Legal Bulletin No. 155

Issued 5 April 2024

Welcome to the one hundred and fifty fifth 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

Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71

Traffic law and transport; traffic law; motor accident legislation; Motor Accident Injuries Act 2017 (NSW); meaning of “medical dispute” under Act; actual medical dispute between the claimant and the insurer about the relevant medical assessment matter; question of fact depending on the ambit of dispute between the parties at the relevant time; Administrative law; judicial review; jurisdictional error; further medical assessment under Motor Accident Injuries Act 2017 (NSW); where claimant underwent surgery for cervical spine injury; whether obliged to consider if surgery itself rendered injury “non-minor”; not included in “medical dispute” referred again for assessment; no obligation on medical assessor; decision of delegate refusing to refer decision of medical assessor to review panel; where primary judge dismissed application for review of delegate’s decision on basis that there was no jurisdictional error in medical assessor’s decision; whether primary judge erred; question for the primary judge did not turn on question of whether there was jurisdictional error in decision of medical assessor; Held – the appeal is dismissed

Decision date: 4 April 2024 | Before: Leeming JA, Kirk JA, and Stern JA

Supreme Court Decision

AAI LIMITED (trading as AAMI Limited) v Chan [2024] NSWSC 329

Judicial review; jurisdictional errors; errors of law; adequate reasons; clear path of reasoning; causation; excessive damages; medical expert evidence; Held – decision of Member Terence Stern dated 19 December 2022 is affirmed; plaintiff’s second amended summons dated 11 April 2023 is dismissed.

Decision date: 28 March 2024 | Before: Harrison AsJ

Presidential Member Decision

Secretary, Department of Education v Davis [2024] NSWPICPD 18

Workers compensation; psychological injury; COVID-19 vaccine mandate; psychological injury not wholly or predominantly caused by reasonable action taken by the employer in respect of discipline under section 11A of the Workers Compensation Act 1987; Held; the Certificate of Determination dated 13 December 2022 is confirmed.

Decision date: 25 March 2024 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decisions

QBE Insurance (Australia) Limited v Halliday [2024] NSWPIC 134

Motor Accident Injuries Act 2017; settlement approval in the sum of $645,000; 21-year-old female; entitlement to non-economic loss at $350,000; past economic loss at $15,000 and future economic loss buffer at $250,000; travel costs at $30,000; injury to spleen and liver now healed; buffer awarded for intermittent ongoing future loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 14 March 2024 | Member: Shana Radnan

Beecroft v Allianz Australia Insurance Limited [2024] NSWPIC 135

Late claim; full and satisfactory explanation; no compliance with duty; significant deficiencies in material; medical treatment; made aware of time limitations; unrelated health issues; claimant’s state of mind; in the position of a particular claimant; Held – application denied.

Decision date: 18 March 2024 | Member: Hugh Macken

Gordian Runoff Limited v Zvedeniouk [2024] NSWPIC 136

Motor Accidents Compensation Act 1999; claims assessment dispute about the amount of damages to be paid to the claimant under sections 94(3) and 94(4) for the bicycle being written by the claimant struck from the rear by the insured bus and as a consequence claimant sustained injuries; insurer admitted liability and no allegation of contributory negligence; claimant suffered fractured ribs, lacerations to his face and dental injuries and general bruising to his body; claimant is a pensioner; no claim for non-economic loss or past and future economic loss; Held – claimant is entitled to damages for past treatment expenses in the sum of $12,703 and future treatment expenses in the sum of $5000; total damages $17.703.

Decision date: 19 March 2024 | Member: David Ford

Allianz Australia Insurance Limited v Beamsley [2024] NSWPIC 141

Motor Accident Injuries Act 2017; 30-year-old passenger in a motor vehicle which lost control and veered off the roadway onto a grass median strip; sustained a superior endplate compression fracture of T12 with loss of interior vertebral body height of 25%; no surgical intervention; prior to the accident had been working in harvesting and cleaning jobs; not working at the time of the accident; subsequently commenced work as a stable hand but found this work to be too onerous; thereafter obtained part time employment as a food delivery driver; still experiences intermittent lower back pain on a regular basis; pain is aggravated by lumbar extension; insurer conceded claimant had sustained a non-threshold injury; liability admitted; entitlement to non-economic loss; claim for non-economic loss and future economic loss; total settlement $345,000; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b).

Decision date: 22 March 2024 | Member: David Ford

Workers Compensation non-Presidential Member Decisions

Booth v Retail Ready Operations Australia Pty Ltd [2024] NSWPIC 103

Claim for weekly payments; medical expenses and permanent impairment for psychological injury; whether the worker sustained injury in the course of her employment; whether there were actual events in the workplace which were perceived by the worker to be hostile or offensive so as to cause her injury; whether the worker’s evidence can be relied upon due to the progression of her psychological condition; reference to Attorney General’s Department v K; whether injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline and/or dismissal; reference to Hamad v Q Catering P/L; Held – the worker sustained an injury in the course of her employment with the respondent; the injury sustained by the worker was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline and/or dismissal; the worker has had no current work capacity since she sustained her injury; awards of weekly payments of compensation for total incapacity and medical expenses and referral for assessment of permanent impairment to Medical Assessor.

Decision date: 4 March 2024 | Member: John Isaksen

Forsstrom v Southern Cross University [2024] NSWPIC 137

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 and dismissal; Held – findings made that section 11A defence not established as the performance appraisal and dismissal were not the whole or predominant cause of the injury, and even if they were, the respondent employer’s actions were not reasonable.

Decision date: 21 March 2024 | Principal Member: Josephine Bamber

Taylor-Johnson v State of New South Wales (NSW Police Force) [2024] NSWPIC 138

Workers Compensation Act 1987; applicant an exempt worker; claim for weekly payments, medical expenses and lump sum compensation in respect of a psychological injury; employer did not dispute injury but relied on section 11A; minimal relevant medical evidence relied upon by the parties; dispute resolved at a conciliation conference; weekly claim withdrawn; voluntary payment made for medical expenses; lump sum claim remitted for referral to a Medical Assessor, who provided an assessment below the threshold; applicant sought a 30% uplift for complexity in accordance with Table 4 of part 2 of schedule 6 of the Workers Compensation Regulation 2016; 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; employer ordered to pay the applicant’s costs, excluding counsel’s fees for drafting submissions; uplift of 5% certified for both parties.

Decision date: 21 March 2024 | Principal Member: Glenn Capel

Powell v McClenahan & Ors [2024] NSWPIC 139

Claim for lump sum death benefit and interest on lump sum; liability accepted; matter had lengthy history, with two prior Applications being discontinued; parties agreed on proposed apportionment of lump sum death benefit, and findings and orders made; parties unable to agree on resolution of claim for interest, and direction for submissions made; 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 Limited, Shanika Cooper v G & W Mudge Concreting Pty Ltd & Ors, Delta Services Pty Ltd v BBV & Ors, Lavelle v David Paul Browne & others, Bennett v Jones, Beves v Patrick Stevedores No 2 Pty Ltd & Anor, Goulburn Flight Training Centre Pty Limited v Druck & Ors, AFF Properties Pty Ltd v Robovich & Ors, BDU by next friend BKO & Ots v State of New South Wales (NSW Police Force) & Ors; Held – award of interest to applicant, second respondent, third respondent and fourth respondent from date on which each party’s claim was duly made to date when orders for payment of lump sum made; interest awarded at rate that is 2% above applicable Reserve Bank of Australia cash rate.

Decision date: 21 March 2024 | Senior Member: Kerry Haddock

Kerr v Sydney Catholic Schools Limited [2024] NSWPIC 140

Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; issue in relation to calculation of pre-injury average weekly earnings; applicant argued that $100,000 paid to her pursuant to a deed entered into with the respondent represented earnings and could be taken into account in the calculation of the pre-injury earnings figure; consideration of the application of schedule 3, clauses 2 in relation to the meaning of pre-injury average weekly earnings and of clause 6 as to the meaning of “income” and “earnings”; Held – that the payment under the deed could not be construed as earnings; issue as to the ability of the applicant to work in suitable employment and the calculation of her entitlement to weekly compensation under sections 36, 37 and 32A and definitions in schedule 3, clause 9; the applicant had no entitlement to weekly compensation as her ability to earn in suitable employment exceeded her actual earnings on a weekly basis and was more that 95% of her pre-injury average weekly earnings figure.

Decision date: 21 March 2024 | Principal Member: Josephine Bamber

Biscu v State of New South Wales (South Eastern Sydney Local Health District) [2024] NSWPIC 142

Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted work injury to the lumbar spine; whether right L5 nerve root decompression, L4-5 pedicle screw fixation, and bone graft surgery requested by Associate Professor Steel on 11 March 2022 is reasonably necessary as a result of the accepted lumbar spine injury; Held – right L5 nerve root decompression, L4-5 pedicle screw fixation, bone graft surgery requested by Associate Professor Steel on 11 March 2022 is reasonably necessary as a result of the accepted lumbar spine injury.

Decision date: 25 March 2024 | Member: Karen Garner

Mua v Corestaff NSW Pty Ltd [2024] NSWPIC 143

Workers Compensation Act 1987; accepted injury to right shoulder; disputed injury to lumbar spine; claim for permanent impairment compensation pursuant to section 66; McCarthy v Patrick Stevedores No 1 Pty Limited and Kooragang Cement Pty Ltd v Bates referred to; Held – that the applicant has not proved on the balance of probabilities that he sustained injury to his lumbar spine on 14 April 2022 as alleged; there is an award for the respondent in respect to injury to the lumbar spine on 14 April 2022.

Decision date: 25 March 2024 | Member: John Turner

Edress v Giovanni Faraone (t/as Sydney Commercial Ventilation) [2024] NSWPIC 144

Workers Compensation Act 1987; weekly compensation claim by applicant who had sustained an injury as a result of exposure to caustic chemicals in the course of his employment with the respondent; sections 4 and 9A are not in issue, however the respondent contends the effects of the injury have ceased and the applicant has no entitlement to weekly compensation; Held – finding made that applicant’s medical evidence has failed to deal with pre-injury rhinitis and treatment; respondent’s medical evidence preferred; finding made that applicant’s injury has ceased.

Decision date: 25 March 2024 | Principal Member: Josephine Bamber

McBain v Active Contracting Pty Ltd [2024] NSWPIC 145

Worker alleges medical condition of the lumbar spine as a result of accepted injury/condition to the bilateral knees; respondent refutes consequential injury to the lumbar spine; Held – finding of causal nexus between back (lumbar spine) condition and bilateral knee injury/condition, following assessment of legal principles found in ‘consequential compendium’; matter remitted to the President for referral to a Medical Assessor to assess whole person impairment of the lumbar spine, bilateral knees and scarring.

Decision date: 25 March 2024 | Member: Diana Benk

Maggio v Crane Aid Pty Ltd [2024] NSWPIC 146

The applicant sought a finding of a consequential injury to his left knee and ankle arising out of a previous injury to his right knee and consequent unsuccessful surgery; Held – finding of a consequential injury and the reasonable necessity for surgeries to the applicant’s left knee and left ankle.

Decision date: 25 March 2024 | Member: Lea Drake

Wells v Secretary, Department of Education [2024] NSWPIC 147

The applicant contends the date of injury is the date on which her symptoms originated; respondent contends the date of injury is the date on which the applicant made her claim for compensation; application of 8E of the Workers Compensation Regulation 2016 discussed; Held – the application to contest injury at the conciliation/arbitration when not previously in issue is refused.

Decision date: 26 March 2024 | Member: Lea Drake

Suke Group Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 149

Workers Compensation Act 1987; application under section 145(3) in relation to whether Suke Group Pty Ltd is liable to reimburse the Workers Compensation Nominal Insurer for payments it made to or on behalf of Hea Young Kim as set out in the notice dated 7 September 2022; conflicting evidence as to the identity of the employer of Hea Young Kim; Ermogenous v Greek Orthodox Community of SA Inc and Shao Wen Zheng v Guo Yong Yang applied; Held – finding made that the applicant has established that it was not the employer of Hea Young Kim as at the date of injury.

Decision date: 26 March 2024 | Principal Member: Josephine Bamber

Crockett v Hunts Motel Function Centre Pty Ltd [2024] NSWPIC 150

Applicant suffered accepted injuries to arms; surgery and non-invasive treatment did not resolve symptoms; diagnosis of symptoms arising from neck made around 18 months after worker ceased employment; claim for fusion surgery in cervical spine; whether applicant suffered an injury; whether proposed treatment reasonably necessary; Held – applicant suffered an injury to her neck; delay in identifying cause due to investigations of symptoms in arms; surgery reasonably necessary as a result of injury.

Decision date: 26 March 2024 | Member: Parnel McAdam

Kovacs v Strathfield Municipal Council [2024] NSWPIC 151

Workers Compensation Act 1987; claim for lump sum compensation, weekly compensation and treatment expenses in respect of psychological injury; whether applicant sustained an injury; credibility; whether real events occurred; whether defence pursuant to section 11A(1) made out; Held – the applicant sustained an injury pursuant to section 4(b)(i); the respondent failed to discharge its onus of establishing that injury was wholly or predominantly caused by reasonable action with respect to performance appraisal, discipline, dismissal or provision of employment benefits; matter remitted to President for referral to a Medical Assessor to assess the degree of permanent impairment.

Decision date: 26 March 2024 | Member: Rachel Homan

Mitchell v Andreco-Hurll Refractory Services Pty Ltd [2024] NSWPIC 152

The applicant sought a finding that he had suffered consequential injuries to his neck and shoulder whilst undergoing rehabilitation and gym therapy; Held – finding that the applicant’s neck and shoulder symptomatology arose from his underlying degenerative cervical disc disease.

Decision date: 27 March 2024 | Member: Lea Drake

Motor Accidents Medical Review Panel Decisions

Watts v Allianz Australia Insurance Limited [2024] NSWPICMP 157

Motor Accident Injuries Act 2017; injury in motor accident on 3 April 2020; claimant hit by vehicle and thrown onto windscreen causing multiple abrasions; assessment of permanent impairment; first right toe impairment caused by onset of septic arthritis following treatment of wounds at hospital; right toe at first joint assessed due to ankylosis; second joint of that toe assessed due to loss of movement; delayed onset of back pain; Panel adopted opinion of insurer’s qualified doctor that altered gait from big right toe placed strain on lower back and causing symptoms; observations of Basten JA in Bishop v State of New South Wales applied; Allianz Australia Insurance Ltd v Salucci referred to; Held – claimant assessed at 10% permanent impairment due to physical injuries; assessment combined with a separate medical assessment certificate not the subject of review; Medical assessment confirmed as over 10% threshold.

Decision date: 14 March 2024 | Panel Members: Principal Member John Harris, Dr Tania Rogers, and Dr Margaret Gibson| Injury module: Spine, Lower and Upper Limb

Abawi v Allianz Australia Insurance Limited [2024] NSWPICMP 158

Motor Accident Injuries Act 2017; Review Panel assessment of threshold Injury for the purposes of schedule 2, clause 2 and section 7.23(1); lacerations to skin; whether non-threshold injury; consideration of the definition of “soft-tissue injury” under section 1.6(2); evidently concerned with the exclusion of soft tissue injuries sustained to the connective tissues of the musculoskeletal system, which do not involve injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage; Held – Review Panel concluded that lacerations to the skin would not be a threshold injury.

Decision date: 15 March 2024 | Panel Members: Member Bridie Nolan, Dr Shane Moloney, and Dr Michael Couch | Injury module: Spine and Upper Limb

AAI Limited t/as GIO v Ellis [2024] NSWPICMP 159

Claimant was riding his bicycle on when a car pulled out from a driveway hitting his bicycle; he sustained fractures to his cervical spine and left wrist; Held – original medical certificate which found 12% whole person impairment (WPI) injuries caused by the motor accident to the claimant’s spine and wrist affirmed; on review, the Panel found that the injuries to the claimant’s cervical spine and left wrist were caused by the motor accident; claimant assessed at 5% WPI arising from injury to the cervical spine consistent with DRE cervicothoracic category II; claimant assessed at 7% WPI arising from injury to the left wrist; total permanent impairment assessed at 12% WPI; claimant had a significant past history of injury and disability following an assault in 2009 where he fell off a roof and injured his back.

Decision date: 15 March 2024 | Panel Members: Member Ray Plibersek, Dr Drew Dixon, and Dr Chris Oates | Injury module: Spine and Upper Limb

BYG v QBE Insurance (Australia) Limited [2024] NSWPICMP 160

Motor Accident Injuries Act 2017; motor vehicle accident on 6 November 2019 followed by aggression from insured driver and passenger; review of certificate of Medical Assessor (MA) Fukui who certified chronic post-traumatic stress disorder not caused by accident; inconsistency in history Held – certificate of MA Fukui revoked; inconsistencies not mean claimant not have genuine injury or impairment; difficult to conclude exact status of pre-accident health; no treatment since 2017 and on evidence claimant had improved; Panel concluded pre-accident psychological injury in remission; as per Bell v Allianz Insurance Australia Ltd not for Panel to determine whether the aggressive behaviour formed part of single incident involving use or operation of motor vehicle; concluded claimant sustained post-traumatic stress disorder caused by accident; subsequent motor vehicle accident in 2021; considered State Government Insurance Commission v Oakley; concluded case fell within second Oakley category; additional travel impairment subsequent to 2021 accident considered caused by accident and included in assessment travel under psychiatric impairment rating scale; whole person impairment (WPI) assessed at 7% plus 1% for the effects of treatment; new certificate issued determining post-traumatic stress disorder caused by accident giving rise to WPI of 8%.

Decision date: 15 March 2024 | Panel Members: Member Susan McTegg, Mr Michael Hong, and Dr Glen Smith | Injury module: Mental and Behavioural

Carlyon v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 161

Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a motor accident on 8 March 2021 in head-on collision; original Medical Assessor (MA) found no psychiatric condition; claimant re-examined by MA’s; claimant diagnosed with an adjustment disorder with mixed anxiety and depressed mood which is an adjustment disorder under DSM-5; Panel not satisfied that the claimant suffered from either a major depressive disorder or post-traumatic stress disorder following the motor accident; Held – medical assessment revoked; claimant diagnosed with a threshold psychiatric injury.

Decision date: 18 March 2024 | Panel Members: Principal Member John Harris, Dr Gerald Chew, and Dr Wayne Mason | Injury module: Mental and Behavioural

Narse v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 162

Motor Accident Injuries Act 2017; claimant’s application for review under section 7.26; claimant involved in high-speed collision with car emerging from a side road onto a highway; claimant alleged injuries to neck, back, shoulders, wrists and knees; Medical Assessor (MA) Menogue assessed whole person impairment (WPI) at 10%; claimant had asserted he developed carpal tunnel syndrome in both wrists as a result of the accident; insurer paid for the surgery to both wrists; MA had found carpal tunnel not caused by the accident and no impairment to wrists in any event; Panel asked parties to confer and attempt to narrow the issues and confirm whether all injuries needed to be assessed or whether the Panel could confine its Review to the bilateral wrist injuries; claimant did not concede no injury or no impairment and sought all injuries be reassessed; medical re-examination undertaken; Held – neck injury resulted in 5% WPI, and 1% impairment in each shoulder; back injury found not to be caused (and 0% in any event), wrist injuries not caused (and 0% in any event), chest injury no assessable impairment, left knee injured and 0% and right knee no injury but 0% in any event; decision of Nguyen v Motor Accidents Authority of New South Wales and Anor followed in respect of shoulder impairment; certificate of MA revoked as certificate included actual percentage (10%) and Panel found a different percentage (7%).

Decision date: 19 March 2024 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson, and Dr David Gorman | Injury module: Spine, Lower and Upper Limb

Allianz Australia Insurance Limited v Tucci [2024] NSWPICMP 163

Motor Accident Injuries Act 2017; certificate under section 7.23(1); whole person impairment; pedestrian struck by motor vehicle; fractured tibial plateau fracture; open reduction and internal fixation of right lateral tibial plateau; full leg brace; reduced capacity pre-accident social, sporting, domestic and recreational activities; scarring; lumbar spinal injury; contemporaneous medical evidence available; permanent impairment assessment; the impairment method giving greatest impairment; range of movement combined with LLD; statutory provisions guidelines; Held – certificate of Medical Assessor Philip Truskett and Medical Assessor Geoffrey Curtin revoked.

Decision date: 20 March 2024 | Panel Members: Member Hugh Macken, Dr Chris Oates, and Dr Michael Couch | Injury module: Spine and Lower Limb

Nazer v Allianz Australia Insurance Limited [2024] NSWPICMP 164

Motor Accident Injuries Act 2017; certificate under section 7.23(1); new certificate determining whole person impairment of 0%; rules with respect to practice and procedure before a Panel reviewing a decision; new assessment of all matters; multiple body parts to be assessed; pre-imposed accident diagnostic imaging; history of treatment; no muscle spasm or guarding; active motion restricted in all planes of motion; motion inconsistent when re-tested; no objective signs of shoulder pathology; negligible shoulder movements; no specific diagnosis made; no verifiable or non-verifiable radicular complaints; Held – new certificate issued.

Decision date: 20 March 2024 | Panel Members: Member Hugh Macken, Dr Sophia Lahz, and Dr Alan Home | Injury module: Spine, Lower and Upper Limb, Mental and Behavioural

El-Kazzi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 165

Medical review of certificate of Medical Assessor (MA) Berry; the claimant suffered injury in a motor vehicle accident on 9 November 2019; the dispute related to the assessment of whole person impairment (WPI) under the Motor Accident Injuries Act 2017 of cervical spine, lumbar spine, both shoulders and colorectal/gastrointestinal injury; MA Berry certified 5% WPI of cervical spine, 0% WPI of lumbar spine; 2% WPI for each shoulder; colorectal/gastrointestinal injury not caused by accident; total 9% WPI; Held – claimant’s presentation consistent; soft tissue injury of cervical and lumbar spine, with aggravation of pre-existing degenerative change; soft tissue injury of both shoulders with aggravation of pre-existing condition; accident not cause colorectal or gastrointestinal injury; 5% WPI of lumbar spine, 0% WPI of cervical spine, 4% WPI of right shoulder and 2% WPI left shoulder; certificate of MA Berry revoked; certificate issued greater than 10% WPI caused by accident.

Decision date: 20 March 2024 | Panel Members: Member Susan McTegg, Dr Ian Cameron, and Dr Margaret Gibson | Injury module: Spine, Digestive System and Upper Limb

Azeez v AAI Limited t/as GIO [2024] NSWPICMP 166

Motor Accident Injuries Act 2017; claimant suffered physical and psychological injuries in a motor accident on 13 June 2020 when a vehicle collided with the vehicle he was driving, causing it to collide with the vehicle in front of it; dispute as to whether the claimant’s psychological injury caused by the accident is a minor injury for the purposes of the Act; Medical Assessor (MA) issued certificate when the relevant term was “minor injury”; Motor Accident Injuries Amendment Act 2022; minor injury now described as a threshold injury; MA determined that the claimant had an adjustment disorder caused by the accident and that this is a minor (threshold) injury; issue as to whether the claimant suffered from a post-traumatic stress disorder caused by the accident, which is not a threshold injury; claimant re-examined; Review Panel determined that the claimant meets the assessment criteria under DSM-5 for the diagnosis of an adjustment disorder caused by the accident but does not meet the assessment criteria for a diagnosis of post-traumatic stress disorder; Held – certificate of MA affirmed; Review Panel certified that the psychological injury caused by the accident is a threshold injury.

Decision date: 20 March 2024 | Panel Members: Member Cameron Thompson, Dr Gerald Chew, and Dr Matthew Jones | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Warren [2024] NSWPICMP 167

Motor Accident Compensation Act 1999; accident in April 2013; side swipe collision whilst travelling through roundabout; absence of contemporaneous complaint of right shoulder; early report in claim form of right shoulder injury; Bugat v Fox referred to; claimant re-examined; present findings of lumbar and cervical spine asymmetry not caused by motor accident; assessment of right shoulder; assessments varied over time; Panel satisfied that range of movement consistent; pathology caused by motor accident would deteriorate over time; Held – medical assessment revoked; claimant assessed at 12% impairment.

Decision date: 21 March 2024 | Panel Members: Principal Member John Harris, Dr David Gorman, and Dr Michael Couch | Injury module: Spine, Lower and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Employers Mutual Management Limited v Saunders [2024] NSWPICMP 168

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred in three respects; firstly, in his assessment with respect to the psychiatric impairment rating scale (PIRS) categories of social and recreational activities; secondly, in his assessment in the category of concentration, persistence, and pace; thirdly, in assigning only a one tenth deduction pursuant to section 323; Panel found no errors by the MA with respect to the PIRS categories; no submissions made by the appellant regarding section 323; Held – Medical Assessment Certificate confirmed.

Decision date: 21 March 2024 | Panel Members: Member Deborah Moore, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

Bedford v N Alchin & H Doll t/as Nathan Alchin Shearing [2024] NSWPICMP 169

Appeal from assessment of whole person impairment; whether Medical Assessor erred in omitting to assess radiculopathy in the cervical spine; whether he erred in omitting to assess the lumbar spine by reference to left foot drop and radiculopathy; whether he erred in omitting to assess both knees in accordance with AMA5 Table 17-10; whether he erred by omitting to assess the right hip by reference to bursitis; whether he erred in making a deduction of one half for pre-existing conditions of the knees; Held – Medical Assessment Certificate revoked and replaced.

Decision date: 21 March 2024 | Panel Members: Member Richard J Perrignon, Dr John Brian Stephenson, and Dr Alan Home | Body system: Spine, Left and Right Upper and Lower Extremity

Norman v Sydney Trains [2024] NSWPICMP 170

The appellant submitted that the Medical Assessor (MA) erred in her assessment with respect to the psychiatric impairment rating scale (PIRS) category of concentration, persistence, and pace; the Panel agreed; the MA’s assessment of a class 2 rating was inconsistent with her own assessment and all of the evidence; Held – Medical Assessment Certificate revoked.

Decision date: 21 March 2024 | Panel Members: Member Deborah Moore, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

Oraha v Settlement Services International [2024] NSWPICMP 171

Whether Medical Assessor (MA) erred by not explaining why he disagreed with the assessment of the appellant’s independent medical examiner (IME); whether MA had regard to all relevant evidence when assessing her impairment in several psychiatric impairment rating scale (PIRS) categories; whether MA erred with his ratings of the appellant’s impairment in several PIRS categories; Appeal Panel held MA was not required to explain why his assessment differed from the assessment of the appellant’s IME; Appeal Panel found that the MA had regard to all relevant evidence; Appeal Panel found that the MA’s rating of appellant’s impairment in social and recreational activities was not supported by the evidence and was consequently an error; Held – Medical Assessment Certificate revoked.

Decision date: 22 March 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric

Campbell v Star Electrical Company Pty Ltd [2024] NSWPICMP 172

Whether Medical Assessor (MA) based his assessment on incorrect criteria and thereby made an error by not assessing the appellant’s permanent impairment by reference to the criteria of paragraph 17.5 of the Guidelines; whether MA made any finding with respect to the appellant’s sensory deficit; whether MA erred by not detailing what tests he conducted to make his findings from examination; whether the MA erred by not including any rating for scarring in his assessment of the appellant’s permanent impairment; Appeal Panel found that MA’s findings with respect to hyperalgesia and allodynia were ambiguous, but the MA specifically found that the appellant did not have any temperature asymmetry or asymmetry of skin colour, and hence the appellant did not exhibit a vasomotor sign during examination and the MA accordingly could not confirm a diagnosis of CRPS so as to assess the appellant’s permanent impairment based on CRPS; Appeal Panel held that a presumption of regularity applied to the MA’s assessment such that it is presumed the MA undertook all necessary tests to assess the appellant’s permanent impairment, and the appellant had not rebutted that presumption; the appellant’s claim for compensation for permanent impairment did not include any component for scarring, and the MA was consequently not required to assess scarring; Held – Medical Assessment Certificate confirmed.

Decision date: 22 March 2024 | Panel Members: Member Marshal Douglas, Dr James Bodel, and Dr Neil Berry | Body system: Right Lower Extremity

Hurley v Westpac Banking Corporation [2024] NSWPICMP 173

Appellant alleged error in the assessment under two of the categories under the psychiatric impairment rating scale, namely, self-care and personal hygiene and social and recreational activities; no error found; ratings were open to the Medical Assessor in both categories; Held – Medical Assessment Certificate confirmed.

Decision date: 27 March 2024 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr John Baker | Body system: Psychological/Psychiatric

David Hyett t/as Phoenix Rising Cafe v Middleton [2024] NSWPICMP 174

The appellant submitted that the Medical Assessor erred in four respects, namely, in failing to conduct an assessment on the basis of an ‘amended’ referral; failing to provide reasoning as to whether or not he accepted that the worker suffers from CRPS; using incorrect criteria, and in failing to provide reasons and appropriate deduction or apportionment of whole person impairment reflective of subsequent injury; the Panel agreed; Held – Medical Assessment Certificate revoked.

Decision date: 27 March 2024 | Panel Members: Member Deborah Moore, Dr Mark Burns, and Dr Neil Berry | Body system: Right Upper Extremity

Li v Lite n’ Easy (NSW) Pty Ltd [2024] NSWPICMP 175

Workplace Injury Management and Workers Compensation Act 1998; internal inconsistency in Medical Assessment Certificate (MAC)); failure to explain why diagnosis differed from radiology; re-examination; Held – MAC revoked.

Decision date: 27 March 2024 | Panel Members: Member Catherine McDonald, Dr Tommasino Mastroianni, and Dr Roger Pillemer | Body system: Spine and Right Upper Extremity

Motor Accidents Merit Review Decision

O'Neill v QBE Insurance (Australia) Limited [2024] NSWPICMR 6

Motor Accident Injuries Act 2017; dispute about the amount of weekly payments of statutory benefits that are payable under division 3.3; dispute as to the calculation of the claimant’s pre-accident weekly earnings (PAWE); claimant a casual aged care worker employed for more than 12 months with the same employer prior to the motor accident; insurer averaged earnings over the 12 month period immediately prior to the accident pursuant to schedule 1 clause 4(1); claimant requested a review on basis that she had requested (before the motor accident) an increase of shifts for the roster period the motor accident occurred; by inference the claimant submits that schedule 1 clause 4(3) applies; Held – schedule 1 clause 4(1) applies; the nature of casual work fluctuates and not established on the evidence that earnings would be more on a regular basis; insurer had averaged the amounts “earned” rather than “received”; found that the calculation should be on the basis of the amounts “received” and not “earned” in accordance with the wording of schedule 1 clause 4(1); consideration of statutory interpretation principles pursuant to the Interpretation Act 1987 and Project Blue Sky v ABA.

Decision date: 15 March 2024 | Merit Reviewer: Elizabeth Medland

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.