Australia) Limited v Taouk [2024] NSWPICMP 474
Motor Accident Injuries Act 2017 (MAI Act); whether psychological injury is a threshold injury; Medical Assessor diagnosed a persistent depressive disorder with anxious distress caused by the motor accident, which is not a threshold injury; claimant re-examined for purposes of review; claimant diagnosed with adjustment disorder and acute stress disorder; section 1.6(3) of the MAI Act; part 1, clause 4(2) of the Motor Accident Injuries Regulation 2017; Held – the disorders are threshold injuries; Medical Assessment Certificate revoked.
Decision date: 16 July 2024 | Panel Members: Member Elizabeth Medland, Dr Paul Friend, and Dr John Baker | Injury module: Mental and Behavioural
Bayliss v Allianz Australia Insurance Limited [2024] NSWPICMP 491
Motor Accident Injuries Act 2017; degree of whole person impairment (WPI); claimant was employed as a transit driver for an airline at the time of the accident; claimant was walking over the tarmac at Sydney Airport when a transit bus reversed into the claimant; claimant was struck in the back and right calf region; claimant was knocked forward and had to perform an evasive manoeuvre to avoid being run over by the transit bus; claimant returned to work approximately 1 month after the accident on restricted duties; claimant complained of continuing problems with his right upper limb; insurer wholly admitted liability for the claim; Medical Assessor found 8% WPI; Held – Medical Review Panel found 11% WPI; Medical Assessment Certificate revoked.
Decision date: 19 July 2024 | Panel Members: Member Gary Victor Patterson, Dr Drew Dixon, and Dr Leslie Barnsley | Injury module: Upper Limb
Milanovic v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 492
Motor Accident Injuries Act 2017; threshold injury dispute; claimant involved in a motor accident in 2020 and suffered injuries to his cervical spine, right shoulder and left shoulder; claimant had also been involved in an earlier car accident in 2013 in which he injured his neck and back, amongst other things; claimant made no complaint of ongoing back pain nor did he seek treatment about this following this earlier accident; insurer submitted that a focal annular tear identified on scans after the second accident was an incidental finding which was more likely than not pre-existing; Medical Assessor accepted that the claimant had suffered an annular tear but provided no reasons about this; Medical Review Panel satisfied that the claimant had demonstrated no complaints about his lumbar spine for the subject accident; Held – the claimant had a disc protrusion and an underlying tear which were causally related to the subject accident; the claimant had suffered a non-threshold injury as a result of the accident in 2020; Medical Assessment Certificate revoked.
Decision date: 19 July 2024 | Panel Members: Member Alexander Bolton, Dr Christopher Oates, and Dr Mohammed Assem | Injury module: Spine, Upper Limb, and Lower Limb
QBE Insurance (Australia) Limited v Boka [2024] NSWPICMP 493
Motor Accident Injuries Act 2017; psychological injury; post-traumatic stress disorder (PTSD); pre-existing condition; whole person impairment (WPI); self-care and personal hygiene; social and recreational activities; travel; social functioning; concentration, persistence and pace; adaptation; Medical Assessor certified 19% WPI in respect of PTSD caused by the accident; Held – PTSD caused by the accident; Medical Assessment Certificate revoked; 7% WPI assessed.
Decision date: 19 July 2024 | Panel Members: Member Susan McTegg, Dr Michael Hong, and Dr Christopher Canaris | Injury module: Mental and Behavioural
Allianz Australia Insurance Limited v Nassar [2024] NSWPICMP 495
Motor Accident Injuries Act 2017 (MAI Act); whole person impairment (WPI); significant T-bone collision causing T2 fracture and vertebral artery dissections; claimant’s qualified doctor not authorised under section 7.52 of the MAI Act and the Motor Accident Guidelines to provide evidence; no claim made for assessment of shoulders based on either direct injury; Nguyen v Motor Accidents Authority of New South Wales & Anor; Mandoukos v Allianz Australia Insurance Ltd; shoulders not assessed; Held – T2 fracture assessed as DRE Category II; Cervical spine assessed at DRE Category II; Lumbar spine condition not caused by motor accident; Medical Review Panel satisfied of shoulder impairment but not assessed as part of medical dispute; 10% WPI; Medical Assessment Certificate revoked.
Decision date: 22 July 2024 | Panel Members: Principal Member John Harris, Dr Sophia Lahz, and Dr Leslie Barnsley | Injury module: Spine and Brain Injury
Falgunee v QBE Insurance (Australia) Limited [2024] NSWPICMP 496
Motor Accident Injuries Act 2017; threshold injury dispute; claimant injured in a high speed sideswipe impact; Medical Assessor found that all injuries are soft tissue injuries and not threshold injuries; Medical Review Panel considered the concerns raised by the claimant in her submissions that a lumbar CT scan showed changes that might be associated with radiculopathy, specifically the contact with the S1 nerve roots by the L5/S1 disc; Medical Review Panel did not consider that this changes the conclusion that no radiculopathy was present; any pain in the legs was not in the distribution of the S1 nerve roots; normal neurological findings for the reflexes, muscles and sensation supplied of the S1 nerve roots; Medical Review Panel noted the directions of the Guidelines regarding imaging; Held – there were no signs of radiculopathy; claimant had suffered threshold injuries to her cervical spine, lumbar spine and her left and right shoulders; Medical Assessment Certificate confirmed.
Decision date: 22 July 2024 | Panel Members: Member Alexander Bolton, Dr Leslie Barnsley, and Dr Mohammed Assem | Injury module: Spine and Upper Limb
Noshad v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 497
Motor Accident Injuries Act 2017; whether injury to the lumbar spine was a threshold injury; Medical Assessor determined threshold injury; re-examination of the claimant; Held – injury to the lumbar spine was caused by the accident and was not a threshold injury;Medical Assessment Certificate revoked.
Decision date: 23 July 2024 | Panel Members: Member Terence Stern OAM, Dr Christopher Oates, and Dr Michael Couch | Injury module: Spine, Upper Limb, and Lower Limb
Kennedy v Allianz Australia Insurance Limited [2024] NSWPICMP 498
Motor Accident Injuries Act 2017; threshold injury; claimant alleged injury to neck and back in bus accident; claimant trainee standing up observing bus driver; claimant had back surgery and argued surgery “converted” what may have been a minor injury to a non-threshold injury; claimant also alleged presence of cervical and lumbar radiculopathy and the bulging of discs caused by the accident; causation; Briggs v IAG Limited t/as NRMA Insurance followed, Blacktown City Council v Hocking referred to; Held – accident could have caused injury to neck and lower back; accident did cause injury to neck, but Panel not satisfied accident did cause injury to back; injury to neck is a threshold injury as no fracture or complete or partial rupture of tissue and no cervical radiculopathy present on examination or evidence in the records; Medical Assessment Certificate confirmed.
Decision date: 23 July 2024 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon, and Dr Leslie Barnsley | Injury module: Spine
Ahmed v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 499
Motor Accidents Compensation Act 1999; permanent impairment dispute; psychological injury; pre-existing psychological condition; other factors relevant to symptomatology; claimant re-examined by Medical Assessors; claimant assessed as suffering from post-traumatic stress disorder; consideration of DSM-5TR criteria; assessment of pre-existing impairment; consideration of subsequent factors and whether causative of impairment; Held – claimant assessed at 11% impairment; Medical Assessment Certificate revoked.
Decision date: 24 July 2024 | Panel Members: Principal Member John Harris, Dr Matthew Jones, and Dr Christopher Canaris | Injury module: Mental and Behavioural
Chandler v QBE Insurance (Australia) Limited [2024] NSWPICMP 502
Motor Accidents Compensation Act 1999; causation; mild traumatic brain injury; seizures; dispute related to the assessment of whole person impairment (WPI) of head injury with secondary seizures/epilepsy; Medical Assessor certified traumatic brain injury not established because no medically verified disturbance in level of consciousness; no post-traumatic amnesia and no brain imaging abnormality; Briggs v IAG Limited t/a NRMA Insurance; Held – mechanics of accident where vehicle rammed from behind could cause mild traumatic brain injury; scientific certainty not required; on history provided there was significant amnestic period; normality of initial Glasgow Coma Score, serial MRI brain scans and EEG studies does not invalidate the occurrence of traumatic brain injury; onset of a seizure disorder attributed to TBI links cognitive decline to initial injury; accident caused mild traumatic brain injury causing seizures; assessed at 20% WPI for poorly controlled seizure disorder; Medical Assessment Certificate revoked.
Decision date: 26 July 2024 | Panel Members: Member Susan McTegg, Dr Adeline Hodgkinson, and Dr Sophia Lahz | Injury module: Brain Injury
Insurance Australia Limited t/as NRMA Insurance v Mrkela [2024] NSWPICMP 503
Motor Accident Injuries Act 2017; whether the injuries sustained were threshold injuries; re-examination of the claimant; consideration of factors contributing to the injury; left shoulder injury was diagnosed as causally related to the motor vehicle accident; Held – Medical Assessment Certificate revoked; left shoulder injury referred for assessment and caused by the accident was not a threshold injury.
Decision date: 26 July 2024 | Panel Members: Member Terence Stern OAM, Dr Mohammed Assem, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb
QBE Insurance (Australia) Limited v McNamara [2024] NSWPICMP 508
Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26; claimant involved in intersection collision; other car tipped over and claimant’s car was spun; issue of causation of left hip injury and left hip replacement raised by insurer; Medical Review Panel satisfied forces involved (two cars at 50 km per hour) in accident could have caused injury to middle and lower back and both hips; Medical Review Panel satisfied accident could have caused and did cause soft tissue injury to the lower back; Medical Review Panel also satisfied accident could have caused and did cause injury to the left hip aggravating degenerative changes and contributed to the need for left hip replacement surgery; claimant had good result from the surgery but a femoral nerve injury arose from the surgery; Held – whole person impairment (WPI) assessed at 5% for lower back, 15% for left hip replacement, and 4% for femoral nerve injury, for a total of 22% WPI; Medical Assessment Certificate revoked; no issue of principle.
Decision date: 29 July 2024 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron, and Dr Christopher Oates | Injury module: Spine and Lower Limb
QBE Insurance (Australia) Limited v Bridge [2024] NSWPICMP 509
Motor Accidents Compensation Act 1999; whole person impairment (WPI); insurer’s application for review; claimant injured in rear-end collision; claimant alleged injury to lower back and neck and had fusion surgery to both; Medical Assessor (MA) found WPI at 20% for lower back injury which he reduced by one tenth for a pre-existing condition; MA found no evidence of a neck injury; insurer challenged decision on causation referring to Medical Assessment Certificate (MAC) in respect of lumbar spine surgery not allowed and said this certificate was binding on the Medical Review Panel, and Medical Review Panel could not allow WPI on the basis that surgery was not related to injuries caused by the accident; claimant’s solicitor advised no issue with assessment of neck injury; Held – cervical injury to be reassessed as claimant was of the strong view it was to be assessed; certificate about surgery not binding on Medical Review Panel; lower back could have been and was injured in accident; nature of injury soft tissue exacerbating degenerative change; exacerbation did not cause or material contribute to need for surgery; no current impairment; neck could have been and was injured in accident; nature of injury short-term soft tissue injury which resolved leaving no impairment; Medical Assessment Certificate revoked.
Decision date: 29 July 2024 | Panel Members: Member Belinda Cassidy, Dr Rhys Gray, and Dr David McGrath | Injury module: Spine and Minor Skin
Tran v Zurich Australia Insurance Ltd [2024] NSWPICMP 510
Motor Accidents Compensation Act 1999; permanent impairment; 2010 motor accident; subsequent motor accident in 2014; development of schizoaffective disorder in late 2014; permanent impairment from both motor accidents assessed by Medical Review Panel; application of clause 1.34 of the Motor Accident Guidelines; subsequent motor accident and development of schizoaffective disorder causatively independent; third category in State Government Insurance Commission v Oakley considered; overall impairment reduced; Held – claimant sustained permanent impairment assessed at 5%; Medical Assessment Certificate revoked.
Decision date: 29 July 2024 | Panel Members: Principal Member John Harris, Dr Wayne Mason, and Dr Melissa Barrett | Injury module: Mental and Behavioural
Tran v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 511
Motor Accidents Compensation Act 1999; permanent impairment; 2014 motor accident; development of schizoaffective disorder in late 2014; prior motor accident in 2010; permanent impairment from both motor accidents assessed by Medical Review Panel; examination by Medical Assessors; motor accident caused a schizoaffective disorder; overall impairment assessed at 10%; application of clause 1.31 of the Motor Accident Guidelines; effects of 2010 motor accident as at 2014 assessed at 5%; Held – claimant sustained permanent impairment assessed at 5% after deduction; Medical Assessment Certificate revoked.
Decision date: 29 July 2024 | Panel Members: Principal Member John Harris, Dr Wayne Mason, and Dr Melissa Barrett | Injury module: Mental and Behavioural
Insurance Australia Limited t/as NRMA Insurance v Samuel [2024] NSWPICMP 512
Motor Accident Injuries Act 2017; permanent impairment; claimant injured by car reversing in driveway; contemporaneous notes support laceration to left lower limb and sacral fracture; normal MRI scan not inconsistent with X-ray and CT scan which showed bony injury; no radiological evidence of left ankle fracture; no assessable impairment of shoulders, neck and lumbar spine; examination showed some loss or range of left ankle/foot assessed at 1%; scar assessed at 1%; sacral fracture (displaced) assessed at 5%; Held – claimant sustained permanent impairment assessed at 7%; Medical Assessment Certificate revoked.
Decision date: 29 July 2024 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Ian Cameron | Injury module: Spine, Upper Limb, Lower Limb, and Skin
Maarabani v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 513
Motor Accident Injuries Act 2017; dispute as to degree of whole person impairment as a result of injury caused by the motor accident; claimant a passenger in a high performance vehicle that aquaplaned and ran out of control colliding with a tree and rock; injuries to the abdomen, cervical spine, shoulders, sternum fracture, thoracic spine and scarring; inconsistency in shoulder movements; analogy utilised in assessing impairment; Held – Medical Assessment Certificate confirmed.
Decision date: 29 July 2024 | Panel Members: Member Elizabeth Medland, Dr Christopher Oates, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, Skin, and Digestive System
Allianz Australia Insurance Limited v Balhas [2024] NSWPICMP 515
Motor Accident Injuries Act 2017; whether the psychiatric injury sustained was a threshold injury; re-examination of claimant; consideration of factors contributing to the injury according to clause 6.6 of the Motor Accident Guidelines; claimant was diagnosed with a persistent adjustment disorder; Held – Medical Assessment Certificate revoked; the psychiatric injury caused by the accident was a threshold injury.
Decision date: 30 July 2024 | Panel Members: Member Terence Stern OAM, Dr John Baker, and Dr Wayne Mason | Injury module: Mental and Behavioural
Al Taleb v AAI Limited t/as GIO [2024] NSWPICMP 516
Motor Accident Injuries Act 2017; whether the claimant suffered a threshold injury; claimant alleges psychological injury as a result of her son being seriously injured in a motor accident; Medical Assessor found the claimant to suffer an adjustment disorder with mixed anxiety and depressed mood, persistent as a result of the motor accident; the claimed injury of post-traumatic stress disorder was not found; Held – Medical Assessment Certificate confirmed; diagnosis of adjustment disorder is deemed a threshold injury.
Decision date: 30 July 2024 | Panel Members: Member Elizabeth Medland, Dr Thomas Newlyn, and Dr Sharon Reutens | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
State of New South Wales (NSW Police Force) v Goodwin [2024] NSWPICMP 488
Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment under the psychiatric impairment rating scale (PIRS); adjustment for the effect of treatment pursuant to clause 1.32 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021; Ballas v Department of Education (State of NSW), Tasevski v Westpac Banking Corporation, and Zoric v Secretary, Department of Education considered; Held – clause 1.32 not satisfied; Medical Assessment Certificate revoked.
Decision date: 23 July 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Kelly v Sunnyfield [2024] NSWPICMP 501
Workplace Injury Management and Workers Compensation Act 1998; appeal against whole person impairment finding of 7% for psychological injury; whether Medical Assessor (MA) had erred in the classification of self-care and personal hygiene, social and recreational activities and social functioning; Medical Assessment Certificate (MAC) was issued eight months prior to the appeal; the MA had issued a MAC saying no maximum medical improvement some six months before then; most of the medical evidence was issued in 2022; Held – MA’s reasons inadequate and re-examination directed; MAC revoked.
Decision date: 25 July 2024 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
iStaff Australia Pty Ltd v White [2024] NSWPICMP 504
Workplace Injury Management and Workers Compensation Act 1998;appeal from assessment of whole person impairment for psychological injury; where the Commission noted the parties’ agreement that there had been primary and secondary psychological injury and an apportionment of impairment between the primary and secondary psychological injuries must be addressed; whether the Medical Assessor (MA) erred in failing to apportion permanent impairment to secondary psychological injury; Held – no power to make apportionment in the absence of a determination by the Commission that there was secondary psychological injury; purported apportionment of 0% whole person impairment made in any event; appeal dismissed.
Decision date: 26 July 2024 | Panel Members: Member Richard Perrignon, Dr John Baker, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Kasmaei v Roads and Maritime Services [2024] NSWPICMP 505
Workplace Injury Management and Workers Compensation Act 1998;appellant self-represented; fresh evidence considered; re-examination required; Medical Assessor (MA) erred in providing an extremely brief certificate with limited contents; Held – MA erred with respect to his assessments of the psychiatric impairment rating scale (PIRS) categories; Medical Assessment Certificate revoked.
Decision date: 26 July 2024 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr John Baker | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; two appeals; Medical Assessor declined to assess lumbar spine and scarring and recorded range of motion results against wrong leg; re-examination; Held – Medical Assessment Certificate revoked.
Decision date: 29 July 2024 | Panel Members: Member Catherine McDonald, Dr Tommasino Mastroianni, and Dr Roger Pillemer | Body system: Left Lower Extremity, Lumbar Spine, and Scarring
Shore v LiveBetter Disability Services Ltd [2024] NSWPICMP 517
Workplace Injury Management and Workers Compensation Act 1998; whether the ratings of the Medical Assessor (MA) in respect of the psychiatric impairment rating scale (PIRS) in social and recreational activities and employability were wrong based on the evidence; Medical Appeal Panel considered the history obtained by the MA; Held – the Medical Appeal Panel found that the MA’s ratings involved error; appellant re-examined; Medical Assessment Certificate revoked.
Decision date: 30 July 2024 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Myers v Knet Technologies Pty Ltd [2024] NSWPICMP 518
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding appellant had a pre-existing condition; whether MA erred by making a deduction based on the fact that the appellant’s permanent impairment from her injury was due to a pre-existing condition; Held – MA did not err by finding appellant had a pre-existing condition; MA erred by finding a proportion of the appellant’s permanent impairment was due to a pre-existing condition; Medical Assessment Certificate revoked.
Decision date: 30 July 2024 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Lovelee v Sydney International Container Terminals Pty Ltd [2024] NSWPICMP 520
Workplace Injury Management and Workers Compensation Act 1998; appeal of Medical Appeal Panel’s decision dated 24 September 2021 on the grounds that there had been a deterioration which was supported by the application to admit fresh evidence; respondent supported a re-examination as worker had undergone spinal surgery since the earlier litigation; Sleiman v Gadalla Pty Ltd, Singh v B & E Poultry Holdings Pty Ltd, and Secretary, New South Wales Department of Education v Connolly considered and applied; Held - application to admit fresh evidence rejected; application for re-examination rejected; Medical Assessment Certificate confirmed.
Decision date: 30 July 2024 | Panel Members: Member John Wynyard, Dr Mark Burns, and Dr John Brian Stephenson | Body system: Left Lower Extremity, Lumbar Spine, and Digestive System
Tasevski v Westpac Banking Corporation [2024] NSWPICMP 521
Workplace Injury Management and Workers Compensation Act 1998; matter remitted from the Supreme Court of NSW; application of the psychiatric impairment rating scale (PIRS); whether Medical Assessor (MA) had considered worker’s age, sex and cultural norms in accordance with clause 11.12 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021; Ferguson v State of New South Wales & Ors, Johnson v Suncorp Staff Pty Ltd, Lancaster v Foxtel Management Pty Ltd, Henderson v Canterbury Hurlstone Park RSL Club Ltd considered; Held – MA’s conclusion inconsistent with history and evidence available; Medical Assessment Certificate revoked.
Decision date: 30 July 2024 | Panel Members: Member Parnel McAdam, Dr John Baker, and Dr Graham Blom | Body system: Psychological/Psychiatric
Haslegrave v St Marys Town Centre Ltd [2024] NSWPICMP 522
Workplace Injury Management and Workers Compensation Act 1998; whether demonstrable error by Medical Assessor (MA) in assessing Class 2 in the psychiatric impairment rating scale (PIRS) for self-care and personal hygiene, and concentration, persistence and pace; considered change and stabilisation of medication regime in the period since the assessment by the appellant’s expert; whether relevant considerations taken into account; Held – Medical Appeal Panel not satisfied that Medical Assessment Certificate (MAC) affected by demonstrable error; MAC confirmed.
Decision date: 30 July 2024 | Panel Members: Member Rachel Homan, Dr Graham Blom, and Dr Michael Hong | Body system: Psychological/Psychiatric
Secretary, Department of Education v Mansfield [2024] NSWPICMP 523
Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; whether Medical Assessor (MA) erred in deducting 20% for pre-existing conditions when his reasons referred to a deduction of 30%; whether the MA erred by including in his assessment impairment caused by a previous injury; whether he erred by taking into account medical reports not referred to him for consideration; whether he failed to take into account the opinion of an independent medical expert relied on by the appellant; whether he failed to engage with a previous Medical Assessment Certificate (MAC) of Approved Medical Specialist in respect of a previous psychological injury; whether he erred in failing to give reasons for assessing a deduction of 20%; Held – MA failed to give reasons for assessing a deduction of 20%; MAC revoked; deduction of 1/10th made.
Decision date: 30 July 2024 | Panel Members: Member Richard Perrignon, Dr John Baker, and Dr Michael Hong | Body system: Psychological/Psychiatric
Moyes v CASPA Services Ltd [2024] NSWPICMP 524
Workplace Injury Management and Workers Compensation Act 1998; appellant challenged the ratings of the Medical Assessor (MA) for permanent impairment in all psychiatric impairment rating scale (PIRS) categories except concentration, persistence and pace; challenge on the basis that the MA’s reasons did not reflect the evidence or correspond with the severity of impairment described by the examples in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 for the respective rating; Held – the Medical Appeal Panel agreed; appellant re-examined; Medical Assessment Certificate revoked.
Decision date: 30 July 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decision
Giuseppa Maugeri v QBE Insurance (Australia) Limited [2024] NSWPICMR 21
Motor Accident Injuries Act 2017 (MAI Act); claim for statutory benefits; dispute about calculation of pre-accident weekly earnings; whether claimant was earning continuously due to impact of COVID-19 on earnings, such that clause 4(2)(a), not clause 4(1), in Schedule 1 of the MAI Act applies; whether prospect of future increase in earnings is a significant change in earning circumstances; appropriate method of calculating business expenses where actual expenses not known; Allianz Insurance Australia Limited v Shahmiri applied; Held – the reviewable decision is set aside.
Decision date: 26 July 2024 | 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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