Legal Bulletin No. 150

Issued 1 March 2024

Welcome to the one hundred and fiftieth 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

State of New South Wales (NSW Police Force) v Plant [2024] NSWPICPD 11

Workers compensation; section 11A of the Workers Compensation Act 1987; reasonableness of actions of employer with respect to discipline/transfer; onus of proof; absence of statement evidence and policies before the Commission determining whether actions of the employer were reasonable; costs; Held – the Member’s Certificate of Determination is confirmed.

Decision date: 19 February 2024 | Before: Acting Deputy President Geoffrey Parker SC

Transdev NSW South Pty Ltd v Twining [2024] NSWPICPD 12

Workers compensation; injury; whether Member proceeded on erroneous basis there were conceded consequential conditions; referral of lumbar spine to a Medical Assessor to assess whole person impairment where independent medical examiners assess 0% whole person impairment; Shankar v Ceva Logistics (Australia) Pty Limited discussed and applied; Skates v Hills Industries Limited discussed; Held – the Member’s Certificate of Determination dated 21 December 2022 is confirmed.

Decision date: 19 February 2024 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

Allianz Australia Insurance Limited v Hakim [2024] NSWPIC 65

Dispute about whether a claim for legal professional privilege can be made for documents produced in answer to a Direction for Production addressed to the claimant’s accountants; should the Commission apply the evidentiary rules about legal professional privilege; section 43 of the Personal Injury Commission Act 2020 provides that the Commission is not bound by the rules of evidence and may inform itself as it thinks appropriate; Held – the Commission is not bound by the rules of evidence but can use those rules as a guide; in proceedings before the Commission legal professional privilege is available to prevent the disclosure of confidential documents if it can be established that the advice was prepared for the dominant purpose of the lawyer providing legal advice to a claimant; the claimant may decline to answer questions or to supply documents to the Commission if the subject matter relates to communications with a legal adviser which were made for the dominant purpose of obtaining or giving legal advice or for the dominant purpose of current or reasonably anticipated legal proceedings; section 118 of the Evidence Act 1995 which provides that evidence disclosing legal advice is not to be adduced in the circumstances specified applied; seven out of the eight documents for which privilege was claimed are prevented from disclosure by the claim for legal professional privilege and are not to be shared or produced to the insurer.

Decision date: 16 January 2024 | Member: Ray Plibersek

Elliott v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 58

Motor Accident Injuries Act 2017; miscellaneous claim dispute as to whether the claimant is wholly or mostly at fault for motor accident under sections 3.11 and 3.28; accident occurred when insured vehicle turning right into the path of the claimant; claim for “exceptional” costs pursuant to section 8.10(4)(b); Held – insurer failed to discharge onus; insured failed to keep a proper lookout by not checking for vehicles travelling behind before performing turn; claimant mostly at fault; exceptional costs awarded.

Decision date: 13 February 2024 | Member: Elizabeth Medland

Nasrolahzadeh v Allianz Australia Insurance Limited [2024] NSWPIC 67

Motor Accident Injuries Act 2017; miscellaneous claims dispute under sections 3.11 and 3.28; claimant the driver of a vehicle that involved in two consecutive motor accidents; after initial collision in lane 3 of the M4 Motorway, the claimant merged into lane 2 which resulted in a rear end collision with her vehicle; insured vehicle a semi-trailer; determination as to whether claimant mostly at fault; dashcam footage from insured truck considered; expert analysis of braking times considered; Held – claimant mostly at fault; costs awarded in the amount of $1,500 plus GST.

Decision date: 20 February 2024 | Member: Elizabeth Medland

AAI Limited t/as GIO v Higgins [2024] NSWPIC 73

Settlement approval; damages approved; non-economic loss; pre-existing conditions; allowance for economic loss; pre-existing learning difficulties; assumptions about future earning capacity; most likely future employment circumstances but for the injury; likelihood of earning capacity being reduced consequent on the motor accident; pre-accident capacity to enjoy social, domestic and recreational activities; Held – settlement approved.

Decision date: 21 February 2024 | Member: Hugh Macken

Edwards v Allianz Australia Insurance Limited [2024] NSWPIC 74

Statutory benefits dispute about expenses incurred to replace clothing destroyed during the course of treatment provided following a motor accident; where insurer declined to reimburse expenses as they were not “treatment and care” as defined in the Motor Accident Injuries Act 2017; where insurer contended that the dispute was a medical assessment matter falling within schedule 2 clause 2; Held – the dispute did not fall within schedule 2 clause 1, schedule 2 clause 2 or schedule 2 clause 3(a)-(m); the dispute fell within the terms of schedule 2 clause 3(n) and was a miscellaneous assessment matter not a medical assessment matter (nor a merit review matter); the expenses claimed did not fall within the definition of “treatment and care” and were not recoverable under division 3.4; there are no provisions in part 3 that provide for the recovery of the expenses; there is no equivalent provision in the MAI Act to section 75 of the Workers Compensation Act 1987; the insurer is not liable for the claimed expenses.

Decision date: 21 February 2024 | Senior Member: Brett Williams

Workers Compensation non-Presidential Member Decisions

Sunarya v Hunter Valley Buses [2024] NSWPIC 66

Workers Compensation Act 1987; claim for the cost of surgery in the form of a total right knee replacement as a result of a motor vehicle accident in which the applicant bus driver injured his right knee when his bus was involved in a head on collision with another vehicle; liability for injury to the right knee was conceded by the respondent, which put in issue the type of injury, such as to give rise to the claimed reasonable necessity for the right knee surgery; the respondent submitted that the applicant suffered a bone bruise injury only which should have resolved within a period of months following the accident, and the necessity for surgery was occasioned by a meniscal tear caused by a pre-existing degenerative condition in the knee; the applicant framed his case relying on injury in accordance with section 4(b)(ii) aggravation, acceleration, exacerbation or deterioration of an admitted pre-existing, but asymptomatic, degenerative condition in the knee; the respondent’s medical expert did not address the issue above referred to, but rather focussed on causation of a meniscal tear in the knee, claimed by the respondent to have been caused by the pre-existing condition; that was the reason for the surgery sought by the applicant worker, not the injury suffered in the motor vehicle accident; Held – applicant suffered aggravation, acceleration, exacerbation or deterioration of an admitted pre-existing degenerative condition in the knee, as a result of the motor vehicle accident in which he was involved; finding that the total knee replacement surgery was reasonably necessary as a result of the motor vehicle accident; determination accordingly; respondent ordered to pay for the costs of and incidental to the surgery pursuant to section 60.

Decision date: 15 February 2024 | Member: Brett Batchelor

Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPIC 68

Workers Compensation Act 1987; claim by worker for permanent impairment compensation pursuant to section 66 alleging injury to both shoulders; employer accepts liability in respect of left shoulder but disputes that worker suffered injury or a consequential medical condition of the right shoulder; Coote v Kelly and Kooragang Cement Pty Limited v Bates considered; relevance of absence of contemporaneous complaint when injury occurred many years before claim; finding that worker had not established either injury to or a consequential medical condition the right shoulder; Held –quantum of impairment of right shoulder referred to a Medical Assessor.

Decision date: 20 February 2024 | Member: Paul Sweeney

O'Brien v Rosabella Pty Ltd [2024] NSWPIC 69

Workers Compensation Act 1987; claim for weekly benefits and medical evidence in relation to alleged thoracic and lumbar spine injury; respondent denies injury and alleges workplace incident did not take place, and if it did, that there was no ongoing incapacity for employment as claimed; Held – the applicant suffered an injury as alleged in the course of his employment; his version of events being supported by the statement evidence of two independent lay witnesses whose veracity was not challenged; the effects of the applicant’s injury are ongoing; the applicant has suffered total incapacity form 26 April 2023 to date and continuing; respondent ordered to pay the applicant weekly compensation and section 60 expenses.

Decision date: 20 February 2024 | Member: Cameron Burge

Hill v Kmart Australia Limited [2024] NSWPIC 71

Workers Compensation Act 1987; claim for the cost of surgery to the lumbar spine by the applicant worker pursuant to section 60 as a result of injury in the form of the aggravation, acceleration, exacerbation or deterioration of an admitted pre-existing degenerative condition in the lumbar spine; there was no issue that the applicant had engaged in strenuous and repetitive work for the respondent over the long period of her employment; the respondent denied injury, alleging that the applicant became incapacitated for work as a result of a leisure time incident while on annual leave; detailed examination of the treating and qualified medical evidence; finding that the leisure time incident was not causative of the applicant’s back condition; finding that the applicant had suffered an injury to the lumbar spine pursuant to section 4(b)(ii); the respondent did not dispute that the applicant required the lumbar spinal surgery, but that it was not reasonably necessary as a result of a work injury; finding that the surgery was reasonably necessary as a result of the injury as claimed by the applicant; Held – the respondent ordered to pay for the costs of and incidental to the surgery.

Decision date: 20 February 2024 | Member: Brett Batchelor

Barnett v Ingenia Communities Holdings Ltd [2024] NSWPIC 72

Workplace Injury Management and Workers Compensation Act 1998; the applicant suffered psychological injury in 2015; assessed by Medical Assessor in 2016 as having 8% permanent impairment; appeal to an Appeal Panel was dismissed; application to Appeal Panel to reconsider its decision pursuant to section 378; section 378 repealed on 1 March 2021; discussion of unexercised rights in schedule 1 cl ause14D of the Personal Injury Commission Act 2020; Dimos v Gordian Runoff Pty Ltd discussed and applied; applicant’s evidence prior to the establishment day (1 March 2021) analysed; findings made that applicant established prima facie deterioration of assessable impairment under Psychiatric Impairment Rating Scale categories of social and recreational activities and social functioning deterioration; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales applied; finding of class 3 for social functioning would significantly increase assessable impairment; applicant did not satisfy onus of proof as at the establishment day that impairment was permanent; both treating psychiatrist and psychologist recommended in February 2021 that the applicant be hospitalised and otherwise undergo further counselling; likely inference is that treatment would be somewhat successful; applicant did not satisfy onus of proof that impairment was permanent; Held – application to have Appeal Panel reconsider Medical Assessment Certificate refused.

Decision date: 20 February 2024 | Principal Member: John Harris

Sinclair v State of New South Wales (Fire & Rescue NSW) [2024] NSWPIC 75

Workers Compensation Act 1987; claim by firefighter that six years exposure to duties caused him to develop prostate cancer; whether prima facie case made out; whether employment a substantial contributing factor; whether inability to enrol section 19A was relevant; Held – respondent submissions regarding prima facie case misguided; BGV v Waverly Council considered; Watts v Rake and Purkess v Critenden considered and followed; substantial contributing factor established; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited considered and applied; respondent’s reliance on section 19A rejected as each case to be determined on its merits; award for the applicant.

Decision date: 21 February 2024 | Member: John Wynyard

Herring v Secretary, Department of Education [2024] NSWPIC 76

The applicant sought a finding that she had suffered a psychological injury arising out of or in the course of her employment connected to the imposition of the covid mandated vaccinations by the respondent; Held – finding that the applicant did not suffer an injury.

Decision date: 21 February 2024 | Member: Lea Drake

Motor Accidents Medical Review Panel Decisions

Kokuru v QBE Insurance (Australia) Limited [2024] NSWPICMP 50

Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; replacement certificate under section 7.23(1); PTSD not a threshold injury; reasonable cause to suspect medical assessment incorrect in a material respect; new assessment of all matters; mental state examination; DSM-5-TR Diagnostic criteria for PTSD; past psychiatric history; claimant has no current treatment; Held – replacement certificate issued.

Decision date: 30 January 2024 | Panel Members: Member Hugh Macken, Dr Gerald Chew and Dr John Baker| Injury module: Mental and Behavioural

QBE Insurance (Australia) Limited v Smith [2024] NSWPICMP 88

Motor Accident Injuries Act 2017; the claimant suffered injury on 31 October 2019; the medical dispute related to whether the claimant sustained non threshold physical injuries; a previous Medical Assessor found that the claimant suffered a non-threshold psychological injury; that medical assessment was not the subject of review and accepted by the insurer; insurer submitted questions of the nature of the cervical spine injury and the relationship to surgery for the purposes of the non-economic loss entitlement; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; present review application restricted to threshold dispute which was no longer in issue; any response by the Panel to the questions are not conclusive on the medical assessment matter pertaining to the entitlement to receive non-economic damages; the claimant’s entitlement to non-economic loss damages is a separately defined medical assessment matter; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis and Pham v Shui applied; considering the provisions of the MAI Act, particularly sub-sections 7.23(1) and (2)(b), any medical assessment certificate is only conclusive evidence of what is certified; Held – the application to review the medical assessment dismissed as frivolous and/or vexatious.

Decision date: 30 January 2024 | Principal Member: John Harris | Injury module: Threshold Injury

QBE Insurance (Australia) Limited v Chilukuri [2024] NSWPICMP 70

Review of certificate of Medical Assessor (MA) Shahzad dated 30 June 2022; at issue was whether treatment was reasonable and necessary; claimant injured in head on collision on 7 March 2019; claimant injured right cervical radiculopathy with right C5/6 nerve root impingement, fracture of right 1st rib, acute right parasternal costochondritis, right shoulder impingement syndrome including subacromial bursitis and right elbow acute medial epicondylitis, right supraclavicular fossa swelling; the MA found that exercise physiology treatment which was requested was reasonable and necessary in the circumstances; the insurer had previously provided significant exercise physiology treatment however the claimant apparently did not benefit from this treatment; the insurer subsequently undertook extensive surveillance observations of the claimant who was seen to perform activities inconsistent with his stated level of performance; the claimant subsequently withdrew his application but the insurer insisted on the Review Panel proceeding with its assessment; the Review Panel concluded that the overview of the video surveillance was that the claimant did not appear disabled at his work which contradicted the need for further treatment to his shoulder such as exercise physiology; the Review Panel was not satisfied that the recommended care and treatment was reasonable and necessary in the circumstances nor that the treatment or care recommended will improve the claimant’s recovery; Held – certificate of MA Shahzad revoked.

Decision date: 12 February 2024 | Panel Members: Member Alexander Bolton, Dr Margaret Gibson, and Dr Drew Dixon | Injury module: Treatment Type: Other

Deeb v Allianz Australia Insurance Limited [2024] NSWPICMP 71

Review of decision of Medical Assessor (MA) Home dated 20 March 2023; claimant involved in motor vehicle accident on 17 February 2019 with a rear end collision and suffering amongst other things a whiplash type injury and also injuries to her jaw were claimed; Review Panel considered whole person impairment (WPI) of the claimant’s physical injuries and whether claims for various treatment are reasonable and necessary; claimant had already been assessed by MA Nichols with respect to her temporomandibular injuries who found that such injuries were not causally related to the accident; claimant was separately assessed by MA Curtin with respect to her claim for treatment and by MA Moloney with respect to her WPI of physical injuries; claimant did not complain of symptoms of teeth grinding and pain in her jaw until 15 months post-accident when she thereafter sought treatment; Review Panel considered that the relationship between whiplash injuries and TMJ disorders/facial pain was controversial and not resolved in medical studies; Review Panel satisfied that splint therapy and Botox injections are reasonable and necessary but not as a result of any injury caused by the accident; claimant’s WPI assessed at 4% for each shoulder; Held – certificate of MA Home affirmed.

Decision date: 13 February 2024 | Panel Members: Member Alexander Bolton, Dr Shane Moloney, and Dr Paul Curtin | Injury module: Spine, Upper and Lower Limb; Treatment Type: Other

Ousback v QBE Insurance (Australia) Limited [2024] NSWPICMP 72

Motor Accident Injuries Act 2017; Certificate of Determination; whole person impairment (WPI); certificate issued under section 7.23(1); cervical spine injury; C4/5 disc prolapse with left C5 radiculopathy; claimant review of determination applying 50% deduction to the injury; failure to determine WPI arising from claimant’s pre-existing injury as a percentage; no objective evidence in the period leading up to subject accident that there are any ongoing symptoms sufficient for the neck injury; 2011 accident to be rateable more than DRE category 1; criteria for radiculopathy; Held – Panel revoked certificate of Medical Assessor Rapaport; new certificate issued.

Decision date: 13 February 2024 | Panel Members: Member Hugh Macken, Dr Margaret Gibson, and Dr Geoffrey Stubbs | Injury module: Spine

Insurance Australia Limited t/as NRMA Insurance v Witt [2024] NSWPICMP 73

Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) and review under section 58(1)(d); claimant injured in two motor vehicle accidents of July and August 2016;  issue of causation; Medical Review Panel re-examination conducted; Held – Panel confirmed the diagnosis of MA; claimant sustained soft tissue injury to the cervical, thoracic and lumbar spine with disc disruption at L4/5 and L5/S2 assessed as DRE IV; MA’s determination affirmed; Panel confirmed 20% WPI.

Decision date: 13 February 2024 | Panel Members: Member Terence Stern OAM, Dr Mohammed Assem, and Dr Drew Dixon | Injury module: Spine, Upper Limb and Skin - Scarring

Elia v Allianz Australia Insurance Limited [2024] NSWPICMP 74

Medical assessment threshold injury; adjustment disorder with depressed mood; medical assessment incorrect in the material respect; statutory provision of Motor Accident Injuries Act 2017; Held – no convincing evidence of pre-existing disorder; no evidence of prior psychological or pharmacological treatment; certificate confirmed.

Decision date: 14 February 2024 | Panel Members: Member Hugh Macken, Dr Gerald Chew, and Dr Wayne Mason | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Syed v Secretary, Department of Communities and Justice [2024] NSWPICMP 75

Appeal from assessment under the Table of Disabilities of permanent impairment of the neck and back, and loss of efficient use of the left arm at or above the elbows, as a result of a motor vehicle accident in 2001; whether Medical Assessor (MA) erred in finding that the back and left arm were not injured; whether he erred by failing to take into account deterioration of the condition of the neck since injury in 2001; appeal from assessment of whole person impairment (lower gastro-intestinal tract, cervical spine) as a result of injury due to the nature and conditions of employment; whether MA erred in taking into account the effects of diarrhoea; whether he erred in deducting one half for the effects of pre-existing degeneration of the cervical spine; Held – Medical Assessment Certificate revoked.

Decision date: 15 February 2024 | Panel Members: Member R J Perrignon, Dr John Garvey, and Dr John Brian Stephenson | Body system: Spine and Lower Gastrointestinal Tract

Zaia v NSW Health (Western Sydney LHD) [2024] NSWPICMP 76

Workplace Injury Management and Workers Compensation Act 1998; whether psychiatric condition appellant suffered in 2013 was a pre-existing condition or part of the injury that was referred to the Medical Assessor (MA) to assess; whether MA erred by making a deduction under section 323(1); whether MA applied incorrect criteria with respect to his assessment of appellant’s impairment in social functioning; Appeal Panel held that MA applied correct criteria when assessing appellant’s impairment in social functioning but erred by making a deduction under section 323(1); Held – Medical Assessment Certificate revoked.

Decision date: 16 February 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr John Baker | Body system: Psychological/Psychiatric

Corrigan v Secretary, Department of Customer Service [2024] NSWPICMP 77

Claim for primary psychiatric injury; subsequent development of psychotic disorder; matter referred for assessment; worker appealed assessments in the Psychiatric Impairment Rating Scale categories of employability, concentration, persistence and pace and travel; Medical Assessor erred in assessment of employability and concentration, persistence and pace; Held – Medical Assessment Certificate revoked.

Decision date: 19 February 2024 | Panel Members: Member Carolyn Rimmer, Dr John Baker, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Le v Tran Hue Lieu t/as Vina Foods Distributor [2024] NSWPICMP 78

Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) made one quarter section 323 deduction for previous injury; ample evidence of impact of that injury; section 323(2) did not apply and deduction was open to MA; error in combining figures to assess upper extremity impairment; assessment of scars under the TEMSKI; no basis to assess impairment from alleged carpal tunnel syndrome in light of normal nerve conduction studies; Held – Medical Assessment Certificate revoked.

Decision date: 19 February 2024 | Panel Members: Member Catherine McDonald, Dr Drew Dixon, and Dr Andrew Porteous | Body system: Left and Right Upper Extremity, Scarring (TEMSKI)

Eid v Thoreb Australia Pty Ltd [2024] NSWPICMP 79

Appeal in respect of the impairment assessment for cervical spine; Medical Assessor found radiculopathy criteria not met; error alleged due to inadequacy of examination findings; Appeal Panel found error and considered a re-examination was necessary; Held – Medical Assessment Certificate revoked.

Decision date: 20 February 2024 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson, and Dr Alan Home | Body system: Spine

Atkin v Ampol Retail Pty Ltd [2024] NSWPICMP 80

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appeal regarding 2 classes of Psychiatric Impairment Rating Scale only; Ferguson v State of New South Wales and Parker v Select Civil Pty Ltd considered; social and recreational activities; Ballas v Department of Education (State of NSW) considered; social functioning; Held – Medical Assessment Certificate confirmed.

Decision date: 20 February 2024 | Panel Members: Member Catherine McDonald, Dr Michael Hong, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Penfold v Caravan & RV Central Pty Ltd [2024] NSWPICMP 81

Appeal in respect of the impairment assessment for scarring; assessment on the basis of incorrect criteria alleged; Appeal Panel satisfied as to error; re-examination was considered necessary by a Medical Assessor Member of the Appeal Panel; Held – Medical Assessment Certificate revoked.

Decision date: 20 February 2024 | Panel Members: Member Jane Peacock, Dr Michael McGlynn, and Dr Mark Burns | Body system: Left Upper Extremity and The Skin

MKD Transcorp Pty Ltd v Risteski [2024] NSWPICMP 82

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) did not consider relevant evidence attached to appellant’s reply and thereby denied appellant procedural fairness; whether MA wrongly correlated respondent’s symptoms and signs relating to his cervical spine with DRE II; whether MA wrongly assessed respondent’s ADLs as 2% WPI; whether MA erred by not making deduction under section 323(1); Held – Appeal Panel found MA erred by not making deduction under section 323(1) but found no other error in Medical Assessment Certificate (MAC); MAC revoked.

Decision date: 20 February 2024 | Panel Members: Member Marshal Douglas, Dr Ross Mellick, and Dr Alan Home | Body system: Spine, Left Lower Extremity, and Left and Right Upper Extremity

Unisys Technical Services v Walke [2024] NSWPICMP 83

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment of pre-existing impairment; paragraph 11.10 of the Guidelines, Marks v Secretary, Department of Communities and Justice (No 2) considered; inapplicability of one-tenth deduction in light of history; re-examination; need for medical members of Panel to use judgement, knowledge and experience; Cole v Wenaline Pty Ltd considered; assessment under Psychiatric Impairment Rating Scale; Bojko v ICM Property Service Pty Ltd and Ferguson v State of New South Wales applied; Held – Medical Assessment Certificate revoked.

Decision date: 20 February 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Carrigan v GFG Alliance (Infrabuild Newcastle Pty Ltd) [2024] NSWPICMP 84

Whether Medical Assessor (MA) disclosed reasoning for applying restricted range of movement method for assessing impairment of appellant’s right lower extremity; whether another method ought to have been applied to assess impairment of appellant’s right lower extremity; whether MA included a rating under table 17-12 when assessing impairment of appellant’s right lower extremity; whether MA considered all relevant criteria when assessing impairment of appellant due to scarring; Appeal Panel found when Medical Assessment Certificate (MAC) read as a whole MA disclosed reasoning for using restricted range of movement method and this was the most appropriate method to use to assess impairment of appellant’s right lower extremity; Appeal Panel found MA included rating under table 17-12; Appeal Panel found MA considered all relevant criteria when assessing impairment of appellant due to scarring; Held – MAC confirmed.

Decision date: 21 February 2024 | Panel Members: Member Marshal Douglas, Dr John Brian Stephenson, and Dr Gregory McGroder | Body system: Right Lower Extremity and Scarring

Greco v Co.As.It Italian Association of Assistance [2024] NSWPICMP 85

Workplace Injury Management and Workers Compensation Act 1998; lumbar spine injury and assessment of activities of daily living in respect of personal care; section 323 deduction; Cole v Wenaline Pty Limited, Ryder v Sundance Bakehouse, and Vitaz v Westform (New South Wales) Pty Limited considered; Held – Medical Assessor’s deductions were excessive; Medical Assessment Certificate revoked.

Decision date: 21 February 2024 | Panel Members: Member Catherine McDonald, Dr James Bodel, and Dr Christopher Oates | Body system: Spine, Right Upper and Lower Extremity

This publication is for information only. The publication is not legal advice.  The information provided is not a substitute for reading the decisions. The Commission does not accept liability for the information in this publication or for way the information is used.

Subscribeto receive legal bulletins to your inbox.