Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 115
29 August 2024
Welcome to the 115th 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) (the 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.
Settlement approval
AAI Limited t/as GIO v Vidler [2024] NSWPIC 430 (12 August 2024)
Member: Elizabeth Medland
Settlement approval and assessment of claim for damages made in accordance with s 7.36 of the Act – claimant self-represented male retiree and award for non-economic loss damages only – settlement approved.
The claimant sustained significant leg injuries when a utility vehicle rear-ended his motorcycle in a motor accident on 1 December 2021. The insurer accepted liability for statutory benefits and for common law damages and conceded that the claimant was entitled to non-economic loss damages as his degree of permanent impairment was greater than 10%.
The claimant was self-represented.
The claimant was retired at the time of the motor accident. The insurer did not pay weekly statutory benefits on the claim and after gathering evidence, including requesting particulars from the claimant, the insurer made an offer of settlement via email, and telephone, on 2 July 2024 in the amount of $240,000 for non-economic loss. No allowance for economic loss was made.
The claimant accepted the offer. The insurer subsequently lodged an application with the Commission for settlement approval pursuant to s 6.23(2)(b) of the Act. It was allocated to Member Medland to determine.
The Member took into account that the claimant was 66 years old, was involved in a significant motor accident which resulted in physical and psychological injuries. She made note of the claimant’s evidence that he could no longer mow his lawns, ride his motorbike due to a combination of pain and fear avoidance behaviour and had at least mild psychological symptoms.
The Member agreed that an award of $240,000 for non-economic loss damages was fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission and approved the proposed settlement pursuant to s 6.23(3).
Held: Settlement approved.
Medical Review Panel
Kearns v Allianz Australia Insurance Limited [2024] NSWPICMP 559 (12 August 2024)
Member: Belinda Cassidy, Medical Assessor David Gorman and Medical Assessor Geoffrey Stubbs
Medical review of decision by single medical assessor that three level cervical spine surgery were not related to injuries sustained in accident and not reasonable and necessary in the circumstances – where evidence of pre-accident symptoms of neck pain not disclosed.
The claimant sustained injuries to the neck in a motor accident on 11 March 2021 when her vehicle was struck by a reversing vehicle.
A medical dispute regarding cervical spine surgery, namely proposed posterior laminectomy and fusion at C4-C7 and three-level anterior cervical discectomy and fusion (ACDF) (the requested treatment), arose between the parties in connection with the claim for statutory benefits.
The insurer’s position in terms of causation was that the claimant sustained a soft tissue whiplash injury which aggravated her pre-existing neck condition. However, the insurer found that “surgery should not be attempted in the absence of conservative measures and that structured physical therapy should be attempted first”.
The claimant argued that while there were complaints of neck pain before the accident, they did not require extensive treatment and her present radiculopathy was not a continuation of these previous complaints. She argued that but for the accident, the need for surgery would not have arisen.
The claimant referred the dispute to the Commission for assessment.
Medical Assessor Anil Nair affirmed the insurer’s decision on 17 November 2023 in a determination that the surgery was not reasonable and necessary in the circumstances. The Assessor made comments regarding consistency as there was 2014 CT scans and facet joint injections and diagnosed cervical degenerative disc disease present before the accident. The Assessor said that the treatment was not reasonable and necessary but provided limited reasons for his finding.
The claimant satisfied the President’s Delegate that there was reasonable cause to suspect a material error in the assessment and allowed the claimant’s review application. Her grounds for review included that the Assessor relied on an inaccurate history, that he applied the wrong test for causation and that the Assessor’s reasons were insufficient. The Review Panel convened and determined the review application after conducting a telehealth consultation with the claimant to clarify the history and without a physical re-examination of the claimant.
The Panel acknowledged that there was evidence of neck pain in 2014, 2015 and 2018 although there was no evidence that it was investigated or treated with spinal injections (as suggested by Medical Assessor Nair).
In regard to causation of injury, the Panel found that the claimant had “a somewhat vulnerable spine, more susceptible to injury than the general population”, but that the motor accident caused a soft tissue injury to her cervical spine on a background of significant degenerative changes which were not, at the time of the accident, symptomatic.
In regard to causation of treatment, the Panel stated that proceedings concerning treatment disputes do not concern the assessment of permanent impairment therefore the provisions about causation of impairment in the AMA4 Guides and Chapter 6 of the Motor Accident Guidelines (the Guidelines) do not determine the issue at hand.
The Panel applied the reasoning in AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 in applying a test of causation that the injury must make a material contribution to the need for surgery. It considered the intermittent history of neck pain in medical records to be “exacerbations of the underlying degenerative condition which did not persist”, compared to the post-accident complaints which demonstrated “a significant aggravation of the underlying degenerative condition which has continued.”
The Panel was satisfied that the accident has made a material contribution to the need for the surgery and that but for the accident, the claimant would not have needed the treatment requested. The Panel further dismissed the insurer’s argument that the treatment was not reasonable because conservative measures should have been exhausted. Assessor Nair’s Certificate was revoked.
Held: The motor accident caused significant aggravation of underlying degenerative condition which persisted despite conservative treatment. Surgery was reasonable and necessary in the circumstances and the Medical Assessment Certificate was revoked.
Singh v QBE Insurance (Australia) Limited [2024] NSWPICMP 555 (9 August 2024)
Member: Elizabeth Medland and Medical Assessors Shane Maloney and Margaret Gibson
Medical review of treatment and permanent impairment dispute - relevance of pre-accident history of injury; evidence of inconsistencies in presentation; where Assessor adopted analogy for assessment of right shoulder impairment due to inconsistency in range of motion measurement - Certificate revoked.
The claimant was injured in a motor accident on 8 October 2020 as a front seat passenger of a vehicle, which was struck by a truck in a T-bone collision. The insurer on risk accepted liability to pay statutory benefits and damages in accordance with the Act.
A dispute arose between the parties regarding whether the "degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%" and whether imaging of the right shoulder and cervical spine was reasonable and necessary in the circumstances and whether it related to injuries sustained in the accident. The disputes were allocated to Medical Assessor Alan Home to resolve.
On 7 December 2023, Assessor Home issued a Certificate which determined that the claimant:
- Sustained soft tissue injuries to her right wrist, knees, cervical and lumbar spine in the accident. Of these, the only body part which attracted assessable impairment was that of the lumbar spine which was DRE Il resulting in 5% Whole Person Impairment (WPI).
- Aggravated a pre-existing right shoulder injury in the accident. Assessor Home concluded that range of motion was not a reliable measure of impairment due to internal inconsistencies. He assessed by way of analogy in accordance with cl 6.24 of the Guidelines, stating that "due to the known pathology (healed rotator cuff repair) there could be an impairment at the right shoulder akin to the presence of mild AC joint synovial hypertrophy." He assessed 2% WPI for the right shoulder.
- Regarding the MRI for right shoulder and cervical spine, that the treatment related to the injury caused by the accident, but because there had been no change in symptoms since prior imaging funded by the insurer, that further radiological scans were not reasonable or necessary.
The claimant was also assessed by Medical Assessor John Garvey who issued a Certificate dated 22 January 2024 which certified a 2% due to an injury of fatty and deranged liver function tests. A combined Certificate was issued on 30 January 2024 which assessed total combined impairment of 9% WPI.
The claimant applied to the Commission for review of the assessment of Assessor Home. She satisfied the President’s Delegate that there was a reasonable suspicion of material error.
The predominant issue in dispute between the parties was causation of the right shoulder injury, the claimant having undergone a right shoulder rotator cuff repair, bursectomy, acromioplasty and biceps tenotomy six months before the accident on 19 March 2019. The claimant argued that notwithstanding his history, she was making slow steady gains in pain and function and that the motor accident caused further tearing of muscle fibres and a substantial aggravation of pain. She argued that the Assessor failed to engage with her evidence in this regard and that as a result, the Assessor’s conclusion that her presentation on assessment was inconsistent (and thus his assessment by analogy) was incorrect. She also argued that the Assessor failed to disclose his path of reasoning and failed to provide adequate reasons. The insurer disputed the review.
The Panel adopted the reasoning and assessment of Assessor Home in respect of the cervical spine and left knee. Interestingly, the claimant demonstrated a significant difference in right wrist range of motion on re-examination when compared to Assessor Home's examination six months prior. The Panel considered that due to the range of movement variability, the most appropriate method of assessing impairment would be by analogy. The right wrist attracted 4% WPI using this method, compared to Assessor Home’s 0% assessment for the right wrist.
In respect of the right shoulder, the Panel acknowledged that the claimant's subjective reporting that prior to the accident she had recovered and had a normal range of movement but considered this inconsistent with the medical documentation. The claimant could not explain the inconsistency when put to her and so the Panel determined that range of movement would not be an appropriate method to assess impairment. Impairment was assessed by analogy at 2%, consistent with Assessor Home’s reasoning and methodology.
Regarding the treatment and care determination, the Panel upheld Assessor Home's decision that the treatment was related to injuries sustained in the accident but that it was not indicated clinically and was therefore not reasonable and necessary in the circumstances.
Held: The Panel revoked Assessor Home's Certificate due to the difference in assessment of WPI and issued a new Certificate certifying 6% WPI, being 4% for the right wrist and 2% for the right shoulder. A new combined Certificate was also issued.
