Legal Bulletin No. 159
This bulletin was issued on 3 May 2024
Issued 3 May 2024
Welcome to the one hundred and fifty ninth 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.
Supreme Court Decisions
Tongi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWSC 406
Administrative law; judicial review; whether the Medical Assessor erred in the treatment of causation of the injury; whether the Delegate erred when considering the Medical Assessor’s treatment of causation of the injury; where the Delegate committed jurisdictional error; Held – the Delegates decision is set aside; matter is remitted to the Personal Injury Commission of New South Wales for reconsideration of the decision.
Decision date: 19 April 2024 | Before: Elkaim AJ
Klement v Bull ‘N’ Bush Nurseries Pty Ltd [2024] NSWSC 466
Administrative law; judicial review; application to set aside Appeal Panel’s decision; dispute about the subject of the medical dispute referred for assessment; Panel mistaken in its understanding of plaintiff's claim and resulting medical dispute; Panel acted on a significant misunderstanding of the statutory scheme; injury to wrists and shoulder part of medical dispute correctly referred for assessment; Appeal Panel's decision set aside; whether the Appeal Panel made relevant errors; Appeal Panel failed to consider documents attached to application which crystallized the medical dispute; claim for injury to upper left extremity not confined to elbow injury; relevant error established; Held – Appeal Panel's decision set aside; matter be remitted to another Appeal Panel to be considered according to law
Decision date: 26 April 2024 | Before: Schmidt AJ
Henderson v Canterbury Hurlstone Park RSL Club Ltd [2024] NSWSC 473
Judicial review; psychological injury; errors of law; failure to provide adequate reasons; failure to exercise statutory jurisdiction; statutory interpretation; imported words; matter remitted to the Personal Injury Commission; Held – certificate and reasons dated 6 April 2023 given by an Appeal Panel are set aside; certificate of determination dated 10 May 2023 is set aside; matter is remitted to the President of the Personal Injury Commission of New South Wales for redetermination according to law.
Decision date: 26 April 2024 | Before: Harrison AsJ
Presidential Member Decisions
Secretary, Department of Education v Field [2024] NSWPICPD 23
Workers compensation; clause 2 of schedule 3 to the Workers Compensation Act 1987; casual worker; calculation of pre-injury average weekly earnings; whether regulations 8C, 8D or 8E of the Workers Compensation Regulation 2016 apply to exclude from the “relevant earning period” periods when the worker did not work; Secretary, Department of Education and Justice v Stewart [2024] NSWCA 59 applied; application of judicial comity; La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201; Comino v Kremetis [2023] NSWSC 32 considered; Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 considered and applied; Held – the Member’s Certificate of Determination dated 11 May 2023 is revoked.
Decision date: 22 April 2024 | Before: Deputy President Elizabeth Wood
ISS Property Services Pty Limited v Laundess [2024] NSWPICPD 24
Workers compensation; injury sustained during an authorised absence from work; section 11 of the Workers Compensation Act 1987; Held – the Certificate of Determination dated 13 June 2023 is confirmed.
Decision date: 23 April 2024 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Randall v Allianz Australia Insurance Limited [2024] NSWPIC 164
Motor Accident Injuries Act 2017; application for exemption under section 7.34(1)(b); whether claim is not suitable for assessment; where claimant’s vehicle collided with a rock wall on the M1 Motorway and another vehicle travelling in the same direction subsequently collided with her vehicle; Insurance Australia Limited t/as NRMA Insurance v Banos and IAG Limited t/as NRMA Insurance v Khaled applied; Held – the claim involves complex legal issues in relation to liability; expert evidence, including from an accident reconstruction expert, pharmacologist (to address whether the claimant was “over the limit” when the accident occurred), and mechanic, is likely to be required; the hearing is likely to take a number of days and involve multiple witnesses giving evidence; a court hearing is more likely to result in the just, quick and cost effective resolution of the real issues in dispute between the parties when compared to an assessment by the Commission; it is neither appropriate nor fitting for the claim to be the subject of an assessment by the Commission; the claim is not suitable for assessment under division 7.6; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 4 April 2024 | Senior Member: Brett Williams
Tunks v CIC Allianz Insurance Limited [2024] NSWPIC 194
Motor Accidents Compensation Act 1999; assessment of damages; liability wholly admitted; claimant had a lengthy pre-accident medical history; claimant assessed whole person impairment greater than 10% by Medical Assessor (MA) Home; claimant a health care worker; returned to work in a reduced capacity until terminated; past and future economic loss assessed; a binding certificate by MA Wise did not exceed the threshold test; limited entitlement to domestic assistance; past treatment expenses agreed as $363,187.00 plus a buffer for future reasonable and necessary treatment for accident related injuries; Held – damages assessed at $1,153,539.70 plus costs and disbursements in the sum of $78,204.63.
Decision date: 16 April 2024 | Member: Elyse White
Moussa v QBE Insurance (Australia) Limited [2024] NSWPIC 203
Motor Accident Injuries Act 2017; claims assessment dispute; claim for damages submitted to insurer at the same time the claim was referred to the Personal Injury Commission under section 7.36 for assessment; claimant failed to comply with section 6.25 direction issued by the insurer; claim was taken to be withdrawn under section 6.26(3); claimant seeks to have the claim reinstated; application for a miscellaneous claims assessment under schedule 2(3)(h); whether the claimant had complied with section 6.20(7); whether the claimant has a full and satisfactory explanation for the failure to provide required particulars in response to the section 6.26 direction; Held – the claimant has provided a full and satisfactory explanation and also complied with the provisions of section 6.20(7)(b) the claimant’s claim is to be reinstated.
Decision date: 23 April 2024 | Member: David Ford
Workers Compensation non-Presidential Member Decisions
Nuku v Inghams Enterprises Pty Ltd & Ors [2024] NSWPIC 196
Workers Compensation Act 1987; the applicant worked in heavy and repetitive work over 18 years; allegations of injury to various body parts; medical evidence did not explain some allegations of injury; Hancock v East Coast Timber Products Pty Ltd applied; finding of injury to arms/wrists and neck pursuant to section 4(b)(ii); capacity; use of histories of occupation experience contained in medical reports; Guthrie v Spence and section 43(2) of the Personal Injury Commission Act referred to; Byrom v Inghams Enterprises Pty Ltd not applied; findings made that applicant had an ability to work in suitable employment of 38 hours per week in light manual work assessed based on the minimum wage; Held – orders made for weekly compensation.
Decision date: 18 April 2024 | Principal Member: John Harris
Angel v Carl Holt t/as Jims Cleaning Wyong [2024] NSWPIC 198
Claim for weekly compensation and medical expenses by way of proposed lumbar fusion surgery; requirement for surgery is not in dispute, however, the fact of the alleged injury is in dispute; whether applicant suffered injury by way of a frank aggravation of underlying pathology as alleged; competing lay evidence; whether applicant has discharged onus of proving injury took place; if injury is proven, the applicant’s pre-injury average weekly earnings (PIAWE) is in dispute, as is her capacity for employment during the period claimed; Held – the applicant suffered injury as alleged to her lumbar spine; the proposed lumbar fusion surgery is reasonably necessary as a result of the injury; the respondent is to pay the costs of and incidental to the proposed surgery; the applicant was and remains totally incapacitated for employment as a result of her injury; the parties are to lodge submissions as to the applicant’s PIAWE within 14 days, following which the claim for weekly benefits will be dealt with ‘on the papers’.
Decision date: 19 April 2024 | Member: Cameron Burge
Carpenter v Federation Council [2024] NSWPIC 199
Workers Compensation Act 1987; claim for cost of proposed left-sided decompression surgery at L4/5, in respect of accepted injury to lumbar spine; respondent conceded that the proposed surgery was reasonably necessary but disputed that it was reasonably necessary as a result of the injury; respondent maintained that the Commission did not have jurisdiction, due to the provisions of section 59A; applicant submitted the Commission has the power to make a finding as to the reasonable necessity of the proposed surgery; consideration of Patrick Stevedores Holdings Pty Ltd v Fogarty and Flying Solo Properties Pty Ltd t/as Artee Signs v Collet; Held – Commission has jurisdiction to make a finding as to the reasonable necessity of the proposed surgery as a result of the injury; finding that the proposed surgery is reasonably necessary as a result of the injury.
Decision date: 22 April 2024 | Senior Member: Kerry Haddock
Damian v Royal Doulton Australia Pty Ltd [2024] NSWPIC 200
Workers Compensation Act 1987; claim for costs of travel between Port Macquarie and Sydney for the applicant and her husband, in order for the applicant to undergo CT guided steroid injections to L4/5; respondent disputed liability on the grounds that the treatment was provided at a location that necessitated more travel than was reasonably necessary to obtain the treatment; section 60(2B); evidence that the treatment is available in Port Macquarie; paucity of evidence from applicant and her general practitioner to support the proposition that the applicant requires to undergo the treatment in Sydney; consideration of Nicolaides v Blacktown City Council and Price v Ausgrid; Held – applicant is entitled to choose to undergo treatment in Sydney, but undergoing the treatment in Sydney necessitates more travel than is reasonably necessary to obtain the treatment; award for the respondent.
Decision date: 22 April 2024 | Senior Member: Kerry Haddock
Hawkes v The Disability Trust [2024] NSWPIC 201
Left elbow injury; respondent denied liability for proposed left elbow release surgery; evidence weighed in the balance and on the balance of probabilities it was determined that the proposed surgery was reasonably necessary as a result of the work injury; Held – award for the applicant for medical expenses.
Decision date: 22 April 2024 | Member: Jane Peacock
McQuillan v Sean Mitchell Agencies [2024] NSWPIC 202
Workers Compensation Act 1987; claim for medical expenses; whether fusion surgery reasonably necessary; whether need for surgery results from pleaded injury on 15 July 2015; applicant carries onus of proof; Held – proposed surgery reasonably necessary treatment; need for surgery does not result from injury on 15 July 2015; there is an award for the respondent.
Decision date: 22 April 2024 | Member: Mitchell Strachan
Oakes v PLO Enterprises Pty Ltd [2024] NSWPIC 204
Alleged consequential condition to accepted injury; whether proposed temporomandibular treatment is reasonably necessary as a result of workplace injury; applicant suffered accepted upper limb and cervical spine injuries; she alleges she suffered a consequential psychological condition which caused bruxism and jaw dysfunction; respondent alleges the jaw symptoms are not causally connected to the accepted injury and the proposed treatment, which is medically necessary, is not reasonably necessary as a result of the workplace injury; Held – causation in the workers compensation context is determined by way of a commonsense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates applied; an examination of the lay and expert evidence establishes a commonsense causal connection between the accepted injury and the requirement for the proposed treatment; the injury at issue gave rise to an increase in psychological symptoms in the applicant, which in turn occasioned her bruxism for which she seeks treatment; the fact the applicant had previously suffered psychological symptoms is not fatal to her case, as the evidence discloses a worsening of those symptoms post-injury; on balance, the proposed treatment is reasonably necessary as a result of the injury at issue, in that there is a material contribution to the need for the treatment by the injury; respondent to pay the costs of and incidental to the proposed treatment.
Decision date: 23 April 2024 | Member: Cameron Burge
Arnold v State of New South Wales (NSW Police Force) [2024] NSWPIC 205
Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted psychological injury; respondent paid for purchase, training, accreditation and some other costs of psychiatric assistance dog; whether further costs relevant to the upkeep, veterinary expenses, training and other expenses relevant to the service dog is reasonably necessary as a result of the accepted psychological injury; Held – certain further costs are reasonably necessary as a result of the accepted psychological injury; certain further costs are not reasonably necessary as a result of the accepted psychological injury.
Decision date: 23 April 2024 | Member: Karen Garner
Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPIC 206
Self-represented applicant challenge to calculation of pre-injury average weekly earnings; Held – applicant’s calculations made on misapprehension of the calculation of part time employee’s entitlements; orders made accordingly.
Decision date: 24 April 2024 | Member: John Wynyard
Motor Accidents Medical Review Panel Decisions
Insurance Australia Limited t/as NRMA Insurance v Zaringhabaei [2024] NSWPICMP 228
Motor Accident Injuries Act 2017; the claimant suffered injury on 22 April 2019 when he was struck on his right side by the insured vehicle while crossing a road at Epping; elevated blood alcohol level; no evidence of brain injury upon examination in Emergency Department; issue whether claimant suffered mild TBI in addition to other injuries; Medical Assessor Cameron found referred soft tissue injuries are threshold injuries and that mild TBI is not a threshold injury; Held – certificate confirmed.
Decision date: 12 April 2024 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Sophia Lahz | Injury module: Spine, Upper Limb and Brain Injury
Maybury v CIC Allianz Insurance Limited [2024] NSWPICMP 229
Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 15 July 2022; review of certificate of Medical Assessor (MA) Cameron dated 5 November 2023 who certified that the chest injury and surgical scar was a threshold injury; Medical Review Panel conducted a medical examination; it assessed the chest injury as a non- threshold injury; Held – the certificate of the MA was revoked, and a replacement certificate issued.
Decision date: 12 April 2024 | Panel Members: Member Terence Stern OAM, Dr Shane Moloney, and Dr Christopher Oates | Injury module: Spine, Upper Limb and Brain Injury
Hasoon v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 230
Motor Accident Injuries Act 2017; the claimant suffered injury on 23 July 2022; the medical dispute related to whether the claimant sustained non threshold physical injuries; a previous Medical Assessor (MA) found that the claimant suffered a non-threshold psychological injury; that medical assessment was not the subject of review and accepted by the insurer; MA found that the claimant suffered threshold physical injuries; review filed by claimant against that assessment; 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; claimant submitted that insurer may change its mind and bring a further application; any further application would need to establish that the claimant never had a non-threshold psychological injury; Lynch v AAI Ltd applied; claimant’s submissions speculative in circumstances where insurer had accepted the non-threshold medical assessment; insurer’s obligation to act in good faith; no medical dispute and no basis that this will change; Insurance Australia Ltd v Mangogna distinguished; observation that a subsequent application by the insurer for a further assessment would be a basis for the claimant to reconsider this decision; Held – the application to review the medical assessment dismissed as frivolous and/or vexatious.
Decision date: 12 April 2024 | Principal Member: John Harris | Injury module: Spine and Upper Limb
AAI Limited t/as AAMI v Davies [2024] NSWPICMP 231
Motor Accidents Compensation Act 1999; Claimant suffered injury in a motor vehicle accident on 25 May 2017; Medical Assessor (MA) determined whole person impairment (WPI) at 12%; MA diagnosed physical injuries caused by the accident; supraspinatus tendon tear left shoulder and soft tissue musculoligamentous injury to the cervical spine; Medical Review Panel determined a DRE I classification of the cervical spine and a 6% upper extremity impairment of the left shoulder; Review Panel assessed WPI at 4%; Held – the certificate of the MA was revoked, and a replacement certificate issued; WPI is not greater than 10%.
Decision date: 15 April 2024 | Panel Members: Member Terence Stern OAM, Dr Shane Moloney, and Dr Thomas Rosenthal | Injury module: Spine and Upper Limb
Insurance Australia Limited t/as NRMA Insurance v Zaringhabaei [2024] NSWPICMP 232
Motor Accident Injuries Act 2017; the claimant suffered injury on 22 April 2019 when he was struck on his right side by the insured vehicle while crossing a road at Epping; claimant had elevated blood alcohol level; claims that injury caused mild TBI, as well as numerous soft tissue injuries; amsonia, hearing loss, anosmia; medical dispute as to whole person impairment (WPI) arising from head injury and soft tissue injuries; separate reviews in relation to threshold injuries, anosmia and hearing loss; Held – Review Panel assesses 0% WPI for head injury and soft tissue injuries; certificate of Medical Assessor Cameron revoked.
Decision date: 16 April 2024 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Sophia Lahz| Injury module: Spine, Nervous System (Neurological), Upper and Lower Limb
QBE Insurance (Australia) Limited v Rahe [2024] NSWPICMP 233
Motor Accidents Compensation Act 1999; the claimant was injured as a passenger in a high-speed collision on 26 July 2014 at Pappinbarra; claimant underwent multi-level cervical fusion and disc replacement surgery five years post-accident; causation in issue; medical dispute as to whether cervical surgery relates to accident and is necessary and reasonable; consideration of sections 5D and 5E of the Civil Liability Act 2002, Briggs v IAG and clauses 6.5 to 6.7 of the Motor Accident Guidelines; Panel satisfied as to both issues; Held – certificate of Medical Assessor Herald confirmed; no issue of principle.
Decision date: 17 April 2024 | Panel Members: Member Gary Victor Patterson, Dr Geoffrey Stubbs, and Dr Margaret Gibson| Injury module: Treatment Type: Surgery
Workers Compensation Medical Appeal Panel Decisions
Williams v Chandler MacLeod Group Limited [2024] NSWPICMP 234
Hearing loss due to occupational noise exposure; worker appealed on the basis of the deduction for non-occupational hearing loss; Appeal Panel could discern no error; the Medical Assessor (MA) took a thorough history, conducted a physical examination, and evaluated the audiological findings taken on the day of examination using his clinical judgment; MA excluded the losses below 2000Hz as being unrelated to occupational noise exposure in the exercise of his clinical judgement by relying on his clinical findings including his audiogram, the history taken on the day of examination and taking into clear account the extent and duration of the noise exposure in the circumstances of this case; he considered the losses below 2000Hz to relate to non-occupational hearing loss for the reasons which he explained and the Appeal Panel can discern no error in this approach which was open to the MA and in accordance with correct criteria in the guidelines; Held – there was an obvious calculation error which made no difference to the WPI assessed but the error was corrected on appeal and so the Medical Assessment Certificate was revoked.
Decision date: 19 April 2024 | Panel Members: Member Jane Peacock, Dr Raj Thandavan, and Dr Henley C Harrison| Body system: Hearing
Secretary, Department of Communities and Justice v Freckelton [2024] NSWPICMP 235
Whether Medical Assessor (MA) assessed the injury the subject of the referral; whether MA failed to distinguish a condition the appellant alleged the respondent suffered; Appeal Panel held that the evidence did not support the appellant had suffered a separate condition; Appeal Panel held MA assessed the injury that had been referred for assessment; Held – Medical Assessment Certificate upheld.
Decision date: 19 April 2024 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Gandhi v Coles Supermarkets Pty Ltd [2024] NSWPICMP 236
Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of section 323 deduction and digestive system; whether deduction of asymptomatic pre-existing spondylolisthesis of one third appropriate; whether finding of nil impairment for the digestive system made without adequate reasons and in contravention of Chapter 16.9 of the Guides; Held – section 323 deduction not sustainable; Medical Assessor (MA) did not consider all the evidence, particularly that applicant, aged 46, had been asymptomatic until injury; error to increase deduction because surgical treatment increased entitlement; treatment concerned with workplace injury, not pre-existing asymptomatic condition; Cole v Wenaline Pty Ltd and Elcheikh v Diamond Formwork (NSW) Pty Ltd considered and applied; Ryder v Sundance Bakehouse considered and explained; section 323 deduction revoked and statutory 10% substituted; as to digestive system, MA expressed himself loosely and used unhappy phrasing but consideration of evidence found to justify his nil impairment finding; Bojko v ICM Property Services Pty Ltd considered and applied.
Decision date: 19 April 2024 | Panel Members: Member John Wynyard, Dr Siddarth Sethi, and Dr Brian J Stephenson| Body system: Spine, Scarring and Digestive System
Packham v Retail Adventures Pty Ltd [2024] NSWPICMP 237
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) wrongly considered if appellant’s permanent impairment was partly caused by subsequent events; whether MA applied correct test to determine if appellant’s permanent impairment was due to injury or subsequent event; whether MA was correct to make a deduction under section 323 for proportion of appellant’s permanent impairment due to a pre-existing condition; Appeal Panel held MA was correct to consider all matters including subsequent events that caused appellant’s permanent impairment, but MA applied incorrect test when assessing the degree of appellant’s permanent impairment due to appellant’s injury; Appeal Panel held MA was correct to make a deduction under section 323; Held – Medical Assessment Certificate revoked.
Decision date: 23 April 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr John Baker | Body system: Psychological/Psychiatric
Claim for injury to the right upper extremity/CPRS; Medical Assessor (MA) erred in making no assessment of scarring as that was part of the medical dispute between the parties; MA assessed CPRS under methodology to be used for CPRS 2 but found the applicant had CPRS 1; Panel satisfied that MA erred in finding CPRS 1 and agreed with his assessment for CPRS 2; Held – Medical Assessment Certificate revoked.
Decision date: 23 April 2024 | Panel Members: Member Carolyn Rimmer, Dr Mark Burns, and Dr Drew Dixon | Body system: Right Upper Extremity and Chronic Regional Pain Syndrome
Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) said that some documents not included; failure to call for them was a demonstrable error; role and consequences of subdural haematoma; nature of medical dispute; Procedural Direction PIC 6 clause 29; referral to MA by consent; assessment of impact of injury on ADL and of radiculopathy; Held – Medical Assessment Certificate confirmed.
Decision date: 24 April 2024 | Panel Members: Member Catherine McDonald, Dr James Bodel, and Dr David Crocker| Body system: Spine
Walke v State of New South Wales (NSW Police Force) [2024] NSWPICMP 240
Psychological injury; appellant alleged error in the assessment under two of the categories under the psychiatric impairment rating scale, namely, social and recreational activities and social functioning; error found; re-examination considered necessary; Held – Medical Assessment Certificate revoked.
Decision date: 24 April 2024 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Coles Supermarkets Australia Pty Ltd v Chand [2024] NSWPICMP 241
Claim for injury to the left upper impairment; parties agreed Medical Assessor (MA) to make assessment on the papers as Mr Chand had Lewy Body Dementia; appellant employer alleged error on the basis MA accepted diagnosis made by worker’s IME of brachial plexus injury rather than alternate diagnosis including diagnosis made by appellant’s IME; Panel found no demonstrable error; Held – Medical Assessment Certificate confirmed.
Decision date: 24 April 2024 | Panel Members: Member Carolyn Rimmer, Dr James Bodel, and Dr David Crocker| Body system: Left Upper 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.
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