Legal Bulletin No. 179
This bulletin was issued on 20 September 2024
Issued 20 September 2024
Welcome to the one hundred and seventy ninth 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.
Presidential Member Decisions
Australian Unity Home Care Service Pty Ltd v Kerr [2024] NSWPICPD 56
Section 4(a) and (b) of the Workers Compensation Act 1987 (1987 Act) considered; section 16 of the 1987 Act considered and applied; Held – the Certificate of Determination dated 16 October 2023 is confirmed.
Decision date: 5 September 2024 | Before: President Judge Phillips
Bond v Blacktown Area Community Centres Inc [2024] NSWPICPD 57
Section 60 of the Workers Compensation Act 1987; claimed cost of surgery to left shoulder; contemporaneity of complaint of injury to left shoulder in the context of other body parts injured in the same incident; challenge to Member’s findings in the reasons with respect to the medical evidence of the worker’s treating orthopaedic specialist; Iqbal v Hotel Operation Solutions Pty Ltd, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd, and Raulston v Toll Pty Ltd applied; Held – the Certificate of Determination dated 4 August 2023 is confirmed.
Decision date: 9 September 2024 | Before: Acting Deputy President Kylie Nomchong SC
Visscher Caravelle Australia Pty Ltd v Shipley [2024] NSWPICPD 58
Error of law through lack of procedural fairness; considering Muin v Refugee Tribunal; Re Minister for Immigration & Multicultural Affairs; Ex Parte Lam; inability to find that the deprivation of procedural fairness could not possibly have produced a different result; Held – the Certificate of Determination dated 3 November 2023 is revoked; the matter is remitted to another non-presidential member for re-determination in accordance with these reasons.
Decision date: 9 September 2024 | Before: Acting Deputy President Michael Perry
Motor Accidents non-Presidential Member Decisions
Allianz Australia Insurance Limited v Maddison [2024] NSWPIC 476
Motor Accident Injuries Act 2017; section 7.34(1)(b); recommendation; claimant was a rider of a motorcycle who sustained injuries in a single motor vehicle accident when he collided with wooden posts which were placed over the roadway; whether the accident was no fault; contributory negligence; causation; whether matter should be exempted from assessment on basis of legal and factual complexities; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 27 August 2024 | Member: David Ford
Allianz Australia Insurance Limited v Ray [2024] NSWPIC 489
Motor Accident Injuries Act 2017;section 6.23(2)(b); settlement approval; 55-year-old male with soft tissue injuries to the cervical and lumbar spine and a subtle avulsion fracture to the right knee; past economic loss; allowance of buffer for future economic loss; Held – the proposed settlement is approved.
Decision date: 3 September 2024 | Member: Michael Inglis
Ellul v Allianz Australia Insurance Limited [2024] NSWPIC 491
Motor Accident Injuries Act 2017;sections 3.28 and 3.36; miscellaneous claim; injured person mostly at fault; motorcycle accident; lane filtering at front of entrance to roundabout over solid white line; breach of Road Rules 2014; Held – the motor accident was caused mostly by the fault of the injured person.
Decision date: 5 September 2024 | Member: Shana Radnan
Lis v AAI Limited t/as GIO [2024] NSWPIC 493
Motor Accident Injuries Act 2017; sections 3.11(1) and s 3.28(1); insurer declined to pay treatment benefits beyond 52 weeks on basis claimant wholly at fault; claimant sought further payments for treatment which was denied; after internal review, application for miscellaneous claims assessment lodged and referred for assessment; at preliminary conference claimant conceded he was at fault and no one or nothing else was to blame; Held – the accident was caused wholly by the fault of the claimant and the insurer had no liability to pay statutory benefits incurred more than 52 weeks after the accident; no issue of principle.
Decision date: 6 September 2024 | Member: Belinda Cassidy
Stern v AAI Limited t/as AAMI [2024] NSWPIC 497
Motor Accident Injuries Act 2017; sections 3.11(1) and 3.28(1); miscellaneous claims assessment; whether accident caused wholly by the fault of the claimant; where claimant’s vehicle collided with vehicle stationary at set of lights; claimant’s case was that the brakes failed and accident not caused by his fault; whether accident caused by the fault of the owner of the vehicle; no history of the claimant experiencing problems with brakes prior to accident; road surface was wet and slippery; vehicle started sliding forward when claimant put his foot on the brakes; more likely than not that the brakes were applied forcefully, the vehicle skidded on the wet and slippery road, and collided with stationary vehicle; no fault on the part of the owner of the vehicle; collision occurred because claimant failed to maintain control of the vehicle and failed to drive to the prevailing conditions; accident was not caused by the fault of any other person; Held – sections 3.11(1) and 3.28(1) are concerned with causation of the accident that involved fault; given claimant’s conduct was the only cause of the accident that involved fault, the accident was caused wholly by the fault of the claimant.
Decision date: 9 September 2024 | Senior Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Neumayer v Woolworths Group Ltd [2024] NSWPIC 490
Claim for permanent impairment for injury to the left shoulder and consequential conditions affecting the cervical spine and right shoulder; dispute as to consequential condition affecting the cervical spine; Moon v Conmah Pty Limited referred to; whether there has been an explanation as to whether restrictions and symptoms in the cervical spine are as a result of injury to the left shoulder; Hevi Lift (PNG) Ltd v Etherington referred to; Held – worker did not suffer a consequential condition affecting her cervical spine; matter referred to Medical Assessor for assessment of permanent impairment for left and right shoulders.
Decision date: 4 September 2024 | Member: John Isaksen
Finnegan v Qantas Airways Ltd [2024] NSWPIC 492
Workers Compensation Act 1987; section 60; claim for injury to the left ankle together with consequential condition to the left knee; proposed left total knee replacement; respondent concedes liability for the left ankle injury and concedes that the proposed left total knee replacement is reasonably necessary treatment for the applicant’s left knee condition; respondent denies liability for the applicant’s alleged consequential condition to his left knee; materiality; Usher v Coffs Harbour City Council, Jones v Dunkel, Purkess v Crittenden, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Limited, Nguyen v Cosmopolitan Homes, Drca v KAB Seating Systems Pty Ltd, Murphy v Allity Management Services Pty Ltd, and Payne v Parker considered; Held – the applicant has sustained a consequential injury to his left knee resulting from his accepted left ankle injury; the proposed left total knee replacement surgery is reasonably necessary; proposed surgery is materially contributed to by the applicant’s left ankle injury; the respondent is to pay for the costs of, and incidental to, the said surgery.
Decision date: 5 September 2024 | Member: Gaius Whiffin
Sirijovski v Coles Supermarkets Australia Pty Ltd [2024] NSWPIC 494
Applicant worked as a shelf stacker; injuries to hip, ankle and feet; whether employment main contributing factor to aggravation of disease; AV v AW considered; expression of medical opinion in incorrect terms but nonetheless persuasive; State Transit Authority of New South Wales v El-Achi applied; Held – the applicant suffered injuries as pleaded; matter referred to Medical Assessor for assessment of permanent impairment.
Decision date: 6 September 2024 | Member: Parnel McAdam
Holt v Programmed Maintenance Services Pty Ltd [2024] NSWPIC 495
Workers Compensation Act 1987; section 4 meaning of ‘injury’; claim for permanent impairment; trip and fall at work undisputed; claim for frank injury to right shoulder, right knee and cervical spine; claim for right shoulder accepted; claim for right knee and cervical spine disputed; Held – cervical spine condition determined to arise from work injury; applicant has not established right knee condition arose from work injury; matter remitted to the President for referral to Medical Assessor in relation to cervical spine and right shoulder.
Decision date: 6 September 2024 | Member: Adam Halstead
Stevens v Shoalhaven Starches Pty Ltd [2024] NSWPIC 496
Workers Compensation Act 1987; section 66; claim made by the applicant for compensation for whole person impairment (WPI); applicant claimed compensation for 11% WPI for impairment of the left upper extremity (elbow) and scarring; applicant relied on a medical assessment being the only assessment of WPI; whether there was error in calculating 11% WPI; Welsh v Dandan Management Services Pty Ltd, Woolworths Ltd v Stafford, Bell v The Mining Pty Ltd, Abou-Haidar v Consolidated Wire Pty Ltd, Sukkar v Adonis Electrics Pty Ltd, Skates v Hills Industries Ltd, Yates v Flavorjen Pty Ltd, and Secretary, New South Wales Department of Education v Connolly considered and applied; Held – matter remitted to the President for referral to a Medical Assessor for assessment of left upper extremity and scarring.
Decision date: 6 September 2024 | Member: John Turner
Workers Compensation Act 1987; application seeking orders that the applicant was not liable to reimburse the Insurance Fund an amount specified in a notice pursuant to section 145(1); sections 4 and 9A meaning of ‘injury’; extent of incapacity resulting from injury; whether treatment expenses reasonably necessary; Held – aspects of the injured worker’s evidence not credible; the injured worker had current work capacity for part of the period in which she was paid on the basis of no current work capacity; amount the applicant is required to reimburse the Insurance Fund reduced; the medical and related treatment expenses were reasonably necessary as a result of injury.
Decision date: 9 September 2024 | Member: Rachel Homan
Shanks v Secretary, Department of Planning, Industry and Environment [2024] NSWPIC 499
Whether earlier work-related knee injury materially contributed to the applicant's current condition; whether the applicant had fully recovered from her earlier surgery; Held – the applicant had not fully recovered and second limb of State Government Insurance Commission v Oakley satisfied; Ozcan v MacArthur Disability Services Ltd satisfied; matter referred to Medical Assessor with a finding that the second injury results from the first injury and so impairment is to be aggregated.
Decision date: 9 September 2024 | Member: Diana Benk
Personal Injury Commission Act 2020 (PIC Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act);application pursuant to s 57(1) of the PIC Act to reconsider and rescind Certificate of Determination of former Workers Compensation Commission to permit appeal from a Medical Assessment Certificate; section 327(3)(a) of the 1998 Act; new medical evidence; substantial deterioration of medical condition; Samuel v Sebel Furniture Limited considered; Held – arguable ground of appeal; application granted; Certificate of Determination rescinded.
Decision date: 10 September 2024 | Member: Adam Halstead
Vikuckis v Lion-Dairy & Drinks Pty Ltd [2024] NSWPIC 501
Personal Injury Commission Act 2020; section 57(1); application for reconsideration of Certificate of Determination (COD); Samuel v Sebel Furniture Limited referred to; whether there has been a deterioration in the worker’s condition that results in an increase in permanent impairment and/or additional relevant information not previously available; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission & Ors and Petrovic v BC Service No 14 Pty Limited and Ors referred to; Held – medical evidence supports a deterioration in the worker’s condition; there is additional relevant information that was not previously available; COD revoked.
Decision date: 10 September 2024 | Member: John Isaksen
Motor Accidents Medical Review Panel Decisions
Fayad v AAI Limited t/as GIO [2024] NSWPICMP 533
Motor Accident Injuries Act 2017; insured vehicle crossed onto the incorrect side of the road, resulting in a head-on collision with the claimant’s vehicle; insurer admitted liability; medical dispute as to threshold physical injuries; Medical Assessor certified that soft tissue injuries to the cervical, thoracic and lumbar spine, both shoulders and left leg, all caused by the motor accident, were threshold injuries; Held – labral tear was caused by the accident and is a non-threshold injury; Medical Assessment Certificate revoked.
Decision date: 2 August 2024 | Panel Members: Member Gary Victor Patterson, Dr Michael Couch, and Dr Mohammed Assem | Injury module: Spine, Upper Limb, and Lower Limb
Jamison v AAI Limited t/as GIO [2024] NSWPICMP 623
Motor Accident Injuries Act 2017; whole person impairment (WPI); practice and procedure; requirement for re-examination; multiple thoracic spinal surgeries; insertion of paddle implant; ketamine fusion; T7 wedge compression; thoracic spine requiring laminectomy; thoracic injury causing lumbar spinal injury; causal link between thoracic spinal injury and lumbar spinal injury; Held – Medical Assessment Certificate revoked; WPI found to be greater than 10%.
Decision date: 4 September 2024 | Panel Members: Member Hugh Macken, Dr Drew Dixon, and Dr Shane Moloney | Injury module: Spine
Allianz Australia Insurance Limited v Clarke [2024] NSWPICMP 624
Motor Accident Injuries Act 2017; claimant’s vehicle was rear-ended by the insured vehicle; claimant sustained multiple soft tissue injuries and subsequently developed a psychiatric/psychological injury; whether the psychiatric/psychological injury is a threshold injury; no pre-existing psychiatric/psychological condition; Medical Assessor at first instance found that there was a psychological injury (persistent depressive disorder with anxious distress) caused by the motor accident; claimant re-examined and there was the same psychological injury; Held – Medical Assessment Certificate confirmed.
Decision date: 4 September 2024 | Panel Members: Member Maurice Castagnet, Dr John Baker, and Dr Michael Hong | Injury module: Mental and Behavioural
Magick v AAI Limited t/as GIO [2024] NSWPICMP 628
Motor Accidents Compensation Act 1999; whether claimant suffers from a psychological injury caused by the motor accident that is greater than 10% whole person impairment (WPI); claimant was the driver of a motor vehicle that was involved in a “T-bone” accident; significant and lengthy history of pre-existing psychological issues and complaint; Medical Assessor certified the injuries referred for assessment as not being caused by the motor accident and therefore no assessment of whole person impairment was made; Held – Medical Assessment Certificate revoked; claimant suffered psychological injury caused by the motor accident (exacerbation of pre-existing conditions); WPI assessed as 15%, with a pre-existing WPI of 7% and WPI caused by the motor accident assessed as 8%.
Decision date: 5 September 2024 | Panel Members: Member Elizabeth Medland, Dr Christopher Canaris, and Dr Michael Hong | Injury module: Mental and Behavioural
Allianz Australia Insurance Limited v Long [2024] NSWPICMP 629
Motor Accidents Compensation Act 1999; claimant injured when truck crashed into cycling group; insurer’s application for review of Medical Assessor’s (MA) 12% whole person impairment (WPI) assessment; subject accident caused haemopneumothorax; insurer submitted MA failed to apply clauses 1.5 to 1.7 of the Motor Accident Permanent Impairment Guidelines on causation; pulmonary function tests from 2015 and 2020; supranormal lung function diminished after accident; MA deducted lung function after accident from pre-accident lung function to measure impairment; MA did not test pulmonary functioning; Held – upon re-examination the Review Panel found the haemopneumothorax had resolved; no permanent impairment to measure; Medical Assessment Certificate revoked and replaced.
Decision date: 5 September 2024 | Panel Members: Member Terence O’Riain, Dr Richard Haber, and Dr Margaret Gibson | Injury module: Spine
Maamari v QBE Insurance (Australia) Limited [2024] NSWPICMP 633
Motor Accidents Compensation Act 1999; Medical Assessor (MA) determined claimant’s whole person impairment (WPI) was 6% and the proposed treatment disputes were not caused by the motor accident; Held – on re-examination claimant’s WPI is 12%; the proposed treatment for the right shoulder was causally related to the accident and was reasonable and necessary in the circumstances; Medical Assessment Certificate revoked and a new certificate issued.
Decision date: 6 September 2024 | Panel Members: Member Terence Stern OAM , Dr Geoffrey Stubbs, and Dr Shane Moloney | Injury module: Spine, Upper Limb, and Lower Limb
CIC Allianz Insurance Limited v Auckburally [2024] NSWPICMP 635
Motor Accident Injuries Act 2017; Medical Assessor determined claimant’s whole person impairment (WPI) as a result of the accident was 22%; Held – on re-examination claimant’s WPI is 22% arising from the injuries to the lumbar spine and scarring; Medical Assessment Certificate confirmed.
Decision date: 9 September 2024 | Panel Members: Member Terence Stern OAM, Dr Clive Kenna, and Dr Sophia Lahz | Injury module: Spine and Skin
Behn v AAI Limited t/as GIO [2024] NSWPICMP 637
Motor Accident Injuries Act 2017; physical injury; assessment of whole person impairment (WPI); car door opened on bike rider impacting left shoulder; repeated clinical opinions diagnosed brachial plexus injury despite scan findings; injury often diagnosed clinically; injury consistent with motor accident; claimant suffered soft tissue left shoulder injury; direct trauma to the anterior part of the left shoulder; slightly greater loss of movement is explicable due to slight variations over time; Held – claimant suffered brachial plexus and left shoulder injuries; WPI assessed at greater than 10%; Medical Assessment Certificate revoked.
Decision date: 11 September 2024 | Panel Members: Principal Member John Harris, Dr Christopher Oates, and Dr Shane Moloney | Injury module: Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Nash v State of New South Wales (NSW Police Force) [2024] NSWPICMP 625
Workplace Injury Management and Workers Compensation Act 1998; appellant sustained a psychiatric injury; Medical Assessor (MA) assessed 7% whole person impairment (WPI); appeal on the decision on the basis of availability of additional relevant information; whether the assessment was made on the basis of incorrect criteria; fresh evidence not admitted; assessment in the psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene, social and recreational activities, social functioning, and concentration, persistence and pace; Held – error in the assessment of concentration, persistence and pace but the total assessment of WPI remained the same as that made by the MA; Medical Assessment Certificate confirmed.
Decision date: 4 September 2024 | Panel Members: Member Carolyn Rimmer, Dr John Baker, and Dr Graham Blom | Body system: Psychological/Psychiatric
Aggreko Generator Rentals Pty Ltd v Devine [2024] NSWPICMP 626
Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale (PIRS); social and recreational activities, social functioning and concentration, persistence and pace; “class descriptors”; Jenkins v Ambulance Service of New South Wales; re-examination; Held – Medical Assessment Certificate revoked.
Decision date: 4 September 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
ISS Property Services Pty Ltd v Adams [2024] NSWPICMP 627
Workplace Injury Management and Workers Compensation Act 1998; employer appeal against 15% whole person impairment (WPI) finding for shoulder injury; whether Medical Assessor (MA) had erred in not applying section 323; whether opinion of medico-legal expert applying one-tenth deduction should have been preferred; Held – medico-legal expert opinion an ipse dixit; reliance by employer on a further expert opinion misconceived as further expert denied liability at all; Medical Assessment Certificate confirmed.
Decision date: 4 September 2024 | Panel Members: Member John Wynyard, Dr Doran Sher, and Dr Andrew Porteous | Body system: Left Upper Extremity
Skillen v Aldi Stores (A Limited Partnership) [2024] NSWPICMP 630
Workplace Injury Management and Workers Compensation Act 1998; appeal against psychological assessment of 14% whole person impairment (WPI) including one-quarter deduction pursuant to section 323; whether Medical Assessor (MA) failed to place sufficient weight on opinions of medical specialists; whether section 323(2) assumption should have been applied; whether MA’s reasons adequate; Held – MA to apply his own medical experience and expertise; path of reasoning clearly expressed; Medical Assessment Certificate confirmed.
Decision date: 5 September 2024 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Thomson v Trustees of the Roman Catholic Church for the Diocese of Broken Bay [2024] NSWPICMP 631
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred in ratings of appellant’s impairment in travel, and concentration, persistence and pace; whether MA erred with respect to the deduction made under section 323(1); whether MA erred by not adding any percentage of whole person impairment (WPI) under paragraph 1.32 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed,
1 March 2021 (the Guidelines); Held – MA erred with her rating of appellant’s impairment in concentration, persistence and pace, but not with travel; MA made an error with respect to section 323(1) but not the error the appellant identified in her submissions; MA erred by not providing an explanation for why paragraph 1.32 of the Guidelines was not engaged; Medical Assessment Certificate revoked.
Decision date: 5 September 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Michael Hong | Body system: Psychological/Psychiatric
Clarke v Secretary, Department of Communities and Justice [2024] NSWPICMP 634
Workplace Injury Management and Workers Compensation Act 1998; assessment under the psychiatric impairment rating scale (PIRS); appeal with respect to social and recreational activities and social functioning; Held – Medical Assessment Certificate confirmed.
Decision date: 6 September 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Cunningham v Australia and New Zealand Banking Group Ltd [2024] NSWPICMP 636
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker appealed assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under two categories of the psychiatric impairment rating scale (PIRS), namely travel and social functioning; Held – no error found; Medical Assessment Certificate confirmed.
Decision date: 9 September 2024 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric
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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