Sparke Helmore's MAD (Motor Accident Division) Weekly - Issue 88
10 August 2023
Welcome to the 88th 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 Kalantzis [2023] NSWPIC 252
Member: Shana Radnan
Settlement approval—claimant is self-represented—claim for past and future economic loss only—physical injuries.
The claimant was involved in a multi-vehicle collision, where his vehicle was rear-ended and pushed into the vehicle in front of him. The claimant’s airbags did not deploy. Neither police nor ambulance were called to the scene. The claimant sustained left shoulder injury requiring surgery, and soft tissue injuries to the cervical spine, thoracic spine and bilateral hips.
The accident took place on 23 September 2020 and immediately following the accident, the claimant returned to work at pre-injury level. In late January 2021 he underwent surgery and was required to take approximately five months off work before returning to work in a reduced capacity in June 2021. In July 2021, he was certified as fit for pre-injury duties.
At the time of the accident the claimant was 46 years of age, working full-time as a project development officer on a fixed term contract with RMS. The claimant worked 40 hours a week, earning $125 gross per hour, totalling a net weekly wage of $3,002.00 ($75 net p/hr). The claimant reported that his contract with RMS had ended in February 2022 and he had commenced with a new employer MU Group.
The insurer conceded entitlement to damages for past and future economic loss. A report by Dr Roger qualified by the insurer found Whole Person Impairment (WPI) of 1% for the left shoulder injury.
The parties agreed past economic loss in the sum of $95,000 inclusive of superannuation and Fox v Wood, and future economic loss in the sum $95,000 inclusive of superannuation.
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.
At the first teleconference Member Radnan provided the claimant with the opportunity to seek advice from his treating health practitioners to address any concerns about his injuries and their impact on his future earning capacity. At the second teleconference, the parties agreed that future economic loss be increased by $5,000 to $100,000 inclusive of superannuation, on the basis that the claimant would require treatment in the event of intermittent flare up of symptoms resulting in additional absences from work.
Findings: The Member accepted that damages of $195,000 for past and future economic loss was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
Review Panel Determination
AAI Limited t/as GIO v Stanizzo [2023] NSWPICMP 230
Panel: Principal Member John Harris, Dr Geoffrey Stubbs, and Dr Michael Couch
Whether certain treatment and care provided or to be provided to claimant was reasonable and necessary in circumstances or related to the injury caused by accident— whether treatment and care will improve the recovery of the injured person - the claimant aggravated cervical spine injury – whether disc protrusion was non threshold injury.
On 16 May 2018, the claimant sustained injuries as a result of the insured’s vehicle side swiping the claimant’s right front wheel. A dispute arose in connection with whether the following treatments were required as a result of the motor accident and whether they would improve the recovery of the claimant:
- cervical cord decompression surgery recommended by Dr Timothy Steel
- the referral for an MRI scan of the cervical spine by Dr Robert Chester on 10 August 2018 and performed on 24 September 2019, and
- the referral for an MRI scan of the cervical spine by Dr Robert Chester on 10 August 2018 and performed on 28 October 2019.
Medical Assessor Dixon found that the proposed treatment related to the injuries caused by the motor accident and that the treatment would improve the recovery of the claimant.
The insurer lodged an application for review referring to prior Medical Assessment Certificates as follows:
- Medical Assessor Rosenthal provided a certificate dated 23 April 2019 when he concluded that the motor accident caused an aggravation of cervical spondylosis and disc osteophyte complex and de Quervain’s tenosynovitis and inflammation of the carpo-metacarpal joint of the right thumb. The Medical Assessor found no evidence of radiculopathy in the upper limbs.
- Medical Assessor Wallace provided a certificate dated 8 September 2020 when he concluded that the proposed surgery and provisions of the MRI scans dated 24 September 2019 and 28 October 2019 did not relate to the motor accident. The Medical Assessor opined that:
“At worst, Mr Stanizzo suffered a temporary aggravation of pre-existing degenerative cervical spondylosis as a result of the index motor vehicle accident on 16 May 2018, over two years ago, would have settled within 6 months of this incident.
His current cervical spinal symptoms are due to pre-existing significant degenerative spinal canal stenosis at the cervical spine which is constitutional in origin and unrelated to his motor vehicle accident.
The need for surgical intervention at this time does not relate to injury caused by the motor vehicle accident.
Further, Mr Stanizzo did not require MRI investigations of the cervical spine on 24 September 2019 and 28 October 2019, some 17 months post-injury as he had already undergone an MRI investigation of the cervical spine on 10 August 2018, some 3 months post-injury. This investigation in August 2018 would have detailed any acute trauma related to his motor vehicle accident. There was no medical indication for him to undergo further MRI investigations of the cervical spine after the previous scan in August 2018 in relation to injuries caused by the motor accident.”
Re-examinations took place as part of the review.
The Review Panel accepted the insurer’s submissions that there was a history of chronic neck pain. They agreed with the opinion expressed by Medical Assessor Wallace that any exacerbation of cervical spine symptoms was in the order of six months. This view reflected that this was a minor motor accident of minimal force.
The Review Panel accepted that the claimant now presents with symptoms related to cervical radiculopathy and cord compression; pathology had not been aggravated or exacerbated by a mild side swipe collision.
The Review Panel stated that the question for the Panel was whether the specified treatment “relates to the injury caused by the motor accident” and were not satisfied that the motor accident caused the need for surgery and/or any of the scans undertaken in late 2019.
Findings: The Review Panel revoked the Certificate issued by Medical Assessor Dixon.
Claims Assessment – Settlement Approval
Allianz Australia Insurance Limited v Godbold [2023] NSWPIC 253
Member David Ford
Settlement approval—claimant is self-represented—claim for past and future economic loss only—physical injuries.
The claimant crashed into the insured driver’s open door when the parked car door swung open into the path of the claimant’s moving bicycle. As a result, the claimant fell to the ground sustaining injuries including:
- left little finger fracture avulsion of flexor digitorum profundus tendon insertion at base of distal phalanx, and
- left middle comminuted fracture of proximal phalanx. The claimant underwent surgery with an internal fixation and K wire.
The claimant attended hand therapy for about six months.
At the time of the accident, the 29-year-old claimant was employed as a bicycle mechanic and the manager of a bicycle retail business. He was also a university graduate, with degrees in Arts and Political Studies.
The claimant was off work for about three months following the accident and surgery and had a gradual return to full-time work with occasional restricted duties related to use of his left hand.
The insurer conceded entitlement to damages for past and future economic loss. A report by Dr McGlynn qualified by the insurer found WPI of 5% for the left-hand injury. The parties agreed past economic loss in the sum of $10,000 inclusive of superannuation and Fox v Wood. The insurer allowed occasional time off work and a buffer of $10,000 was conceded for future economic loss.
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 that damages of $20,000 for past and future economic loss, minus statutory benefits of $5,623.03 was just, fair and reasonable and within a range of damages likely to be awarded at a hearing.
General Assessment
Kindi v AAI Limited t/as GIO [2023] NSWPIC 254
Member: Gary Victor Patterson
Assessment of damages—pedestrian claimant pinned to tree by insured vehicle—question of claimant’s pre-existing condition degree of improvement at time of accident – amount for non-economic loss — claimant makes no claim for economic loss because he doesn’t want to incur a Centrelink liability.
On 5 April 2018, the 50-year-old claimant was standing at the corner of an intersection when the insured driver lost control of her truck, mounted the footpath striking the claimant and pinning him against a tree. The claimant sustained a compounded fracture to the left leg, undergoing numerous surgeries with an admission of six months at Westmead Hospital. The claimant also suffered from a pulmonary embolism whilst in hospital, and serious infections with discussions of amputation. The claimant had a rod inserted in his left leg, required to be removed in time. The claimant also sustained injuries to his lower back, bilateral shoulders and bilateral knee, with psychological overlay.
The issues in dispute included the extent to which the claimant’s psychological condition was improving before the accident, and the amount of non-economic loss.
At the time of the accident the claimant was not working due to anxiety, stress and depression (related to his incarceration between 2008 and 2013) and was on a disability pension.
By way of background, the claimant had a poor employment history including coming to Australia from Iraq and being in a refugee detention centre in Perth for one year. He then came to Sydney where he worked in a butcher shop, as a security guard and as a forklift driver. The claimant was a single man living in public housing, was fit and well and did not suffer from physical injuries or disabilities prior to the accident.
At assessment, the claimant made no claim for economic loss because he did not want to incur a Centrelink liability. He conceded that any economic loss claim would be modest.
In relation to the first issue, the claimant suffered a psychological condition whilst incarcerated and was referred to a psychologist as a condition of his parole. The claimant relied on the report of treating psychologist who reported that the claimant’s mental health issues had stabilised prior to the accident, to the extent that correctional authorities had given him permission to travel overseas for family visits.
The insurer pressed that the claimant continued to be in receipt of the disability support pension due to his mental health issues and had not reduced his psychotropic medications at the time of the accident.
The Member accepted that the claimant’s mental health had improved considerably prior to the accident, accepting that he had formed a relationship, intended to marry and was looking for work.
In relation to the second issue, the claimant had been assessed by Dr Yuk Kai Lee, orthopaedic surgeon, as having a combined 36% WPI. The insurer’s orthopaedic surgeon, Dr Stephen Rimmer, assessed 12% WPI. The Member noted that the differences were mainly in their respective assessments of WPI for the left leg and both shoulders. The Member accepted Dr Lee’s assessment of WPI as likely to be more accurate.
The claimant submitted that, assessed in accordance with common law principles, the claimant should be awarded almost the maximum amount allowed for non-economic loss. It was submitted that the current maximum of $605,000 is a statutory cap, not a reference to a most extreme case. The Member accepted this.
It was noted that the claimant would have to have more surgery to remove the rod and anchors in his left leg. The claimant submitted that an amount up to $600,000 would be appropriate.
Findings: The Member assessed damages in the total sum of $450,000 for non-economic loss only.
