Legal Bulletin No. 258

Issued 1 May 2026

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

Motor Accidents non-Presidential Member Decisions

Insurance Australian Group Limited t/as NRMA Insurance v BZP [2026] NSWPIC 197

Motor Accident Injuries Act 2017; claimant injured in a motor vehicle accident on 30 January 2022 when he was an infant but has now attained his majority; insurer submitted that the claim should be exempted from hearing in the Personal Injury Commission (Commission); evidence of claimant suffering psychosis but currently undergoing treatment; insurer submitted that due to the claimant’s diagnosis he is under a legal incapacity; liability strongly contested by the insurer and need for police records and various witnesses to give evidence; hearing of evidence more than likely to take one day plus; Held – Member not satisfied that the claimant is under a legal incapacity but was satisfied that there will be a need for several expert and lay witnesses and some of those witnesses may need to be compelled to give evidence under subpoena; as neither party will be bound by a decision of the Commission on liability then in the circumstances it is appropriate for a discretionary exemption for hearing in the Commission; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 11 March 2026| Member: Alexander Bolton

Hernandez-Taylor v AAI Limited t/as GIO [2026] NSWPIC 208

Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about whether the claimant was wholly or mostly at fault; claimant riding motorcycle in a club ride near Arcadia; claimant performing role of corner marker  at the time (showing change in direction for other riders); another rider performing the role of tail end Charlie (TEC) collided with claimant; claimant relied on club ride etiquette rules and assumed TEC would let her in to rejoin the ride before he passed; assessment on the papers; AAI Limited t/as GIO v Evic, and ETU v AAI Limited t/as AAMI applied; Held – claimant departed from the standard of care required of her and not entitled to assume TEC would let her in; claimant moved onto roadway without care; claimant moved position of mark to a less safe place which deprived TEC of opportunity to avoid accident; TEC did not depart from the requisite standard of care; claimant’s contributory negligence assessed at least at 80% and she is mostly at fault; consideration of whether section 4.18(1) would have applied in damages claim and whether there should be mandatory finding of contributory negligence; costs allowed for both parties on the unregulated basis.

Decision date: 10 April 2026 | Member: Belinda Cassidy

Antonio v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 213

Motor Accident Injuries Act 2017; damages assessment; liability accident; claimant motorcyclist alleged ongoing incapacity primarily from right shoulder rotator cuff tear requiring surgery and giving rise to psychiatric sequelae; central issue whether shoulder condition constituted an “injury” caused by the motor accident within section 4.1; medical evidence established substantial pre-existing rotator cuff pathology; accident found to have rendered condition symptomatic but not to have caused a new structural injury or extension of the tear; Mandoukos v Allianz Australia Insurance Ltd, Military Rehabilitation and Compensation Commission v May, Kennedy Cleaning Services Pty Ltd v Petkoska, Zickar v MGH Plastic Industries Pty Ltd, and Fox v Wood considered and applied;pain and symptomisation of pre-existing pathology not sufficient to constitute “injury” absent identifiable physiological change; consequential surgery and incapacity not compensable where underlying condition not caused by accident; residual soft tissue and psychiatric conditions not shown to independently generate substantial economic loss; insurer accepted limited compensable consequences; Held – claimant failed to establish broader causation for shoulder-based incapacity; no entitlement to future economic loss; damages confined to past economic loss, superannuation; total sum of $96,277.30.

Decision date: 16 April 2026| Member: Bridie Nolan

Brewster v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 214

Motor Accident Injuries Act 2017; damages assessment; liability admitted; claimant beauty therapist sustained multiple orthopaedic injuries in high-impact collision; combined impairment below 10% precluding non-economic loss; dispute as to extent of economic loss; claimant returned to modified work with reduced hours and capacity; evidence supported ongoing but not total incapacity; no sufficient basis for early retirement or loss of chance to establish own business; future loss assessed on reduced weekly earning capacity with conventional vicissitudes; statutory benefits not treated as earnings but insurer entitled to credit; Fox v Wood component considered. Held – damages assessed at $316,534.95 including past and future economic loss, and superannuation.

Decision date: 16 April 2026| Member: Bridie Nolan

Allianz Australia Insurance Limited v Scott [2026] NSWPIC 215

Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); claimant in mid-80’s at time of approval; primarily suffered orthopaedic injuries as a result of accident; claimant retired prior to accident; settlement includes allowance for non-economic loss only; Held – proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim if assessed by the Personal Injury Commission; proposed settlement approved.

Decision date: 16 April 2026| Senior Member: Brett Williams

Mulder v Allianz Australia Insurance Limited [2026] NSWPIC 216

Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant injured after his motorcycle struck a rock on a dirt road; claimant travelling at 40kmph when accident occurred; whether accident caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28; Held – the claimant was exercising reasonable care; accident not caused by the fault of the claimant.

Decision date: 16 April 2026| Senior Member: Brett Williams

Ham v AAI Limited t/as GIO [2026] NSWPIC 221

Motor Accident Injuries Act 2017; miscellaneous claims dispute; whether injured person was wholly or mostly at fault; claimant a pedestrian attempting to cross a roadway at pedestrian crossing with pedestrian light showing red; injured person did not see the pedestrian light signals or the vehicle before stepping out into path of insured’s driver; no expert evidence; liability for ongoing statutory benefits beyond 52 weeks denied by insurer; Held – injured person mostly at fault; contributory negligence of injured person assessed at 75%.

Decision date: 21 April 2026| Member: Shana Radnan

Brines v AAI Limited t/as GIO [2026] NSWPIC 226

Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about whether the claimant is wholly or mostly at fault; claimant riding motorcycle on the Putty Road; claimant’s early reports of the accident stated water and debris was on the road and that when he rode across this he lost control of his motorcycle; claim made against claimant’s own CTP insurer; claimant’s later reports said there was a white car coming from the opposite direction that crossed onto his side of the road and he swerved to avoid it; assessment on the papers; Insurance Australia Limited t/as NRMA v Richards, Blacktown City Council v Hocking, Watson v Foxman and Ors, Nominal Defendant v Corbin, AAI Limited t/as GIO v Evic, Axiak v Ingram, Davis v Swift and Serrao (by his tutor Serrao) v Cornelius (No 2) considered and applied; Held – member not satisfied the memory of the white car was a reliable memory; member satisfied that claimant’s statement to police six weeks after the accident was reliable and that the version given in that statement was likely correct and that there was material on the road; claimant rode across material on the road which caused him to lose control of motorcycle and collide with embankment; claimant’s departure from standard of care assessed at 20%; claimant not wholly or mostly at fault.

Decision date: 22 April 2026| Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

Bensley v Wollongong Resources Pty Ltd [2025] NSWPIC 132

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); whether the applicant was a “coal miner” for the purpose of the 1987 and 1998 Act; whether the Personal Injury Commission (Commission) has jurisdiction in relation to the proceedings; Ellavale Engineering Pty Ltd v Pilgrim, and Waratah Engineering Pty Ltd v Baggs considered; Held – the Commission determines the applicant was at the time of his injury a “coal miner” for the purpose of the 1987 and 1998 Act; the District Court has exclusive jurisdiction to determine coal miner matters; the Commission does not have jurisdiction to determine the claim for compensation; pursuant to section 54(b) of the PIC Act, the proceedings are dismissed.

Decision date: 2 April 2025 | Member: Josephine Bamber

Egge v Pacific Intel Pty Ltd [2026] NSWPIC 209

Workers Compensation Act 1987; assessment of capacity and pre-injury average weekly earnings (PIAWE); accepted lumbar spine and right shoulder injury; dispute as to non-pecuniary benefits for car allowance and rental allowance and extent of capacity; injury in 2015; repealed PIAWE provisions applied due to date of injury; applicant established that he was non-pecuniary benefits as defined in the former sections 44E and 44F of the 1987 Act; onus of proof of current work capacity; respondent may bear evidentiary onus if submitting that applicant was fit for suitable work; onus was established on basis of applicant’s evidence that he performed administrative tasks and initial certificates; assessment of capacity; deficiency of evidence; applicant’s evidence referred to body parts not claimed; Wollongong Nursing Home Pty Ltd v Dewar, and Tudor Capital Australia Pty Ltd v Christense applied; applicant fit for real job being administrative tasks in pre-injury work;  found that applicant had current work capacity assessed at 50% of PIAWE; Held – orders made for payment of weekly compensation.

Decision date: 14 April 2026| Principal Member: John Harris

Xu v Epic Wright Heaton Pty Ltd [2026] NSWPIC 212

Workers Compensation Act 1987; claim for weekly payments of compensation and medical expenses for injury to left shoulder; whether worker sustained a disease injury in the course of his employment with respondent; AV v AW considered; whether worker cannot recover compensation because he did not give notice of injury as soon as possible after the injury happened and/or he did not make a claim for compensation within 6 months of the injury;  extent of any incapacity for work; Held – worker sustained a disease injury as provided for by section 4(b)(i); worker can recover compensation because respondent has not been prejudiced by failure to give notice of injury as soon as possible and a claim for compensation has been made within 6 months of the injury; worker has been partially incapacitated for work since 2 March 2025; award for weekly payments of compensation and reasonably necessary medical expenses for treatment of injury to the left shoulder.

Decision date: 15 April 2026| Member: John Isaksen

Smith v State of New South Wales (Ambulance Service) [2026] NSWPIC 217

Workers Compensation Act 1987; claim for injury to lumbar spine on 3 August 2012; claim for pain and suffering pursuant to section 67; applicant previously compensated (by way of a complying agreement) pursuant to sections 66 and 67 with respect to 11% whole person impairment (WPI); Medical Assessor now finds 11% WPI also, disentitling the applicant to any further compensation pursuant to section 66; consideration as to whether the applicant is entitled to further compensation, and if so, how much; Lourdes House Hospital v Wheeler and Dept of Education, Parkes High School v Howlett, Staker v North Broken Hill Pty Ltd, and Galley v Pasminco Mining Ltd t/as Pasminco Mining Broken Hill considered; Held – as a result of the Medical Assessment Certificate, the applicant is not entitled to any further compensation pursuant to section 66; applicant not sustaining any further impairment since the complying agreement; applicant is not entitled to any further compensation pursuant to section 67; awards in favour of the respondent accordingly.

Decision date: 17 April 2026 | Member: Gaius Whiffin

Constable v Secretary, Department of Education [2026] NSWPIC 219

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); whether interest ordered pursuant to section 109 of the 1998 Act is to be paid on the gross amount of weekly payments of compensation or the net amount of weekly payments awarded to the worker; Haidary v Wandella Pet Foods & Ors considered; Held – interest to be paid on the gross amount of weekly payments of compensation awarded to the worker.

Decision date: 20 April 2026| Member: John Isaksen

Spicer v Tamworth Regional Council [2026] NSWPIC 222

Workers Compensation Act 1987; permanent impairment and weekly compensation claim in respect of psychological injury; applicant’s injury not in issue; respondent relies on its reasonable conduct in relation to transfer as the whole or predominant cause of the injury; factual findings not disputed on appeal; certain conduct which took place after the transfer at issue was causative of the applicant’s injury; if conduct was in relation to transfer, whether the conduct was reasonable; whether the independent medical examiner (IME) evidence relied on by respondent is sufficient for the purposes of section 11A; respondent’s conduct in relation to transfer was not reasonable; applicant advised at the earliest opportunity when the transfer was mooted that he had health issues; respondent failed to make inquiries in relation to those issues; respondent failed to arrange medical examination for the applicant for many months post-transfer when he was struggling to perform his duties; respondent’s IME does not set out in sufficient detail the matter relating to the transfer which they believe were causative of the injury; IME’s opinion carries insufficient weight to satisfy the onus of proving the conduct relied on as set out by the respondent was the whole or predominant cause of the injury; Held – matter remitted to President for referral to Medical Assessor; claim for weekly compensation adjourned for further preliminary conference following the issuing of the Medical Assessment Certificate.

Decision date: 21 April 2026| Member: Cameron Burge

Gimbert v The Rix Group Pty Ltd [2026] NSWPIC 225

Workers Compensation Act 1987; claim for weekly compensation for psychological injury; whether injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline; conflicting factual evidence; whether worker asked to undergo drug and alcohol testing; allegations of bullying and harassment; Held – the psychological injury was predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline; section 11A(1) defence made out; compensation sought is not payable.

Decision date: 21 April 2026| Senior Member: Rachel Homan

Motor Accidents Medical Review Panel Decisions

AAI Limited t/as AAMI v Ho [2026] NSWPICMP 257

Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; assessment of treatment and care-causation; prior laminectomy and fusion; prior left ankle weakness; cervicogenic headaches being arthritic in origin; prior records of cervical spine injury; restless leg syndrome; left foot discomfort a non-physiological response; evidence of pain, inhibition of movement; diagnosis of soft tissue injury to cervical spine; no evidence of worsening of the underlying pathology in the cervical spine; no evidence of an injury to the left hip area; no evidence of radiculopathy on examination; investigation of injury to coccyx not related to the accident and therefore not reasonable and necessary; MRI scan of left ankle related to accident and considered reasonable and necessary; Held – Review Panel finds the injury to be a threshold injury.

Decision date: 13 April 2026| Panel Members: Member Hugh Macken, Dr Margaret Gibson, and Dr Christopher Oates| Injury module: Spine, and Lower Limb; Treatment type: Radiological investigations

Taheri v AAI Limited t/as AAMI [2026] NSWPICMP 269

Motor Accident Injuries Act 2017; Review Panel review of medical assessment; whether the claimant suffered threshold injuries as a result of a motor accident; dispute as to whether an acromion fracture and fractures to the ribs caused by the motor accident; existence of extrusion of the cervical spine; fractures revealed on radiology but no prior complaint to the shoulder; Held – motor accident not capable of giving rise to the fractures and fractures not caused by the accident; no extrusion present; Certificate confirmed.

Decision date: 17 April 2026| Panel Members: Member Elizabeth Medland, Dr Margaret Gibson, and Dr Drew Dixon| Injury module: Spine, Upper Limb, and Lower Limb

MNC Allianz Australia Insurance Limited v Liu [2026] NSWPICMP 282

Motor Accident Injuries Act 2017; motor accident; rear end collision; issue of threshold psychological injury; original Medical Assessor (MA) found accident caused post-traumatic stress disorder (PTSD); new medical assessment: claimant refused to attend; Review Panel determined the matter on the papers noting claimant bears onus of proof; motor accident not sufficiently significant to satisfy criterion A for PTSD; minor damage, no attendance by emergency services, car driveable and no medical attention for one month; findings of original MA that psychological condition in remission adopted; post-accident symptoms determined on review of medical evidence; claimant found to have an adjustment disorder; Held – original assessment revoked; claimant sustained adjustment order; threshold injury.

Decision date: 22 April 2026| Panel Members: Principal Member John Harris, Dr Surabhi Verma, and Dr Christopher Canaris| Injury module: Mental and behavioural

Insurance Australia Limited t/as NRMA Insurance v Alha [2026] NSWPICMP 283

Motor Accident Injuries Act 2017; review of certificate and reasons of Medical Assessor (MA) dated 28 August 2024 finding that the claimant has suffered post-traumatic stress disorder (PTSD) and that this was not a threshold injury; motor crash occurred on 30 May 2023 when the insured car travelled across the path of the claimant who was riding a motorbike with his son who was his pillion passenger; claimant was dislodged from his motorbike as was his son but there was no collision with the insured car which initially failed to stop after the accident; insurer submitted that not all of the criterion for a diagnosis of PTSD had been satisfied; Review Panel was satisfied that the claimant, following the accident, was unable to resume many of his pre-accident activities, suffering anxiety and withdrawing from responsibility and from his friends and social activities; Held – Review Panel concluded that the claimant had a diagnosis of PTSD which is a non-threshold injury; certificate of original MA affirmed.

Decision date: 22 April 2026| Panel Members: Member Alexander Bolton, Dr Alan Doris, and Dr Wayne Mason| Injury module: Mental and behavioural

Allianz Australia Insurance Limited v Wikeepa [2026] NSWPICMP 284

Motor Accident Injuries Act 2017; degree of permanent impairment dispute; claimant was a driver, wearing a seatbelt; claimant’s vehicle was moving forward with a green light at an intersection at approximately 10 to 20 km/h when it was rear-ended by the insured van at a low speed; no airbags deployed in the claimant’s vehicle; the impact caused the claimant’s head to jerk back into the headrest; claimant has a pre-accident history of treatment for anxiety and depression; original Medical Assessor (MA) certified a 13% whole person impairment (WPI) arising from post-traumatic stress disorder (PTSD) and major depressive disorder caused by motor accident; insurer’s review application allowed on the basis that the original MA came to an incorrect assessment in accordance with the psychiatric impairment rating scale (PIRS) such that the Class 3 categorisation were not warranted and overstate the claimant’s impairment; claimant re-examined remotely by both Review Panel MAs; Held – Review Panel found PTSD caused by the accident and assessed at 7% WPI including 1% for mild treatment effects; differing conclusions to original MA based upon different examination findings at the time of assessment and consequential PIRS ratings; certificate revoked.

Decision date: 22 April 2026| Panel Members: Member Gary Victor Patterson, Dr Gerald Chew, and Dr Surabhi Verma| Injury module: Mental and behavioural

Yu v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 285

Motor Accidents Injuries Act 2017; threshold injury dispute; claimant was a front seat passenger in car that was involved in a head on collision at speed; injuries claimed were neck, back and shoulder injuries including a fractured left clavicle; original medical assessment certificate (MAC) found contusion injuries only with no evidence of a clavicle fracture; Review Panel determination made on-the-papers; post-accident MRI showing cortical step in clavicle with the presence of bone oedema is likely to be indicative of an acute fracture; Held – clavicle fracture is caused by the motor accident and is not a threshold injury; MAC revoked; new MAC issued.

Decision date: 22 April 2026| Panel Members: Member Jeremy Lum, Dr Les Barnsley, and Dr Margaret Gibson| Injury module: Mental and behavioural

Insurance Australia Limited t/as NRMA Insurance v JBA [2026] NSWPICMP 286

Motor Accidents Injuries Act 2017; review of medical assessment under section 7.26; dispute about whether degree of permanent impairment of the claimant; Medical Assessor certified accident caused major depressive disorder and post-traumatic stress disorder gave rise to a whole person impairment (WPI) assessed at 27%; Held – accident caused major depressive disorder which gave rise to a WPI of 7%; certificate of assessment revoked.

Decision date: 22 April 2026| Panel Members: Senior Member Brett Williams, Dr Christopher Canaris, and Dr Surabhi Verma| Injury module: Mental and behavioural

Workers Compensation Medical Appeal Panel Decisions

Tanny v COA Sydney Incorporated [2026] NSWPICMP 237

Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor (MA) had regard to irrelevant evidence when assessing the appellant’s impairment in social and recreational activities, travel, concentration, persistence and pace, and employability; whether MA’s ratings of the appellant’s impairment in social and recreational activities, travel, concentration persistence and pace, and employability involved error; MA did not have regard to irrelevant evidence; MA detailed in the Medical Assessment Certificate (MAC) a relevant clinical history that was based on his interview with the appellant and relevant clinical data within the material the Personal Injury Commission forwarded to him; MA’s ratings of the appellant’s impairment in social and recreation activities, travel, and concentration, persistence and pace did not involve error but his rating of the appellant’s impairment in employability did; Held – MAC revoked.

Decision date: 1 April 2026| Panel Members: Member Marshal Douglas, Dr Ash Takyar, Professor Nicholas Glozier| Injury module: Psychological/Psychiatric

Spindler v Grandview Buildings Pty Ltd [2026] NSWPICMP 270

Workplace Injury Management and Workers Compensation Act 1998; appeal against finding of 0% for injury to the left lower extremity; whether error by Medical Assessor (MA) for measuring no restriction in range of motion when the two experts had on other different occasions measured different ranges of motion; whether Medical Appeal Panel has power to order a reconsideration pursuant to section 329; whether adequate reasons given; function of MA discussed; Wingfoot Australia Partners Pty Ltd v Kocak, Campbelltown City Council v Vegan, Jones v The Registrar, and Peter Hovius v. Speno Rail Maintenance Ltd considered and applied; Held – MA not required to opine on other specialists’ opinions; adequate reasons given; measurement of range of motion not controversial; presumption of regularity applies to measuring range of motion; Medical Appeal Panel has no power to order reconsideration;Medical Assessment Certificate confirmed.

Decision date: 17 April 2026| Panel Members: Member John Wynyard, Dr Tim Anderson, and Dr James Bodel| Injury module: Lumbar Spine, Right Lower Extremity, Left Lower Extremity, and Scarring (TEMSKI)

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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