Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 130
27 February 2025
Welcome to the 130th 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
Benderovska v AAI Limited t/as GIO [2025] NSWPICMP 50 (28 January 2025)
Panel – Member Jeremy Lum, Medical Assessors Christopher Canaris and Matthew Jones
The claimant was involved in a motor accident on 29 November 2017 when she was walking into the warehouse at her place of employment and was hit by a forklift on a pedestrian walkway.
The claimant alleged that as a result of the motor accident, she sustained physical injuries to her head (including brain injury), cervical spine, lumbar spine, right shoulder, right hip, right knee, right foot, right ankle, and psychiatric injuries.
A medical dispute arose about whether the degree of the claimant’s permanent impairment was greater than 10% whole person impairment (WPI).
On 22 April 2023, Medical Assessor Ian Cameron found the claimant sustained physical injuries as a result of the motor accident and assessed her injuries at 0% WPI.
On 25 August 2023, Medical Assessor Yu Tang Shen found the claimant sustained psychiatric injuries as a result of the motor accident and assessed her at 7% WPI.
The claimant lodged an application with the Commission seeking review of the decision of Assessor Shen dated 24 August 2023.
The claimant reported to Assessor Shen that following the subject accident she claimant’s employer asked her whether they could use the footage of the accident in an Occupational Health and Safety video and name it “Dumb ways to die”. The claimant alleged that this worsened her symptoms and she subsequently left work.
The Review Panel undertook a re-examination of the claimant. Upon examination, the Review Panel determined that the claimant had pre-existing psychological injuries including anxiety and depression for which she had been prescribed antidepressants. The claimant denied any recollection of this.
The Review Panel noted it has been seven years since her injuries and she had reported no change in them overtime. It was noted that the claimant was essentially receiving no treatment and has had very little in the way of mental health since the accident. The Review Panel stated the claimant’s presentation was not consistent with a diagnosis of PTSD because objective evidence such as CCTV footage demonstrated that the accident did not conform to a Criterion A event as per the DSM-5-TR Criteria.
The Review Panel noted that the claimant satisfied the diagnostic criteria for Somatic Symptom Disorder and an Adjustment Disorder under DSM-5-TR caused by the motor accident. The Review Panel determined that the Somatic Symptom Disorder was ongoing but noted that it was not assessable as a permanent impairment using the PIRS.
The Review Panel also noted the claimant’s reported narrative and presentation at assessment was consistent with a diagnosis of an ongoing Persistent Depressive Disorder (Dysthymia) with anxious distress.
The Review Panel’s opinion was that the claimant’s ongoing Persistent Depressive Disorder developed following the subject accident where she was informed of the CCTV footage being utilised as a training video to other employees. Other factors were noted to contribute to her Persistent Depressive Disorder including perception of her workplace as uncaring, unsupportive, and unwilling to call an ambulance in relation to her accident. Applying the principles in SGIC v Oakley regarding apportionment between consecutive tortfeasors, the Review Panel accepted that this further psychiatric illness would not have occurred had the claimant not been injured in the motor accident and as such, this further psychiatric illness was treated as caused by the motor accident.
The Review Panel assessed the claimant’s overall WPI at 22% of which 4% had arisen in the months following the motor accident with a further 18% impairment arising from the subsequent training video incident. Ultimately, the claimant’s WPI was determined to be greater than 10%. The Review Panel’s impairment value findings were similar to that of Medical Assessor Shen’s but its findings on causation and subsequent injury/condition were different.
Held—The Panel revoked the Certificate of Assessor Shen and issued a new Certificate in accordance with the Review Panel’s findings of 22% WPI certifying that the claimant’s injuries of adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder and persistent depressive disorder were caused by the subject accident.
Determination of a Review Panel
AAI Limited t/as AAMI v Hassan [2025] NSWPICMP 52 (30 January 2025)
Panel – Member Alexander Bolton and Medical Assessors Gerald Chew and Wayne Mason
The claimant was involved in a motor accident on 28 November 2017 and was a passenger in the vehicle that collided with another vehicle at an intersection. As a result of the subject accident, the claimant sustained injury to his back, neck, right shoulder, right thigh, head, right knee, right arm, chest, stomach, and psychological injury.
The claimant was also involved in a prior motor accident on 6 May 2011 where he sustained both physical and psychological injuries, which were similar but not identical in nature to the injuries he sustained in the subject accident.
The claimant was assessed by Assessor Nagesh on 26 June 2023 and a Certificate was issued on 7 August 2023. Assessor Nagesh certified that the claimant had suffered psychological injuries with a 14% WPI after a 1% deduction was made for pre-existing impairment.
Assessor Nagesh diagnosed the claimant with PTSD and major depressive disorder as a result of the subject accident.
As a result of the Certificate issued by Assessor Nagesh, the insurer lodged an application for review in the Commission. The insurer’s application for review was accepted and referred to Medical Assessors Mason and Chew on 2 December 2024.
Assessors Mason and Chew diagnosed the claimant was Somatic Symptom Disorder, noting that the claimant has a number of ongoing symptoms including ongoing lower back pain, dysfunction of his bladder and sexual dysfunction. The claimant was also reported to have persistent worry and anxiety about his physical symptoms and their seriousness. The claimant was also reported to have Persistent Depressive Disorder and has a history of well over two years of predominantly depressed mood.
The Assessors noted that the claimant’s Somatic Symptom Disorder was initially caused by the 2011 accident and that there was evidence of continued worry about his physical symptoms, however, this did improve but was exacerbated by the subject accident in 2017.
It was noted that the Persistent Depressive Disorder was secondary to the Somatic Symptom Disorder.
It was further noted that the claimant did not meet the criteria for PTSD and in particular, the description of the subject accident did not meet Criterion A and the claimant did not report any prominent intrusive symptoms.
The Panel found that although the claimant remained on some treatment, his account did not reflect improvement in his condition and as such, the Panel found no treatment effect.
Overall, the Panel determined that they were satisfied that the psychiatric disability and condition of Somatic Symptom Disorder and Persistent Depressive Disorder are causally related to the subject accident and that the claimant’s pre-existing condition was not entirely in remission as evidenced by the Panel’s pre-existing impairment assessment, but nevertheless it was not significant.
The Panel determined the claimant’s WPI to be 7%. There was no deduction made for the pre-existing condition in 2011.
Held—The Review Panel revoked the original Certificate of Assessor Nagesh dated 7 August 2023 and found that because of the subject accident, the claimant developed Somatic Symptom Disorder and Persistent Depressive Disorder. The claimant’s overall WPI was assessed at 7%.
Determination of a Review Panel
Meksass v Allianz Australia Insurance Limited [2025] NSWPICMP 57 (3 February 2025)
Panel – Hugh Macken and Medical Assessors Christopher Oates and Shane Moloney
The claimant sustained injury in a motor vehicle accident that occurred on 30 January 2023.
The insurer declined to concede non-threshold injuries and thereafter the claimant lodged an application for medical assessment in the Commission.
The claimant was assessed by Medical Assessor David McGrath on 7 May 2024 who, in a Certificate dated 12 May 2024 determined that the injuries referred to him were threshold injuries. The claimant sought a review of the decision and in a Certificate dated 3 July 2024, the President’s Delegate determined that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The basis was that Assessor McGrath failed to consider whether the accident contributed to the claimant’s lumbar spinal injury in a way that was more than negligible. Thereafter, the matter was referred to the Review Panel.
Upon assessment by the Review Panel, it was noted that the claimant was not a convincing historian with respect to the timeline of the onset of symptoms in the body part referred for assessment. It was noted that there is inconsistency in the history recorded by his treating GP, Orthopaedic specialist Dr Sunner, his statement signed on 31 January 2024, the history recorded by the original Medical Assessor and his own memory of the event.
The claimant stated that he developed severe right knee pain within a couple of days of the accident but both treating doctors recorded onset two or three weeks after the accident. It was also noted that the initial consultation with one of the claimant’s treating specialists was five weeks after the accident and for neck and back pain. By contrast the claimant’s statement at paragraph 29 referred to the immediate onset of pain in the claimant’s right knee, both shoulders, low back, and neck. When the Medical Assessors reviewed the statement with the claimant, he seemed to be quite unfamiliar with its existence and contents suggesting it was produced by someone else.
The Medical Assessors noted that following the assessment, they were not persuaded that the mild meniscal extrusion in the right knee is an acute traumatic injury, but rather a pre-existing condition arising from general wear and tear, noting that the occupation of electrician involves significant periods of squatting and kneeling. The Review Panel noted the claimant has done this work as his sole occupation over a period of approximately 25 years.
It was noted that were this lesion an acute injury the Medical Assessors would have expected immediate onset of knee symptoms or at least within a few hours of injury. Further, the mechanism of injury required to produce such a lesion, which is twisting on a semi-flexed knee, whilst weight bearing, is absent in the context of the subject accident. The Panel accepted the medical material, which indicates the knee became symptomatic and was reported some weeks after the accident.
The Review Panel noted there was no onset of pain or seeking of medical advice within hours or even a few days of the accident, which would be expected if an acute knee injury had resulted in a meniscal disruption. The Panel concurred with the treating orthopaedic surgeon, Dr Sunner who, in his report dated 11 August 2023, noted that the onset of right knee pain occurred two to three weeks after the accident and that the MRI scan of the right knee was “fairly unremarkable.”
The Review Panel was not satisfied that the claimant sustained an injury to his right knee in the subject accident and accordingly, any knee injury is a threshold injury.
The Panel noted that the claimant also presented with a normal range of neck movements and normal reflexes, power, and sensation. This was also the case for the claimant’s lumbar spine.
Held—The Review Panel confirmed the Certificate of Medical Assessor David McGrath dated 12 May 2024.
