Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 107
08 May 2024
Welcome to the 107th 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 issues 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 Australasians Legal Information Institute (AustLII) website. Please see the 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.
Miscellaneous Claims Assessment
Moussa v QBE Insurance (Australia) Limited [2024] NSWPIC 203 (23 April 2024)
Member: David Ford
Claimant failed to comply with obligation to produce particulars per s 6.25 and claim taken to be withdrawn under s 6.26(3) – whether claimant’s explanation for failure to adequately respond to s 6.26 direction full and satisfactory – whether claim should be reinstated.
The claimant was crossing a pedestrian crossing on 23 November 2020 when he was struck by a forklift. He sustained multiple injuries including a fractured right knee, injury to right shoulder, arm and elbow, right hip radiating pain into the left leg and back and psychological injuries.
The claimant lodged an application for common law damages. The insurer admitted liability for the claim but alleged 30% contributory negligence on behalf of the claimant.
The insurer served a s 6.26 direction on the claimant solicitor on 24 July 2023. That direction advised that if the claimant did not fully particularise the claim by 24 October 2023, the claim would be taken as withdrawn. The claimant failed to provide the requested information within that time frame.
The claimant applied for damages assessment in the Commission on 23 November 2023. He requested that the application be stood over to allow for resolution of a related medical dispute concerning his degree of permanent impairment arising from injuries sustained in the motor accident.
The insurer requested the damages assessment application be dismissed. It was submitted that the Commission had no jurisdiction because the claimant failed to respond to the s 6.26 direction, failed to apply for reinstatement of the claim and therefore there was no common law claim on foot for the Commission to assess.
The dispute regarding whether the claim should be reinstated was determined on the papers.
The Member ultimately concluded that the claimant was of the belief that all relevant particulars had been provided prior to the expiration of the direction because that was the advice of his legal representative. It was reiterated that if a claimant could reasonably rely upon the conduct and advice of their solicitor, although it was negligent, such reliance could provide a satisfactory explanation for the delay in commencing proceedings (Smith v Grant 2006 NSWCA 244).
The Member critiqued the solicitor’s “piecemeal” production of documentation and information and stated that it “not the responsibility for the insurer to provide the claimant with calculations regarding the claim for past economic loss.”
Even so, the Member concluded that the claimant’s failure to particularise the claim was not prejudicial to the insurer. He stated that the claimant had given a full account of his conduct, including actions, knowledge and belief regarding compliance with the s 6.26 direction, and that the claim could be reinstated.
Held: The claim for damages was reinstated because a full and satisfactory explanation was provided and as the claimant complied with the provisions of s 6.20(7)(b).
Dinjar v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 189 (16 April 2024)
Member: Belinda Cassidy
Claim for statutory benefits lodged 33 months late – application by claimant to determine whether explanation for delay was full and satisfactory[IJ1] in accordance with s 6.13(3) – explanation full – assessment on the papers – application allowed and claim for statutory benefits procedurally compliant.
The claimant injured his neck and shoulders in a rear-end motor accident on 18 October 2020. He was not at fault for the motor accident. The claimant then lodged a claim for statutory benefits over three years after the anniversary of the motor accident on 2 August 2023, and on lodgement provided an explanation that he had only recently become “aware that [his] condition is related to the accident which caused [him] to see a solicitor”.
The insurer denied the statutory benefits claim on 31 August 2023 on the basis that the claim was lodged outside the three-month time period pursuant to s 6.13(1) of the Act and without a full or satisfactory explanation for the delay as required s 6.13(3) of the Act.
The claimant provided a further explanation for delay to the insurer on 6 October 2023. It was essentially submitted that the claimant had not previously made a CTP claim and was unaware of the three-month limit, but also that he had long history of pre-accident neck and shoulder complaints, that he expected his post-accident complaints to resolve and that it was not until he was advised in July 2023 that he required surgery that he was prompted to seek legal advice regarding the motor accident and his resulting injuries.
The insurer raised that the claimant worked in insurance and submitted that a reasonable person in the position of the claimant, with that experience and with the reported symptoms, would have investigated his rights and entitlements in the short term and pursued them. The explanation was rejected.
The claimant applied for miscellaneous claims assessment in the Commission on 14 December 2023 seeking a determination that the explanation for delay was full and satisfactory for the purpose of s 6.13. It was allocated to Member Cassidy who made an assessment on the papers.
The insurer conceded that the explanation was full, and so the dispute requiring adjudication was whether the explanation was satisfactory.
In determining whether the explanation was satisfactory, the Member rejected the insurer’s argument that the claimant’s experience in the insurance industry was relevant because he did not work in CTP. The Member accepted the claimant’s evidence that he had a 15–20-year history of similar symptoms and therefore that it was reasonable for him to not make a claim until his symptoms deteriorated some three years after the accident.
In accordance with s 6.13(2) of the Act, the insurer did not need to pay weekly statutory benefits before the date that the claim was lodged on 2 August 2023.
Held: The explanation for delay was determined to be full and satisfactory – determination that the claim for statutory benefits was procedurally compliant and that the claimant could recover those benefits in accordance with Part 3.
Medical Review Panel
QBE Insurance (Australia) Limited v Rahe [2024] NSWPICMP 233 (17 April 2024)
Medical Review Panel: Gary Patterson, Medical Assessor Geoffrey Stubbs and Medical Assessor Margaret Gibson
Medical review – Motor Accidents Compensation Act 1999 – treatment and care: causation - whether multi-level cervical fusion and disc replacement surgery five years post-accident was reasonable, necessary and related to accident.
The claimant was injured in a motor accident on 26 July 2014. She was a passenger in the not-at-fault vehicle, which collided at speed with the at-fault vehicle. The impact caused the claimant’s vehicle to be pushed into the bank of a wall and crushed. Liability was admitted and was not in dispute.
The claimant sustained multiple physical injuries in the accident, including a neck injury. After failing conservative treatment, the claimant eventually underwent a C4/C5 disc replacement and fusions at C5/C6 and C6/C7 levels (the treatment), some five years after the accident.
A dispute arose between the parties as to whether the treatment was reasonable, necessary and related to an injury caused by the motor accident. The dispute was referred to the Commission for determination.
The insurer argued that the treatment was not reasonable and necessary and not related to the motor accident because there were issues of causation, specifically that there was a delay in onset of cervical symptoms, a relevant history of complaints in the three months prior to the accident. This was in addition to a long-standing history of cervical spine pathology and as the treatment was not undertaken for some five years following the motor accident.
The claimant argued that there was immediate onset of neck pain following the accident, that there was only a singular complaint of pre-accident neck pain and that whilst surgery was not undertaken for five years after the motor accident, this delay was because she first exhausted conservative treatment. She relied on a medical assessment (permanent impairment) certificate which recorded complaints of cervical radiculopathy and right occipital neuralgia and argued that the treatment was required to treat neck pain, radiating arm discomfort and occipital radiation.
Medical Assessor Jonathan Herald was allocated to determine the treatment dispute. His Certificate dated 31 May 2023 determined that the treatment was reasonable, necessary, and related to the injury sustained in the accident.
The insurer applied for panel review of Assessor Herald’s Certificate on the basis that the assessment was incorrect in a material respect. It was submitted that the Assessor failed to provide adequate reasons regarding the issue of causation, particularly the delayed onset of symptoms and failed to put certain inconsistencies and issues of evidence to the claimant for commentary, specifically the expert reports which held that that there was no causal relationship between the cervical spinal surgery and the accident.
The Review Panel convened and issued a determination which affirmed Assessor Herald’s Certificate. The Panel rejected the insurer’s argument regarding delay in symptom onset and accepted the claimant’s statement that she was preoccupied with sternal pain initially and that the 12-week delay in the first report of neck pain was “acceptable, given the distracting nature of injuries suffered by her”.
The Panel critiqued the insurer’s allegation of inconsistency and reiterated that Medical Assessor Herald was entitled to form a different opinion to the other medical practitioners cited. It accepted the claimant as consistent on re-examination and rejected any allegation of inconsistency.
Overall, the Panel determined that the injury was related to the injury sustained in the accident and was reasonable and necessary treatment.
Held: Certificate confirmed – the treatment and care related to the injury caused by the motor accident and was reasonable and necessary in the circumstances
Insurance Australia Limited t/as NRMA Insurance v Zaringhabaei [2024] NSWPICMP 232
Medical Review Panel: Gary Patterson, Medical Assessor Sophia Lahz and Medical Assessor Margaret Gibson
Medical review – claimant had elevated blood alcohol level after accident, alleged traumatic brain injury (TBI) disputed by insurer absent of evidence of independent head injury – insurer’s application for panel review regarding whole person impairment (WPI) assessment.
The claimant was a pedestrian injured in a motor accident on 22 April 2019. He was struck on his right side by the insured vehicle. Liability was wholly admitted in the common law and statutory benefits claims and was not in dispute.
A dispute arose between the parties regarding whether the claimant’s degree of permanent impairment caused by the motor accident was greater than 10% WPI. The claimant applied for assessment in the Commission seeking a determination that he had greater than 10% WPI.
Medical Assessor Ian Cameron issued a Certificate dated 28 May 2023 which diagnosed a mild TBI assessed at 4% WPI and soft tissue injuries to the lumbar and cervical spine, right knee and left elbow which did not attract assessable impairment.
Relevantly, the Medical Assessor found that the claimant sustained a mild TBI as a result of the accident but commented that there was no abnormality on brain imaging and the Glasgow coma scores (GCS) and post-traumatic amnesia (PTA) scores were compromised by the effects of alcohol ingestion and other treatment following the accident.
The insurer applied for panel review of the medical assessment. It satisfied the President that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, namely that the Medical Assessor:
- Failed to comply with the Guidelines when assessing the TBI, particularly in accounting for the psychometric results that were available to him when assessing the claimant’s impairment to his mental status, emotional and behavioural functioning.
- Failed to take into account the results of the insurer’s evidence, namely the psychometric testing conducted by Dr Stewart, neuropsychologist, and the report of Ms Moodley which found that the results were inconsistent with genuine cognitive impairment.
- In context of issues of credibility, failed to explain his path of reasoning in accepting the self-reported symptoms in face of contrary evidence.
- Failed to provide reasons in relation to his assessment of the claimant’s “current status” and failed to reference the claimant’s daily social and interpersonal functioning.
The President was satisfied that there was reasonable cause to suspect that the Medical Assessor did not take into account the results of the psychometric testing and allowed the review application. As the review application was lodged out of time, the President issued a Determination of an Application for Review of a Medical Assessment on 18 August 2023 which extended the time for the making of a review application also.
A re-examination of the claimant was conducted as part of the Review Panel’s determination.
Medical Assessor Lahz commented that the clinical examination findings did not support the presence of a significant spinal injury. This aspect of Medical Assessor Cameron’s certificate was affirmed.
Medical Assessor Sophia Lahz raised issues of inconsistency, particularly because the results on testing were incompatible with the claimant’s “presently reported (complex) activities inclusive of travelling unaccompanied from Hobart to Melbourne and thence to Sydney via plane/taxi/uber, and also arranging his return to Iran whilst navigating an Australian citizenship application.”
Regarding the alleged TBI and resulting impairment, the Panel concluded that the claimant’s presentation at the time of the accident was not consistent with a head injury, but rather more likely due to toxidrome from alcohol intoxication. It was determined that “at the very most”, the claimant sustained a mild traumatic brain injury with no permanent WPI. This was consistent with the objective evidence of resolution of cognitive deficits following the motor accident, irrespective of the claimant’s reports of ongoing deficits.
Held: Review Panel revoked Certificate of Medical Assessor Cameron and issued replacement Certificate assessing 0% WPI for head injury and soft tissue injuries.
Merit Review Panel
Kipkorir v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMRP 2 (10 April 2024)
Merit Review Panel: Susan McTegg, Elizabeth Medland and Hugh Macken
Merit review – claimant’s application for panel review of Merit Reviewer’s assessment of pre-accident weekly earnings (PAWE) for the purpose of benefits paid under Division 3.3 – whether earnings received on or after the day of the accident are excluded from the calculation where work carried out before accident – unidentified cash earnings.
This decision concerned an application from the claimant for panel review of the decision of Merit Reviewer Ruschen dated 30 January 2024 which set aside the insurer’s decision and certified PAWE at $460.60.
The background of the matter is as follows:
- The claimant was injured in a motor accident on 25 September 2023. He made a claim for statutory benefits against the relevant insurer on 3 October 2023.
- At that time, the claimant was studying full-time in accordance with the terms of his student visa. He produced evidence of earnings for labour work paid into his bank by his employer between 4 August 2023 and up to 27 September 2023 (two days after the accident).
- The insurer assessed PAWE at $761.21 on 13 November 2023. The insurer’s decision relied only on the earnings paid into his bank, including the payment made after the accident on 27 September 2023 for work undertaken pre-accident.
- The claimant requested an internal review of the insurer’s decision. The basis for that application was that the claimant submitted that PAWE should be assessed higher and include cash in hand labouring job payments which he alleged was $250 and $300 per day.
- The insurer affirmed their decision in an internal review certificate dated 28 November 2023.
The claimant applied for merit review of the insurer’s decision to assess PAWE.
On 30 January 2024, Merit Reviewer Ruschen issued a decision wherein she agreed that the PAWE should be calculated in accordance with Schedule 1 cl 4(2)(a) on the basis there was no evidence that the claimant was earning continuously before he arrived in Australia, but:
- Rejected that PAWE should include payments paid after the motor accident, even where work is conducted before the motor accident. She interpreted the wording of cl 4(2)(a) to exclude any earnings received on or after the day of the accident.
- Rejected that the cash deposits evidenced by the claimant were earnings because there was no third-party payer identified, no description suggesting the payments represented wages and no documents to verify those transactions as income.
Merit Reviewer Ruschen re-assessed PAWE to $460.60.
The claimant applied for a panel review of Merit Reviewer Ruschen’s decision. He submitted that this assessment was incorrect because it failed to account all cash payments made as a result of earnings.
The Review Panel engaged in a teleconference with the claimant before providing its decision. It agreed with Merit Reviewer Ruschen’s interpretation of Schedule 1, cl 4(2)(a) MAIA to specifically exclude earnings not received before the day of the accident.
The Panel otherwise accepted the claimant’s position that the cash deposits ought to be included in the PAWE assessment.
Held: Panel satisfied unidentified cash earnings on building sites were gross earnings during the relevant period for purpose of calculating PAWE; Certificate of MR Ruschen revoked – PAWE certified at $815.50
