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Welcome to the 109th 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.

Miscellaneous Claims Assessment

Richards v Insurance Australia Limited t/as NRMA Insurance (No 2) [2024] NSWPIC 252

Member: Brett Williams

Dispute of whether accident caused wholly by the fault of the claimant for the purpose of ss 3.11 and 3.28 – whether inadvertence is fault – reliance by insurer on estoppel – res ipsa loquitor and inference that what occurred was sufficiently unusual to raise the possibility that the course of claimant’s vehicle was caused by some failure in due care – accident caused wholly by fault of claimant.

The claimant was injured in a motor accident on 21 July 2020 when her vehicle crossed over onto the incorrect side of the road and collided with another vehicle. The claimant had no recollection of the accident or circumstances leading to it.

A dispute arose between the parties because the insurer denied liability for statutory benefits beyond 26 weeks on the basis that the accident was caused wholly by the fault of the claimant. That dispute was resolved by Member Bridie Nolan in first instance who determined that the motor accident was not caused wholly or mostly by fault on the part of the claimant.

The insurer applied for judicial review and the proceedings came before Schmidt AJ in the Supreme Court of New South Wales. That decision was discussed in our 2023 special edition of MAD, accessible here, but in summary, Schmidt AJ set aside the Member’s decision and remitted it to the Commission for determination by a different Member according to law. It came before Member Williams.

Before Member Williams, the insurer solely relied on res ipsa loquitor to support a finding that the accident was caused wholly by the fault of the claimant. It was argued that negligence must be inferred from the mere fact that an accident occurred, and an injury was sustained.

The claimant’s argument was that the most probable cause of the accident was that of wildlife or another animal straying onto the road. There was no evidence to support that case on the balance of probabilities and that case was rejected by Member Williams.

The Member placed weight on the known circumstances – that the vehicle  the claimant collided with was driving within her lane, with her lights illuminated and within the speed limit. He stated that whilst it was possible that the claimant’s vehicle suddenly veering into the path of the other vehicle may not imply fault on her part, “on the balance of probabilities, it is appropriate to draw an inference that the claimant’s vehicle veering to the right was a result of her failing to exercise reasonable skill and care in the control and management of her vehicle.

For the purposes of ss 3.11 and 3.28 of the Act, the Member determined that the motor accident was caused by the fault of the claimant.

Held: The accident was caused wholly by the fault of the claimant.

View decision

Merit Review

QBE Insurance (Australia) Limited v Spence [2024] NSWPICMRP 4

Review Panel: Hugh Macken, Terence O’Riain and Susan McTegg

Review of decision in respect of calculation of pre-accident weekly earning (PAWE) capacity – whether seasonal work ought to be assessed under Schedule 1 cl (2)(b)(i) or cl 4(2)(c) – clause 4(2)(c) does not require PAWE to be averaged over 52 weeks.

The claimant was injured in a motor accident on 12 August 2019. He asserted that before the motor accident, he entered into an arrangement to undertake seasonal harvesting work with Emerald Grain, an employer that he had undertaken similar work for previously but had not worked for in the year preceding the accident. As a result of the injuries sustained in the accident, the claimant did not commence work with Emerald Grain and sought payment of weekly statutory benefits for the loss incurred.

The insurer assessed PAWE at $177.75, calculated on the basis of payslips from Acar Company Pty Ltd  for the period 3 December 2018 to 3 March 2019, but not including earnings from Emerald Grain, Ramps Ridge and Bindara Management Services paid outside the 52 weeks period preceding the accident. The claimant disputed this decision and applied to the Commission for a determination and assessment of PAWE.

Merit Reviewer Medland on 11 December 2023 set aside the reviewable decision of the insurer and certified the claimant’s PAWE as $1,977.36. Critical to her determination, the Member:

  1. Agreed with the claimant’s submission that the claimant was an earner for the purpose of cl 2(b)(i) of Schedule 1 on the basis that he had entered into an agreement to undertake employment.
  2. Rejected the insurer’s argument that Schedule 1, s 2(a)(ii) applied in that he was employed for a period of 13 weeks in the “year immediately preceding the motor accident”.

This had an implication on the PAWE assessment because it followed from Schedule 4 cl (2)(c) that the words “earnings under the agreement” with Emerald Grain were to be included in the PAWE assessment and this resulted in a calculation of likely earnings with Emerald Grain over 8.57 weeks at $16,946 or a PAWE of $1,977.36.

The insurer applied for panel review and satisfied the president’s delegate that there was a reasonable suspicion that the decision contained a material error. Specifically, it was argued that the Merit Reviewer Medland failed to identify that the change in employment was a change of circumstance, which meant that Schedule 1 cl 4(2A) applied and that subclause (2A) therefore applied to result in the pre-accident period being the period of two years immediately preceding the motor accident.

The insurer further submitted that the Merit Reviewer’s approach failed to have regard to the objects of the Act and provided a windfall to the claimant who earnt a seasonal income, not an annual income. It was submitted that if the PAWE calculation was maintained, his yearly income would be $102,894 and this was well in excess of his income generally.

The Panel determined that, but for the accident, the claimant would have worked in casual employment with Emerald Grain in accordance with his usual pattern of employment, even without a signed written enforceable contract. In this respect, the Panel agreed with Merit Reviewer’s determination that the claimant was an earner for the purpose of Schedule 1 cl 2(b)(i) on the basis that he had entered into an agreement to undertake employment.

Regarding the assessment of PAWE, the Panel rejected the argument that the insurer advanced that the there was a significant change in earning circumstances sufficient to warrant an assessment in accordance with Schedule 1 cl 4(3). It was determined that, informed by the decision of Victorian Civil and Administrative Tribunal in Monga v Transport Accident Commission [2003] VCA 1730 which compromised of similar circumstances where a claimant was employed as a casual fruit picker and injured in the midst of the fruit picking season, PAWE ought to be assessed by the best available evidence of what the claimant was likely to earn in this new arrangement.

Relying on evidence of Emerald Grain, the Panel accepted that the claimant would have earned $1,898.40 gross per week if he was not injured in the accident and certified this as his PAWE.

Held: Review Panel revoked the Certificate of Merit Reviewer Medland and issued a new Certificate that PAWE was $1,898.40.

View decision

Medical Review Panel

QBE Insurance (Australia) Limited v Gohari [2024] NSWPICMP 279

Medical Review Panel: Member John Harris, Medical Assessor David Gorman and Medical Assessor Drew Dixon

Medical review – threshold injury dispute – ordinary meaning of “should” in definition of atrophy per table 6.8 of the Guidelines does not require a mandatory precise measurement; unnecessary to decide if surgery resulted in non-threshold classification but issue discussed with reference to Mandoukos v Allianz.

The claimant suffered injuries to his cervical spine, lumbar spine and right wrist in a motor accident on 16 May 2018 when the truck he was driving suffered a mechanical fault and collided with the rear of another vehicle.

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 Commission seeking a determination that he sustained more than a threshold injury as a result of the accident. Assessor Assem issued a Certificate dated 5 September 2023 which concluded that the claimant sustained soft tissue injuries to the cervical spine, lumbar spine and right wrist as a result of the accident, but that the motor accident “exacerbated the pre-existing degenerative condition, making it symptomatic” and that “had it not been for the accident, it's improbable that the claimant would have needed lumbar fusion”. It was on this basis that Assessor Assem determined that the lumbar spine surgery resulted in a non-threshold injury.

The insurer applied for panel review of Assessor Assem’s assessment on the basis that it contained a material error. Specifically, the insurer submitted that Assessor Assem’s opinion that the surgery itself could change the claimant’s threshold injury to a non-threshold injury was inconsistent with the decision of Mandoukos, and that once rectified and as there was no evidence of verifiable radiculopathy, the claimant sustained threshold injuries.

The insurer otherwise submitted that the claimant had underlying degenerative changes and that there had been no aggravation of same in the motor accident. The Panel rejected this and stated that the absent of pre-accident evidence of symptomatic complaints, the fact that the claimant had significant underlying degenerative pathology meant that he was more prone to aggravation caused by the motor accident by reason of the pre-existing pathology.

Regarding the allegation of radiculopathy in the lumbar spine, the Panel clarified that atrophy as defined by Table 6.8 of the Guidelines to mean a difference in circumference that “should be 2cm or greater in the thigh” is discretionary. A difference of less than 2cm, or a vague reference to wasting in clinical evidence without specific measure, is sufficient to satisfy the meaning of atrophy.

The Panel was satisfied that there was evidence of two signs of radiculopathy in the historical treating evidence and determined that this constituted more than a threshold injury under the Act. As this determination resolved the dispute, the Panel did not determine whether the surgery meant that the injury is classified as a non-threshold injury.

Interestingly, the Panel commented that:

As we earlier noted, Part 1, cl 4 of the Regulations defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”. The clause notes that the injury may manifest in signs which could include radiculopathy. In that sense, radiculopathy is not the injury but the consequences of the injury to the specific nerve root caused by the motor accident. The insurer’s submission that radiculopathy occurring subsequently, and following surgery is not considered, is inconsistent with the ordinary meaning of “manifests” in clause 4 of the Regulations. (Emphasis added).

The Panel further rejected the insurer’s submission specifically that Mandoukos established that surgery did not transform the injury into a non-threshold injury and clarified that the principle was that surgery did not “necessarily” mean that the injury was transformed into a non-threshold injury and that instead it was a “question of fact”.

Held: Certificate of Assessor Assem revoked and new Certificate issued that the claimant sustained more than a threshold L3/4-disc injury as a result of the motor accident.

View decision

Elammar v AAI Limited t/as AAMI [2024] NSWPICMP 280

Medical Review Panel: Member Gary Patterson, Medical Assessor John Baker, Medical Assessor Michael Hong

Medical review – threshold injury – causation of psychological injury: PTSD not caused by the motor accident; non-threshold psychological injury sustained but outside terms of referral – certificate confirmed.

The claimant was injured in a motor accident on 10 July 2020. An altercation between the insured driver and the claimant arose following the accident and this resulted in the claimant being on the bonnet of the insured vehicle as it moved forward. The claimant was issued with a traffic infringement notice for causing the initial collision for failing to merge safely, but the insured driver was then issued with a traffic infringement notice for negligent driving.

Member Boyd-Boland determined the motor accident was caused by the insured driver and that the claimant’s statutory benefits should be reduced by 10% for his contributory negligence in a decision dated 22 September 2021. The insurer then denied liability on the basis that the claimant sustained no more than a threshold injury as a result of the accident.

The claimant applied for medical assessment in the Commission seeking a determination that he sustained more than a threshold psychological injury as a result of the accident. Medical Assessor Wayne Mason determined on 5 December 2022 that the claimant sustained Adjustment Disorder with mixed anxiety and depressed mood as a result of the motor accident. He rejected that the claimant met DSM-5-TR criterion for post-traumatic stress disorder (PTSD) as referred by the claimant.

The claimant applied for panel review of this decision on the grounds that the Assessor failed to provide a clear path of reasoning as to why he preferred the diagnosis of Adjustment Disorder over PTSD.

Of note, Medical Assessor Shen issued a Certificate dated 9 October 2023 which agreed with a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood and assessed 6% WPI. Neither party applied for review of this Certificate. Neither party objected to this Certificate.

The Panel re-examined the claimant, after which it was determined that the claimant did not meet diagnostic criterion for PTSD. In this regard, the Panel affirmed the Certificate of Assessor Mason and thus it was concluded that the claimant did not sustain more than a threshold injury in the accident.

The Panel concluded that the claimant developed an opioid use disorder as a result of the accident because it was caused by opioid prescribed for pain symptoms arising from the accident. Despite this being a non-threshold injury, the panel did not certify that the claimant sustained more than a threshold injury because “that injury/condition falls outside the terms of the referral to the Review Panel, which is aware of the strictures imposed by the recent Court of Appeal decision in Mandoukos v Allianz”.

Held: Review Panel confirmed the threshold determination of Assessor Mason dated 5 December 2022.

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