Legal Bulletin No. 143

Issued 12 January 2024

Welcome to the one hundred and forty third edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.

Presidential Member Decisions

H. J. Heinz Company Australia Limited v Tagudin [2023] NSWPICPD 82

Workers compensation; psychological injury; section 11A of the Workers Compensation Act 1987;whether action taken by an employer is reasonable with respect to performance appraisal and discipline; Department of Education and Training v Sinclair and Mani v Secretary, Department of Education considered; Held – order 2 is amended to accurately reflect the findings; Certificate of Determination dated 1 March 2023 is otherwise confirmed.

Decision date: 15 December 2023 | Before: President Judge Phillips

Cumberland City Council v Davis [2023] NSWPICPD 83

Workers compensation; Leave to appeal an interlocutory decision pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; Mohareb v State of New South Wales applied; whether error in the exercise of discretion; House v King; Held – leave to appeal the interlocutory decision is granted; order 1 of the Senior Member’s Direction dated 21 September 2023 is confirmed; order 2 of the Direction dated 21 September 2023 is revoked; The matter is remitted to the President.

Decision date: 21 December 2023 | Before: Deputy President Elizabeth Wood

Workers Compensation non-Presidential Member Decisions

Ron Bateman Pty Ltd v Wilson & Ors [2023] NSWPIC 674

Death claim; determination of dependency, apportionment, and payment of death benefit, interest and management fee; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors discussed and applied; Held – death benefit and agreed interest apportioned and orders for payment.

Decision date: 14 December 2023 | Principal Member: Glenn Capel

Williams v Dendy Cinemas Newtown [2023] NSWPIC 675

Workers Compensation Act 1987; the applicant received a negative reaction to a public post which he made on Facebook; the negative reaction included public Facebook posts that were viewed by co-workers; those making negative comments included a current manager employed by the respondent and a former employee of the respondent; the Facebook posts were not related to the applicant’s employment with the respondent; the applicant was at home when the posts were made and not in the course of his employment; the applicant sustained injury whilst at home and prior to attending his schedule work shift with the respondent; the applicant alleged that he sustained psychological due to his anxiety and concern as to the impact of his Facebook post and the response he received to the post on his work relationships and work environment as well as his ability to perform his work duties as a manager; issues included sections 4 ‘arising out of or in the course of employment’; section 9A ‘substantial contributing factor’; Smith v Australian Woollen Mills, Tarry v Warringah Shire Council, South Maitland Railways Pty Ltd v James, Craske v Wigan, Qantas Airways Ltd v Watson, Nunan v Cockatoo Island Docks & Engineering Co Ltd, Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited, Zinc Corporation Ltd and another v Scarce, Dayton v Coles Supermarkets Pty Ltd, McMahon v Lagana, Rootsey v Tiger Nominees Pty Ltd,and Mercer v ANZ Banking Corporation considered and applied; Held – applicant’s psychological injury did not arise out of or in the course of his employment as required by section 4; applicant has not sustained an “injury” as defined by section 4; applicant’s employment with the respondent was not a substantial contributing factor to his psychological injury as required by section 9A.

Decision date: 14 December 2023 | Member: John Turner

Jones v Svitzer Australia Pty Ltd [2023] NSWPIC 677

Workers Compensation Act 1987; psychological injury not disputed; dispute under section 11A as to whole predominant cause of injury and also as to whether action taken by employer was reasonable; respondent bears onus of proof; employers action in relation to two separate incidents found to be the predominant cause on the expert medical evidence; employers actions reasonable in respect of one incident but not the other; the applicant not precluded from the recovery of compensation because of the provisions of section 11A; Held – award for the applicant.

Decision date: 18 December 2023 | Member: Jane Peacock

Neemia v Busways Penrith Pty Ltd [2023] NSWPIC 678

Workers Compensation Act 1987; application for lump sum permanent impairment compensation pursuant to section 66; applicant had accepted injury to his cervical spine and right shoulder, sustained on 26 October 2021; whether the applicant sustained a consequential condition of the left shoulder as a result of the accepted injury to his cervical spine and right shoulder; Held – the applicant sustained a consequential condition of his left shoulder as a result of the accepted injury to his cervical spine and right shoulder, sustained on 26 October 2021; matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.

Decision date: 18 December 2023 | Member: Karen Garner

Meyers v Ampol Retail Pty Ltd [2023] NSWPIC 680

Workers Compensation Act 1987; claim for costs of right trigger finger surgical decompression; applicant claimed to have sustained “disease injury” pursuant to section 4(b)(i) as a result of employment as a barista; respondent disputed that the applicant had sustained injury; respondent did not dispute that the proposed medical treatment was reasonably necessary; consideration of AV v AW; applicant sustained “disease injury” pursuant to section 4(b)(i); Held – award for applicant pursuant to section 60 for the costs of proposed surgery.

Decision date: 19 December 2023 | Senior Member: Kerry Haddock

Watson v P & MJ Cox Pty Ltd [2023] NSWPIC 681

Lumbar spine injury; injury disputed; evidence weighed in the balance and satisfied on balance of probabilities that injury occurred; Held – award for the applicant.

Decision date: 19 December 2023 | Member: Jane Peacock

Secretary (Department of Communities and Justice) v Davies & Ors [2023] NSWPIC 683

Workplace Injury Management and Workers Compensation Act 1998; claim for interest on lump sum death benefit pursuant to section 109; consideration of Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways, Bennett v Jones, Beves v Patrick Stevedores No 2 Pty Ltd & Anor, McGrath v P.M,and Electric Pty Limited; claim was not duly made until statement of first respondent containing evidence of dependency served with Reply on 23 October 2023; Held – interest awarded at a rate that was 2% above the Reserve Bank Cash Rate, that is 6.1% per annum, from 23 October 2023 to 6 November 2023, when order for payment of lump sum death benefit was made.

Decision date: 19 December 2023 | Senior Member: Kerry Haddock

Bullen v Secretary Department of Planning and Environment [2023] NSWPIC 684

Workers Compensation Act 1987; respondent’s application for reconsideration of Certificate of Determination (COD); basis of application was that the COD for payment of section 66 lump sum compensation failed to take into account payments of section 66 benefits for a prior settlement pursuant to a complying agreement (entered into prior to 19 June 2012); applicant and his attorney aware of the terms of the prior settlement; Held – on the substantial merits of the application and the requirement to do justice to the parties the application for reconsideration should be allowed.

Decision date: 20 December 2023 | Member: Michael Moore

Kapp v St Josephs Village Limited [2023] NSWPIC 685

The applicant suffered a psychological injury in 2013; in 2015 the applicant was assessed at 6% by a Medical Assessor; an appeal to an Appeal Panel as successful increasing the impairment to 7%; in 2019 the applicant filed a further appeal relying on further deterioration; in May 2022 the applicant requested the Appeal Panel to reconsider its decision pursuant to the former section 378 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) as saved by the transitional provisions; the delegate rejected that application; consent orders were made in the Supreme Court quashing the decision of the delegate finding that the applicant section 378 as saved by reason of the applicant’s prior application; the respondent objected to the matter proceeding to the Appeal Panel for reconsideration as it asserted there as a gatekeeper role and that the Certificate of Determination (COD) entered following the Appeal Panel decision prevented the matter from proceeding; the applicant did not request that the COD be rescinded pursuant to section 350 of the Workers Compensation Act 1987 (1987 Act); Held – an application for reconsideration under section 378 of the 1998 Act did not require a gatekeeper role; no basis for reading words into the 1998 Act (Taylor v The Owners-Strata Plan No 11564 applied) nor any judicial basis for creating such a power; observations in Sleiman v Gadalla Pty Ltd did not support the respondent’s argument; section 350(1) of the 1987 Act provided that the COD was final and binding; COD based upon MAP; discussion of Martinovic v Workers Compensation Commission of New South Wales; reconsideration application cannot proceed until COD set aside; application to refer to an Appeal Panel refused as no application made to set aside the COD.

Decision date: 20 December 2023 | Principal Member: John Harris

Purnell v State of NSW (NSW Police Force) [2023] NSWPIC 686

Workers Compensation Act 1987; claim for various items to assist the applicant; applicant had accepted injuries to the cervical spine and both wrists; whether a Thermomix machine was reasonably necessary treatment; whether the Thermomix is “curative apparatus” within the meaning of section 59; Held – finding that the Thermomix is “curative apparatus” in the circumstances of this case; therapeutic benefits; finding that it is reasonably necessary treatment; the respondent to pay the costs of the Thermomix.

Decision date: 20 December 2023 | Member: Jill Toohey

Khan v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 687

Notices for Production served by applicant on first respondent and first respondent’s solicitors; objection to Notices for Production; failure to serve Notice of Objection in accordance with Personal Injury Commission Rules 2021; directions made for service of Notice of Objection and Notice of Opposition; first respondent provided “interim replies” and failed to “reply formally” after extension of time sought was granted; first respondent made email submissions and attached further documents after the expiry of the extended time limit; neither the email nor the documents was taken into account; Held – Notice for Production on first respondent’s solicitors wholly set aside; Notice for Production on first respondent set aside in part; first respondent to produce report of investigation commissioned by iCare, if report held, and subject to any claim of privilege.

Decision date: 21 December 2023 | Senior Member: Kerry Haddock

Bullock v Kincare Health Services Pty Ltd [2023] NSWPIC 688

Request for reconsideration by the respondent employer of Certificate of Determination containing an award of weekly benefits in favour of the applicant worker, on the ground that there was an error in the pre-injury average weekly earnings (PIAWE) used by the Member to calculate the award; the error arose as a result of an incorrect assurance given by the respondent at the arbitration hearing that the PIAWE pleaded in the Application to Resolve a Dispute was correct when, according to the respondent, it was subsequently ascertained not to be correct; this error was acknowledged by the respondent’s solicitor; consideration of section 57 of the Personal Injury Act 2020, the former section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 and the observations of Roche ADP in Samuel v Sebel Furniture Pty Ltd as to the power of reconsideration; consideration also of Ceccato v Australian Steel Mill Services Pty Ltd (No 2) and Fairfield City Council v McCall (No2); review of the Samuel observations as they applied to the facts of the case; consideration of Atomic Steel Constructions v Tedeschi, Sorcevski v Steggles Pty Ltd, and Steggles Pty Ltd v Sorcevski; Held – request for reconsideration refused.

Decision date: 21 December 2023 | Member: Brett Batchelor

Styles v ISS Property Services Pty Ltd [2023] NSWPIC 690

Workers Compensation Act 1987; claim for compensation pursuant to section 60 for L1-2 decompression and interbody fusion surgery and weekly compensation pursuant to section 38; accepted injury to the lumbar spine but the nature of the injury disputed; radiological reports revealed minimal pathology; whether no current work capacity; Held – the surgery proposed is reasonably necessary as a result of injury; the applicant has had no current work capacity as a result of the injury; awards in favour of the applicant.

Decision date: 22 December 2023 | Member: Rachel Homan

Motor Accidents Medical Review Panel Decisions

Warke v Allianz Australia Insurance Limited [2023] NSWPICMP 666

Claimant was injured when his motorcycle collided with a car turning in front of him; He received injuries to his shoulders, chest, face and throat; sometime after the accident he also claimed for treatment and care for a bilateral open carpal tunnel release surgery; on review, the Panel found a total whole person impairment of 13% for both shoulders; as a result of the accident the claimant suffered a full thickness rotator cuff tear in the left shoulder; MRI scans of the left shoulder showed the presence of an acute and chronic rotator cuff tear with a pre-existing retracted tear; regarding the right shoulder the right rotator cuff tear was asymptomatic prior to the motor vehicle accident but then became symptomatic a few weeks after the accident partly due to being aggravated by single arm use during the period of incapacity of the left shoulder; the Panel also found that the bilateral open carpal tunnel release surgery did not relate to the injury caused by the motor accident and was not reasonable and necessary; the soft tissue injury to his brachial plexus had resolved; Held – original medical certificate set aside regarding permanent impairment; original medical certificate affirmed regarding carpal tunnel surgery.

Decision date: 8 December 2023 | Panel Members: Member Ray Plibersek, Dr Geoff Stubbs, and Dr Margret Gibson | Injury module: Spine, Upper and Lower Limb; Treatment Type: Surgery

Miscera v QBE Insurance (Australia) Limited [2023] NSWPICMP 668

The claimant sustained injury in a rear end collision on 14 August 2015; injuries referred for assessment were the cervical spine, lumbar spine, and scarring; whether L2-5 laminectomy and rhizolysis surgery was reasonable and necessary in the circumstances and whether it relates to the injury; whether lumbar fusion surgery was reasonable and necessary in the circumstances and whether it relates to the injury resulting from the accident; Held – surgery reasonable and necessary in the circumstances but not related to the injury caused by the accident but arose by reason of the pre-existing spinal stenosis and L5 anterolisthesis on S1; claimant sustained an exacerbation of the pre-existing spinal stenosis which now resolved; no permanent impairment of the lumbar spine related to the accident; scarring not related to the injury caused by the accident; claimant had 15% whole person impairment (WPI) due to the pre-accident C3-7 decompression surgery; accident caused exacerbation of the pre-existing cervical spinal stenosis which now resolved; certificate of Assessor Dixon revoked; injuries caused by accident give rise to 0% WPI.

Decision date: 11 December 2023 | Panel Members: Member Susan McTegg, Dr Shane Moloney, and Dr Geoffrey Stubbs | Injury module: Spine, Skin - Scarring; Treatment Type: Surgery

Faridy v Allianz Australia Insurance Limited [2023] NSWPICMP 670

Review of certificate of Medical Assessor (MA) Castle-Burton; The claimant sustained injury to the neck and right shoulder on 8 June 2018; MA Home certified fortnightly cleaning services related to injury caused by accident and referred dispute for assessment by an occupational therapist; MA Castle-Burton certified fortnightly domestic assistance from 18 July 2020 to 20 December 2021 and from 21 December 2021 and ongoing was not reasonable and necessary in the circumstances; Held – claimant has range of movement restrictions of right shoulder; no evidence of any significant change in condition; strenuous activities and those above shoulder height likely to aggravate right shoulder pain and possibly neck; certificate MA Castle-Burton revoked; domestic assistance for three hours per fortnight from 18 July 2020 to 20 December 2020 and from 21 December 2021 and ongoing for the future reasonable and necessary in the circumstances.

Decision date: 12 December 2023 | Panel Members: Member Susan McTegg, Dr Dawn Piebenga, and Dr Lauren Alach | Injury module: Treatment Type: Domestic Assistance - Reasonable and Necessary

Insurance Australia Limited t/as NRMA Insurance v Yaghi [2023] NSWPICMP 672

Motor Accidents Compensation Act 1999; insurer’s review under section 63; Medical Assessor (MA) Herald had determined claimant had whole person impairment (WPI) of greater than 10% in a second further assessment; claimant said he injured his neck, lower back, left shoulder and left knee in the accident on 14 April 2014; claimant had previous shoulder symptoms and previous radiology; claimant had two previous car accidents and a subsequent accident; other incidents in the past and after the accident; significant issue of reliability of the claimant’s evidence; insurer had film which suggested the claimant had a greater range of motion and was back at work as a plumber; claimant had reported to doctors he had not been working and had not disclosed previous injuries; Held – claimant’s evidence unreliable; Panel accepted the claimant injured his neck but no current impairment; Panel accepted claimant injured his back and due to presence of dysmetria had a WPI of 5% (consistent with other examiners); Panel satisfied claimant injured his left knee but that there was no current impairment; Panel satisfied claimant injured his left shoulder in the accident but that range of motion not an appropriate method of assessment and assessed 2% WPI by analogy; Certificate of MA revoked and claimant certified as having a WPI of not greater than 10%.

Decision date: 13 December 2023 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon, and Dr Mohammed Assem | Injury module: Spine, Upper and Lower Limb

Saad v QBE Insurance (Australia) Limited [2023] NSWPICMP 673

The claimant suffered injury in a motor vehicle accident on 13 January 2021; Medical Assessor (MA) Woo certified injury to cervical spine, lumbar spine, left and right shoulder, right knee, right leg and right foot were soft tissue injuries; therefore, threshold injuries; MRI of the lumbar spine and MRI of the left shoulder caused by injury but not reasonable and necessary in the circumstances and not likely to improve recovery of claimant; dispute as to causation of left shoulder; whether two or more signs of radiculopathy made by medical practitioner or other suitably qualified person as per David v Allianz Australia Insurance Limited; Held – causation left shoulder established; physiotherapist meets definition of other suitably qualified person; Panel not satisfied physiotherapist had established muscle weakness or sensory loss anatomically located to an appropriate spinal nerve root distribution; Panel not satisfied reference to radicular complaints sufficient to show radiculopathy for the purposes of the Motor Accident Injuries Act 2017;Panel finds claimant sustained soft tissue injuries; Panel affirms certificate of MA Woo as to threshold injury; Panel affirms certificate of MA Woo in relation to treatment dispute.

Decision date: 13 December 2023 | Panel Members: Member Susan McTegg, Dr Shane Moloney, and Dr Drew Dixon | Injury module: Spine, Upper and Lower Limb; Treatment Type: Radiological Investigations

Hulks v Allianz Australia Insurance Limited [2023] NSWPICMP 675

Review of determination of injuries as threshold and non-threshold; assessment by Medical Assessor (MA) certifying that two injuries, both soft-tissue, were threshold injuries; Held – revocation of determination by MA that a left shoulder rotator-cuff tear was a non-threshold injury, for the reason that the Panel certified that the left shoulder rotator-cuff tear was not caused by the accident and that any incidental injury to the left shoulder was a threshold injury; section 5D Civil Liability Act 2002 considered; Peet v NRMA Insurance Limited applied; Wallace v Kam followed.

Decision date: 15 December 2023 | Panel Members: Member Terence Stern OAM, Dr Alan Home, and Dr Michael Couch | Injury module: Upper and Lower Limb

Lam v CIC Allianz Insurance Limited [2023] NSWPICMP 678

Review of certificate and reasons of Medical Assessor (MA) Jones on application by the claimant; the MA found that the claimant had an adjustment disorder with depressed mood and mixed anxiety and a whole person impairment (WPI) of 7%; claimant injured in an accident on 31 March 2017 and her car was written off for insurance purposes; claimant suffered psychiatric disabilities causing her to reduce working hours and suffered anxiety when driving; arguments between medicolegal experts regarding the correct application of Psychiatric Impairment Rating Scale classifications; claimant’s medico legal expert assessed WPI at 15%; claimant suffered ongoing pain and physical disability as a result of the accident; Panel MA’s examined the claimant and found that she suffered from anxiety and depressive symptoms; Panel concluded that the claimant had an adjustment disorder with a period of driving phobia which was partially remitted; claimant assessed as having a WPI of 7%; Held – certificate of MA Jones affirmed.

Decision date: 18 December 2023 | Panel Members: Member Alexander Bolton, Dr Glen Smith, and Dr Michael Hong | Injury module: Mental and Behavioural

Tran v Allianz Australia Insurance Limited [2023] NSWPICMP 680

Review of certificate of Medical Assessor (MA) Cameron dated 7 March 2023 by claimant for determination of threshold injuries concerning claimant’s cervical spine, closed head injury, chondral impact injury to right knee and chondral impact injury to left knee; the MA had found all injuries to be threshold injuries; claimant raised issue that a right posterior proximal tibial osteochondroma was caused by the accident but this was not accepted by the Panel as it was a coincidental constitutional condition and mechanism of accident could not have caused the condition; no evidence of radiculopathy to cervical spine; Panel determined that the claimant had suffered threshold injuries; Held – that the claimant had suffered threshold injuries to her cervical spine, head, right knee and leg, left knee and leg and certificate of MA Cameron affirmed.

Decision date: 19 December 2023 | Panel Members: Member Alexander Bolton, Dr Christopher Oates, and Dr Margaret Gibson | Injury module: Spine, Brain Injury and Lower Limb

Allianz Australia Insurance Limited v Anjoul [2023] NSWPICMP 681

Claimant involved in a T-bone motor accident on 17 May 2017; issue of psychiatric injury and extent of permanent impairment; claimant had prior anxiety and depression and physical issues; finding made that motor accident caused post-traumatic stress disorder and cannabis use disorder; assessment of psychiatric condition following examination by both Medical Assessors; Held – medical assessment revoked; finding made that impairment not greater than 10%.

Decision date: 19 December 2023 | Panel Members: Principal Member John Harris, Dr Matthew Jones, and Dr John Baker | Injury module: Mental and Behavioural

Jankovic v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 682

Claimant was a front seat passenger in a vehicle involved in a rear-end collision; claimant alleged the traffic was slow and the speed was about 30 to 40 km/h when the vehicle was hit from behind; no airbags in the vehicle; claimant alleged a posterior annular tear and left C6 nerve root impingement at C5/6 to the cervical spine; a rotator cuff tendinosis of the left shoulder; left paracentral and paraforaminal disc protrusion; right shoulder subscapularis supraspinatus and infrasupraspinatus tendinosis and subacromial bursitis; posterior annulus tear to the thoracic spine and disc protrusion with compression at C6/7; Medical Assessor (MA) determined that combined whole person impairment (WPI) was 0%; referral to Review Panel; Panel determined that taking all the objective evidence, the claimant had sustained WPI of 5%; Held – certificate of MA revoked and replaced by Certificate of Determination of WPI at 5%.

Decision date: 19 December 2023 | Panel Members: Member Terence Stern OAM, Dr Drew Dixon, and Dr Neil Berry | Injury module: Spine and Upper Limb

AAI Limited t/as GIO v Eid [2023] NSWPICMP 683

Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 5 December 2017; Medical Assessor (MA) Samuell found major depressive disorder caused by the accident was not a threshold injury; insurer sought review; Held – claimant satisfied DSM-5 criteria for post-traumatic stress disorder and major depressive disorder caused by the accident; certificate of MA Samuell affirmed.

Decision date: 19 December 2023 | Panel Members: Member Susan McTegg, Dr John Baker, and Dr Matthew Jones | Injury module: Mental and Behavioural

Kallus-Lawson v Allianz Australia Insurance Limited [2023] NSWPICMP 684

Motor Accidents Compensation Act 1999; claimant’s application for review under section 63; assessment by Medical Assessor (MA) Cameron of 3% whole person impairment (WPI) combined with 4% assessment by MA Curtin led to a finding of WPI not greater than 10%; no challenge to MA Curtin’s assessment; claimant injured in accident on 23 May 2016; she was turning into a driveway when hit from behind by a truck at speed; claimant trapped in vehicle for over an hour and sustained multiple lower limb fractures and a head injury; insurer submitted no evidence of brain damage and claimant’s psychologist’s report records test results that suggested claimant was malingering, but psychologist never provided a final report; Panel requested report from a joint neuropsychologist to complete the testing; Panel also requested updated reports from treating surgeon regarding knee and ankle injuries; Held – parties obtained report from Dr Batchelor; Panel satisfied claimant did hit her head and satisfied requirements of clause 1.164 of the Guidelines; Panel not satisfied there was an assessable impairment of mental status and integrative functioning under clauses 1.166, 1.667 and Table 10; Panel also found no impairment of emotional or behavioural impairments in accordance with clause 1.170; Panel’s assessment of lower limb impairments considered primarily range of motion and table 64 of the Guides and sequelae from various fractures assessed WPI at 9%; when combined with MA Curtin’s 4% this resulted in a WPI of 13%; certificate of MA Cameron revoked.

Decision date: 19 December 2023 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr Tai-Tak Wan | Injury module: Nervous System (Neurological) and Lower Limb

Abdo v QBE Insurance (Australia) Limited [2023] NSWPICMP 694

Whether injuries to the claimant’s cervical spine, thoracic spine, lumbar spine and right knee were threshold injuries; decision reviewed of Medical Assessor (MA) Truskett dated 22 February 2022; accident on 11 March 2021 when a thief stole the claimants car whilst parked in a driveway and the claimant gave chase suffering injury when struck by the car and falling to the ground on the gutter and striking his front side, back and head on the gutter; MA Truskett found that the claimant’s injuries to his cervical spine, thoracic spine, lumbar spine and right knee were all threshold injuries; claimant applied for review of decision; claimant was admitted to hospital and discharged the same day; multiple scans and investigations undertaken; claimant complaining of ongoing and persistent pain pre-accident when the claimant had multiple scans and treatment for the right side of his neck, both knees and lumbar spine; pre-accident the claimant had a disc prolapse at the C5/6 and C6/7 levels, the disc prolapse at the L2/3 level and a disc prolapse at the T9/T10 and T12/L1 levels as well as a right knee fracture claimant said radiculopathy identified by his GP but the Panel not satisfied about the method of assessment/identification on examination; the Panel was not satisfied about any evident radiculopathy; Held – claimant’s injuries to his cervical spine, thoracic spine, lumbar spine and right knee were causally related to the accident and were all threshold injuries

Decision date: 21 December 2023 | Panel Members: Member Alexander Bolton, Dr Tai-Tak Wan, and Dr Margaret Gibson | Injury module: Spine and Lower Limb

QBE Insurance (Australia) Limited v Mackay [2023] NSWPICMP 695

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Roberts who determined that the claimant had a whole person impairment (WPI) of greater than 10%, that is, 18% WPI and also determined a treatment dispute; review sought by insurer under section 7.26; claimant suffered a psychological injury in a motor accident on 6 June 2019; consideration and application of clauses 6.201 to 6.228 of the Motor Accident Guidelines in respect of mental and behavioural disorders; Held – The Panel revoked the certificate issued by MA Roberts dated 13 June 2022; The Panel certified that claimant sustained a persistent depressive disorder with anxious distress and an excoriation (skin picking) disorder caused by the motor accident on 6 June 2019 that give rise to a WPI which is not greater than 10%, that is, 6%; the Panel certified that the 10 weekly psychological counselling sessions proposed in the allied health recovery request by the claimant’s psychologist dated 8 August 2020, relate to the injuries caused by the motor accident on 6 June 2019, are reasonable and necessary in the circumstances, and will improve the claimant’s recovery.

Decision date: 21 December 2023 | Panel Members: Member Anthony Scarcella, Dr Thomas Newlyn, and Dr Gerald Chew | Injury module: Mental and Behavioural

O'Doherty v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 698  

Review of certificate of Medical Assessor (MA) Harrington dated 21 April 2023 with a finding of 9% whole person impairment (WPI) for injuries to the cervical spine, lumbar spine and right foot; claimant injured when struck by a car when riding his moped scooter on 25 August 2019; due to injuries to his foot, claimant unable to continue working; issue of whether pars defect caused by accident but Panel found this was congenital and in any event, the claimant’s lumbar spine was a DRE I assessment; claimant’s activities due to injury to foot significantly curtailed; Held – certificate of MA Harrington revoked with claimant having an 11% WPI.

Decision date: 22 December 2023 | Panel Members: Member Alexander Bolton, Dr Thomas Rosenthal, and Dr Drew Dixon | Injury module: Spine and Lower Limb

Workers Compensation Delegate Decision

Colquhoun v Trustees of the Roman Catholic Church for the Diocese of Bathurst [2023] NSWPIC 679

Workers Compensation Act 1987; the worker sustained a workplace injury to her left ankle when while working at St John’s Primary School; the insurer determined that the worker had current work capacity and that the role of a tutor would be suitable employment; the insurer made a work capacity decision about the worker’s entitlement to weekly payments of compensation on the basis that the worker could earn $45 per hour as a tutor; the worker maintained that she had no current work capacity; Held – the role of tutor was not suitable employment for the worker; the worker is entitled to payments of weekly compensation under section 37(1) which outlines the entitlement to weekly payments for a worker with no current work capacity.

Decision date: 18 December 2023 | Delegate: Rachel Brittliff

Workers Compensation Medical Appeal Panel Decisions

Broderick v Swan Hardware & Staff Pty Ltd [2023] NSWPICMP 677

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in the deduction he made pursuant to section 323; the Panel agreed; Held – Medical Assessment Certificate revoked.

Decision date: 15 December 2023 | Panel Members: Member Deborah Moore, Dr Neil Berry, and Dr Chris Oates | Body system: Left and Right Lower Extremity, Right Upper Extremity and Scarring

Labour Master Pty Ltd v Giovenale [2023] NSWPICMP 685

Workplace Injury Management and Workers Compensation Act 1998; bricklayer suffered a serious shoulder injury when he fell from scaffolding and was trapped in a pile of bricks; Medical Assessor (MA) assessed impairment of the axillary nerve as part of upper extremity impairment; injury likely to have impacted on axillary nerve and open to MA to assess impairment when found; section 323 deduction for significant, pre-existing rotator cuff tears; worker had undertaken heavy work until the injury; no alternative conclusion in employer’s evidence; Vitaz v Westform (NSW) Pty Ltd applied; Held – Medical Assessment Certificate confirmed.

Decision date: 19 December 2023 | Panel Members: Member Catherine McDonald, Dr James Bodel, and Dr John Brian Stephenson | Body system: Left and Right Upper Extremity

Australian Bale Press Company Pty Ltd v Bird (Formerly Richardson) [2023] NSWPICMP 686

Appeal from decision of Medical Assessor (MA); MA included in his assessment a determination in relation to the worker’s right medial nerve in circumstances where the referral called, inter alia, for assessment of the right radial nerve; the Panel determined it was unnecessary for the worker to be reassessed and found the Medical Assessment Certificate (MAC) contained a demonstrable error on its face in that it assessed the incorrect body system despite the MA having examined and made findings with regards to the radial nerve; the Panel therefore reassessed the applicant’s whole person impairment (WPI) using the findings on examination of the MA; Held – MAC dated 17 March 2023 is therefore set aside and the certificate of the Panel substituted, with the applicant found to have suffered a 30% WPI.

Decision date: 19 December 2023 | Panel Members: Member Cameron Burge, Dr Drew Dixon, and Dr John Brian Stephenson | Body system: Left and Right Upper Extremity

Ribucan v NRG Cleaners Pty Ltd [2023] NSWPICMP 689

Assessment of permanent impairment; appellant suffered from a psychological injury; Medical Assessor (MA) made a deduction under section 323(1) of one-third for proportion of appellant’s permanent impairment he found was due to a pre-existing psychological condition that he considered had relapsed due to physical injuries the appellant suffered shortly before her psychological injury; whether MA erred by doing so; Appeal Panel found Medical Assessor did not err; Held – Medical Assessment Certificate upheld.

Decision date: 20 December 2023 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Green v WB & WH Green Pty Ltd [2023] NSWPICMP 691

Workplace Injury Management and Workers Compensation Act 1998; impairment assessment under the Table of Disabilities of the right leg at or above the knee and left leg at or above the knee; appellant alleged error by the Medical Assessor in making a deduction under section 323 of one-half in respect of the pre-existing condition of the right knee due to a sporting injury and subsequent surgery; the Appeal Panel could discern no error; Held – Medical Assessment Certificate confirmed.

Decision date: 20 December 2023 | Panel Members: Member Jane Peacock, Dr James Bodel, and Dr David Crocker | Body system: Left and Right Lower Extremity

Blacktown City Council v Lelov [2023] NSWPICMP 692

Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment of respondent from psychological injury; whether Medical Assessor made an error with respect to deduction under section 323(1) and with his ratings of respondent’s impairment in several Psychiatric Impairment Rating Scale (PIRS) categories; Appeal Panel held Medical Assessor did not make an error with deduction he made under section 323(1) and with his ratings under PIRS; Held – Medical Assessment Certificate upheld.

Decision date: 20 December 2023 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Secretary, Department of Education v Preston [2023] NSWPICMP 693

Medical Assessor (MA) assessed 17% whole person impairment (WPI) for psychological injury in amended Medical Assessment Certificate (MAC); respondent appealed on basis MA conducted an assessment in which he continued to state this was an indicative assessment only despite certifying that maximum medical improvement (MMI) has been reached, incorrectly assigning class 4 for social functioning and making a deduction of one tenth for pre-existing condition which was not correct having regard to the evidence; Panel accepted applicant was at MMI; Panel agreed that MA erred in assessing social functioning as class 4 and reassessed as class 3; Panel agreed with the one-tenth deduction for pre-existing condition after reviewing the evidence; Held – MAC revoked.

Decision date: 20 December 2023 | Panel Members: Member Carolyn Rimmer, Dr Graham Blom, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Lara v Toll Group Ltd [2023] NSWPICMP 696

The appellant submitted that the Medical Assessor erred in finding that the appellant had not reached maximum medical improvement (MMI); the Panel agreed; re-examination confirmed MMI and a whole person impairment assessment was made; Held – Medical Assessment Certificate revoked.

Decision date: 21 December 2023 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr Graham Blom | Body system: Psychological/Psychiatric

Serco Australia Pty Ltd v Cadman [2023] NSWPICMP 697

Workplace Injury Management and Workers Compensation Act 1998; availability of additional relevant information; Medical Assessor made an assessment of severe impairment for employability under the Psychiatric Impairment Rating Scale; SIRA Certificate of Capacity issued 11 days after assessment and before Medical Assessment Certificate (MAC) certified the worker as having capacity to engage in pre-injury duties; Appeal Panel satisfied that the ground of appeal in section 327(3)(b) made out; re-examination conducted; Held – MAC revoked.

Decision date: 21 December 2023 | Panel Members: Member Rachel Homan, Dr Graham Blom, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Kerney v Ross Hill Wine Group Pty Ltd [2023] NSWPICMP 699

Appeal from assessment of whole person impairment (psychological); whether the assessor erred in assessing the Psychiatric Impairment Rating Scale, social and recreational activities, travel, and social functioning; Held – Medical Assessment Certificate confirmed.

Decision date: 22 December 2023 | Panel Members: Member Richard J Perrignon, Dr Graham Blom, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

State of New South Wales (Northern NSW Local Health District) v Procter [2023] NSWPICMP 700

Medical Assessor (MA) assessed 15% whole person impairment of the left Upper Extremity (shoulder) and 17% of the thoracic spine following an injury on 22 February 2017; Panel determined that the MA erred in assessing the thoracic spine as DRE III because the findings on examination did not satisfy the criteria in Table 15-4 of AMA5 for category III; MA failed to provide adequate reasons for the assessment of the shoulder; worker re-examined by Panel member; Held – Medical Assessment Certificate revoked.

Decision date: 22 December 2023 | Panel Members: Member Carolyn Rimmer, Dr Gregory McGroder, and Dr Roger Pillemer | Body system: Spine and Left Upper Extremity

Tomago Aluminium Company Pty Ltd v Chapman [2023] NSWPICMP 701

Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) assessed permanent impairment of the respondent from several injuries the respondent suffered to his knees; whether, with respect to two of those injuries, the deduction the MA made under section 323(1) for proportion of respondent’s permanent impairment that was due to a previous injury or pre-existing condition was wrong or was based on incorrect criteria; Appeal Panel held that the deduction made with respect to one injury involved error; Held – Medical Assessment Certificate revoked.

Decision date: 22 December 2023 | Panel Members: Member Marshal Douglas, Dr James Bodel, and Dr Chris Oates | Body system: Scarring, Left and Right Lower Extremity

Motor Accidents Merit Review Decisions

Michael v QBE Insurance (Australia) Limited [2023] NSWPICMR 61

Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3 of; meaning of earner; schedule 1, clause 2; meaning of pre accident weekly earnings; schedule 1, clause 4; duty to co-operate; section 6.24; sufficient evidence to determine the validity of the claim; insufficient evidence; onus of proof; Held – the reviewable decision is affirmed.

Decision date: 14 December 2023 | Merit Reviewer: Katherine Ruschen

Zhao v AAI Limited t/as GIO [2023] NSWPICMR 62

Dispute about whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (as applied by section 3.39 (limitation on statutory benefits in relation to certain mental harm)) of the Motor Accident Injuries Act 2017; whether it is foreseeable that a person of normal fortitude, in the circumstance of the case, might suffer a recognised psychiatric illness if reasonable care were not taken by the at fault driver; section 32 of the Civil Liability Act 2002; whether the claimant suffered a recognised psychiatric illness; section 31 of the Civil Liability Act 2002; whether the injury is the result of the motor accident; Held – the reviewable decision is affirmed.

Decision date: 22 December 2023 | 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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