Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 112
24 July 2024
Welcome to the 112th 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 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.
Medical Review
Insurance Australia Ltd t/as NRMA Insurance v Zaringhabaei [2024] NSWPICMP 228
Review Panel: Member Gary Patterson, Assessor Margaret Gibson and Assessor Sophie Lahz
Medical review – threshold injury – elevated blood alcohol level and absence of evidence of brain injury at time of motor accident – issue whether the claimant sustained a mild traumatic brain injury (TBI) in addition to other injuries – certificate confirmed.
The claimant was a pedestrian struck by a motor vehicle and injured on 22 April 2019. He had limited recall of the accident, was unconscious at the scene and taken to hospital where he was intubated. He had an elevated blood alcohol reading and a reduced Glasgow Coma Score (GCS).
The insurer denied liability for statutory benefits beyond 26 weeks on the basis that the claimant’s injuries were threshold injuries. He disputed this decision, predominantly on the basis that he sustained a mild traumatic brain injury in the motor accident and that this was more than a threshold injury. Assessor Ian Cameron issued a Certificate which found in favour of the claimant on 29 August 2023.
Medical Assessor Cameron’s Certificate also assessed whole person impairment (WPI).
The insurer was successful in having Medical Assessor Cameron’s Certificate referred to a review panel on the basis that there was reasonable suspicion the assessment was incorrect in a material respect. With respect to the head injury, the insurer argued that Medical Assessor Cameron’s diagnosis of a traumatic brain injury erred because it failed to account for competing views – namely the opinion of Dr Stewart, neuropsychologist, and the similar findings made by Ms Moodley, clinical psychologist. Dr Stewart thought that the claimant was deliberately underperforming in the tests that she administered and questioned whether the client had genuine psycho pathology or cognitive disturbances. The insurer highlighted the absence of evidence of a head injury, cerebral insult or high velocity impact in the treating evidence. It also argued that Medical Assessor Cameron relevantly failed to explain his path of reasoning in accepting the claimant’s self-reported symptoms and failed to properly interpret the claimant’s scoring in the tests administered.
With respect to the threshold injury determination, the Review Panel conducted a re-examination, during which Medical Assessor Lahz commented that the low score was “incompatible with his presently reported complex activities”. It was concluded that the claimant’s presentation at the time of the accident “with relatively sudden onset and then offset of altered conscious state” was likely due to alcohol intoxication, but that there was in any event and on balance, evidence of a mild traumatic brain injury with no permanent WPI. Assessor Cameron’s Certificate in respect to threshold injury was confirmed.
Separate review proceedings were heard regarding WPI and the other alleged injuries.
Held: Certificate confirmed – claimant sustained more than a threshold injury.
QBE Insurance (Australia) Limited v Ozucargil [2024] NSWPICMP 375 (12 June 2024)
Review Panel: Member Belinda Cassidy, Assessor Margaret Gibson and Assessor Clive Kenna
Medical review decision – threshold injury – whether presence of joint capsule injury to cervical spine is justified merely on the basis of a clinical finding of tenderness over C5/6 level – Certificate revoked.
The claimant was injured in a motor vehicle accident on 26 September 2022, with it being alleged that his car was side swiped by another car in a residential zone. He alleged injuries to his neck, middle and lower back as well as his bilateral shoulders in the motor accident.
A dispute arose as to whether the claimant’s injuries were non-threshold injuries. In a Certificate dated 10 December 2023, Assessor McGrath held that the claimant sustained a non-threshold injury in the motor accident, consisting of a torn joint capsule at the C5/6 level. The insurer applied for review and satisfied the President’s Delegate that there was a reasonable suspicion that this assessment was incorrect in a material respect. The review proceedings were put before a Panel for determination.
The insurer submitted that:
- The Assessor did not identify the signs and symptoms to support his decision of a ligament or capsular injury and a ligament tear.
- The Assessor failed to justify how he distinguished a C5/6 injury as a possible sprain or tear.
- The Assessor did not explain the correlation between imaging and symptoms in circumstances where there is no radiology pertaining to the C5/6 level.
- The Assessor relied upon an article as to the biomechanics of accidents and causation of C5/6 capsular ligament tears.
- The Assessor failed to address the Insurer’s argument about causation and the delay in symptoms.
The claimant was re-examined by Assessor Kenna upon the direction of the Review Panel.
The critical question for determination by the Review Panel was whether the claimant had sustained a cervical spine joint capsule injury in the motor accident.
The Panel noted that Assessor McGrath made his diagnosis of a capsular injury on the basis of his clinical examination as the claimant was focally tender over the left C5/6 articular pillar. Critically, the Panel did not consider that the clinical evidence justified a degree of underlying pathology in the C5/6 joint capsule, especially noting that the expected symptoms would have included the presence of muscle spasm, increased excessive joint mobility, and possibly a referral of symptoms involving the left upper limb. None of these symptoms were reported as present at the time of Assessor McGrath’s examination.
Further, the Review Panel considered that the absence of earlier clinical findings by any doctor and the absence of focal tenderness over the left pillar at C5/6 in the most recent examination by Assessor Kenna indicates that there was no tearing of cartilage or ligaments at the C5/6 level sustained in the accident.
The lack of radiological study to confirm a tear of the tissue at the C5/6 level was a further important consideration in the Review Panel’s decision.
Relevantly, the Review Panel also noted that the Claimant’s post-accident behaviour was suggestive of there being no tearing of soft tissue at the C5/6 level as if a joint capsulate injury had been sustained, there would have been immediate and significant symptoms of pain ongoing for a lengthy period of time and requiring continuing and immediate treatment.
Ultimately, the Review Panel were not satisfied that the claimant sustained a joint capsule injury in the motor accident.
Held: Certificate of Assessor McGrath revoked and new Certificate issued that the claimant sustained only threshold injuries as a result of the motor accident.
QBE Insurance (Australia) Limited v McKenzie [2024] NSWPICMP 377 (13 June 2024)
Review Panel: Member John Harris, Assessor Louis Izzo and Assessor John Schmidt
Medical review decision – permanent impairment dispute – cl 6.252 of the Motor Accident Guidelines (the Guidelines) - whether there is objective evidence of neurological impairment to assess incontinence related to spinal injury – whether there is objective evidence of injury to the bladder and urethra associated with urinary incontinence to assess urinary incontinence due to trauma – certificate revoked.
The claimant was injured in a motor vehicle accident on 18 October 2018. The insured vehicle crossed in front of the path of the claimant’s vehicle, with the claimant being a front seat passenger who was asleep at the time of the accident.
A dispute arose as to the degree of permanent impairment of the claimant’s injuries arising from the motor accident.
Relevantly, the medical assessment the subject of the review was undertaken by Assessor Korbel. Assessor Korbel was requested to assess the claimant’s urinary tract, including bladder, based on severe urinary incontinence. He considered that the bladder problems commenced after the motor accident and the urodynamics studies confirmed severe detrusor overactivity. Assessor Korbel further determined that the response to Botox therapy was reasonable. Ultimately, Assessor Korbel assessed the claimant’s permanent impairment of the bladder at 9% pursuant to Chapter 4, page 149, table 17 of AMA4.
The insurer applied for review of Assessor Korbel’s assessment and satisfied the President’s Delegate that there was a reasonable suspicion that the assessment contained a material error. The review proceedings were put before a Panel for determination.
The insurer disputed the allegation of urinary incontinence, noting that there was a history of incontinence symptoms in the context of pregnancy prior to the motor accident. Further, the insurer relied significantly upon the opinion of Dr Wines, urologist, who determined that whilst there may be a neurological cause, the subject accident was not of significance in the production of the claimant’s incontinence symptoms. The insurer submitted that cl 6.252 of the Guidelines required objective evidence of neurological impairment to assess urinary bladder dysfunction under table 17 of AMA4. It was further highlighted by the Insurer that detrusor overactivity was not consistent with a neurogenic bladder.
On the other hand, the claimant submitted that the result of the urodynamic studies conducted by Dr Manning and the responses to Botox therapy were two factors that constitute objective evidence to form the conclusion that her bladder problems were neurogenic in nature.
The claimant was re-examined by both Assessor Izzo and Assessor Schmidt as part of the Review Panel’s determination.
The Panel considered the history of onset of urinary symptoms. Specifically, the Panel noted that there was no recorded history of urinary symptoms at the hospital and the initial consultation with the GPs following the motor accident, with reference to the principle that the absence of complaint is relevant but not determinative of the issue of causation, citing the decisions of Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548, and AAI Ltd v McGiffen [2016] NSWCA 229.
Of significance, the Panel referred to the urological condition not being mentioned in the claimant’s claim form dated 31 October 2018 and deemed that such an omission was relevant to the causation issue.
The Panel also highlighted that the history recorded by the treating specialist, Dr Doyle, on
8 November 2018 of several days of urgency was not consistent with the immediate onset of symptoms following the motor accident.
The Panel determined that there was no suggestion in the medical reports of there being a spinal injury causing bladder symptoms, referring to the medical reports of Dr O’Neill and Dr Manning.
As to the question of whether there was an injury to the bladder, it was highlighted by the Panel that there was no report of injury to the pelvic ring of bones which are capable of impinging on the bladder causing injury to the bladder muscle. Reference was also made to the cystoscopy and bilateral retrograde pyelograms on 9 April 2019 reported by Dr Doyle, which revealed normal findings.
Further, the Panel considered that the mechanism of injuries sustained in the motor accident did not validate the basis of any bladder injury.
The claimant’s history of psychological symptoms was noted and the Panel considered that the severity of the accident and the associated physical injuries were the likely explanation for the development of an anxiety condition and the onset of urinary symptoms.
The Panel determined that there was no anatomical or pathophysiological cause of the claimant’s incontinence arising from the motor accident.
Critically, the Panel rejected the claimant’s argument that the urodynamic studies constitute objective evidence for the purposes of cl 6.252 of the Guidelines, noting that they record the symptoms, however, do not objectively reveal injury in the bladder or urethra.
Further, it was determined that the claimant’s response to Botox was merely evidence of a response to treatment and did not show objective evidence of injury to the bladder or urethra.
In the absence of objective evidence of injury to the bladder or the urethra within the scope of cl 6.252 of the Guidelines, it was determined that there was no entitlement under the Guidelines to be assessed for whole person impairment based on the severe detrusor instability.
Held: The Medical Assessment Certificate of Assessor Korbel and the Combined Medical Assessment Certificate were revoked, and replacement Certificates were issued.
Lifetime Care and Support Authority of NSW v Foster [2024] NSWPIC 363 (8 July 2024)
Panel: Belinda Cassidy, Alexander Bolton and Susan McTegg
Motor Accidents (Lifetime Care and Support) (LTCS) Act 2006 – eligibility of injured person to participate in LTCS scheme where claimant cyclist injured by collision with rear of parked vehicle – LTCS Act imports definition of motor accident from MAI scheme – parking of vehicle included as use or operation of vehicle in definition – vehicle not required to be in active use.
The claimant cyclist collided with the rear of a parked vehicle on 15 March 2021. He did not recall the accident but believed that an unidentified vehicle may have contributed to the collision. He made a claim for statutory benefits for catastrophic injuries including a traumatic brain injury, facial lacerations and fractures against the Nominal Defendant on 7 April 2021. The claim was allocated to NRMA to manage.
On 28 April 2022, NRMA denied liability on the basis that the accident was caused wholly or mostly by the fault of the claimant. NRMA disputed that an unidentified vehicle caused or contributed to the collision with the parked car.
The parked vehicle was later identified. AAMI was the relevant insurer on risk and the claimant lodged a claim against AAMI on the basis that the collision with AAMI’s vehicle was a motor accident. AAMI rejected the claim on 26 July 2023 on the basis that a claim was on foot against the Nominal Defendant as the relevant insurer and as NRMA had accepted management of the claim.
The claimant applied for interim participation for LTCS on 28 April 2021. His application was rejected on 29 July 2021 on the basis that he did not meet eligibility criteria, specifically because the Authority was “unable to determine that the accident and subsequent injuries were caused by a motor accident”.
The Nominal Defendant disputed the decision as an “interested person” and the Authority referred the dispute to the Commission pursuant to the LTCS Act. The Commission allocated the dispute to a Panel and directions were issued by the Panel to the claimant and the Authority.
The parties agreed that the claimant cycled into the parked utility, that the utility was lawfully parked in the kerbside lane with hazard lights on and had been for several minutes, that the collision caused the claimant’s injuries and that the injuries satisfied the medical criteria for inclusion in the scheme.
In resolving the dispute, the Panel came to the following conclusions:
- Section 1.9 is not a gateway provision for application to the LTCS scheme.
- There is a continuum between active parking of a vehicle and the past parking of a vehicle which is included in the use of a vehicle. The use of the word “parking” does not strongly imply an active process of use and may include vehicles that have been parked and in the process of being parked.
- An incident or accident must involve the use or operation of a vehicle and it must be that incident, accident or set of circumstances that must cause the injury.
- The word “involving” is general and wide in first instance, but is then restricted by requirement of a causal link between injury and the driving, collision, running out of control or a dangerous situation.
- As the incident or accident involved the use or operation of a motor vehicle, there is no separate link required between the use or operation and the injury.
With respect to e., the Panel further commented that if it was incorrect in its finding and that a separate finding had to be made to determine whether the claimant’s injury was caused by a use or operation of the vehicle in isolation, a consequential use was sufficient. It was concluded that the injury “arose out of the parking of the utility vehicle”.
The Panel was therefore satisfied that, on 15 March 2021, the claimant sustained a motor accident injury within the definition in the LTCS Act because he was injured in a motor accident within the definition in the Act.
Held: The claimant injured in motor accident within definition of LTCS Act as he was injured in a motor vehicle accident within meaning of Act and was eligible to participate in the LTCS scheme.
Miscellaneous Claims Assessment
Hidalgo v Allianz Australia Insurance Limited [2024] NSWPIC 356
Member: David Ford
Assessment of contributory negligence for purpose of statutory benefits payable under s 3.38 – claimant passenger on state transit bus – bus driver sharply applied the brakes – claimant not holding onto available handrail.
The claimant injured her left shoulder and clavicle in a motor accident on 1 March 2021. The circumstances were that the claimant alighted the bus, moved down the aisle and picked up her trolley case and placed it in the luggage rack. She could not retract the extended handle of the trolley case with both hands because it was jammed and would not release. The insured driver closed the doors of the bus and commenced to drive the bus forward whilst the claimant still stood at the luggage rack. In a number of seconds, the insured driver sharply applied the bus brakes at a red traffic light and the claimant lost her footing, fell and landed heavily on the bus floor.
The insurer alleged 25% contributory negligence on the part of the claimant for a failure to hold onto the handrail with her left hand whilst retracting the handle of her trolley case. It was argued that the claimant ought to have observed the bus doors close and anticipated that the bus would soon depart.
The claimant requested an internal review of the decision and argued that there should be no deduction for contributory negligence. The insurer affirmed the assessment on internal review and so the claimant commenced proceedings in the Commission.
Member David Ford accepted that the claimant ought to have been aware that the bus would depart imminently when the doors closed and that she could have held onto the rail or called to the bus driver that she had not placed her trolley in the rack adequately. The Member also accepted that the insured driver was merely negligent for taking off before the claimant was seated because, in some circumstances, there may not be seating and the boarding passenger may need (or otherwise choose) to stand, but that the brakes were applied sharply. He assessed the claimant’s contribution at 10%.
Held: The insurer was entitled to reduce statutory benefits by 10% for contributory negligence.
Merit Review
Prendergast v QBE Insurance (Australia) Ltd NSWPICMR 15 (10 July 2024)
Merit Reviewer: Katherine Ruschen
Merit review – dispute about payment of weekly benefits under Division 3.3 – meaning of pre-accident weekly earnings (PAWE) – interpretation of schedule 1 clause 4(1) and 2(a1) – decision set aside.
The claimant lodged a claim for statutory benefits against QBE for injuries sustained in a motor accident on 10 August 2023 (the subject accident). At the time of the subject accident, the claimant was in receipt of weekly payments of statutory benefits from GIO on the basis of a total loss of earnings as a result of a prior motor accident on 8 March 2022 (the first accident).
QBE assessed PAWE to be nil on 18 April 2024, assessed under Schedule 1, clause 4(1). It was argued that the GIO income was excluded from PAWE as it was passive income, not active income, but that it was a source of earnings thereby rendering clause 4(2)(a1) inoperable. As the claimant did not receive any other earnings in the 12 months before the accident, QBE assessed PAWE as nil.
The claimant disputed this decision. It was argued that GIO’s statutory weekly wage payments were passive income and therefore excluded as “earnings”. He sought for PAWE to be assessed under Schedule 1, clause 4(2)(a1) on the basis he did not receive any earnings during the 12-month period before the day of the motor subject accident but had received earnings for at least 26 weeks of the first year of the two-year period before the first accident.
The dispute came before Merit Reviewer Ruschen to determine as a merit review matter. In the first instance, Merit Reviewer Ruschen argued that the insurer’s position was fundamentally flawed because it required the statute to be interpreted in a piecemeal fashion, that is, that such payments are included for assessing PAWE under clause 4(2)(a1) but excluded from PAWE under clause 4(1).
Merit Reviewer Ruschen utilised the definition of “income from personal exertion” in a comparative manner and adopted that definition for the word “earnings” when used in the Act. She stated that the GIO statutory benefit payments were not paid through employment or self-employment, made clear by the fact that the payments were not made for any services rendered, and were therefore passive income.
Accordingly the GIO payments, which were passive income, were excluded from assessment of PAWE under both clause 4(1) and clause (2)(a1). The Merit Reviewer further agreed with the claimant’s position that clause 4(2)(a1) applied to alter the requisite assessment period and calculate PAWE as the average earnings over the first full year of the pre-accident period. PAWE was assessed at $703.89.
Held: Reviewable decision set aside and PAWE re-assessed at $703.89.
