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Welcome to the 121st 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 this week’s edition below.

All references to legislation are to the Motor Accident Injuries Act 2017 (NSW) (the MAI 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.

AAI Limited t/as GIO v Leverrier [2024] NSWPIC 548 (3 October 2024)

Member: John Harris

Where insurer sought to rescind internal review determination that permanent impairment greater than 10% and insurer applied to Commission for assessment of permanent impairment - claimant alleged insurer had no power to change its decision following an internal review and/or the matter be dismissed as there is no available medical evidence to support non-concession - where causation in issue.

The claimant was injured in a motor accident on 21 August 2020 when the insured vehicle collided with his motorcycle. The motor accident resulted in partial amputation of the right middle finger and fracture of the left fifth metacarpal. The insurer accepted liability for payment of damages and statutory benefit entitlements under the MAI Act.

The insurer on 4 October 2023 via internal review conceded that the degree of permanent impairment arising from injuries sustained in the motor accident was greater than 10%. Reference was made to the opinions of Dr Rastogi and Dr Dixon, which assessed permanent impairment as greater than 10%.

On 11 June 2024, the insurer withdrew the concession that impairment was greater than 10% and shortly after, the insurer applied for assessment of permanent impairment in the Commission. The insurer now relied on new treating medical evidence which revealed pre-accident right ankle complaints, which overlapped with an injury allegedly sustained as a result of the accident and had not been disclosed by the claimant previously. The insurer also highlighted the 15-month delay in symptom onset following the accident in support of the argument that the right ankle injury and impairment was not causally related to injuries sustained in the motor accident.

The claimant applied for dismissal of the permanent impairment assessment on 18 July 2024. Member Harris was allocated to determine that application. On 3 October 2024, the Member dismissed the application because a finding that a right foot and ankle injury was caused by the motor accident was not caused by contemporaneous medical evidence, and if right ankle impairment was not included in the assessment of permanent impairment made by any expert, the insurer had a proper basis for submitting that the impairment resulting from the physical injuries was not greater than 10%.

Member Harris rejected the claimant's submission that the insurer's concession meant that a medical dispute could not subsequently exist between the parties. The Member stated that the provision or availability of further relevant information could give rise to a situation where a different decision may be made, similar to the availability of a further medical assessment application under Division 7.5. The Member also noted that the claimant's construction was not flexible and  could lead to greater unfairness given the severe time constraints on the insurer if it were unable to change its decision later on receipt of new relevant information.

The Member further stated that the insurer was not bound by a medico-legal opinion qualified by it if that opinion is affected by an improper history, which undercuts the value of the opinion.

Held: Claimant's application to dismiss the insurer's application for assessment of medical dispute was rejected because sufficient evidence was available to determine that the right ankle injury was not causally related and impairment was not greater than 10%.

View decision

Medical Review

Razi v Allianz Australia Insurance Limited [2024] NSWPICMP 687 (1 October 2024)

Review Panel: Member Terence O’Riain, Medical Assessors Drew Dixon and Michael Couch

Whether C4/5 discectomy and fusion surgery is causally related to injury sustained in motor accident – whether proposed treatment is reasonable and necessary – where claimant has relevant pre-existing injury affecting cervical spine which overlaps with accident-related injury and where claimant required revision surgery – delay in symptom onset and detection of relevant medical diagnosis.

The claimant was injured in a motor accident on 13 May 2019 and made a claim for compensable injury. The insurer accepted liability to pay damages and statutory compensation.

A dispute arose between the parties surrounding a treatment request from the claimant’s specialist for revision surgery of single-level Anterior Cervical Discectomy and Fusion and removal of instrument (treatment request).

The insurer denied the treatment request on the grounds that it was not causally related to the accident nor was it reasonable and necessary treatment in accordance with s 3.24. The insurer placed weight on the fact that the claimant injured his cervical spine at work before the accident on 30 January 2017, which led to cervical arthroplasty at C4/5 with an implant and argued that the accident which occurred nine weeks later, did not cause the alleged cervical spine injury or the resulting need for treatment.

The insurer argued that device failure is a known risk and that the changes were the result of a degenerative condition. The insurer submitted that the workers compensation insurer on risk for the injury on 30 January 2017 should meet the cost of the treatment request, not it as the CTP insurer.

The claimant argued that the requested treatment would not have been needed if the motor accident had not occurred. He argued that the accident was violent and with reference to early complaints of neck and right arm pain that followed the accident, the claimant relied on treating evidence that the subject accident resulted in a significant neck injury which contributed to device failure.

The claimant lodged a dispute with the Commission to determine whether the requested treatment was causally related to the accident and reasonable and necessary, to which Medical Assessor David McGrath affirmed the insurer’s decision on 21 April 2024.

The claimant satisfied the President’s Delegate that there was reasonable suspicion that Assessor McGrath’s assessment contained a material error, and on initial review of the file, determined that the matter would proceed to determination on the papers.

The Panel revoked Assessor McGrath’s Certificate and issued a new Certificate which found that the motor accident aggravated the disc pathology and was relevantly causative of the need for surgery. In its determination, the Panel placed weight on the fact that the accident “happened early in the six months needed following a disc replacement when one would expect that osteointegration was still to settle”. The Panel concurred with the claimant’s submissions regarding accident velocity and symptom onset.

The Panel considered that there was a delay in detection of the failed prosthesis but was satisfied that this delay was still reasonable and did not suggest a break in the chain of causation. It applied the causation principles as set out in the Motor Accident Guidelines 9.2, particularly clause 6.7, and relied on AAI Limited v Phillips [2018] NSWSC 1710 in support of a proposition that the motor accident need only be a material contributor to the need for treatment.

Held: Certificate revoked, and new Certificate issued that the motor accident resulted in prosthetic non-integration and need for revision surgery.

View decision

Merit Review

Bajo v iCare [2024] NSWPICMR 69 (30 September 2024)

Merit Reviewer: Katherine Ruschen

Merit review dispute under s 7.13(4) as to whether the cost of treatment and care is reasonable for the purpose of s 3.24(1) – attendant care services and transport assistance – question of jurisdiction of a merit reviewer and of jurisdiction of a medical assessor.

The claimant was injured in a motor accident on 8 November 2018. On 1 March 2024, the insurer declined part of the claimant’s costs for treatment and care, and on 24 April 2024, the insurer partly varied and partly affirmed this decision following a process of internal review. Disputes existed between the parties as to what was reasonable and necessary costs of treatment and care under s 3.24(1) and the claimant applied for merit review in the Commission.

The claimant sought a determination on three treatment and care requests, for front gate replacement, tree slashing services and additional support worker hours, but at the teleconference on 9 July 2024:

  1. The parties agreed that the front gate replacement was a dispute for medical assessment pursuant to Sch 2(2)(b) because it was a dispute as to whether the front gate replacement was reasonable and necessary or related to the injury caused by the accident.
  2. The parties agreed that of the remaining disputes, there was scope for a medical assessment dispute on reasonableness and necessity of each request, but also merit review matters to resolve as to whether these were “treatment and care for the purposes of section 3.24”.

The Merit Reviewer acknowledged that the merit review jurisdiction in Sch 2(1)(i) could be narrowly construed but that this may require one decision to be fragmented into different parts simply to resolve whether the cost itself was reasonable could be determined as a merit review, that is:

“claimant’s would need to lodge multiple applications … by potentially lodging a miscellaneous claims assessment application to determine whether a service is “treatment and care”, a merit review application about the cost itself (because that is clearly a merit review matter) and a medical assessment application if there is also a dispute about whether the service is reasonable and necessary”.

The Merit Reviewer concluded that this would not achieve the guiding principle contained in s 42 of the Personal Injury Commission Act 2020 (NSW) to facilitate just, quick and cost-effective resolution of real issues.

The Merit Reviewer was satisfied that they had jurisdiction to determine these aspects of the dispute.

Merit Reviewer Ruschen acknowledged that the list of examples in the definition of attendant care services in s 1.4 was not exhaustive and found that the reference to “assistance… with everyday tasks” did clearly limit the potential services to be those that are intrinsically related to everyday tasks.

The claimant argued that the tree slashing services were akin to maintenance costs, which fit comfortably into the definition of treatment and care, but the insurer argued that due to the size of the claimant’s property, these were professional services.

Merit Reviewer Ruschen considered that the first quote, for five days labour using the claimant’s tools to clear low lying branches, was a reasonable cost of treatment and care payable by the insurer because it related to works that the claimant would have otherwise attended to but for his injuries and did in fact attend to before the motor accident.

Merit Reviewer Ruschen determined that the second quote for maintenance of back paddocks beyond the fencing reflected “the need for professional tree slashing and associated work using professional equipment, including a tractor rather than the type of handyman work the claimant carried out with his own equipment”. She determined that this did not fall within the definition of “attendant care services”.

The Merit Reviewer further commented that s 3.24 does not contemplate payment of statutory benefits for maintenance of a second property as a reasonable cost because there must be “some nexus” between the residence and the things a claimant does on a daily or other regular basis.

The claimant argued that a support worker was within the definition of attendant care because it was accepted that the definition includes same, to which the insurer argued that the additional support worker hour request was not treatment and care “reasonably necessary for the claimant’s wellbeing” as it related to assistance with hobbies, going to cafes, Bunnings and other retail outlets for leisure and personal enjoyment.

Merit Reviewer Ruschen agreed that additional carer support hours required for guitar maintenance was a hobby activity which fell outside the definition of attendant care services, but that the provision of services in connection with creating a space for the claimant to do so is akin to setting up a lounge room and thus is an attendant care service. In the alternative, this service was considered to be a home modification required to allow the claimant to undertake usual activities within his home.

For the part of the claim for additional transport assistance to Bunnings, cafes for social outings and retail outlets to be provided in addition to carer support for grocery shopping, the Merit Reviewer questioned why the claimant came to have a regular need for large purchases at Bunnings in light of his injuries and restrictions. She stated that the request for carer assistance during transportation was not because he could not travel independently but so that a carer could assist with loading the claimant’s vehicle with musical equipment to attend social jam sessions. The Merit Reviewer measured the cost of the regular provision of additional support hours against the alternatives available to the claimant, namely online shopping and taxis, and determined that the claim for additional support worker hours in relation to café/social outings and attending retail outlets was not a reasonable cost of treatment and care.

Held: Reviewable decision was set aside. Attendant care services are subject to medical assessment and transport assistance services were not reasonable costs of treatment and care.

View decision

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