Legal Bulletin No. 182

Issued 11 October 2024

Welcome to the one hundred and eighty second 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

Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245

Traffic Law and Transport; traffic law; Motor Accident Injuries Act 2017 (NSW); construction of section 1.6; meaning of “threshold injury”; whether an injury to skin is a “threshold injury”; whether skin falls within the statutory meaning of “soft tissue”; where a review panel of the Personal Injury Commission found that skin lacerations sustained by the claimant were not “threshold injuries”; where insurer contends that the construction of section 1.6 adopted by the Review Panel is contrary to the objects of the legislation; where text of section 1.6 supports the construction adopted by the Review Panel; administrative law; judicial review; summons seeking judicial review for error of law on the face of the record or a constructive failure to exercise jurisdiction; Held – summons dismissed with costs.

Decision date: 4 October 2024 | Before: Griffiths AJA

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as GIO v Pateman [2024] NSWPIC 533

Motor Accident Injuries Act 2017; proposed settlement; claimant 55 years old; liability admitted; economic loss damages only; claimant’s earnings increased since the accident; Held – settlement in the amount of $70,000 is just, fair and reasonable; within the likely potential damages assessments taking into account the nature and extent of the claim.

Decision date: 11 September 2024 | Member: Elyse White

AAI Limited t/as GIO v Leverrier [2024] NSWPIC 548

Motor Accident Injuries Act 2017; insurer admitted that the claimant exceed the threshold for recovery of non-economic loss damages by way of internal review; insurer subsequently purported to raise a medical dispute on that issue; claimant objected to insurer’s application to refer to the purported medical dispute to a Medical Assessor (MA); claimant alleged insurer had no power to change its decision following an internal review or the matter be dismissed pursuant to section 7.20(3) on the basis of absence of medical evidence; Commission’s power to determine whether there is a medical dispute in Smalley v Motor Accidents Authority discussed and applied; principles of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority discussed; discussion of internal review procedures under the Motor Accident Guidelines; discussion of medical disputes in sections 4.12 and 7.17 and the wording of these provisions; contextual considerations and discussion of medical assessment procedures; no clear purpose identified other than medical assessment process difficult, complex and time-consuming; discussion of power in section 7.20(3) to refuse to accept the medical dispute where there is insufficient evidence; insurer not bound by medico-legal opinion qualified by it; MA required to form own opinion; Insurance Australia Ltd v Marsh applied; issue raised by insurer of causation of injury to the right ankle; lack of contemporaneous complaint and treatment; AAI Ltd v McGiffen applied; causation not solely a medical issue; medico-legal opinions arguably suffered from an absence of fair climate; Paric v John Holland (Constructions) Pty Ltd; inclusion of assessment of permanent impairment of the right ankle necessary in qualified opinion to establish over threshold; absence of inclusion of right ankle as not caused by motor accident showed sufficient evidence below threshold; Held – claimant’s application to dismiss the insurer’s application for assessment of medical dispute rejected.

Decision date: 3 October 2024 | Principal Member: John Harris

Workers Compensation non-Presidential Member Decisions

Keram v Canterbury Bankstown Council [2024] NSWPIC 535

Workplace Injury Management and Workers Compensation Act 1998; claim for lump sum compensation in respect of injury to the cervical spine and left shoulder; whether applicant's claim had been admitted by the respondent's expert witness; whether clinical notes and opinion from treating neurosurgeon affected claimant’s onus; whether respondent should be given an adjournment to consider additional evidence; Held – 8 – 9 months prior to the hearing section 78 notice advised that although the respondent expert witness supported applicant's claim the insurer did not accept that opinion; no further evidence was obtained thereafter; adjournment request refused; cervical spine injury admitted after a short adjournment; denial for injury to the left shoulder maintained; respondent counsel reference to various segments of the evidence in order to nullify its expert’s view unsuccessful; failure by the insurer to properly prepare its case commented on; Hill v The A 2 Milk company (Australia) Pty Ltd referred to; Mosawi v Baron Forge (NSW) Pty Ltd considered and applied.

Decision date: 27 September 2024 | Member: John Wynyard

Lucre v State of NSW (South Western Sydney Local Health District) [2024] NSWPIC 537

Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation; dispute surrounding delay in making claim pursuant to section 261; Held – the applicant’s argument that the provisions of section 261(1) did not apply as she had made a claim within time in or around 2013 is not supported by the evidence; the applicant’s argument that the provisions of section 261(1) did not apply as the applicant only received requisite knowledge of her injury being compensable when her present solicitors obtained a report from an independent medical examiner (IME) is also not supported by the evidence and contradicts the submissions made by the applicant; the applicant’s failure to make a claim within the relevant period in section 261(1) was brought about by her ignorance and/or mistake and as such she has a valid reason to enliven the provisions of section 261(4); matter remitted to the President for referral to a Medical Assessor to determine the applicant’s degree of permanent impairment arising from the injury.

Decision date: 30 September 2024 | Member: Cameron Burge

Kemenade v Ausgrid Management Pty Ltd & Ors [2024] NSWPIC 538

Workers Compensation Act 1987; claim in respect of lump sum death benefits; no dispute that the deceased died as a result of an injury arising out of or in the course of employment with the first respondent; the first respondent conceded liability to pay the lump sum benefit pursuant to section 25(1)(a); parties were able to agree on a proposed apportionment of the lump sum benefit; Held –proposed apportionment was appropriate after considering the circumstances of dependency of each party; orders made in relation to funds management expenses for management of the relevant lump sums by the NSW Trustee and Guardian.

Decision date: 30 September 2024 | Senior Member: Elizabeth Beilby

Razmovski v NIB Health Funds Ltd [2024] NSWPIC 540

Claim for permanent impairment for both upper limbs; dispute as to the deemed date of injury for a disease injury for the claim for permanent impairment; Haddad v The GEO Group Australia Pty Ltd referred to; Held – the deemed date of injury for the claim for permanent impairment is the date of the worker’s incapacity.

Decision date: 1 October 2024 | Member: John Isaksen

Meredith v Tamworth Regional Council [2024] NSWPIC 541

Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted injury to right shoulder, right elbow and cervical spine; whether left shoulder is a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Ltd, Nguyen v Cosmopolitan Homes and Drca v KAB Seating Systems Pty Ltd considered; Held – applicant sustained consequential condition to the left shoulder resulting from overuse due to injury restriction in right shoulder; remitted to the President for referral to a Medical Assessor to determine permanent impairment.

Decision date: 1 October 2024 | Member: Adam Halstead

Stanley v Lachlan Shire Council [2024] NSWPIC 542

Workers Compensation Act 1987; claim for whole person impairment arising out of consequential condition of sleep disorder and gastrointestinal disorder as a result of accepted injury to lumbar spine; respondent disputed that the applicant had sustained consequential condition; Murphy v Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates, and Kumar v Royal Comfort Bedding Pty Ltd considered; applicant sustained consequential condition of sleep disorder and gastro intestinal disorders as a result of injury to lumbar spine; unbroken chain of causation; Held – award for applicant with respect to consequential conditions claimed and the matter be referred to a Medical Assessor to assess impairment arising out of frank injury to the lumbar spine and consequential conditions.

Decision date: 1 October 2024 | Member: Diana Benk

Motor Accidents Medical Review Panel Decisions

BHY v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 622

Motor Accident Injuries Act 2017; review of medical assessment; psychiatric injury; “threshold injury” and permanent impairment disputes; where Medical Assessor found diagnosed psychiatric conditions not caused by the accident; Held (by majority) – pre-existing post-traumatic stress disorder was aggravated by the accident; aggravation of post-traumatic stress disorder not a threshold injury; 1% permanent impairment attributable to accident after deduction for pre-existing impairment; separate reasons provided by third member of Medical Review Panel (Panel); determination of the majority is taken to be the determination of the Panel; Medical Assessment Certificate (MAC) revoked; new certificates issued.

Decision date: 3 September 2024 | Panel Members: Senior Member Brett Williams, Dr Christopher Rikard-Bell, and Dr Doron Samuell | Injury module: Mental and Behavioural

Allianz Australia Insurance Limited v CTA [2024] NSWPICMP 669

Motor Accident Injuries Act 2017; review by Medical Review Panel of medical assessment; threshold injury; assessor found the claimant suffered post-traumatic stress disorder as a result of accident; certified not a “minor” (now threshold) injury; Held – claimant suffered a pre-existing persistent depressive disorder with anxious distress; condition aggravated by accident; not a threshold injury; Medical Assessment Certificate revoked.

Decision date: 20 September 2024 | Panel Members: Senior Member Brett Williams, Dr Melissa Barrett, and Dr Samson Roberts | Injury module: Mental and Behavioural

Habib v AAI Limited t/as GIO [2024] NSWPICMP 682

Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor’s assessment of whole person impairment (WPI) at 2%; claimant alleged injuries to 12 parts or areas of her body including her back, neck, shoulders, knees, pelvis, hips, left ankle, left wrist, head, arms and legs; claimant had been involved in several previous accidents involving the same or similar parts of her body; face-to-face re-examination undertaken; claimant had poor recall of her injuries and the development of symptoms and difficulty distinguishing current symptoms from symptoms arising from other accidents; Medical Review Panel was of the view limited weight should be given to her evidence and preferred the documentary evidence; Held – claimant injured her left ankle, left wrist, neck and lower back in the accident; WPI assessed at 0%; Medical Assessment Certificate revoked; no issue of principle.

Decision date: 26 September 2024 | Panel Members: Member Belinda Cassidy, Dr Clive Kenna, and Dr Sophia Lahz | Injury module: Spine, Upper Limb, Lower Limb, and Brain Injury

Insurance Australia Limited t/as NRMA Insurance v Higgins [2024] NSWPICMP 686

Motor Accident Injuries Act 2017; claimant was walking across a pedestrian crossing when she was hit by a car resulting in multiple injuries including to her pelvis, right elbow and right ankle; Held – Medical Assessment Certificate revoked; original assessment found the claimant sustained total permanent impairment of 19%; claimant’s injury to the right ankle was assessed at 4% whole person impairment (WPI), pelvic fractures in two locations at 15% WPI and scarring at 1% WPI; Medical Review Panel (Panel) found a total 19% impairment; Panel relied on paragraph 3.4 on page 131 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition; the first pelvic fractures assessed were the left pubic body and pubic ramus with residual displacement and residual signs best fit as item 3(b); the second assessment was of claimant’s sacrum fracture injury best described as item 3(f); total WPI for the pelvis is a combination of 10% for the sacrum into the SI joint fracture, and 5% for the pubic bone fractures, which equals 15% WPI; the remaining assessments were right ankle 4% WPI, right elbow 0% WPI and scarring 1% WPI.

Decision date: 30 September 2024 | Panel Members: Member Ray Plibersek, Dr David Gorman, and Dr Michael Couch | Injury module: Upper Limb, Lower Limb, and Skin

Razi v Allianz Australia Insurance Limited [2024] NSWPICMP 687

Motor Accident Injuries Act 2017; section 3.24; accident 13 May 2019; claimant underwent anterior cervical decompression and disc replacement at C4/5 nine weeks before accident; treating surgeon supported subject accident as causing prosthetic non-integration and need for proposed revision surgery; treatment dispute based on delay in detecting non-integration and possible causes unrelated to accident; proposed treatment suitable; review of Medical Assessment Certificate (MAC) which found that claimant had not satisfied the Medical Assessor that the accident contributed to non-integration; parties agreed further examination was unnecessary; Medical Review Panel considered treating surgeon and medicolegal opinions regarding nexus with accident; clinical judgment was that accident could disrupt integration; evidence supported it being probable; appropriate treatment; Held – accident caused non-integration and need for surgery; MAC revoked.

Decision date: 1 October 2024 | Panel Members: Member Terence O'Riain, Dr Drew Dixon, and Dr Michael Couch| Treatment Type: Surgery

Workers Compensation Medical Appeal Panel Decisions

Roosters Traffic Control Pty Ltd v Khoury [2024] NSWPICMP 681

Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor erred in failing to make a deduction pursuant to section 323; Held – Medical Appeal Panel agreed with appellant; the mechanism of injury (whether it be a frank injury, a disease injury or a consequential injury) is irrelevant when determining whether a deduction is required under section 323(1); sufficient evidence to warrant a deduction of 10%; Medical Assessment Certificate revoked.

Decision date: 25 September 2024 | Panel Members: Member Deborah Moore, Dr James Bodel, and Dr Mark Burns | Body system: Right Upper Extremity, Left Upper Extremity, Lumbar Spine, Cervical Spine, and Scarring

Blacktown City Council v D'Angelo [2024] NSWPICMP 683

Workplace Injury Management and Workers Compensation Act 1998; appeal against Medical Assessor’s (MA) assessment of impairment in relation to the left lower extremity (knee) on the basis that the MA erred in failing to have regard to the respondent’s left knee symptoms in 2007 and 2010 therefore in not making a deduction from the impairment in accordance with section 323; error found for failure to consider relevant and significant material being the clinical notes of the respondent’s treating general practitioners in 2007 and 2010; following consideration of the clinical notes as well as a further medical examination conducted on behalf of the Medical Appeal Panel (Panel) it is found that the respondent’s left knee symptoms in 2007 and 2010 do not constitute a previous injury, pre-existing condition or abnormality sufficient to warrant a deduction from the impairment assessed by the MA in accordance with section 323; the Panel is not satisfied that the respondent’s degree of impairment would not have been as great but for any previous injury, pre-existing condition or abnormality; Ryder v Sundance Bakehouse, Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor, 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, Prasad v Workers Compensation Commission, Wentworth Community Housing Limited v Brennan and Cole v Wenaline Pty Ltd considered; Held – Medical Assessment Certificate confirmed.

Decision date: 27 September 2024 | Panel Members: Member Gaius Whiffin, Dr Mark Burns, and Dr Drew Dixon | Body system: Left Lower Extremity and Scarring

Allsopp v Secretary, Department of Communities and Justice [2024] NSWPICMP 684

Appeal against assessment of 8% whole person impairment for a psychiatric injury deemed to have occurred on 25 August 2022; appellant submitted that the Medical Assessor (MA) failed to consider all relevant evidence, failed to provide adequate reasons, and erred/applied incorrect criteria in the assessment of the psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene and social functioning; Held – assessment in the PIRS categories of self-care and personal hygiene, and social functioning confirmed; MA had considered the evidence and her reasoning was adequate; Medical Assessment Certificate confirmed.

Decision date: 27 September 2024 | Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decisions

Bajo v iCare [2024] NSWPICMR 69

Motor Accident Injuries Act 2017; merit review; dispute about whether cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of section 3.24(1) (entitlement to statutory benefits for treatment and care) attendant care services; everyday tasks; home modification; tree slashing; support worker; transport assistance; jurisdiction; schedule 2(1)(i); Held – the reviewable decision is set aside.

Decision date: 30 September 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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