Sparke Helmore's MAD (Motor Accidents Division) - Issue 136
06 May 2025
Welcome to the 136th 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 a Review Panel
Rowland v AAI Limited t/as GIO [2025] NSWPICMP 178 (18 March 2025)
Member Jeremy Lum and Medical Assessors Geoffrey (Paul) Curtin and Michael McGlynn
Permanent impairment assessment – motor accident caused airbag to deploy on the bony nasal septum to the right causing early compromise to the right nasal passage. Review Panel confirmed that impairment fell in the middle of the range at 3% and that the claimant’s other orthopaedic injuries were assessed at 7% whole person impairment (WPI).
The claimant was involved in a motor accident on 9 December 2021. She was the front seat passenger in a vehicle driven by her friend when another vehicle pulled out in front and collided with the driver’s side. Airbags were deployed striking the claimant in the face and chest.
The claimant alleged injuries to her nose and air passage, chest, both shoulders, neck, lower back, both knees as well as psychological injury.
Medical Assessor Home found that the claimant had a WPI of 7% with respect to injuries to the claimant’s chest, neck, lower back, both shoulders and both knees.
Medical Assessor Payten found that the claimant had a WPI of 3% in respect to the injury to the claimant’s nose.
Medical Assessor Home issued a combined Certificate, combining his assessment with that of Medical Assessor Payten’s and determined that the claimant’s combined WPI was 10%.
The claimant sought a review of Medical Assessor Payten’s assessment of the injury to the claimant’s nose..
Medical Assessor Payten recorded the claimant’s complaints as right sided nasal obstruction causing snoring, which was not present before the motor accident. Upon clinical examination, a moderate right sided nasal obstruction causing a diminished airflow of the right side as compared to the left was noted.
A CT scan of the facial bones performed on 24 January 2023 was noted to show a marked soft tissue swelling over the right orbit in keeping with a haematoma. There was no associated fracture. There was a deviation of bony septum to the right causing a compromise to the right nasal passage.
Medical Assessor Payten determined that the cause of the deviated nasal septum was trauma to the nose from an airbag hitting her face at the time of the accident. Medical Assessor Payten noted that the reasoning for his opinion about causation was from the history given of bleeding from the nose immediately after the accident and the right nasal airway obstruction after the accident as compared to no airway obstruction prior to the accident.
In her submissions the claimant noted that Medical Assessor Payten’s assessment of 3% represented a midpoint of the range of assessments. The claimant noted her age at the time of injury and the fact that she has continued to suffer symptoms as well as snoring since the motor accident and that Medical Assessor Payten fell into error in assessing the impairment as halfway in the range of 0% to 5% WPI.
In addition, the claimant submitted that Medical Assessor Payten failed to consider or obtain any history of the presence or absence of dyspnoea. In this regard the claimant referred to Table 5, page 231 of the AMA 4 provides class 2, 11% to 29% WPI range, for dyspnoea “is produced by stress, prolonged exertion, hurrying, hill climbing, recreation except sedentary forms, or similar or like activity”. The claimant submitted that had the medical assessor obtained a history as he was required to do, the assessment of WPI may have been assessed in class 2.
The insurer submitted the claimant’s injury to her nose was an abrasion from the airbag and would have resolved within a few weeks after the motor accident.
The insurer referred to the criteria for class 2 pursuant to Table 5 on page 231 of the AMA 4 Guides as follows:
'A recognised air passage defect exists. Dyspnoea does not occur at rest. Dyspnoea is not produced by walking freely on a level, climbing at least one flight of ordinary stairs, or the performance of other usual activities of daily living.'
The insurer noted that Medical Assessor Payten’s clinical examination revealed a moderate right sided nasal obstruction however not a complete obstruction. The insurer also noted that there was no complaint by the claimant of dyspnoea produced by stress, prolonged exertion, hurrying, hill climbing, recreation or similar activity as required for class 2 impairment under the AMA 4 Guides.
The Panel found the motor accident caused an injury to the claimant’s nose and the deviated nasal septum was from trauma to the nose from the airbag hitting her face at the time of the accident.
The Panel assessed 3% WPI because examination of the nasal airways showed a moderate right sided nasal obstruction causing a diminished airflow on the right side as compared to the left.
Insofar as the dyspnoea is concerned, the Panel acknowledged the insurer’s submissions that there were no evidence regarding the presence of dyspnoea supported by a report from an ear, nose and throat specialist.
The Panel agreed that there is no evidence that the claimant suffers from dyspnoea as a result of the accident and any breathing problems due to a flareup of asthma was not related to the subject accident.
Held – The claimant’s WPI as a result of the motor accident was 3%. The Panel therefore confirmed the Certificate of Medical Assessor Payten dated 30 May 2024. There was no change to the injury, description of the injury or the impairment percentage and therefore no requirement to issue a new combined Certificate.
Determination of a Review Panel
Targa v QBE Insurance (Australia) Limited [2025] NSWPICMP 191 (21 March 2025)
Member Terence Stern OAM and Medical Assessors Gerald Chew and John Baker
Review of medical assessment certificate – Assessor Yu-Tang Shen determined 9% WPI and claimant made an application for review. The claimant committed suicide on 22 July 2023. The Review Panel utilised the history of the claimant and conducted an assessment on the papers. The Medical Assessment Certificate was revoked and the Review Panel substituted the determination for 18%.
The claimant was involved in a motor vehicle accident on 12 January 2019. The claimant was assessed for psychiatric impairment by Medical Assessor Yu-Tang Shen on 10 October 2022 where it was determined that the claimant’s whole person impairment was 9% on the basis of a diagnosis of persistent depressive disorder and post-traumatic stress disorder.
The claimant made an application for review of the determination of Medical Assessor Yu-Tang Shen.
It was noted that the claimant committed suicide on 22 July 2023.
In his original decision, Medical Assessor Shen noted that upon assessment the claimant had death ideations and was anxious about her future and her mood was described as low and quite anxious. Assessor Shen noted that her level of depression on a depression rating scale (MADRS) was in the moderate range.
The Review Panel noted that while clinical examination of the claimant was not possible, it was not excused from performing its role with all the limitations that the non‑availability of the claimant created. In effect, the Panel arrived at its determination on the papers.
The Panel took the view that all of the necessary evidence was available to Medical Assessor Shen. On the face of Medical Assessor Shen’s Certificate, the Panel noted there appeared to be an error in the assessment of social function on PIRS.
It was recognised that the claimant was in a state of semi-separation from her partner prior to the accident. That is, their relationship was almost over but they decided to live together in the same house. Medical Assessor Shen noted the separation clearly occurred after the motor accident.
Medical Assessor Shen assessed class 2, mild impairment. The Panel considered that this was inconsistent with the Medical Assessment Guidelines.
The Panel noted that the Guidelines are very clear on this issue. Medical Assessor Baker noted that for many years he had assessed matters before him as in a state of semi-separation at class 2, mild impairment, and separation of the couple—as in not living together in the same house—is assessed at class 3, moderate impairment. The descriptor as written by Medical Assessor Shen is clear that the separation occurred after the motor vehicle accident. The Panel did not accept the contribution of the accident was negligible as found by Medical Assessor Shen.
The Panel noted that the effect of changing social functioning from class 2 to class 3 was a median class value of 3 with an aggregate score of 16, giving a total WPI of 18%.
Held – Accordingly, the Panel revoked the Certificate of Medical Assessor Shen dated 13 October 2022 and substituted the determination of greater than 10% WPI.
Determination of a Review Panel
Talevski v Allianz Australia Insurance Limited [2025] NSWPICMP 198 (25 March 2025)
Member Terence O’Riain and Medical Assessors Margaret Gibson and Tai-Tak Wan
Permanent impairment review – Medical Assessor Assem assessed permanent impairment in the right ankle at 4% and 1%. Causation for the lumbar spine was disputed. Medical Review Panel found that the lumbar spine was causally related to the subject accident, however, a different impairment was determined for the lower limbs.
At around 6.15pm on 4 May 2018 the claimant was standing beside his parked vehicle when an unidentified vehicle struck him, and he fell to the ground. The claimant reported a temporary loss of consciousness, and he awoke with an abrasion on the right side of his forehead and severe pain in his left ankle. An ambulance took him to Liverpool Hospital where he remained until 6 May 2018.
Medical Assessor Assem assessed the claimant’s physical injuries on 20 February 2024 and assessed permanent impairment in the left ankle at 4% and in the right ankle at 4% with an overall permanent impairment of 5%.
The claimant sought a review of the assessment on the basis that Medical Assessor Assem found that the subject accident did not cause the lumbar spine injury.
In his submissions for review, the claimant relied on a report of Dr James Bodel, which among other things assessed 5% permanent impairment in the lumbar spine where it was noted that the accident caused an un-displaced fracture of the base of the second metatarsal in the right foot, and an undisplaced left lower limb distal fibula fracture with loss of sensation, which attracted a 4% WPI with 2% for the sensory loss. It was also noted that Dr Robyn Fitzsimon’s report dated 26 April 2022 assessed 4% permanent impairment for the claimant's neuropathic injuries in relation to the claimant’s lumbar spine injury. The insurer conceded that this was the correct rating.
The insurer in its submissions noted that the right ankle healed within 6 to 8 weeks after the accident, which does not support permanent impairment. The insurer also noted that the claimant did not report any back pain to Dr Fitzsimons or Associate Professor Michael Shatwell who, in his report dated 20 September 2022, noted that the claimant’s spinal movements were within normal limits for a man of this age and build.
Upon examination by the Review Panel, the claimant noted pain in his left leg from the knee downward, lower back pain, pain in the right foot, pain in the right shoulder and poor sleep. Examination of the lower back showed mild tenderness but no muscle spasm or guarding.
Examination of the upper limbs showed no gross muscle wasting and examination of the shoulders showed tenderness in the left trapezius muscle. Initially active movements of shoulders were moderately to severely restricted, which was inconsistent with the observations when the claimant was not being formally examined. Medical Assessor Tai-Tak Wan presented the inconsistency to the claimant, and he replied there was pain in the shoulders.
Medical Assessor Tai-Tak Wan asked the claimant to give his best effort and repeated the measurement but there was not much improvement in consistency.
Examination of the elbows showed no tenderness or swelling. Examination of the wrists and hands showed no deformity or swelling.
Examination of the lower limbs showed no gross muscle wasting. The claimant did report that there was pain along the lateral border of the left leg and left foot. Sensory impairment was consistent with the sensory distribution of the left deep peroneal nerve.
The Review Panel noted that there was some inconsistency in the examination of the shoulders and probably also the spine but this was not relevant because the conditions referred to the Review Panel were only the lumbar spine, right foot, and left ankle injuries.
Medical Assessor Tai-Tak Wan concluded that given all the evidence available, including the history given by the claimant, the physical findings, investigation reports, other medical reports, and all information from the supporting documentation, the claimant sustained a Weber B fracture involving the left fibula, complicated by a deep peroneal nerve injury, and a fracture to the base of the right second metatarsal.
The low back pain apparently only started four months after the accident.
The Review Panel determined that the left ankle and foot had a WPI of 1% and the right ankle and foot also had a WPI of 1% and the lumbar spine (secondary) had a WPI of 0%. Therefore, bringing the total WPI to 2%.
Held – Accordingly, the Review Panel revoked the earlier certificate and issued a new Permanent Impairment Certificate assessing the claimant’s permanent impairment that has resulted from the injuries caused by the accident to be not greater than 10%.
