Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 122
31 October 2024Welcome to the 122nd 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 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.
Insurance Australia Limited t/as NRMA Insurance v Al-Khameesi [2024] NSWPICMP 699
(8 October 2024)
Review Panel: Member Ray Plibersek, Assessor Paul Curtin and Assessor Michael Couch
Causation of injury - whether injury to the claimant’s tooth was caused by the subject motor accident – claimant was involved in a prior motor accident where he also reported suffering a broken tooth.
On 18 October 2021, the claimant was driving a car on the Hume Highway that was rear ended by the insured vehicle. The claimant asserted that his face hit the steering wheel as a result of the impact of the collision.
The claimant subsequently lodged a personal injury claim with NRMA Insurance.
On 9 February 2022, the insurer declined the claim for statutory benefits after 26 weeks from the date of the motor accident.
The claimant sought an internal review of the insurer’s decision. The outcome of the internal review was that the threshold injury determination was confirmed.
The claimant sought a medical assessment of his broken tooth, which was conducted by Assessor Nichols. Ultimately, Assessor Nichols assessed that the damage to tooth 13 was caused by the motor accident and a non-threshold injury for the purposes of the MAI Act. In his reasoning, Assessor Nichols referred to there being no pre motor accident dental records.
An application for review of Assessor Nichols’s medical assessment was lodged by the Insurer. The President’s delegate was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the medical assessment to the Review Panel for determination. In the reasons of the President’s delegate, she accepted the submission that Assessor Nichols failed to consider relevant material and/or failed to address relevant material pertaining to a pre-existing dental injury in the reasons of the Certificate.
Relevantly, the claimant was involved in a prior motor accident on 28 June 2020 when he was the driver of a vehicle that struck a power pole.
The claimant was re-examined by Assessor Curtin on behalf of the Review Panel on 2 August 2024. Upon examination, Assessor Curtin noted that to the naked eye, there was no abnormality. However, magnification revealed a small crack in the enamel which was consistent with the diagnosis of an Ellis Class I dental injury.
The Review Panel determined that the claimant did not injure or damage tooth 13 in the subject accident on 18 October 2021, especially noting the following in its reasoning:
- There is evidence recorded by the claimant’s GP Dr Saad Haloob that he reported sustaining a broken tooth in the previous motor accident on 28 June 2020.
- In a Certificate of Capacity dated 4 August 2020, Dr Haloob made a diagnosis including that the claimant had bleeding gums and pain.
- In a report dated 24 December 2021, the claimant provided Benchmark Rehabilitation with a detailed list and description of his injuries arising from the subject motor accident. There was no mention of a broken tooth or any tooth injury.
- A Certificate of Capacity dated 29 October 2021 completed by Dr Haloob, approximately 11 days following the subject accident, did not refer to a broken or injured tooth.
- The first reference to the claimant complaining of a broken tooth following the subject accident is noted in a Certificate of Capacity dated 1 November 2021 by Dr Haloob, approximately two weeks following the subject accident.
- There is a lack of contemporaneous records revealing any complaint of a broken tooth until approximately two weeks following the subject accident.
Held: The subject accident did not cause an Ellis Class I fracture to the Claimant’s tooth 13. The Certificate of Assessor Nichols is revoked and a replacement certificate is issued.
AAI Limited t/as AAMI v Jones [2024] NSWPICMP 713 (15 October 2024)
Member Gary Patterson, Medical Assessor Shane Moloney and Medical Assessor Sophia Lahz
Medical review of a threshold injury dispute – significant high speed impact causing the claimant’s vehicle to spin and come to a halt some 100 metres from the point of impact – causation of shoulder injury in dispute – where Medical Assessor failed to consider pre-accident medical documentation and radiological scans.
The claimant was the driver of a motor vehicle that was struck by the insured vehicle at high speed in a t-bone collision. The collision was severe and caused the claimant’s vehicle to spin around and come to a halt 100 metres away from the location of the accident. Airbags in the claimant’s vehicle deployed.
Liability for the statutory benefits claim beyond 26 weeks was denied on the basis that the insurer considered that the claimant had sustained threshold injuries. The claimant lodged a threshold injury dispute in the Commission and Medical Assessor Ian Cameron determined on 11 August 2023 that the claimant sustained more than a threshold injury in the accident. Specifically, Assessor Cameron determined that the claimant sustained bilateral supraspinatus tendon tears in the motor accident.
The insurer satisfied the President’s Delegate that there was reasonable suspicion of a material error in the assessment of Assessor Cameron. The particulars of the application were that Medical Assessor Cameron failed to consider the relevant material such as bilateral shoulder ultrasounds taken before the accident which demonstrated full thickness partial width tears of the supraspinatus tendons. In the very least, the insurer argued that the Medical Assessor failed to provide sufficient reasons, in light of the medical controversy and pre-accident evidence to support his findings of causation of these injuries.
The claimant argued that the reasoning provided by Assessor Cameron was sufficient, but in the alternative, argued that the motor accident caused aggravation of the pre-existing shoulder conditions.
Relevant to this determination was the comment of the Panel in regard to the aggravation, where it was said that “ultrasonography is variable with different machines and testers likely to produce differing results. A difference of one millimetre falls within the range of an unchanged tear in the Panel’s opinion.”
The Panel revoked Assessor Cameron’s certificate and issued a new determination that the changes on the scans were not traumatic in origin, were more likely to be degenerative, and not caused by the accident. It was otherwise determined that any soft tissue shoulder injury that was attributable to the accident did not cause a partial rupture of ligaments. The claimant sustained threshold injuries only.
Held: The Panel was not satisfied that the scans showed any actual or clinically significant change in shoulder pathology caused by the accident, the certificate was revoked, and a new certificate issued resolving the threshold injury dispute in the insurer’s favour.
QBE Insurance (Australia) v Galinato [2024] NSWPICMP 711 (11 October 2024)
Member Gary Patterson, Medical Assessor Margaret Gibson and Medical Assessor David McGrath
Medical review of a treatment and care dispute – where there is a relevant history of pre-accident cervical spine surgery and multiple previous motor accidents – causation of injury and need for treatment in dispute.
The claimant was injured in a motor accident on 3 December 2020. Emergency services were not called to the scene. Approximately nine days later, the claimant developed cervical, left shoulder and left arm pain and attended for medical treatment.
Relevantly, the claimant injured her cervical spine in two previous rear-end motor vehicle collisions and underwent C5/C6 anterior cervical discectomy and fusion in April 2017. The evidence was that her complaints had resolved and that she was not symptomatic when the subject accident occurred.
A dispute arose between the parties regarding the claimant’s treatment and care request for a consultation for neurosurgical review with a view to undergoing further cervical surgery. The insurer argued that the consultation was for the claimant’s pre-existing condition which arose due to the 2016 accident and resulted in her undergoing a cervical fusion in 2017.
On 31 October 2023, Medical Assessor Rapaport determined that the consultation with a neurologist/neurosurgeon related to the injury caused by the motor accident was a reasonable and necessary treatment. He stated that the claimant’s radicular symptoms were not present prior to the motor accident and that there was a nexus between the trauma inflicted as a result of the subject accident and those radicular symptoms which gave rise to the treatment need.
The claimant satisfied the President’s Delegate that there was reasonable suspicion of a material error in the assessment of Assessor Rapaport. The particulars of the application were that Medical Assessor Rapaport did not engage with the insurer’s submissions regarding the severity of the accident and how the claimant’s complaints were not consistent with the medical evidence, that the medical assessor did not address or put to the claimant any observed inconsistency and that this led to the material error and a denial of procedural fairness. The claimant argued that there was no evidence of symptomatic impairment before the motor accident and that the pre-accident surgery resulted in a full resolution of symptoms until the claimant was injured in the subject accident.
The Panel did not observe any medical evidence of ongoing neck complaints after the surgery in 2017 to the motor accident. The Panel acknowledged the nine-day delay in neck symptom onset after the accident but accepted the claimant’s suggestion this could reasonably relate to her pre-occupation with her lower back pain in the initial period. The Panel rejected the insurer’s reasoning and found no evidence that the consultation “related to any other than the motor accident”.
Overall, the Panel was satisfied that the aggravated the claimant’s previously asymptomatic underlying cervical condition, giving rise to the various symptoms that were investigated following the accident and specifically, for a neurosurgical consultation.
Held: The Panel was satisfied that the motor accident was causal and that the requested specialist consultation was both reasonable and necessary; the Medical Assessment Certificate confirmed.
Settlement Approval
Allianz Australia Insurance Limited v Dizon [2024] NSWPIC 561 (10 October 2024)
Member Shana Radnan
Settlement approval under section 6.23 – Compensation to Relatives – where the Deceased was beyond retirement age at the time of death, but financial dependency damages awarded in the circumstances to a retirement age of 71 years – where other medical conditions impacted upon life expectancy.
The claimant is the husband of a woman (‘the Deceased’) who was killed in a motor accident on 11 November 2022. As the Deceased entered a car driven by her colleague, the vehicle reversed and trapped her foot under the front wheel. She fell, struck her head and passed away as a result of the fall.
At the time of her death, the Deceased was aged 69 years and in full-time paid employment as a process worker. She was also the primary carer for the claimant who is 78 years old and suffers from a number of medical conditions such as chronic kidney disease, cardiac conditions, diabetes and prostate cancer.
The claimant made a compensation to relatives claim for loss of financial dependency and loss of services. On 9 September 2024, the parties agreed to resolve the matter for $271,467.21 and broken down as follows:
- Past financial dependency: $669.58 for 95 weeks amounting to $70,607.21 inclusive of superannuation.
- Future financial dependency: $669.58 for a further two years plus superannuation losses in the sum of $65,702.
- Past loss of services: 10 hours per week for 95 weeks at $35 per hour = $33,250.
- Future loss of services: 10 hours per week for the current life expectancy of 10 years = $141,050 less vicissitudes of 30% due to pre-existing medical conditions including terminal cancer currently treated with medication.
As the claimant was not legally represented, the settlement approval was allocated to Member Radnan under sections 6.23(2) and 6.23(3).
At the preliminary teleconference, Member Radnan directed the parties to obtain an occupational therapist report to inform the claimant’s care needs as a 79-year-old male who required considerable assistance.
The Member relied heavily on this report when considering whether the proposed settlement was just, fair and reasonable and within the range of likely potential damages assessments for the claim were it to be assessed by an Assessor. This evidence was critical for the Member in determining whether the award for loss of services was sufficient for the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.
Relevant to the assessment of loss of financial services, the Member relied on a letter from the Deceased’s employer which testified that the Deceased had not indicated when she intended to retire, and that employment would be available to her notwithstanding that she had passed the retirement age.
Held: Settlement approved.