Legal Bulletin No. 209

Issued 2 May 2025

Welcome to the two hundred and ninth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.

Supreme Court Decisions

Lovelee v Sydney International Container Terminals Pty Ltd [2025] NSWSC 377

Workers compensation; medical assessment; medical assessment certificate; appeal against medical assessment certificate; whether second appeal to Appeal Panel available where no change to medical assessment certificate effected and no certificate of determination issued following decision of first Appeal Panel; Held – declare pursuant to section 69 of the Supreme Court Act 1970 (NSW) that the Decision and the Statement of Reasons for Decision issued by the Third Defendant on 30 July 2024 is void and of no effect; set aside the Decision and the Statement of Reasons for Decision issued by the Third Defendant on 30 July 2024; order that the matter be remitted to the President of the Personal Injury Commission to be determined according to law; First Defendant to pay the Plaintiffs’ costs.

Decision date: 24 April 2025 | Before: Payne JA

Bullers v State of New South Wales [2025] NSWSC 384

Administrative law; judicial review; review of Appeal Panel decision under Workplace Injury Management and Workers Compensation Act 1998 (NSW); whether jurisdictional error; whether Appeal Panel failed to accord procedural fairness; whether failure to consider and apply the correct legal principles; whether error was material; practical injustice; administrative law; judicial review; whether error of law on the face of the record; whether typographical error in Appeal Panel’s reasons for decision; where Appeal Panel provided its actual path of reasoning to enable conclusion without speculation; workers compensation; psychological injury; medical assessment; where dispute as to assessment of Whole Person Impairment; deduction for previous injury or pre-existing condition or abnormality pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act; decision of Appeal Panel to revoke and issue new medical assessment certificate; Held – set aside the Medical Assessment Certificate issued by the Appeal Panel dated 14 May 2024 and set aside the decision of the Appeal Panel dated 15 May 2024; direct that the matter is remitted to the President of the Personal Injury Commission of New South Wales for referral to a differently constituted Appeal Panel under section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to be determined in accordance with law; as agreed between the parties, no order as to costs.

Decision date: 24 April 2025 | Before: Price AJ

Presidential Member Decision

Westpac Banking Corporation v Taumoepeau [2025] NSWPICPD 35

Workers compensation; section 60 of the Workers Compensation Act 1987; claim for the cost of surgery; threshold requirements not satisfied; section 352 of the Workplace Injury Management and Workers Compensation Act 1998; dismissal of proceedings; failure to identify error on part of the Member; monetary limit to a direction by President under section 297(2) of the 1998 Act not relevant to the appeal; Held – the appeal is dismissed; the Certificate of Determination is confirmed.

Decision date: 23 April 2025 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

Chan v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 159

Motor Accident Injuries Act 2017; miscellaneous claim; payment of weekly benefits; effect of section 6.13(2); application for personal injury benefits lodged 19 weeks post-accident; statutory benefits for weekly payments not payable before claim is made; no discretion allowed; provisions for full and satisfactory explanation not applicable; no material or submissions addressing the effect of the legislation; Held – reviewable decision confirmed.

Decision date: 17 April 2025 | Member: Hugh Macken

Ellis v AAI Limited t/as GIO [2025] NSWPIC 162

Motor Accident Injuries Act 2017; miscellaneous claims dispute under Schedule 2, clause 3(n); whether there is any liability for the services in dispute on the basis they meet definition of “treatment and care”; claimant alleges psychological injury, exacerbation of eating disorder and misophonia; claim for renovations to bathroom, kitchen and soundproofing; Held – renovations do not constitute everyday tasks; renovations designed to alleviate or address limitations allegedly caused by the accident constitute “home modifications” within the definition of “treatment and care”; whether renovations relate to the injury caused by the accident or are reasonable and necessary in the circumstances are medical assessment matters.

Decision date: 22 April 2025 | Member: Susan McTegg

Allianz Australia Insurance Limited v Crawshaw [2025] NSWPIC 165

Motor Accident Injuries Act 2017; claim for damages; claimant unrepresented; section 6.23; settlement approval by Commission; ankle injury; claim for economic loss; threshold for non-economic loss not met; liability admitted; whether proposed settlement appropriate; whether proposed settlement understood by the claimant; Held – claimant returned to pre-accident capacity; claimant unlikely to require surgery; settlement within the range of likely potential damages assessment; settlement otherwise appropriate; settlement understood by claimant; settlement approved in the sum of $11,000.

Decision date: 23 April 2025 | Member: Bianca Montgomery-Hribar

Workers Compensation non-Presidential Member Decisions

Freeth v Volvo Group Australia Pty Ltd [2025] NSWPIC 153

Workers Compensation Act 1987; claim for weekly compensation; primary psychological injury; concessions made at conciliation/arbitration regarding liability and incapacity; quantification of entitlement to weekly compensation where applicant already in receipt of weekly benefits on the basis of having no current work capacity as a result of a separate physical injury; application of section 46; Held – both injuries had resulted in the applicant being incapacitated for work in her pre-injury duties and any other suitable employment; the discretion in section 46 was enlivened and ought to be exercised; orders made for the payment of weekly compensation under sections 36 and 37 and for such amounts to be reduced by the amount paid in respect of the physical injury.

Decision date: 16 April 2025 | Member: Rachel Homan

Harvey v BRB Modular Pty Ltd t/as Fleetwood [2025] NSWPIC 154

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); sections 4, 11A(3), 15 and 16 of the 1987 Act; dispute as to injury; accepted psychological injury with accepted diagnosis of post-traumatic stress disorder (PTSD); dispute that applicant sustained pleaded injury of PTSD due to nature and conditions of employment; dispute as to whether notice given and claim made in accordance with sections 254 and 261 of the 1998 Act; Hancock v East Coast Timber Products Pty Ltd cited; Held – the applicant sustained a primary psychological injury for which PTSD has been diagnosed; due to the nature and conditions of employment with the respondent; sections 254 and/or 261 of the 1998 Act do not prevent the applicant from recovering compensation as notice of injury was given in accordance with section 254 and a claim for compensation made in accordance with section 261.

Decision date: 16 April 2025 | Member: John Turner

Courtney v State of New South Wales (Northern NSW Local Health District) [2025] NSWPIC 155

Workers Compensation Act 1987; exercise of discretion; Held – leave to amend to claim general order for medical expenses only; Patrick Stevedores Holdings Pty Ltd v Fogarty considered; Tan v National Australia Bank Ltd considered; consequential condition; Kumar v Royal Comfort Bedding Pty Ltd; Kooragang Cement Pty Ltd v Bates applied.

Decision date: 17 April 2025 | Member: Mitchell Strachan

Salaj v Results Laser Clinics Pty Ltd [2025] NSWPIC 156

Workers Compensation Act 1987; claim for weekly benefits and medical expenses in relation to a psychological injury; fact of injury admitted; respondent relies on section 11A in relation to discipline and performance appraisal; allegation of serious misconduct; respondent relies on CCTV footage as evidence of serious misconduct; CCTV footage not produced; reasonableness of respondent employer action; Held – psychological injury arose from management action; management action by respondent not reasonable; section 11A defence not established; orders for weekly compensation and treatment expenses.

Decision date: 17 April 2025 | Member: Adam Halstead

Studdert v State of NSW (Western NSW Local Health District) [2025] NSWPIC 157

Workers Compensation Act 1987; disputed aggravation of lumbar spine injury and consequential psychological injury; claim for weekly payments and medical expenses; Held – the applicant sustained an aggravation of her lumbar spine injury and a consequential psychological injury; the respondent to pay weekly benefits compensation and reasonably necessary medical expenses.

Decision date: 17 April 2025 | Member: Fiona Seaton

Carr v CBH Resources Ltd [2025] NSWPIC 163

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim by worker for permanent impairment compensation; workplace left knee injury; consequential peroneal nerve damage following knee surgery; weakness and numbness in left foot from nerve damage with footdrop; how effect of nerve damage on foot to be assessed; independent medical examiner opinions differ on manner of assessment; section 65 of the 1987 Act; determination of degree of permanent impairment; sections 319 and 322 of the 1998 Act; Matar v Zeineddine, and Haroun v Rail Corporation New South Wales considered; Held – issue is a medical dispute and requires resolution by Medical Assessor; claim remitted for medical assessment.

Decision date: 22 April 2025 | Member: Adam Halstead

Roelofse v State of New South Wales (NSW Police Force) [2025] NSWPIC 164

Workers Compensation Act 1987; claim for future medical treatment; section 60; consequential condition to the right knee; accepted lumbar spine injury and consequential left knee injury; Bouchmouni v Bakhos Matta t/as Western Red Services, Diab v NRMA Ltd, and Murphy v Allity Management Services Pty Ltd considered; Held – the applicant suffered a consequential condition to the right knee as a result of the accepted lumbar spine and left knee injuries; proposed surgery is reasonably necessary as a result of the consequential condition; complex matter; certified 10% uplift for complexity for both parties.

Decision date: 22 April 2025 | Member: Kathryn Camp

Motor Accidents Medical Review Panel Decisions

Tyerman v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 267

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment dispute; claimant sustained injury to her back; diagnostic scans at Broken Hill Hospital confirmed a wedged compression fracture of the L1 vertebral body; claimant was referred for treatment of significant spinal pain post-accident; issue as to extent of wedge compression fracture of L1 vertebral body; claimant’s IME assessed at 20% whole person impairment (WPI); insurer’s IME assessed 10% WPI; Review Panel noted that claimant’s IME used MRI scans for measurement purposes; clause 6.148 of the Motor Accident Guidelines prescribe use of x-ray or CT scans; Review Panel called for and examined actual x-ray and CT scans; both Medical Assessors independently measured the compression fracture as being in the range 25-50% giving a DRE III impairment (10% WPI); actual physical examination not required; Held – MAC confirmed.

Decision date: 17 April 2025 | Panel Members: Member Gary Victor Patterson, Dr David Gorman, and Dr Tai Tak Wan | Injury module: Spine

Noun v AAI Limited t/as AAMI [2025] NSWPICMP 268

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whether the claimant suffered a threshold injury; Medical Assessor (MA) determined that the claimant had suffered threshold injuries; claimant involved in an accident being a rear end collision causing the claimant to then collide with the rear of the car in front of him; claimant injured his cervical spine, lumbar spine, head, left shoulder and right shoulder; claimant asserted that he had previously demonstrated two objective signs of radiculopathy but this was rejected by the Review Panel as there was no evidence of the nature of assessment; claimant medically examined by the Review Panel and found not to have any signs of radiculopathy; Held – claimant had suffered threshold injuries; MAC confirmed.

Decision date: 17 April 2025 | Panel Members: Member Alexander Bolton, Dr Tai-Tak Wan, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Brain Injury

El Hawat v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 269

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of threshold injury under section 1.6(3); claimant suffered injury in a motor vehicle accident; Medical Assessor found claimant sustained a somatic symptom disorder secondary to the accident; insurer sought review; Held – claimant did not meet the diagnostic criteria for somatic symptom disorder; claimant sustained adjustment disorder with anxiety caused by the accident; MAC revoked and new certificate issued; adjustment disorder with anxiety is a threshold injury.

Decision date: 17 April 2025 | Panel Members: Member Susan McTegg, Dr Gerald Chew, and Dr Michael Hong | Injury module: Mental and Behavioural

AAI Limited t/as GIO v Barnes [2025] NSWPICMP 273

Motor Accident Injuries Act 2017; treatment and care dispute; review of Medical Assessment Certificate (MAC); treatment and care in issue related to C5 to C7 anterior cervical decompression fusion surgery including a possible one level cervical disc replacement; claimant injured following a rear end collision; Medical Assessor (MA) found that the treatment and care sought was caused by the accident and was reasonable and necessary; claimant had pre-existing symptoms and treatment of her neck and shoulder however the Review Panel was satisfied that the claimant had not complained about these areas for several years before the accident; claimant subsequently had surgery and indicated her symptoms had improved; Held – Review panel satisfied that the C5 to C7 anterior cervical decompression surgery arose because of the accident and was reasonable and necessary; MAC confirmed.

Decision date: 22 April 2025 | Panel Members: Member Alexander Bolton, Dr David Gorman, and Dr Drew Dixon | Treatment Type: Surgery

Burdekin v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 274

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); motor bike collision causing claimant to fall to ground; whether the degree of permanent impairment of the psychological condition was greater than 10%; claimant re-examined; fractured left tibial plateau; separate injuries resulting in mild collateral ligament laxity and mild cruciate ligament laxity; separate assessments made; clause 6.71 of the Motor Accident Guidelines applied; left ankle assessed by claimant’s qualified doctor; left ankle not included in referral; Mandoukos v Allianz Australia Insurance Ltd applied; Held – claimant suffers from impairment not greater than 10%; MAC revoked and new certificate issued.

Decision date: 22 April 2025 | Panel Members: Principal Member John Harris, Dr Leslie Barnsley, and Dr Ian Cameron | Injury module: Spine, Lower Limb, and Skin

Philbin-Malucelli v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 275

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment disputes; claimant’s motorcycle collided with the front passenger side of the insured station wagon; insurer admitted liability for statutory benefits beyond 26 weeks; denied liability for the damages claim and did not concede entitlement to non-economic loss; claimant underwent surgical repair of torn ulnar collateral ligament of left thumb and right shoulder surgery with insertion of plate and screws (later removed); Medical Assessor (MA) certified 20% whole person impairment (WPI); Held – Review Panel found 9% WPI for injuries to cervical spine, lumbar spine, right shoulder, left thumb and scarring; Review Panel explained why its findings differ; no issues of principle; MAC revoked and new certificate issued.

Decision date: 22 April 2025 | Panel Members: Member Gary Victor Patterson, Dr David McGrath, and Dr David Gorman | Injury module: Spine, Upper Limb, Lower Limb, and Minor Skin

Esen v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 276

Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); assessment of whole person impairment (WPI); Medical Assessor (MA) determined 6% WPI; review sought by claimant under section 63; consideration and application of clauses 1.5 to 1.7 of the Motor Accident Permanent Impairment Guidelines in respect of causation and clauses 1.50, 1.116-1.132 in respect of the assessment of permanent impairment; Held – MAC revoked and new certificate issued; claimant sustained soft tissue injuries and aggravations of pre-existing conditions in the cervical spine, lumbar spine and left shoulder; WPI assessed at 2%; no evidence of injury to the right shoulder.

Decision date: 22 April 2025 | Panel Members: Member Anthony Scarcella, Dr Sophia Lahz, and Dr Les Barnsley | Injury module: Spine, and Upper Limb

AAI Limited t/as GIO v Krayem [2025] NSWPICMP 277

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); permanent impairment dispute; claimant’s stationary car rear-ended at speed; lumbar spine injury requiring subsequent fusion surgery; Medical Assessor (MA) found 20% whole person impairment (WPI) and attributed entire impairment to the motor accident; insurer sought review arguing MA did not refer to extensive pre-existing history of lumbar spine complaints including injections; Held – Review Panel accepted motor accident caused an aggravation of pre-existing lumbar pathology requiring lumbar fusion surgery; pre-existing impairment due to non-verifiable radicular complaints; Review Panel found 15% WPI; MAC revoked and new certificate issued.

Decision date: 23 April 2025 | Panel Members: Member Jeremy Lum, Dr Sophia Lahz, and Dr Christopher Oates | Injury module: Spine, Upper Limb, Lower Limb, and Minor Skin

Workers Compensation Medical Appeal Panel Decisions

Kay v State of NSW (NSW Police Force) [2025] NSWPICMP 270

Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychiatric and psychological disorders; New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Ferguson v State of New South Wales, Tibbey v Central Coast Council, Pitsonis v Registrar of the Workers Compensation Commission & Anor, Campbelltown City Council v Vegan, Queanbeyan Racing Club Ltd v Burton, Parker v Select Civil Pty Limited, Jenkins v Ambulance Service of New South Wales, Bojko v ICM Property Service Pty Ltd & Ors, Vitaz v Westform (NSW) Pty Ltd, Western Sydney Local Health District v Chan, Wingfoot Australia Partners Pty Ltd v Kocak, and Botha v Secretary, NSW Department of Customer Service considered; Held – error in not explaining path of reasoning for arriving at the assessments; further medical examination is required; MAC revoked; new certificate issued.

Decision date: 17 April 2025 | Panel Members: Member Gaius Whiffin, Dr John Lam-Po-Tang, and Dr Michael Hong | Body system: Psychological/Psychiatric

Fontez v SYC Ltd [2025] NSWPICMP 271

Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor erred in assessments under two categories of the psychiatric impairment rating scale (PIRS) namely self-care and personal hygiene, and social functioning; further erred in the deduction made pursuant to section 323; re-examination required; Held – errors made; MAC revoked and new certificate issued.

Decision date: 17 April 2025 | Panel Members: Member Deborah Moore, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

Vastag v The Ramsay Centre for Western Civilisation [2025] NSWPICMP 278

Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant submits that the Medical Assessor erred under five categories of the psychiatric impairment rating scale (PIRS), failed to give adequate reasons, and erred in respect of assessment for treatment effects; Held – Appeal Panel found no errors; reasons were adequate and were equally so as regards treatment effects; MAC confirmed.

Decision date: 16 April 2025 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr John Lam-Po-Tang | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decisions

Zandy v Allianz Australia Insurance Limited [2025] NSWPICMR 14

Motor Accident Injuries Act 2017; merit review; statutory benefits payable; refusal of statutory benefits on grounds that workers compensation claim is to be made; insurer assertion that claimant was a worker at the time of accident; onus of proof; failure to comply with request by insurer to make a claim for workers compensation; reasonable grounds to consider that workers compensation is or may be payable; lack of documentation; claimant was performing self-employed work; relevance of bank records; Held – statutory benefits defence of section 3.35 must fail; claimant has no entitlement to workers compensation; internal review overturned; regulated costs allowed.

Decision date: 15 April 2025 | Merit Reviewer: Hugh Macken

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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