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Welcome to the 101st 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 our latest edition below.

All references to legislation are to the Motor Accident Injuries Act 2017 (NSW) (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 Review Panel

QBE Insurance (Australia) Limited v Kim [2023] NSWPICMP 463

Panel Members: Member Ray Plibersek, Dr Margaret Gibson, and Dr Rhys Gray

Treatment dispute – proposed right ankle surgery – whether Review Panel has jurisdiction to determine dispute – impact of Obeid on assessing future treatment.

On 25 May 2020, the claimant sustained injuries when her vehicle was hit on the left-hand side while travelling on her way to work. The claimant alleged injuries to her head, neck, lower back, right foot and ankle.

A treatment dispute arose as to a proposed right ankle surgery.

At first instance, Medical Assessor Bodel determined that the surgery would improve the recovery of the claimant, disagreeing with the insurer’s assertion that the injuries were pre-existing, and that the surgery was not reasonable or necessary in the circumstances. Medical Assessor Bodel found that the claimant had no pre-existing issues with her right foot or ankle, with a restricted range of motion in the right calf.

The insurer lodged an application for review out of the 30-day window but had sent correspondence to the Commission seeking guidance on how disputes would be dealt with following the decision in Obeid v AAI Ltd t/as AAMI [2022] NSWPICMP 76 (Obeid), as well as advising the parties that they intended to lodge an application for review. In essence, Obeid decided that neither a Medical Assessor nor a Review Panel had any power to determine future treatment and care expenses under s 3.24 of the Act, which complicated the insurer’s ability to lodge a review application for a future surgery.

Unfortunately, the Commission did not respond to the insurer’s correspondence. In their submissions, the insurer argued given that the decision in Obeid raised significant jurisdictional issues for review applications, they were unable to lodge a review application within the statutory time limit.

The Review Panel dealt solely with the above premise of the insurer’s submissions; namely the issue of whether the Insurer could lodge an application for review out of time.

Regardless, the Review Panel organised for the re-examination of the claimant, which was performed by Medical Assessor Gibson by video conference. As the Review Panel dealt solely with the issue of the insurer’s late application, the results of the re-examination were not discussed.

In their reasons, the Review Panel examined the chronology of correspondence between the parties and the Review Panel, noting that the Review Panel did not respond to the insurer’s request for clarification of their jurisdiction to determine the dispute until after the statutory time period had lapsed. While the insurer requested some indication of the Review Panel’s views on Medical Assessor Bodel’s certificate, the Review Panel declined to do so on the basis that a Review Panel does not give advisory opinions.

Accordingly, the Review Panel provided the parties with a further 14 days to consider withdrawing the application and attempt to reach an agreement to resolve the dispute.

Conversely, the Review Panel noted that sch 2 cl 2(c) had been repealed, which effectively removed the power of a Medical Review Panel to review the issue of “recovery”. Following that logic, the Review Panel opined that a medical dispute for recovery that had been determined by a Medical Assessor “which may be subject to review” was no longer a “medical dispute”.

For these reasons, the Review Panel adopted the reasoning of Obeid, finding that the Review Panel had no jurisdiction to deal with the dispute about the proposed future surgery.

Findings: The Review Panel found that they had no jurisdiction to review the Certificate of Medical Assessor Bodel because it related to a dispute about proposed or future treatment and care.

View decision

Claims Assessment

Hipkins v AAI Limited t/as GIO [2023] NSWPIC 494

Member: David Ford

Claims assessment – whether claimant wholly or mostly at fault – whether evasive action causative of motor vehicle accident.

On 25 June 2022, the claimant sustained injuries when driving in the third, rightmost lane of the M1 motorway where, ahead of him, was the insured lorry in the middle lane and a large truck in the leftmost lane. The insured reduced his speed to approximately 50kph as he was unable to overtake the truck in the left lane and decided to drop his lorry behind the truck in the left lane. As a result of this manoeuvre, the claimant alleged that this caused the insured lorry to encroach into the claimant’s lane, causing the claimant to take evasive action, moving his vehicle into the middle lane. This manoeuvre by the claimant, caused him to collide with the left rear of the insured trailer and sustain serious injuries.

The insurer undertook an internal review and found that the claimant was wholly or mostly at fault in the subject accident.

The claimant subsequently lodged a dispute, submitting that he was neither wholly nor mostly at fault in the accident.

In reply, the insurer argued that the claimant was wholly or mostly at fault, failing to keep a proper lookout to potential hazards, failing to take appropriate action to avoid a collision, and failing to travel at a safe distance behind the insured vehicle.

In his determination, the Member noted that the claimant had provided several inconsistent statements regarding the circumstances of the accident that were, in some instances, incorrect. Regardless, however, the Member did not draw negative inferences to the claimant’s credit, finding that he was truthful at the assessment conference. The Member subsequently accepted the claimant’s statement; that the insured had veered halfway into the claimant’s lane, causing him to take evasive action and collide with the insured lorry. Accordingly, the Member did not find that the claimant was wholly at fault for the subject accident.

As to whether the claimant was mostly at fault for the subject accident, the Member considered the duty discussed in Manley v Alexander (2005) HCA 79 – that drivers must give ‘reasonable attention to all that is happening on and near the roadway that might present a source of danger’. Applying the tests for contributory negligence in s 5B of the Civil Liability Act 2002 (NSW), the Member found that the claimant had not kept a proper lookout in the circumstances and should have seen the insured lorry reducing its speed, alerting the claimant to reduce the speed of his own vehicle. However, the Member did not find that the claimant’s level of contributory negligence was greater than 61%, meaning that he was not mostly at fault in the subject accident.

As to costs, the Member assessed same in accordance with the Motor Accident Injuries Regulation 2017 (NSW), being $1,800.48 plus GST.

Findings: The Member found that the claimant had been contributory negligent, but not to the extent that he was wholly or mostly at fault in the subject accident.

View decision

Merit Review

Abbott v QBE Insurance (Australia) Limited [2023] NSWPICMR 49

Merit Reviewer: Katherine Ruschen

Merit review – dispute about payment of weekly benefits – calculation of business expenses – whether ATO benchmark should be used – whether sufficient material available to calculate business expenses.

The claimant made a claim for statutory benefits in relation to an accident that occurred on 31 January 2023. The matter was brought before the Commission with regards to a dispute between the parties about the payment of the claimant’s pre-accident weekly earnings (PAWE).

The insurer determined the claimant’s PAWE was $1,069.71 on the basis of the claimant being a self-employed concreter. The claimant subsequently applied for internal review and the insurer affirmed their original decision.

The claimant lodged an application with the Commission disputing the insurer’s decision.

The parties agreed that there was no dispute that the claimant was an earner for the purposes of the Act, with the crux of the dispute being about the amount incurred by the claimant’s business in expenses in the 12-month pre-accident period. Primarily, the substantive issue was whether there was satisfactory evidence of business expenses, or whether the Australian Taxation Office (ATO) benchmark should be applied.

Assessing the gross sales of the claimant’s business, the Merit Reviewer examined the claimant’s bank statements in the 12-month pre-accident period, noting that sch 1 cl 4(1) of the Act is only concerned with earnings “received” in the pre-accident period. The Merit Reviewer agreed with the insurer that there were discrepancies between the bank statements, invoices, business activity statements and the claimant’s accountant’s working documents. The Merit Reviewer identified that the claimant largely relied on memory in retrospectively circling transactions in bank statements, and, accordingly, the Merit Reviewer placed further probative value on the records of the claimant’s accountant. Accordingly, the Merit Reviewer found the gross sales of the claimant’s business in the 12-month pre-accident period was $222,813.

As to business expenses, the Merit Reviewer noted that the insurer had adopted the ATO benchmark due to the ostensible unreliability of the claimant’s financial records. The Merit Reviewer disagreed, finding that insufficient reasons had been provided to warrant the use of the ATO benchmark; the Merit Reviewer acknowledged that ”whilst the benchmark is considered to be the “norm”, not every business will fall within this norm”.

The Merit Reviewer further criticised the insurer’s reliance on the ATO benchmark, distinguishing the facts of this case from those in Conde v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 28 (Conde), where the claimant had a recently established business and therefore no past records against which performance could be compared. The Merit Reviewer further found that there were no tax returns, business activity statements or business expenses records at all in Conde, which stood in stark contrast to the plethora of records available in these circumstances. The Merit Reviewer was of the view that sufficient records were available to make an accurate calculation of the claimant’s likely business expenses, noting that the Merit Reviewer need only have been satisfied of same on the balance of probabilities.

Scrutinising the available evidence, the Merit Reviewer found that business expenses for the pre-accident period totalled $129,977, rejecting the submission of the insurer that the ATO benchmark should be relied upon.

With an accurate business expenses figure in mind, the Merit Reviewer calculated the claimant’s gross earnings in the 12-month pre-accident period was $92,836, equating to a PAWE in the sum of $1,785.31.

Findings: The Merit Reviewer set aside the insurer’s internal review determination of the claimant’s PAWE, instead assessing PAWE at $1,785.31.  Use of ATO benchmarks to assist in the determination of business expenses, and therefore the Claimant’s PAWE, should occur in circumstances where limited business performance records are available. 

View decision

Determination of Review Panel

Waqar v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 465

Panel Members: Member Ray Plibersek, Dr Geoffrey (Paul) Curtin, and Dr Tai-Tak Wan

Medical assessment of threshold injury – injuries to cervical spine, thoracic spine, both shoulders and brain – whether evidence of radiculopathy identified – re-examination of claimant not required.

On 19 May 2018, the claimant sustained injuries when her vehicle was hit from behind while stopped.. A medical dispute arose as to whether the injuries caused by the accident were threshold injury for the purposes of the Act. Injuries to the following areas were referred for assessment:

  • cervical spine
  • thoracic spine
  • left and right shoulders, and
  • brain – bubbly mucous secretions.

At first instance, Medical Assessor Cameron diagnosed the claimant with a soft tissue injury to her cervical spine and possibly her shoulders, both being threshold injuries. Medical Assessor Cameron found no evidence that the claimant sustained any injury to the thoracic spine or her brain.

The claimant subsequently lodged an Application for Review, submitting that the Medical Assessor failed to adequately examine evidence of radicular symptoms, including a prior MRI, further failing to show a clear path of reasoning why he failed to lend credence to the available evidence.

The Review Panel elected not to medically re-examine the claimant.

As to cervical spine injury, the Review Panel noted that there was some evidence of pre-accident degenerative changes, and that this degeneration had not changed significantly as a result of the accident. Aside from the occasional post-accident mention of neck pain to his GP, the Review Panel could not locate sufficient symptoms to attract a diagnosis of radiculopathy. Similarly, the Review Panel agreed with the findings of Medical Assessor Cameron at first instance, finding a moderate reduction in range of motion, finding it possible that the claimant sustained a soft tissue, and therefore threshold, injury to the cervical spine in the subject accident.

As to the thoracic spine, the Review Panel could not locate any criteria of radiculopathy as listed in cl 6.138 of the Motor Accident Guidelines (Guidelines), opining that the claimant may have sustained a soft tissue injury to the thoracic spine.

As to the left and right shoulders, the Review Panel noted the claimant’s significant pre-accident history of complaints of pain, reduced range of motion and disability from 2014 onwards. Moreover, the Review Panel noted a pre-accident ultrasound, which demonstrated a joint degenerative disease, albeit with a normal range of movement in both shoulders. Following the accident, the Review Panel noted the existence of supraspinatus tendinosis in the left shoulder but could not find evidence of a tear. This, together with the findings of Medical Assessor Cameron of a full range of motion in both shoulders, led to the Review Panel determining that the claimant’s left and right shoulder injuries were soft tissue, and therefore threshold injuries.

Finally, the Review Panel examined a post-accident CT of the brain, ultimately finding no intracranial injury, significant abnormality, nor sequelae of a traumatic brain injury. Accordingly, the Review Panel assessed there was no injury to the claimant’s brain or sinus resulting from the subject accident.

Findings: The Review Panel affirmed the Certificate of Medical Assessor Cameron, finding threshold injuries to the left and right shoulders, cervical spine and thoracic spine. The Review Panel was not satisfied that the claimant sustained an injury to the brain in the motor vehicle accident.

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