Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 129
19 February 2025
Welcome to the 129th 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 Medical Review Panel
Tasseli v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 49 (28 January 2025)
Panel: Member Susan McTegg, Medical Assessors Shane Moloney and David Gorman
Medical review assessment of a threshold injury dispute – consent to have review proceedings limited to specific issue in dispute – whether surgery to remove pre-existing right little finger metacarpal plate and screws caused by accident – whether metacarpal plate and screws falls into definition of ‘artificial aid’: damage to aid constitutes injury in accordance with s 1.6.
The claimant made a claim for statutory benefits following personal injuries sustained in a motor accident on 22 January 2023. The insurer determined on 18 May 2023 that the claimant sustained a threshold injury in the motor accident and denied liability for statutory benefits beyond 26 weeks. The decision made was under s 3.28 as the motor accident occurred before the legislation amended the initial entitlement period to 52 weeks.
A dispute arose between the parties regarding threshold injury, and following the internal review process, the claimant applied to the Commission for medical assessment under Sch 2, cl 2. The claimant sought a determination that the injuries sustained as a result of the motor accident were not threshold injuries.
In a Certificate dated 28 June 2024 Medical Assessor Kuru determined that the claimant sustained threshold injuries in the accident. The injuries referred for assessment to Medical Assessor Kuru were the injuries as described in his Certificate, including as relevant, a right hand injury, namely aggravation and acceleration of degenerative changes, pain and restricted movement, requirement to undergo surgery for the right fifth metacarpal plate and screw removal and extensor tenolysis.
Medical Assessor Kuru stated that after the motor accident, the claimant attended hospital with right hand pain, and his surgeon who performed ORIF for a right fifth metacarpal fracture before the motor accident, noted that the plate was loose and subsequently removed it after the motor accident. The claimant applied to have the medical assessment referred to a review panel on the grounds of material error. Particulars of the application included that the Assessor failed to consider whether surgery was a non-threshold injury, whether loosening of a metacarpal plate was a non-threshold injury and whether the surgical scarring was a non-threshold injury. The application was accepted by the President’s Delegate and the Review Panel was convened.
The parties agreed for the Panel to limit the review proceedings to the assessment of the right hand, that is, that injuries to the cervical spine, thoracic spine, lumbar spine, left shoulder, chest, abdomen, and right knee were threshold injuries.
The claimant relied on Saleh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 14 to advance an argument that surgery consequential to a claimant’s injury constituted a non-threshold injury where it involved damage to the claimant’s nerves, ligaments, menisci, or cartilage. He alternatively argued that loosening of the previously installed metacarpal plate was an injury itself, noting that s 1.4 defines an injury as including “damage to artificial members… other aids” and on his submission, a metacarpal plate falls into the definition of an “artificial aid”. A third alternative argument was advanced that the skin is an organ, and that surgical scarring was not a threshold injury.
The Panel ultimately overturned Assessor Kuru’s determination and certified the right hand injury was not a threshold injury because it accepted that the motor accident did cause or contribute to loosening the attachment of the plate/screws to the bone, and that accordingly, this caused an alteration in bone structure of the fifth metacarpal bone.
Alternatively, the Panel stated that the metacarpal plate fell within the definition of “other aids” as it was something surgically constructed to enable the effects of the earlier injury to the fifth metacarpal to be overcome and that consequently, damage to that aid is a personal or bodily injury under s 1.6.
It was not necessary for the Panel to determine whether the consequential surgery or subsequent surgical scarring could be a personal or bodily injury as this resolved the dispute. However, the Panel noted the comments of Stern JA in Mandoukas v Allianz Australia Insurance Limited [2024] NSWCA 71, particularly the comments regarding surgery creating a “different” injury from the injury sustained at the time of the motor accident.
Held—The Certificate was revoked, and new Certificate issued: alteration in bone structure of the fifth metacarpal bone caused by loosening of the screws and plate was a non-threshold injury; in the alternative injury by reason of damage to an aid was not a soft tissue injury and would constitute a non-threshold injury.
Merit Review
Kozlov v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 2 (28 January 2025)
Merit Reviewer: Susan McTegg
Assessment of statutory benefits payable under Division 3.3 – whether the claimant is an “earner” as defined Sch 1, cl 2(a) – assessment of pre-accident weekly earnings (PAWE) where claimant not employed for 52 weeks prior to the motor accident: application of Sch 1 cl 4(2) for assessment of PAWE – discrepancies and doctored financial evidence.
The claimant brought a claim for statutory benefits for injuries sustained as a pedestrian in a motor accident on 1 March 2024.
A dispute arose between the parties regarding whether the claimant was an earner for the purposes of the MAI Act, and if he was determined an earner, whether he suffered a loss of earnings. On 21 May 2024 the insurer declined the claimants request for an internal review pursuant to cl 7.21 of the Guidelines because the information reasonably requested by the insurer to conduct the internal review was not provided by the claimant.
The claimant lodged an application for merit review with the Commission under Sch 2(1)(a). It was allocated to Merit Reviewer McTegg to determine.
Relevantly, the claimant’s evidence was that he was employed at 187 Kent Street Pty Ltd as a manager from 1 September 2022 to 31 December 2022 and from 1 April 2023 to 30 June 2023. His evidence was that he left 187 Kent Street Pty Ltd with the intention of starting his own business but could not secure work and began job seeking in February 2024. He had discussions with potential employers in February 2024, but nothing eventuated. He was offered a job in April 2024 but could not accept same due to the injuries sustained in the motor accident on 1 March 2024.
The claimant relied on AFU v Allianz (Merit Review) [2019] NSWSIRADRS 147 where a claimant injured in a motor vehicle accident on 5 April 2019 had not worked since December 2018 on the basis she had taken a break from work with the intention of re-entering the workforce after the school holidays. He submitted that he had also not retired permanently from all employment, his work qualified him as an earner within the definition of the MAI Act and he was making efforts to find employment at the time of the accident. The insurer conceded that the payslips from 187 Kent Street Pty Ltd for the period 1 April 2023 to 30 June satisfied Sch1 cl 2(a)(ii) but argued that insufficient information was available to determine whether the claimant was likely to suffer a loss in income from personal exertion.
A number of teleconferences were held. The claimant’s solicitor filed a notice of ceasing to act and the claimant proceeded as a self-represented claimant. The claimant failed to attend teleconferences; advised of delays obtaining bank statements and ultimately lodged bank statements that were called into question. Under Directions for Production issued by the Division Head, the financial institutions could not verify the documentation produced by the claimant. He then became non-responsive to the Commission.
The Merit Reviewer went on to resolve the dispute as to whether the claimant was an earner for the purposes of Sch 1 cl 2(a)(ii), that is, whether he had been employed during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident. Due to the claimant’s production of doctored payslips, the Merit Reviewer withdrew her preliminary view that the claimant “had not retired permanently from all employment”, stating that “whilst I consider permanent retirement from all employment to be unlikely where he is only 30 years of age his evidence is so unreliable and his credit so damaged that I am unable to give the evidence contained in his statement any credence.” Absent of clear evidence of earnings, the Merit Reviewer determined that there was insufficient evidence that the claimant had suffered a total or partial loss of earnings as a result of the injury caused by the accident and he was not an earner.
Held—The decision was upheld. The claimant has no entitlement to statutory benefits pursuant to ss 3.6 or 3.7 of the MAI Act.
