Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 108
23 May 2024
Welcome to the 108th 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 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.
Claims Assessment
Donelian v CIC Allianz Insurance Limited [2024] NSWPIC 226 (1 May 2024)
Member: David Ford
Claims assessment dispute about the amount of damages to be paid to the claimant under s 7.36(3) and s 7.36(4) – issue of liability and assessment of contributory negligence on the part of the claimant – assessment of damages for past and future economic loss.
The claimant was injured in a motor accident on 16 August 2019 at his workplace. He was standing on the driveway when the insured driver reversed and struck the claimant resulting in several physical injuries and a psychological injury.
The insurer admitted breach of duty of care but alleged 80% contributory negligence on the grounds that the claimant failed to keep a proper lookout and had a total disregard for his own safety by stepping backwards into the path of the moving vehicle. In dispute, the claimant argued that there should be no finding of contributory negligence.
The claimant lodged an application for claims assessment seeking a determination on liability and for assessment of damages. At the assessment conference before Member Ford, the claimant conceded under questioning that he did step backwards into the path of the reversing vehicle. On that basis, Member Ford determined that the claimant was aware of the close proximity of the insured vehicle, had knowledge that that vehicle was in the process of completing a three-point turn and that he would not have been struck by the reversing vehicle if he had not stepped backwards.
Member Ford balanced the claimant’s culpability for the motor accident against the insured driver, of whom he found failed to give reasonable attention to all that was happening on the roadway and failed to keep a proper lookout.
The Member assessed contributory negligence at 25%.
[Member Ford then went on to assess damages. He rejected the claimant’s evidence that he had engaged in active job-seeking and found that the claimant “made no real effort to obtain some form of employment”, and that searching the website Seek on the Internet is a “far from convincing” attempt to re-enter the workforce in some capacity. An award of damages for past and future economic loss was made by way of a buffer.]
Held: On the issue of liability, the insured driver breached the duty of care owed to the claimant and contributory negligence was assessed at 25%.
Park v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 225 (2 May 2024)
Member: Elyse White
Assessment of damages – liability wholly admitted – no entitlement to non-economic loss damages as claimant’s injuries do not exceed 10% whole person impairment (WPI) – assessment of economic loss only – claim dismissed pursuant to s 54(b) of the Personal Injury Commission Act (Act) 2020 as no supporting evidence of earnings prior to the accident or of post-accident economic loss
The claimant sustained physical and psychological injuries in a motor accident on 20 May 2019.
The claimant applied for claims assessment by a Member in the Commission seeking an assessment of damages. Liability was wholly admitted by the insurer and was not in dispute.
The insurer submitted that the application should be dismissed as there were no recoverable heads of damages, or that in the alternative, the member ought to make a finding that there would be no award of damages in the claim.
The basis for that submission was as follows:
- The degree of permanent impairment arising from the injuries sustained in the accident was assessed at not greater than 10% WPI by medical assessors in the Commission. It was established that the claimant was not entitled to non-economic loss damages.
- Whilst the claimant alleged that he was entitled to an award of past and future economic loss and superannuation, there was no supporting documents to support the claim that the claimant earned an income before the accident. His claim form stated that he was not working when the accident occurred.
The claimant in his Statement stated that he retired prior to the accident in 2014, but following retirement up until the motor accident, that he ran a cleaning business and a restaurant and that he was paid cash. He did not produce testamentary evidence, economic loss evidence and did not disclose to Centrelink who paid him an Aged Pension that he was receiving an income concurrently.
The Member rejected the insurer’s allegation that the claimant was an unreliable witness. She placed weight on the fact that English was not the claimant’s first language and accepted that he had complied with his obligation to communicate and provide information. Absent of sufficient evidence supporting his allegation, a response to particulars and in light of medical evidence which stated that the claimant was not employed when the accident occurred, the Member was not persuaded of his employment.
Member White dismissed the proceedings in accordance with s 54(b) of the Act because she was satisfied that the claim lacked substance.
Held: Pursuant to s 54(b) of the Act, the claim was dismissed.
Medical Review Panel
Allianz Australia Insurance Limited v Curtin [2024] NSWPICMP 263 (30 April 2024)
Medical Review Panel: Elizabeth Medland, Medical Assessor Margaret Gibson and Medical Assessor Christopher Oates
Medical review – threshold injury dispute – causation: whether an L4/5 annular fissure was caused by the motor accident – evidence of previous lumbar spine injury and subsequent lumbar spine injury.
The claimant was a pedestrian struck by a motor vehicle on 9 July 2021. The insurer denied liability for entitlements to statutory benefits beyond 26 weeks on the basis that the injuries sustained in this motor accident were threshold injuries under the Act.
The claimant applied to the personal injury commission seeking a determination that she sustained more than a threshold physical injury as a result of the accident. Assessor Nelukshi Wijetunga issued a certificate dated 24 August 2023 which determined that the claimant sustained an L4/5-disc injury as a result of the motor accident and that this was more than a threshold injury.
The insurer applied for panel review of Assessor Wijetunga’s assessment on the basis that it contained a material error. Specifically, the insurer submitted that the Assessor failed to consider the pre-accident history of a lumbar injury sustained at work in the months preceding the accident and also that he failed to consider the delay in radiculopathic symptoms that onset only after an injury subsequent to the motor accident. Overall, it was submitted by the insurer that the Assessor failed to adequately consider the documentation, failed to sufficiently address the issue of causation and failed to give sufficient reasons.
The Panel rejected that the prior injury was of relevance. It placed weight on the fact that the claimant had returned to all normal activities before the motor accident. The Panel also rejected the claimant’s evidence that the motor accident resulted in the annular tear because it placed weight on the fact that after the motor accident but before the subsequent injury, the claimant had mostly returned to normal duties.
The Panel compared this with the claimant’s behaviour following the subsequent injury. It noted that the radiological evidence confirming the annular fissure was only taken after the subsequent accident, and that “on the balance of probabilities, the Panel found that the acute disc disruption by way of annular fissure, located centrally in the L4/5 disc, occurred as a result of the jolting to the spine from “g” forces during the February 2022 flight. The earlier work incident and subject motor accident, based on the medical evidence and examination findings, were consistent with a soft tissue injury causing inflammation of a temporary nature, followed by a relatively rapid return to function.”
Held: Certificate of Assessor Wijetunga revoked, and new certificate issued that the injury to the lumbar spine was a threshold injury and that the L4/5-disc injury with annulus fissure was not caused by the motor accident.
Chaalan v Allianz Australia Insurance Limited [2024] NSWPICMP 264 (1 May 2024)
Medical Review Panel: Alexander Bolton, Medical Assessor Nigel Ackroyd, Medical Assessor Margaret Gibson
Medical review – treatment and care: causation – whether atrial fibrillation was causally related to the accident – where psychological injury sustained as a result of the motor accident subsequently caused atrial fibrillation – where treatment and care causally related to the motor accident.
The claimant was injured in a motor accident on 28 February 2019. Eighty-eight days after the motor accident, the claimant was admitted to hospital with atrial fibrillation. It was submitted by the claimant that this condition was causally related to the accident.
The insurer denied liability for a cardiac condition of atrial fibrillation that onset after the accident as it was not causally related to the accident and denied funding for treatment of that condition on the basis.
The claimant applied for medical assessment in the Commission seeking a determination that the atrial fibrillation and related treatment was causally related to the motor accident. Medical Assessor Chan issued a Certificate dated 2 June 2022 which determined that the atrial fibrillation was not caused by the motor accident.
The claimant applied for panel review of this decision. He relied on a decision by Medical Assessor Parmegiani that he had sustained post-traumatic stress disorder (PTSD) as a result of the motor accident and research papers which attributed atrial fibrillation to PTSD in his submission that the cardiac condition and resulting treatment was causally related to the motor accident.
The insurer argued that the claimant was relevantly a “ardent gym goer who takes supplements and aspired to participate in body building competitions” and submitted that it was reasonable to suspect that the claimant used anabolic steroids which could also be a cause of atrial fibrillation.
The Panel did not have sufficient evidence for it to make a finding regarding anabolic steroid usage.
The insurer also argued that the claimant made false and misleading statements throughout the claim and that any evidence given by him, including evidence that the complaints of palpitations onset after the accident, ought not to be accepted. The insurer relied on surveillance reports which was said to depict the claimant to be working in contradiction of his allegations of total loss of occupational capacity.
The Panel stated that the role of the Panel was not to determine claims of fraud and made no determination in that regard. With reference to the medical issue at hand, the panel commented that atrial fibrillation is a spontaneous event and this would not prevent the claimant from performing the activities as depicted.
Following re-examination of the claimant and review of the literature which linked emotional or traumatic events to the presence of atrial fibrillation, the Panel found that the temporal delay of eighty-eight days following the accident may suggest that the onset of atrial fibrillation was not caused by a physical injury such as inducement of autonomic state due to whiplash.
However, the Panel was satisfied on balance that the atrial fibrillation was caused by the post-accident PTSD and that the cardiac treatment required as a result was causally related to the injuries sustained in the motor accident.
Held: Panel satisfied that atrial fibrillation was not a development of an autonomic state of the claimant and that his development of PTSD had subsequently caused atrial fibrillation both of which were causally related to the accident – certificate revoked, and new certificate issued.
Seke v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 269 (3 May 2024)
Medical Review Panel: John Harris, Medical Assessor Samson Roberts and Medical Assessor Christopher Rikard-Bell
Medical review – threshold injury dispute – where claimant sustained aggravation of a psychological injury as a result of the motor accident – claimant sustained non-threshold psychological injury
The claimant alleged that she sustained more than a threshold injury in a motor accident on 22 February 2022. The accident occurred when the vehicle that the claimant was a passenger in was struck by a truck.
The insurer denied liability for entitlements to statutory benefits beyond 26 weeks on the basis that the injuries sustained in this motor accident were threshold injuries under the Act. A dispute arose.
The claimant applied to the Commission seeking a determination that she sustained more than a threshold injury as a result of the motor accident. It was determined by a Medical Assessor that the claimant sustained soft tissue injuries amounting to threshold physical injuries in the motor accident and this was affirmed by a separate Review Panel. That was not the subject of this dispute.
The subject Review Panel determination related to a decision by Medical Assessor Chew dated 1 December 2022 that the motor accident caused an aggravation of pre-existing adjustment disorder with mixed anxiety and depressed mood and that this was a threshold injury.
The claimant satisfied the president’s delegate that there was a reasonable suspicion that Medical Assessor Chew’s certificate was incorrect in a material respect and a Review Panel was appointed. It was submitted that the Medical Assessor failed to consider relevant documents that demonstrated post-accident treatment and that this resulted in the Assessor making inaccurate determinations.
The insurer submitted that there was a significant pre-existing psychological condition of relevance, and that the post-accident medical evidence did not support a finding that this condition was aggravated by the motor accident.
Critical to overturning the threshold injury determination of Assessor Chew, the Panel was satisfied that the pre-accident diagnosis was that of Major Depressive Disorder, not Adjustment Disorder. It was accepted, as was the opinion of the Assessor Chew, that the motor accident caused an aggravation of a pre-existing psychological injury. Adopting the reasoning of AAI Ltd v Hoblos, the Panel determined that the claimant had sustained an aggravation of a psychological condition that is not a threshold injury under the Act and thus she sustained more than a threshold psychological injury in the motor accident.
Held: Panel satisfied that the motor accident aggravated Major Depressive Disorder with anxious distress – certificate revoked, and new certificate issued.
Merit Review
Villaneuva v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 7 (6 May 2024)
Merit Reviewer: Belinda Cassidy
Merit review – claimant’s dispute about cost of attendant care services provided to her by her sisters where invoices and receipts certified that the work is paid for and not gratuitous – assessment of reasonable cost of attendant care services.
The claimant was injured in a motor accident on 6 November 2018. Her vehicle was car-jacked, and she sustained physical and psychological injuries as a result of being ejected from the vehicle as it was being driven away.
The insurer admitted liability for the claim for statutory benefits.
The claimant denied reimbursement of monies to the claimant for attendant care services which she received in a care arrangement provided by her sisters and substantiated by invoices and receipts for payment (the disputed care). The insurer argued that payments made to the claimant’s sisters was not reasonable because the services were not undertaken by qualified attendant care professionals but by close family members.
Medical Assessor Shahzad determined that the disputed care was related to the injuries caused by the accident and was reasonable and necessary in the circumstances.
The insurer applied for panel review of this decision, and the Review Panel affirmed the decision that a total of eight hours per week was reasonable and necessary for the injuries sustained and that that care was provided by the claimant’s sister. This was not the subject of dispute in this decision.
Merit Reviewer Cassidy was appointed to determine the insurer’s decision to reimburse the claimant at a cost of $12.50 per hour and in certain circumstances at $25 per hour, but to decline payment of a claimed rate of $35 per hour and at a rate of 22 hours per week.
Merit Reviewer Cassidy opined that whilst it was “unusual” for sisters to contract with each other for the provision of services to another member of the family with whom they live, the evidence of invoices and receipts was sufficient to demonstrate that the attendant care expenses incurred by the claimant have been paid by the claimant and were not gratuitous and that the claimant was therefore entitled to the reimbursement of them.
Merit Reviewer Cassidy accepted the amount of $35 per hour as reasonable having regard to the statutory prescribed cost for similar services and of the commercial rate in the general community.
The Merit Reviewer was bound by the Review Panel determination that eight hours of attendant care services was related to the injuries sustained in the accident, was reasonable and necessary. She assessed the reasonable cost of attendant care services provided by the sisters to reflect calculations on the basis of eight hours per week at a rate of $25 per hour in 2022 and $35 per hour in 2023.
Of relevance, the claimant sought leave to amend her application to also claim ongoing care provided by her sisters for the rest of her life. In accordance with s 3.2(3) of the Act, the Member noted that the relevant insurer becomes the Lifetime Care and Support Authority through its program called CTP Care and because CTP Care was not joined to the proceedings, it was procedurally unfair to make any determination in respect of the cost of future care in the dispute.
Held: Merit Reviewer bound by finding of eight hours per week; reasonable cost of care paid by insurer and on basis of current attendant care rate in damages claims; invoices properly verified and paid as no challenge by insurer to the scheme of arrangement for the payment of the costs.
