Sparke Helmore's MAD (Motor Accidents Division) - Issue 134
03 April 2025
Welcome to the 134th 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 select 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 (NSW) (the MAI Act) 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.
Determination of Panel Review
Stott v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 133 (3 March 2025)
Panel: Member Alexander Bolton and Medical Assessors Michael McGlynn and John Giles
Medical panel review of assessment of whole person impairment (WPI) – combined assessment of 10% WPI – dispute between the claimant and insurer as to the degree of permanent impairment under Sch 2, s 2(a) of the MAI Act.
The claimant was a rear seat passenger in a motor vehicle that impacted with an electricity pole. He was allegedly wearing his seatbelt but in the course of the impact, he struck the B pillar between the front and back doors of the motor vehicle in which he was travelling.
The claimant was assessed by Assessor Curtin with respect to facial injuries sustained in the subject accident. It was concluded that the claimant had 8% WPI for his facial injuries. A combined Certificate was issued by Assessor Cameron, giving the claimant not greater than 10% WPI.
The claimant subsequently sought a review of the certificate of Assessor Curtin only. The following injuries were referred to the Review Panel for assessment:
- Fractures of the pterygoid and zygomaticomaxillary complex as well as a right parasymphyseal mandibular fracture, requiring surgical reconstruction, with sensory change in the branches of the left maxillary nerve, a branch of the trigeminal nerve.
The claimant argued that Assessor Curtin’s assessment was incorrect in a material respect as:
- After finding that the impairment to the trigeminal nerve should be reduced to 4.2%, he further reduced the impairment percentage to 3% when there was no basis at law to do so.
- Assessor Curtin failed to set out his path of reasoning for reducing the impairment percentage from 4.2% to 3%.
Regarding what the claimant says the impairment percentage should be, he relied on and refeeds to paragraph 6.173 of the Motor Accident Guidelines (the Guidelines), which the claimant submits relevantly says:
Trigeminal nerve assessment: Sensory impairments of the trigeminal nerve must be assessed with reference to Table 9 (page 145, AMA4 Guides). The words or sensory disturbance are added to the table after the words neuralgic pain in each instance. Impairment percentages for the three divisions of the trigeminal nerve must be apportioned with extra weighting for the first division (for example, division 1 – 40%, and division 2 and 3 – 30% each). If present, motor loss for the trigeminal nerve must be assessed in terms of its impact on mastication and deglutition (page 231, AMA4 Guides).
The clamant asserted that Assessor Curtin did not explain the basis for his asserting that the impairment “should be reduced further” from 4.2% or why he reduced this to 3%.
The claimant submitted that there is nothing in the Guidelines or AMA4 that requires or permits the impairment to be reduced further.
The insurer submitted that the findings and path of reasoning of the Medical Assessor were consistent with the available medical evidence. The insurer noted that Dr O’Neill, neurologist, in his report dated 2 April 2024, assessed 4% WPI with respect to the trigeminal nerve.
The insurer submitted that the Medical Assessor has appropriately concluded that as only part of the maxillary branch had been impacted, being the infra-orbital nerve injury, then it is appropriate to reduce WPI from 4.2% (being the maximum percentage awarded) to 3% WPI.
The Review Panel noted Dr O’Neill gave little information in his report of examination of this area of injury. Dr O’Neill reached the correct figure of 4% assessment for the trigeminal nerve injury, but he achieved this with incorrect methodology. The Panel noted that it would not be unreasonable to consider that a sudden impact/sudden deceleration incident would cause the claimant to be thrown about within his seat and for his unprotected head to hit obstacles within the car.
Overall, the Review Panel found that the claimant has a 9% WPI for his facial injuries. With 5% attributed to the face, 4% attributed to the trigeminal left nerve and 0% attributed to mastication.
Held—The claimant was assessed by the Review Panel as having a 9% WPI. The Certificate of Assessor Curtin dated 16 July 2024 was revoked and a new combined Certificate of 11% WPI was issued (also accounting for the Certificate of Assessor Cameron who allocated 2% WPI).
Merit Review
Kirkman v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 7 (11 March 2025)
Merit Reviewer: David Ford
Miscellaneous claims assessment - insurer’s determination the claimant was not entitled to receive weekly statutory benefits when residing overseas after the motor accident – ss 3.21 and 3.21 (2)(a)-(b) of the MAI Act – claimant suffered a loss of earning capacity likely to continue for an indefinite period.
The claimant sustained non-threshold injuries in a motor accident on 23 March 2024. He lodged a claim for statutory benefits on 10 April 2024, which the insurer accepted liability for, and pre-accident weekly earnings (PAWE) was assessed at $5,267.53.
As a result of the injuries to the claimant’s right shoulder, right hip and arm, the claimant was not physically fit to work in his pre-injury role as a mechanical rigger.
On 22 April 2024, the claimant and his wife travelled to Germany where she was a citizen. In Germany, the claimant underwent treatment for injuries sustained in the motor accident. On 17 September 2024, the insurer advised the claimant that payment of weekly benefits would cease whilst he was residing outside Australia. This decision was affirmed on internal review on 8 October 2024.
In that internal review decision, the insurer conceded the claimant was entitled to treatment outside of Australia pursuant to ss 3.21 and 3.33 but disputed entitlement to weekly benefits on the basis that the claimant’s loss of earning capacity was not “permanent” as required by s 3.21(2)(a).
Section 3.21 says:
(1) An injured person who resides outside Australia is not entitled to receive any weekly payment of statutory benefits in respect of any period during which the person resides outside Australia, except as provided by this section when the loss of earning capacity is likely to be of a permanent nature.
(2) An injured person residing outside Australia is entitled to receive on a quarterly basis, or at shorter intervals agreed by the insurer and injured person, the amount of the weekly payments accruing due during the preceding quarter if-
(a), the Commission or insurer has determined that the injured person’s loss of earning capacity is likely to be of a permanent nature, and
(b) the person establishes, in such manner and at such intervals as may be required by the Motor Accident Guidelines, the person’s identity and the continuance of the loss of earning capacity.
The claimant relied on Bax v Insurance Australia Ltd (t/as NRMA Insurance) [2022] NSWPIC 538 (Bax) wherein Member Williams found that “a loss of earning capacity is likely to be of a permanent nature if it can be shown that the loss of any capacity is likely, on the balance of probabilities, to continue for an indefinite period”, not that the claimant was not likely to improve or regain some earning capacity.
Merit Reviewer Ford agreed with the reasons of Member Williams in Bax and applied that authority in finding that the claimant’s medical evidence demonstrated a loss of earning capacity, which was likely to be of a permanent nature whilst the claimant was residing in Germany.
As the Merit Reviewer was satisfied that the claimant had sustained a permanent loss of earning capacity whilst he resided overseas, he ordered the insurer to backpay weekly payments for that period.
Held—Decision set aside – insurer to back pay weekly benefits whilst claimant resided overseas
Diakanastasis v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 8 (17 March 2025)
Merit Reviewer: Katherine Ruschen
Merit review – dispute regarding cost of treatment and care provided or to be provided is reasonable for purposes of s 3.24(1) of the MAI Act – cost of travel expenses to attend medical assessments.
The claimant was injured in a motor accident on 5 November 2022. He lodged a statutory benefits claim, and as part of same, the insurer declined reimbursement of travel expenses where the travel was between the claimant’s work to home but included a detour enroute to attend medical appointments (the disputed expenses).
The insurer argued that the claimant would have incurred the expense anyway because he would have had to travel to and from work irrespective of any medical appointment, relying on Chen v QBE Insurance (Australia) Limited [2022] NSWPICMR 55 (Chen). In response, the claimant argued that there was no requirement in s 3.24, cl 33 of the Regulations or clause 4.105 of the Guidelines for travel to medical appointments be to and from home rather than work. The claimant applied to the Commission for resolution of this dispute as a merit review matter.
The insurer argued that the incurred travel expense to be reimbursed was only the additional kilometres travelled to detour via the treatment provider on the usual route. The Merit Reviewer agreed with this interpretation and affirmed her own determination of Chen. She said that “once the claimant commences his journey to work or from work to home, regardless of whether he commences it from treatment rooms”, the travel is then to engage in employment, not for treatment per s 3.24(1)(b).
The Merit Reviewer agreed that there was no direct requirement for the claimant to travel only from home to medical appointments, but for the expense to be “reasonable” and a “loss for the purpose of compensation”, the claimant must show how some or all of the claimed loss was incurred as a result of the motor accident or would not have been incurred but for the motor accident.
Held—reviewable decision set aside because the calculations of kilometres by the insurer were different to those calculated by the Merit Reviewer. Fundamental basis of insurer’s decision affirmed.
Miscellaneous Claims Assessment
Fowler v Youi Pty Limited [2025] NSWPIC 82 (12 March 2025)
Member: Belinda Cassidy
Medical review panel – treatment and care dispute: whether purchase of new car is “treatment and care” as defined by section 1.4; whether cost of new car is recoverable as a statutory benefit under s 3.24(1)(a) – whether new car purpose is a “reasonable and necessary travel expense” defined by s 3.24(1)(b) – definition of transport modification – consideration of cost efficiency
The claimant sustained pelvic fractures, spinal fractures, and a plexus damage in a motor accident on 11 December 2022 and as a result, he has significant support, care and equipment needs and uses a wheelchair.
The insurer accepted liability for the statutory benefits claim. However, Lifetime Care and Support rejected the claimant’s application. He was accepted as a participant in the National Disability Insurance Scheme.
The claimant’s Nissan Pajero was modified after the motor accident to accommodate his needs; but he requires assistance to stow the wheelchair in the vehicle. Consequently, the claimant requested the insurer buy him a new vehicle that was sufficiently modified that he could manage his own travel and transportation needs. The insurer declined and the claimant applied to the Commission to have the dispute resolved as a medical dispute.
The parties disputed whether this was a merit review matter, “whether the cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of section 3.24(1)”, or whether it was a medical assessment matter - “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24.”
The dispute was consequently referred to Member Cassidy as a General Member to determine the dispute, if not a medical assessment matter. On this issue, the Member noted that there was no specific or explicit power in Sch 2, which permitted a medical assessor or a merit reviewer to determine what is or is not “treatment and care” within the definition, and as such the Member determined that the dispute was best to be determined under Sch 2(3)(n) – “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule.”
The insurer argued that the cost of a new vehicle was recoverable in the damages claim pursuant to s 4.5(1)(b), but not recoverable in the statutory benefits claim because “the definition of “treatment and care” … “discloses a clear legislative intent to allow for the modification of an existing vehicle in the statutory benefits claim and the capital cost of the vehicle in the damages claim” on the basis that:
- The definition of treatment and care at s 1.4(j) is “home and transport modification”, and parliament has expressed an intent not to allow for capital costs.
- Clause 9 of the MAI Regulations provides for awarding of damages for all other accommodation or travel that is not a treatment expense in the statutory damages claim.
- if all travel and accommodation costs were intended to be recoverable in the statutory benefits claim, there would be no work to do for the damages claim under s 4.5(1)(b) which allows for “damages for costs relating to accommodation or travel (not being the cost of treatment and care) of a kind prescribed by the regulations).”
Further, the insurer argued that the statutory benefits scheme was “poorly equipped to try and calculate marginal increases in capital costs and appropriate reductions in mileage expenses over a claimant’s lifetime” if the claimant’s interpretation was correct and these costs were recoverable in the statutory benefits claim.
The Member differentiated “accommodation or travel” costs recoverable under s 4.5(1)(b) in the damages claim from “home or transport modification” in the statutory benefits scheme, stating that Parliament distinguished between “what is an injured person’s accommodation and what is their home and also between travel and transport”, stating that:
Accommodation and home are not in my view one and the same thing. A claimant with two broken legs whose home is on the fourth floor of an apartment with no lift, may need to rent a ground floor apartment temporarily while his broken legs heal. His rental expenses might be covered as “accommodation” in his damages claim, but are probably not “home modification” as a form of treatment in his statutory benefits claim. So too travel and transport may not be the same thing. A claimant with chronic regional pain syndrome (in his legs) who has family abroad and holidayed with them once a year before the accident may need to fly business class instead of the economy cabin when he visits family after the accident. The additional costs of a business class airfare would appear to be a kind of “travel” costs claimable in a damages claim, but not necessarily “transport modification” as a form of treatment in the statutory benefits claim.
The Member said that it was not “entirely clear” that the purchase of a new vehicle was a “travel” cost recoverable under s 4.5(1)(b) in the claim for damages.
The claimant also argued that the legislature’s definition of treatment and care to include “transport modification” rather than “vehicle modification” meant that the definition was sufficiently broad to include a new or modified motor vehicle. He rejected the insurer’s “arbitrary” distinction between a capital and non-capital expense, highlighting that the purpose of a hospital-style bed is a new purchase included as treatment and care notwithstanding that a claimant already has a bed in their home capable of use.
The insurer disputed this, stating that the higher capital cost of a home or care meant this interpretation would be unaffordable for the scheme, and that this is why the legislature separated “aids and appliances” (where capital costs are recoverable) from “home and transport modifications”.
On this issue, the Member said that without Parliament’s explicit and unambiguous exclusion of a capital or purchase cost of a vehicle, the insurer’s interpretation and differentiation must be rejected, however that modification is a change or alteration to the transport the claimant was using at the time and therefore a new motor vehicle was not a “home or transport modification”.
The claimant made an alternative argument that the purchase of a new vehicle was “rehabilitation” because it enabled or attempted to enable the claimant to attain and maintain the maximum level of independent living, ability, and inclusion in all aspects of life. The claimant further argued that the provision of a suitable vehicle fits the rehabilitation goals of the MAI Act, including the “the early and appropriate treatment and care to achieve optimum recovery ... and maximise their return to work or other activities”, and that limiting this cost to recoverable only to when a common law claim was on foot was unsuitable given the claimant’s care needs are lifelong.
The Member agreed that the evidence supported a finding that the purpose of a new car “is, an integral part of the process of his rehabilitation enabling him to maximise his independence, achieve his full vocational ability and fully participate in all aspects of his personal and family life” and therefore was a form of “treatment and care” being part of the claimant’s “rehabilitation” as defined in s 1.4.
Notwithstanding, the Member was of the view that there was insufficient evidence to resolve whether the travel expenses being incurred whilst the claimant relied on Uber or taxis was more cost effective than the cost of a new motor vehicle. She referenced the LTCS Guidelines which permit the negotiation, settlement and documentation of transport and home modifications and noted a similar arrangement was not prohibited by the Act.
Held—The Member determined that:
- The purpose of a new vehicle was not “transport modification”.
- The purchase of a new vehicle was “rehabilitation” and is “treatment and care” for the purpose of s 3.24(1)(a), however
- There was insufficient evidence that a motor vehicle purchase was a cost effective travel expense and thus was not “reasonable and necessary” treatment within the meaning of s 3.24(1)(b).
Medical Review
QBE Insurance (Australia) Limited v Powell (No 2) [2025] NSWPICMP 167 (14 March 2025)
Panel: Member Belinda Cassidy, Medical Assessors Norman Chand and John Schmidt
Medical assessment review of treatment dispute – whether invitro fertilisation (IVF) treatment was related to injuries caused by the accident and reasonable and necessary treatment – no reproductive organ injury – pain and suffering caused by motor accident impacted fertility – claimant’s declining reproductive age.
The claimant sustained pelvic fractures in the motor accident on 27 September 2019. The insurer accepted liability for statutory benefits and paid statutory benefits for five years, after which liability was transferred to the Lifetime Care and Support Authority through CTP Care.
A medical dispute arose between the parties regarding the claimant’s request for the insurer to provide IVF treatment and that dispute was referred to Medical Assessor Izzo to determine as a medical assessment matter.
The claimant conceded that she did not injure her reproductive organs in the motor accident but argued that her fertility declined due to her injuries, as she was not physically or psychologically fit to maintain a pregnancy and deliver a child whilst she underwent treatment, and that egg preservation was reasonable and necessary treatment.
Medical Assessor Izzo agreed that the accident-related injuries were likely to cause increased pain during intercourse and labour, that the claimant was unlikely to conceive naturally due to that increased pain, that her fertility had reduced since the accident because of her declining age. He also noted that in the eight-months that the claimant was admitted to hospital after the accident, she “became amenorrhoeic”, entered premature menopause, and required IVF to achieve pregnancy.
The insurer applied for review on the grounds that there was reasonable cause to suspect a material error and that application was accepted by the President’s Delegate. The insurer argued that the decline in the claimant’s fertility due to age was not an “injury resulting from the accident.”
Following receipt of Assessor Izzo’s Certificate but before the review application was determined, the insurer agreed to reimburse the claimant for outstanding payments and associated costs on a without prejudice basis. The panel was concerned that there was no longer a dispute to determine, but Member Harris determined on 6 December 2024 that the Review proceedings should not be dismissed on the basis that the insurer had funded this treatment on a without prejudice basis, and that the insurer may seek to[IJ1] [IJ2] recover those payments made from the claimant at a later date.
The dispute proceeded. The Panel made a preliminary finding that it could not determine the claimant’s psychological “wellness” because her psychological injury had not been assessed by a Medical Assessor and was not within the expertise of that Panel to determine.
The Panel also said that there was insufficient evidence to affirm Assessor Izzo’s opinion that the claimant stopped ovulating after the accident and revoked the Certificate in that respect.
The Panel agreed that the stress and trauma associated with the accident could be responsible for the additional reduction in the claimant’s hormone levels and infertility “over and above” any reduction in fertility due to her age. The Panel said that the “ability to conceive also involves libido and the ability to have intercourse” and that as a result of her five years of physical unwellness, her fertility had declined.
The Panel stated that “had this accident not occurred, the claimant would have been more able to conceive naturally, at a younger age and would have been physically well enough to fall pregnant, with younger eggs, carry a child and have a child.”
The Panel affirmed the finding that the IVF treatment was related because the claimant’s fertility had declined due to her age and physical injuries. The Panel agreed that the claimant was likely to have increased difficulties maintaining a pregnancy and delivering a child due to her injuries and that it was medically reasonable for her to delay falling pregnant [IJ3] to allow for a better recovery.
Held—The Certificate was revoked, and a new Certificate was issued with the same outcome for different reasons.
