Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 87
10 July 2023
Welcome to the 87th 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.
Review Panel Determination
Zealand v CIC Allianz Insurance Limited [2023] NSWPICMP 183
Panel: Principal Member Ray Plibersek, Dr Clive Kenna, Dr Chris Oates
MOTOR ACCIDENTS— whether contralateral shoulder can be used as a baseline for assessment of WPI - pre-accident history of right shoulder pain—whether the degree of permanent impairment of the injured person is greater than 10% as a result of the injury caused by the motor accident.
On 11 December 2019, the claimant sustained injuries to her cervical spine, left arm and left shoulder as a result of falling in the aisle of a moving bus, as the bus accelerated suddenly and prior to the claimant taking her seat. The claimant was 87 years old at the time of the accident.
Medical Assessor Wallace diagnosed musculoligamentous strain at the cervical spine and a fracture at the proximal humerus. Assessor Wallace determined Whole Person Impairment (WPI). The insurer sought review of the WPI Certificate and the matter was referred to the Review Panel.
The issue under review was the WPI method of assessment used by Assessor Wallace at the left shoulder. At the time of the review, the claimant was 90 years of age and likely suffered degenerative osteoarthritis at both shoulders. Assessor Wallace assessed the left shoulder UEI at 15% as a result of loss of movement. Assessor Wallace then assessed the uninjured right shoulder, finding a loss of movement equivalent to 6% UEI. The difference was 9% UEI which was a WPI of 5%.
On re-examination, Medical Assessor Kenna and Oates noted:
- Left shoulder – Assessor Kenna noted that Assessor Wallace considered the right shoulder as uninjured and therefore used it as a baseline. However, Assessor Kenna concluded that due to degeneration and a history of trauma the right shoulder was not a normal joint. Assessor Kenna concluded that it was wrong to use the right shoulder as a baseline.
- The Review Panel concluded that a deduction for right shoulder restricted movement was not appropriate because it could not be concluded that the right shoulder was uninjured or that its restricted movement was entirely due to age.
Findings: The Review Panel revoked the Certificate of Medical Assessor Wallace and determined the claimant sustained injuries to her cervical spine and left shoulder at less than 10% WPI.
Claims Assessment – Settlement Approval
Allianz Australia Insurance Limited v Villiers [2023] NSWPIC 204
Member David Ford
MOTOR ACCIDENTS—settlement approval—claimant was self-represented—claim for non- economic loss only—physical injuries.
The claimant was riding a motorbike when the insured vehicle failed to give way to the claimant, resulting in a collision. The claimant was thrown to the roadway and sustained fractured left tibia.
At the time of the accident the claimant was a retired pensioner.
The insurer conceded entitlement to damages for non-economic loss. The insurer arranged for the claimant to be assessed by Dr Frank Machart and his report assessed WPI at 12%.
The claimant was not represented by a solicitor and the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
Findings: The Member accepted that damages of $180,000 for economic loss only was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
Claims Assessment – Settlement Approval
AAI Limited t/as GIO v Mitchell [2023] NSWPIC 205
Member Shana Radnan
MOTOR ACCIDENTS—settlement approval—claimant was self-represented—claim for past and future economic loss—physical injuries.
The insured vehicle a failed to stop at a stop sign and collided with the claimant’s vehicle. The claimant sustained extensive bruising to her right arm, injury to her right shoulder (tear of the supraspinatus requiring arthroscopic decompression and rotator cuff repair), and injuries to her right ear, neck, chest and right hip. At the time of the accident, the claimant was working full-time as a secretary/assistant in her husband’s electrical company, earning an estimated $2,250 gross per week.
The insurer conceded entitlement to damages for past and future economic loss. A report by Dr Harrington qualified by the insurer found WPI of 6% for the right shoulder injury and no impairment for the scarring or cervical spine. The claimant had taken six weeks off work and the parties agreed that past economic loss amounted to $12,000. The insurer allowed occasional time off work over the remaining 10 years of the claimant’s working life. A buffer of $15,000 was conceded.
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 $27,000 for past and future economic loss was just, fair and reasonable and within a range of damages likely to be awarded at a hearing.
Review Panel Determination
Rayner v AAI Limited t/as GIO [2023] NSWPICMP 201
Panel: Principal Member Belinda Cassidy, Dr Leslie Barnsley, Dr Trudy Rebbeck
MOTOR ACCIDENTS— threshold injury dispute—the claimant did not see a doctor for almost three years – aggravated cervical spine injury – whether disc protrusion was non threshold injury.
On 24 March 2018 the claimant sustained injuries as a result of a rear-end collision. A dispute arose in connection with whether injuries were “minor” injuries.
Medical Assessor McGrath found the injuries were “minor”.
The claimant lodged an application for review.
In relation to physical injuries, the insurer relied on Dr John Bentivoglio who diagnosed an aggravation of pre-existing degenerative changes in the cervical spine, with no evidence of nerve root irritation.
In relation to psychological injuries, the insurer relied on Dr Graham Vickery who found no diagnosis as there was no clinically significant psychiatric impairment in social occupation or other important areas of functioning.
Re-examinations took place as part of the Review.
Medical Assessor Friend assessed psychological injuries and diagnosed an adjustment disorder with mixed anxiety and depressed mood caused by the accident. Assessor Friend noted that this was a threshold (formerly minor).
Medical Assessor Rebbeck assessed physical injuries and noted:
- Cervical spine – whiplash associated disorder. Cervical disc protrusions and nerve foramina stenosis were consistent with normal age-related degenerative changes and were not caused by the accident. The injuries were threshold injuries.
- Thoracic spine – musculo-skeletal thoracic pain, which were threshold injuries.
Findings: The Review Panel confirmed the certificate of Medical Assessor McGrath and determined the claimant sustained soft tissue injury to her neck and thoracic spine.
Review Panel Determination
Ringstad v Allianz Insurance Limited [2023] NSWPICMP 202
Panel: Principal Member John Harris, Dr Geoffrey Stubbs, Dr Geoffrey Curtin
MOTOR ACCIDENTS— threshold injury dispute—severe skin laceration— discussion of interpretation of threshold injury with reference to skin injury - Dhupar v AAI Ltd applied.
On 14 November 2021, the claimant sustained severe physical injuries whilst riding his motorbike which collided with the insured driver. The claimant sustained injuries to the right arm (including degloving and a 30cm laceration), right elbow, right shoulder, thoracic spine and lumbar spine.
A dispute arose as to whether there was a non-threshold injury.
Medical Assessor Page concluded that the injuries were threshold injuries because there was no evidence of muscle or tendon tear or nerve damage.
The claimant sought a review and the matter was referred to the Review Panel.
The claimant submitted that the laceration was “a complete or partial rupture of tendons, ligaments, menisci or cartilage” and fell outside the definition of minor injury.
The insurer submitted that the claimant described the injury as “de-gloving” laceration and referred to hospital notes recording “no obvious laceration to tendon”.
- On re-examination, Medical Assessors Curtin and Stubbs noted:
- No information regarding spinal injury in the records.
- Stiffness of the right shoulder and elbow, the precise cause of which was not clear.
- ‘No underlying bony injury’.
- Loss of sensation which extended beyond the margins of the scar and this indicated injury to the medial antebrachial cutaneous nerve or one of its branches.
- An injury did not have to be “deep”, as the insurer submitted, to have caused that nerve injury.
The Review Panel concluded that the Dhupar decision simply reiterated the clear wording of the definition of soft tissue injury and concluded that an injury to a nerve is excluded from that definition and is therefore not a threshold (minor) injury.
The accident caused a nerve injury (identified via loss of sensation outside the area of the scar) which was not a threshold injury.
Findings: The Review Panel revoked the Certificate of Medical Assessor Page and determined the claimant sustained non-threshold injuries to the right arm.
