Legal Bulletin No. 156

Issued 12 April 2024

Welcome to the one hundred and fifty sixth 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

Wright v State of New South Wales [2024] NSWCA 77

Workers compensation; medical assessment; degree of permanent impairment as a result of an injury; where Medical Assessor assessed appellant as having whole person impairment of 19%; where primary judge found Medical Assessor had exceeded his statutory jurisdiction having regard to an estoppel arising from the terms of a Certificate of Determination; whether primary judge erred as to the proper construction of the Certificate of Determination; Held – leave to appeal is granted; appeal is dismissed; appeal against the decision of the Medical Assessor dated 16 August 2022 is remitted to the President of the Personal Injury Commission.

Decision date: 11 April 2024 | Before: Gleeson JA, Mitchelmore JA, and Stern JA

Supreme Court Decisions

AAI Limited t/as AAMI v Pearce [2024] NSWSC 357

Administrative law; judicial review; motor accident compensation; submitting appearances by the defendants; error of law on the face of the record; inadequate reasons; Held – plaintiff has leave to file its amended summons dated 22 March 2024; the decision of the second defendant and third defendant dated 9 November 2023 is invalid and is set aside; the subject matter of the decision is remitted to the third defendant for determination by a different Member according to law.

Decision date: 8 April 2024 | Before: Lonergan J

AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371

Administrative law; judicial review; whether time should be extended to allow judicial review of the first of three decisions; extension of time not granted; where judicial review of the following two decisions also fails; Held – amended summons is dismissed.

Decision date: 1 April 2024 | Before: Elkaim AJ

Presidential Member Decision

Secretary, Department of Education v Uzunovska [2024] NSWPICPD 19

Workers compensation; psychological injury; COVID-19 vaccine mandate; whether employment, or the NSW Government’s Public Health Order was causative of injury; whether email communications regarding the COVID-19 vaccine mandate constitute disciplinary action to establish a defence under section 11A of the Workers Compensation Act 1987; psychological injury held not to be wholly or predominantly caused by reasonable action taken by the employer in respect of discipline or dismissal under section 11A of the Workers Compensation Act 1987; Held – Order 1 of the Certificate of Determination dated 17 February 2023 is amended; Certificate of Determination dated 17 February 2023 is otherwise confirmed.

Decision date: 4 April 2024 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decision

Guntan v AAI Limited t/as GIO [2024] NSWPIC 160

Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether accident caused wholly by the fault of the claimant for the purposes of section 3.11 and section 3.28; accident occurred when claimant changing lanes; CCTV footage of the accident; Held – the other vehicle involved in the accident was moving slowly forward and was wholly within its lane when claimant attempted to change from the right to the left lane; while attempting to change lanes, the front right side of the claimant’s vehicle collided with the rear left side of the other vehicle; the collision between the two vehicles occurred as a consequence of the claimant’s failure to exercise reasonable skill and care; the accident was not caused any fault on the part of the other driver; for the purposes of section 3.11 and section 3.28, the accident was caused wholly by the fault of the claimant.

Decision date: 3 April 2024 | Senior Member: Brett Williams

Workers Compensation non-Presidential Member Decisions

Smith v Secretary, Department of Education [2024] NSWPIC 155

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 respect to discipline; consideration of the Public Health Order in relation to Covid-19; 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; Northern NSW Local Health Network v Heggie and Webb v State of New South Wales applied.

Decision date: 28 March 2024 | Principal Member: Josephine Bamber

Turner v Wickham Freight Lines Pty Ltd [2024] NSWPIC 156

Claim in respect of alleged lumbar and left shoulder injury, with an alleged frank incident in January 2014 and an alleged work-related aggravation with a deemed date of injury of 27 November 2019; whether applicant’s employment had connection with the State of New South Wales (section 9AA of the Workers Compensation Act 1987); whether injurious events took place; whether applicant precluded from receiving compensation by virtue of sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; whether applicant suffered incapacity for employment as a result of work injury; whether surgery to lumbar spine was reasonably necessary as a result of a work injury; Held – applicant’s employment was connected with NSW, as she routinely drove her truck between Tamworth and Warwick, where the injury took place, and was based in Tamworth for her employment; the applicant suffered injury to her back and left shoulder as a result of a fall on 1 January 2014 and as a result of an aggravation caused by the nature and conditions of her employment up to 27 November 2019; the defences under sections 254 and 261 fail; permanent impairment claim remitted to the President for referral to a Medical Assessor to determine permanent impairment arising from the injuries; the surgery carried out by Dr Coughlan was reasonably necessary as a result of the applicant’s lumbar spine injury; respondent to otherwise pay the applicant’s section 60 expenses; claim for weekly compensation and any argument concerning aggregation of impairment caused by the two dates of injury are adjourned for further preliminary conference after the issuing of the Medical Assessment Certificate.

Decision date: 28 March 2024 | Member: Cameron Burge

Guest v Coles Supermarkets Australia Pty Limited [2024] NSWPIC 157

Claim for weekly benefits and medical expenses; whether effect of accepted injury has passed and therefore the proposed installation of a spinal cord stimulator is reasonably necessary as a result of that injury, and whether the applicant has any incapacity for employment as a result of her injury; Held – a party which asserts the effects of an accepted injury have passed or the injury has resolved carries the onus of proof on that question; reference to Commonwealth v Muratore and University of New South Wales v Books; the effects of the applicant’s injury are ongoing; as a result of her injury, the applicant suffered total incapacity for the period of weekly compensation claimed; the insertion of the permanent spinal cord stimulator recommended by Dr Russo is reasonably necessary as a result of the injury; respondent to pay the applicant weekly compensation as claimed; respondent to pay the costs of and incidental to the insertion of the permanent spinal cord stimulator.

Decision date: 28 March 2024 | Member: Cameron Burge

McKeown v Secretary, Department of Education [2024] NSWPIC 158

Workers Compensation Act 1987; claim by applicant against Department of Education for weekly payments and lump sum in respect of a psychological injury; applicant acquitted after 2 trials of historical sex offences; during that time placed in Departmental district office where she was bullied, harassed and unsupported for three years; evidence from three qualified experts consistent with allegations by the applicant; contemporaneous documentation supportive also; no evidence from the respondent challenging evidence; whether section 11A defence that predominant cause was notification after 2nd acquittal that the Department would be conducting an investigation; Held – respondent failed to meet its onus; Northern NSW Local Health Network v Heggie, Hancock v East Coast Timber Products Pty Ltd and State Transit of New South Wales v Fritzi Chemler cited in argument; evidence demonstrated applicant had been aware that investigation would follow for some years; respondent expert opinion in nature of ipse dixit; award applicant.

Decision date: 2 April 2024 | Member: John Wynyard

Hajjar v Secretary, Department of Education [2024] NSWPIC 159

Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; “injury” is dispute pursuant to section 4(a), section 4(b)(i) and section 4(b)(ii) and the respondent raises a defence under section 11A in respect to discipline; consideration of the Public Health Order in relation to Covid-19; Held –findings made that section 4(a) and section 9A established by the applicant, and section 11A defence not established by the respondent; Northern NSW Local Health Network v Heggie and Webb v State of New South Wales applied.

Decision date: 2 April 2024 | Principal Member: Josephine Bamber

Motor Accidents Medical Review Panel Decisions

Tannous v QBE Insurance (Australia) Limited [2024] NSWPICMP 176

Motor Accident Injuries Act 2017; whether the physical injuries to the manubrium sternum, right leg, tibial midshaft, medial and lateral malleolus and scarring, were caused by the accident; whether whole person impairment (WPI) exceeded 10%; Held – Medical Assessor’s certificate is revoked after taking into account scarring assessed at 1% previously not included as a result of an omission; the Medical Review Panel certifies WPI of 11%.

Decision date: 22 March 2024 | Panel Members: Member Terence Stern OAM, Dr Shane Moloney, and Dr Geoffrey Stubbs | Injury module: Spine, Lower and Upper Limb

Khoder v AAI Limited t/as GIO [2024] NSWPICMP 177

Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a motor accident on 19 December 2020 as a rear seat passenger; Claimant re-examined; clinical expertise of the Medical Assessors was that the claimant suffered from an adjustment disorder; the claimant never met DSM-5-TR diagnostic criteria for the diagnosis of enuresis at any time; Held – Medical Assessment Certificate revoked; claimant suffered threshold psychological injury.

Decision date: 22 March 2024 | Panel Members: Principal Member John Harris, Dr Tom Newlyn, and Dr Samson Roberts | Injury module: Mental and Behavioural

Raymond v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 178

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 are soft tissue injuries caused by the motor accident and are threshold injuries; the injuries to the right knee, tear of the medial meniscus, are non-threshold injuries; there is no evidence that that the meniscal tear pre-existed the motor vehicle accident; there is a definite history of injury and ongoing symptoms; the Panel found that the meniscal tear was either caused or exacerbated and become symptomatic as a result of the motor vehicle accident; Held – original medical certificate regarding threshold injuries caused by the motor accident to claimant’s cervical spine and right knee revoked.

Decision date: 22 March 2024 | Panel Members: Member Ray Plibersek, Dr Thomas Rosenthal, and Dr Michael Couch | Injury module: Spine and Lower Limb

Green v QBE Insurance (Australia) Limited [2024] NSWPICMP 179

Motor Accident Injuries Act 2017; claimant suffered injury in a in rear end collision on 30 April 2022; claimant’s head hit the roof of her vehicle; Glasgow Coma Score of 15 recorded at the scene of the motor accident and at the emergency department of the hospital; diagnosis of post-concussion syndrome; whether injuries to head, cervical spine and left shoulder were threshold injuries; Held – original assessment of threshold injuries confirmed.

Decision date: 26 March 2024 | Panel Members: Member Maurice Castagnet, Dr Sophia Lahz, and Dr Michael Couch | Injury module: Spine, Upper Limb, and Brain Injury

Dragas v Allianz Australia Insurance Limited [2024] NSWPICMP 180

Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 18 November 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Wallace who determined that the claimant did not have WPI of greater than 10%, namely 5% WPI; the Medical Review Panel conducted a re- examination which was not consistent with ongoing injury; there was no ongoing causal relationship with the subject accident; Held – certificate of MA Wallace revoked; the Panel substitutes the determination and certifies a 0% WPI.

Decision date: 26 March 2024 | Panel Members: Member Terence Stern OAM, Dr Margaret Gibson, and Dr Geoffrey Stubbs | Injury module: Spine, Upper and Lower Limb

Dragas v Allianz Australia Insurance Limited [2024] NSWPICMP 181

Multiple treatment disputes; claimant involved in a motor accident on 18 November 2017; Medical Assessor (MA) Cameron determined that the proposed treatment did not relate to the injuries caused by the motor vehicle accident; Medical Review Panel attended re-examination; Panel certified that there was no ongoing causal relationship with the motor vehicle accident; the proposed treatment was neither reasonable or necessary in the circumstances; Held – Medical Review Panel affirmed the certificate of MA Cameron.

Decision date: 28 March 2024 | Panel Members: Member Terence Stern OAM, Dr Margaret Gibson, and Dr Geoffrey Stubbs | Injury module: Treatment Type: GP Consultations, Physiotherapy Treatment, Massage, Hydrotherapy, Domestic Assistance - Causation, Domestic Assistance - Reasonable and Necessary, Radiological Investigations

Bachir v Youi Pty Limited [2024] NSWPICMP 182

Motor Accident Injuries Act 2017; claimant’s application for review under section 7.26 of Medical Assessor (MA) Menogue’s assessment of a threshold injury dispute; claimant injured in T-bone type accident on 14 November 2022, claimant 20 at the time; she alleged injuries to neck, lower back and right arm; MRI within two weeks of the accident revealed a C5/6 disc bulge and annular tear; MA determined all injuries threshold on the basis no radiculopathy and that there was no evidence of a specific injury to the cervical spine; parties agreed only issue in dispute was causation of the bulge and tear; insurer relied on studies that said young people can have annular tears and they can be asymptomatic; insurer’s submissions also raised issue with any injury to neck and existence of annular tear; the Panel was satisfied on the contemporaneous documents there was a neck injury; the Panel was satisfied on the basis of the MRI report and without seeing the images (which were unavailable) that the claimant sustained an annular tear at the C5/6 level; the Panel was satisfied the annular tear was caused by the accident; test of causation discussed and Briggs v IAG t/as NRMA Insurance applied; Held – MA Menogue’s certificate revoked.

Decision date: 28 March 2024 | Panel Members: Member Belinda Cassidy, Dr Les Barnsley, and Dr Margaret Gibson | Injury module: Spine and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Risteski [2024] NSWPICMP 183

Medical review of certificate of Medical Assessor (MA) Truskett; the claimant suffered in a motor vehicle accident on 24 May 2020; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, lumbar spine, left shoulder and gastrointestinal injury; MA Truskett assessed 5% WPI for cervical spine; 5% WPI for lumbar spine and 2% WPI for left shoulder; MA Truskett found stomach and digestive system not caused by accident; Held – claimant demonstrates features or chronic pain syndrome or psychological overlay where he presents as significantly disabled but little objective evidence to support presentation; soft tissue injury to cervical spine and lumbar spine caused by accident; soft tissue injury to left shoulder secondary to cervical spine injury; cervical spine assessed as DRE category I or 0% WPI; presence of dysmetria in lumbar spine; lumbar spine assessed as DRI category II giving 5% WPI; MA Berry unable to assess range of motion of shoulder because too painful; shoulder assessed by analogy at 2% WPI; gastroscopy demonstrated non-erosive oesophagitis; medication induced; assessed at 2% WPI; colonoscopy disclosed presence of haemorrhoids; find medication induced; no external evidence dysfunction, no evidence of inflammation and normal sensation in perianal region; no current signs of organic anal disease; assessed at 0% WPI; certificate of MA Truskett revoked and certified injures caused by accident gave rise to 9% WPI.

Decision date: 28 March 2024 | Panel Members: Member Susan McTegg, Dr Neil Berry, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Digestive System

Workers Compensation Medical Appeal Panel Decisions

Ellis v State of New South Wales (NSW Police Force) [2024] NSWPICMP 184

Whether Medical Assessor (MA) took into account all relevant matters when rating appellant’s impairment in the psychiatric impairment rating scale for travel and for social functioning; Appeal Panel found that MA took into account all relevant matters, that MA had applied correct criteria to assess appellant’s permanent impairment and that there was no demonstrable error in the Medical Assessment Certificate (MAC); Held – MAC upheld.

Decision date: 28 March 2024 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Campbell v We Help Ourselves [2024] NSWPICMP 185

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred with respect to his rating of appellant’s impairment in social and recreational activities by wrongly characterising certain activities as social and recreational activity; whether MA did not consider all relevant evidence with respect to his rating of the appellant’s impairment in social and recreational activities, travel and social functioning; whether MA applied the correct test when making a deduction under section 323(1); Appeal Panel held MA did not make any error with his ratings of the appellant’s permanent impairment in social and recreational activities, travel and social functioning; Appeal Panel held that MA applied incorrect test when determining whether deduction should be made under section 323(1), but that error made no difference to the outcome, as when correct test applied the Appeal Panel would make same deduction as MA made; Held – Medical Assessment Certificate upheld.

Decision date: 28 March 2024 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Chahal v Qantas Airways Limited [2024] NSWPICMP 186

Workplace Injury Management and Workers Compensation Act 1998; whether appellant had pre-existing condition; whether Medical Assessor (MA) wrongly applied section 323(1); whether MA wrongly excluded appellant’s hearing losses below 3000 Hz when assessing the degree of the appellant’s permanent impairment from an injury of hearing loss; Appeal Panel held unlikely that appellant had a pre-existing condition, but MA did apply section 323(1); Appeal Panel held MA was correct not to include appellant’s hearing losses below 3000 Hz when assessing the degree of the appellant’s permanent impairment from an injury of hearing loss; Held – Medical Assessment Certificate confirmed.

Decision date: 3 April 2024 | Panel Members: Member Marshal Douglas, Dr Robert Payten, and Dr Thandavan Raj | Body system: Hearing

Redford v State of New South Wales (NSW Ambulance Service) [2024] NSWPICMP 187

Appeal by paramedic after 20 years employment resulted in psychological injury; whether assessment of 9% whole person impairment had been properly reasoned; whether ratings for social functioning rating and employability had been explained; Held – Medical Assessor’s reasons so cursory that basis of ratings impossible to discern; El Masri v Woolworths Ltd considered and applied; re-examination ordered; Held – Medical Assessment Certificate revoked.

Decision date: 3 April 2024 | Panel Members: Member John Wynyard, Dr Graham Blom, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Davis v Pizza Pan Equity Group Pty Ltd [2024] NSWPICMP 188

Whether Medical Assessor (MA) erred by attributing proportion of the appellant’s permanent impairment to secondary psychiatric condition and not including that in the degree of the appellant’s permanent impairment from the injury referred to the MA for assessment; no agreement between the parties nor determination by the Commission that the appellant had a secondary psychological injury; referral to MA described body part/system being referred as “psychological/psychiatric disorder”; Appeal Panel found that absent agreement from the parties or determination by the Commission that appellant had a secondary psychological injury, the medical dispute referred to the MA did not require the MA to assess the appellant’s impairment from a secondary psychological injury; Held – Medical Assessment Certificate revoked.

Decision date: 3 April 2024 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Qantas Airways Limited v Katz [2024] NSWPICMP 189

Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against assessment of DRE cervical category III; whether mistaken declaration by Medical Assessor (MA) that employer’s qualified medical expert reports were not before him vitiated the Medical Assessment Certificate (MAC); whether identification of further injury by MA an error; whether radiculopathy present; whether a section 323 deduction should have been made; Held – employer submissions rejected as to MA’s finding of another injury; no impairment assessed; section 326(2) applicable; employer submission as to radiculopathy rejected as proper consideration not given to examination findings by the MA; demonstrable error established as to mistake of MA, reports of employer’s qualified expert examined by the Panel and rejected: Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd, Vitaz v Westform (NSW) Pty Ltd and Broadspectrum (Australia) Pty Ltd v Fiona Louise Wills considered and applied; MAC confirmed.

Decision date: 3 April 2024 | Panel Members: Member John Wynyard, Dr Gregory McGroder, Dr Brian Stephenson | Body system: Spine

Milos The Handy Man Pty Ltd v Djokic [2024] NSWPICMP 190

Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment arising from two knee and two hip replacements; combined values chart; application of section 323 deduction; Held – Medical Assessment Certificate revoked.

Decision date: 3 April 2024 | Panel Members: Member Catherine McDonald, Dr Christopher Oates, and Dr Roger Pillemer | Body system: Spine, Left and Right Lower Extremity, and Scarring (TEMSKI)

Motor Accidents Merit Review Panel Decision

Insurance Australia Limited t/as NRMA Insurance v Zahoor [2024] NSWPICMRP 1

Motor Accident Injuries Act 2017; review of a Merit Review decision about whether the insurer is entitled to give a direction to the claimant under section 6.26; consideration of whether the claimant had provided particulars pursuant to section 6.25; whether the obligation to provide particulars pursuant to section 6.25 is a positive obligation upon the claimant; whether “evidence” constitutes “particulars”; Held – the claimant had not provided particulars in discharge of the positive obligation pursuant to section 6.25; the insurer entitled to issue a direction pursuant to section 6.26; the Merit Review decision is revoked.

Decision date: 22 March 2024 | Merit Reviewer Panel: Elizabeth Medland, Stephen Boyd-Boland, and Katherine Ruschen

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

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