Legal Bulletin No. 154

Issued 28 March 2024

Welcome to the one hundred and fifty fourth 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.

Court of Appeal Decision

AAI Limited trading as GIO v Amos [2024] NSWCA 65

Administrative law; procedural fairness; decision of medical review panel made pursuant to Motor Accident Injuries Act 2017 (NSW) regarding percentage whole body impairment suffered by claimant in motor accident; decision quashed at first instance based on a denial of procedural fairness to the claimant; whether primary judge erred in finding procedural fairness was denied; content of procedural fairness obligations owed by a medical review panel as compared to a court or tribunal; Held – appeal allowed; orders made by Rothman J on 6 October 2023 are set aside; the amended summons is dismissed.

Decision date: 26 March 2024 | Before: Kirk JA, Adamson JA, and Basten AJA

Workers Compensation non-Presidential Member Decisions

Ottaway v Two Men and a Truck Pty Ltd [2024] NSWPIC 127

Claim by worker for lump sum compensation for injury sustained in the course of employment; employer accepts liability for lumbar spine injury but denies upper limb injury; absence of contemporaneous report of upper limb symptoms in claim form or medical record; Coote v Kelly, Northam v Kelly and Azzopardi v Tasman UEB Industries considered; Held – worker has not established that he suffered an upper limb injury; award for respondent in relation to claims made impairment to the upper limbs.

Decision date: 14 March 2024 | Member: Diana Benk

Regency Realty Pty Ltd v Arzoumani [2024] NSWPIC 128

Workplace Injury Management and Workers Compensation Act 1998; the applicant suffered injury in 2015; application for medical assessment of threshold based on impairment of right elbow, right wrist, left elbow and skin; referral to Medical Assessor (MA) specified left and right upper extremity and skin; assessed by MA at 15% which included an assessment of the left wrist; employer appealed on ground that left wrist was not part of medical dispute before the MA; applicant then discontinued proceedings in an attempt to prevent the appeal from proceeding; matter had been finally determined when medical assessment certificate issued as this was a threshold matter; discontinuance of no effect as proceedings had been finally determined under Rule 76 of the Personal Injury Commission Rules 2021; alternatively, the discontinuance did not affect the appeal from proceeding; applicant’s request to stay employer’s appeal refused; no reconsideration application made by worker as evidence not available; application to include left wrist raises liability issue requiring determination by a Member; State of New South Wales v Bishop applied; power to make a stay not identified; worker asserted that left wrist was within the referral and could be assessed; discussion of Skates v Hills Industries Ltd, Secretary v Department of Education v Connolly, and Scone Race Club Ltd v Cottom; no claim and no medical dispute concerning the left wrist; employer’s ground of appeal capable of being made out under section 327(4); Held – stay refused; appeal referred to Medical Appeal Panel.

Decision date: 18 March 2024 | Principal Member: John Harris

Tareen v TAL Services Limited [2024] NSWPIC 129

Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; “injury” not in dispute however the respondent raised a defence under section 11A in relation to performance appraisal; Irwin v Director General of Education, Dunn v Department of Education and Training, Smyth v Charles Stuart University, Attorney General v K, and Hamad v Q Catering Limited discussed and applied; Held – findings made that the meetings with the applicant were not performance appraisal and section 11A defence not established; the meetings were not the whole or predominant cause of the injury.

Decision date: 18 March 2024 | Principal Member: Josephine Bamber

Ishac v Byblos Promotions Pty Ltd [2024] NSWPIC 130

Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66; accepted injury to lumbar spine on 15 February 2021; alleged injury to the cervical spine and right shoulder disputed; section 4; Kooragang Cement Pty Ltd v Bates, Ariton Mitic v Rail Corporation of NSW, and Federal Broom Co Pty Ltd v Semlitch considered; Held – that the applicant sustained injury to his cervical spine and right shoulder in the course of his employment with the respondent on 15 February 2021.

Decision date: 18 March 2024 | Member: John Turner

Moore v Australian Native Landscapes Pty Ltd [2024] NSWPIC 131

Applicant suffered accepted abdominal injury in the course of his employment as a truck driver; urgent laparotomy performed; mesenteric bleeding; incidental finding of neuroendocrine tumour during surgery; ileostomy performed; applicant developed problems with the ileostomy; proposed reversal treatment; whether the proposed treatment causally related to the accepted injury; Held – finding that the proposed treatment is not causally related to the injury; award for the respondent.

Decision date: 19 March 2024 | Member: Jill Toohey

Gardener v Canterbury Bankstown Council [2024] NSWPIC 132

Workers Compensation Act 1987; claim for section 60 expenses including proposed right total knee replacement as a result of injuries to the right knee on 23 March 2018, 5 October 2018 and 10 June 2017; Held – the proposed surgery was reasonably necessary as a result of the work injuries.

Decision date: 19 March 2024 | Member: Carolyn Rimmer

Kasir (formerly Mahmood Alkasiri) v Anderson Recruitment and Training Pty Ltd [2024] NSWPIC 133

Claim for whole person impairment for injury to right little finger and consequential conditions affecting the left wrist, left shoulder, cervical spine, and upper and lower digestive tracts; respondent concedes injury to right little finger but disputes claims for all other body parts; reference to Moon v Conmah P/L; Held – worker has suffered a condition affecting his left wrist, left shoulder and upper digestive tract as a consequence of the injury to his right little finger; worker has not suffered a condition affecting his cervical spine or lower digestive tract as a consequence of the injury to his right little finger; referral for assessment by a Medical Assessor of the right little finger, left wrist, left shoulder and upper digestive tract.

Decision date: 20 March 2024 | Member: John Isaksen

Motor Accidents Medical Review Panel Decisions

AAI Limited t/as GIO v Kotb [2024] NSWPICMP 137

Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered psychological injury in the motor vehicle accident on 10 October 2020; Medical Assessor (MA) Hong certified the claimant sustained a benzodiazepine use disorder and a driving phobia caused by the accident; this was a non-threshold injury; Held – accident caused psychiatric injury; not meet the criteria for a driving phobia where the claimant continues to drive independently; not meet the criteria for a benzodiazepine use disorder where there is only minimal use of benzodiazepine with little clinically significant impact and no evidence of withdrawal symptoms; certificate of MA Hong revoked; accident caused an adjustment disorder which is a threshold injury.

Decision date: 8 March 2024 | Panel Members: Member Susan McTegg, Dr Gerald Chew, and Dr Wayne Mason | Injury module: Mental and Behavioural

Kotb v AAI Limited t/as GIO [2024] NSWPICMP 138

Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered psychological injury in the motor vehicle accident on 10 October 2020; Medical Assessor (MA) Fukui certified adjustment disorder with mixed anxiety and depression; a threshold injury; Held – accident caused psychiatric injury; accident caused an adjustment disorder with mixed anxiety and depressed mood; certificate of MA Fukui affirmed.

Decision date: 8 March 2024 | Panel Members:  Member Susan McTegg, Dr Gerald Chew, and Dr Wayne Mason | Injury module: Mental and Behavioural

Salih v QBE Insurance (Australia) Limited [2024] NSWPICMP 139

The claimant suffered injury in a motor accident on 15 March 2020 at Moorebank; medical dispute concerning extent of whole person impairment (WPI); no issue as to causation; Medical Assessor (MA) Berry found 9% WPI; Panel finds greater restriction of right shoulder and assesses 7% WPI for that body part; Panel findings otherwise similar to those of MA Berry; Held – certificate revoked; new certificate issued for 13% WPI; no issue as to principle.

Decision date: 8 March 2024 | Panel Members: Member Gary Victor Patterson, Dr Thomas Rosenthal, and Dr Drew Dixon | Injury module: Spine, Upper Limb and Skin - Scarring

Allianz Australia Insurance Limited v Burai [2024] NSWPICMP 140

The claimant suffered injury in a motor accident on 1 May 2021 at Coffs Harbour; dispute as to whether claimant suffered PTSD, which is a non-threshold injury, as a result of the accident; issue as to causation; insurer referred to a subsequent “near miss” accident and/or alleged substance abuse as more likely/proximate causes; Panel satisfied that claimant’s PTSD caused by accident; Held – certificate of Medical Assessor Chew confirmed.

Decision date: 8 March 2024 | Panel Members: Member Gary Victor Patterson, Dr John Baker, and Dr Michael Hong | Injury module: Mental and Behavioural

Wegen v AAI Limited t/as GIO [2024] NSWPICMP 142

Motorcycle accident; fractured proximal phlanx; intra-articular displaced fracture of the middle phlanx of the ring finger; post-traumatic stiffness of the right middle ring and middle fingers; hand loss of mobility; shoulder post-traumatic stiffness; wrist post-traumatic ganglion on the dorsum; motorcycle hit from behind; roundabout motor vehicle accident; range of movement of right hand middle and ring fingers; surgical scars; TEMSKI criteria; no tropic changes; no contour defect; no effect on any ADL; no requirement for treatment and no adherence; majority of criteria fall in the zero percent of person impairment column; Held – certificate of Medical Assessor Ian Cameron revoked.

Decision date: 8 March 2024 | Panel Members: Member Hugh Macken, Dr Chris Oates, and Dr Sophia Lahz | Injury module: Spine, Brain Injury, Upper and Lower Limb

Hamed v Allianz Australia Insurance Limited [2024] NSWPICMP 143

The claimant suffered injury on 7 February 2020 at Fairfield; the dispute related to the assessment of permanent impairment arising from injuries to the neck, low back and both shoulders; claimant re-examined; Panel required to form its own opinion on diagnosis and impairment; Insurance Australia Ltd v Marsh applied; Held – claimant assessed at 9% whole person impairment for both shoulders.

Decision date: 11 March 2024 | Panel Members: Member Gary Victor Patterson, Dr Drew Dixon, and Dr Margaret Gibson | Injury module: Spine and Upper Limb

Iaon v QBE Insurance (Australia) Limited [2024] NSWPICMP 144

Motor Accident Injuries Act 2017; the claimant suffered injury in a motor accident on 13 November 2018; rear end collision; claimant re-examined by both Medical Assessors; observations by Panel that assessment caused by psychological injury is based on the behavioural impact of the psychological condition and not due to the effects of pain from the physical injuries; Held – claimant assessed at 7% permanent impairment due to psychological injuries; medical assessment confirmed.

Decision date: 12 March 2024 | Panel Members: Principal Member John Harris, Dr Michael Hong, and Dr Matthew Jones | Injury module: Mental and Behavioural

Mitrevski v AAI Limited t/as GIO [2024] NSWPICMP 145

Claimant was driving a car and wearing a seatbelt when she was rear-ended by another car; on review, the Panel found that the injuries to the claimant’s cervical spine, thoracic spine, lumbar spine, left and right shoulders are all soft tissue injuries caused by the motor accident and are threshold injuries; claimant had a significant past history of injury and disability following an accident in 2009 where she fell down some stairs and injured her back; Held – original medical certificate regarding threshold injuries caused by the motor accident to claimant’s spine and shoulders affirmed.

Decision date: 12 March 2024 | Panel Members:  Member Ray Plibersek, Dr Geoffrey Stubbs, and Dr Les Barnsley | Injury module: Spine and Upper Limb

Johnson-Droscher v Allianz Australia Insurance Limited [2024] NSWPICMP 146

Motor Accident Injuries Act 2017; medical dispute about whole person impairment (WPI) assessment review under section 63; original Medical Assessor Truskett further assessment 0%; claimant was a passenger in rear end collision in January 2016; causation; 2014 accident with complete recovery; multiple assessments on permanent impairment; re-examined; claimant in 2022 accident; Held – 2022 accident would not impact how 2016 accident permanent impairment would rate; impairment in both shoulders and digestive system 6%; Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd considered; WPI less than 10%; previous impairment certificate revoked.

Decision date: 12 March 2024 | Panel Members: Member Terence O'Riain, Dr Margaret Gibson, Dr Wing Chan | Injury module: Spine, Upper Limb and Digestive System

Al-Suhairi v Allianz Australia Insurance Limited [2024] NSWPICMP 147

Review of decision of Medical Assessor (MA) Cameron dated 19 July 2022; MA had found a 4% whole person impairment for the claimant’s right and left shoulders but not for other injuries alleged to have been suffered to the claimant’s head, cervical spine, lumbar spine, abdomen and right and left legs; the claimant accepted the decision of the MA for all injuries other than a traumatic brain injury; clause 6.164 of the Motor Accident Guidelines considered in the assessment; claimant had pre-existing behavioural issues and sometimes evidencing mutism; following the accident on 1 February 2017 the claimant was assessed by attending ambulance officers with a GCS of 14/15 but was non-responsive to questions; insurer relied on surveillance evidence showing claimant to be undertaking normal activities before a medical assessment and then immediately prior to the medical assessment on the same day showing starkly different and restricted activities; claimant was medically examined but due to the non-response of the claimant it was unhelpful in elucidating cognitive function; Held – Panel not satisfied that the claimant had suffered a brain injury; certificate and reasons of MA Cameron affirmed.

Decision date: 12 March 2024 | Panel Members: Member Alexander Bolton, Dr Adeline Hodgkinson, and Dr Christopher Oates | Injury module: Spine, Digestive System, Brain Injury, Nervous Sydney (Neurological), Upper and Lower Limb

Transport Accident Commission of Victoria v Kelyana [2024] NSWPICMP 148

Review of certificate and reasons of Medical Assessor (MA) Herald dated 11 June 2021; claimant injured in a minor rear end collision between a bus being driven by him and the insured car; review application by insurer; impact recorded on CCTV within the bus and indicating very little movement or reaction of the claimant at the point and time of impact; claimant made immediate complaints of injury upon returning to bus depot and diagnosed as having a cervical spine C3/C4 disc prolapse and left C4 nerve impingement, left and right shoulders impingement; Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd principle; aggravation of underlying disc prolapse of lumbar spine; claimant relied on one accident/ergonomic report and insurer had two such reports; claimant’s expert could not definitively say that the claimant was injured as a result of this collision and said that he was probably an outlier who was remarkably susceptible to an injury of this nature; both experts for the insurer said that causation for the injury based on the CCTV and mathematical analysis, could not be established; one expert confirmed that there were 83 other incidents during the course of the bus trip which were of a more serious bump or sudden stop compared to the one attributed by the claimant as causing his injury; Panel not satisfied that the injury claimed by the claimant could be limited to any injury occurring immediately at the time of the rear end collision; principles of causation discussed; Held – certificate of MA Herald revoked.

Decision date: 12 March 2024 | Panel Members: Member Alexander Bolton, Dr Michael Couch, and Dr Mohammed Assem | Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Colquhoun v Secretary, Department of Customer Service [2024] NSWPICMP 150

Whether Medical Assessor (MA) correctly rated appellant’s impairment in psychiatric impairment rating scale for social and recreational activities and for concentration, persistence and pace; Appeal Panel found that the MA had regard to all relevant matters and adequately explained his reasoning for his ratings; Appeal Panel found it was open to MA to make the ratings he did based on the material before him and for the reasons he provided; Held – Medical Assessment Certificate confirmed.

Decision date: 14 March 2024 | Panel Members:  Member Marshal Douglas, Dr Graham Blom, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Irahta v Heavy Engineering Services Pty Ltd [2024] NSWPICMP 151

The appellant submitted that the Medical Assessor (MA) erred in failing to utilise chapter 17 and table 17.1 of the Guidelines to assess permanent impairment and in failing to provide sufficient reasons to understand the MA’s reasoning process and basis upon which the permanent impairment assessment was made; the appellant submitted that the worker satisfied the criteria for a diagnosis of Complex Regional Pain Syndrome (CRPS); Panel disagreed; no evidence of CRPS at assessment by the MA; Held – Medical Assessment Certificate confirmed.

Decision date: 15 March 2024 | Panel Members: Member Deborah Moore, Dr James Bodel, and Dr Neil Berry | Body system: Complex Regional Pain Syndrome, Left Upper Extremity, and Digestive System

MSS Security Pty Ltd v Elsaidy [2024] NSWPICMP 152

Injury to right shoulder and neck on 6 January 2021; appellant employer appealed on grounds of fresh evidence, the assessment being made on the basis of incorrect criteria and demonstrable error; fresh evidence admitted; worker re-examined; Held – Medical Assessment Certificate revoked.

Decision date: 15 March 2024 | Panel Members: Member Carolyn Rimmer, Dr Margaret Gibson, and Dr Roger Pillemer | Body system: Spine and Right Upper Extremity

Shine Early Learning Pty Ltd v Moarefvand [2024] NSWPICMP 153

Whether Medical Assessor (MA) made assessment based on incorrect criteria and erred by assessing 3% whole person impairment for the respondent’s cervical spine injury; Appeal Panel found that the MA made his assessment based on correct criteria and did not err; Held – Medical Assessment Certificate confirmed.

Decision date: 18 March 2024 | Panel Members: Member Marshal Douglas, Dr David Crocker, and Dr James Bodel | Body system: Spine and Left Lower Extremity

Matenga v Mackillop Family Services Limited [2024] NSWPICMP 154

Workplace Injury Management and Workers Compensation Act 1998; parties agreed that Medical Assessor (MA) erred by making a deduction under section 323(1), but respondent contended that error made no difference to outcome because MA should have engaged section 65A(2) and had he done so, the same result would be achieved; appellant submitted that MA erred with the rating of his impairment for psychiatric impairment rating scale (PIRS) for social functioning; Appeal Panel found Medical Assessment Certificate (MAC) contained a demonstrable error because MA made deduction under section 323(1); Appeal Panel held section 65A(2) did not apply to this matter; Appeal Panel held MA’s rating in PIRS for social functioning was open to him; Held – MAC revoked.

Decision date: 18 March 2024 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Scottish Pacific Business Finance Pty Ltd v Hassdo (nee Damaschino) [2024] NSWPICMP 155

Appeal from assessment of whole person impairment; whether Medical Assessor erred in assessing the psychiatric impairment rating scale category of travel; whether he erred in making a deduction of one-tenth for a pre-existing condition; Held – Medical Assessment Certificate revoked and replaced.

Decision date: 19 March 2024 | Panel Members: Member Richard J Perrignon, Dr John Baker, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Singh v Air Liquide Australia Limited [2024] NSWPICMP 156

Appeal from assessment of whole person impairment; whether Medical Assessor erred in finding that hearing losses below 2000Hz, including 1500Hz, 1000Hz and 500Hz, were not caused by occupational noise exposure; whether the audiometer used was properly calibrated; whether he erred in calculating an allowance for presbycusis; Held – Medical Assessment Certificate confirmed.

Decision date: 19 March 2024 | Panel Members:  Member Richard J Perrignon, Dr Thandavan Raj, and Dr Brian Williams | Body system: Hearing

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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