Legal Bulletin No. 181
This bulletin was issued on 4 October 2024
Issued 4 October 2024
Welcome to the one hundred and eighty first 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
Puga v Allianz Australia Insurance Limited [2024] NSWSC 1235
Judicial Review; personal injury; challenge to finding of 10% WPI; medical assessment; whether injury occurred some other time; adequate reasons; procedural fairness; causation; errors of law; Held – the plaintiff is granted an extension of time until and including 24 March 2024; the decision of Medical Assessor Alan Home dated 1 September 2023 is affirmed; the decision of the Delegate of the President of the Personal Injury Commission of New South Wales dated 25 January 2024 is affirmed; the amended summons dated 17 April 2024 is dismissed; the plaintiff is to pay the first defendant’s cost of the proceedings.
Decision date: 2 October 2024 | Before: Harrison AsJ
Presidential Member Decisions
Patsalis v Allstaff Australia Sydney Pty Ltd [2024] NSWPICPD 60
Workers Compensation; the opportunity to make further submissions on receipt of the transcript is not one in which a party is given the liberty raise new grounds of appeal; University of New South Wales v Lee, and BBY v The GEO Group Australia Pty Ltd applied; adequacy of reasons; Beale v Government Insurance Office of NSW, Roncevich v Repatriation Commission, and Pollard v RRR Corporation Pty Ltd applied; procedural fairness; Stead v State Government Insurance Commission applied; Held – the Member’s Certificate of Determination dated 1 March 2023 is revoked; the matter is remitted to a different member for re-determination.
Decision date: 17 September 2024 | Before: Deputy President Elizabeth Wood
Absolute Aquarium Products Pty Ltd v Taylor [2024] NSWPICPD 61
Workers Compensation; leave to appeal an interlocutory decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; caution in dealing with treating doctors’ notes; Mason v Demasi, rule 73 of the Personal Injury Commission Rules 2021, and Onesteel Reinforcing Pty Ltd v Sutton; weight of evidence; Shellharbour City Council v Rigby; drawing inferences; Fuller-Lyons v New South Wales, and Flounders v Millar; appealable error; Gerlach v Clifton Bricks Pty Ltd; causation; Kooragang Cement Pty Ltd v Bates, Tubemakers of Australia Ltd v Fernandez, Paric v John Holland Constructions Pty Ltd, and Hancock v East Coast Timber Products Pty Ltd; appeals; Kowalski v Repatriation Commission, and Ready Workforce (a Division of Chandler McLeod Pty Ltd) v Andronicos; the duty to give reasons; Secretary, Department of Education v Dawking, Fisher v Nonconformist Pty Ltd, and Roncevich v Repatriation Commission; Held – the Certificate of Determination dated 20 September 2023 is confirmed.
Decision date: 25 September 2024 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Allianz Australia Insurance Limited v Coleman [2024] NSWPIC 373
Motor Accidents Injuries Act 2017; approval of settlement agreement for self-represented litigant under section 6.23; consideration of settlement agreement; Held – satisfied that the settlement agreement should be given effect to because it is just, fair, and reasonable and within the likely assessment of damages were it to be assessed by the Commission.
Decision date: 10 July 2024 | Member: Bridie Nolan
Insurance Australia Limited t/as NRMA Insurance v Krajniak [2024] NSWPIC 431
Motor Accidents Compensation Act 1999; application for discretionary exemption; claim not suitable for assessment by the Commission; court forum will resolve the dispute more justly, efficiently and effectively; a just, quick and cost effective resolution of the real issues in dispute is in a court where third party witnesses are compelled to give evidence on issues of liability, medical and quantum disputes; Held – claim not suitable for assessment pursuant to section 92(1)(b); recommendation subsequently approved by the Division Head, as Delegate of the President.
Decision date: 12 August 2024 | Member: Elyse White
Saunders v Allianz Australia Insurance Limited [2024] NSWPIC 514
Motor Accident Injuries Act 2017 (MAI Act); Civil Liability Act 2002 (CLA); exemption from assessment; not suitable for assessment; complex legal or factual issues; issues of liability; proceeding against non-CTP parties; rule 99 of the Personal Injury Commission Rules; as a member of Fire and Rescue NSW the claimant attended the scene of a fatal accident; complex legal and factual arguments under section 30(2)(a) of the CLA and as to causation; possibility of associated recovery proceedings by non-CTP party; dispute as to the limitation issue and procedural breach of section 6.14 of the MAI Act; Held – claim not suitable for assessment; exemption from assessment recommended; recommendation subsequently approved by the Division Head, as Delegate of the President.
Decision date: 23 August 2024 | Member: Susan McTegg
Haddad v Lifetime Care and Support Authority (CTP Care) [2024] NSWPIC 96
Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about whether painting services are “treatment and care” within section 1.4; claimant asked insurer to fund painting the interior and exterior of his home as he could not because of his injuries; insurer refused on the basis that painting the whole house is not “home modification” or “attendant care services” and does not come within the definition of treatment and care; insurer agreed that but for the accident the claimant would likely have painted his own home and that the claimant’s injuries prevent him from painting the house himself; Held – painting the interior and exterior of the claimant’s home is not an everyday task in terms of something that is usual or routine or common place; it is a project or major endeavour; the painting services claimed are not a statutory benefit to which the claimant is entitled.
Decision date: 3 September 2024 | Member: Belinda Cassidy
Transport Accident Commission v George [2024] NSWPIC 515
Motor Accident Injuries Act 2017; approval of settlement under section 6.23; damages for non-economic loss; damages for costs relating to travel; section 4.5(1)(b); claimant now 69 years of age; significant injuries including acute endplate fractures, acute C1 bilateral arch fractures, fracture through the manubrium of the sternum, fracture through the right second rib, interspinous ligament rupture, cord edema at C4-5, right parasagittal large full-thickness scalp laceration with skull exposed that required surgical repair, abrasions, and swelling to right knee; Held – proposed settlement of $330,000 approved under section 6.23(2)(b).
Decision date: 16 September 2024 | Member: Maurice Castagnet
Englen v Allianz Australia Insurance Limited [2024] NSWPIC 516
Motor Accident Injuries Act 2017; miscellaneous claims assessment; claim for statutory benefits not made within 3 months after the motor accident under section 6.13; whether the claimant has provided a full and satisfactory explanation for the delay in making the claim; Held – claimant has provided a full and satisfactory explanation; the claim for statutory benefits may be made.
Decision date: 16 September 2024 | Member: Jeremy Lum
Chabior v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 517
Motor Accident Injuries Act 2017; claims assessment dispute; amount of damages to be paid to the claimant under section 7.36(3) and (4); claimant was a driver of a motor vehicle involved in a collision with the insured vehicle; insurer admitted liability and no allegation of contributory negligence; claimant suffered multiple soft tissue injuries and psychological injuries being post-traumatic stress disorder and major depressive disorder; whole person impairment assessed at 24%; claimant was unemployed at the time of the accident but looking for work; claim for non-economic loss and past and future economic loss; Held – claimant is entitled to damages for non-economic loss and past and future economic loss.
Decision date: 18 September 2024 | Member: David Ford
BHZ v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 523
Motor Accident Injuries Act 2017; assessment of damages; liability admitted; claimant suffered significant psychological and physical injuries including scarring; insurer conceded entitlement to non-economic loss; claim made for past and future economic loss including loss of bonus; insurer disputed any entitlement to economic loss after claimant returned to work; dispute about reasons claimant changed employment; claimant had a loss of capacity to earn that was productive of financial loss as a consequence of his injuries; claimant did not have the capacity to undertake pre-accident work; claimant changed employment as a result of his injuries; Held – psychological injuries materially contributed to termination of employment by one employer; awards made for past and future economic loss including loss of bonus as well as non-economic loss.
Decision date: 20 September 2024 | Senior Member: Brett Williams
Kammoun v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 524
Motor Accident Injuries Act 2017; miscellaneous claims assessment regarding suspension of weekly payments of statutory benefits due to refusal to attend examination for purposes of neuropsychometric testing; whether testing for the predominate and/or collateral purpose of checking credibility of the claimant; testing requested in accordance with recommendation of insurer’s psychiatric expert; Held – the testing is for the predominate purpose of symptom validation and credibility checking; the basis upon which the recommendation is made is not valid on the evidence and therefore the recommendation is unreliable and therefore unreasonable; claimant’s weekly payments to be reinstated and the claimant is not required to attend psychometric testing; exceptional costs awarded to both insurer and claimant.
Decision date: 20 September 2024 | Member: Elizabeth Medland
AAI Limited t/as AAMI v Wilkes [2024] NSWPIC 526
Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); claimant was the driver of a motor vehicle involved in a collision with insured motor vehicle at an intersection; claimant sustained injuries to right shoulder, lumbar spine, fractured sternum and aggravation of right hip osteoarthritis; insurer wholly admitted liability, conceded non-threshold injury and entitlement to damages for non-economic loss, past and future economic loss; claimant is a warehouse manager and has been able to return to pre-injury employment; Held – the proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 23 September 2024 | Member: David Ford
Insurance Australia Limited t/as NRMA Insurance v Halloum [2024] NSWPIC 527
Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); claimant struck by a motor vehicle when attempting to cross an intersection; sustained multiple rib fractures, fractures of the lumbar spine, left wrist, left leg, head injury, and facial lacerations; insurer wholly admitted liability, conceded non-threshold injury and entitlement to non-economic loss; claimant is a pensioner; Held – the proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 23 September 2024 | Member: David Ford
Workers Compensation non-Presidential Member Decisions
Bennett v The Hills Shire Council [2024] NSWPIC 518
Workers Compensation Act 1987; section 11A(1); psychological injury; whether psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or provision of employment benefits; Irwin v Director General of Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie, Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, Kooragang Cement Pty Ltd v Bates, A1 Granny Flats v Workers Compensation Nominal Insurer (icare), Ponnan v George Weston Foods Ltd, Dunn v Department of Education and Training, and Bottle v Wieland Consumables Pty Ltd considered; Held – the applicant’s accepted psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to performance appraisal, discipline and/or provision of employment benefits.
Decision date: 18 September 2024 | Member: John Turner
Baghdadi v Infinity Cabling Group Pty Ltd [2024] NSWPIC 519
Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for weekly payments of compensation pursuant to sections 36 and 37 of the 1987 Act; whether the applicant was a worker pursuant to section 4 of the 1998 Act or a deemed worker pursuant to clause 2 of Schedule 1 to the 1998 Act; Held – the applicant was not a worker or deemed worker; award for the respondent.
Decision date: 18 September 2024 | Member: Sophie Jones
Hodgins v Finding Yellow Ltd [2024] NSWPIC 520
Workers Compensation Act 1987; claim for weekly compensation in respect of psychological injury; claim denied on basis respondent alleges its reasonable conduct with respect to performance appraisal and/or discipline was the whole or predominant cause of the applicant’s injury; statements sought to be relied on by the respondent were excluded from evidence as they were not signed or otherwise adopted by the witnesses; including the statement of the co-worker whose complaint formed the basis for the disciplinary action relied on by the respondent under section 11A; in the absence of the substantive evidence it is impossible to determine in the respondent’s favour that its actions dealing with that complaint were reasonable; the defence under section 11A is a two-limb test and both must be satisfied; Held – having found the respondent has not discharged the onus of demonstrating its actions were reasonable the defence must fail; the applicant has suffered and continues to suffer partial incapacity for employment as a result of his injury; the respondent will be ordered to pay weekly compensation in accordance with those findings.
Decision date: 18 September 2024 | Member: Cameron Burge
Van Den Hout v Woolworths Group Ltd [2024] NSWPIC 522
Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; whether the applicant sustained a consequential condition at her lumbar spine as a result of the workplace injuries to her right hip and right knee; whether the treatment expenses claimed for proposed lumbar spine surgery are reasonably necessary; Held – the applicant did not sustain a consequential condition at her lumbar spine; the medical treatment expenses claimed for proposed lumbar spine surgery are not reasonably necessary; award for the respondent.
Decision date: 19 September 2024 | Member: Sophie Jones
Fulmen v Marshalls Sydney Pty Ltd [2024] NSWPIC 525
Workers Compensation Act 1987; psychological injury lump sum claim pursuant to section 66; initial Medical Assessment Certificate was revoked by the Medical Appeal Panel which also found the applicant had not reached maximum medical improvement; the self-represented applicant has now filed medical evidence that he has reached maximum medical improvement; Held – matter is remitted to the President for referral to a Medical Assessor to assess permanent impairment; findings made about evidence to be referred to the Medical Assessor.
Decision date: 20 September 2024 | Principal Member: Josephine Bamber
Hutchison v Bogan Shire Council [2024] NSWPIC 528
Workers Compensation Act 1987; claim for weekly payments of compensation; whether the worker has had no current work capacity or a partial incapacity for work as a result of a psychological injury; Lithgow Services Pty Ltd v Walsh, and State of New South Wales v Rattenbury considered; Held – the worker has had no current work capacity since the date of injury.
Decision date: 23 September 2024 | Member: John Isaksen
Warwick-Smith v Sydney Trains [2024] NSWPIC 529
Workers Compensation Act 1987; claim for weekly compensation and proposed surgery; two injuries; background of prior injury; causation; Held – applicant sustained injuries in the course of employment; weekly compensation and medical expenses ordered.
Decision date: 23 September 2024 | Member: Michael Wright
Pollard v Toll Helicopters NSW [2024] NSWPIC 530
Workplace Injury Management and Workers Compensation Act 1998; applicant sustained laryngeal impairment; claim for section 66 compensation based on nervous system and larynx function referred to two medical assessors; Medical Assessor (MA) Burns assessed nervous system and found that breathing dysfunction was due to larynx injury which should be assessed by MA Williams; MA Williams assessed larynx dysfunction but did not assess breathing defect; appeal filed only against assessment made by MA Burns; Appeal Panel dismissed the appeal finding that error was that MA Williams did not undertake the assessment; applicant filed further application pursuant to section 329(1)(a) alleging error by MA Williams and seeking reconsideration of his assessment as an alternative to an appeal; discussion of the nature of this application as an alternative to an appeal; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission discussed and applied; ground of appeal made out as medical dispute not fully assessed; explanation of delay accepted as special circumstances exist; Robertson v Registrar of the Workers Compensation Commission referred and applied; discussion of one appeal and concept of medical assessment; Sleiman v Gadalla Pty Ltd discussed; context of legislation and reliance on section 322A that worker entitled to only one medical assessment; clause 1.20 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021) and multiple medical assessors; Held – finding that process is one medical assessment; finding that applicant has exercised his one appeal against the medical assessment; claim for further assessment dismissed.
Decision date: 24 September 2024 | Principal Member: John Harris
Motor Accidents Medical Review Panel Decisions
QBE Insurance (Australia) Limited v Omeissah [2024] NSWPICMP 632
Motor Accident Injuries Act 2017; review of a medical assessment of a single Medical Assessor; determination as to whether the injured person has suffered a threshold injury for the purposes of the Act; psychological injury; claimant presents with a heightened risk perception of driving since the motor accident; symptoms are not such that they meet the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria of a psychiatric disorder; Held – no psychiatric disorder diagnosed as a result of the motor accident; Medical Assessment Certificate revoked.
Decision date: 6 September 2024 | Panel Members: Member Elizabeth Medland, Dr Gerald Chew, and Dr Doron Samuell | Injury module: Mental and Behavioural
Serrano v AAI Limited t/as GIO [2024] NSWPICMP 661
Motor Accidents Compensation Act 1999; claimant suffered injury in a motor vehicle accident; Medical Assessor determined the claimant’s permanent impairment at 10%; Held – the Medical Review Panel conducted an examination and diagnosed post-traumatic stress disorder giving rise to permanent impairment of 5%; the Medical Assessment Certificate was revoked and a new certificate issued.
Decision date: 17 September 2024 | Panel Members: Member Terence Stern OAM, Dr Paul Friend, and Dr Christopher Rikard-Bell | Injury module: Mental and Behavioural
QBE Insurance (Australia) Limited v Cross [2024] NSWPICMP 662
Motor Accident Injuries Act 2017; medical review by insurer; permanent impairment assessed at 14% by Medical Assessor (MA); injuries assessed include cervical, thoracic and lumbar spine; claimant was a self-employed builder at the time of the accident who had pre-accident back pain with left sided sciatica; claimant developed right side sciatica after the accident; consideration of Diagnostic Related Estimate (DRE) categories, five signs of radiculopathy and clause 6.138 of the Motor Accident Guidelines; Held – the Medical Review Panel assessed cervical spine injury at 0%, thoracic spine at 0%, and lumbar spine at 5%; Medical Assessment Certificate revoked; no matter of principle.
Decision date: 18 September 2024 | Panel Members: Member Belinda Cassidy, Dr Christopher Oates, and Dr David Gorman | Injury module: Spine
Nguyen v QBE Insurance (Australia) Limited [2024] NSWPICMP 663
Review of permanent impairment assessment; psychiatric injury; nervous shock; statutory provisions; past psychiatric history; post-traumatic stress disorder (PTSD); review medical history; PTSD symptoms; Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria; no alternative explanations for the development of conditions diagnosed; permanency of impairment; treatment effect allowance; Held – permanent impairment assessed at 15%; Medical Assessment Certificate revoked; new certificate issued.
Decision date: 18 September 2024 | Panel Members: Member Hugh Macken, Dr Paul Friend, and Dr Wayne Mason | Injury module: Mental and Behavioural
AAI Limited t/as GIO v Cupac [2024] NSWPICMP 670
Permanent impairment dispute; claimant sustained injuries to cervical, thoracic and lumbar spine and soft tissue injury to the right shoulder including a labral tear; whether injuries caused by the motor accident; shoulder movement restricted by thoracic pain; appropriate method of assessment of right shoulder soft tissue injury with labral tear; impairment to right shoulder assessed by reference to an analogous condition being crepitation in the glenohumeral joint of the right shoulder; appropriate analogous condition as it results in discomfort and restriction of shoulder movement on elevation and rotation; Held – injuries caused by motor accident; permanent impairment assessed at 9%; Medical Assessment Certificate revoked.
Decision date: 20 September 2024 | Panel Members: Member Bridie Nolan, Dr Christopher Oates, and Dr Shane Moloney | Injury module: Spine and Upper Limb
Allen v Allianz Australia Insurance Limited [2024] NSWPICMP 672
Motor Accident Injuries Act 2017; review of medical assessment of single Medical Assessor; psychological injury; whether the claimant has suffered a threshold injury; claimant’s vehicle hit from behind by a truck; Held – Medical Review Panel diagnosed the claimant as suffering a reoccurrence of a major depressive disorder with anxious distress in addition to exacerbation of somatic symptom disorder with predominant pain; determined that the claimant suffers from injuries that are not threshold injuries; Medical Assessment Certificate revoked.
Decision date: 23 September 2024 | Panel Members: Member Elizabeth Medland, Dr John Baker, and Dr Christopher Canaris | Injury module: Mental and Behavioural
Insurance Australia Limited t/as NRMA Insurance v Huynh [2024] NSWPICMP 677
Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident; Medical Assessor determined that the proposed treatment disputes were reasonable and necessary in the circumstances; the Medical Review Panel (the Panel) conducted its own examination and considered the Clinical Framework for the Delivery of Health Services per clause 4.80 of the Motor Accident Guidelines; Held – the Panel determined that 8 hours a week for home and nanny services for 3 months was reasonable and necessary in the circumstances; Medical Assessment Certificate revoked and a new certificate issued.
Decision date: 24 September 2024 | Panel Members: Member Terence Stern OAM, Dr Anna Castle-Burton, and Dr Lauren Alach | Injury module: Upper Limb
Transport Accident Commission v Stein [2024] NSWPICMP 678
Motor Accidents Compensation Act 1999; claimant was the driver of a car involved in a head on collision; claimant reported pain in both knees, left hip, lower back and thigh; Held – the Medical Review Panel (the Panel) found the injuries to the left and right knees were caused by the accident and attributed 3% permanent impairment to each; claimant suffered a soft tissue injury of the lumbar spine caused by the motor accident; no radiculopathy present; left hip soft tissue injury caused by the motor accident; right hip restricted motion not caused by the motor accident; no left shoulder injury caused by the accident; evidence that left shoulder injury is degenerative in nature and not caused by the motor accident; scaring barely noticeable and is assessed at 0% permanent impairment using the TEMSKI scale in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021); the Panel found no rateable or assessable impairment for scarring; Medical Assessment Certificate revoked.
Decision date: 24 September 2024 | Panel Members: Member Ray Plibersek, Dr Sophia Lahz, and Dr Alan Home | Injury module: Spine, Upper Limb, Lower Limb, and Skin
Workers Compensation Medical Appeal Panel Decisions
State of New South Wales (NSW Police Force) v Tan [2024] NSWPICMP 616
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one psychiatric impairment rating scale (PIRS) category being concentration, persistence and pace; Held – the Medical Appeal Panel did not find error; Medical Assessment Certificate confirmed.
Decision date: 30 August 2024 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Robson v State of New South Wales (NSW Police Force) [2024] NSWPICMP 664
Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale (PIRS); application to rely on statement as to conduct of examination; Petrovic v BC Serv No 14 Pty Limited & Ors, Lukacevic v Coates Hire Operations Pty Ltd, and State of New South Wales v Ali considered; assessment under the PIRS at the date of examination; Held – Medical Assessment Certificate revoked.
Decision date: 18 September 2024 | Panel Members: Member Catherine McDonald, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Neader v TS 14 Plus Australia Pty Ltd ATF Vestito Unit Trust [2024] NSWPICMP 665
Workplace Injury Management and Workers Compensation Act 1998; medical appeal; whether error on face of Medical Assessment Certificate (MAC); what if any deduction should be made pursuant to section 323; appellant was assessed by a Medical Assessor (MA) and a deduction of 30% was warranted for the existence of pre-existing severe osteoarthritis; Held – the MAC contained an obvious error in that the assessor did not adequately explain their reasons for reaching the deduction of 30%; an examination of the totality of the medical and lay evidence including the radiology warrants a deduction greater than 10%; the Medical Appeal Panel found the deduction of 30% arrived at by the MA was appropriate; appeal dismissed; MAC confirmed.
Decision date: 18 September 2024 | Panel Members: Member Cameron Burge, Dr Gregory McGroder, and Dr Doron Sher | Body system: Left Lower Extremity and Scarring
State of New South Wales (NSW Police Force) v Kennedy [2024] NSWPICMP 666
Workplace Injury Management and Workers Compensation Act 1998; assessment of physical injuries deemed to have been suffered on the last date of active service; assessment of radiculopathy in the lumbar spine; paragraphs 4.27 and 4.28 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021) (the Guidelines); section 323 deduction inappropriate on facts; assessment of left ankle; paragraph 3.17 of the Guidelines; reassessment; Held – Medical Assessment Certificate revoked.
Decision date: 18 September 2024 | Panel Members: Member Catherine McDonald, Dr Drew Dixon, and Dr Sophia Lahz | Body system: Lumbar Spine, Left Lower Extremity, and Right Lower Extremity
Westpac Banking Corporation v Ralli [2024] NSWPICMP 667
Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of permanent impairment in relation to psychiatric and psychological disorders; assessment failed to consider an alleged deterioration in the respondent’s symptoms due to events subsequent to her employment; Medical Assessor (MA) erred in failing to have regard to the respondent’s pre-existing psychological condition and therefore not making a deduction in accordance with section 323; McCarthy v Patrick Stevedores No 1 Pty Limited, Marks v Secretary, Department of Communities and Justice (No 2), Ryder v Sundance Bakehouse, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, Campbelltown City Council v Vegan, Paric v John Holland (Constructions) Pty Limited, Hancock v East Coast Timber Products Pty Limited, and Cole v Wenaline Pty Limited considered; Held – the Medical Appeal Panel (the Panel) found no error in relation to the first ground of appeal and is satisfied that the MA solely assessed impairment in relation to the respondent’s accepted psychological injury without having regard to any psychological condition not related to the accepted injury; error found in relation to the second ground of appeal having regard to the contemporaneous medical evidence regarding the respondent’s pre-existing psychological condition; indicating a pre-existing recurrent major depressive disorder; the appellant’s current employment related persistent depressive disorder represents a further but more chronic and impairing episode of her pre-existing condition; the Panel finds sufficient evidence to conclude that her current degree of psychological impairment would not have been as great if it were not for the pre-existing condition; the Panel considers the appropriate deduction from the impairment assessed by the MA to be 1/10 in accordance with section 323(2); Medical Assessment Certificate revoked and a new certificate issued.
Decision date: 19 September 2024 | Panel Members: Member Gaius Whiffin, Dr Michael Hong, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Ishac v Byblos Promotions Pty Ltd [2024] NSWPICMP 668
Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor made a section 323 deduction of 100% for pre-existing cervical spine condition; Cole v Wenaline Pty Limited, and Southwell v Qantas Airways Limited considered; Held – Medical Assessment Certificate confirmed.
Decision date: 19 September 2024 | Panel Members: Member Catherine McDonald, Dr Mohammed Assem, and Dr Drew Dixon | Body system: Cervical Spine, Lumbar Spine, and Right Upper Extremity
South Coast Private Pty Ltd v Veljanoski [2024] NSWPICMP 671
Appellant submitted Medical Assessor (MA) should not have proceeded with a telehealth assessment; MA failed to order additional testing; MA failed to provide any or adequate reasons for his assessment of the psychiatric impairment rating scale (PIRS) category of concentration, persistence and pace; MA failed to have regard to the treating medical evidence before him; MA erred in his assessment of the PIRS category of travel; MA failed to identify the diagnostic criteria for his diagnosis of major depressive order with anxious distress comorbid with an alcohol use disorder; Held – the Medical Appeal Panel (the Panel) accepted that the MA was in error in failing to demonstrate he had regard to the PIRS categories detailed in the clinical notes of the respondent’s treating psychiatrist and in failing to identify the diagnostic criteria for his diagnosis of major depressive disorder; the Panel did not consider either of these errors altered the MA’s assessment of the PIRS categories with which the appellant quibbles; Medical Assessment Certificate confirmed.
Decision date: 20 September 2024 | Panel Members: Member Jacqueline Snell, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Panagos v The Trustee for the Salvation Army (NSW) Property Trust [2024] NSWPICMP 673
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under three of the psychiatric impairment rating scale (PIRS) categories of social and recreational activities, social functioning and concentration, persistence and pace and in the making of one-tenth deduction under section 323; Held – no error in respect of the assessments under social function and concentration, persistence and pace and in respect of the one-tenth deduction; error in the assessment for social and recreational activities which was rated as mild and should have been rated as moderate; Medical Assessment Certificate revoked.
Decision date: 23 September 2024 | Panel Members: Member Jane Peacock, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric
State of New South Wales (NSW Police Force) v Ireland [2024] NSWPICMP 679
Injury to right lower extremity (right knee); appellant employer appealed failure to make a deduction for pre-existing injury, condition or abnormality; Held – no error found as no basis to make a deduction because any pre-existing condition, abnormality or injury of the right knee had not contributed to the overall level of permanent impairment assessed as a result of the work injury; Medical Assessment Certificate confirmed.
Decision date: 24 September 2024 | Panel Members: Member Jane Peacock, Dr Drew Dixon, and Dr Gregory McGroder | Body system: Right Lower Extremity and Scarring
Wollongong City Council v Needham [2024] NSWPICMP 680
Worker sustained injury to her right lower extremity, left upper extremity, and scarring; Medical Assessor (MA) assessed permanent impairment at 17% which included assessment of left ulnar nerve damage; appellant appealed on the grounds that the MA had made a demonstrable error in assessing ulnar nerve condition in the respondent’s left arm as that was not part of the dispute identified by the parties; whether there was lack of procedural fairness as neither party had considered the issue and arguments; appeal upheld; Medical Appeal Panel (Panel) issued a new Medical Assessment Certificate (MAC) assessing the respondent’s permanent impairment at 12% after deduction of the assessment by the MA of impairment as a result of the respondent’s ulnar nerve condition; respondent sought judicial review of the Panel’s decision; the Court held that the Panel had erred in concluding that assessment of the respondent’s upper extremity should be limited to assessment of impairment after arthroplasty of the elbow, upper extremity motion impairment due to lack of flexion and extension of the elbow joint impairment due to lack of pronation and supination; the MA had to look for signs of nerve impairment on his examination and had to make a diagnosis that he then had to take into account in arriving at the respondent’s permanent impairment; the Court ordered that the matter be remitted to be considered by a differently constituted Panel; Needham v Wollongong City Counciland Skates v Hills Industries Ltd considered; Held –MAC confirmed.
Decision date: 24 September 2024 | Panel Members: Senior Member Kerry Haddock, Dr James Bodel, and Dr Margaret Gibson | Body system: Right Lower Extremity and Left Upper Extremity
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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