Sparke Helmore's MAD (Motor Accidents Division) - Issue 138
28 July 2025
Welcome to the 138th 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
Insurance Australia Limited t/as NRMA Insurance v Rachak [2025] NSWPICMP 239 (4 April 2025)
Member Belinda Cassidy and Medical Assessors Matthew Jones and Steven Yeates
Medical assessment of review panel – assessment of threshold injury and treatment dispute, claimant sustained psychological injuries; first record 10-months after subject accident.
On 28 August 2020 the claimant was involved in a motor accident where she was a passenger in a vehicle driven by her daughter, when there was an impact from behind and the car was shunted forward.
As a result of the subject accident the claimant sustained injury to her spine and shoulder and developed a psychological or psychiatric injury.
A medical dispute about whether the claimant’s injuries were threshold injuries arose.. There was also a dispute about a single psychological consultation, which was referred to the Commission in the same application.
On 22 June 2023, Medical Assessor Home determined that the claimant’s physical injuries were threshold injuries. The claimant did not lodge any application for review.
On 27 October 2023, Medical Assessor Shen determined that the claimant had a psychological or psychiatric injury that was not a threshold injury. Assessor Shen also determined that the single psychological consultation in dispute was related to the accident and reasonable and necessary in the circumstances. The insurer lodged an application with the Commission seeking a review of Medical Assessor Shen’s decision.
Medical Assessor Shen examined the claimant on 23 October 2023 and issued his reasons on 27 October 2023. Assessor Shen noted that he was referred a dispute about whether the claimant had a psychiatric condition, in particular a post‑traumatic stress disorder and whether certain psychological counselling sessions were related to the accident and were reasonable and necessary in the circumstances.
During this examination, the claimant recalled another motor vehicle accident in 2018 where she also injured her neck and back and had some psychological distress as a result of that accident, being fearful she would be hit again.
The claimant alleged that her psychological symptoms emerged a couple of weeks following the subject accident and that those symptoms included being scared, anxiety for being hit again and being weary of trucks on the highway. The claimant said she felt depressed, her weight increased and she struggled with sleep. The claimant stated she had a few counselling sessions, but they were ceased by the insurer.
Medical Assessor Shen diagnosed other specific trauma and stressor related disorder, as he considered the traumatic experience was not sufficient to meet criterion A of the PTSD diagnosis. He considered the claimant had experienced a post‑traumatic stress syndrome that would otherwise have met the diagnostic threshold, excluding criterion A.
Medical Assessor Shen considered the claimant’s post-traumatic stress disorder was caused by the accident, but did not determine the relationship between it and the earlier accident. As it was not an adjustment disorder or an acute stress disorder, he found it a non‑threshold injury.
Medical Assessor Shen considered the treatment dispute as treatment related, reasonable and necessary.
The insurer lodged an application for review in relation to the treatment dispute and the threshold dispute.
The insurer submitted Medical Assessor Shen had not provided sufficient reasons for his decision, had failed to consider the medical evidence and had failed to explain the causal connection between the accident and the need for treatment.
The insurer noted that Medical Assessor Shen did not explain how criterion G, or any other criterion for post‑traumatic stress disorder were met, limiting his statement of reasons to finding that she did not satisfy criterion A. The insurer also submitted that Medical Assessor Shen did not distinguish between the claimant’s restrictions due to her physical injuries and physical factors and restrictions due to mental health matters.
The insurer submitted that there was inconsistency in the history, in terms of the claimant’s medication, which had been prescribed before the subject accident.
In terms of the treatment dispute, the insurer submitted that Medical Assessor Shen did not acknowledge the evidence that the claimant was having psychological treatment, including medication before the subject accident and that he recorded he was not provided with details of the disputed consultation. The insurer noted that all relevant details were provided to Medical Assessor Shen in the original assessment documentation.
The insurer also submitted that there was no reference to a psychological disorder in the first certificate of capacity issued by the claimant’s doctor.
The Panel met on 29 January 2025 to discuss the review and issued a report dated 30 January 2025.
The Panel referred to the history from the claimant’s treating Dr Matthew Tait, Neurosurgeon, that the right side of the claimant’s body was thrown against the inside of the car, she was cut from the vehicle and that her car was written off. The claimant was asked to confirm this history. The claimant did not respond to the Panel’s request.
The claimant attended a medical re‑examination on 26 February 2025 with Medical Assessors Yeates and Jones.
The claimant was diagnosed by the Panel to have longstanding pre‑existing physical complaints, including neck, shoulder and lower back pain which substantially predated the accident by several years, as documented in the evidence.
The Panel also noted significant history of mental health problems including a claim for physical and psychological injuries related to the 2018 accident, which was still being pursued following the 2020 subject accident.
It was the clinical judgment of the medical assessors that the claimant met the criteria for a persistent depressive disorder as set out in DSM‑5‑TR. It was the clinical judgment of the medical assessors that this was unrelated to the subject accident due to a clearly documented history of depression following the earlier accident, as well as persistent pain. The Review Panel noted that the persistent depressive disorder was caused by events before the current subject accident and continued.
The Panel ultimately determined that criterion A and criterion G were not met.
In accordance with clause 4(2) of the Regulation, an adjustment disorder is a threshold injury.
In so far as the treatment dispute was concerned, whilst the Panel noted that it was prepared to accept a referral related to the psychological injuries caused by the accident, the Panel was not of the view that a consultation with a psychologist was now reasonable and necessary for the following reasons:
- It was now nearly two years since the referral was given to the claimant and there was no evidence that the claimant pursued that particular referral.
- An identically worded referral was provided to a different psychologist and an initial consultation was approved by the insurer.
- The claimant confirmed that she had seen a psychologist twice in recent times and it was reasonable to assume that the psychologist the claimant had seen was the latter psychologist.
- There were no records from any psychologist or psychiatrist who may have treated the claimant since the accident.
Held – The Panel determined that the claimant had an adjustment disorder caused by the accident and that this was, for the purposes of the MAI Act, a threshold injury. The Panel determined that the request for treatment made on 10 March 2023 was related to the accident and now was not reasonable and necessary in the circumstances. The Panel arrived at different conclusions to those of Medical Assessor Shen determining that his Certificate should be revoked and a new Certificate issued.
Determination of a Review Panel
Rana v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 241 (4 April 2025)
Member Jeremy Lum and Medical Assessors David Gorman and Shane Moloney
Medical Assessment of review panel – threshold injury dispute, claimant’s vehicle was stationary when it was rear-ended, claimant had four (4) previous motor accidents (2017, 2018, 2019 and 2020) before the subject accident in 2021.
The claimant was involved in a motor accident on 12 January 2021 where it was noted that his vehicle was stationary at a red light, when another vehicle failed to stop and crashed into the rear of his vehicle.
A medical dispute arose about whether the claimant’s injuries were threshold injuries and the matter was referred to the Commission for medical assessment.
On 29 July 2024, Medical Assessor Robert Kuru issued a Certificate of Assessment in which he found the claimant’s injuries not to be caused by the motor accident. As such there was no determination with respect to whether the injuries were threshold.
Medical Assessor Kuru was asked to assess whether a disc annular tear at L5/S1 with central disc protrusion and broad-based disc bulge was causally related to the motor accident and whether it was a threshold or non‑threshold injury.
The claimant told the medical assessor that he was involved in a previous motor accident in 2019 where he suffered a back injury. The claimant stated the injury resolved and he was asymptomatic at the time of the subject accident in 2021.
The medical assessor noted pre‑accident and post‑accident MRI investigations of the lumbar spine. Findings revealed in 2017, 2014 and 2021 in all instances that a desiccated L5/S1 disc with central disc protrusion was present.
The medical assessor also highlighted a letter from Dr Rosenberg, spinal surgeon dated 18 March 202,1 who reviewed the MRI from before and after the motor accident and noted no significant change in the imaging. Dr Rosenberg did conclude however that the claimant aggravated a pre‑existing injury.
Medical Assessor Kuru noted a letter from Dr Rosenburg, Spinal Surgeon, dated 18 March 2021, who reviewed the MRI from before and after the subject accident and noted no significant change in the imaging. Dr Rosenburg, however, did conclude that the claimant aggravated a pre-existing injury.
As such, Medical Assessor Kuru diagnosed the claimant as having non‑specific back pain as a result of the motor accident with imaging demonstrating pre‑existing disc changes at L5/S1. This resulted a musculoligamentous injury to the lumbar spine.
Assessor Kuru based his determination on the claimant’s pre-existing imaging and medical records and largely relied upon the records of Dr Rosenburg, mentioned above.
The claimant lodged an application with the Commission seeking a review of the medical assessor’s decision.
The claimant submitted that the medical assessor failed to apply the “but for” causation test in that “but for” the motor accident on 12 January 2021, the claimant would not be suffering the current physical injuries. The claimant submitted there was a failure in the assessment process of obtaining a comprehensive and accurate history, including the drastic change in lower back symptoms from being asymptomatic 12 months before the subject accident.
In the insurer’s reply submissions they noted that the annular tear found in the post‑accident MRI was likely pre‑existing and that the subject accident may have rendered the pre‑existing pathology symptomatic. The insurer also submitted that the medical assessor was correct to conclude that the claimant had non‑specific back pain as a result of the motor accident and that the claimant’s injuries fit the legislative definition of a threshold injury.
The Panel convened on 11 February 2025 where they determined that a re‑examination of the claimant was required and the claimant was re‑examined by Medical Assessor David Gorman.
On examination the claimant was noted to be in no obvious distress and was wearing an elastic back brace. Lumbar range of motion showed two‑thirds normal flexion to the proximal third of the tibia. Extension was also two‑thirds normal.
Lateral flexion was normal reaching the knees on the right and left sides.
It was the Panel’s view that while the accident did cause a period of exacerbation of the lower back pain and that pain persisted to some extent, the injury did not cause the disc annular tear at L5/S1.
They considered the accident could have caused a tear in the fibrocartilaginous disc but noting the absence of any changes on the MRI scanning, the Panel believed the ongoing pain was likely through another mechanism, which could be muscular strain, ligamentous strain or irritation and inflammation of the disc without tearing. All these would be threshold injuries.
The Review Panel noted that the following injuries were caused by the motor accident:
- Injury to the lumbar spine period of persistent lower back pain and exacerbation of pre‑existing L5/S1 disc disease and left leg pain and sensation of weakness.
The following injuries were not caused by the motor accident:
- Disc annular tear at L5/S1 with central protrusion and disc bulge broad based.
- Injury to the left leg, weakness in the left leg.
Held – The Panel concluded that the claimant’s injury to his lumbar spine was a threshold injury[RS6] . The disc annular tear at L5/S1 was not caused by the accident, but the subject accident did cause the claimant to sustain an injury to his lumbar spine.. The Certificate issued by Medical assessor Kuru dated 29 July 2024 was revoked and a new Certificate was issued.
Determination of a Review Panel
Insurance Australia Limited t/as NRMA Insurance v Moutrage [2025] NSWPICMP 250 (10 April 2025)
Member Anthony Scarcella and Medical Assessors Christopher Oates and Margaret Gibson
Review of medical assessment certificate for whole person impairment (WPI), medical assessor determined 18% WPI, review sought by insurer.
The claimant was involved in a motor accident on 19 March 2013.She was a passenger in a motor vehicle driven by her mother that slowed to make a right hand turn into the driveway of their home, when another vehicle was travelling behind them and did not slow down and collided with the claimant’s vehicle.[RS7]
As a result of the subject accident, the claimant alleged injuries to her neck, bilateral shoulders, mid back, lower back, pelvis and upper digestive tract.[RS8]
A medical dispute arose about the degree of the claimant’s WPI in respect of her physical injuries and whether it was greater than 10%.
An assessment of 7% WPI was made by Medical Assessor Berry on 30 November 2022.
The dispute was referred for further assessment to Medical Assessor Neil Berry on 26 February 2024, based on the claimant’s submissions that alleged that she was suffering from a deterioration of the injuries caused by the subject accident, namely, her cervical spine and bilateral shoulders. [RS9] .
On 13 March 2024, in his further assessment, Medical Assessor Berry determined that the claimant had suffered injuries to her cervical spine, bilateral shoulders, lumbar spine and stomach caused by the motor accident and assessed WPI of 18%.
The insurer sought a review of the further assessment of Medical Assessor Berry.
The insurer submitted Medical Assessor Berry failed to engage with the medical evidence clearly articulating arguments advanced by the insurer. The insurer argued that the claimant’s injuries had not deteriorated, the effects of the subject accident had ceased and the present complaints were unrelated to the effects of the motor accident.
The insurer also submitted that the Medical Assessor conducted an incomplete and incorrect examination of the claimant’s spine and he failed to provide an explanation of the significant finding of permanent restriction in range of motion in the absence of any muscle wasting.
The claimant relied on the report of Dr Porteous dated 20 September 2023 who assessed her as having 5% WPI of the cervical spine and also determined that there was a restricted range of movement in her bilateral shoulders as a result of neck pain, in accordance with the principle espoused in Nguyen. Dr Porteous found that there had clearly been a deterioration in the claimant’s spinal pain.
The claimant disputed the insurer’s submissions about Medical Assessor Berry’s alleged inadequacies and failure to consider its submissions.
On 4 October 2024 a re‑examination of the claimant was conducted by Medical Assessors Margaret Gibson and Christopher Oates.
It was noted that there was some tenderness in the midline of the mid‑cervical spine and the right trapezius and left trapezius, both were considered referred symptoms from the neck. There was no wasting, no spasm or guarding.
There were complaints of pins and needles, which did not follow a specific spinal nerve root distribution and the Medical Assessors did not consider them to be non‑verifiable radicular complaints.
Reflexes and power in the upper limbs were noted to be normal.
In the thoracic spine there was no spasm or guarding noted.
In the lumbar spine there was tenderness to the light palpation over the sacrum and L5/S1 centrally. There was no guarding and no muscle spasm.
As to the claimant’s abdomen (digestive system) there was no rigidity and no guarding. The bowel sounds were noted to be normal and there was no enlargement of the liver, spleen or kidneys palpable.
Based on the findings of the physical examination and the documents in evidence, the Panel found that the following injuries were caused by the motor accident:
- A soft tissue injury to the cervical spine with referred symptoms into the bilateral shoulder girdles, which persisted to date.
- Soft tissue injury to the lumbar spine which persisted to date.
- Upper digestive tract disease which persisted to date.
The Panel assessed the claimant’s degree of permanent impairment of the cervical spine at 5% WPI, the thoracic spine at 0% WPI, the lumbar spine at 0% WPI and 2% WPI for the right shoulder and 2% WPI for the left shoulder. There was 1% WPI assessable for gastroesophageal reflux. The combined impairment was 10% WPI.
The Panel found that there was no history of preceding symptoms prior to the motor accident to suggest any prior impairment. The Panel therefore found apportionment of impairment irrelevant.
Held – The medical assessment Certificate of Assessor Berry was revoked and the Review Panel determined that the claimant sustained injuries that gave rise to 10% WPI.
