Legal Bulletin No. 190
This bulletin was issued on 6 December 2024
Issued 6 December 2024
Welcome to the one hundred and ninetieth 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
Hills Bus Co Pty Ltd v Grewal [2024] NSWPICPD 75
Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 considered and applied; Held – the Certificate of Determination dated 8 January 2024 is confirmed.
Decision date: 25 November 2024 | Before: President Judge Phillips
State of New South Wales (Southern NSW Pathology Service) v Wu [2024] NSWPICPD 76
Adequacy of reasons; findings of credit; rule 78 of the Personal Injury Commission Rules 2021; Stambolziovski v Nestorovic andCamanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332; Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 considered; Held – the Certificate of Determination dated 3 November 2023 is confirmed.
Decision date: 28 November 2024 | Before: Acting Deputy President Paul Sweeney
Motor Accidents non-Presidential Member Decisions
Gordian RunOff Limited v Dimos [2024] NSWPIC 532
Motor Accidents Compensation Act 1999; discretionary exemption under section 92(1)(b); application for assessment of damages for past and future economic loss; discretionary exemption sought by insurer on basis that claimant has made false and misleading statements as to the nature of the injuries and economic losses; mild traumatic brain injury, soft tissue injuries, and psychological injury alleged as a result of a head-on collision where claimant was asleep as a passenger; third-party witnesses require cross examination and cannot be compelled to attend the Personal Injury Commission (the Commission) but may be compelled by subpoena; Held – matter not suitable for assessment at the Commission; recommendation to issue a Certificate of Exemption; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 4 September 2024 | Member: Allan Cowley
AAI Limited t/as AAMI v Malachi [2024] NSWPIC 536
Motor Accidents Compensation Act 1999; damages assessment; claimant alleges injuries as a passenger of a car rear-ended by the insured’s vehicle; insurer admitted liability; nature and extent of injuries considered; claim for past and future economic loss, treatment expenses and care; claimant was paid a carers allowance to look after his father prior to accident but was not particularised; Held – no award for non-economic loss; award for future loss of earnings, past treatment and future treatment; no award for past or future gratuitous care.
Decision date: 30 September 2024 | Member: Allan Cowley
Robinson v Transport Accident Commission [2024] NSWPIC 594
Motor Accident Injuries Act 2017 (MAI Act); claims assessment dispute as to whether the claim is not suitable for assessment under Division 7.6 of the MAI Act; insurer made an application that matter be exempted on a discretionary basis under section 7.34(1)(b) of the MAI Act on the grounds that the claim involves issue of liability, including contributory negligence, fault or causation; rule 99(3)(c) of the Personal Injury Commission Rules 2021; claimant lodged a claim for common law damages in respect of pure mental harm because of her attending a motor vehicle accident on 17 March 2020 during the course of her employment as a firefighter with Fire and Rescue NSW; the driver of the Victorian registered truck caught fire, and unfortunately, the driver was killed; it was a single vehicle accident; claimant suffered a panic attack, anxiety and since then, has been diagnosed with post-traumatic stress disorder; insurer denied liability, and did so on several grounds, which included that the workers compensation insurer of the claimant’s employee had commenced section 151Z recovery proceedings under the Workers Compensation Act 1987 against the insurer, and the proceedings have been listed for a directions hearing in the District Court at Sydney; the insurer submitted the matter ought to be exempted and allowed to proceed in the appropriate forum, where the legal and factual complexities can be properly considered, where a binding decision can be made and where non-party witnesses can be compelled to give evidence; Held – determined the claim is not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 1 October 2024 | Member: David Ford
Baxter v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 575
Motor Accident Injuries Act 2017; application for exemption; operation of forklift; accident in private property; not a road or road related area; transport yard; moving steel beams; consent to application; insurer declined to indemnify owner or driver; worker’s compensation proceedings; Supreme Court proceedings pending; complex factual issues; contributory negligence; allegations of negligence in respect to staffing levels; Held – matter to be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 16 October 2024 | Member: Hugh Macken
Hicks v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 583
Motor Accident Injuries Act 2017; joint application for the claim to be exempted from assessment in accordance with section 7.34(1)(b); claimant a passenger in vehicle in which driver was killed; deceased driver’s blood toxicology showed the presence of alcohol and other stimulants; contributory negligence alleged; claimant's economic loss claim likely to involve competing forensic accounting reports; forensic accountants likely to be cross-examined on their reports; Held – claim not suitable for assessment due to the factual and legal issues that arise in the context of the contributory negligence allegation, the intention of the parties to call and cross examine lay and expert witnesses in relation to contributory negligence and damages, and the likely length of the hearing; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 18 October 2024 | Senior Member: Brett Williams
Kristiansen v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 587
Motor Accident Injuries Act 2017; joint application for claim to be exempted from assessment in accordance with section 7.34(1)(b); claimant is the spouse of front seat passenger involved in a fatal single vehicle accident in which the deceased driver's blood toxicology shows the presence of alcohol and other stimulants; damages claimed for mental harm; contributory negligence alleged; claimant, her husband, and a number of other witnesses will be required for cross examination; claimant argues that as a first responder she should not be subject of any contributory negligence finding; Held – the claim involves complex legal and factual issues, including issues arising from the mental harm provisions in the Civil Liability Act 2002; recommendation also made that husband’s claim be exempt from assessment; both claims should be heard in the same forum; claim not suitable for assessment by the Commission; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 21 October 2024 | Senior Member: Brett Williams
Arthur v Allianz Australia Insurance Limited [2024] NSWPIC 618
Motor Accident Injuries Act 2017; claimant’s application for exemption under section 7.34(1)(b); application not opposed by insurer; liability for claim denied; contest between the parties with respect to the circumstances in which the accident occurred; parties propose to call oral evidence from a number of lay witnesses, together with experts; Held – determination of the claim by a court is more likely to result in the just, quick and cost effective resolution of the real issues in the proceedings; claim is not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 23 October 2024 | Senior Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Pancholi v Abraham t/as Chemist Warehouse Balmain Darling Street [2024] NSWPIC 628
Workers Compensation Act 1987; claim for left total knee replacement surgery; respondent disputes the treatment is reasonably necessary; Diab v NRMA Ltd applied; Held – pursuant to section 60 the proposed left knee replacement surgery is reasonably necessary treatment as a result of injury in the course of employment with the respondent; the respondent is to pay for the costs of and incidental to the left knee replacement surgery.
Decision date: 11 November 2024 | Principal Member: Josephine Bamber
Dimond v Dimond Brothers Concrete Pumping Pty Ltd [2024] NSWPIC 644
Workers Compensation Act 1987; sections 4, 9A and 10(3)(a); whether applicant in course of employment; whether applicant was undertaking activities in capacity as director of respondent; motorcycle accident; whether employment substantial contributing factor; Michael Duke v State of New South Wales (Northern Sydney Local Health District) & Ors; Maurino v Amberlor Pty Limited; Stevens v Brodribb Sawmilling Co Pty Ltd; Fed Consulting Services Pty Ltd v Gelo; Corporations Act 2001 (Cth); Workers Compensation Act 1951 (ACT); Hook v Rolfe; Skea v Legg; Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden; Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd; Held – applicant’s injury arose in course of employment; employment a substantial contributing factor; applicant entitled to award of weekly compensation on total and partial incapacity basis.
Decision date: 20 November 2024 | Member: Mitchell Strachan
Strickland v Woolworths Group Ltd [2024] NSWPIC 645
Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted lower back injury; whether L5/S1 anterior lumbar interbody spinal fusion surgery is reasonably necessary as a result of the accepted lower back injury; Held – L5/S1 anterior lumbar interbody spinal fusion surgery is reasonably necessary as a result of the accepted lower back injury pursuant to section 60; respondent to pay the costs of and incidental to the surgery.
Decision date: 21 November 2024 | Member: Karen Garner
Turner v Canterbury Bankstown City Council [2024] NSWPIC 646
Consequential condition; applicant had significant left heel injury; claimed that he had a consequential condition in his right hip; consideration of how applicant’s case was put in pleadings and particulars; caution applied to clinical notes; Qannadian v Bartter Enterprises Pty Limited considered; Held – applicant suffered a consequential condition in right hip; matter referred for assessment of permanent impairment.
Decision date: 21 November 2024 | Member: Parnel McAdam
Eid v Edmen Workforce Staffing Services Pty Ltd [2024] NSWPIC 647
Claim for permanent impairment for injury to right upper limb; injury or consequential condition to cervical spine; consequential condition to the left shoulder; scarring; Complex Regional Pain Syndrome (CRPS); respondent disputes injury or consequential condition to cervical spine, consequential condition to the left shoulder and CRPS; consideration of Moon v Conmah Pty Ltd on determination of consequential conditions; consideration of Elsworthy v Forgacs Engineering Pty Ltd as to whether the condition of CRPS can be the subject of referral to a Medical Assessor; Held – the worker did not sustain an injury to his cervical spine in the course of his employment with the respondent; the worker has suffered consequential conditions affecting his cervical spine and left shoulder as a result of injury to his right upper limb; the worker has signs and symptoms in the right upper limb which warrant a referral for assessment of CRPS pursuant to the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed.
Decision date: 21 November 2024 | Member: John Isaksen
Gray v United Disability Care Pty Ltd [2024] NSWPIC 648
Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; the applicant conceded that she had suffered incapacity from a date earlier than the date on which the claim for lump sum compensation was made; however, the applicant claimed that the date of injury for the purpose of the lump sum claim was the date on which such claim was made; the respondent claimed that the date of injury was the earlier date of incapacity, relying on what the Court of Appeal decided in Haddad v The GEO Group Australia Pty Ltd (Haddad), and members of the Commission decided in Ellis v Dontarna Pty Ltd and Razmovski v NIB Health Funds Ltd; earlier authorities, including Alto Ford Ltd v Antaw, SAS Trustee v O’Keefe, and Inghams Enterprises Pty Ltd v Thoroughgood (Thoroughgood) referred to; Held – consistent with Haddad and Thoroughgood, the date of incapacity was the correct date of injury for the purpose of the claim for lump sum compensation; respondent ordered to pay lump sum compensation having regard to the earlier date of incapacity.
Decision date: 22 November 2024 | Member: Brett Batchelor
Syme v Dentfree NSW Pty Ltd [2024] NSWPIC 649
Workers Compensation Act 1987; lump sum claim relying on disease provisions in section 4(b); the respondent agrees the applicant sustained an injury to his cervical spine but disputes he sustained any injury to his lumbar spine and bilateral shoulders; issue about adequacy of expert’s report; Ly v Jitt Offset Pty Ltd and AV v AW discussed; pursuant to section 4(b)(i) the applicant sustained injury to his lumbar spine with his employment being the main contributing factor to the contraction of disease; Held – award for the respondent in relation to the allegation of injury to the bilateral shoulders; the lump sum claims relating to the cervical spine, lumbar spine and scarring are remitted to the President for referral to Medical Assessor to assess permanent impairment.
Decision date: 22 November 2024 | Principal Member: Josephine Bamber
Iacovazzo v State of New South Wales (NSW Health Pathology) [2024] NSWPIC 650
Workers Compensation Act 1987; whether the applicant suffered consequential conditions of alcohol abuse disorder, temporomandibular joint dysfunction and bruxism as a result of an accepted psychological condition; whether the need for pharmacological interventions, splints and Botox injections are reasonably necessary; Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA Ltd discussed and applied; Held – the applicant has suffered a consequential condition of alcohol abuse disorder, bruxism and temporomandibular joint dysfunction resulting from her accepted workplace psychological injury; treatment proposed is reasonably necessary and the conditions materially contributed to be the need for treatment; respondent to pay for pharmacological and dental treatment as proposed by the applicant’s providers pursuant to section 60.
Decision date: 26 November 2024 | Member: Diana Benk
Hall v Aware Super Services Pty Ltd [2024] NSWPIC 651
Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for weekly compensation and medical expenses in respect of a psychological injury; whether injury wholly or predominantly due to reasonable action with respect to employment benefits; ACR v Grace Worldwide Pty Ltd and Rock Logistics Pty Ltd v Chelin considered; application of section 73 of the 1998 Act; Held – the respondent established a defence pursuant to section 11A(1) of the 1987 Act; award for the respondent.
Decision date: 26 November 2024 | Member: Rachel Homan
Motor Accidents Medical Review Panel Decisions
Recobas v Allianz Australia Insurance Limited [2024] NSWPICMP 775
Motor Accidents Compensation Act 1999; motor accident in 2013; physical injury; assessment of permanent impairment; claimant struck by reversing car but did not fall to ground; previous 2008 motor accident; significant pre-existing cervical spine and shoulder symptoms; histories recorded in prior assessment of pre-existing conditions accepted by the claimant; absence of contemporaneous complaint of shoulder symptoms consistent with claimant’s account to Medical Assessors; no medical explanation why this type of incident would cause shoulder injury or aggravate shoulder symptoms; finding of no Injury or symptoms exacerbation to shoulders caused by motor accident; history by claimant and contemporaneous records support some exacerbation in cervical spine symptoms; no change in pathology; minor nature of motor accident involved trauma to lumbar spine with jolt to cervical spine; ongoing symptoms referable to pre-existing cervical spine condition; injury to lumbar spine caused by motor accident led to L3/4 surgery in 2018; no ongoing radiculopathy; minor scar assessed at 1%; subsequent lumbar spine surgery in 2022 at L4/5 unrelated to motor accident due to delay in onset of radiculopathy and due to canal stenosis; Held – impairment assessed at less than 10%; Medical Assessment Certificate confirmed.
Decision date: 20 November 2024 | Panel Members: Principal Member John Harris, Dr Les Barnsley, and Dr Shane Moloney | Injury module: Spine and Upper Limb
Assoum v QBE Insurance (Australia) Limited [2024] NSWPICMP 780
Motor Accident Injuries Act 2017;review of medical assessment; replacement certificate issued under section 7.23(1); post-traumatic stress disorder (PTSD); adjustment disorder secondary to pain; previous motor vehicle accident; pain gives rise to significant physical limitations; post-accident psychological treatment; diagnosis of major depression and PTSD; exacerbation of pre-existing chronic PTSD; examination findings; psychological impairment; current functioning; impaired relationships; diagnosis; accident had the potential to precipitate a similar psychological injury; criteria of PTSD fulfilled; aggravation of pre-existing post-traumatic stress disorder and somatic disorder with predominant pain; Held – non-threshold injuries.
Decision date: 21 November 2024 | Panel Members: Member Hugh Macken, Dr Michael Hong, and Dr Christopher Canaris | Injury module: Mental and Behavioural
Janes v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 781
Motor Accident Injuries Act 2017; section 1.6(3); threshold injury; substance use disorder; specific phobia (driving); pre-existing condition; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 8 March 2021; Medical Assessor (MA) Samuell found claimant sustained an adjustment disorder caused by the accident; claimant sought review; Held – claimant had sustained exacerbation of substance use disorder (alcohol dependence) and a specific phobia (driving) caused by the accident; also probable diagnosis of panic disorder; certificate of MA Samuell revoked; specific phobia and exacerbation of a substance use disorder are non-threshold injuries.
Decision date: 21 November 2024 | Panel Members: Member Susan McTegg, Dr Christopher Canaris, and Dr Matthew Jones | Injury module: Mental and Behavioural
Insurance Australia Limited t/as NRMA Insurance v Haklane [2024] NSWPICMP 782
Motor Accidents Compensation Act 1999; whole person impairment (WPI) dispute; the claimant was involved in a motor vehicle accident on 17 September 2016; claimant was the driver and sole occupant of a 2015 Mercedes Benz Coupe; he was wearing a seatbelt; the insured vehicle failed to stop at the intersection; Fire Brigade and Police Officers attended; claimant did not lose consciousness; pre-existing lumbar problems since 2001 motor accident; claimant asymptomatic in lumbar spine at time of subject motor accident; claimant undergoes lumbar interbody fusion surgery and laminectomy five years post-accident; Medical Assessor (MA) Bodel certifies that surgery is causally-related to the subject accident, necessary and reasonable; Medical Review Panel (Panel) forms same opinion on causation; Panel accepts that accident caused aggravation of degenerative disease in lumbar spine eventually leading to surgery; foot-drop; Panel includes assessment of surgical scarring by consent; Panel revokes MA Truskett’s certificate (15% WPI) and issues a new certificate (16% WPI) arising from injuries caused by subject accident.
Decision date: 21 November 2024 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Christopher Oates | Injury module: Spine, Upper Limb, and Digestive System
Insurance Australia Limited t/as NRMA Insurance v Cha [2024] NSWPICMP 783
Motor Accident Injuries Act 2017; claims for statutory benefits and damages; disputes about threshold injury and whole person impairment (WPI); Medical Assessor Woo determined claimant’s lumbar spine injury (annular tear and disc protrusion at L4/5) was a non-threshold injury and that the degree of the claimant’s WPI was 16%; insurer’s application for review; in addition to lumbar spine injury, claimant alleged injuries to his neck and shoulders; matter complicated by a work accident one year earlier in which the claimant fractured his leg; claimant did not see a GP for either his work accident or motor accident until after the motor accident; insurer relied on biomechanical evidence about forces involved in the motor accident; claimant attended re-examination and demonstrated inconsistencies; GP’s notes record back complaints due to both accidents and inconsistencies regarding status of leg symptoms; Panel satisfied claimant sustained a neck injury which was a soft tissue threshold injury; Panel satisfied the claimant sustained a right shoulder injury which was a threshold injury; Panel not satisfied the claimant injured his left shoulder; Panel satisfied claimant had a lower back injury which was a soft tissue injury and that the L5/S1 disc injury and possible radiculopathy was not caused by the motor accident; Held – claimant’s injuries were threshold injuries (David v Allianz and Allianz v Susak applied) and his WPI was 0%.
Decision date: 21 November 2024 | Panel Members: Member Belinda Cassidy, Dr Mohammed Assem, and Dr Les Barnsley | Injury module: Spine and Upper Limb
Wassef v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 784
Motor Accident Injuries Act 2017; review of medical assessment; intestine; post-gastric sleeve; intestinal motility disorder; whole person impairment; statutory provisions/guidelines; pre-accident history; weight increase caused by sedentary lifestyle; gastric sleeve surgery; requirement for weight loss; sequalae of surgery; digestive system tract; Held – Medical Assessment Certificate revoked.
Decision date: 21 November 2024 | Panel Members: Member Hugh Macken, Dr John Carter, and Dr Christopher Oates | Injury module: Digestive System
Kamereddine v QBE Insurance (Australia) Limited [2024] NSWPICMP 790
Motor Accident Injuries Act 2017; claimant’s application for assessment of treatment dispute and insurer’s application for WPI assessment; both assessments undertaken by Medical Assessor Cameron; claimant’s two applications for Review under section 7.26; claimant sustained multiple injuries in t-bone collision between his van and the side of a minibus; contemporaneous notes recorded injuries to the rib (fracture) and soft tissue injuries and abrasions to the neck, right hand, left ankle, thoracic spine and right shoulder; claimant complained about two months later of right hip and right knee pain; issue of causation and method of impairment assessment; claimant re-examined and conceded most of his injuries had recovered including the injury to his shoulder; claimant’s main complaints were of right hip pain and right knee pain; Panel was satisfied that the mechanism of the accident could have and did give rise to injuries in all the listed parts of his body including the hip; claimant’s WPI assessed at 3% as most of his injuries had recovered and resulted in no assessable impairment; right shoulder had minor impairment which Panel found was resulting from the accident and right hip impairment assessed at 2%; treatment considered reasonable and necessary and related to the injuries; Held – certificates revoked; no issue of principle.
Decision date: 25 November 2024 | Panel Members: Member Belinda Cassidy, and Dr Michael Couch, and Dr Drew Dixon | Injury module: Spine, Upper Limb, and Lower Limb
Workers Compensation Medical Appeal Panel Decisions
Pateman v Secretary, Department of Education [2024] NSWPICMP 776
Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor (MA) correctly assessed the appellant’s impairment relating to her sacroiliac joint; whether MA erred by not assuming in accordance with section 323(2) that the deduction to be made under section 323(1) for the proportion of the appellant’s permanent impairment that is due to a per-existing condition is 10%; whether MA erred by not adequately explaining the deduction he made; Held – MA made no error; Medical Assessment Certificate confirmed.
Decision date: 20 November 2024 | Panel Members: Member Marshal Douglas, Dr Roger Pillemer, and Dr Gregory McGroder | Body system: Lumbar Spine
Paea v JB Hi-Fi Group Pty Ltd [2024] NSWPICMP 777
Workplace Injury Management and Workers Compensation Act 1998; medical appeal; assessment of psychiatric injury; allegation of breach of procedural fairness; no deduction made by either independent medical examiner; whether Medical Assessor (MA) provided adequate reasons; whether MA adequately engaged with the evidence provided; Held – Medical Appeal Panel not satisfied any ground of appeal made out; Medical Assessment Certificate confirmed.
Decision date: 20 November 2024 | Panel Members: Member Parnel McAdam, Dr Michael Hong, and Dr John Lam-Po-Tang | Body system: Psychological/Psychiatric
Enright v Secretary, Department of Education [2024] NSWPICMP 778
Personal Injury Commission Act 2020; the appellant submits that the Medical Assessor (MA) erred in his assessments under three categories of the psychiatric impairment rating scale (PIRS), namely social and recreational activities, travel, and employability; in addition, the appellant submits that the MA acted without jurisdiction in regard to the category of employability in reliance on the provisions of section 56; reliance on section 56 misguided; the MA is not a party to the proceedings; Held – no error by the MA in all categories appealed; the assessment was consistent with all the evidence; Medical Assessment Certificate confirmed.
Decision date: 20 November 2024 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Mortezagholi v Hymix Australia Pty Ltd [2024] NSWPICMP 779
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by not assessing the appellant’s impairment from an agreed consequential condition of the appellant’s left knee; Held – MA erred by not assessing the appellant’s impairment relating to the appellant’s left knee; appellant re-examined; Medical Assessment Certificate revoked.
Decision date: 20 November 2024 | Panel Members: Member Marshal Douglas, Dr John Brian Stephenson, and Dr Tommasino Mastroianni | Body system: Right Lower Extremity and Left Lower Extremity
UGL Ltd v William Wood [2024] NSWPICMP 785
Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor (MA) erred in failing to consider physical functional limitations in assessing the respective psychiatric impairment rating scale (PIRS) categories, and erred in his assessments under five categories of the PIRS, namely self-care and personal hygiene, social and recreational activities, travel, concentration, persistence and pace, and employability; worker had a primary psychological condition and a secondary one related to his physical injuries; Held – MA had conflated symptoms and signs from both; re-examination took place; Medical Assessment Certificate revoked.
Decision date: 21 November 2024 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Seccombe v GRT Refrigerated Transport Pty Ltd [2024] NSWPICMP 786
Workplace Injury Management and Workers Compensation Act 1998; matter referred to Medical Assessor (MA) for assessment of right upper extremity and scarring; no dispute worker had a right brachial plexus injury; MA failed to assess brachial plexus injury; worker re-examined; assessment made by the Medical Appeal Panel for axillary neuropathy; Held – Medical Assessment Certificate revoked.
Decision date: 21 November 2024 | Panel Members: Member Carolyn Rimmer, Dr Drew Dixon, and Dr Tommasino Mastroianni | Body system: Right Upper Extremity
Neal v Impact Care Solutions Ltd [2024] NSWPICMP 787
Workplace Injury Management and Workers Compensation Act 1998; the appellant essentially submitted the Medical Assessor (MA) erred in his assessment in the psychiatric impairment rating scale (PIRS) category of social functioning and did not provide reasoning for disagreement with the assessments of the independent medical examiners (IMEs) in the PIRS category of social functioning; erred in his assessment in the PIRS category of concentration, persistence and pace; erred in his assessment in the PIRS category of employability and did not provide reasoning for disagreement with IMEs’ assessment in the PIRS category of employability; Medical Appeal Panel (Panel) accepts the MA was in error in his assessment in the PIRS category of employability in that the Panel is of the view the evidence supports assessment of moderate impairment and a rating of Class 3; Held – Medical Assessment Certificate revoked.
Decision date: 22 November 2024 | Panel Members: Member Jacqueline Snell, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Johnston v Secretary, Department of Education [2024] NSWPICMP 788
Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor (MA) erred in his whole person impairment (WPI) assessment of two of the categories of the psychiatric impairment rating scale (PIRS), namely self-care and personal hygiene, and concentration, persistence and pace; no error as regards to self-care and personal hygiene; error found in concentration, persistence and pace; the MA relied on the NuCOG test he performed; the MA has used this cognitive function test in a non-standard way; he extracted part of the test for assessment of attention; this test is brief and requires the subject's attention for only a minute or two; attention is a subset of concentration persistence, and pace, but this limited test provides insufficient information to use in determining the overall outcome; Held – Medical Assessment Certificate revoked.
Decision date: 22 November 2024 | Panel Members: Member Deborah Moore, Dr Douglas Andrews, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Programmed Skilled Workforce Ltd v Farrar [2024] NSWPICMP 789
Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred because no deduction was made for any previous injury or pre-existing abnormality or condition; the MA did not set out in the statement of reasons or the Medical Assessment Certificate (MAC), the actual ranges of motion that were measured by him and he did not adequately explain the modification of the findings to arrive at the impairment of 11% for the right upper extremity, and failed to apply clause 1.36 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed, 1 March 2021 to modify the findings on examination of the cervical spine in the face of observed inconsistencies; the Medical Appeal Panel agreed with some of the appellant’s submissions; re-examination; Held – MAC revoked.
Decision date: 22 November 2024 | Panel Members: Member Deborah Moore, Dr Drew Dixon, and Dr Mark Burns | Body system: Cervical Spine and Right Upper Extremity
BLS v BizPay Group Ltd [2024] NSWPICMP 791
Workplace Injury Management and Workers Compensation Act 1998; appeal in relation to the Medical Assessor’s (MA’s) assessments relating to the psychiatric impairment rating scale (PIRS) categories; Held – Medical Appeal Panel confirmed the Medical Assessment Certificate and could find no error in the assessment of the MA; appeal regarded the application of section 323 was also rejected.
Decision date: 25 November 2024 | Panel Members: Senior Member Elizabeth Beilby, Dr Michael Hong, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Blacktown City Council v Hurley [2024] NSWPICMP 792
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor’s (MA) ratings of respondent’s impairment for social and recreational activities and for concentration, persistence and pace accorded with the evidence and were correct; whether MA erred by not making a deduction under section 323(1); Held – MA’s ratings were correct and respondent did have a pre-existing condition, so section 323(1) could not be engaged; Medical Assessment Certificate confirmed.
Decision date: 25 November 2024 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Cassidy v BUPA Aged Care Australia Pty Ltd [2024] NSWPICMP 793
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessment Certificate (MAC) contained demonstrable error as the Medical Assessor (MA) failed to assess TEMSKI/scarring on the appellant’s right and left elbows; whether the MA’s assessment was on the basis of incorrect criteria as the MA ought to have assessed the appellant “by way of analogy” in accordance with paragraph 1.23 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed, 1 March 2021; Medical Appeal Panel accepted the MA erred in failing to assess TEMSKI/scarring on the appellant’s right and left elbow and the method he adopted in assessing the permanent impairment sustained by the appellant resulting from her bilateral upper extremity injury; Held – MAC revoked.
Decision date: 25 November 2024 | Panel Members: Member Jacqueline Snell, Dr James Bodel, and Dr Drew Dixon | Body system: Right Upper Extremity, Left Upper Extremity, and Scarring
Racker v State of NSW (NSW Police Force) [2024] NSWPICMP 794
Workplace Injury Management and Workers Compensation Act 1998; appeal against 9% whole person impairment assessment for psychologically injured police officer; whether statements post-Medical Assessment Certificate (MAC) by claimant and wife should be admitted; whether Medical Assessor erred in failing to acknowledge effect of activities and social functioning on claimant’s post-traumatic stress disorder; Held – application to admit fresh evidence rejected; SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed, 1 March 2021 not concerned with motivation for a claimant’s ability to perform social and recreational activity or his/her level of social functioning; substantive submissions did no more than repeat that motivation and reaction to being able to carry out social activities and functions in absence of fresh evidence; MAC confirmed.
Decision date: 25 November 2024 | Panel Members: Member John Wynyard, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decision
Kumar v Allianz Australia Insurance Limited [2024] NSWPICMR 73
Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under Division 3.3; meaning of pre-accident weekly earnings (PAWE): Schedule 1, clause 4; Schedule 1, clauses 4(2)(b), 4(2)(c) and 4(3); significant change in earning circumstances; arrangement to commence self-employment; expected earnings; earnings received after the day of the accident for work performed before the accident; Didi Vehicle Advertising Program, rideshare, Uber; GST in rideshare earnings; business expenses; motor vehicle expenses; rental income; meaning of earnings; clause 3(3)(b); Held – the reviewable decision is set aside.
Decision date: 26 November 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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