Sparke Helmore's MAD (Motor Accidents Division) - Issue 152
16 April 2026
Welcome to the 152nd edition of Sparke Helmore’s MAD Publication!
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 relevant headnotes of select published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Please see the new 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.
Medical Review
Rai v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 218; (24 March 2026)
Member Medland, Medical Assessor Barnsley and Medical Assessor David McGrath
Panel medical assessment review of a determination that the claimant sustained a threshold physical injury; whether angulation to the coccyx is a traumatic injury caused by the motor accident or abnormality within the normal variants of the general population; mechanism of the motor accident considered, where there is a delay of symptom onset.
The claimant was injured in a motor accident on 26 September 2022. She lodged a claim for statutory benefits and a dispute arose about whether the claimant’s accident related injury was a threshold injury.
The medical dispute was assessed by Medical Assessor Home at first instance. The claimant alleged that she sustained an angulation of her coccyx in the accident. She relied on a CT of the spine dated 6 July 2023. She also alleged non threshold injuries to her cervical, thoracic and lumbar spine.
On 16 September 2025, Medical Assessor Home determined that the referred injuries (cervical spine, thoracic spine and lumbar spine) were not caused by the motor accident. He said that it was not plausible that the claimant sustained a soft tissue lumbar injury as a result of the motor accident, noting the absence of complaints in the six weeks following. In respect of a coccyx fracture, the Medical Assessor noted that there was no evidence of immediate severe buttock pain or pain on sitting which would otherwise be expected. He also said that coccygeal anatomy was variable and determined ’that the documented angulation is likely developmental in origin. In this regard, I note the claimant also has developmental anatomy at the lumbosacral junction.’ On the basis that causation of the referred injuries was not satisfied, the Assessor did not consider the threshold question further.
The claimant successfully had the medical assessment Certificate referred to a Review Panel. She argued that Medical Assessor Home misrepresented the alleged coccyx injury as coccyx angulation (a structural injury to bone), not a fracture. It was said that the claimant was not alleging or referring a coccyx fracture for assessment. It was argued that the test of causation was inaccurately applied and that the Medical Assessor did not address whether the coccygeal angulation met the definition of a threshold injury for the purposes of the MAI Act. The insurer opposed the claimant’s application.
The claimant was re-examined by the Panel. The Panel found no evidence of any injury to the cervical or thoracic spine, the examination did not reveal radiculopathy, and the Panel was satisfied that the lumbar injury was soft tissue in nature. The Panel said that ’the key issue for determination in this “threshold injury” dispute is whether or not the coccygeal abnormality noted on the CT scan was caused by the accident and if so whether or not it constitutes a non-threshold injury.’
On this issue, the panel said that:
Coccygeal fractures or segmental dislocations, particularly those that might result in any forward angulation, can only occur where there is severe force applied to the coccyx itself from a posterior direction. This typically occurs when there is a direct impact to the coccyx, such as when falling backwards and landing directly on the coccyx. The accident described was a frontal impact (as evidenced by the history and the deployment of the steering wheel airbag), so that the claimant’s body would have been forced forwards, which would have pulled the pelvis away from the car seat. In other words, there is no plausible mechanism by which a frontal impact could have resulted in a coccygeal fracture or anterior displacement of the coccyx giving rise to the subject angulation seen on imaging.
The Panel agreed with Assessor Home that it was implausible that the claimant could have fractured/dislocated/traumatically angulated her coccyx in the accident then remain asymptomatic for a month, then later become symptomatic from that injury. The Panel also determined that various degrees of anterior coccygeal angulation are well recognised normal variants in the general population and said that the radiological scan showed angulation within the range of normal anatomical variants.
Given the findings of the Panel differed in respect of the injury to the lumbar spine the certificate of 16 September 2025 was revoked, and a new medical assessment Certificate was issued affirming that the claimant sustained a soft tissue injury to her lumbar spine only, as a result of the motor accident.
Held: The Certificate was revoked and a new Certificate was issued – noting the same outcome.
Merit Review
Villanueva v Lifetime Care and Support Authority of New South Wales [2026] NSWPICMR 12; (24 March 2026)
Merit Reviewer Cassidy
Claimant’s dispute about the cost of attendant care services provided to her by her sister – where Merit Reviewer bound by separate proceedings as to medical assessment finding of eight hours per week at $35 per hour – determination as to reasonable rate of care payable – nature of care provided was for domestic services and some personal assistance but was not nursing care.
The claimant sustained serious physical and psychological injuries in a motor accident on 6 November 2018. Her vehicle was carjacked and she was ejected from the vehicle whilst it was moving.
The claimant made claims for statutory benefits and common law damages against the CTP insurer, NRMA, as a result of the motor accident. The common law damages claim resolved and that settlement included damages for non-economic loss.
In the statutory benefits claim, a dispute arose about the cost of care provided to the claimant by her sisters and was determined by Merit Reviewer Cassidy in 2024. She determined that the reasonable cost of the disputed past care was the sum of $35 per hour, and in separate medical review proceedings, it was determined that the claimant required eight hours of care and assistance per week. Those determinations applied to the cost of past care provided up to 6 November 2023, which was the fifth anniversary of the motor accident.
Five years after the accident, Miss Villanueva’s statutory benefits claim was transferred to the Lifetime Care Authority of New South Wales (the Authority) for management through its program CTP Care. A new dispute arose about the level of attendant care services now being provided to the claimant by her sister, and the cost of that care.
On 5 November 2025, a Review Panel determined that the claimant’s care needs had not changed and that eight hours of domestic services per week was reasonable and necessary. This panel was compromised of the same Members and Assessors that resolved the 2024 medical review proceedings.
Merit Reviewer Cassidy was allocated in 2026 to resolve the dispute between the claimant and the Authority as to the cost of the care being provided and funded by the Authority as a declared merit review matter under cl 1(i) of the Sch and s 3.24(1) of the MAI Act.
The Merit Reviewer said that ’without clear legislative authority, the 2024 decisions issued by the earlier Review Panel and by me cannot bind Miss Villanueva and the Authority’ as those proceedings bound the claimant and NRMA. She said that she was bound by the determination of the medical Review Panel in 2025, noting that s 7.23(2) provides that a medical assessment Certificate issued by a single Medical Assessor or a Review Panel is ’conclusive evidence’ in, amongst other things, merit review proceedings.
On the issue of the cost of care, the Merit Reviewer rejected the claimant’s argument that her sister was providing more care due to the nature of her worsening injuries. The Merit Reviewer relied on the 2025 Review Panel’s decision that while the claimant’s condition has worsened, it had not resulted in any worsening of function. She said that the type of care provided was not greater or more difficult. She further said that the type of care was services of a domestic nature which does not require any skills or qualifications, such that it was not appropriate for the Authority to pay the rate of a nurse.
The claimant referred to the National Disability Insurance Scheme (NDIS) rates of pay and said that the rate of pay for ’domestic helpers’ paid by NDIS was $80–$110 per hour on weekday and $100–150 on weekends, however there was no evidence produced to substantiate this. On her own enquiries the Merit Reviewer referred to the ’NDIS Pricing Arrangements and Price Limits’ document which demonstrated rates of pay between $50-$58 per hour for the type of care described. Even so, the Merit Reviewer said that the claimant’s sister should not be paid at market rate because:
- The claimant’s sister ’is a carer providing contracted services to her sister. She is living under the same roof as her ’client’ and is not required to travel in order to provide services to her ’client’. This absence of travel is clearly a benefit to her. She has some benefits associated in living in the same accommodation as her ’client’ including the provision of all utilities (electricity, gas and water), the use of appliances and so on and she has the company of her family. According to the claimant’s evidence, she may also have the benefit, on occasions of her other sisters providing her with meals.’
- That arrangement alone supported a finding that the market rate or commercial rate should not be paid because there are additional financial benefits (subsidised accommodation at below a market or commercial rent in order for her to be available to provide care to her sister.
The Merit Reviewer referred to rates of pay used to assess compensation for care provided commercially or gratuitously under the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) which would have been payable had the motor accident occurred before 1 December 2017, and the rates of pay applicable if the claimant made a claim under the Civil Liability Act 2002 (NSW). She noted that under the MAC Act, the hourly rate for gratuitous care was set at one fortieth of the average weekly earnings of all persons in NSW and is revised every quarter based on the estimate of the Australian Statistician. She said that now, the Australian Statistician rate was $40 per hour.
Ultimately, the Merit Reviewer said that the rate for gratuitous care payable under common law compensation schemes in this State was a reasonable rate for the Authority to pay for the cost of attendant care services. She remitted the decision about the cost of care back to the Authority for redetermination, with the following directions:
- for the care provided from 7 to 18 November 2023 that care should be paid at the rate of $36.24 per hour
- for care provided from 19 November 2023 to 17 May 2024 that care should be paid at the rate of $37.62 per hour
- for care provided from 18 May 2024 to 15 November 2024 that care should be provided at the rate of $38.65 per hour, and
- for care provided from 16 November 2024 to 21 March 2025 that care should be paid at $39.82 per hour, and
- thereafter, whatever is applicable under the MAC Act or CLA as varied from time to time.
Held: The decision was set aside and the dispute about the cost of care provided to the claimant by her sister was remitted back to the Authority for reconsideration.
Medical Review
Allianz Australia Insurance Ltd v Gordon [2026] NSWPICMP 191 (13 March 2026)
Member Montgomery-Hribar, Medical Assessor Barrett and Medical Assessor Himanshu
Panel medical assessment review of a determination that the claimant’s PTSD attracted a permanent impairment greater than 10% under the MAI Act; whether an apportionment was necessary for pre-existing anxiety disorder; whether the subsequent cycling accident broke the chain of causation of psychological injury arising from the previous motor accident; Slade v Insurance Australia Ltd (t/as NRMA Insurance) [2020] NSWSC 1031 (Slade) and State Government Insurance Commission v Oakley (2015) 10 MVR 570 (Oakley) considered and applied.
The insurer sought review of the Certificate of Medical Assessor Gill, who had assessed the claimant's permanent psychological impairment at 19% whole person impairment (WPI), being greater than 10% for the purposes of the MAI Act. The insurer submitted that the Medical Assessor had misdirected himself on the treatment of subsequent impairment, failed to address inconsistencies in the claimant's history, and ascribed PIRS classifications inconsistent with the Guidelines.
The accident occurred on 28 April 2021. The claimant was driving at 100 km/h on the M1 motorway when traffic ahead braked suddenly. After coming to a stop, her vehicle was rear-ended twice – once by the car behind her, and again when that car was itself struck by a third vehicle and pushed back into hers. The claimant reported immediate shock, fear, and ongoing PTSD symptoms in the aftermath of the accident.
On 9 August 2021, approximately three months after the subject accident, the claimant sustained a concussion in a separate cycling accident when a car pulled out in front of her. Medical Assessor Gill had treated the cycling accident as an exacerbating event that did not warrant separate apportionment, on the basis that it did not introduce new psychiatric conditions. The insurer disputed this, submitting that the cycling accident was the primary driver of the claimant's psychological symptoms and that any exacerbation attributable to it should have been deducted from the assessed impairment.
The central question before the Panel was how to characterise the effect of the August 2021 cycling accident on the claimant's permanent impairment for the purposes of the MAI Act.
The Panel found, as a threshold matter, that there was a direct temporal relationship between the April 2021 accident and the onset of the claimant's psychiatric symptoms. The Panel was satisfied that a new array of psychiatric symptoms emerged as a consequence of that accident, and that the claimant would not have developed those symptoms had the accident not occurred. On that basis, the Panel found that the subject accident caused the claimant's PTSD.
Turning to the effect of the subsequent cycling accident, the Panel applied the framework in Slade and Oakley, which establish three categories. Under the first, where a subsequent incident would not have occurred but for the claimant's condition caused by the earlier accident, the additional damage is treated as caused by the earlier accident. Under the second, where the subsequent incident would have occurred regardless of the earlier accident, but the impairment is sustained, or greater because of aggravation of the earlier injury, the additional impairment is likewise treated as caused by the earlier accident. Under the third, where the subsequent incident would have occurred regardless and produces no aggravation of the earlier injury, it is causally independent.
- The Panel found the second Oakley principle applicable on the following reasoning:
- The claimant had already developed PTSD symptoms in the period between April and August 2021, before the cycling accident occurred. The cycling accident did not introduce any new psychiatric condition; the only new symptom attributable to it was the cessation of cycling, which would not of itself meet criteria for a psychiatric disorder.
- The Panel was satisfied on balance that the August 2021 cycling accident would not have caused PTSD in a person not already suffering that condition as a result of the subject accident.
While the cycling accident would have occurred regardless of the claimant's condition from the April 2021 accident, any impairment that resulted from it was due to aggravation of the pre-existing PTSD, not a new or independent psychiatric injury. Accordingly, any additional impairment caused by the cycling accident was to be treated as caused by the subject accident, and no apportionment was made.
In respect of the claimant's pre-existing social anxiety disorder, the Panel found that although she had a well-documented history of anxiety treatment dating back to 2013, there was no identifiable functional deficit across any PIRS category attributable to that condition prior to the accident. She was working full-time, studying, and functioning without impairment at the time of the accident. Accordingly, no apportionment was made for pre-existing impairment.
Notwithstanding, the Panel assessed the claimant's permanent impairment at 8% WPI - lower than the 19% assessed by Medical Assessor Gill - on the basis of revised PIRS classifications across the six functional categories.
Held: The Certificate of Medical Assessor Gill was revoked. Ms Gordon's degree of permanent impairment resulting from the psychological injury caused by the accident was 8%, which was not greater than 10%.
Medical Review
IAG Ltd (t/as NRMA Insurance) v Dergham [2026] NSWPICMP 217 (23 March 2026)
Member Bolton, Medical Assessor Oates and Medical Assessor Lahz
Panel medical assessment review of determination that claimant had sustained a non-threshold injury to the cervical spine; whether annular fissure at C4/5 was caused or aggravated by accident.
The insurer sought review of the Certificate of Medical Assessor Wijetunga, who had assessed the claimant's cervical spine injury (disc osteophyte complex and annular tear at C4/5) as a non-threshold injury, and the claimant’s injuries to the lumbar spine (musculoligamentous strain) and right shoulder (subacromial bursitis) as threshold injuries.
The accident occurred on 23 May 2024. The claimant was driving straight at approximately 50 km/h when the insured vehicle failed to give way, resulting in a T-bone collision. The claimant's car spun 180 degrees, the airbags deployed, and the vehicle was written off. The claimant was transported to Royal Prince Alfred Hospital by ambulance.
The insurer submitted that the annular tear was an incidental degenerative finding rather than a traumatic injury. It relied on the absence of immediate cervical spine complaints at the scene, the consistent diagnosis of soft tissue injury by treating practitioners, the absence of radiculopathy signs, and the approximately one-year delay between the accident and the MRI which first identified the annular fissure. The insurer also relied on Tran v AAI Limited t/as AAMI [2023] NSWPICMP 366, arguing by analogy that the fissure was pre-existing.
The claimant submitted that emergency diagnoses are frequently made without radiological imaging, that the absence of an initial cervical spine notation did not preclude a later diagnosis, and that the Medical Assessor was entitled to weigh subsequent MRI findings and treating reports against the initial hospital record.
On examination by Medical Assessor Oates, the claimant presented with reduced range of motion across the cervical spine, tenderness in the upper trapezius and mid-to-lower cervical spine, and ongoing neck and low back pain rated at up to 8/10. Power, sensation, reflexes and Spurling's test were all normal. The MRI of 12 April 2025 was reviewed and confirmed a central annular fissure and disc osteophyte complex at C4/5 without neural foraminal encroachment.
The Panel affirmed the original certificate. On the issue of causation, the Panel made several notable observations.
The Panel noted that the absence of an immediate complaint of cervical spine pain should not preclude a finding of causation. Whilst the ambulance record indicated no initial complaint of neck pain, the claimant reported cervical spine pain during transport to hospital – a soft collar was applied enroute – and the hospital admission record referred to cervical spine pain and prompted a CT scan. The Panel was satisfied that cervical spine symptoms arose contemporaneously with the accident.
The Panel accepted that the annular fissure was most likely a pre-existing, asymptomatic degenerative condition, but found that the accident had aggravated it. The mechanism of injury – a sudden, unexpected lateral impact causing a 180-degree spin at 50 km/h – was sufficient to produce complex forces capable of aggravating a pre-existing cervical condition. The claimant was 21 years of age at the time of the accident and had no prior cervical spine complaints, and ongoing neck symptoms persisted consistently through the treating record.
On the relationship between 'soft tissue injury' in a clinical and legislative sense, the Panel noted that treating doctors use the term 'soft tissue injury' to mean any injury to tissue softer than bone - a broader category that includes fibrocartilage such as an annular fissure. The medical and legislative classifications are therefore not mutually exclusive, and a consistent soft tissue diagnosis by treating practitioners does not preclude a finding of non-threshold injury under the MAI Act.
The Panel also emphasised that annular fissures have no particular determinative clinical signs such as radiculopathy – they present with neck pain, stiffness and restricted range of motion like any mechanical cervical condition. Accordingly, the absence of radiculopathy was not determinative of the threshold injury question.
Held: The lumbar spine (musculoligamentous strain) and right shoulder (subacromial bursitis) are threshold injuries. The cervical spine injury (disruption of disc fibrocartilage at C4/5 and annular fissure) is a non-threshold injury. The certificate of Medical Assessor Wijetunga was affirmed.
