Legal Bulletin No. 193
This bulletin was issued on 10 January 2025
Issued 10 January 2025
Welcome to the one hundred and ninety third 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.
Presidential Member Decisions
State of New South Wales (Sydney Local Health District) v Edwards [2024] NSWPICPD 83
Injury – distinction between a personal injury pursuant to s 4(a) and a disease injury pursuant to s 4(b) of the Workers Compensation Act 1987 – Rail Services Australia v Dimovski [2004] NSWCA 267 discussed – factual error – Whiteley Muir & Zwanenberg v Kerr (1966) 39 ALJR 505 applied; Held – leave to appeal an interlocutory order is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; the respondent’s application for leave to adduce additional evidence is refused; the appellant’s application to raise the additional ground of appeal, Ground Four, is granted; the appellant’s application to raise the additional ground of appeal, Ground Six, is refused; the Member’s Certificate of Determination dated 11 December 2023 is revoked; the dispute is remitted to a different non-Presidential member for re-determination.
Decision date: 13 December 2024 | Before: Deputy President Elizabeth Wood
Workers Compensation Nominal Insurer v Isaac [2024] NSWPICPD 84
Factual findings, application of principles from Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 in relation to factual findings – error of law asserted in relation to adequacy of reasons and terms of referral to a medical assessor; Held – leave to appeal the interlocutory decision dated 10 November 2023 (as amended) pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted; remit the matter to the Division Head of the Workers Compensation Division to reconsider, or allocate the matter to another Member to reconsider, the Certificate of Determination dated 10 November 2023 (as amended), to accord with the reasons at paragraphs [42] to [45] herein, to facilitate amendment of the obvious error; the Certificate is otherwise confirmed.
Decision date: 16 December 2024 | Before: Acting Deputy President Michael Perry
Martsoukos v Secretary, Department of Education [2024] NSWPICPD 85
Psychological injury – COVID-19 vaccine mandate – 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 – Teaching Services Act 1980 – clause 6(a) of the Education Teaching Service Regulation 2001 – Secretary, Department of Education v Uzunovska [2024] NSWPICPD 19 considered and applied – Boyd v Secretary, Department of Education [2024] NSWPICPD 79 considered and applied; Held – the Certificate of Determination dated 11 January 2024 is revoked; the matter is remitted to another Member for hearing and determination in accordance with these reasons.
Decision date: 17 December 2024 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Azer v Transport Accident Commission [2024] NSWPIC 359
Motor Accident Injuries Act 2017; damages claim; non-economic loss, past economic loss, and future economic loss; significance of pre-accident injuries; Medlin v State Government Insurance Commission; IAG Limited t/as NRMA Insurance v Damian Mares; Kallouf v Middis; Held – past economic loss absence of evidence for one period, future economic loss distinction between disability and diminished earning capacity; future economic loss allowed as a buffer.
Decision date: 5 July 2024 | Member: Stephen Boyd-Boland
Seydler v Allianz Australia Insurance Limited [2024] NSWPIC 607
Motor Accident Injuries Act 2017; application for discretionary exemption from assessment pursuant to rule 99 of the Personal Injury Commission Rules 2021; claimant was pinned under a truck for some time after its wheel ran over his leg; claimant has concurrent worker’s compensation claim; assessed as 15% whole person impairment under AMA 5; claimant has commenced a work injury damages claim against his employer which was the owner of the truck; claimant sought discretionary exemption which was supported by the insurer; Held – recommendation made that claim be exempted from assessment by consent; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 10 October 2024 | Member: Gary Victor Patterson
Allianz Australia Insurance Limited v Manrique [2024] NSWPIC 692
Motor Accident Injuries Act 2017; settlement approval; section 6.23; fracture at the base of the thumb; ligamentous tear at the first metacarpal joint; good recovery from physical injuries; onset of post-traumatic stress disorder; major depressive disorder in remission; symptoms of low mood; loss of motivation; claimant greatly improved and managing psychological symptoms; maintaining continuous employment; no reasonable prospects of exceeding 10% WPI; past economic loss; more than adequate allowance for economic loss; future economic loss buffer; significantly improved mental state; Held – settlement approved.
Decision date: 11 December 2024 | Member: Hugh Macken
Beatty v QBE Insurance (Australia) Limited [2024] NSWPIC 695
Motor Accident Injuries Act 2017; motor vehicle accident; driver; claims assessment; damages for non-economic loss; damages for future economic loss; most likely future circumstances; sick leave; assessment of damages; then 54-year-old claimant sustained injury in a motor vehicle accident on 16 June 2018; injuries to cervical spine, right little finger; left shoulder, right shoulder, lumbar spine, left knee; pre-existing degenerative condition; multiple hospitalisations and surgery include surgery to right little finger; left shoulder supraspinatus repair and biceps tenodesis; cervical anterior C5-7 fusion and total disc replacement at C3/4; cervical posterior C5/6 fusion and nerve decompression; possibility of future surgery; extremely fit pre-accident; role as manager of tree services now largely supervisory; utilised sick leave for all absences to date; Held – claimant honest stoic man; life expectancy 24 years; no suggestion amelioration in cervical spine condition; possibility of future surgery; non-economic loss assessed at $375,000; no entitlement to value of sick leave where employer not prepared to reinstate sick leave if reimbursed; representation by insurer as to recredit of sick leave not create an estoppel; damages for loss of opportunity to receive performance-based salary increase assessed at $25,000; future economic loss assessed on basis claimant only able to work part-time three days a week deferred for three years for the remaining four years until retirement; buffer of $100,000 for possibility of early retirement, loss of chance sick leave will be adequate for future absences from work and for loss of opportunity to receive future performance based salary increases; total future economic loss assessed at $216,767.69; total damages assessed at $616,767.69; costs assessed in favour of claimant.
Decision date: 13 December 2024 | Member: Susan McTegg
Lacson v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 696
Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether travel expenses to and from claimant’s work satisfies the definition of “treatment and care” for the purposes of section 3.24; insurer submitted not entitled to the expenses as travel expenses not for the purposes of seeking treatment; s3.24(1)(b); Held – application of section 3.24(1)(a) is not to be applied in the context of section 3.24(1)(b); travel expenses to and from work as recommended by treating practitioners satisfies the definition of treatment and care, and rehabilitation and attendant care services as set out in section 1.4.
Decision date: 13 December 2024 | Member: Elizabeth Medland
Mourad v QBE Insurance (Australia) Limited [2024] NSWPIC 700
Motor Accident Injuries Act 2017; motor vehicle accident; assessment of damages; claim for damages pursuant to section 7.36; non-economic loss for post-traumatic stress psychological injury; section 4.1.3 applied; Hodgson v Crane applied; section 4.7 applied; James Hardie & Co v Newton, Medlin v State Government Insurance Commission, Nominal Defendant v Livaja, and Penrith City Council v Parks applied; Held – buffer for past and future economic loss assessed at $351,136.00; general damages assessed at $400,000.00; claimant’s costs assessed at $60,451.80 inclusive of GST.
Decision date: 16 December 2024 | Member: Terence Stern OAM
Workers Compensation non-Presidential Member Decisions
Objection to compliance with notice to produce seeking second respondent’s personnel file on grounds that the request was too vague and wide; notice of opposition to the objection claimed the documents were directly relevant to dispute, unambiguous and ought to be readily available; R v Saleam considered; Held – applicant directed to comply with the second respondent’s Notice to Produce within 14 days.
Decision date: 18 November 2024 | Member: Rachel Homan
Workers Compensation Act 1987; claim made in disputing liability to pay a section 145 Statutory Notice; the second respondent suffered an injury within the meaning of sections 4 and 9A; the provisions of section 9B did not apply; Department of Corrective Services v Clifton applied; Held – applicant directed to pay the statutory notice.
Decision date: 12 December 2024 | Senior Member: Elizabeth Beilby
Shahin v Plaspro Enterprises Pty Ltd [2024] NSWPIC 698
Workers Compensation Act 1987; section 65(5); determination of secondary psychological injury where disputed prior to referral to Medical Assessor for assessment of permanent impairment; State of New South Wales (NSW Department of Education) v Kaur; Secretary, Department of Education v Egan; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd; Held – the applicant sustained a primary psychological injury in the course of his employment with the respondent and a secondary psychological injury consequent on physical injuries.
Decision date: 13 December 2024 | Member: Mitchell Strachan
Qoreishi v B2C Delivers Pty Ltd & Anor [2024] NSWPIC 699
Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for weekly compensation payments pursuant to section 37 of the 1987 Act; claim for medical treatment expenses pursuant to section 60 of the 1987 Act; whether the applicant was a worker pursuant to section 4 of the 1998 Act; written contract between parties; nature of contract and required services; whether employment or contractor arrangement; ZG Operations Australia Pty Ltd v Jamsek considered; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd considered; Held – applicant not a worker; award for the respondent.
Decision date: 13 December 2024 | Member: Adam Halstead
Pulido v Dimeo Indigenous Cleaning Pty Ltd [2024] NSWPIC 701
Workers Compensation Act 1987; psychological injury; claim for weekly payments and treatment expenses; accepted psychological injury; whether the applicant's injury wholly or predominantly the result of reasonable action with respect to performance appraisal and/or discipline; applicant claimed failure by management to deal with his accepted claim for physical injury; claimed bullying; pressured to sign Return to Work Plan; whether the respondent’s doctor had evaluated the range of factors claimed by the applicant; Held – the doctor had not performed that evaluative exercise but relied on a temporal connection only; the respondent had not discharged its onus of establishing the defence under section 11A; respondent to pay weekly payments and reasonably necessary medical expenses.
Decision date: 16 December 2024 | Member: Jill Toohey
Al-Kanani v GMS Spares Pty Ltd [2024] NSWPIC 702
Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker suffered injury in 2017 and was assessed by Medical Assessor (MA) in 2020 for permanent impairment at 13%; appeal by applicant against Medical Assessment Certificate (MAC) unsuccessful; applicant filed further application in 2023 pursuant to section 329(1) of the 1998 Act alleging deterioration; contested application before Member in 2023 which allowed further assessment under s 329; further assessment by MA certified permanent impairment at 15%; respondent filed application to rescind previous Member’s decision to allow further assessment asserting it is wrong as this breached section 322A; respondent did not raise section 322A submission before original Member when this submission was clearly available; error in not raising argument fault by respondent’s solicitors; no error by Member in failing to address an argument not put; Bramble Industries Ltd v Bell applied; application for reconsideration otherwise inappropriate method of correcting alleged error which should be addressed by Presidential member; Held – claim for reconsideration of Member’s decision dismissed; further MAC confirmed.
Decision date: 16 December 2024 | Principal Member: John Harris
Bishop v Qantas Airways Ltd [2024] NSWPIC 703
Workers Compensation Act 1987 (1987 Act); claim pursuant to section 60 for the costs of left shoulder pyrocarbon hemi-arthrosplasty; respondent disputed liability as the prosthetic device proposed to be used in the surgery was not listed on the Department of Health Prostheses List, and therefore it was unable to determine that the proposed surgery was reasonably necessary; applicant maintained that clause 8 of the Workers Compensation (Private Hospital Maximum Rates) Order 2024 is ultra vires the 1987 Act; consideration of McEldowney v Forde, Watson v Marshall, Day v Harness Racing New South Wales, Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue, Project Blue Sky Inc v ABA, and Pelama v Blake; Held – clause 8 of the Workers Compensation (Private Hospital Maximum Rates) Order 2024 is not ultra vires the 1987 Act; sections 62(6) and 62(6A) of the 1987 Act apply to allow direction that additional amount payable; award for the applicant for the costs of surgery as claimed.
Decision date: 16 December 2024 | Senior Member: Kerry Haddock
McNulty v Australian Turf Club Ltd [2024] NSWPIC 704
Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33; claim for medical and related expenses of bilateral total knee replacement surgery pursuant to section 60; claim for lump sum compensation for permanent impairment pursuant to section 66; accepted that bilateral total knee replacement surgery was reasonably necessary and that applicant was totally incapacitated for work as a result of that surgery; whether the applicant sustained injury to his bilateral knees pursuant to section 4(b)(ii); whether the bilateral total knee replacements were reasonably necessary as a result of the injury; whether the applicant was and remained totally incapacitated for work as a result of the injury; Held – applicant sustained injury to his bilateral knees due to the nature and conditions of his employment between July 2006 and 23 October 2023, with a deemed date of injury of 23 October 2023, in the nature of an aggravation of a disease process, to which his employment with the respondent was the main contributing factor pursuant to section 4(b)(ii); the bilateral knee replacements performed by Dr Bateman on 23 October 2023 was reasonably necessary as a result of the injury; the applicant was and remained totally incapacitated for work as a result of injury from 23 October 2023 to 29 January 2024; the matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment; the respondent to pay the applicant’s medical and related expenses, including bilateral knee replacements, pursuant to section 60, upon production of accounts, receipts or Medicare Notice of Charge; respondent to pay the applicant weekly compensation in the amount of $1,551.10 per week for the period from 23 October 2023 to 29 January 2024, pursuant to section 36.
Decision date: 17 December 2024 | Member: Karen Garner
Hillsley v Hillsbus Co Pty Ltd [2024] NSWPIC 705
Whether the worker sustained a consequential condition of the right elbow which results from injury to the left shoulder; consideration of Moon v Conmah Pty Ltd; whether the left shoulder injury materially contributed to the right elbow condition/injury; consideration of Ozcan v Macarthur Disability Services Ltd; whether injury to the left shoulder and right elbow result from the same injurious incident; Held – worker sustained a consequential condition to the right elbow which results from injury to the left shoulder; the left shoulder injury materially contributed to the right elbow condition; injury to the left shoulder and right elbow do not result from the same injurious incident; however, there can be one assessment of impairment for injury to the left arm and right elbow.
Decision date: 17 December 2024 | Member: Diana Benk
Elmobayed v Woolworths Group Ltd [2024] NSWPIC 706
Claim that consent order giving award to respondent was capable of more than one meaning and did not raise an estoppel to payment of compensation for surgery related to the aggravation of a previously asymptomatic first rib tumour; Held – claimant estopped, observations on objective nature of interpretation of language used; Etherton v ISS Property Services Pty Ltd considered and applied; award for the respondent.
Decision date: 17 December 2024 | Member: John Wynyard
Hatherall v TOGA Group [2024] NSWPIC 707
Workers Compensation Act 1987 (1987 Act); the applicant claims weekly benefits and medical or related treatment expenses payable under the 1987 Act resulting from primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with defence raised under section 11A(1) with respect to performance appraisal, discipline and/or dismissal; the respondent does not dispute the applicant has no current work capacity resulting from the injury; the respondent does not dispute the applicant requires reasonably necessary medical or related treatment for her injury; Held – the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal, discipline and/or dismissal; the applicant has entitlement to weekly compensation and medical or related treatment expenses payable under the 1987 Act.
Decision date: 17 December 2024 | Member: Jacqueline Snell
Roche v ISS Property Services Pty Ltd [2024] NSWPIC 708
Workers Compensation Act 1987; the respondent conceded injury but raised an issue as to the mechanism of injury, and claimed the effects thereof had ceased, therefore the applicant was not entitled to continuation of weekly benefits or medical expenses; findings on the mechanism of injury and that the effects of such injury had not ceased; finding that the applicant has a current work capacity having regard to what was determined in Wollongong Nursing Home v Dewar; award for the applicant for weekly benefits and medical expenses pursuant to sections 37 and 60.
Decision date: 17 December 2024 | Member: Brett Batchelor
Clark v Lewis t/as Ben Lewis Dozer Hire [2024] NSWPIC 709
Claim for medical and related treatment expenses in respect of a cervical spine injury when a tree was pushed onto the applicant; whether the applicant was a “worker” or “deemed worker” when he sustained the injury; the applicant operated a heavy machinery haulage business and had provided services to the respondent previously as an independent contractor; whether a separate contract of service was created to perform tree-felling work; Stevens v Brodribb Sawmilling Co Pty Ltd, Hollis v Vabu Pty Ltd, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd,and On Call Interpretersand Translators Agency Pty Ltd v Commissioner of Taxation (No 3) considered and applied; Held – the applicant was a “worker” in the course of employment with the respondent at the time he sustained the injury; in the alternative, the applicant was a “deemed worker’; order for the respondent to pay incurred treatment expenses.
Decision date: 18 December 2024 | Member: Rachel Homan
Ngo v Philip Leong Stores Pty Ltd [2024] NSWPIC 710
Workers Compensation Act 1987; accepted injury to the applicant’s back, right shoulder and right knee due to the nature and conditions of his employment, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which his employment with the respondent was the main contributing factor pursuant to section 4(b)(i); claim for permanent impairment lump sum compensation under section 66, weekly compensation pursuant to sections 33 and 38, and medical and related expenses pursuant to section 60; whether the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(i); whether the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(ii); Held – the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(i); the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(ii); general order for medical and related expenses pursuant to section 60; matter referred to approved medical specialist for assessment of whole person impairment; after issue of a Medical Assessment Certificate, matter to be relisted for conference to address the issue of weekly compensation.
Decision date: 18 December 2024 | Member: Karen Garner
Spice v Catholic Healthcare Ltd [2024] NSWPIC 712
Whether the applicant suffered consequential conditions to his lumbar spine, upper limbs (shoulders), left lower limb and Dupuytren’s contracture as a result of an accepted right ankle/foot injury on 27 July 2014; gaps and inconsistencies in the medical evidence; the value of contemporaneous evidence; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates; Makita (Australia) Pty Ltd v Sprowles; Held – award for the respondent for claims relating to left lower limb and Dupuytren’s contracture; the applicant has a consequential condition of the lumbar spine, bilateral upper extremities (shoulders) as a result of accepted right ankle/foot injury; matter referred to a Medical Assessor for assessment of whole person impairment of bilateral upper limbs (shoulders), right ankle/foot, lumbar spine and scarring.
Decision date: 18 December 2024 | Member: Diana Benk
Malone v Hunter Recruitment Solutions Pty Ltd [2024] NSWPIC 713
Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; undisputed right ankle injury, disputed complex regional pain syndrome and consequential lumbar spine condition; Held – whether the applicant has complex regional pain syndrome to be determined by a Medical Assessor; applicant sustained a consequential lumbar spine condition; matter remitted to President for referral to a Medical Assessor.
Decision date: 19 December 2024 | Member: Fiona Seaton
Adzic v PartyLite Pty Ltd [2024] NSWPIC 714
Claim for permanent impairment in relation to psychological injury; injury in the nature of aggravation to pre-existing condition; whether respondent was the last employer whose employment was a substantial contributing factor to the aggravation of the applicant’s condition; Held – the evidence does not establish the applicant’s post-injury subsequent employment was a substantial contributing factor to the aggravation of his psychological condition; matter remitted to the President for referral to a Medical Assessor to determine the applicant’s whole person impairment.
Decision date: 19 December 2024 | Member: Cameron Burge
Abulughud v Abdelqader [2024] NSWPIC 715
Lump sum claim for disputed consequential left upper extremity arising from neuropathic pain; causation; factual and medical opinion considered; Kooragang Cement Ltd v Bates applied; Held – award for applicant; matter referred for medical assessment.
Decision date: 19 December 2024 | Member: Michael Wright
Ceniza v NSW Health Pathology [2024] NSWPIC 716
Workers Compensation Act 1987; accepted injury to the right shoulder and cervical spine; acceptance that proposed right shoulder arthroscopic acromioplasty, ACL excision and biceps tenodesis surgery result from accepted injury; dispute as to whether the proposed surgery is reasonably necessary in view of available alternative treatment; section 60; principles in Diab v NRMA Limited considered and applied; Held – applicant discharged onus of proof that the proposed surgery is reasonably necessary as a result of the accepted injury, within the meaning of section 60; respondent to pay the cost of, and incidental to, the proposed surgery.
Decision date: 19 December 2024 | Member: Kathryn Camp
Verrelli v Georges River Council [2024] NSWPIC 717
Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation and treatment expenses pursuant to section 60, as well as lump sum compensation pursuant to section 66; determination re injury required before claims can be determined; consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained a psychological injury in accordance with section 4 as a result of employment events occurring during the course of his employment with the respondent; Attorney General’s Department v K, Paric v John Holland (Constructions) Pty Limited, Dasreef v Hawchar, Forrester v Harris Farm Pty Ltd, BGV v Waverley Council, Kooragang Cement Pty Ltd v Bates, AV v AW, Commissioner for Railways v Bain, Fletcher International Exports Pty Limited v Barrow & Anor, and Perry v Tanine Pty Limited t/as Ermington Hotel considered; consideration of whether the respondent can establish that the applicant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to transfer, retrenchment, dismissal or the provision of employment benefits pursuant to section 11A; Pirie v Franklins Limited, Department of Education and Training v Sinclair, Manly Pacific International Hotel Pty Limited v Doyle, Insurance Australia Group Services Pty Limited v Outram, Ponnan v George Weston Foods Limited, Temelkov v Kemblawarra Portugese Sports and Social Club Limited, Smith v Roads and Traffic Authority of NSW, and Hamad v Q Catering Limited considered; Held – the applicant sustained injury in accordance with section 4(b)(ii); the respondent has failed to establish its defence under section 11A; the applicant is referred to medical assessment to determine the degree of his whole person impairment.
Decision date: 19 December 2024 | Member: Gaius Whiffin
Grasso v The Trustee for The Venton Group Trust [2024] NSWPIC 718
Personal Injury Commission Act 2020; reconsideration application; section 57; Samuel v Sebel Furniture Limited applied; Held – that application for reconsideration granted.
Decision date: 20 December 2024 | Member: Karen Garner
Mina v Healius Pathology Pty Ltd [2024] NSWPIC 719
Workers Compensation Act 1987; claim for lump sum compensation, weekly benefits and medical and related treatment expenses for injury to multiple body parts due to nature and conditions of employment as a data entry operator; degenerative pathology at all body parts; whether aggravation injury pursuant to section 4(b)(ii); whether causal mechanism adequately explained; Held – the applicant sustained injury to her neck, shoulders and wrists; applicant’s onus not discharged in respect of allegation of injury to her lumbar spine; matter remitted for referral to a Medical Assessor; consideration of claim for weekly compensation and medical expenses deferred until receipt of the Medical Assessment Certificate.
Decision date: 20 December 2024 | Member: Rachel Homan
Veli v Daikin Australia Pty Ltd [2024] NSWPIC 720
Workers Compensation Act 1987; claim for weekly benefits and lump sum compensation in respect of psychological injury; whether injury wholly or predominantly caused by reasonable action by or on behalf of the employer pursuant to s 11A(1) where clinical notes and applicant’s lay evidence indicated injury was due to multiple adverse interactions over several years; decompensation following informal meeting to discuss conduct issues; Held – respondent failed to establish injury wholly or predominantly caused by the meeting and subsequent events; section 11A(1) defence fails; no medical dispute regarding degree of permanent impairment; award for compensation pursuant to section 66; award for weekly compensation pursuant to section 38(6).
Decision date: 20 December 2024 | Member: Rachel Homan
2 Shores Pty Ltd v Workers Compensation Nominal Insurer (iCare) [2024] NSWPIC 721
Workers Compensation Act 1987; application by uninsured employer pursuant to section 145(3); findings made that “injury” under section 4 had not been established, or if it had been, the employer had a defence under section 11A in relation to its reasonable conduct in respect of discipline and dismissal; Held – the applicant (employer) has no liability in respect of the payment concerned in the notice issued by the respondent seeking recovery of payments made in respect of the worker; award in favour of the applicant.
Decision date: 20 December 2024 | Principal Member: Josephine Bamber
Motor Accidents Medical Review Panel Decisions
Garcia v Allianz Australia Insurance Limited [2024] NSWPICMP 407
Motor Accidents Compensation Act 1999; claimant injured in a motor accident when a vehicle collided with the front driver’s side of the claimant’s vehicle; dispute as to whether 0 to 6 hour per week (and every hour in between) of domestic assistance arising from all physical injuries caused by the accident from the date of the accident to the date of the Medical Assessment Service (MAS) assessment is reasonable and necessary in relation to the injuries sustained in the accident; MAS Assessor determined that the claimant sustained soft tissue injuries to his neck and back in the accident which had resolved within 2 years of the accident and that any future domestic assistance from the date of the MAS assessment is not causally related to the accident; matter referred to a Medical Assessor (MA) to determine the amount of domestic care needs; MA determined that the following domestic assistance was reasonable and necessary in relation to the injuries sustained in the motor accident – 3 hours per week for 12 weeks from the date of the accident to 14 December 2017, 1.25 hours per week for a further 6 months from 14 December 2017 to 14 June 2018, 0.75 hours per week from 15 June 2018 until 2 years post-accident (21 September 2019), 0 hours per week from 21 September 2019 and continuing for the remainder of the claimant’s life expectancy; claimant re-examined; Held – the soft tissue injuries to the claimant’s neck and back are likely to have recovered within two years of the accident on 21 September 2017 and any symptoms and disabilities thereafter are due to age-related degeneration; the following domestic assistance is reasonable and necessary in the circumstances and relates to the injuries caused by the accident – 8 hours and 30 minutes per week from 21 September 2017 to 20 December 2017, 4 hours and 30 minutes per week from 21 December 2017 to 20 March 2018, 2 hours and 5 minutes per week from 21 March 2018 to 20 March 2019, and 45 minutes per week from 21 March 2019 until 20 September 2019; any domestic assistance in addition to the above during the period from the date of the motor accident on 21 September 2017 to the date of the MAS Assessment is not reasonable and necessary in the circumstances and does not relate to the injuries caused by the motor accident; certificate of MA revoked.
Decision date: 24 June 2024 | Panel Members: Member Cameron Thompson, Dr Christopher Oates, and Dr Judith Davidson | Treatment Type: Domestic Assistance
Allianz Australia Insurance Limited v Garcia [2024] NSWPICMP 526
Motor Accidents Compensation Act 1999; claimant was injured in a motor accident on 21 September 2017 when he was driving a vehicle through an intersection and a vehicle which was turning right across the path of the claimant’s vehicle collided with the front driver’s side of it; dispute as to whether the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is greater than 10%; Medical Assessor (MA) found that the injury to the lumbar spine, abdomen – shrapnel injury, and abdominal wall injury – incisional hernia were caused by the motor accident and assessed that these injuries give rise to a combined whole person impairment (WPI) of 18% and that the injuries to the cervical spine, left arm and left wrist caused by the motor accident have resolved with no assessable impairment; claimant re-examined; Held – the motor accident caused a soft tissue injury to the lumbar spine, a shrapnel injury to the abdomen, a soft tissue injury to the cervical spine and friction burns to the left forearm/wrist; the motor accident did not cause an abdominal wall injury and an injury to the right forearm and wrist; the soft tissue injury to the cervical spine and friction burns to the left forearm/wrist have resolved; Medical Review Panel assessed WPI at 5% for the lumbar spine and 0% for the abdomen-shrapnel injury; degree of permanent impairment as a result of the injuries caused by the motor accident is not greater than 10%; certificate of MA revoked.
Decision date: 31 July 2024 | Panel Members: Member Cameron Thompson, Dr Ian Cameron, and Dr Christopher Oates | Injury module: Spine, Upper Limb, and Digestive System
Insurance Australia Limited t/as NRMA Insurance v Rillstone [2024] NSWPICMP 566
Motor Accident Injuries Act 2017; degree of permanent impairment; physical injury; combined certificate; Medical Assessor Curtin assessed left knee significant post-surgical scarring, finding a 2% whole person impairment (WPI); Medical Assessor Nair assessed left knee, left knee multiligamentous injury finding an 11% WPI and also finding a 2% WPI for scarring; Medical Assessor Curtin then issued a combined certificate certifying that the claimant’s total WPI arising from the accident was 15%; Held – Medical Review Panel (Panel) found the left knee injury being meniscal tears, patella-femoral arthritis and flexion contracture resulted in a WPI of 6%; Panel confirmed a finding of 2% WPI for scarring; Panel revoked the earlier certificate, reissued the certificate and issued a new combined certificate.
Decision date: 14 August 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Shane Moloney, and Dr Drew Dixon | Injury module: Lower Limb
Mansour v Allianz Australia Insurance Limited [2024] NSWPICMP 568
Motor Accident Injuries Act 2017; claimant injured in a motor accident on 20 September 2018 when she was alighting from a bus; dispute as to whether the degree of permanent impairment of the claimant that has resulted from the injury caused by the motor accident is greater than 10%; Medical Assessor (MA) found that the injury to the right wrist, cervical spine, lumbar spine, head, right knee, left knee, right leg (thigh), chest and right shoulder were caused by the accident but that the injury to the right hip and left shoulder were not caused by the accident; MA assessed that the injuries caused by the accident give rise to a combined whole person impairment (WPI) of 7% – 0% for the cervical spine, lumbar spine, right leg (thigh) and chest, 2% for the right wrist and 9% for the right shoulder; claimant re-examined; Held – the accident caused injuries to the right wrist, right shoulder, right hip, cervical spine, lumbar spine, right knee, left knee and chest; the injuries to the left shoulder and pelvis were not caused by the accident; the injuries to the right hip, right knee, left knee and chest have resolved with no assessable impairment; WPI assessed at 3% for the right wrist and right shoulder (right upper extremity) and 0% for both the cervical spine and lumbar spine; certificate of MA revoked.
Decision date: 15 August 2024 | Panel Members: Member Cameron Thompson, Dr Shane Moloney, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, Lower Limb, and Brain Injury
Bastola v Allianz Australia Insurance Limited [2024] NSWPICMP 589
Motor Accident Injuries Act 2017; medical dispute about threshold injury; psychological injury; Medical Assessor (MA) Rickard-Bell considered psychiatric condition – post-traumatic stress disorder, found that the injury caused by the motor accident was adjustment disorder and was a minor or threshold injury; MA Rickard-Bell Found post-traumatic stress disorder was not caused by the accident; re-examination by Medical Review Panel (Panel); Panel found post-traumatic stress disorder was not caused by the accident; Panel found persistent depressive disorder that was not a minor or threshold injury; Held – Panel found persistent depressive disorder that was not a minor or threshold injury; Panel revoked the earlier certificate and issued a new certificate.
Decision date: 21 August 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Michael Hong, and Dr Christopher Canaris | Injury module: Mental and Behavioural
Insurance Australia Limited t/as NRMA Insurance v Ulkin [2024] NSWPICMP 643
Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment; physical injuries to cervical spine, lumbar spine, right shoulder, right hip, right knee, right ankle, right foot, right arm secondary to cervical spine impairment, left arm, secondary to cervical spine impairment, left knee, and stomach; Medical Assessor (MA) Berry found that the injuries to cervical spine, lumbar spine, right shoulder, right hip, right knee, right ankle, right foot, right arm, secondary to cervical spine impairment caused by the motor accident; MA Berry found that the injuries to left arm secondary to cervical spine impairment, left knee, and stomach were not caused by the motor accident; MA Berry assessed whole person impairment (WPI) as follows: cervical spine 5%, lumbar spine 5%, right shoulder 5%, right hip, right knee 2%, right foot 0% finding a 17% WPI; re-examination by Medical Review Panel (Panel); Panel found that the injuries to cervical spine, lumbar spine, right shoulder, right hip, right knee, right ankle, right foot, right arm, secondary to cervical spine impairment were caused by the motor accident; Panel found that the injuries to left arm secondary to cervical spine impairment, left knee, and stomach were not caused by the motor accident; Panel assessed WPI as follows: cervical spine 0%, lumbar spine 0%, right shoulder 2%, right knee 2%, right foot 0% finding a total 4% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 4%; Panel revoked the earlier certificate and issued a new certificate.
Decision date: 12 September 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Margaret Gibson, and Dr Ian Cameron | Injury module: Spine, Upper Limb, Lower Limb, and Digestive System
Younes v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 644
Motor Accident Injuries Act 2017; medical dispute about threshold injury; physical injury; Medical Assessor (MA) Woo considered the injuries to cervical spine, left elbow, right elbow, left hand wrist, left shoulder, and right shoulder; MA Woo found that the injuries to cervical spine and left hand wrist were caused by the motor accident; MA Woo found that the injuries to left elbow, right elbow, left shoulder, and right shoulder were not caused by the motor accident; MA Woo found the injuries to cervical spine and left hand wrist were a minor or threshold injury; re-examination by Medical Review Panel (Panel); Panel found that the injuries to cervical spine, left elbow, right elbow tear in the extensor tendon, left hand wrist were caused by the motor accident; Panel found that the injuries to right elbow tear in the biceps tendon, left shoulder, and right shoulder were not caused by the motor accident; Panel found the right elbow tear in the extensor tendon was not a minor or threshold injury; Panel found the injuries to left shoulder and right shoulder were a minor or threshold injury; Held – Panel found the right elbow tear in the extensor tendon was not a minor or threshold injury; Panel revoked the earlier certificate and issued a new certificate.
Decision date: 12 September 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Christopher Oates, and Dr Les Barnsley | Injury module: Spine and Upper Limb
Insurance Australia Limited t/as NRMA Insurance v Taggart [2024] NSWPICMP 646
Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment; physical injuries to cervical spine, lumbar spine, left shoulder, right shoulder, left hand and right hand, left wrist and right wrist, left hip, left knee, left foot and right foot; Medical Assessor (MA) Herald found that the injuries to cervical spine, lumbar spine, left shoulder, right shoulder, left hand and right hand, left wrist and right wrist, left hip, left knee, left foot and right foot were caused by the motor accident; MA Herald found that the injuries to left arm secondary to cervical spine impairment, left knee, and stomach were not caused by the motor accident; MA Herald assessed whole person impairment (WPI) as follows: cervical spine 0%, lumbar spine 5%, both shoulders 16%, both hands and wrists 0%, both feet, 0%, left knee 0%, left hip 0% finding a 21% WPI; issue re-assessment of “both shoulders”; re-examination by Medical Review Panel (Panel); the Panel found that the injuries to cervical spine, lumbar spine, left shoulder, right shoulder, left foot and right foot were caused by the motor accident; the Panel found that the injuries to left hip and left knee were caused by the motor accident but had resolved; the Panel found that the injuries to left hand and right hand, left wrist and right wrist were not caused by the motor accident; the Panel assessed WPI as follows: cervical spine 0%, lumbar spine 0%, left shoulder 7%, right shoulder 8%, finding a total 14% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 14%; the Panel revoked the earlier certificate and issued a new certificate.
Decision date: 12 September 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Shane Moloney, and Dr Drew Dixon | Injury module: Spine, Upper Limb, and Lower Limb
Allianz Australia Insurance Limited v Buestami [2024] NSWPICMP 647
Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment; psychological injury; major depressive episode with anxious distress with features of post-traumatic stress disorder; Medical Assessor (MA) Shen found that the injuries were caused by the motor accident; exacerbation of major depressive disorder, with current major depressive episode, with symptom exaggeration; MA Shen found that the following injuries were not caused by the motor accident ongoing grief related to the death of his mother and complex post-traumatic stress disorder related to his childhood adversity; MA Shen assessed whole person impairment (WPI) as follows exacerbation of major depressive disorder, with current major depressive episode, with symptom exaggeration 19%; re-examination by Medical Review Panel (Panel); the Panel found that the following injuries recurrence of the post-traumatic stress disorder were caused by the motor accident; the Panel assessed WPI as follows: recurrence of the post-traumatic stress disorder 9%; Held – the injuries caused by the motor accident give rise to a permanent impairment of 9%; the Panel revoked the earlier certificate and issued a new certificate.
Decision date: 12 September 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Michael Hong, and Dr Matthew Jones | Injury module: Mental and Behavioural
Cubito v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 674
Permanent impairment; whether injuries caused by the motor accident give rise to a whole person impairment of greater than 10%; soft tissue injuries to the cervical spine, chest, lumbar spine and left knee; Held – permanent impairment not greater than 10%.
Decision date: 24 September 2024 | Panel Members: Member Bridie Nolan, Dr Adeline Hodgkinson, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, Lower Limb, and Brain Injury
Milic v AAI Limited t/as AAMI [2024] NSWPICMP 675
Motor Accident Injuries Act 2017; medical dispute about threshold injury; physical injuries to cervical spine, lumbar spine, left shoulder, and right shoulder; Medical Assessor (MA) Assem found that the injuries to cervical spine, lumbar spine, left shoulder, and right shoulder were caused by the motor accident; MA Assem found the injuries to cervical spine, lumbar spine, left shoulder, right shoulder were a minor or threshold injury; re-examination by Medical Review Panel (Panel); the Panel found that the following injuries were caused by the motor accident soft tissue injuries to the cervical spine, lumbar spine, left shoulder, and right shoulder; the Panel found that the following injuries were not caused by the motor accident cervical spine, a C6/7 left paramedian disc herniation and lumbar spine, an L5/S1 broad-based disc bulge without nerve compression; the Panel found the following injuries soft tissue injuries to the cervical spine, lumbar spine, left shoulder, and right shoulder were a minor or threshold injury; Held – the Panel found the following injuries: soft tissue injuries to the cervical spine, lumbar spine, left shoulder, and right shoulder were a minor or threshold injury; the Panel affirmed the earlier certificate.
Decision date: 24 September 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Clive Kenna, and Dr Margaret Gibson | Injury module: Mental and Behavioural, Spine, and Upper Limb
Allianz Australia Insurance Limited v Blachura [2024] NSWPICMP 676
Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment, physical injuries to cervical spine, sternum and ribs; Medical Assessor (MA) Berry found that the injuries to cervical spine, sternum and ribs were caused by the motor accident; MA Berry found that the injuries to sternum and ribs had resolved; MA Berry assessed whole person impairment (WPI) as follows: cervical spine 15%; Re-examination by Medical Review Panel (Panel); Panel found that the injuries to cervical spine, sternum and ribs were caused by the motor accident; Panel found that the injuries to sternum and ribs had resolved; Panel assessed WPI as follows: cervical spine 15%, finding a total 15% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 15%; Medical Assessment Certificate confirmed.
Decision date: 24 September 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Margaret Gibson, and Dr Drew Dixon | Injury module: Spine and Upper Limb
Insurance Australia Limited t/as NRMA Insurance v Fardoulis [2024] NSWPICMP 718
Motor Accidents Compensation Act 1999; claimant injured in a motor accident on 9 January 2017 when another vehicle struck the rear passenger side of the vehicle he was driving; dispute as to whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%; Medical Assessor (MA) found that the claimant’s obstructive sleep apnoea was caused by the accident and gave rise to a whole permanent impairment (WPI) of 5%; Medical Review Panel (Panel) agreed with the diagnosis of obstructive sleep apnoea but determined that the accident did not cause or materially contribute to this injury; Panel found that the claimant did not sustain any direct injuries in the accident which are likely to have caused him to develop obstructive sleep apnoea; Panel did not accept that weight gain since the motor accident secondary to the physical injuries the claimant sustained in the accident caused or materially contributed to the obstructive sleep apnoea or that the sleep apnoea was caused by pre-accident anxiety or that the cause of the obstructive sleep apnoea is pain secondary to the physical injuries to the cervical and lumbar spine sustained in the accident; whilst the Panel accepted that the presence of pain can disturb sleep, pain is not a medically accepted cause of obstructive sleep apnoea; Panel found that the claimant’s sleep disturbance is caused by both his obstructive sleep apnoea (which was not caused by the accident) and pain arising from his physical injuries; Panel accepted that the claimant suffers from chronic plain as a consequence of his physical injuries and that this disturbs his sleep but was of the opinion that because the claimant’s pain condition is not assessable separately from his physical conditions, the sleep dysfunction or disturbance which is caused by the pain is also not separately assessable for the purposes of WPI, that it is the body part or system which gives rise to the pain that is to be assessed for the purposes of WPI; clause 1.38 of the Motor Accident Permanent Impairment Guideline; Bucca v QBE Insurance (Australia) Limited; sleep is not identified as a body part or system to be assessed as contributing to the level of permanent impairment and, like pain itself, must be incorporated into the assessment of the body part or system which is the source of the pain; Held – claimant’s obstructive sleep apnoea was not caused by the accident and there is no assessable impairment; certificate of MA revoked.
Decision date: 16 October 2024 | Panel Members: Member Cameron Thompson, Dr Ian Cameron, and Dr Margaret Gibson | Injury module: Spine
Petrovic v QBE Insurance (Australia) Limited [2024] NSWPICMP 725
Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment; physical injuries to cervical spine, left knee and right hand; Medical Assessor (MA) Herald found that the injuries to cervical spine, left knee and right hand were caused by the motor accident; MA Herald assessed whole person impairment (WPI) as follows: cervical spine 15%, left knee 2% and right hand 0%; re-examination by Medical Review Panel (Panel); Panel found that the injuries to cervical spine, left knee and right hand were caused by the motor accident; Panel assessed WPI as follows: cervical spine 5%, left knee 0% and right hand 1% finding a total 6% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 6%; Medical Assessment Certificate revoked.
Decision date: 22 October 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Shane Moloney, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb
Bana v AAI Limited t/as GIO [2024] NSWPICMP 727
Motor Accident Injuries Act 2017; medical dispute about treatment; physical injury; treatment standard physiotherapy consultation, eight sessions, between fortnightly and monthly; Medical Assessor (MA) Home concluded that the treatment was not reasonable and necessary; MA Home concluded that the treatment will not improve the recovery of the injured person; Medical Review Panel (Panel) found that the motor accident did cause the cervical spine, lumbar spine, right shoulder, right elbow and right knee injuries, being soft tissue injuries; the Panel found that the treatment was related to injuries caused by the motor accident; Diab v NRMA Ltd considered; the Panel found that the treatment is not reasonable and not necessity and will not improve the recovery of the injured person; Held – the treatment is not reasonable and not necessity and will not improve the recovery of the injured person; the Panel affirmed the earlier certificate.
Decision date: 22 October 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Margaret Gibson, and Dr Trudy Rebbeck | Injury module: Spine
AAI Limited t/as AAMI v Tran [2024] NSWPICMP 740
Motor Accident Injuries Act 2017 (the MAI Act); claimant suffered physical and psychological injuries in a motor accident on 9 January 2018 whilst driving a vehicle which had stopped at a red traffic light; another vehicle collided with the rear of the claimant’s vehicle causing his vehicle to collide with the vehicle in front of it; dispute as to whether the claimant’s psychological injury caused by the motor accident is a minor injury for the purposes of the MAI Act; Medical Assessor (MA) issued a certificate when the relevant term was “minor injury”; minor injury now described as a threshold injury; MA determined that the claimant had a specific phobia of car travel now in partial remission and a persistent depressive disorder which were caused by the motor accident and that these injuries are not minor (threshold) injuries; claimant re-examined; Held – the claimant meets the DSM-5 criteria for a specific phobia of car travel in partial remission and this injury was caused by the motor accident and is not a threshold injury for the purposes of the MAI Act; claimant does not meet the DSM-5 criteria for a diagnosis of a persistent depressive disorder; a psychiatric injury caused by a motor accident which fulfills the diagnostic criteria under DSM-5 for the diagnosis of a specific phobia at any time after the accident remains a specific phobia and therefore a non-minor (non-threshold) injury even if the symptoms relating to that injury subsequently improve or go into remission (applying Lynch v AAI Limited t/as AAMI); Panel certified that the psychological injury caused by the accident is not a threshold injury for the purposes of the MAI Act; certificate of MA revoked.
Decision date: 25 October 2024 | Panel Members: Member Cameron Thompson, Dr Michael Hong, and Dr Atsumi Fukui | Injury module: Mental and Behavioural
AAI Limited t/as GIO v Mousa [2024] NSWPICMP 799
Motor Accident Injuries Act 2017; medical dispute about treatment; physical injury; treatment post-operative; physiotherapy treatment for the right knee; medical specialist consultation with Dr Molnar for the right knee; MRI scan for the right knee; right knee arthroscopy; Medical Assessor (MA) Nair concluded that the following treatment related to the motor accident post-operative physiotherapy treatment for the right knee, physiotherapy treatment for the right knee, medical specialist consultation with Dr Molnar for the right knee MRI scan for the right knee, and right knee arthroscopy; MA Nair concluded that the following treatment was reasonable and necessary post-operative physiotherapy treatment for the right knee, physiotherapy treatment for the right knee, medical specialist consultation with Dr Molnar for the right knee MRI scan for the right knee, and right knee arthroscopy; re-examination by Medical Review Panel (Panel); the Panel found that the motor accident did not cause the right knee injury; the Panel found that the following treatment was not related to the motor accident post-operative physiotherapy treatment for the right knee, physiotherapy treatment for the right knee, medical specialist consultation with Dr Molnar for the right knee, MRI scan for the right knee, and right knee arthroscopy; Held – the following treatment was not related to the motor accident, post-operative physiotherapy treatment for the right knee, physiotherapy treatment for the right knee, medical specialist consultation with Dr Molnar for the right knee, MRI scan for the right knee, and right knee arthroscopy; the Panel revoked the earlier certificate and issued a new certificate.
Decision date: 27 November 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Clive Kenna, and Dr David Gorman | Treatment Types: Surgery, Radiological Investigations, Medical Specialist Consultation, and Physiotherapy
AAI Limited t/as GIO v Mousa [2024] NSWPICMP 800
Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment, physical injury, cervical spine, lumbar spine, thoracic spine, right hip, left hip, right knee, and right shoulder; Medical Assessor (MA) Nair found that the injuries to cervical spine, lumbar spine, thoracic spine, right knee, and right shoulder were caused by the motor accident; MA Nair found that the injuries to right hip and left hip were not caused by the motor accident; MA Nair assessed whole person impairment (WPI) as follows: cervical spine 10%, lumbar spine 0%, thoracic spine 5%, right knee 2%, and right shoulder 2%, finding a 19% WPI; re-examination by Medical Review Panel (Panel); Panel found that the injuries to cervical spine were caused by the motor accident; Panel found that the injuries to lumbar spine, thoracic spine; right hip, left hip; right knee, and right shoulder were not caused by the motor accident; Panel assessed WPI as follows: cervical spine 5%, finding a total 5% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 5%; Medical Assessment Certificate revoked.
Decision date: 27 November 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Clive Kenna, and Dr David Gorman | Injury module: Spine, Upper Limb, and Lower Limb
Youi Pty Limited v Williamson [2024] NSWPICMP 855
Motor Accident Injuries Act 2017; the claimant suffered injury on 14 November 2022 when the insured vehicle lost control and collided with his vehicle at speed on the M5 freeway; dispute relating to the assessment of threshold injury; injuries to his cervical spine and lumbar spine; whether an annular tear at L4/5 disc was caused by the accident or whether it is the result of degenerative disease which predated the accident; Held – original assessment of threshold injury confirmed.
Decision date: 12 December 2024 | Panel Members: Member Maurice Castagnet, Dr Leslie Barnsley, and Dr Mohammed Assem | Injury module: Spine
Read v Allianz Australia Insurance Limited [2024] NSWPICMP 856
Rear-end collision; traumatic brain injury; concussion injury; hearing loss; head soft tissue injury; threshold injury; prior head injury; seizure disorder; temporal lobe epilepsy; consistency of presentation; post-concussive symptoms; mild grade concussion; seizure at 20 months post-accident; cognitive impairment due to brain trauma; distinctly unlikely; no medical evidence to support a predisposition to develop epilepsy; Held – Medical Assessment Certificate confirmed.
Decision date: 12 December 2024 | Panel Members: Member Hugh Macken, Dr Christopher Oates, and Dr Adeline Hodgkinson | Injury module: Nervous System (Neurological), Ear, Nose, Throat and Related Structures
Hashimi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 858
Motor Accident Injuries Act 2017 (MAI Act); claimant was injured in a motor accident on 8 April 2018 when the vehicle he was driving collided with another vehicle which pulled out from a side street; dispute as to whether the injury to the claimant’s lumbar spine caused by the motor accident is a minor injury for the purposes of the MAI Act; Medical Assessor (MA) issued certificate when the relevant term was “minor injury”, now described as a threshold injury; MA determined that the claimant had a soft tissue injury to the lower back caused by the motor accident and that this is a minor (threshold) injury; claimant re-examined; Medical Review Panel (Panel) diagnosed that the injury to the claimant’s lumbar spine is an annular tear to the L4/5 disc; in the opinion of the Panel an annular tear is a tear in the fibrocartilage and falls outside the definition of a soft tissue injury as defined by section 1.6(2) of the MAI Act and consequently the annular tear of the L4/5 disc is not a threshold injury; Held – the annular tear of the claimant’s L4/5 disc was caused by the motor accident and is not a threshold injury for the purposes of the MAI Act; Medical Assessment Certificate revoked.
Decision date: 13 December 2024 | Panel Members: Member Cameron Thompson, Dr Michael Couch, and Dr Mohammed Assem | Injury module: Spine
Mercimek v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 859
Motor Accident Injuries Act 2017 (MAI Act); permanent impairment; whole person impairment (WPI); causation; pre-existing condition; cervical spine; lumbar spine; shoulders; knee; medical review of certificate of Medical Assessor (MA) Menogue; the claimant suffered injury in a head-on collision on 30 January 2018; the dispute related to the assessment of WPI under the MAI Act of cervical spine, lumbar spine and both shoulders, right knee and chest wall; MA Menogue certified 0% WPI for cervical spine and lumbar spine; he found lumbar surgery in 2020 and 2012 was not causally related to the accident but due to chronic degenerative spinal disease affecting the discs; he certified injury to right and left shoulders not caused by accident; Held – severe T-bone crash, imaging unhelpful; well-established and chronic pain syndrome and appears very disabled; accident caused soft tissue injury to cervical spine; accident caused persisting aggravation of pre-existing degenerative change in lumbar spine; where no pre-existing complaints relating to either shoulder and contemporaneous complaints following accident claimant sustained right shoulder rotator cuff tear and rotator cuff tendinopathy and subacromial bursitis of the left shoulder; soft tissue injury to right knee (now resolved); injury to chest wall (now resolved); due to presence of dysmetria cervical spine DRE II or 5% WPI; lumbar spine pre-existing WPI of 5%; accident contributed to fusion surgery in 2020; current impairment DRE IV of 20% WPI but after deducting pre-existing impairment the WPI of lumbar spine assessed at 15%; right shoulder assessed by range of motion at 7% WPI; significant increase in range of motion of left shoulder with abnormal posture and marked muscle guarding due to T6 to pelvis fusion in March 2024; not all current loss of range of motion due to recent spinal surgery; Medical Review Panel concluded could not use range of motion to assess impairment so left shoulder assessed by analogy with mild crepitation of the glenohumeral joint at 4% WPI; certificate MA Menogue revoked and WPI assessed at 28%.
Decision date: 13 December 2024 | Panel Members: Member Susan McTegg, Dr Michael Couch, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Anand [2024] NSWPICMP 863
Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 23 May 2021 when the insured motor vehicle struck him as he was about to board his stationary vehicle; assessment of permanent impairment for injuries to the left leg, lumbar spine and subsequent scarring; claimant re-examined by Review Panel; Held – original assessment of 18% revoked and replacement certificate issued for different reasons.
Decision date: 17 December 2024 | Panel Members: Member Maurice Castagnet, Dr Drew Dixon, and Dr Geoffrey (Paul) Curtin | Injury module: Spine, Lower Limb, and Skin
Leal v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 865
Review of certificate and reasons of Medical Assessor (MA) Cameron dated 2 May 2024 of whole person impairment (WPI) assessment of 3% for injuries to the claimant's right ankle; claimant was involved in an accident at speed on 27 September 2020 on a country highway when she was confronted by an overtaking vehicle and took evasive action which was initially successful but ultimately there was a collision with other cars following her in her lane; claimant suffered a fractured right ankle and toes as well as injuries to her neck, shoulders, back and hip; claimant did not make complaints about injuries to her neck and back for approximately 12 months post-accident; insurer submitted that the claimant had pre-existing pathology in spine and this was the cause of subsequent complaints; Medical Review Panel was satisfied that the subsequent complaints of injury, whilst not contemporaneous, were still causally related to the accident; Held – certificate of Medical Assessor (MA) Cameron revoked with a finding of 11% WPI with an assessment of 5% WPI for the cervical spine and 4% WPI for the right ankle combined with one percent WPI for the right big toe IP joint and one percent WPI for the loss of motion in the right big toe MP joint giving 11% WPI in total.
Decision date: 17 December 2024 | Panel Members: Member Alexander Bolton, Dr Christopher Oates, and Dr Sophia Lahz | Injury module: Spine, Upper Limb, Lower Limb, and Brain Injury
Hellegers v AAI Limited t/as AAMI [2024] NSWPICMP 867
Motor Accident Injuries Act 2017 (MAI Act); Motor Accident Compensation Regulation 2020; medical assessment of whole person impairment (WPI) and treatment dispute by Medical Assessor (MA) and review under section 7.26 of the MAI Act; claimant injured in motor vehicle accident of March 2017; collision with kangaroo; severe impact; surgery to C5/6 ACDF; issue of degree of whole person impairment (WPI); issue of causation; review of medical assessment; Held – Medical Review Panel revoked determination of MA; determination of 29% WPI; surgery is reasonable and necessary.
Decision date: 18 December 2024 | Panel Members: Member Terence Stern OAM, Dr Margaret Gibson, and Dr Drew Dixon | Injury module: Spine, Upper Limb, and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Knox [2024] NSWPICMP 869
Review of medical assessment; assessment of degree of permanent impairment; left wrist resulting in post-traumatic stiffness; umbilical hernia with palpable defect of protrusion; prior laparoscopic cholecystectomy; no mention abdominal bruising; fractured ulna; small hiatus hernia; small tear in oesophagus; laparoscopic scars; lack of contemporaneous reference to the umbilical hernia; umbilical hernia does not preclude her usual activity; hiatus hernia cause of GORD; whole person impairment 7%; Held – Medical Assessment Certificate revoked.
Decision date: 18 December 2024 | Panel Members: Member Hugh Macken, Dr Christopher Oates, and Dr Margaret Gibson | Injury module: Upper Limb and Digestive System
Few v QBE Insurance (Australia) Limited [2024] NSWPICMP 872
Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 29 August 2018 when the insured utility vehicle reversed into him, crushing him between the utility vehicle and a truck; assessment of permanent impairment for injuries to the pelvis, lower back, buttocks and hips; weight gain greater than 30kg; claimant re-examined by Medical Review Panel (Panel); where injuries to the neck, thoracic spine, right shoulder and digestive system – intestinal motility disorder, were not referred to the Personal Injury Commission for assessment as part of the medical dispute of the medical assessment matter and therefore not before the single medical assessor for assessment; where the claimant requested the Panel to assess the non-referred injuries; Mandoukos v Allianz Australia Insurance Ltd applied; Held – the medical dispute before the Panel is limited to the matters in dispute before the single medical assessor; the certificate of the single medical assessor is revoked as the Review Panel reached different conclusions on the assessment of permanent impairment.
Decision date: 19 December 2024 | Panel Members: Member Maurice Castagnet, Dr David Gorman, and Dr Margaret Gibson | Injury module: Spine, Lower Limb, and Digestive System
Cahill v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 875
Motor Accident Injuries Act 2017 (MAI Act); medical assessment of whole person impairment (WPI); claimant injured in motor vehicle accident of 9 July 2020; issue of whether the injuries are classified as threshold injuries under MAI Act; review of medical assessment; Held – Medical Review Panel revoked certificate of Medical Assessor; substituted determination of 5% WPI.
Decision date: 19 December 2024 | Panel Members: Member Terence Stern OAM, Dr Thomas Rosenthal, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb
Stosic v Allianz Australia Insurance Limited [2024] NSWPICMP 879
Motor Accident Injuries Act 2017; dispute about the degree of permanent impairment; claimant was a passenger on a bus when the bus braked suddenly; claimant was thrown from her seat; claimant developed increasing neck and back pain over the subsequent days; claimant was complaining of right shoulder pain, right elbow pain, bilateral knee pain, bilateral hip pain, numbness and tingling in her right hand; claimant underwent diagnostic investigations in Serbia; Medical Assessor Berry found 10% whole person impairment (WPI) for right upper extremity; Medical Review Panel (Panel) not satisfied that motor accident contributed to a tear of the right supraspinatus; poor quality of scans and late reporting of symptoms; Panel assessed cervical spine impairment by analogy due to inconsistencies; Held – Panel finds 8% WPI; Medical Assessment Certificate revoked.
Decision date: 20 December 2024 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Tania Rogers | Injury module: Spine, Upper Limb, and Lower Limb
Allianz Australia Insurance Limited v Stosic [2024] NSWPICMP 880
Motor Accident Injuries Act 2017; threshold injury dispute; claimant was a passenger on a bus when the bus braked suddenly; claimant was thrown from her seat onto the floor; claimant developed increasing neck and back pain over the subsequent days; claimant was complaining of right shoulder pain, right elbow pain, bilateral knee pain, bilateral hip pain (left worse than right), numbness and tingling in her right hand; claimant underwent diagnostic investigations; issue whether right rotator cuff/supraspinatus tear caused by motor accident; Medical Assessor Herald certified that right shoulder tear caused by the motor accident is not a threshold injury for the purposes of the Act; Medical Review Panel not satisfied as to causation based upon close examination of the claimant’s diagnostic scans and delay in onset of symptoms; Held – Medical Assessment Certificate revoked.
Decision date: 20 December 2024 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Tania Rogers | Injury module: Spine, Upper Limb, and Lower Limb
QBE Insurance (Australia) Limited v Joyan [2024] NSWPICMP 881
Motor Accident Injuries Act 2017; assessment of threshold injury (post-traumatic stress disorder) and whole person impairment (WPI) (not yet permanent) by Medical Assessor Robertson; insurer’s application for review under section 7.26; claimant in year 9 at time of accident; she was sitting in rear seat behind her mother when there was an impact from behind; both cars were driveable; emergency personnel were not called; claimant’s family drove on to a social engagement; claimant attended GP two days after accident and was diagnosed with soft tissue injuries only; Panel not satisfied claimant satisfied criterion A of a post-traumatic stress disorder which required the claimant to have “directly experienced a traumatic event”; the commentary gave the example of a “severe motor vehicle” accident; Held – Panel was of the view the most appropriate diagnosis was an adjustment disorder which was a threshold injury; WPI assessed at 5%.
Decision date: 20 December 2024 | Panel Members: Member Belinda Cassidy, Dr Michael Hong, and Dr Matthew Jones | Injury module: Mental and Behavioural
QBE Insurance (Australia) Limited v Byrnes [2024] NSWPICMP 882
Motor Accident Injuries Act 2017; claimant’s application for whole person impairment (WPI) assessment; Medical Assessor (MA) Shen found 14% WPI; insurer’s application for review under section 7.26; claimant’s three-year-old grandson killed in an accident caused by the child’s father (the claimant’s son); claim for pure mental harm; claimant at time of accident on workers compensation due to serious physical injury; claimant had other health problems and had some minor psychological symptoms before the accident; Panel re-examined claimant and diagnosed a Prolonged Grief Disorder which is a recognised psychiatric illness resulting in a WPI of 19%; in accordance with cl 6.218 of the Motor Accident Guidelines, pre-existing impairment assessed at 4%; consideration of cl 6.221 of the Motor Accident Guidelines in context of the Adaptation area of function and the claimant not being in work at the time of the accident; no adjustment for treatment effect; Held – claimant’s WPI 15%; certificate of MA Shen revoked although outcome did not change.
Decision date: 20 December 2024 | Panel Members: Member Belinda Cassidy, Dr Christopher Canaris, and Dr Matthew Jones | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
Wright v State of New South Wales (Fire & Rescue NSW) [2024] NSWPICMP 857
The appellant submitted that the Medical Assessor (MA) erred in 5 respects, namely the MA did not apply the psychiatric impairment rating scale (PIRS) properly, he made a deduction for pre-existing pathology for a disease injury when all pathology associated with that injury had to be assessed as a single injury, the MA made a deduction for pre-existing pathology which exceeded the current pathology which is nonsensical, the MA failed to give adequate reasons, and the MA erred in his assessments with respect to the PIRS categories of Travel and Concentration, persistence and pace; complex medical and legal issues; the appellant had been assessed for a prior injury with another employer and paid compensation; the appellant argued it was an aggravation of a disease; Medical Appeal Panel rejected the appellant’s submissions; State Government Insurance Commission v Oakley and Secretary, New South Wales Department of Education v Johnson considered; Held – Medical Assessment Certificate confirmed.
Decision date: 12 December 2024 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier, and Dr Michael Hong | Body System: Psychological/Psychiatric
Corestaff NSW Pty Ltd v Lashbrook [2024] NSWPICMP 860
Appeal against findings of non-lead Medical Assessor (MA) in respect of assessment of 2% whole person impairment (WPI) for interference with ADLs; Medical Appeal Panel (Panel) satisfied that MA erred in not providing adequate reasons for the assessment of 2% for ADLs; worker re-examined; the assessment of total WPI by the Panel was the same as that made by the MA; Held – Medical Assessment Certificate confirmed.
Decision date: 13 December 2024 | Panel Members: Member Carolyn Rimmer, Dr Gregory McGroder, and Dr Roger Pillemer | Body System: Visual System
Cini v B Hatzi & C Hatzi [2024] NSWPICMP 861
The appellant submits that the Medical Assessor erred in his assessments under two categories of the psychiatric impairment rating scale (PIRS), namely social functioning and concentration, persistence and pace; Held – Medical Assessment Certificate (MAC) was consistent with all the evidence; MAC confirmed.
Decision date: 13 December 2024 | Panel Members: Member Deborah Moore, Dr John Lam-Po-Tang, and Dr Douglas Andrews | Body System: Psychological/Psychiatric
Wilson v Secretary, Department of Education [2024] NSWPICMP 862
Appellant worker alleged error by Medical Assessor in assessment of whole person impairment (WPI) of left ankle; error conceded by respondent and confirmed by Medical Appeal Panel; Held – Medical Assessment Certificate revoked.
Decision date: 16 December 2024 | Panel Members: Member John Isaksen, Dr Drew Dixon, and Dr Christopher Oates | Body System: Right Upper Extremity, Left Upper Extremity, and Scarring
UGL Ltd v Wood [2024] NSWPICMP 866
Workplace Injury Management and Workers Compensation Act 1998; two related matters were dealt with together by the Medical Appeal Panel (Panel); in first matter, the appellant made application to admit fresh evidence, being two surveillance reports relevant to surveillance after the Medical Assessment Certificate (MAC) had issued, which was neither opposed or consented to by the respondent; the appellant’s application was refused; the appellant essentially submitted the Lead Medical Assessor (MA) had failed to follow reporting format directed by the President, failed to refer to opinion of one independent medical examiner in circumstances where he had referred to the opinion of the other independent medical examiner with consequential denial of procedural fairness, and failed to give reasons for not undertaking a deduction in accordance with section 323; Panel did not accept the Lead MA had failed to follow any reporting format directed by the President; Panel did not accept the appellant had been denied procedural fairness by failure the Lead MA to refer to opinion of only one of independent medical examiners; Panel did not accept the Lead MA had failed to give reasons for not undertaking deduction in accordance with section; Held – MAC does not contain demonstrable error; MAC confirmed.
In second matter, the appellant also made application to admit fresh evidence, being photographs of bilateral wrist scarring, which was neither opposed nor consented to by the respondent; the fresh evidence was received on the appeal; the appellant essentially submitted the Lead MA failed to apply the TEMSKI/scarring criteria in assessing bilateral wrist scarring, failed to provide reasoning as to his assessment with reference to the TEMSKI/scarring criteria, with the evidence meeting the criteria for assessment of 1% whole person impairment (WPI); following review of the fresh evidence received on appeal, the Panel did not accept the Lead MA failed to apply the TEMSKI/scarring criteria when assessing bilateral wrist scarring nor that he failed to provide reasoning for his assessment; Panel accepted the Lead MA used his clinical judgement when he assessed 0% WPI and had applied the TEMSKI/scarring criteria and clause 16.6 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; Held – the assessment was not made on the basis of incorrect criteria and the MAC does not contain demonstrable error; MAC confirmed.
Decision date: 17 December 2024 | Panel Members: Member Jacqueline Snell, Dr Todd Gothelf, and Dr Gregory McGroder | Body System: Right Upper Extremity, Left Upper Extremity, Scarring, and Respiratory System
Meetke v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2024] NSWPICMP 870
Claim for impairment of the lumbar spine; Medical Appeal Panel determined that the appellant should undergo a further medical examination because there has not been clear exposure of the Medical Assessor’s reasoning process; Held – following re-examination, Medical Assessment Certificate revoked.
Decision date: 18 December 2024 | Panel Members: Senior Member Elizabeth Beilby, Dr Roger Pillemer, and Dr Christopher Oates| Body System: Lumbar Spine
Cayir v Woolworths Group Ltd [2024] NSWPICMP 871
The appellant submits that the Medical Assessor erred in three respects; Medical Appeal Panel (Panel) found error in one only, namely erred in making a deduction for pre-existing pathology which was not legally open; Held – Panel bound by findings and referral from the Member.
Decision date: 18 December 2024 | Panel Members: Member Deborah Moore, Dr Roger Pillemer, and Dr Drew Dixon| Body System: Left Upper Extremity
Huggart v Hardware & General Supplies Ltd [2024] NSWPICMP 876
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker appealed against the making of a one-tenth deduction under section 323 in circumstances where the Medical Assessor (MA) found prior condition had fully resolved prior to injury; there was no explanation from the MA as to how the prior condition has contributed to the overall level of permanent impairment assessed; in these circumstances and on the available evidence, there was no basis upon which to make a section 323 deduction and the Medical Appeal Panel considered that the MA was in error in making a deduction of one-tenth for reasons which were not adequately explained in terms of the correct criteria which is how the prior condition has contributed to the level of permanent impairment assessed; MA’s own path of reasoning does not support the making of a deduction rather it supports the opposite which is a finding that no deduction is justified in this case; Held – Medical Assessment Certificate revoked.
Decision date: 19 December 2024 | Panel Members: Member Jane Peacock, Dr Ash Takyar, and Dr Graham Blom | Body System: Psychological/Psychiatric
Smailes v Secretary, Department of Education [2024] NSWPICMP 877
Psychological injury; whether Medical Assessor (MA) erred in failing to diagnose alcohol misuse disorder, in miscategorising the psychiatric impairment rating scale (PIRS) rating with respect to self-care and personal hygiene, and the rating with respect to social functioning; Held – MA addressed the question of the appellant’s alcohol use; it is not necessary for the MA to specifically make a finding of no alcohol misuse disorder in making his decision; however, the MA erred in his categorisation of the impairment to the appellant’s self-care and personal hygiene as Class 2; in so erring, the MA did not adequately take into account the reported symptoms of the appellant, which the MA indicated he accepted; those symptoms relevantly included the appellant’s alcohol intake, which is relevant to this category, whether a formal diagnosis of alcohol misuse disorder is warranted; the appropriate category for the appellant’s self-care and personal hygiene is category 3; there was no error in the MA’s categorisation of the appellant’s social functioning; Medical Assessment Certificate (MAC) revoked; new MAC issued with a finding of 15% whole person impairment.
Decision date: 19 December 2024 | Panel Members: Member Cameron Burge, Professor Nicholas Glozier, and Dr Douglas Andrews | Body System: Psychological/Psychiatric
King v Dark Red Frames & Trusses Pty Ltd [2024] NSWPICMP 878
Appeal from assessment of whole person impairment (lumbar spine); whether Medical Assessor erred in omitting to identify radiculopathy; whether he erred in omitting to conduct a straight leg raising test; whether inadequacy of reasons; Held – Medical Assessment Certificate confirmed.
Decision date: 19 December 2024 | Panel Members: Member Richard Perrignon, Dr Drew Dixon, and Dr Gregory McGroder | Body System: Lumbar Spine and Scarring
Hayes v PFD Food Services Pty Ltd [2024] NSWPICMP 883
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding the appellant had a pre-existing condition in his cervical spine that contributed a proportion of his permanent impairment from the injuries the appellant suffered to his cervical spine; whether MA had proper regard to the evidence; whether MA explained his finding that the appellant had a pre-existing condition; whether MA explained his finding that one-third of the appellant’s permanent impairment from injuries the appellant suffered to his cervical spine was due to a pre-existing condition; Medical Appeal Panel (Panel) found MA was correct to find that the appellant had a pre-existing condition and that a proportion of the appellant’s permanent impairment from the injuries the appellant suffered to his cervical spine is due to that pre-existing condition, and in so finding the MA had proper regard to all relevant evidence; Panel found that MA did not adequately explain why one third of the appellant’s permanent impairment was due to that pre-existing condition and the MA ought to have assumed in accordance with section 323(2) that the deductible proportion was one tenth; Held – Medical Assessment Certificate revoked.
Decision date: 20 December 2024 | Panel Members: Member Marshal Douglas, Dr Tommasino Mastroianni, and Dr John Brian Stephenson | Body System: Right Lower Extremity, Left Lower Extremity, Right Upper Extremity, and Cervical Spine
Dinuzzo v Modular Walls Commercial Pty Ltd [2024] NSWPICMP 884
Medical Assessor assessed 7% whole person impairment (WPI) of the left lower extremity; worker appealed on the basis there was a failure to assess the midfoot impairment and failure to assess scarring; Medical Appeal Panel (Panel) satisfied that there was no failure to assess the midfoot; Panel noted that scarring was not identified as a body part in the ARD or referral but the report upon which the claim was made included 1% for scarring and the section 78 Notice referred to a claim for scarring; Panel satisfied that the dispute between the parties included a claim for scarring; Panel assessed 1% WPI for scarring, resulting in total WPI of 8%; Medical Assessment Certificate revoked.
Decision date: 20 December 2024 | Panel Members: Member Carolyn Rimmer, Dr Todd Gothelf, and Dr Andrew Porteous | Body System: Left Lower Extremity and Scarring
Motor Accidents Merit Review Decision
El Etri v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 74
Motor Accident Injuries Act 2017 (MAI Act); dispute about payment of weekly benefits under Division 3.3 of the MAI Act, meaning of PAWE; schedule 1, clause 4; schedule 1, clauses 4(2)(b) and 4(3); significant change in earning circumstances; commencement of self-employment; expected earnings; earnings received after the change occurred; earnings received after the day of the accident for work performed before the accident; business expenses; Held – the reviewable decision is set aside.
Decision date: 16 December 2024 | Merit Reviewer: 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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