Sparke Helmore's MAD (Motor Accident Division) Weekly - Issue 7921 December 2022
Welcome to the 79th edition of Sparke Helmore’s MAD Weekly.
The Personal Injury Commission (Commission) commenced on 1 March 2021 and, with it, the publication of the majority of decisions issued by the Commission.
To help you navigate the recent decisions of the Motor Accidents Division (MAD) of the Commission, we are publishing weekly the relevant headnotes of published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Please see this week’s edition below.
All references to legislation are to the Motor Accident Injuries Act 2017 unless otherwise noted.
Commentary and analysis of trends will be provided on more substantive decisions by our CTP team and will be separately published when necessary.
Claims Assessment – Settlement Approval
AAI Limited t/as GIO v Jamenis  NSWPIC 645
Member: Shana Radnan
MOTOR ACCIDENTS—settlement approval—claimant is self-represented—claim for non-economic loss—injuries to left and right leg, internal fixation of fractures and right knee total replacement.
The claimant, a 67-year-old female, was a pedestrian when she was struck by the insured’s vehicle, sustaining significant injuries. As a result, the claimant underwent surgical repair of a left distal fracture with open reduction and fixation as well as a right tibial fracture with open reduction and fixation. At the time of the accident, the claimant was in Australia on a holiday visa from India.
The insurer conceded the claimant sustained a whole person impairment (WPI) of greater than 10%, entitling her to recover damages for non-economic loss. The insurer made an offer of settlement of $300,000.
As the claimant was not represented by a solicitor, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
Findings: The Member accepted the proposed sum of $300,000 was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
Allianz Australia Insurance Limited v Weston-Webb  NSWPIC 646
Member: Maurice Castagnet
MOTOR ACCIDENTS—settlement approval—claimant is self-represented—claim for non-economic loss—significant physical injuries—claimant’s quality of life severely compromised with no likelihood of improvement.
The claimant, an 83-year-old female, suffered significant injuries in a motor accident on 2 November 2018. At the time of the accident, the claimant was walking in the car park outside Bellingen Gold Club in the company of another person, when the insured vehicle reversed into both of them.
The insurer conceded the claimant sustained a WPI of greater than 10%, entitling her to recover damages for non-economic loss. The insurer initially made an offer of settlement of $250,000, which the claimant was willing to accept. At a further teleconference, the representative for the insurer advised that the insurer had revised the settlement sum to $350,000 and the claimant had accepted it.
As the claimant was not represented by a solicitor, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
Findings: The Member accepted the proposed sum of $350,000 was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
McAllister v AAI Limited t/as GIO  NSWPIC 638
Member: Terence O’Riain
MOTOR ACCIDENTS—claims assessment—earning capacity assessment—loss of opportunity to run business.
The claimant was involved in an accident on 4 February 2018 when she was a pillion passenger on the insured’s motorcycle. As they were riding, a dog ran out onto the road from a house and the insured took evasive action to avoid colliding with the dog, however lost control of the motorcycle. As a result, the claimant was thrown to the ground, landing heavily in a sitting position on her tailbone and left-hand side.
The insurer conceded the claimant’s entitlement to non-economic loss and past and future economic loss. The issues that needed to be decided were the non-economic loss damages with quantum for past loss and ongoing impairment to the claimant’s earning capacity under Division 4.2 of the Act. The claimant estimated that her past economic loss was $1,050 gross per week and is continuing, however the insurer disputed that amount. Both parties agreed that the claimant was not earning at the time of the accident and has not returned to work since that date. In addition, the parties disagreed on what vicissitudes discount should be applied. The insurer relied on the claimant’s past complaints and treatments, which were found in her treating doctors’ clinical notes to justify 30% as the discount.
At the time of the accident, the claimant had applied for administrative work and was willing to take cleaning work. The claimant alleged that she had planned to sell her home in Queanbeyan and purchase a home in Narrandera. When she moved to Narrandera, she had planned to undertake paid employment there and use some of the money to buy a shop in the town to commence self-employment as a Reiki healer.
Prior to the subject accident, the claimant had contract work via a labour-hire group with the New South Wales Teachers Federation. She had two short pre-accident placements with the Teachers Federation, which she performed satisfactorily. Following the accident, the claimant was unable to work due to accident related injuries and disabilities. She alleged that she was offered 16 days’ work with the Teachers Federation post-accident, which would have earned $3,306 if she could have accepted it. Further, the claimant alleged that but for the accident, she would have been able to pursue her Reiki business where she had anticipated to earn $270 gross per week for the first three months of her business, with income gradually increasing. The claimant stated that as a result of the accident, she had been unable to pursue a Reiki business, cleaning, or administrative work and as such was forced to sell her Narrandera home.
Taking into consideration all of the evidence produced by both parties, the Member assessed damages as follows:
- Non-economic loss
The Member noted the claimant has a mild healed ovoid scar over the left hip’s lateral aspect. The Member also noted there was no evidence of her injuries shortening her life, however it was evident that she had planned and hoped for more fun and prosperity in her life. It was also accepted that the subject accident had caused a significant loss of amenities and enjoyment. In addition, the Member noted the subject accident had reduced the claimant’s enjoyment in interacting with her children and grandchildren as well as reduced intimacy with her partner. Accordingly, the Member determined the appropriate non-economic loss damages at $328,000.
- Past economic loss
At the time of the accident, the claimant had been working and her most recent work was temporary administrative work assignments and cleaning. Following the accident, the claimant had not been able to return to work. Noting her past work participation, the Member was satisfied the claimant had an authentic desire to do work that she was enthusiastic about, like Reiki healing. The Member was also satisfied the claimant had missed out on opportunities to obtain work as a result of accident related injuries and disabilities, which had caused economic loss. As such, the Member allowed 78 weeks at $800 for reduced part-time work from the beginning of March 2018 to 3 August 2019, which equates to $37,000. The remaining 167 weeks were calculated at $870 per week, which equates to $145,290. The claimant’s total past economic loss was assessed at $182,290, plus superannuation at 11% being $20,052.
- Future economic loss
The Member accepted the claimant was likely to suffer future economic loss due to her accident related injuries and disabilities. The Member noted that due to her psychological injuries arising from the subject accident, the claimant had lost the capacity to continue work in administrative work and cleaning. Further, it was noted the subject accident reduced her competitiveness on the open labour market as a result of her combined psychological and physical conditions impairments.
Residual earning capacity
The claimant was required to prove her economic loss per the decision of Garling J in Kerney v Mead & Anor  NSWSC 518. Once established, the insurer must prove that the claimant has a residual earning capacity and provide evidence of what she is capable of doing and what jobs are open to her. The Member noted the insurer did not provide any evidence and was not satisfied that the insurer had discharged the onus that the claimant could be employable on a sustained basis in the administrative field or be successful in her business. Nevertheless, the Member was satisfied the claimant could find suitable part-time work for some time over the next 14 years as she has demonstrated she enjoyed work, was resilient and had a can-do attitude to seek suitable treatment. Accordingly, the Member determined the vicissitude discount at 20%.
Loss of opportunity
The Member relied on the dicta in Malec v Hutton (1990) 169 CLR and State of NSW v Moss  NSWCA 133 and allowed future economic loss by way of buffer for the claimant’s loss of opportunity to develop her Reiki healing business. The Member noted but for the accident, the claimant would have been able to launch her business and the business could have had longevity as there is no statutory retirement age for that type of work. Accordingly, the Member allowed $38,000 for the buffer.
In summary, the Member assessed the claimant’s future economic loss at $457,968, which includes superannuation at 14%.
Findings: The Member assessed the claimant’s damages as follows:
- Non-economic loss: $328,000
- Past economic loss: $202,342
- Future economic loss: $457,968
Samer El Ayoubi v QBE Insurance (Australia) Limited  NSWPICMR 66
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—merit review—dispute about payment of weekly benefits—distinction between sole trader and company.
The claimant made a claim for statutory benefits in relation to an accident on 5 November 2020. The matter was brought before the Commission with regard to a dispute between the parties about the payment of the claimant’s pre-accident weekly earnings (PAWE).
The insurer determined the claimant’s PAWE in the amount of $499.53 relying on the claimant’s 2020 tax return in which he declared earnings of $40,000 by way of director’s fee paid to him by Top Level Form Pty Ltd (Company). The claimant requested an internal review and the insurer affirmed its original decision.
The claimant lodged an application with the Commission disputing the insurer’s decision.
The claimant submitted that he is a co-director and shareholder with one other of the Company and that he had been earning $3,000 gross per week at the time of the accident. He submitted the $3,000 was a combination of wage payments, director’s fees and profit distribution to him by the Company. The claimant was required to particularise how he calculated his PAWE in the amount of $3,000, however he did not provide any.
The Merit Reviewer highlighted that under clause 4(1), only the earnings received by the claimant as an individual earner during the 12-month pre-accident period were relevant in calculating the PAWE. That is, the earnings of the Company were not the earnings received by the claimant in his separate capacity as an individual earner. Therefore, the Merit Reviewer concluded that income received by the Company was not income or earnings of the claimant. In absence of the claimant’s particulars, the Merit Reviewer referred to the claimant’s 2020 tax returns to calculate his PAWE. The Merit Reviewer noted the claimant’s earning were limited to $40,000 as declared in his 2020 tax return. The Company declared in its tax return to the financial year ending 30 June 2020 that “total salary and wage expenses” were limited to $40,000, which corresponds with the director’s fee paid to the claimant.
Accordingly, the Merit Reviewer calculated the claimant’s PAWE to be $769.23 based on the claimant’s earnings in the period 1 July 2019 to 30 June 2020, totalling $40,000.
Findings: The Merit Reviewer determined the claimant’s PAWE amount is $769.23 and set aside the reviewable decision.
Miscellaneous Claims Assessment
Lu v Allianz Australia Insurance Limited  NSWPIC 647
Member: Brett Williams
MOTOR ACCIDENTS—miscellaneous claims assessment—claim for statutory benefits made 57 days after the accident—delay in making claim due to delay in identifying the at fault driver.
On 24 July 2022, the claimant was a pedestrian crossing the road to get into an Uber when a taxi hit the claimant from behind throwing her one metre on impact before she hit her head on the road. The claimant stated that she was able take details of the insured vehicle however she could not obtain the details of the taxi driver (insured driver) as the driver never exited the vehicle.
The claimant lodged an application for personal injury benefits dated 22 September 2022, which was received by Allianz Australia Insurance Australia (Allianz) on 23 September 2022. Allianz took the claim to have been lodged on 19 September 2022, which was when the claimant first contacted the insurer about the subject accident.
The claim was lodged 57 days after the accident. Pursuant to s 6.13(2) of Act, a claim must be made within 28 days after the accident to be entitled to statutory benefits. As such, Allianz accepted liability for the claim but determined the claimant was not entitled to statutory benefits for any period before the claim was made because the claim was not made within the required timeframe.
The claimant disputed the insurer’s decision and sought internal review. On 12 October 2022, the internal reviewer affirmed the insurer’s decision. The matter was referred to Commission for determination.
At the preliminary conference, the claimant explained that her claim was lodged late as she was not able to obtain the at fault driver’s details until 17 September 2022 after the police had completed its investigation. She explained that she required these details to successfully submit her claim. The claimant provided emails between NSW Police and herself showing that she had intended to make a personal injury claim since at least 14 August 2022.
The Member noted the claimant was unable to identify the at fault driver and therefore she did not make a claim within 28 days after the accident. The Member also noted the claimant was first notified of the at fault driver’s details on 17 September 2022 and contacted Allianz on 19 September 2022 to provide these details. The Member was therefore satisfied the claimant took prompt, reasonable and appropriate steps to confirm the identity of the at fault driver so that she could make a claim.
However, the Member referred to the decision in Wright v AAI Limited t/as GIO  NSWPIC 401 and concluded that s 6.13(2) of Act is in clear and unambiguous terms; that the claimant will not be entitled to statutory benefits in respect of any period before the claim is made if the claim is not made within 28 days after the accident.
Findings: The Member determined the claimant is not entitled to weekly payments of statutory benefits in respect of any period before her claim was made. Accordingly, the insurer is entitled to refuse payment of statutory benefits in accordance with s 6.13(2) of Act.
Review Panel Determination
AAI Limited t/as GIO v Amos  NSWPICMP 467
Panel: Principal Member Susan McTegg, Dr John O’Neill, Ian Wechsler
MOTOR ACCIDENTS—permanent impairment dispute—claimant reported dizziness prior to the MVA and had been prescribed Serc—whether the claimant sustained post-traumatic paroxysmal positional vertigo as a result of the MVA leading to fall.
On 26 July 2018, the claimant sustained injuries as a result of a motor accident. He was the front seat passenger in the insured’s vehicle, which collided with the rear of a bus. A number of medical assessments were undertaken by the Medical Assessors at the Commission. The insurer determined that the claimant’s permanent impairment was not greater than 10% whole person impairment (WPI) and the claimant referred the dispute to the Commission.
At first instance, Medical Assessor Steiner found the claimant suffered fractured right orbit and assessed his WPI at 29%. However, Medical Assessor Steiner reported that the claimant sustained the eye injury “following the accident he was dizzy”.
Medical Assessor Shahzad found the claimant suffered injuries to the cervical spine, lumbar spine, bilateral shoulder and abdomen. Medical Assessor Shahzad determined the abdominal musculoskeletal injury had resolved and did not result in permanent impairment. As for the cervical spine, lumbar spine and bilateral shoulder injuries, Medical Assessor Shahzad assessed the WPI at 26%.
Medical Assessor Fukui diagnosed the claimant with post-traumatic stress disorder (PTSD) and assessed the WPI at 17%.
Medical Assessor Scoppa found the claimant sustained fractured nasal bones with deviated nasal septum as a result of the subject accident. Medical Assessor Scoppa determined that vertigo, dizziness and headache were not caused by the accident however he did not provide explanation for this determination. He assessed the claimant’s WPI at 6% for fractured nasal bones.
The claimant was also assessed by Medical Assessor Nichols who found the claimant sustained broken teeth and gum lacerations as a result of the subject accident. Medical Assessor Nichols assessed the WPI at 0%.
A Combined Certificate was issued by Medical Assessor Nichols in which he assessed a combined WPI of 52% having regard to the certificates of Medical Assessors Nichols, Shahzad, Steiner and Scoppa.
Following a successful review application by the insurer, the matter was referred to the Review Panel.
The claimant submitted the subject accident caused concussion, dizziness and confusion which resulted in the fall on or about 24 August 2018, causing injury to the right orbit. The insurer referred to the certificate of Medical Assessor Scoppa and submitted that if vertigo and dizziness were not caused by the accident, then the fall that occurred in August 2018 could not be causally related to the accident given that the claimant asserts it occurred because of dizziness.
On re-examination, the Medical Assessor O’Neill noted the claimant sustained a closed head injury sufficient to cause him to suffer a fractured nose but not significant enough to cause him to suffer any damage to the brain. Medical Assessor O’Neill accepted the possibility that a closed head injury such as that sustained by the claimant could be sufficient to cause post-traumatic paroxysmal positional vertigo. However, Medical Assessor O’Neill considered the symptoms described by the claimant were non-specific of positional vertigo. In addition, Medical Assessor O’Neill noted there was no medical evidence or complaints of positional vertigo at the time of the claimant’s hospital attendance following the accident. Considering the claimant had a history of complaint of non-specific dizziness, Medical Assessor O’Neill found that the fall on or about 24 August 2018 was not causally related to the subject accident. Medical Assessor O’Neill also undertook an assessment of impairment in the territory of the right infraorbital nerve which was 4% WPI.
A re-examination was undertaken by Medical Assessor Wechsler in relation to the ophthalmic complications arising from the subsequent fall on 24 August 2018. Medical Assessor Wechsler opined the claimant sustained a blunt concussive injury to the right eye and peri-orbital area resulting in a minor laceration of the right eyebrow and a blowout fracture of the right floor of orbit, which is the cause of double vision. The claimant also suffered right infero orbital nerve anaesthesia. Medical Assessor Wechsler concluded the claimant’s vision impairment is related to the fall on 24 August 2018.
Findings: The Review Panel determined the claimant’s fractured right orbit injury was not causally related to the subject accident and does not give rise to permanent impairment. Accordingly, the certificate of Medical Assessor Steiner was revoked.
Rosenbauer v Allianz Australia Insurance Limited  NSWPICMP 470
Panel: Principal Member John Harris, Dr Clive Kenna, Dr Geoffrey Curtin
MOTOR ACCIDENTS—treatment and care dispute—whether a further seven sessions of physiotherapy treatment were reasonable and necessary—claimant admitted receiving only short-term benefit from physiotherapy.
The claimant was injured in an accident on 16 January 2020. There were disputes between the parties regarding whether a further seven sessions of physiotherapy treatment were reasonable and necessary in the circumstances, caused by the subject accident and whether the treatment would improve the recovery of the claimant.
The insurer submitted the claimant received 31 sessions of physiotherapy and 14 sessions of exercise physiology between 2020 and 2021. The insurer noted the clinical records documented the goal was to have the claimant transferred to exercise physiology. It was also submitted physiotherapy treatment did not improve the claimant’s capacity and therefore a further seven physiotherapy sessions were not reasonable and necessary and would not improve recovery.
At first instance, Medical Assessor Shahzad concluded that no physiotherapy for any body part was reasonable and necessary or would improve recovery.
Following a successful review application by the claimant, the matter was referred to the Review Panel.
On re-examination, Medical Assessor Kenna observed no neurological deficit in either upper limb and the claimant demonstrated reasonable range of movement. All her other movements were normal with a complaint of tightness involving the neck and upper trapezii. However, Medical Assessor Kenna noted inconsistencies between presentation and complaints of symptoms.
The claimant reported she is still attending physiotherapy on a weekly basis but acknowledged that it only provided short-term benefit or relief and there has been no further progressive improvement despite ongoing treatment. Upon reviewing medical evidence, Medical Assessor Kenna noted the treatment has long since reached the limits of its effectiveness and ongoing passive therapy was no longer justified. Further Medical Assessor Kenna noted the claimant’s treaters have not considered a range of other treatments such as acupuncture, TENS machine, osteopathy or chiropractic.
Medical Assessor Kenna considered the claimant is capable of self-management of her condition and that any continuation of ongoing physiotherapy or exercise physiology treatment would not be any more effective or improve her condition.
Findings: The Review Panel concluded that further seven sessions of physiotherapy treatment would not improve the recovery of the claimant and were not reasonable and necessary in the circumstances.
We hope you find this publication of some interest and would be delighted to assist you on any queries you may have. Please feel free to contact Christy Lee or any one of the CTP Partners.