Legal Bulletin No. 210

This bulletin was issued on 9 May 2025

Issued 9 May 2025

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

Court of Appeal Decisions

Allianz Australia Insurance Limited v Estate of the Late Summer Abawi [2025] NSWCA 85

Statutory interpretation; extrinsic material; significance of delegated legislation to construction of a statute; relevance to statutory construction of legislative facts and claims asserted from the bar table; multiple statutory purposes; issue determined by textual considerations where none of the purposive and contextual arguments raised assists greatly to resolve construction issue; traffic law and transport; traffic law; motor accident legislation; definition of “threshold injury”; injury to the skin which is not also an injury to nerves is a soft tissue injury; Held – the second respondent is to be identified as the Personal Injury Commission Review Panel in lieu of the names of the members constituting the panel; leave to appeal is granted; appeal allowed; set aside so much of the order made by Griffiths AJA on 4 October 2024 as dismissed the summons filed on 4 June 2024 and in lieu thereof order: the decision of the second defendant made on 15 March 2024 is set aside; in place of that decision, the Certificate of Assessor Home dated 5 October 2022 is confirmed; the appellant is to pay the first respondent’s costs of the appeal.

Decision date: 02 May 2025 | Before: Kirk JA, Adamson JA, and Stern JA

Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91

Administrative law; appeals; judicial review; whether the primary judge erred in holding that a review panel of the Personal Injury Commission constituted under the Motor Accident Injuries Act 2017 (NSW) did not fall into jurisdictional error, fail to exercise its statutory powers or give adequate reasons; administrative law; appeals; judicial review; no failure to address clearly articulated submission in circumstances where there had been significant changes in the facts between the making of the submission and the decision under review; traffic law and transport; traffic law; Motor Accident Injuries Act 2017 (NSW); meaning of “threshold injury” under section 1.6; whether claimant’s radiculopathy caused by motor accident; where Medical Assessor found radiculopathy present after motor accident; Held – dismiss the appeal; order the appellant to pay the first respondent’s costs.

Decision date: 05 May 2025 | Before: Payne JA, Adamson JA, and Stern JA

Presidential Member Decisions

Shrestha v On Sunset Pty Ltd [2025] NSWPICPD 36

Workers compensation; apportionment of compensation following death of worker; sections 25 and 29 of the Workers Compensation Act 1987; consideration of dependency under section 4 of the 1987 Act; section 21C of the Interpretation Act 1987; inferences must be drawn on substantiated facts; Bradshaw v McEwans Pty Limited (1951) 217 ALR 1 and Fuller-Lyons v State of New South Wales (No 3) [2013] NSWSC 1672 considered and applied; allegations of fraud must be clearly pleaded and particularised; Held – I extend time for the appellants to file a reply to the Notice of Opposition to the appeal to 15 November 2024; the Certificate of Determination dated 1 July 2024 is confirmed.

Decision date: 24 April 2025 | Before: President Judge Phillips

Zahrouni v BSV Tyre Recycling Australia Pty Ltd [2025] NSWPICPD 37

Workers compensation; distinction between error of fact and error of law; Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7 considered and applied; causation; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 discussed; whether the Member erred in fact; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied; Held – the Member’s Certificate of Determination dated 30 July 2024 is confirmed.

Decision date: 29 April 2025 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Chowdhury v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 167

Motor Accident Injuries Act 2017; claim for statutory benefits; whether pet care services for the claimant’s three cats are “treatment and care” within the meaning of the definition in section 1.4; whether they are payable as a statutory benefit under section 3.24(1); claimant seriously injured and non-weight bearing for six weeks with fractured ankle and wrist; claimant lived in apartment with three cats; two occupational therapists and an exercise physiologist advised pet care was needed; insurer declined to pay for it; Geaghen v D’Aubert, and Teuma & Anor v CP and JK Judd Pty Limited distinguished; Held – pet care services are domestic services and therefore a form of attendant care service and as a result a type of treatment and care; subject to the limits and restrictions of Division 3.3 a statutory benefit payable by the insurer; costs allowed at the maximum of 16 monetary units.

Decision date: 11 April 2025 | Member: Belinda Cassidy

Ulkin v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 174

Motor Accident Injuries Act 2017; damages; pedestrian; liability not disputed; physical and psychiatric/psychological injuries; not entitled to non-economic loss; claim for past and future economic loss; pick packer only employment history in Australia since 1987; psychological injury disputed; existing psychological condition; insurer asserts claimant’s degenerative signs would have become symptomatic; past earnings used to calculate economic loss; continuing reduction of earning capacity; consideration and application of section 4.7; capacity to practically exercise residual earning capacity; Held – accident caused psychological injury and made degenerative conditions symptomatic; prejudice on open labour market; not practical to exercise residual earning capacity; damages assessed for past economic loss and future economic weekly loss; claimant’s legal costs and disbursements assessed.

Decision date: 28 April 2025 | Member: Terence O'Riain

Scattergood v Allianz Australia Insurance Limited [2025] NSWPIC 176

Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28; claimant was a passenger on the insured bus; claimant suffers from thoracic spinal cord neuralgia; bus driver moved the bus forward and the motion of the bus caused the claimant to fall to the floor of the bus sustaining injuries; at no time did the claimant hold onto any hand rails or seats as he made his way down the aisle; having regard to the fact the claimant was utilising a walking stick determined the bus driver was negligent by not allowing the claimant sufficient time; Held – motor accident not caused wholly or mostly by the fault of the claimant; claimant is self-represented therefore there is no entitlement to legal costs.

Decision date: 30 April 2025 | Member: David Ford

Allianz Australia Insurance Limited v Waters [2025] NSWPIC 177

Motor Accidents Compensation Act 1999; damages claim; assessment required of non-economic loss; impact of surveillance of the claimant; inconsistency demonstrated in claimant’s condition; lumbar fusion and displacement; employer payments and payment reimbursement; unenforceable arrangement for repayment of wages; reduction of value of services; likely future circumstances now diminished; reduced capacity to perform work tasks; intermittent periods off work; Held – damages assessed pursuant to sub-sections 94(3) and 94(4).

Decision date: 30 April 2025 | Member: Hugh Macken

Workers Compensation non-Presidential Member Decisions

Hkeik v Keyton Management Services Pty Ltd ATF LLRL Management [2025] NSWPIC 166

Workers Compensation Act 1987; section 11A(1); whether action with respect to dismissal was whole or predominate cause; whether action with respect to dismissal reasonable; Held – dismissal not whole or predominate cause; action with respect to dismissal not reasonable; award for the applicant; referral to Medical Assessor to assess permanent impairment.

Decision date: 7 April 2025 | Member: Mitchell Strachan

Lopez v Schwartz Family Co Pty Ltd Atf The Schwartz Family Trust [2025] NSWPIC 168

Workers Compensation Act 1987; section 60; accepted injury to left wrist with diagnosis of carpal tunnel syndrome; whether proposed treatment reasonably necessary as a result of the accepted left wrist injury; Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA Limited cited; Held – the left wrist carpal tunnel release surgery proposed is reasonably necessary as required by section 60.

Decision date: 22 April 2025 | Member: John Turner

Aliprad v Abbey Manufacturing Group Pty Ltd [2025] NSWPIC 169

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); injury in 2018; medical assessment in 2021; assessed at 8% whole person impairment (WPI); no appeal; subsequent extensive fusion of lumbar spine; accepted deterioration of permanent impairment; applicant seeking to rescind Certificate of Determination (COD) to pursue appeal for threshold purposes; entitlement to appeal Medical Assessment Certificate (MAC) for threshold purposes where initial claim limited to compensation under section 66 of the 1987 Act; findings in Secretary, Department of Communities & Justice v Cannell; application of Skates v Hills Industries Ltd and subsequent Court of Appeal authorities; discussion of contextual provisions and meaning of “in connection with a claim” under section 319 of the 1998 Act; R v Khazaal applied; contextual provisions such as section 322A(2) of the 1998 Act showed medical assessment used for all purposes; assertion that applicant did not exercise due diligence in prior MAC rejected on facts; exercise of discretion; discussion of Samuel v Sebel Furniture Ltd, and Hurst v Goodyear Tyre and Rubber Company; mistake or oversight only a factor and not determinative of discretion to rescind under section 57 of the PIC Act; Held – COD rescinded to allow applicant to appeal MAC for threshold entitlements.

Decision date: 23 April 2025 | Principal Member: John Harris

Vassallo v State of New South Wales (NSW Police Force) [2025] NSWPIC 171

Workers Compensation Act 1987; claim for weekly payments of compensation, medical expenses and a lump sum payment for psychological injury; worker relies on multiple events in the workplace as being the cause of injury; respondent contends that the injury was predominantly caused by reasonable action taken by the respondent with respect to discipline; consideration of Hamad v Q Catering Limited; Held – injury sustained by the worker was not predominantly caused by reasonable action taken by the respondent with respect to discipline; matter referred to a Medical Assessor for assessment of whole person impairment and then remitted back to a member to determine the outstanding claims for weekly payments of compensation and medical expenses.

Decision date: 24 April 2025 | Member: John Isaksen

Phegan v Ansett Australia Ltd & Anor [2025] NSWPIC 173

Workers Compensation Act 1987; claim for permanent impairment compensation for skin cancer; applicant previously compensated by first respondent; first respondent disputed that it was last relevant employer; second respondent disputed injury; conflicting lay evidence; evidence of applicant and his lay witness preferred to that of second respondent’s lay witness; Haddad v The GEO Group Australia Pty Ltd, and AV v AW considered; Held – award for first respondent; applicant sustained aggravation, acceleration, exacerbation or deterioration of disease in employ of second respondent; second respondent liable pursuant to section 16; date of injury is date of claim; matter remitted to President for referral to Medical Assessor for assessment of whole person impairment.

Decision date: 28 April 2025 | Senior Member: Kerry Haddock

McDermott v Toll Holdings Ltd [2025] NSWPIC 175

Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; undisputed left ankle injury; disputed consequential lumbar spine condition; Held – the applicant sustained a consequential lumbar spine condition; matter remitted to President for referral to a Medical Assessor.

Decision date: 29 April 2025 | Member: Fiona Seaton

Motor Accidents Medical Review Panel Decisions

Gulic v QBE Insurance (Australia) Limited [2025] NSWPICMP 284

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury dispute; physical injury; Medical Assessor (MA) considered the injuries to the cervical spine, left shoulder, right shoulder, thoracic spine, lumbar spine, right knee, and left knee; MA found that the injuries to the cervical spine, lumbar spine, and bilaterial knees were caused by the motor accident and threshold injuries; re-examination; Review Panel found that the injuries to the cervical spine, lumbar spine, and right knee were caused by the motor accident and were threshold injuries; Review Panel found that the injury to the left knee was caused by the motor accident and a non-threshold injury; Held – Review Panel found left knee was not a threshold injury; MAC revoked; new certificate issued.

Decision date: 24 April 2025 | Panel Members: Member Terence Stern OAM, Dr Drew Dixon, and Dr Thomas Rosenthal | Injury module: Spine, Upper Limb, and Lower Limb

Senno v QBE Insurance (Australia) Limited [2025] NSWPICMP 291

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury and treatment dispute; claimant sustained neck, back and shoulder injury in accident; developed myelopathy and had cervical disc and fusion surgery; insurer refused to pay for surgery and argued causation; pre-accident and post-accident records extensively considered; claimant re-examined; parties agreed shoulder and lower back injuries were threshold injuries; Held – Review Panel satisfied claimant tore ligamentous fibres of C6-7 disc causing disc protrusion and resulting in myelopathy; partial rupture of ligamentous fibres is a non-threshold injury; surgery allowed as reasonable and necessary in the circumstances to prevent myelopathy progressing and causing paraplegia; surgery related to disc injury caused by the accident; MAC revoked; new certificate issued.

Decision date: 29 April 2025 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon, and Dr Shane Moloney | Treatment Type: Surgery

QBE Insurance (Australia) Limited v Senno [2025] NSWPICMP 292

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whole person impairment (WPI) dispute; claimant sustained neck, back and shoulder injury in accident; developed myelopathy and had cervical disc and fusion surgery; insurer refused to pay for surgery and argued causation; pre-accident and post-accident records extensively considered; claimant re-examined; parties agreed shoulder and lower back injuries were soft tissue injuries; Held – Review Panel satisfied claimant injured C6-7 disc and resulting in myelopathy; claimant had surgery related to disc injury which fused two vertebra; fused vertebra multilevel structural compromise without radiculopathy attracted WPI of 25%; lower back attracted 0% WPI; shoulder injury recovered leaving no assessable impairment; MAC revoked; new certificate issued.

Decision date: 29 April 2025 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon, and Dr Shane Moloney | Injury module: Spine, and Upper Limb

Allianz Australia Insurance Limited v Yaqo [2025] NSWPICMP 293

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); motor accident; rear end collision; claimant re-examined; early complaint of left sided low back pain into left hip region; MRI scan showed left sided annular fissure at L4/5; scan otherwise normal; no prior back pain; clinical findings of the Review Panel and original Medical Assessor support source of pain from the L4/5 annular tear; Held – motor accident caused annular tear at L4/5; non-threshold injury within the meaning of the Act; MAC confirmed.

Decision date: 29 April 2025 | Panel Members: Principal Member John Harris, Dr David Gorman, and Dr Alan Home | Injury module: Spine, and Upper Limb

Selkirk v CIC Allianz Insurance Limited [2025] NSWPICMP 295

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whole person impairment (WPI) dispute; Medical Assessor determined the claimant had 4% WPI; review sought by claimant under section 7.26; consideration and application of clauses 6.5 to 6.7 of the Motor Accident Guidelines (the Guidelines) in respect of causation and clauses 6.19 to 6.22 of the Guidelines in respect of permanent impairment; Held – MAC revoked; new certificate issued; Review Panel certified the claimant sustained right hand/right thumb soft tissue injuries; left arm soft tissue injury (resolved); left elbow soft tissue injury (resolved); left hand soft tissue injury (resolved); left leg soft tissue injury (resolved); left hip soft tissue injury, left knee soft tissue injury, lumbar spine soft tissue injury, and thoracic spine soft tissue injury caused by the motor accident; WPI assessed at 16%; treatment and care relates to the injuries caused by the motor accident but are not reasonable and necessary in the circumstances.

Decision date: 30 April 2025 | Panel Members: Member Anthony Scarcella, Dr Michael Couch, and Dr Sophia Lahz | Injury module: Spine, Upper Limb, and Lower Limb

Insurance Australia Limited t/as NRMA Insurance v BSS [2025] NSWPICMP 296

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); section 7.26; dispute about whether degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is greater than 10%; Medical Assessor certified that major depressive disorder caused by the accident and gave rise to a permanent impairment that was greater than 10%; Held – MAC revoked; new certificate issued; Review Panel certified the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the motor accident is not greater than 10%.

Decision date: 30 April 2025 | Panel Members: Senior Member Brett Williams, Dr Wayne Mason, and Dr Alan Doris | Injury module: Mental and Behavioural

QBE Insurance (Australia) Limited v Kritas [2025] NSWPICMP 297

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant assessed as having 11% whole person impairment (WPI) for physical injuries; claimant hit by a car while on a motorbike; fractured right wrist and right knee; developed neuropathic pain over right forearm but did not satisfy the criteria for complex regional pain symptoms under clauses 6.61-6.64 of the Motor Accident Guidelines (Guidelines); Table 15 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th ed (AMA4) gives maximum upper extremity impairment of 38%; under Table 11 of the AMA4 the claimant has Grade 5 impairment with major causalgia; clause 6.59 of the Guidelines states that the maximum in the range is to be used unless assessing for CRPS; maximum is 100%; therefore the upper extremity impairment (UEI) due to median nerve injury is 38%; combining the 38% UEI with wrist loss of range of motion (16%) and the shoulder loss of range of motion (6%) gives 51% UEI; converts to 31% WPI; Held – MAC revoked; new certificate issued; claimant sustained injuries that give rise to 33% WPI.

Decision date: 30 April 2025 | Panel Members: Member Jeremy Lum, Dr David Gorman, and Dr Tai-Tak Wan | Injury module: Spine, Upper Limb, Lower Limb, and Skin

Workers Compensation Medical Appeal Panel Decisions

Coles v Willshear Shearing Services Pty Ltd [2025] NSWPICMP 279

Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); the date on which a condition must exist for section 323(1) to apply; whether Medical Assessor (MA) correctly applied section 323(1); whether MA ought to have assessed the appellant had permanent impairment of the left hip where left hip was not mentioned in referral; whether MA correctly applied scoring criteria of modified Table 17-35 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); Held – MA correctly applied section 323(1); MA ought to have assessed appellant’s permanent impairment of the left hip; MA incorrectly applied scoring criteria of Table 17-35 of the AMA 5; MAC revoked; new certificate issued.

Decision date: 23 April 2025 | Panel Members: Member Marshal Douglas, Dr Todd Gothelf, and Dr Chris Oates | Body system: Right Lower Extremity, Left Lower Extremity, and Scarring

Gentle v Civilnett Pty Ltd [2025] NSWPICMP 280

Decision date: 23 April 2025 | Panel Members: Member Marshal Douglas, Dr Alan Home, and Dr James Bodel | Body system: Lumbar Spine, Right Lower Extremity, and Left Lower Extremity

Chittick v Programmed Group [2025] NSWPICMP 281

Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); non-lead assessor assessed 0% whole person impairment (WPI) of the left lower extremity, 1% WPI for scarring, and lead assessor assessed 13% WPI for sleep disorder; appeal against assessment of 0% WPI for the left lower extremity; Held – Appeal Panel satisfied that non-lead assessor failed to make a diagnosis and failed to consider whether there was an alternative method of assessing impairment; appellant worker re-examined by a member of the Appeal Panel; MAC revoked; new certificate issued.

Decision date: 23 April 2025 | Panel Members: Member Carolyn Rimmer, Dr Drew Dixon, and Dr Alan Home | Body system: Respiratory (Sleep), Left Lower Extremity, and Scarring

Pillington v State of New South Wales (NSW Police Force) [2025] NSWPICMP 282

Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant submits that the Medical Assessor erred in his assessments under four categories of the psychiatric impairment rating scale (PIRS); submissions attempted to introduce fresh evidence which was rejected; Held – Appeal Panel found error in one category only; MAC revoked; new certificate issued.

Decision date: 24 April 2025 | Panel Members: Member Deborah Moore, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric

Loveday v Crookwell Taralga Aged Care Ltd [2025] NSWPICMP 283

Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal against 0% finding for injury to right wrist; whether additional evidence admissible; whether Medical Assessor (MA) applied incorrect criteria in finding no CRPS pursuant to Table 17.1 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); whether MA required to adopt a longitudinal holistic approach in applying Table 17.1 criteria of the AMA 5; whether reasons inadequate; Held – additional evidence application dismissed as having no relevance to the dispute; criteria in Table 17.1 to be strictly applied; Elsworthy v Forgacs Engineering Pty Ltd, and Warwick Campbell v Star Electric Co Pty Ltd applied; MA explanation adequate although grammatically incorrect and containing spelling mistakes; MAC confirmed.

Decision date: 24 April 2025 | Panel Members: Member John Wynyard, Dr Greg McGroder, and Dr James Bodel | Body system: Right Upper Extremity

Zammit v Teachers Mutual Bank Ltd [2025] NSWPICMP 285

Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant submits that the Medical Assessor erred in in his whole person impairment (WPI) assessment of three of the psychiatric impairment rating scale (PIRS) categories namely self-care and personal hygiene, social and recreational activities, and concentration, persistence and pace; Held – Appeal Panel agreed; re-examination required; MAC revoked; new certificate issued.

Decision date: 28 April 2025 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr John Baker | Body system: Psychological/Psychiatric

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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