Legal Bulletin No. 213

Issued 30 May 2025

Welcome to the two hundred and thirteenth 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 Decision

Tagg v Racing New South Wales [2025] NSWSC 508

Administrative law; judicial review of the decisions of two medical Appeal Panels; whether the Appeal Panels committed jurisdictional error by not assessing whole person impairment in accordance with the relevant Guidelines; whether the Appeal Panels acted beyond jurisdiction; whether the Appeal Panels failed to provide adequate reasons; where the Appeal Panels were bifurcated to separately decide on neurological and psychological matters; where the bifurcated Appeal Panels shared a common member; many grounds and sub-grounds of appeal; amended summons dismissed; workers compensation; horse spooked by fox; plaintiff fell from horse; physical and psychological injuries; dispute about the assessment of whole person impairment; new medical assessment certificates previously issued; Held – order that the amended summons filed 7 April 2025 be dismissed; order the plaintiff to pay the first defendant’s costs of the proceedings in this Court.

Decision date: 22 May 2025 | Before: Chen J

Presidential Member Decision

Shipley v Visscher Caravelle Australia Pty Limited [2025] NSWPICPD 42

Workers compensation; factual error; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; the drawing of inferences; Luxton v Vines [1952] HCA 19; 85 CLR 352; Fuller-Lyons v New South Wales [2015] HCA 31; Flounders v Millar [2007] NSWCA 238; Held – the Certificate of Determination dated 31 December 2024 is revoked; the matter is remitted to a different non-Presidential member for redetermination.

Decision date: 20 May 2025 | Before: Deputy President Michael Snell

Motor Accidents non-Presidential Member Decisions

Jo v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 204

Motor Accident Injuries Act 2017; claim for statutory benefits; miscellaneous claims assessment matter about whether interpreting services are “treatment and care”; claimant non-English speaker/reader; Held – interpreting services are not a form of “treatment and care” as defined in section 1.4; “the reasonable cost of treatment and care” in section 3.24(1)(a) extends to interpreting services being costs incidental to, and integral part of, provision of treatment and care to non-English speaking claimant; interpreting expenses payable for reasonable and necessary and related treatment (medical assessment matter); whether interpreter needed is question of reasonableness (merit review matter); costs of $1,000 awarded; cases referred to; AAI Limited t/as GIO v Moon regarding “incurred”; Fowler v Youi Pty Limited regarding context and purpose of definition; Qantas Airways Limited v Chief Commissioner of State Revenue, and Phonographic Performance Company of Australia Limited v Federation of Australian Commercial Television Stations regarding statutory interpretation generally; Cha v Insurance Australia Limited t/as NRMA Insurance regarding provision of treatment.

Decision date: 28 April 2025 | Member: Belinda Cassidy

AAI Limited t/as GIO v Guevarra [2025] NSWPIC 205

Motor Accident Injuries Act 2017; settlement approval; $3,000.00 in respect of future economic loss only; 25-year-old passenger suffered a cracked front tooth; future dental treatment might be required; Held – settlement complies with clause 7.37 of the Motor Accident Injuries Guidelines, Version 9.3.

Decision date: 6 May 2025 | Member: Michael Inglis

Forrest v QBE Insurance (Australia) Limited [2025] NSWPIC 206

Motor Accident Injuries Act 2017; claim for statutory benefits; whether dog walking services for the claimant’s pet dog are a form of treatment and care within the definition in section 1.4; whether they are payable as a statutory benefit under section 3.24(1); Geaghen v D’Aubert, Teuma & Anor v C P & P K Judd Pty Ltd, and Makaroff v Nepean Blue Mountains Hospital Health District distinguished; Held – dog walking services are domestic services and therefore a form of attendant care service; as a result a type of treatment and care and subject to the limits and restrictions of Division 3.3; a statutory benefit payable by the insurer.

Decision date: 7 May 2025 | Member: Belinda Cassidy

Hamlin v QBE Insurance (Australia) Limited [2025] NSWPIC 210

Motor Accident Injuries Act 2017; claims assessment; dispute about the amount of damages to be paid to the claimant; claimant was driver of a motor vehicle involved in a collision with the insured vehicle at a roundabout; insurer admitted liability and no allegation of contributory negligence; claimant suffered injury to lumbar spine; claimant is 24-years of age and an apprentice electrician; insurer conceded entitlement to non-economic loss; Held – claimant is entitled to damages for non-economic loss, past and future economic loss, and past and future superannuation.

Decision date: 15 May 2025 | Member: David Ford

Eskander v QBE Insurance (Australia) Limited [2025] NSWPIC 211

Motor Accident Injuries Act 2017; claim for statutory benefits; claimant’s application under Schedule 2, clause (3)(d) and clause 3(e) that the accident was not caused wholly or mostly by her own fault; front of claimant’s vehicle collided with rear of the insured’s vehicle; insured driver stopped suddenly; claimant had limited recall of accident but said insured driver merged into her lane suddenly; claimant’s statement considered unreliable; reports of emergency personnel and insured consistent; Held – claimant not keeping a proper lookout and failed to see insured stop suddenly and/or claimant not travelling a safe distance behind insured; AAI Limited t/as GIO v Evic applied; contributory negligence assessed at 100% or greater than 61% (if single vehicle accident); cases referred to; evidentiary issues; Australian Broadcasting Tribunal v Bond, and Blacktown City Council v Hocking; on duty of care and breach; Rule 126 of the NSW Road Rules 2014, Verryt v Schoupp, and Manley v Alexander; on issue of contributory negligence; Podrebersek v Australian Iron and Steel Pty Ltd, Axiak v Ingram, and Davis v Swift.

Decision date: 15 May 2025 | Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

Harris v United Resource Management [2025] NSWPIC 207

Workers Compensation Act 1987; sections 32A, 33, 38, and clause 9 of Schedule 3 considered; whether incapacity due to accepted injury; dispute as to partial or total incapacity; dispute as to entitlement to compensation under section 38; Kooragang Cement Pty Ltd v Bates, Wollongong Nursing Home Pty Ltd v Dewar, Roberts v University of Sydney, Holmes v Central Coast Council, and Houghton v Jack & Jill Pre-School Association (Lithgow) Incorporated cited; Held – the applicant has no current work capacity as a result of incapacity arising from the accepted work injury; the applicant is entitled to compensation pursuant to section 38; the respondent to pay the applicant pursuant to section 38.

Decision date: 14 May 2025 | Member: John Turner

Millard v Blacktown City Council [2025] NSWPIC 208

Permanent impairment claim; applicant suffered accepted right carpal tunnel syndrome; whether applicant suffered consequential complex regional pain syndrome (CRPS); if so whether the permanent impairment claim in respect of the CRPS had been validly made; applicant suffered an accepted carpal tunnel syndrome in her right arm as a result of the nature and conditions of her employment; applicant underwent a carpal tunnel release; applicant began experiencing symptoms in her right arm which she alleges were caused by the onset of CRPS; respondent denies the presence of CRPS and alleges if the applicant does suffer from it no valid claim for permanent impairment compensation has been made; Held – the preponderance of the medical evidence supports a finding of the presence of CRPS as a consequence of the work injury; the applicant’s claim for permanent impairment compensation was validly made; matter remitted to the President for referral to a Medical Assessor to determine the degree of the applicant’s permanent impairment.

Decision date: 14 May 2025 | Member: Cameron Burge

Horish v S.M.A. Motors Pty Ltd [2025] NSWPIC 209

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); sleep disorder; whether a valid claim made; extent to which the Commission can consider the validity of a claim; Macrae v St Margaret’s Hospital discussed; Woolworths Limited v Stafford, and Voudouris v TDV Constructions Pty Ltd distinguished; jurisdiction of the Commission where a medical dispute exists; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine applied; terms of referral; Skates v Hills Industries Ltd, and Bucca v QBE Insurance (Australia) Ltd discussed; Held – valid claim made; medical dispute exists; matter referred to Medical Assessor.

Decision date: 15 May 2025 | Member: Parnel McAdam

McKinlay v The Village by Scalabrini Nursing Home [2025] NSWPIC 213

Workers Compensation Act 1987; claim for lump sum compensation following hernia injury; disputed secondary condition to digestive system alleged to have occurred from ingestion of medication following multiple surgical procedures after the hernia injury; dispute as to the terms of referral of accepted conditions in the genitofemoral nerve, Ilioinguinal nerve, and Iliohypogastric nerve; Held – award for the applicant with respect to the consequential gastrointestinal condition; body systems to be referred to a Medical Assessor for the purposes of assessing permanent impairment to include the nervous system (genitofemoral nerve, Ilioinguinal nerve, and Iliohypogastric nerve).

Decision date: 16 May 2025 | Member: Carolyn Rimmer

Gertrude Burger v Cerebral Palsy Alliance - Accommodation Northern Sydney [2025] NSWPIC 214

Workers Compensation Act 1987; claim for compensation for psychological injury; Paric v John Holland (Constructions) Pty Ltd, and Hancock v East Coast Timber Products Pty Ltd considered; credit and causation issues; Held – award for applicant for weekly compensation and section 66 claim referred to Medical Assessor.

Decision date: 16 May 2025 | Member: Michael Wright

Byrne v Department of Planning Housing and Infrastructure [2025] NSWPIC 215

Workers Compensation Act 1987; claim for carpal tunnel surgery; whether injury in the course of employment; Held – applicant sustained bilateral carpal tunnel injury in the course of his work; diagnosis of carpal tunnel confirmed by five separate practitioners including the respondent’s qualified specialist; respondent’s qualified specialist subsequently determined condition was constitutional after considering automation in the workplace but failed to provide reasoning (ipse dixit); satisfied applicant has established on the balance of probability that he sustained injury (carpal tunnel); Castro v State Transit Authority discussed; surgery by way of bilateral carpal tunnel release reasonably necessary with reference to causation; Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), and Diab v NRMA Ltd discussed.

Decision date: 19 May 2025 | Member: Diana Benk

Gabriel v Noble Services & Co Pty Ltd & Ors [2025] NSWPIC 216

Workers Compensation Act 1987; whether applicant was a worker or deemed worker at the time of injury and who employed him; claim that the sixth respondent was a section 20 principal; injury and incapacity not in dispute; Held – the applicant was a worker as defined by section 4 employed by the first respondent who contractually engaged the applicant and paid the applicant; Lister v Romford Ice & Cold Storage Co Ltd, Abdalla v Viewdaze, and Humberstone v Northern Timber Mills discussed; determined first respondent was uninsured; seventh respondent deemed to be insurer of the first respondent as at the date of injury with reference to section 142A; awards for the third and sixth respondents; section 20 not satisfied as no contract or agreement demonstrated.

Decision date: 19 May 2025 | Member: Diana Benk

Kumar v Fairfield City Council [2025] NSWPIC 218

Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33 and for medical expenses pursuant to section 60; applicant claims spontaneous ankle injury; no mechanism of injury described; Held – insufficient evidence to support claim; workplace injury not established; no substantial employment contribution according to section 9A; award for the respondent.

Decision date: 20 May 2025 | Member: Adam Halstead

Motor Accidents Medical Review Panel Decisions

Insurance Australia Limited t/as NRMA Insurance v BYA [2025] NSWPICMP 294

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26; threshold injury dispute; claimant alleged lumbar disc injury at two levels causing herniation and leading to surgery; causation disputed by insurer relying on accident reconstruction and medical experts; no expert evidence from claimant; low speed minimal damage accident; delay in reporting symptoms and accident; Held – claimant did not injure her lumbar spine in the motor accident; MAC revoked; new certificate issued; cases referred to; Kinchela v Insurance Australia Group Limited t/as NRMA Insurance, Briggs v IAG Limited t/as NRMA Insurance, and Insurance Australia v Milton followed in regard to test of causation; AAI Limited v McGiffen applied concerning absence of contemporaneous complaint; Puga v Allianz Australia Insurance Limited applied concerning onus of proof and question for Review Panel.

Decision date: 29 April 2025 | Panel Members: Member Belinda Cassidy, Dr Tai-Tak Wan, and Dr Drew Dixon | Injury module: Spine

Bchai v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 340

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant assessed as having 7% whole person impairment (WPI) for physical injuries; claimant’s vehicle was stationary and hit from behind by another vehicle; claimant sustained neck and lower back injuries; claimant had previous motor accident in 2015 and pre-existing cervical stenosis, cervical myelopathy, and lumbar stenosis; Held – Review Panel found motor accident worsened pre-existing pathology; cervical spine assessed at 15% WPI for decompression surgery and radiculopathy with 5% due to pre-existing non-verifiable radicular complaints; lumbar spine assessed at 5% WPI for non-verifiable radicular complaints and dysmetria; no lumbar spine apportionment required due to insufficient detail in clinical notes for any deduction; MAC revoked; new certificate issued.

Decision date: 15 May 2025 | Panel Members: Member Jeremy Lum, Dr Les Barnsley, and Dr David Gorman | Injury module: Spine, and Upper Limb

AAI Limited t/as GIO v Bollineni [2025] NSWPICMP 341

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of degree of permanent impairment; pedestrian hit by car; right thigh haematoma; right knee reconstruction; difficulty with activities of daily living; mild laxity; medial collateral ligament; retropatellar crepitus; sensory loss in the right knee; multiple visible scars around the right knee; reduced range of motion right knee; wasting of the right leg; claimant walks with a limp; scarring including dimpling (loss of contour); Held – whole person impairment (WPI) assessed at 12%; MAC revoked; new certificate issued.

Decision date: 15 May 2025 | Panel Members: Member Hugh Macken, Dr Christopher Oates, and Dr Drew Dixon | Injury module: Lower Limb, and Minor Skin

AAI Limited t/as AAMI v Oram [2025] NSWPICMP 342

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whole person impairment (WPI); lumbar spine (soft tissue injury); cervical spine (soft tissue injury); re-examination of claimant required; pre-existing medical conditions; prior motor vehicle claims; Held – post-accident surgery not related to injuries caused by accident; inconsistent distribution of sensation; not in dermatomal pattern; examination radiological studies; pre-existing decreased left knee jerk; WPI assessed at 0%; MAC revoked; new certificate issued.

Decision date: 15 May 2025 | Panel Members: Member Hugh Macken, Dr Mohammed Assem, and Dr Shane Moloney | Injury module: Spine

Upcroft v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 344

Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) determined the claimant’s whole person impairment (WPI) as a result of the accident was 19%; insurer sought a review under section 63; Review Panel revoked the MAC on 11 December 2023 and substituted the determination that the claimant had not reached maximum medical improvement and declined to make an assessment of WPI; on 27 August 2024 the claimant requested that the Commission refer her medical assessment for further assessment by a Review Panel to determine WPI; Held – Review Panel re-examined the claimant and found that WPI was 17%; MAC revoked; new certificate issued.

Decision date: 16 May 2025 | Panel Members: Member Terence Stern OAM, Dr Gerald Chew, and Dr Samuel Lim | Injury module: Mental and Behavioural

Nicolaou v Allianz Australia Insurance Limited [2025] NSWPICMP 345

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); causation; claimant suffered injury in an accident; dispute related to the assessment of whole person impairment (WPI) of cervical spine, right shoulder, and left shoulder; Medical Assessor (MA) assessed 0% WPI for cervical spine; shoulder injuries not caused by accident; Held – soft tissue injury to cervical spine assessed as DRE I or 0% WPI; injury to left shoulder caused by accident and assessed at 8% WPI; injury to right shoulder not caused by accident or due to over compensatory use; WPI assessed at 8%; MAC revoked; new certificate issued.

Decision date: 19 May 2025 | Panel Members: Member Susan McTegg, Dr Shane Moloney, and Dr Mohammed Assem | Injury module: Spine, and Upper Limb

Babak v Allianz Australia Insurance Limited [2025] NSWPICMP 346

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); medical dispute about threshold injury; physical injury; Medical Assessor (MA) considered the injuries to the cervical spine and lumbar spine; MA found that the injuries to the cervical spine and lumbar spine were caused by the motor accident and were threshold injuries; a dispute arose; re-examination by the Review Panel; Held – Review Panel found that the injuries to the cervical spine and lumbar spine were caused by the motor accident; the injury to the cervical spine was a threshold injury; injury to the lumbar spine was a non-threshold injury; MAC revoked; new certificate issued.

Decision date: 19 May 2025 | Panel Members: Member Terence Stern OAM, Dr Thomas Rosenthal, and Dr David Gorman | Injury module: Spine

AAI Limited t/as GIO v Toskoski [2025] NSWPICMP 347

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); medical assessment of whole person impairment (WPI); claimant injured in motor vehicle accident; Medical Assessor determined the claimant’s permanent impairment at 15%; insurer sought a review under section 7.26; Review Panel re-examined the claimant; Held – MAC revoked; new certificate issued; substituted determination of 7% WPI.

Decision date: 20 May 2025 | Panel Members: Member Terence Stern OAM, Dr Surabhi Verma, and Dr Paul Friend | Injury module: Mental and Behavioural

Gill v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 348

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26 of whole person impairment (WPI) assessment of 17%; claimant serving police officer; off duty accident taking children to school; one child knocked unconscious and claimant physically injured; rear end collision; claimant developed psychological symptoms including revisiting pre-accident events during course of police and RFS career; in March 2022 claimant sustained further injury during course of light duties work; issue of causation; Held – accident caused post-traumatic stress disorder (PTSD); incident at work aggravated that PTSD; no evidence of pre-existing symptomatic mental health issues; current impairment 19% caused by motor accident; MAC revoked; cases cited; State Government Insurance Commission v Oakley, Slade v Insurance Australia Limited t/as NRMA, and GIO General Limited v Smith & Ors Insurance Australia Limited t/as NRMA Insurance v Smith & Ors followed re causation of impairment; Jarvis v Allianz Insurance Limited distinguished re causation of injury.

Decision date: 20 May 2025 | Panel Members: Member Belinda Cassidy, Dr John Baker, and Dr Surabhi Verma | Injury module: Mental and Behavioural

Allianz Australia Insurance Limited v Spiroski [2025] NSWPICMP 349

Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of Medical Assessment Certificate (MAC) that right shoulder injury not threshold injury; causation issue; insurer relied on pre-accident right shoulder ultrasound showing tear therefore accident did not cause tear; marked up copy of ultrasound report in treating surgeon’s file suggested error by radiologist and left not right shoulder was investigated; Held – no pre-accident right shoulder complaints therefore tear caused by accident; tear was non-threshold injury; no issue of principle; MAC confirmed.

Decision date: 20 May 2025 | Panel Members: Member Belinda Cassidy, Dr Mohammed Assem, and Dr Les Barnsley | Injury module: Spine, and Upper Limb

Mitchell v QBE Insurance (Australia) Limited [2025] NSWPICMP 350

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment disputes; claimant was riding his Honda motorcycle on a public road; claimant was wearing a helmet and full protective gear; claimant was hit by the insured vehicle from the left side; claimant’s helmet and left shoulder hit the car before he fell off his motorcycle and landed on his left side; Held – permanent impairment assessed at 5%; MAC revoked; new certificate issued.

Decision date: 21 May 2025 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr David Gorman | Injury module: Spine, Upper Limb, Lower Limb, and Skin

Bradley v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 351

Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment disputes; insured vehicle collided with the right front side guard and front door of the claimant’s vehicle; Medical Assessor (MA) certified 9% whole person impairment (WPI) for accident-related aggravation of post-traumatic stress disorder (PTSD), alcohol-induced depressive disorder, and alcohol use disorder; Review Panel explain the bases for their findings under the PIRS where they differ to those of the original MA and other expert examiners; Held – Review Panel finds 7% WPI for adjustment-like disorder with a permanent response to trauma with PTSD-like symptoms and alcohol use disorder; no issue of principle; MAC revoked; new certificate issued.

Decision date: 21 May 2025 | Panel Members: Member Gary Victor Patterson, Dr Thomas Newlyn, and Dr Atsumi Fukui | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decision

Yu v Vertex Point Pty Ltd [2025] NSWPICMP 343

Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); injury to ankle resulting in four operations including subtalar fusion; limited medical evidence in file; assessment of range of motion and subtalar fusion; grading of peripheral nerve injury; Held – MAC revoked; new certificate issued.

Decision date: 15 May 2025 | Panel Members: Member Catherine McDonald, Dr Tommasino Mastroianni, and Dr Roger Pillemer | Body system: Left Lower Extremity and Scarring (TEMSKI)

Motor Accidents Merit Review Decisions

Sidebottom v AAI Limited t/as AAMI [2025] NSWPICMR 16

Motor Accident Injuries Act 2017; claim for statutory benefits; claimant’s application to determine pre-accident weekly earnings (PAWE); claimant self-employed owner and director of a demolition company and clothing business; PAWE assessed by insurer at $0.00; insurer did not dispute claimant was an earner or that the claimant’s injuries prevented him from working; claimant denied being employed or receiving a salary; claimant said he took money of the company to pay his personal and living expenses as he needed it; company bank accounts confirm payments transferred to personal account; company profit and loss statements show the company operates at a loss; Held – insufficient evidence about the claimant’s company, its earnings, and arrangements to determine whether claimant has sustained a loss of earnings from the proceeds of his business; insurer’s decision affirmed; no costs awarded; cases cited; El Ayoub v QBE Insurance (Australia) Limited; Insurance Australia Limited t/as NRMA Insurance v Iskander; Allianz Australia Insurance Limited v Shahmiri; BAH v QBE Insurance (Australia) Limited; Liu v QBE Insurance (Australia) Limited.

Decision date: 21 May 2025 | Merit Reviewer: Belinda Cassidy

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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