Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 103
23 February 2024
Welcome to the 103rd 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 the most recent 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
BTV v Allianz Australia Insurance Limited [2023] NSWPICMP 674
Review Panel: Member Terrence Stern, Medical Assessors Shane Moloney and Geoffrey Stubbs
Medical assessment – whole person impairment dispute – injuries to cervical spine, lumbar spine, right shoulder, and carpal tunnel syndrome – predisposition to developing carpal tunnel syndrome – inconsistency in range of motion – Certificate revoked.
The claimant sustained injuries as the result of a motor vehicle accident, which occurred on 22 January 2019.
On 16 April 2023, Medical Assessor Nigel Menogue certified that the claimant sustained soft tissue injuries to the cervical spine, right shoulder, and lumbar spine, ultimately giving rise to a whole person impairment (WPI) of 1%. In his decision at first instance, Medical Assessor Menogue was not satisfied that the claimant’s carpal tunnel syndrome or disc protrusions and herniations to the cervical and lumbar spine were caused by the accident, and further held that there were no identifiable signs of radiculopathy caused by the accident.
The claimant applied for a review of this decision. The claimant argued that the carpal tunnel syndrome was caused by the accident, relying on the expert medical evidence that suggested a causal relationship due to the claimant gripping the steering wheel at the time of the accident. Additionally, the claimant took issue with Medical Assessor Menogue’s reliance on medical literature not previously provided to the parties, asserting that this gave rise to a lack of procedural fairness. As to the cervical spine, the claimant submitted that the Medical Assessor had improperly assessed the claimant’s injury as a DRE category I, where the symptomatology should have resulted in a DRE category II finding. Moreover, relying on expert medical evidence, the claimant submitted that the Medical Assessor had not provided adequate reasoning as to why the clinical findings were not consistent with a finding of non-verifiable radiculopathy, as had been found in previous medico-legal assessments. , The claimant also disputed the Medical Assessor’s finding of a soft tissue injury to the right shoulder, arguing that the Medical Assessor had inadequately consulted the available treating medical evidence when coming to a conclusion. The claimant further submitted that the Medical Assessor had not provided a rationale for his findings, despite measuring the range of motion of the left shoulder, presumably as a baseline figure for a right shoulder injury.
The Review Panel undertook a re-examination of the claimant, which was conducted by Medical Assessors Moloney and Stubbs.
First, the Review Panel noted the prevalence of carpal tunnel syndrome as a common ailment, having a variety of non-anatomic causes. On examination of the claimant’s symptoms, the Review Panel noted the claimant’s anatomical predisposition to developing carpal tunnel syndrome, and, noting that symptoms developed several months after the accident, the Panel was not satisfied that the claimant’s carpal tunnel syndrome was caused by the accident. The Panel did not refer to the previously mentioned medical literature, instead arguing that the claimant’s predisposition to developing carpal tunnel syndrome was discussed at length in the available treating evidence.
On examination of the cervical spine, the Review Panel found the claimant’s symptoms to be characteristic of a DRE category I injury, giving rise to a WPI of 0%.
Similarly, on examination of the lumbar spine, the Review Panel noted that the claimant experienced some difficulty standing on heels and toes but could not identify any signs of radiculopathy. Despite a visible pain distribution, the Review Panel was satisfied that the claimant had sustained a DRE category I injury, giving rise to a WPI of 0%.
Finally, the Review Panel noted that the claimant had a limited range of motion in the right shoulder due to the accident but found there to be a significant inconsistency compared to previous assessments, both in measured and baseline ranges of motion. Consequently, the Review Panel was not satisfied that range of motion could be used to assess impairment, instead opting for an assessment by analogy. The Review Panel found a mild acromioclavicular joint crepitation at the right shoulder joint, giving rise to a WPI of 1.5%, rounded up to 2%. The Review Panel queried whether an injury had been sustained to the left shoulder but did not consider same as the Application for Review asked for an examination of the right shoulder only.
Findings: The Review Panel revoked the Certificate of Medical Assessor Menogue, instead finding that the claimant had total WPI of 2%, being made up of the right shoulder injury, with 0% impairment to the other reviewed injuries. This Certificate demonstrates circumstances when a Medical Assessor may adopt a method of assessment other than range of motion when assessing upper limb injuries.
Determination of Review Panel
Hulks v Allianz Australia Insurance Limited [2023] NSWPICMP 675
Review Panel: Member Terence Stern, Medical Assessors Alan Home and Michael Couch
Medical assessment – threshold injury dispute – whether shoulder tear caused by accident – medical implausibility of shoulder tear – whether medical history accurately reported – Certificate revoked in part.
The claimant sustained injuries as the result of a rear-end motor vehicle accident, which occurred on 1 November 2021.
On 3 May 2023, Medical Assessor Jonathan Herald certified that the claimant sustained soft tissue injuries to the left knee left arm, both being threshold injuries for the purposes of the Act. Medical Assessor Herald further found that the claimant sustained a left shoulder rotator cuff tear, being a non-threshold injury.
The insurer applied for a review of this decision, highlighting the minor nature of the accident, with minimal damage having been sustained to the vehicle. The insurer further highlighted that emergency services did not attend the accident, the claimant was able to self-extricate, the airbags did not deploy, and that the claimant underwent limited treatment following the accident. The insurer raised a variety of pre-existing complaints of chronic shoulder pain and left arm pain, with the claimant failing to disclose his history of same prior to examination. Ultimately, the insurer argued that the only injuries sustained in the accident were to the left upper limb and left knee, being soft tissue injuries.
The Review Panel conducted a re-examination of the claimant, which was conducted by Medical Assessor Alan Home.
On examination, the claimant reported no prior history of left shoulder or left knee pain but raised prior experiences with left elbow pain in the days leading up to the accident. The claimant further confirmed that he had undergone limited treatment for his injuries following the accident.
The Review Panel did not identify any abnormality to the right shoulder, using the range of motion measurements as a baseline for the left shoulder. On examination, Medical Assessor Home identified evidence of resisted movements across the rotator cuff, with no clinical signs of shoulder instability on either side. However, while an ultrasound revealed an intrinsic tear in the supraspinatus tendon, the Review Panel emphasised that “such tendon abnormalities are very common findings … and are not necessarily traumatic in aetiology”. The Review Panel was not satisfied that it was plausible for the claimant to have sustained a supraspinatus tear from a rear end accident. The Review Panel was not satisfied that the accident could even be considered a negligible cause of the supraspinatus tear. Nonetheless, the Review Panel was satisfied that the claimant had sustained a minor subacromial bursitis injury to the left shoulder, being a threshold injury.
Similarly, no abnormality was identified of the left arm. The Review Panel was ultimately not satisfied that a separate injury had been sustained to the left arm in the subject accident.
Additionally, the Review Panel identified some mobility of the patella within the patellofemoral groove, being indicative of an injury to the left knee. The Review Panel diagnosed the claimant with mild knee joint synovitis and a soft tissue injury to the patella femoral joint, both of which had since resolved. The Review Panel was satisfied that these were threshold injuries.
Findings: The Review Panel revoked the Certificate of Medical Assessor Herald. Consideration was given to the prevalence of tendon abnormalities demonstrated on ultrasound which may not necessarily be traumatic in nature. The Panel issued a new Certificate that found a rotator cuff injury had not been caused by the accident, with the remaining left knee and left shoulder injuries being threshold injuries for the purposes of the Act.
Determination of Review Panel
AAI Limited t/as GIO v Eid [2023] NSWPICMP 683
Review Panel: Member Susan McTegg, Medical Assessors Matthew Jones and John Baker
Medical assessment – threshold injury – psychological injury – delayed reporting of symptoms – whether delayed onset plausible – whether symptoms clinically traceable – Certificate affirmed.
The claimant sustained injuries as the result of a motor vehicle accident, which occurred on 5 December 2017.
On 16 August 2022, Medical Assessor Doron Samuell certified that the claimant sustained a psychological injury of major depressive disorder following the accident, being a non-threshold injury for the purposes of the Act. Medical Assessor Samuell further found that the claimant satisfied the stressor criterion for post-traumatic stress disorder but did not satisfy the diagnostic requirements of that diagnosis.
The insurer applied for a review of this decision, citing the treating GP’s diagnosis of an acute stress reaction and the claimant’s pre-existing symptoms of major depressive disorder. The insurer further highlighted that the claimant’s treating psychologist diagnosed the claimant with post-traumatic stress disorder some three years following the accident, arguing that the delay in reporting symptoms applicable to that diagnosis demonstrates a tenuous causal link between the subject accident and the alleged psychological injury. In doing so, the insurer submitted that Medical Assessor Samuell failed to address the DSM-5 criteria, as required by cl 5.11 of the Motor Accident Guidelines (the Guidelines). The insurer further argued that the Medical Assessor erred in inferring the claimant’s “at least nihilistic, if not suicidal ideation”, and submitted that the claimant’s history did not give rise to such an inference.
The Review Panel conducted a re-examination of the claimant, which was conducted by Medical Assessors John Baker and Matthew Jones.
The claimant denied a history of any significant mental health problems, including of anxiety and depression. The claimant reported extreme avoidant behaviour, as he would not talk to anyone and has lost all his friendships and cannot be around people. The Review Panel identified that the claimant presented as significantly impacted upon by symptoms of post-traumatic stress disorder and major depressive disorder and would readily satisfy DSM-5 criteria for both.
To address the insurer’s question regarding the delayed reporting of symptoms, the Review Panel noted that delayed expression of post-traumatic stress disorder can occur, and, referring to the treating psychologist’s clinical records, the Panel was able to trace the history of the claimant’s symptoms since the accident, culminating in a delayed onset of the full suite of symptoms of post-traumatic stress disorder. To that end, the Review Panel was satisfied that the claimant’s post-traumatic stress disorder was caused by the subject accident, being a non-threshold injury for the purposes of the Act.
Similarly, the Review Panel was satisfied that the claimant met the diagnostic criteria for major depressive disorder per the DSM-5, with all symptoms able to be identified within a two-week period. Accordingly, the Panel was satisfied that the claimant sustained a further psychological injury of co-existent major depressive disorder in the accident.
Findings: The Review Panel affirmed the Certificate of Medical Assessor Samuell, finding that the claimant sustained the non-threshold psychological injuries of post-traumatic stress disorder and major depressive disorder in the accident. This Certificate demonstrates the reliance a Panel may place on the available clinical material when assessing the diagnosis and causation of a psychological injury, and/or the delay in onset of a psychological injury.
Determination of Review Panel
Allianz Australia Insurance Limited v Anjoul [2023] NSWPICMP 681
Review Panel: Principal Member John Harris, Medical Assessors Matthew Jones and John Baker
Medical assessment – whole personal impairment dispute – psychological injury – pre-existing impairments not considered – whether PIRS correctly applied – Certificate revoked.
The claimant sustained injuries as the result of a T-bone motor vehicle accident, which occurred on 17 May 2019.
At first instance, Medical Assessor Shen found that the claimant’s post-traumatic stress disorder, exacerbation of major depressive disorder and cannabis use disorder were causally related to the accident, assessing WPI at 16%.
In a related assessment on 25 July 2022, Medical Assessor Cameron certified that the claimant sustained a number of soft tissue injuries and an L3 transverse process fracture, assessing WPI at 2%.
The insurer applied for a review of Medical Assessor Shen’s decision, submitting that the Medical Assessor failed to properly consider and deduct impairment for the claimant’s pre-existing anxiety and depression. Moreover, the insurer took issue with the fact that the Medical Assessor found that the claimant was an inconsistent historian yet relied on his history when assessing impairment. Furthermore, the insurer disputed various findings made by the Medical Assessor on the Psychiatric Impairment Rating Scale (PIRS), as they were inconsistent with the histories provided by the claimant in previous examinations.
The Review Panel conducted a re-examination of the claimant, which was conducted by Medical Assessors Jones and Baker, where the claimant confirmed a psychological history of major depressive disorder and generalised anxiety disorder commencing in around 2015. In his re-examination, the claimant reported that he was an occasional user of cocaine prior to the accident. The claimant further reported having previously smoked tobacco and having commenced smoking cannabis after the subject accident. The claimant denied consuming alcohol prior to the accident.
The Review Panel identified anxious avoidance however a lack of depressed mood, albeit with a loss of motivation and self-esteem and confidence following the accident. The Panel further noted that the claimant’s presentation was more consistent on re-examination, with most of the history having been provided by prior authors and assessors.
Similarly, the Review Panel noted that the claimant most likely suffered from pre-existing major depressive disorder and generalised anxiety disorder and diagnosed the claimant with post-traumatic stress disorder and cannabis use disorder. As to impairment, the Panel found the following class levels under the PIRS:
- Self-care and personal hygiene: class 1
- Social and recreational activities: class 3
- Travel: class 2
- Social functioning: class 3
- Concentration, persistence and pace: class 2
- Adaption: class 2
Altogether, this gave rise to WPI of 7%. The Review Panel justified the difference in assessed WPI as being due to the claimant’s recovery from his conditions, with the claimant having reached maximum medical improvement.
Furthermore, the Panel had identified pre-existing psychiatric impairment, they assessed the claimant’s pre-existing psychological impairment and deducted the relevant impairment, which had not occurred at first instance. However, while the claimant did suffer from pre-existing psychological conditions, on examination, this gave rise to an impairment of 0%, rendering the claimant’s final WPI figure at 7%.
Findings: The Review Panel revoked the Certificate of Medical Assessor Shen, finding that the claimant had suffered WPI of 7% following the accident, with the claimant’s pre-existing psychological impairment giving rise to 0% WPI; no deductions were required, and the claimant’s level of WPI fell below the 10% threshold as stipulated by the Act. This Certificate demonstrates the importance of obtaining as much clinical material as possible to support and/or evaluate the progression of a condition, relevant to the Commission arriving at the correct assessment of WPI.
