Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 128
10 February 2025
Welcome to the 128th 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.
Determination of Review Panel
AAI Limited t/as GIO v Djuric [2025] NSWPICMP 33 (16 January 2025)
Review Panel: Terence O’Riain and Medical Assessors Moloney and Couch
Permanent impairment review: insurer’s application – Certificate of Medical Assessor Herald dated 21 February 2024 assessed 17% whole person impairment (WPI) deducting 5% for pre-accident permanent impairment for DRE II.
The claimant was injured in a motor accident on 25 November 2021. He was the driver of a vehicle passing through an intersection on a green light when a vehicle entered the intersection from the left-hand side and squarely struck the front left corner of the claimant’s vehicle causing the claimant’s car across the road and up onto the lawn of a nearby house.
Relevantly, the claimant was also in a rear end collision on 8 November 2020, which caused his lumbar spine to be symptomatic. The claimant was also noted to be experiencing other conditions before the subject accident.
The Commission referred the claimant’s injuries—to his cervical spine, right shoulder, left shoulder, chest, thoracic spine, lumbar spine surgical scarring, pelvis/hip and bilateral knee—to Assessor Jonathan Herald for assessment on the question of permanent impairment.
By way of Certificate of determination dated 21 February 2024, Assessor Herald determined that the subject accident caused all the referred injuries and ultimately determined permanent impairment as 0% for cervical spine, 0% for chest, 0% for shoulders (after deducting 13% of pre-accident permanent impairment), 0% for thoracic spine, 15% for lumbar spine (after deducting 5% for pre-accident permanent impairment), 0% for pelvis and hip and 0% for the right knee. Overall, permanent impairment was assessed at 17%.
The insurer applied to the President of the Commission for review stating that Medical Assessor Herald’s original assessment was incorrect in a material respect and that he failed to provide a proper path of reasoning for deducting only 5% permanent impairment for the lumbar spine, when the claimant’s spinal condition was symptomatic before the subject accident and that he had undergone the same level fusion in 2009.
The medical assessment was referred to the Review Panel on 9 May 2024.
The Review Panel affirmed that the dispute, in part, is about whether there was enough or the correct kind of information to assess impairment existing before the subject accident, and how that should be deducted from the impairment the accident caused or materially contributed to.
The Review Panel considered it necessary to re-examine the claimant on 14 August 2024 due to other injuries including the shoulders and scarring, which they were of the view may make a material difference to the outcome.
The Review Panel determined that the claimant’s lumbar impairment in DRE IV should be subtracted from the pre-existing lumbar impairment in DRE IV due to the following reasons:
- The Guidelines state at clause 6.145: “Multilevel structural compromise also includes spinal fusion and intervertebral disc replacement”. Spinal fusion accordingly was determined not to equate with “Previous spinal operation without radiculopathy”.
- From Table 6.7 of the Guidelines, and page 102 of AMA4, multilevel structural compromise is automatically assigned to DRE Lumbosacral Category IV, giving 20% WPI. (It was noted that if there is additional radiculopathy, this becomes DRE V, however this did not apply in this case).
- The Review Panel noted that they do not agree with Dr Bodel’s findings that 0% was the appropriate pre-accident impairment because the 2009 fusion by itself is objective evidence of symptoms under clause 6.31 of the Guidelines, whether or not it leads to complaints or further treatment.
- The Review Panel noted that there was a multilevel structural compromise before the subject accident which must be deducted from the subsequent multilevel structural compromise.
- The Review Panel noted that following the 2009 spinal fusion at L5/S1, there was 20% WPI. It was noted that this remained the situation immediately before the 2021 accident.
Accordingly, the Review Panel determined that deducting 20% from 20% gives lumbar spine permanent impairment at 0%.
Ultimately, the Review Panel assessed that the accident caused injuries with a different permanent impairment to that of Medical Assessor Herald’s assessment and Certificate dated 21 February 2024 .
The Panel revoked the earlier Certificate and issued a new Permanent Impairment Certificate.
Held—Different clinical findings to original assessment were noted and therefore the Review Panel revoked and replaced the original medical Certificate . The permanent impairment was not greater than 10%.
Determination of Review Panel
Dougherty v Allianz Australia Insurance Limited [2025] NSWPICMP 40 (20 January 2025)
Review Panel – Member Gary Victor Patterson and Medical Assessors Gibson and Lahz
Medical dispute as to treatment, care, causation, reasonable and necessary and improving recovery.
On 20 June 2020, the claimant attempted to cross the road at the corner of Ocean Avenue and Cross Street, Double Bay. The claimant had only taken a few steps from the footpath when she was struck by the insured vehicle on her left-hand side. The impact of the collision caused the claimant to be thrown into the air. She bounced off the roof of the insured vehicle, then onto the bonnet before landing with such force that she slid approximately three metres across the road. The impact caused the claimant to momentarily lose consciousness.
The insurer approved care services for the claimant’s injuries sustained in the accident. The approval was for two (2) hours per day, five (5) days per week and provided up to 23 August 2023.
On or about 14 April 2023 the claimant’s carer from Reliant Healthcare reported that the claimant’s need for carer services related to injuries and symptoms to the claimant’s arms and hands.
By way of letter dated 21 May 2023, the insurer declined liability for ongoing carer services on the basis that the claimant’s upper limb injuries were not caused by the subject accident. The decision to decline liability for ongoing carer services was confirmed upon internal review.
There was a dispute between the parties about whether:
- any treatment and care provided is reasonable and necessary in the circumstances under Sch 2, s 2(b) of the MAI Act
- any treatment and care relate to an injury caused by the accident under Sch 2, s 2(b) of the MAI Act, and
- treatment or care provided will improve the recovery of the injured person under Sch 2, s 2(c) of the MAI Act.
Each of the above disputes related to injuries to the claimant’s pelvis, cervical spine, lumbar spine, skull fractures, lungs and the claimant’s vertigo. These disputes were referred by the Commission to Medical Assessor Ian Cameron for determination.
In a Certificate of determination dated 1 April 2024, Assessor Cameron determined that ongoing carer services after 25 August 2023 in relation to the pelvis, cervical spine, lumbar spine, skull fractures, lungs and vertigo did not relate to the injury caused by the motor accident, were not reasonable and necessary in the circumstances and would not improve the recovery of the injured person.
The clamant sought a review of Assessor Cameron’s Certificate on the basis that the assessment was incorrect in a material respect within the meaning of s7.26 of the MAI Act.
The claimant’s application was accepted and was referred to the Review Panel.
The Review Panel did not agree with Assessor Cameron’s notion that the claimant’s current limitations were due to conditions that predated the motor accident. It was determined that domestic care post 25 August 2023 was related to and reasonably necessary due to the motor accident injuries although it was noted that an occupational therapist was required to determine the reasonable and necessary weekly care hours.
The Review Panel rejected the insurer’s submissions that the claimant had to bear the onus of proof to establish her need for ongoing care. There was noted to be little evidence in support of the insurer’s contention that the claimant’s ongoing need for care, was not causally related to the accident, but rather due to the normal aging process and the claimant’s pre-exiting conditions.
Held—The Review Panel was satisfied that the claimant had a need for ongoing care and services after 25 August 2023, in relation to all injuries referred for assessment and satisfied as such that care was reasonable, necessary and likely to improve recovery of the injured person. The original Certificate of Assessor Cameron was revoked and a new Certificate was issued.
Determination of Review Panel
Insurance Australia Limited t/as NRMA Insurance v Deering [2025] NSWPICMP 41 (21 January 2025)
Review Panel – Member Jeremy Lum and Medical Assessors Gibson and Home
Threshold injury dispute: review panel assessment on the papers – pre-existing lumbar spine complaints requiring chiropractic treatment.
The claimant was involved in a motor accident on 8 August 2023 when he was driving his car along a road when a vehicle on his left failed to give way at a stop sign and pulled out in front of him causing a T-bone collision.
Medical disputes arose about whether the claimant’s injuries were threshold or non-threshold injuries and whether requested treatment and care was causally related to the motor accident and reasonable and necessary. The matter was referred to the Commission for medical assessment.
On 30 August 2024, Medical Assessor Truskett issued a Certificate of assessment finding the claimant’s lumbar spine injury caused by the accident but was not a threshold injury. Assessor Truskett also found the requested treatment and care not to be causally related to the motor accident and was not reasonable and necessary.
The insurer lodged an application with the Commission seeking review of Assessor Truskett’s decision. This application was accepted and a Review Panel was convened to conduct the review.
The Review Panel noted that the insurer’s submissions set out consultation entries at Rouse Hill Chiropractic dated 7 February 2023, six months prior to the subject accident, outlining symptoms and treatment for the T5/6, T4/5 and L4/L5 areas for which range of motion was reduced and irritation of lower back was provided.
The Review Panel noted that the claimant’s submissions outlined that the claimant sustained or aggravated a lumbar disc protrusion and ligament ruptures as a result of the motor accident.
The Review Panel determined that on the balance of probabilities the annulus fissure at L4/L5 was caused or materially contributed to by the subject accident. Further, in the event that the annulus fissure at L4/L5 was present before the subject accident (for which the Review Panel did not have radiological evidence) the Review Panel was satisfied again on the balance of probabilities that the subject accident aggravated the pre-existing condition.
The Review Panel confirmed that the annulus fissure at L4/L5 causing the claimant back pain was a rupture of ligaments or cartilage and was therefore excluded from the definition of soft tissue injury.
Held—Medical Assessor Truskett’s determination of non-threshold injuries was affirmed and the Review Panel certified that the injury referred for assessment and caused by the accident, namely the lumbar spine injury, was not a threshold injury.
Determination of Review Panel
Insurance Australia Limited t/as NRMA Insurance v Zammit [2025] NSWPICMP 44 (22 January 2025)
Review Panel – Member Gary Victor Patterson and Medical Assessors Roberts and Chew
Whole person impairment dispute (WPI), past history of spinal complaints following two prior motor accidents.
The claimant had a past history of spinal complaints following two prior motor accidents in June and July 2016. In both accidents the claimant’s vehicle was hit from behind. Although the claimant’s thoracic and lower back pain had largely settled, the claimant continued to experience neck pain in the period leading up to the subject accident. There were also occasional sensory symptoms in his right hand.
The subject accident occurred on 19 October 2018 at Tuggerah. The claimant was the unaccompanied driver of the vehicle and he was slowly approaching a traffic light or roundabout. The claimant recalled being thrown back and forwards in his seatbelt and experienced immediate pain in his left hip as well as an increased awareness of discomfort in his neck.
There was a dispute between the parties regarding the degree of permanent impairment under s 4.13 and Sch 2 s 2(a) of the MAI Act. The claimant was referred for assessment by Medical Assessor Aman Suman who determined that the claimant was suffering from PTSD as per DSM-5 diagnostic criteria. There was no apportionment made for pre-existing or subsequent impairment and no adjustment for treatment effects. A WPI of 17% was assessed and it was determined that the claimant’s injuries gave rise to a permanent impairment of greater than 10%.
The insurer sought a review of Assessor Suman’s Certificate on the basis that the assessment was incorrect in a number of material respects namely, that the Assessor failed to consider all relevant medical evidence, accepted incorrect factual matters in making his determination, failed to adequately address Criteria A of the DSM-5 diagnostic criteria for PTSD, failed to address relevant material relating to path of reasoning and failed to deduct the claimant’s pre-existing psychiatric impairment.
The application was accepted, and a Review Panel was convened to conduct a review.
The Review Panel determined that although the claimant remained on treatment, his account did not reflect improvement in his condition, nor did he ascribe any change in impairment to the treatment. The Panel found that there was no treatment effect.
It was noted that the Review Panel was not required to choose between competing medical opinions and was required to form its own opinion. Ultimately, the Review Panel came to a different conclusion to that of Assessor Suman as recorded in the PIRS in that the rating of the Review Panel on the Adaptation category was slightly higher than Assessor Suman’s assessment.
The Review Panel concluded that the Certificate issued by Assessor Suman on 13 November 2022 should be revoked and a new Certificate was issued determining that the claimant’s injuries of persistent response to trauma with PTSD like symptoms was in accordance with the criteria stipulated in DSM 5 -TR and persistent depressive disorder with major depressive episode gave rise to a permanent impairment of 19%.
Held— Assessor Suman’s original Certificate was revoked, and a new Certificate was issued by the Review Panel certifying greater than 10% WPI.
