Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 104
27 February 2024
Welcome to 2024 and the 104th 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) (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.
If you missed our MAD Special Edition Top 10 of 2023 and need to catch up, you can read it here.
Miscellaneous Claims Assessment
Attard v Insurance Australia Ltd t/as NRMA Insurance [2024] NSWPIC 44
Member: Elizabeth Medland
Miscellaneous claims dispute under sch 2 cl (3)(d)-(e) – whether claimant is wholly or mostly at fault for purpose of s 3.11 and s 3.28 – where insurer failed to discharge onus of proof – evidence insufficient to make findings of fact regarding aspects of collision; exceptional costs claimed per s 8.10(4)(b).
On 8 March 2022, the claimant sustained severe injuries in a head-on collision. The insurer denied liability for statutory benefits beyond 26 weeks on 5 August 2023 on the grounds that the claimant was wholly at fault for the motor accident.
This decision was affirmed on internal review. The claimant applied for resolution in the Commission.
At the assessment conference on 15 November 2023, the claimant gave evidence to the effect that the insured driver rounded a bend, crossed onto the incorrect side of the road and collided with the claimant’s vehicle in a head-on collision. This was consistent with the interview the claimant gave the insurer’s investigators and with the statement he gave to Police.
The insured driver was not available to give evidence at the assessment conference. He also declined to provide a statement to the insurer’s investigators. The only evidence available from the insured driver was an allegation provided to Police that the claimant swerved into the insured’s lane.
The insurer relied on an engineering report which concluded inter alia that the final position of the vehicles following the collision, the damage and the gradient of the road supported the insured’s version of events.
The Member considered the evidence obtained by investigators from Police to be leading and “mere conjecture” but accepted that both parties were speeding. It was noted that Police had insufficient evidence to determine fault on either party.
The Member stated that the relevant sections were disentitling provisions and thus the onus was on the insurer to demonstrate that the accident was caused mostly or wholly by the fault of the claimant. She was not satisfied that the insurer had discharged that onus.
The Member took the claimant as a witness of truth and that “given the frightening situation he found himself in and if it were the case that he veered to the right, thereby effectively ensuring a collision occur, such action was taken in the agony of the moment”. She rejected that his actions were not what would be expected of a reasonable person in his situation. The insured driver was found to be wholly at fault for the motor accident for approaching the claimant partially on the incorrect side of the road.
Finally, the claimant sought to recover exceptional costs in accordance with Moon v AAI Ltd t/as GIO [2022] NSWPIC 516 because the dispute required conferences before and after the hearing with counsel. The Member rejected an allegation that the circumstances were outside the realm of what is ordinarily expected in such a dispute. She awarded maximum regulated costs.
Findings: Insurer’s decision revoked – motor accident not caused wholly or mostly by the fault of the claimant; application for exceptional cots declined and maximum regulated costs awarded.
Medical Review
Apostolov v Allianz Insurance (Australia) Ltd [2024] NSWPICMP 47
Review Panel: Member Ray Plibersek, Medical Assessors Christopher Oates and Drew Dixon
Medical dispute – threshold dispute and treatment dispute – causation – medical and ‘non-medical’ determination; whether accident is a more than negligible cause for treatment need where there is longstanding evidence of pre-accident degenerative pathologies and relevant injuries.
On 9 February 2021, the claimant was stationary at traffic lights when his vehicle was rear-ended by a bus at low speed. The insurer denied liability for the statutory benefits claim beyond 26 weeks on the grounds that the claimant sustained threshold injuries, and on 16 July 2021, denied a treatment request for L4/5 decompression surgery. These decisions were affirmed on internal review and the claimant applied to the Commission to have the treatment and threshold disputes resolved.
Medical Assessor Ian Cameron was assigned to resolve both disputes. His Certificate dated 20 February 2023 affirmed that the claimant sustained threshold injuries to his head, cervical spine, shoulders and lumbar spine in the accident. He certified that the surgery request did not relate to the injuries sustained by the accident and was not reasonable and necessary treatment.
Critical to this decision is that the claimant had a pre-existing L1 compression fracture and spinal degenerative disease that Assessor Cameron found was not materially exacerbated by the accident.
The claimant applied for panel review and satisfied the President that there was reasonable suspicion that this assessment contained material error. The delegate accepted it was a material error that Assessor Cameron “...did not refer to a post-injury ultrasound which confirmed the claimant had a mid-tendon tear of the right shoulder and a complete tear of the supraspinatus”, though it is relevant to note that the claimant also argued that:
- Whilst he had torn his right rotator cuff in 2006 it had been surgically repaired and there were no shoulder issues in treating records since 2009. There was an immediate report of right shoulder pain after the accident, post-accident radiological evidence of a tear and ongoing which demonstrated a causal link between the accident and the tear.
- There was no history of back pain reported in the three months before the accident, which compared to the post-accident reports of consistent pain, the claimant said demonstrated material exacerbation of the pre-accident lumbar compression fracture and degeneration.
After re-examining the claimant, the Panel affirmed there was no evidence that the claimant sustained more than a threshold injury to his head and cervical spine. In absence of evidence demonstrating shoulder complaints in the immediate three-month period following the accident, the Panel overturned Assessor Cameron’s decision in finding any injury to the shoulders to be unrelated to the accident. It found that the accident aggravated his pre-existing post-traumatic L1 wedge compression fracture, but the injury sustained was soft tissue in nature.
The Panel overturned Assessor Cameron’s assessment regarding the treatment dispute because, prior to the accident, treatment was to remain conservative, but after the accident due to an increase of symptoms and a different symptom distribution, a decision was taken to move to surgery in the form of bilateral L4/5 decompression. The Panel accepted that the accident was “a cause more than negligible resulting in the need for surgery”.
Findings: The original Certificate of Assessor Cameron was revoked, and a new decision issued – injuries to the head, cervical and lumbar spine were threshold injuries, shoulder injuries not related; surgery was reasonable, necessary and causally related to the motor accident.
Merit Review
Kipkorir v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 3
Member: Katherine Ruschen
Dispute about payment of weekly benefits under div 3.3 – meaning of pre-injury average weekly earnings — earnings from undocumented employment arrangement and without corroborating evidence — earnings received on cash in hand basis.
On 25 September 2023, the claimant was injured in a motor accident. He made an application for statutory benefits on 3 October 2023.
At the time of the accident, the claimant was on a full-time student visa and was employed as a casual freight handler. The insurer determined the claimant’s pre-accident weekly earnings (PAWE) in the sum of $762.21 on 13 November 2023. The insurer used payslip records, a bank statement, and a letter from his employer to assess PAWE. An adjusted period of earning of only 13 days was applied in accordance with cl 4(2)(a) because the claimant was not earning continuously for the ordinary 12-month period of earning to apply.
A dispute between the amount payable for weekly payments of statutory benefits under div 3.3 arose between the parties because the claimant contended that his PAWE should include his cash earnings for undocumented employment as a labourer in that same period. The only evidence in support of this was a bank statement which recorded consistent weekly payments for “labour” from an individual who the claimant identified as his employer. The claimant had been earning in this way for 52 days.
Absent of contrary evidence, the Merit Reviewer placed weight on the amounts, the payment pattern and transaction description and was satisfied on balance that those payments were earnings received by the claimant for purpose of assessing PAWE. As the first payment in this respect was before the first payment as a freight handler, a longer period of earning was applied by the Merit Reviewer, and this had the effect of reducing the PAWE.
The Merit Reviewer rejected the claimant’s position that two single cash deposits, absent of a third-party payer identified, a description or a pattern, were earnings received by the claimant.
As an aside, the Merit Reviewer noted that it would be “prudent for the insurer to require the claimant to produce ongoing bank statements" following the accident to determine the extent of any loss of earnings “given the undocumented/off the books arrangement” between the claimant and his employer.
Findings: Insurer’s decision was set aside and PAWE assessed at $460.60.
Merit Review
Kraljevic v CIC Allianz Insurance Limited [2024] NSWPICMR 1
Member: Katherine Ruschen
Dispute about payment of weekly benefits under div 3.3 — whether loss of earning is as a result of the motor accident — claimant’s duty to act in good faith — claimant’s fraudulent and/or valid claim.
The claimant made a claim for statutory benefits on 30 May 2023 for personal injuries sustained in a motor accident on 24 May 2023. The insurer determined on 21 June 2023 that the claimant did not suffer a loss of earnings as a result of the accident and denied payment of weekly statutory benefits.
The insurer’s internal reviewer affirmed this decision on 1 November 2023 and the claimant applied for merit review. She submitted that she was employed at the time of the accident and that she had no residual earning capacity as a result of the motor accident.
The insurer submitted that the claimant resigned from her role as an administrative assistant before the accident to take a career break and travel overseas and that, but for the accident, her last day of employment would have been two days after the accident occurred.
The Merit Reviewer raised a question as to whether the claimant had complied with disclosure duties, including her duty not to mislead, disclose all relevant information, to act in good faith and to be honest in conduct of a claim.
Using the email addresses provided by the claimant to the rehabilitation provider for job seeking, the Merit Reviewer “conducted a quick ABN check” which revealed that the claimant was the owner of two registered active businesses. Social media accounts demonstrated business activity post-accident, which led the Merit Reviewer to “question the veracity” of the claim.
The Merit Reviewer commented that the above was not informative or considered in the dispute before her but recommended the insurer “undertake further investigation to determine, pursuant to s 6.24 of the MAI Act, the validity of the claim and whether any part of the claim is fraudulent”.
On the assessment of capacity, the Merit Reviewer noted that evidence contradicted. The rehabilitation provider conducted a full in person examination and certified the claimant fit for pre-injury duties, however the claimant’s GP, without clear evidence of a “properly informed” opinion, certified her as having no capacity. The rehabilitation evidence was preferred.
The Merit Reviewer accepted that the evidence was that, on balance, any loss of earnings was not the result of her accident-related injuries but due to her resignation where she was deliberately in between jobs, on a career break and/or travelling overseas. It was concluded that she would have suffered the same loss of earnings irrespective of the accident.
Findings: The original decision was affirmed – the claimant did not suffer loss of earnings as a result of the accident.
