Legal Bulletin No. 166

Issued 21 June 2024

Welcome to the one hundred and sixty 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.

Motor Accidents non-Presidential Member Decisions

Battaglia v QBE Insurance (Australia) Limited [2024] NSWPIC 274

Motor Accident Injuries Act 2017; exemption from assessment; not suitable for assessment; complex issues of liability; complex issues in assessment of damages; rule 99(3)(b) of the Personal Injury Commission Rules 2021; the claimant sustained catastrophic injury in a motor vehicle accident on 1 May 2020 whilst riding a bicycle; liability denied by the insurer and in the alternative contributory negligence; complex claim for economic loss; claim for increased cost of housing, transport and travel; claimant sought exemption under rule 99(3); insurer agreed exemption appropriate; Held – complex issues of liability; complex issues in the assessment of damages; hearing likely to take four days; assessment process would not afford both parties a fair hearing; claim not suitable for assessment; exemption recommended; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 24 May 2024 | Member: Susan McTegg

Gabriel v Insurance Commission of Western Australia [2024] NSWPIC 299

Motor Accident Injuries Act 2017; claim for economic loss damages; on 20 March 2020 claimant was motorcyclist who collided with vehicle entering road; liability for damages admitted; sustained injuries to his neck, both forearms and shoulders; claimant was suffering mental illness, which reduced his pre-earning capacity; no expert evidence about accidents mental impact; claimant had only worked in landscape and earthmoving as machine operator before accident; forearm fractures treated with internal fixation in both forearms; claimant attempted to return to work nine weeks after accident; insurer denies loss of earnings after nine weeks; medical certificate did not indicate restrictions despite recent surgery; claimant ceased work less than a week after return due to pain and loss of work capacity; return to work some months after; did not attend on GP; insurer declined treatment during Covid-19 pandemic; no counselling; no rehabilitation; employer provided opportunity for suitable duties, which increased claimant’s earning capacity due to reduced mental stress; claimant able to manage mental and physical impairment with suitable duties; claimant’s mental condition improving; change in circumstances for earnings; claimant now working more hours than before accident in suitable duties; continuing suitable duties dependent on employer’s generosity; claimant intended to revive own business; had bought new machinery; attempted to run own business before accident but unable to continue due to existing mental stress and lack of payments; insurer questioned credit; inconsistencies between statements and earnings documentation; proper basis for questioning; insurer prefers Medical Assessor’s opinion in permanent impairment assessment against initially jointly instructed orthopaedic surgeon who examined claimant twice specifically examining injuries effect on earning capacity as a labourer and plant operator; medical evidence supports accident caused permanent reduced efficiency using tools, lifting, carrying and gripping; unable to perform gym work, which maintained fitness for labouring; unable to remove hardware in forearms; claim for future economic loss based on earnings in suitable duties, early retirement, prejudice on open labour market; Held – claimant inconsistent witness but psychological condition supports alternative explanation to insurer’s dishonesty claim; medical evidence supports past and ongoing disability with early retirement; past economic loss claimed mostly accepted; accident caused change in most likely future circumstances; claimant able to maintain work with suitable duties; claimant will remain in landscape design as machine operator and assistant with reduced efficiency; past economic loss closed period $26,697.83; future economic loss assessed as buffer for forced early retirement and prejudice on open labour market at $250,000; $20,000 for loss of opportunity to run own business; credit for statutory benefits; total damages assessed in sum of $295,547.15; costs assessed in claimant’s favour.

Decision date: 27 May 2024 | Member: Terence O'Riain

AAI Limited t/as GIO v Phillips [2024] NSWPIC 300

Motor Accidents Compensation Act 1999 (MAC Act); motor accident in 2009; liability wholly admitted; physical and psychological injuries; assessment of damages in circumstances where claimant had a long and complicated pre-accident medical history; disentangling the claimant’s pre-accident medical conditions from the motor accident related injuries; unreliable witnesses; parties agreed that there was no entitlement to non-economic loss damages; claim for past and future economic loss; claim for past and future treatment expenses; claim for past gratuitous care and domestic assistance; claim for future commercial care and domestic assistance; claim for damages for the loss of capacity to provide domestic services (section 15B of the Civil Liability Act 2002); issue as to the claimant’s entitlement to legal costs on the basis of a series of offers of settlement made by the insurer over the years preceding the assessment; Held – the claimant was awarded damages for past treatment and future treatment only; the claimant’s rejection of the offers of settlement made by the insurer were not unreasonable in the circumstances and her costs were not unreasonably incurred; the insurer is to pay the claimant’s legal costs and disbursements in accordance with sections 149 and 150 of the MAC Act and the Motor Accidents Compensation Regulation 2020 as agreed or assessed.

Decision date: 3 June 2024 | Member: Anthony Scarcella

Insurance Australia Limited t/as NRMA Insurance v Taylor [2024] NSWPIC 301

Motor Accident Injuries Act 2017; settlement approval; claimant T-boned in left passenger’s door when insured driver exited a driveway failing to give way; liability wholly admitted; entitlement only to past and future economic loss and superannuation; claimant 71 years old, was working full time at the date of accident as a textile machinist; total incapacity to work for three months; work capacity limited to one day a week before increasing until forced retirement in June 2023; claimant intended to retire age 75 years; statutory benefits paid; Held – settlement approved in the sum of $115,000; insurer entitled to credit for statutory benefits paid; issued pursuant to section 6.23.

Decision date: 6 June 2024 | Member: Elyse White

Workers Compensation non-Presidential Member Decisions

Haddara v FLH NSW Pty Ltd [2024] NSWPIC 302

Consequential conditions; applicant suffered significant injury (biceps tendon tear) and claimed as a result he suffered from consequential conditions in the left and right shoulders; intervening motor vehicle accident; Held – applicant satisfied his onus that he had suffered a consequential condition in his left shoulder due to overuse; insufficient evidence that he had suffered a consequential condition in right shoulder; matter referred for assessment of permanent impairment.

Decision date: 6 June 2024 | Member: Parnel McAdam

Maamari v Formdex Pty Ltd [2024] NSWPIC 304

Workers Compensation Act 1987; claim for ongoing weekly payments and medical expenses for injuries to the cervical spine, both shoulders and both elbows; Held – the accepted injuries resulted in partial incapacity for work; the applicant found to have capacity to undertake work for 20 hours per week at $32.50 per hour earning $650 gross per week from 12 September 2023; the respondent to pay the applicant’s reasonably necessary medical and related expenses.

Decision date: 12 June 2024 | Member: Fiona Seaton

Motor Accidents Medical Review Panel Decisions

Insurance Australia Limited t/as NRMA Insurance v Axford [2024] NSWPICMP 356

Motor Accident Injuries Act 2017; insurer’s application for review of 14% WPI assessment by Medical Assessor (MA) Dixon; claimant injured on 12 November 2019 when right thumb almost completely severed; thumb reattached and five surgeries in total including fusion of the interphalangeal (IP) joint; no issue of causation of thumb injury but MA had assessed a 6% upper extremity wrist impairment and insurer argued no evidence of a wrist injury in the accident or consequentially; Held – frank wrist injury could have occurred in the accident due to forces involved or as a result of long-time immobilisation of the hand in a hard splint; Nguyen v Motor Accidents Authority of NSW & Anor applied in inclusion of 5% upper extremity wrist impairment in overall WPI; complicated assessment of thumb impairment required consideration of amputation (no part of thumb amputated therefore no impairment); loss of sensation over 80% of the thumb and 23% loss of motion; conversion to 20% upper extremity impairment; total arm impairment of 14% combined with 2% for scarring impairment; certificate revoked and fresh certificate issued for 16% WPI.

Decision date: 31 May 2024 | Panel Members: Member Belinda Cassidy, Dr Geoffrey Stubbs, and Dr Mohammed Assem | Injury module: Upper Limb

Claassens v QBE Insurance (Australia) Limited [2024] NSWPICMP 357

Motor Accident Injuries Act 2017; claimant’s application for review of 6% WPI assessment by Medical Assessor (MA) Tamba-Lebbie; MA had found all injuries were aggravation and acceleration injuries of degenerative changes and reduced impairment percentages by 50% for the degenerative changes; claimant alleged injuries to neck, back, left shoulder and that she had symptoms in her left arm and hand after a high-speed accident in October 2019; claimant had second accident a year after the current accident; Held – claimant did injure her neck, lower back and left shoulder in the accident but that there was no frank or specific injury to the left arm or hand; WPI assessed at 5% for the neck, 0% for the lower back, 2% for the left shoulder and there were no other assessable impairments; no matter of principle.

Decision date: 3 June 2024 | Panel Members: Member Belinda Cassidy, Dr David Gorman, and Dr Drew Dixon | Injury module: Spine and Upper Limb

Allianz Australia Insurance Limited v Yang [2024] NSWPICMP 358

Motor Accident Injuries Act 2017; threshold injury; pre-existing persistent depressive disorder; adjustment disorder with depressed mood; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 18 June 2021; Medical Assessor (MA) Samuell found claimant sustained exacerbation of pre-existing depressive disorder which was not a threshold injury; insurer sought review; Held – claimant had a long standing pre-existing persistent depressive disorder; claimant satisfied DSM-5 criteria for adjustment disorder with depressed mood caused by the accident; in accordance with Motor Accident Regulation 2017 an adjustment disorder is a threshold injury; certificate of MA Samuell revoked.

Decision date: 3 June 2024 | Panel Members: Member Susan McTegg, Dr Gerald Chew, and Dr Christopher Rikard-Bell | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Simkovic [2024] NSWPICMP 359

Motor Accident Injuries Act 2017; permanent impairment; whole person impairment (WPI); causation; hearing loss; tinnitus; vertigo; vestibular function; head strike; medical review of certificate of Medical Assessor (MA) Howison; the claimant suffered injury in a motor vehicle accident on 20 November 2020; the dispute related to the assessment of WPI under the Act of hearing loss, tinnitus and vertigo; MA Howison found tinnitus but no hearing loss and therefore tinnitus not cause of permanent impairment; MA Howison assessed 0% WPI; Held – tinnitus caused by accident; vertigo caused by the accident noting head strike; no objective findings of vestibular dysfunction; assessed at 0% WPI for vertigo; hearing loss and tinnitus assessed at 2% WPI; certificate of MA Howison revoked, assess 2% WPI caused by accident.

Decision date: 3 June 2024 | Panel Members: Member Susan McTegg, Dr Brian Williams, and Dr Margaret Gibson | Injury module: Ear, Nose, Throat, and Related Structure

Gray v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 360

Review of decision of Medical Assessor (MA) Shahzad of 12 October 2023 who found that the claimant had a whole person impairment (WPI) of 19%; claimant was 86 years of age at the time of the accident and now 88 years of age; car versus pedestrian accident; the claimant’s injuries included fractures to her left ankle and leg, a fracture to her right leg and an injury to her shoulder; claimant had been living independently prior to the accident and able to mobilise without aids but following the accident required a four wheel walker for mobility; insurer submitted that the MA had not considered the claimant’s pre-accident condition and had also incorrectly applied the AMA 4 Guides and the Motor Accident Guidelines for assessment of whole person impairment; Panel disagreed with the methods of assessment adopted by the MA but concluded that the claimant did exceed the WPI threshold for the total of her injuries; Held – certificate of MA Shahzad revoked and claimant assessed as having a total WPI of 12%.

Decision date: 5 June 2024 | Panel Members: Member Alexander Bolton, Dr Christopher Oates, and Dr Margaret Gibson | Injury module: Upper Limb and Lower Limb

AAI Limited t/as GIO v BQR [2024] NSWPICMP 362

Motor Accident Injuries Act 2017; threshold injury; pre-existing post-traumatic stress disorder; alcohol use disorder; depressive symptoms; adjustment disorder with mixed anxiety and depressed mood; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 29 January 2020; Medical Assessor (MA) Roberts found claimant sustained exacerbation of persistent depressive disorder with anxious distress which was not a threshold injury; insurer sought review; Held – claimant had pre-existing post-traumatic stress disorder and alcohol use disorder; claimant satisfied DSM-5 criteria for adjustment disorder with mixed anxiety and depressed mood caused by the accident; in accordance with Motor Accident Regulation 2017 an adjustment disorder is a threshold injury; certificate of MA Roberts revoked.

Decision date: 6 June 2024 | Panel Members: Member Susan McTegg, Dr Michael Hong, and Dr Glen Smith | Injury module: Mental and Behavioural

Choucair v AAI Limited t/as AAMI [2024] NSWPICMP 363

Review of Medical Assessment; whole person impairment; abdominal fascia leading to umbilical hernia; pre-existing condition; epigastric stomach pain; diagnostic material; no evidence of direct injury; previous spinal fusion; temporal nexus to accident; Held – certificate of Medical Assessor Cameron revoked; claimant has rupture of the abdominal fascia leading to umbilical hernia; 5% permanent impairment.

Decision date: 6 June 2024 | Panel Members: Member Hugh Macken, Dr Christopher Oates, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Digestive System

Isaac v AAI Limited t/as AAMI [2024] NSWPICMP 364

Motor Accident Injuries Act 2017; Review Panel assessment; threshold injury; section 7.23(1); new assessment; past medical history; chronic back pain; supraspinatus muscle and tendon Injury; test for causation; Held – injury to the shoulder and neck are threshold injuries; no injuries to the lumbar or thoracic spines, or left shoulder.

Decision date: 6 June 2024 | Panel Members: Member Hugh Macken, Dr Les Barnsley, and Dr Michael Couch | Injury module: Spine and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Miller [2024] NSWPICMP 365

Motor Accidents Compensation Act 1999; claimant was injured in motor accident in July 2011; claimant’s whole person impairment (WPI) assessed at 14% by Medical Assessor (MA) Home; insurer’s application for review; claimant alleged injury to neck, lower back, left lower limb (fractured fibula and knee including total knee replacement), right knee, ankle and subtalar joint, right shoulder and scarring; no concession by claimant as to recovery or absence of impairment of any injuries; no concession as to causation of any injury by insurer; Held – contemporaneous records satisfied Panel that the claimant injured his lower back, left leg and right shoulder; Panel not satisfied claimant injured neck due to absence of complaints until 2019 and normal examination in 2015; Panel not satisfied right knee, right ankle or foot injuries were caused by the accident as they were not mentioned until 2016 and 2019; lumbar and cervical impairment assessed at DRE category I – 0%; Panel found the left knee injury had led to a meniscal tear and that the arthritis in the claimant’s knee had developed as a result of this not being treated and that the right knee replacement was related to the injury caused by the accident; the claimant had a good result which led to a 15% WPI; right shoulder impairment was assessed at 8% and 0% was allowed for scarring; total WPI 22%; certificate revoked; no matter of principle.

Decision date: 6 June 2024 | Panel Members: Member Belinda Cassidy, Dr Geoffrey Stubbs, and Dr Christopher Oates | Injury module: Spine, Upper Limb, Lower Limb, and Minor Skin

Eid v AAI Limited t/as AAMI [2024] NSWPICMP 366

Motor Accident Injuries Act 2017;review of medical assessment; assessment of treatment and care; causation; certificate under section 7.23(1); whether physiotherapy is reasonable and necessary; path of reasoning; Personal Injury Commission Rules; circumstances of accident; pre-existing medical conditions; injury arising out of the motor accident; diagnostic imaging; bilateral knee surgery; Valgus Osteoarthritis; secondary meniscal degeneration; Held – Panel not satisfied that the claimant sustained an injury to either shoulder in the motor vehicle accident; physiotherapy twice weekly to the shoulder is not reasonable and necessary in the circumstances.

Decision date: 6 June 2024 | Panel Members: Member Hugh Macken, Dr Geoffrey Stubbs, and Dr Margaret Gibson | Treatment Type: Physiotherapy

Workers Compensation Medical Appeal Panel Decisions

Fairweather v Donau Pty Ltd [2024] NSWPICMP 361

Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of binaural hearing impairment; whether MA erred by not applying section 323; Held – section 323 modified in this branch of medical science; section 323(4) authorises Guidelines to make provision regarding deductions under the section; chapter 9.4 provides for deductions to be made in hearing impairment cases for non-work-related conditions; Medical Assessment Certificate confirmed.

Decision date: 5 June 2024 | Panel Members: Member John Wynyard, Dr Robert Payten, and Dr Brian Williams | Body system: Hearing Loss

Towney v Secretary, Department of Communities and Justice (Corrective Services) [2024] NSWPICMP 368

Whether Medical Assessor (MA) correctly applied the Guidelines, including chapters 1 and 2 of AMA5; whether MA made correct diagnosis; whether MA’s ratings of appellant’s impairment in self-care and personal hygiene, social functioning, concentration persistence and pace correct; MA did not abide paragraph 11.4 of the Guidelines in that he did not specify the diagnostic criteria by which he made his diagnosis, but otherwise MA correctly applied the correct criteria in making his assessment; the failure of the MA not to specify diagnostic criteria did not make a difference to outcome; discussion of the relevance of diagnosis to assessment of impairment; Held – MA made no error with respect to ratings of appellant’s impairment in challenged Psychiatric Impairment Rating Scale; Medical Assessment Certificate upheld.

Decision date: 6 June 2024 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Hallinan (previously Rixon) v Finding Yellow Ltd [2024] NSWPICMP 369

The appellant submitted that the Medical Assessor (MA) erred in failing to make any assessment in respect to treatment effects and failed to provide any reasoning process for that assessment; appellant had several other medical conditions and the MA failed to distinguish those in making the assessment; Held –the appellant had not had an “apparent substantial or total elimination of the appellant’s permanent impairment”; Zoric v Secretary, Department of Education & Ors applied; 0% for the effects of treatment was correct; Medical Assessment Certificate confirmed.

Decision date: 6 June 2024 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

Godfrey v Aldi Stores (A Limited Partnership) [2024] NSWPICMP 370

Workplace Injury Management and Workers Compensation Act 1998;psychological injury; worker claims demonstrable errors in assessment of Psychiatric Impairment Rating Scale Categories on concentration, persistence and pace and employability, and a one-tenth deduction for a pre-existing illness; reference to Ferguson v State of NSW, Jenkins v Ambulance Service of NSW and Fire & Rescue NSW v Clinen; Held – demonstrable error in assessment of concentration, persistence and pace, but not employability; no demonstrable error in application of section 323; Medical Assessment Certificate revoked.

Decision date: 6 June 2024 | Panel Members: Member John Isaksen, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Clifford v State of New South Wales (NSW Police Force) [2024] NSWPICMP 371

Workplace Injury Management and Workers Compensation Act 1998; psychological injury, assessment under the Psychiatric Impairment Rating Scale in relation to self-care and personal hygiene only; insurer approved domestic assistance after examination by Medical Assessor (MA); availability of additional relevant information; statement also going to conduct of examination; assessment open to MA on history obtained; Held – Medical Assessment Certificate confirmed.

Decision date: 6 June 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr John Baker | Body system: Psychological/Psychiatric

Blacktown City Council v Djordjevic [2024] NSWPICMP 372

Appeal by employer from 22% whole person impairment (WPI) assessment for psychological injury; whether Medical Assessor (MA) erred by referring to worker’s activities in social and recreational activities category; whether MA had offended the authority of Ballas v Department of Education (State of NSW); whether MA had failed to consider financial documentation: Held – referral to socialising with one friend properly considered under social and recreational activities; Ballas considered; Lancaster v Foxtel Management Pty Ltd and Hennessy v Northcott Supported Living Ltd considered and applied; asking MA to draw inferences solely on financial documentation unsafe and beyond MA’s expertise without more; appellant employer arguing against unanimous opinion of medicolegal experts in both issues; Medical Assessment Certificate confirmed.

Decision date: 7 June 2024 | Panel Members: Member John Wynyard, Dr Graham Blom, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Shiba v Southern Steel Supplies Pty Ltd [2024] NSWPICMP 373

Appeal against assessment of scarring; Medical Assessor conducted an assessment of scarring whilst the appellant was wearing a shoulder brace; conclusion that there was no shoulder scarring a demonstrable error; re-examination; skin assessed as single organ; scarring present on shoulder and wrist; Held – Medical Assessment Certificate revoked; assessment of scarring of 2% whole person impairment combined with other assessments.

Decision date: 11 June 2024 | Panel Members: Member Parnel McAdam, Dr Roger Pillemer, and Dr Drew Dixon | Body system: Right Upper Extremity, Left Upper Extremity, and Scarring

Motor Accidents Merit Review Decision

Iskandar v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 11

Merit review; determination of pre-accident weekly earnings (PAWE) in accordance with schedule 1 clause 4(1) of the Motor Accident Injuries Act 2017; claimant self-employed; agreed that he is an “earner”; meaning of “gross earnings received by an earner as an earner”; ABZ v QBE Insurance (Australia) Ltd, ACL v CIC Allianz Insurance Limited, ABQ v NRMA Insurance, ADP v CIC Allianz, AGZ v NRMA Insurance Pty Ltd, AHS v Allianz Australia Ltd, AOL v QBE Insurance, Shahmiri v Allianz Australia Insurance Limited, Brewer v Insurance Australia t/as NRMA, Aktop v Allianz Insurance, Glover v GIO, Le v Insurance Australia Limited t/as NRMA Insurance, Walker v QBE Insurance (Australia) Limited, Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No2) considered; Project Blue Sky v Australian Broadcasting Authority, Thiess v Collector of Customs, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, Allianz Insurance Australia Limited v Shahmiri applied; Held – “gross” means “gross” not “net”; “the gross earnings received by an earner as an earner during the 12 months immediately before the day on which the motor accident occurred” means the whole of the income, without any deduction, received by an earner in return for labour or services provided by them; decision in substitution made.

Decision date: 12 June 2024 | Merit Reviewer: Brett Williams

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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