Legal Bulletin No. 148

Issued 16 February 2024

Welcome to the one hundred and forty eighth 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.

District Court Decision

Chetty v Queanbeyan-Palerang Regional Council [2024] NSWDC 12

Constitutional law; federal jurisdiction; Workers Compensation Act 1987; statutory benefits; plaintiff worker resident of South Australia; defendant employer State of NSW; application under section 26 of the Personal Injury Commission Act 2020; whether Commission exercising judicial power when determining issue under section 4(b); Held - remit the plaintiff’s application, being Personal Injury Commission Matter No.W5842/23, for determination by the Commission; Summons otherwise dismissed; defendant to pay the plaintiff’s costs.

Decision date: 13 February 2024 | Before: Waugh SC DCJ

Presidential Member Decisions

Millennium Security Specialist Services Pty Ltd v Dimian [2024] NSWPICPD 5

Workers compensation; failure of transcript; Wyong Shire Council v Paterson considered; duty of lawyers, including solicitors, to take notes of proceedings; Dillon v Boland and Dillon v Cush applied; Held – the Certificate of Determination dated 24 October 2023 is revoked; the matter is remitted to the Workers Compensation Division of the Commission for rehearing by another member.

Decision date: 2 February 2024 | Before: President Judge Phillips

Iqbal v Hotel Operations Solutions Pty Ltd [2024] NSWPICPD 6

Workers compensation; section 32A of the Workers Compensation Act 1987 and clause 2 of Schedule 8 to the Workers Compensation Regulation 2016; worker with highest needs; worker assessed by a Medical Assessor as having 31% whole person impairment in a Medical Assessment Certificate dated 2 March 2022; whether the worker was entitled to payment of compensation at the rate applicable to a worker with highest needs prior to the assessment; Hochbaum v RSM Building Services Pty Ltd and Whitton v Technical and Further Education Commission t/as TAFE NSW distinguished; Meat Carter Pty Ltd v Melides considered and applied; Held – the Member’s Amended Certificate of Determination dated 27 February 2023 is confirmed.

Decision date: 5 February 2024 | Before: Deputy President Elizabeth Wood

Ready Workforce (a Division of Chandler Macleod) Pty Ltd v Andronicos [2024] NSWPICPD 7

Workers compensation; fresh evidence on appeal; section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; CHEP Australia Ltd v Strickland applied; journey provisions; section 10 of the Workers Compensation Act 1987; statutory construction; Second Reading Speech considered; Saeed v Minister for Immigration and Citizenship and Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue applied; Held – the Certificate of Determination dated 7 February 2023 is confirmed.

Decision date: 6 February 2024 | Before: President Judge Phillips

Burwood Council v Scott [2024] NSWPICPD 8

Workers compensation;  leave to appeal an interlocutory decision pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the scope of an appeal pursuant to section 352(5) of the 1998 Act; application of Raulston v Toll Pty Ltd; whether injury consists in the aggravation of a ‘disease’; application of Rail Services Australia v Dimovski; section 60 of the Workers Compensation Act 1987; application of Diab v NRMA Ltd; obligation to give reasons; Held – the Senior Member’s Certificate of Determination dated 24 February 2023 is confirmed; the matter is remitted to the Senior Member to deal with the outstanding issues regarding quantification of the worker’s weekly entitlement.

Decision date: 7 February 2024 | Before: Deputy President Michael Snell

Motor Accidents non-Presidential Member Decisions

Pout v Shipway [2024] NSWPIC 41

Motor Accident Injuries Act 2017; application for exemption under section 7.34(1)(b); claimant injured while driving an all-terrain vehicle (ATV) on private property; claim for damages made on owner of ATV (who also owned the property); claimant alleges modifications were made to ATV by the owner and that the accident was caused (at least in part) by the modifications; where court proceedings in relation to the accident were on foot; IAG Limited t/as NRMA Insurance v Khaled and Insurance Australia Limited t/as NRMA Insurance v Banos applied; Held – the claim involves complex issues relating to liability, contributory negligence and damages; a court hearing is more likely to result in the just, quick and cost effective resolution of the real issues in dispute between the parties when compared to an assessment by the Commission; given that court proceedings were on foot, there would be an unnecessary and undesirable duplication of work and costs if the claim were to proceed to assessment; claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation approved by Division Head.

Decision date: 16 January 2024 | Senior Member: Brett Williams

Attard v Insurance Australia Ltd t/as NRMA Insurance [2024] NSWPIC 44

Motor Accident Injuries Act 2017; miscellaneous claims dispute pursuant to schedule 2 clause (3)(d) & (e); dispute as to whether the claimant is wholly or mostly at fault under section 3.11 and 3.28; head on collision in Wilberforce; dispute as to onus of proof; whether the insured had travelled to the incorrect side of the road; unable to make findings of fact as to certain aspects of the collision; Held – claimant not wholly or mostly at fault; insurer bears onus; insurer had not discharged onus; exceptional costs claim made pursuant to section 8.10(4)(b); maximum regulated costs allowed.

Decision date: 7 February 2024 | Member: Elizabeth Medland

Workers Compensation non-Presidential Member Decisions

Carbone v Workers Compensation Nominal Insurer & Ors [2024] NSWPIC 42

Workers Compensation Act 1987; applicant fell 3 - 4 metres off a ladder whilst painting; whether applicant a worker; whether credit impugned by false account of injury to hospital; whether injury to back established; Held – contract oral; multifactorial indicia relevant; contemporaneous evidence demonstrated uninsured employer misled the Commission; injury to back established on facts;   UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare) and Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Service considered and applied; Fox v Percy applied; award applicant.

Decision date: 2 February 2024 | Member: John Wynyard

Honey v State of New South Wales (Fire & Rescue NSW) [2024] NSWPIC 43

Claim for lump sum compensation in respect of 11 separate physical injuries and deemed date of injury; minimal evidence relied upon by the parties; dispute regarding injuries to some body parts, but dispute resolved at a preliminary conference and claim remitted for referral to a Medical Assessor in respect of the deemed date of injury; separate proceedings filed in respect of a psychological injury; Consent Orders filed after Medical Assessment Certificate in respect of a different date of injury that had not been pleaded or assessed by the Medical Assessor, something that also occurred in the concurrent proceedings; notation that the respondent agreed to pay the applicant’s costs as agreed or assessed; applicant subsequently sought an uplift for complexity in accordance with Table 4 of Part 2 of Schedule 6 of the Workers Compensation Regulation2016; Lake v Hunter Institute of Technology – NSW TAFE considered and discussed; Held – submissions not persuasive; nothing intricate in the matter about the facts or the law; matter no more complex than many of the matters that come before the Commission; application for uplift declined.

Decision date: 6 February 2024 | Principal Member: Glenn Capel

Motor Accidents Medical Review Panel Decision

Apostolov v Allianz Insurance (Australia) Ltd [2024] NSWPICMP 47

Motor Accident Injuries Act 2017; claimant’s car was stopped at traffic lights when it hit from behind by a bus in a low speed accident; Held – original medical certificate revoked regarding permanent impairment; original medical certificate regarding proposed treatment and care of spinal surgery also revoked; on review, the Panel found that the injuries to the claimant’s head, cervical spine and lumbar spine are soft tissue injuries caused by the motor accident and are threshold injuries; the injuries to the left and right shoulders are soft tissue injuries not caused by the motor accident; causation of claimant’s injuries considered; the Panel should make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to claimant’s injury; the Panel also found that the L4/5 decompression surgery as proposed treatment and care does relate to the injury caused by the motor accident and is reasonable and necessary in the circumstances; cases on causation considered and applied Briggs v IAG Limited trading as NRMA Insurance (No. 2) and Briggs v IAG Limited trading as NRMA Insurance (No. 3).

Decision date: 2 February 2024 | Panel Members: Member Ray Plibersek, Dr Christopher Oates and Dr Drew Dixon| Injury module: Spine, Upper Limb and Head; Treatment Type: Surgery

Workers Compensation Medical Appeal Panel Decisions

David Jones Pty Ltd v Shalala [2024] NSWPICMP 43

Workplace Injury Management and Workers Compensation Act 1998; injury in 2010 to right shoulder and cervical and consequential condition in left shoulder; allowance for impact of cervical spine injury on activities of daily living (ADLs); evidence that cervical spine pain caused impact on ADLs separate to that caused by right shoulder injury; no section 323 deduction for asymptomatic cervical spondylosis; Held – Medical Assessment Certificate confirmed.

Decision date: 1 February 2024 | Panel Members: Member Catherine McDonald, Dr Gregory McGroder and Dr J Brian Stephenson | Body system: Cervical Spine, Left Upper Extremity and Right Upper Extremity

Ozcar Pty Ltd v Sater [2024] NSWPICMP 44

Claim for impairment of the skin; Medical Assessor erred in failing to take an accurate history of injury and pre-existing injury and conditions and take into account the General Practitioner’s clinical notes and reports of Professor Rajendra in considering the deduction to be made pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor did not err in not considering the separate diagnosis of livedo racemose and whether that condition had caused any impairment as this was not a material error; failure to adequately consider the criteria of Class 3, Table 8-2 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed; worker re-examined; Held – Medical Assessment Certificate revoked.

Decision date: 2 February 2024 | Panel Members: Member Carolyn Rimmer, Dr Malcolm Linsell and Dr Michael McGlynn | Body system: Skin

ETM Projects Pty Limited (In liquidation) v Gregorgiou [2024] NSWPICMP 45

Claim for primary psychiatric injury; matter referred for assessment noting that no regard was to be had to any impairment of symptoms resulting from secondary psychiatric injury; Medical Assessor erred in failing to adequately address secondary psychiatric condition; worker re-examined; Mercy Connect Limited v Kiely considered; Held – Medical Assessment Certificate revoked.

Decision date: 2 February 2024 | Panel Members: Member Carolyn Rimmer, Dr Michael Hong and Professor Nicholas Glozier| Body system: Psychological/Psychiatric

Middleton v Secretary, Department of Education [2024] NSWPICMP 46

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; pleaded as a frank incident of assault, not a deemed date; assessment under the Psychiatric Impairment Rating Scale; assessment for social and recreational activities glaringly improbable; Ferguson v State of New South Wales considered; section 323 deduction; Held – Medical Assessment Certificate revoked.

Decision date: 2 February 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrew and Professor Nicholas Glozier| Body system: Psychological/Psychiatric

Ratcliffe v NSW Ambulance Service [2024] NSWPICMP 48

Claim for primary psychiatric injury; Medical Assessor found that the worker was not at maximum medical improvement (MMI); Held – Panel satisfied that Medical Assessor failed to provide adequate reasons which was a demonstrable error; Panel reviewed the evidence and found that the worker was not at MMI; as the review did not lead to a different result, Medical Assessment Certificate confirmed.

Decision date: 5 February 2024 | Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier and Dr Michael Hong| Body system: Psychological/Psychiatric

Moody v State of New South Wales – Fire & Rescue NSW [2024] NSWPICMP 49

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under the Psychiatric Impairment Rating Scale; appeal with respect to social and recreational activities; use of desktop investigation report of activities on social media; need for assessment on the day; Held – Medical Assessment Certificate revoked.

Decision date: 6 February 2024 | Panel Members: Member Catherine McDonald, Dr Graham Blom and Professor Nicholas Glozier| Body system: Psychological/Psychiatric

Workers Compensation Delegate Decision

Leitze v Employers Mutual Limited [2024] NSWPIC 45

Workers Compensation Act 1987; the worker sustained a psychological injury while working as a disability support worker; the respondent determined that the worker could return to work for 18 hours per week as an aged and disability carer; the respondent did not provide sufficient evidence that there are roles in the labour market which are consistent with the worker’s incapacity; Held – the role of aged and disability carer was not suitable employment for the worker; the worker is entitled to payments of weekly compensation under section 37.

Decision date: 7 February 2024 | Delegate: Rachel Brittliff

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.

Subscribeto receive legal bulletins to your inbox.