Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 102
09 February 2024
Welcome to 2024 and the 102nd 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) 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.
If you missed our MAD Special Edition Top 10 of 2023 and need to catch up, you can read it here.
Settlement Approval
QBE Insurance (Australia) Limited v Wallace [2024] NSWPIC21 (17 January 2024)
Member: Shana Radnan
Settlement approval – 24-year-old female; self-represented claimant – no non-economic loss entitlement – economic loss damages only – Held: proposed settlement is just, fair and reasonable; settlement approved.
On 11 September 2019, the claimant was a passenger injured in a single vehicle motor accident. Liability for the common law damages claim was wholly accepted by the insurer on 23 November 2021.
The claimant alleged that she sustained an L1 vertebral crush injury and a psychological injury because of the motor accident. The insurer relied on a report of Dr Raymond Wallace which accepted causation of the lumbar spine injury but concluded that surgery was not required, the prognosis was guarded and that whole person impairment (WPI) was DRE II (5%). Dr Wallace found that the claimant was fit for pre-injury duties as a bartender working 30 hours per week without ongoing disability.
The insurer obtained a psychological medico-legal report from Dr Graham Vickery which determined that the claimant may have a somatoform chronic pain disorder but that it was unrelated to the accident. Dr Vickery assessed WPI at 0%.
The parties agreed to settle the common law damages claim for $255,000. The insurer applied for settlement approval as required by the Act and Guidelines because the claimant was self-represented.
At a preliminary conference on 6 December 2023, the Member directed the parties to renegotiate after review of the future economic loss claim in light of Dr Wallace considering the claimant’s prognosis as “guarded.” The Member highlighted that the claimant had not returned to her pre-injury role as a bartender but had instead obtained alternate employment as an administrative assistant. He noted her desire at the time of the accident to return work in the agricultural sector once the industry recovered from droughts and highlighted that this was no longer practicable due to her injuries. This indicated a change in her most likely future circumstances.
A revised settlement was agreed to in the sum of $306,447.
At a further conference on 19 December 2023, the Member approved the settlement sum of $306,447 because she was satisfied that the proposed settlement was fair, just, reasonable and within the range of likely potential damages assessed if the claim proceeded to assessment by a Member.
Findings: Pursuant to s 6.26(2)(b) of the Act, the Member approved the settlement application.
Claims Assessment
Noor v Transport Accident Commission [2024] NSWPIC 25 (12 January 2024)
Member: Terence O’Riain
Claims assessment – pedestrian; liability wholly admitted – entitlement to non-economic loss; total loss of earning capacity – no vocational assistance, loss of opportunity; question on claimant’s credit and poor performance – claim for long distance travel costs to be incurred.
On 24 April 2018, the claimant sustained a left posterolateral annulus tear and disc bulge at L5/S1, L5/S1 disc and facet injury causing compression, possible fragment of L4/5 disc and consequential psychological injuries when he was struck by the insured vehicle as a pedestrian on his lunchbreak in the Sydney CBD.
The circumstances of the accident were not in dispute. Liability for common law damages was admitted.
The parties conceded entitlement but disputed the quantum assessment for non-economic loss damages, past economic loss damages and future economic loss damages. There was also a dispute about entitlement and award of travel under s 4.5(1)(b) of the Act.
The insurer argued that based on recent objective psychometric testing and in absence of objective pathology, the claimant was exaggerating his impairments and had capacity to resume skilled sedentary employment, less any post-operative recovery periods where he was fully unfit for all work.
Relevantly, a worker’s compensation treatment dispute about whether the lumbar surgery was reasonably necessary resolved in the claimant’s favour. The surgery did not have curative outcome.
Regarding the assessment of damages generally, the Member observed that the insurer had not produced surveillance footage or social media posts challenging the claimant assertions and suggesting inconsistencies. He stated that the insurer had not produced rehabilitation reports regarding attempts to work that would have provided “a longer-term view of whether the claimant was making bona fide attempts to mitigate his losses”.
The Member raised alternative explanations for the claimant’s poor testing results, including the audio-visual link during the assessment and the medications he was taking for pain which affected his cognition. He determined that the insurer had not discharged the burden of proof of malingering.
Non-economic loss damages were assessed at $303,000 to reflect the loss of functioning, his relatively young age, social reclusion, permanent physical and psychological disabilities, scarring and loss of independence.
The Member acknowledged the insurer’s argument that the claimant maintained employment for one year after the accident but noted that medical evidence certified him fully unfit for work. He rejected the insurer’s argument that there was 50% residual earning capacity and awarded past economic loss on account of a total loss for any periods that the claimant had not worked since the motor accident, plus income tax and superannuation.
In relation to future economic loss, the Member placed weight on the fact that the claimant was practically unlikely to obtain and maintain suitable employment, however “because he demonstrated he liked work for its own sake, and he is a charismatic and intelligent man”, the Member applied a 17% reduction for vissicitudes, commenting that:
“… there is a small chance that Mr Noor may return to work sometime in the future. As he is limited due to his physical and psychological impairments this may be in the form of occasional self-employment, freelancing or the monetisation of his creativity. That should be expressed as a slight increase in the discount for vicissitudes to reflect that positive aspect. The discount should be 17%.”
An additional buffer was applied on account of loss of opportunity to receive increases in earnings or promotions, had the accident not happened.
The Member awarded $28,000 in line with s 4.5(1)(b) of the Act to reflect the probability that, being a traveller in the past, the claimant would incur additional costs when undertaking long-distance travel due to his injuries.
Findings: The Member assessed total damages in the sum of $1,794,954 plus costs to be agreed and less amounts paid by the workers compensation insurer for weekly payments.
Claims Assessment
Singh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 13 (9 January 2024)
Member: Shana Radnan
Application for damages assessment – s 6.26(3) notice issued and claim taken as withdrawn – Held: s 6.26(3) notice invalid as claim was fully particularised at that time; no entitlement to issue direction – claim to proceed to assessment.
On 20 May 2020, the claimant sustained physical and psychological injuries in a motor accident.
Liability for statutory benefits and for common law damages was wholly admitted.
The insurer made several requests for further and better particulars on 22 February 2022, 24 March 2022 and 30 May 2022. The claimant did not respond.
The insurer issued a s 6.26 Notice on 20 November 2022.
On 16 February 2023, the insurer applied for damages assessment in the Commission. At the preliminary teleconference on 23 March 2023, the insurer argued that the damages claim was effectively withdrawn as a result of the claimant’s failure to respond to the s 6.26(3) direction. The Member directed the claimant to provide submissions and evidence in relation to s 6.26.
A second preliminary conference was held on 11 July 2023 where further directions were made for the claimant to provide the additional particulars required by the insurer. An extension was granted at the third conference on 27 September 2023.
The claimant provided a copy of a Schedule of Damages that was produced in November 2022 in advance of an Informal Settlement Conference, which did not go ahead. Nothing further was provided.
The parties agreed for the Member to determine the dispute on the papers.
The Member ultimately found that the claimant had complied with his obligations under s 6.25(2) of the Act to provide relevant particulars about his claim at the time that the s 6.26 Direction was produced because:
- Using the evidence of loss provided by the claimant, the insurer had assessed post-accident weekly earnings (PAWE) on 20 September 2020. Whilst the claimant had not “particularised his loss” after the request for particulars, this decision infers that the insurer had sufficient economic evidence before it.
- The insurer had sufficient details of the accident to enable it to admit liability in June 2022. It was not necessary for the claimant to provide full details of the motor accident and treatment in an additional response to particulars.
- The economic loss evidence requested “goes to substantiation of business enterprise required by the insurer to defend its claim” but “does not of itself establish that without the provisions of such information, the insurer did not have all relevant particulars about the claim sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.”
- Much of the request on 22 February 2022 was a proforma letter issued without regard to the information already obtained by the insurers in applications filed and medical reports to hand.
The Member reiterated that cl 4.120 of the Guidelines requires an insurer, being issuing a s 6.26 direction, “to have taken into account all relevant information already available to it, including the information it had in relation to the claimant’s statutory benefits claim. It may also be that to have taken such an approach could be considered to be consistent with the insurer’s duty to act towards the claimant with good faith in connection with the claim.”
Findings: The Member was satisfied that the cumulative effect of the medical and economic evidence before the insurer at the time the s 6.26 direction was issued was sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages. This rendered the direction void, but the damages assessment application was otherwise stood over to allow resolution of a permanent impairment dispute.
Medical Review
Saleh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 14 (9 January 2024)
Review Panel: Member Alexander Bolton, Medical Assessors Christopher Oates and Neil Berry
Medical assessment – threshold injury dispute – Certificate revoked as Panel satisfied that the fusion surgery constituted a non-threshold injury and was reasonable as it followed a conservative course of treatment.
The claimant was injured in a motor accident on 22 October 2018.
After a course of conservative treatment failed, the claimant underwent multilevel cervical fusion surgery on 12 November 2020. The insurer disputed that this was reasonable and necessary as a result of the injuries sustained in the accident and in light of degenerative pathologies.
A threshold injury dispute arose between the parties. It was referred to the Commission for determination.
On 3 January 2023, Medical Assessor Ian Cameron issued a Certificate which determined that the soft tissue injuries to the cervical and lumbar spine, right shoulder, right hip and chest were caused by the motor accident. These were determined to be threshold injuries.
The Member determined that the claimant did not have radiculopathy or sustained injuries to his hands, right wrist, left arm, right arm, left shoulder, both legs, post-surgery cervical spine scarring and oesophagus in the motor accident. There was no need to make a determination as to whether these injuries were threshold injuries as they were unrelated.
The claimant’s application to have Assessor Cameron’s assessment referred to a Review Panel was approved by the President’s delegate as they were satisfied that there was reasonable suspicion of material error, in that:
- The Medical Assessor erred in determining that the cervical spine surgery and consequent scarring was not caused by the accident because “there was not sufficient indication for cervical fusion [without] evidence of persistent radiculopathy with clear symptoms”.
- The Medical Assessor erred in determining that there was no evidence of radiculopathy where there was documentary evidence of lumbar and cervical radiculopathy. It was submitted that a “fair reading of the Medical Assessors reasons would suggest that he was not fully cognisant of the relevant material”.
- The Medical Assessor erred in failing to engage with the available medical evidence, specifically documentation revealing a focal rotator cuff tear.
With respect to the second point, the Review Panel was not satisfied that there was evidence of two or more signs of radiculopathy on examination or on the basis of any other medical evidence indicating two or more signs of radiculopathy at the one time. This aspect of the Certificate was affirmed.
On the third point, the Review Panel rejected the claimant’s allegations of error and upheld the Medical Assessor’s finding. It was stated that, at best, there was only a suggestion of a supraspinatus tear following an ultrasound scan of the shoulder. Subsequent imaging by way of more sensitive MRI scans showed no evidence of a rotator cuff tendon tear.
The Panel reiterated the findings of Nazari v AAI Limited [2023] NSWPICMP 62 and Dhupar v AAI Limited [2023] NSWPICMP 99 and accepted that a mere abrasion is not intended to fall by way of definition as a non-threshold injury but noted that an injury to skin such as scarring, and depending on the nature of the injury, could meet the definition of a non-threshold injury. It was not discussed further.
Most critically, however, the Review Panel revoked Medical Assessor Cameron’s Certificate because it was satisfied that surgery was the next logical mode of treatment and the motor accident made a material contribution to the need for surgery. The Panel commented that the surgery was therefore reasonable and necessary and that by its nature, the surgery to the cervical spine damaged “nerves, ligaments, menisci or cartilage”, the definition of a non-threshold injury was therefore met.
Findings: The Certificate of Medical Assessor Cameron is revoked. The claimant was determined to have sustained a non-threshold injury – being the fusion surgery at C4/5 and C5/6. All other injuries are threshold injuries.
Merit Review
Michael v QBE Insurance (Australia) Limited [2023] NSWPICMR 61 (14 December 2023)
Merit Reviewer: Katherine Ruschen
Dispute about payment of weekly benefits under s 3.3 – duty of claimant to co-operate and provide sufficient evidence to determine the validity of the claim – onus of proof on claimant to demonstrate PAWE.
On 15 January 2023, the claimant was injured in a motor accident. He made an application for statutory benefits on 23 January 2023.
The insurer paid weekly benefits in the first entitlement period on the basis of interim payments under s 3.6(5) as there was insufficient information to calculate PAWE. On 17 May 2023, the insurer determined that weekly payments were not payable in the second or third entitlement period because the claimant had not provided sufficient information to calculate PAWE for the purpose of s 3.7 and as interim payments are not available after the first entitlement period.
A dispute between the amount payable for weekly payments of statutory benefits under Division 3.3 arose between the parties. The insurer also raised a dispute as to whether the claimant had complied with the insurer’s request for further information and documents pursuant to s 6.24 of the Act.
The claimant’s application for internal review was refused on 26 October 2023. It was reiterated that the claimant had failed to provide sufficient information to assess PAWE.
The claimant applied to the Commission for merit review of the decision dated 17 May 2023.
Ultimately, the Merit Reviewer highlighted that:
- The onus was on the claimant to demonstrate his gross PAWE.
- There was insufficient evidence to establish that the claimant received any earnings from any source in the first six months of the 12-month pre-accident period, being only:
- A draft 2022 tax return contending earnings from Sydney Tax and J & V, but no source documents and no evidence that any part of the amounts in the 2022 draft tax return were received by him after 15 January 2022, if at all, and
- There was no evidence of any earnings received by the claimant from J &V in the period 1 July 2022 to 14 January 2023, and
- A payslip confirmed that the claimant did not receive any earnings in the period 1 July 2022 to the end of the 12-month pre-accident period on 14 January 2023.
- The claimant did not receive earnings in the balance of the six-month period.
As there was insufficient information to assess PAWE, the PAWE under cl 4(1) was nil.
The Merit Reviewer further commented that, given the claimant’s age of 67 years at the time of the accident and the “ad hoc way that he was paid and the limited amounts he was paid, according to the documents relied on by the claimant, suggests the claimant was not in full-time employment at the time of the accident and had not been for some time.” It was stated that the claimant had not provided sufficient information to enable a proper determination as to whether he was an earner, but as the insurer had accepted that he was, there was no further definitive determination made on this issue.
Findings: The insurer’s decision that weekly benefits were not payable because insufficient information had been provided to calculate PAWE was affirmed.
