Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 131
04 March 2025
Welcome to the 131st 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
AAI Limited t/as GIO v Di-Filippo [2025] NSWPICMP 105 (19 February 2025)
Member: Elizabeth Medland, Medical Assessor’s Mohammad Assem and Margaret Gibson
Medical panel review of assessment of whole person impairment (WPI) – initial medical assessment not greater than 10% - right shoulder injury not stable for assessment in initial medical assessment – causation in dispute – where there is a delayed onset of symptoms and lack of contemporaneous evidence.
On 3 June 2021, the insured semi-trailer swerved, and jack knifed causing a head on collision with the claimant’s vehicle.
The claimant subsequently lodged claims for statutory benefits and common law damages under the MAI Act. The claimant was assessed by Medical Assessor Alexander Woo who issued a Certificate on 9 March 2024, which assessed permanent impairment at 10%. This consisted of DRE I (5% WPI) for the cervicothoracic and lumbosacral spines and no assessable impairment for injuries to the right hip and left leg, and also determined that the right shoulder injury was not stable and capable of assessment. The insurer satisfied the President’s Delegate that there was a reasonable suspicion of material error in the assessment, and it was referred to a review panel.
The parties disputed how the right shoulder assessment should proceed. The claimant argued that the review application should not be assessed until after the right shoulder injury was assessed separately, whereas the insurer contended that the separate assessment should be cancelled, and the Panel assess the review application all at once. This was a matter for the Commission to resolve, not the Panel, and ultimately the Commission elected to cancel the separate medical assessment and directed the Panel to assess the right shoulder injury also.
The Panel then re-examined the claimant.
Due to a difference in clinical findings and a difference in opinion on causation, the Panel revoked Assessor Woo’s Certificate and issued a new Certificate assessing 5% WPI.
In that regard, the Panel assessed the same impairment for the cervical spine (5%) but due to delayed onset of symptoms, absence of documented complaints throughout regular treatment sessions and early objective findings, the Panel rejected Assessor Woo’s findings that there was a causal relationship with the motor accident and the left leg, right hip, or lumbar spine. The Panel maintained the opinion that the right shoulder was not capable of assessment because it had not reached maximum medical improvement.
Held—The Certificate was revoked, and a new Certificate was issued; the degree of permanent impairment caused by injuries sustained in the motor accident was 5%.
Wilder v QBE Insurance (Australia) Limited [2025] NSWPICMP 103
Member: Belinda Cassidy, Medical Assessor’s Shane Moloney and Margaret Gibson
Medical panel review of assessment of WPI – initial medical assessment not greater than 10% - discussion of application of Medical Assessment Guidelines, cl 6.23 relevant to injuries not attracting impairment, impairment of the spine for single fractures versus multilevel structural compromise) and assessment of spinal impairment where there is vertebral body compression).
The claimant was injured as a passenger in a motor accident on 14 September 2020. The claimant alleged injuries to her chest, ribs, cervical, thoracic, and lumbar spine in the accident and made claims for statutory benefits and common law damages against the insurer.
A medical dispute about the degree of the claimant’s WPI arose in connection with that claim. Medical Assessor Kuru assessed 5% WPI on 15 March 2024 for impairment of the thoracic spine due to a single compression fracture. He diagnosed cervical and lumbar spine soft tissue injuries and chest/rib injuries, which were all assessed at 0%.
The claimant was successful in persuading the President’s Delegate that there was a reasonable suspicion of material error in Assessor Kuru’s assessment, and it was referred to a review panel. Identification of the issues in dispute can be summarised as follows with regard to the submissions, submissions in reply and the further submissions produced by the parties:
- Assessor Kuru did not adequately assess all the injuries referred to him (chest, lumbar spine, cervical spine, and ribs) or set out his findings of these injuries on examination.
- The Assessor did not have regard to reports of Dr Machart or Dr Korber, both of which were attached to the claimant’s bundle but were not mentioned by the insurer (the insurer conceded that it appeared the Assessor did not have these reports before him and suggested the certificate instead be referred back as an ‘incomplete certificate’).
- A computer disc with a digital version of post-accident scans was provided direct to the Assessor. The claimant said that she did not have opportunity to make submissions on these.
- The Assessor did not provide adequate reasons for the 5% WPI finding of the thoracic spine.
In addition, the claimant requested the Panel assess occipital nerve complaints and development of De Quervain’s tenosynovitis, which she alleged was caused by the spinal injuries. These injuries were not referred by the parties for assessment and so the Panel did not include an assessment of impairment. Still, as “an indication only of causation and likely impairment”, the Panel highlighted the absence of a severe head injury, normal Glasgow Coma Score (GCS) at the scene and stated that spinal injuries or nerve root injuries do not cause De Quervain’s tenosynovitis.
The Panel elected to undertake a re-examination of the claimant for purposes of the review.
Notwithstanding the ongoing chest discomfort, the Panel applied cl 6.23 of the Guidelines and adopted Assessor Kuru’s finding that the claimant sustained a soft tissue chest injury as a result of the accident that did not attract impairment.
The Panel also adopted the findings of Assessor Kuru in regard to the cervical and lumbar spine (0%).
The main issue in dispute appeared to be whether the claimant sustained one, two or three compression fractures of her thoracic vertebrae as a result of the accident as this had implications on the WPI assessment. This was a question of causation noting that the insurer relied on Dr Korber’s report, which accepted causation only of the T3 fracture, but also of vertebral body compression relevant to WPI.
It noted the recommendation of Dr Korber for updated scans to verify the thoracic fractures, and the claimant had those scans taken in October 2024 and produced the reports to the Commission.
Medical Assessors Gibson and Moloney determined that the T3 fracture was caused by the accident, but there was no fracture at T1 or T2 as a result of the accident. Attention was drawn to immediate post-accident complaints of upper and mid thoracic pain, tenderness at T3 and T4 on examination and the opinion of Dr Korber that “fractures consolidate and become more visible” with time. Comparing the October 2024 scans to the September 2020 scans, the Panel observed a more visible, consolidated T3 fracture but no visible fractures at T1 or T2.
As the Panel found that the claimant had one endplate compression fracture, the conclusion was that the claimant did not have multilevel structural compromise. Using the October 2024 scan, the Panel assessed 16.67% loss of disc height, which resulted in DRE II (5%). The claimant otherwise had neither neurological differentiators of radicular symptoms (DRE II) or radiculopathy (DRE III).
Consequently, the Panel confirmed Assessor Kuru’s assessment that the total impairment arising from injuries sustained in the motor accident was 5% WPI.
Held—The Certificate was confirmed; impairment did not exceed 10%.
Allianz Australia Insurance Limited v Crittenden [2025] NSWPICMP 93 (18 February 2025)
Member: Terrance Stern OAM, Medical Assessors Clive Kenna and Mohammad Assem
Medical panel review of assessment of threshold injury – causation of left knee injury in dispute – mechanism of injury considered – application of Bugat v Fox and Norrington v QBE Insurance (Australia) Limited in regard to causation without a documented contemporaneous complaint – causation of left knee injury not established – claimant sustained no more than a threshold injury.
The claimant made a claim for statutory benefits and alleged injuries to his cervical spine, lumbar spine, right hand, left shoulder and left knee in a motor accident on 2 June 2018. A dispute arose between the parties as to whether the claimant sustained threshold injuries in the motor accident and the claimant applied for medical assessment in the Commission.
The claimant was examined by Assessor Hyde Page for this purpose on 7 March 2024. Assessor Hyde Page’s Certificate dated 19 March 2024 determined that the claimant sustained a non-threshold injury as a result of the motor accident, namely a FLAP tear of the medial meniscus. His determination was otherwise that the injuries referred for assessment were threshold injuries as defined by s 1.6.
The insurer was successful in satisfying the President’s Delegate that there was reasonable suspicion of material error in the assessment. The insurer argued that the Assessor had failed to adequately address causation in a circumstance where there was no evidence before the Medical Assessor to support that the FLAP tear found on MRI imaging related to the accident, particularly given the significant delay in left knee symptom onset.
The Review Panel re-examined the claimant on 12 December 2024 and ultimately determined that on the balance of probabilities, the left knee FLAP tear was not caused by the motor accident. The Panel placed weight on the eight month delayed report of left knee pain which “reduced the plausibility of the causal relationship”, the claimant’s return to pre-injury work duties within a week of the accident which involved repetitive bending, kneeling and squatting, the absence of common associated mechanical symptoms such as clicking, locking or catching and the mechanism of the motor accident which was unlikely to cause the anterior knee pain as described.
The Panel therefore revoked the Certificate and issued a new determination that the left medial meniscus FLAP tear was not caused by the accident. It therefore did not arise for the Panel to determine whether the left knee was a threshold injury. All other referred injuries were threshold injuries.
Held—The Certificate was revoked, and new Certificate was issued; the claimant sustained threshold injuries to the right shoulder, cervical spine, and lumbar spine as a result of the motor accident.
Claims Assessment
Mahfoud v AAI Limited t/as GIO [2025] NSWPIC 45 (13 February 2025)
Member: David Ford
Claims assessment about the amount of damages to be paid to the claimant under ss 7.36(3) and 7.36(4) – liability for common law damages in dispute: deny breach of duty of care – claimant failed to exercise all due care and caution when changing lanes – the insurer is entitled to deny liability for the claim and the amount of damages for that liability; no findings regarding an assessment of damages.
The claimant was injured in a motor accident on 18 May 2021. The claimant applied for assessment of damages under ss 7.36(3) and 7.36(4) of the Act. As the insurer denied liability for the claim for damages, the parties agreed for Member Ford to resolve liability before assessing damages.
The facts relevant to liability are that the claimant was the driver of a vehicle in the left kerbside lane of Horsley Drive at Carramar, the claimant engaged his right blinker for at least 8-10 seconds, changed from the left to the right lane and that a collision occurred between his vehicle and the insured vehicle.
The claimant was self-represented. At the Assessment Conference, he stated that he saw the insured vehicle in the rear-view mirror but had sufficient time to change lanes, that he reduced his speed prior to the lane change manoeuvre, and that he had finished merging when the insured vehicle collided with the rear of his vehicle.
Photographs of the damage to the driver’s rear side and the front offside of the insured vehicle contradicted a rear-end collision. The insured driver’s evidence was that the claimant tried to “cut in front” and clipped the insured vehicle. A witness gave a similar version of events.
The insurer relied on an accident reconstruction report from William Keramidas, which said that the primary cause of the collision was the claimant's lane change in circumstances where it was unsafe to do so. Mr Keramidas also was of the opinion that the insured driver could not have evaded collision.
The Member ultimately preferred the insured driver’s version of events and determined that the claimant did not exercise all due care and caution when attempting to change from the kerbside lane to the right lane, that the claimant did not engage his right turn signal at least 8-10 seconds before collision nor saw the insured vehicle in his rear-view mirror prior to merging.
Held—The insurer was entitled to deny liability for the claim and the amount of damages for that liability.
Mir v QBE Insurance (Australia) Limited [2025] NSWPICMR 3 (17 February 2025)
Merit Reviewer: David Ford
Miscellaneous Claims Assessment – assessment of pre-accident weekly earnings (PAWE): claimant self-employed delivery driver, claimant failed to provide receipts and documentation reasonably requested by the insurer – onus on claimant to provide sufficient evidence of pre-accident earnings.
The claimant was injured in a motor accident as a motorcyclist that was rear-ended by the insured driver on 8 November 2023. The insurer admitted liability for the payment of statutory benefits up to 52 weeks after the accident. As part of that claim, a dispute arose between the parties concerning the assessment of PAWE. The claimant referred the dispute to the Commission to resolve under Sch 2(1)(a).
The claimant was a self-employed Uber driver when the accident occurred. The insurer determined PAWE to be $467.39 on 19 March 2024 based on a report by Procare. This was affirmed on internal review on 28 March 2024. The insurer’s Reply submissions to the claimant’s application for miscellaneous claims assessment conceded that PAWE calculated by the insurer and affirmed by internal review was incorrect, and submitted that PAWE was $527.37, on the financial evidence available.
The insurer later conceded that the PAWE was $579.35 based on this same evidence.
The claimant argued that this assessment did not consider the amended individual tax return lodged after the accident, which showed lower expenses and thus higher earnings. This was lodged after the internal review decision and the claimant failed to comply with the insurer’s request for copies of any of the additional documentation that were lodged with that amended tax return.
The Merit Reviewer agreed that this documentation was necessary because business expenses need to be deducted from the business income for the purposes of a PAWE calculation, applying Iskander v Insurance Australia Limited trading as NRMA insurance [2024] NSWPICMRP.
The insurer relied on Muzammil v QBE Insurance (Australia) Limited [2022] 22 NSWPICMR 25 in support of an argument that “the onus is on the claimant to provide sufficient evidence of his pre accident earnings including the expenses of any business” and that “as a sole trader the claimant ought to be able to provide reliable records not only of the total sales of the business but for business expenses. He has a legal obligation to retain such records.” The insurer argued that the claimant had failed to produce receipts of expenses and/or testamentary evidence to inform same.
The claimant solicitor advised that the claimant did not have detailed records. The insurer raised that the claimant has a legal obligation to retain such records of his business expenses and that absent of that evidence, the Merit Reviewer should be “uneasy” with accepting the “significant discrepancy between the claimant’s income and business expenses for the 12-month pre accident period in comparison to the claimant’s reported income and business expenses in 2023 financial year.”
The Merit Reviewer agreed that the claimant had an obligation to produce receipts for business expenses, especially in circumstances where the claimant has lodged an amended income tax return. As the claimant had failed to comply with the insurer’s reasonable request for this documentation, PAWE was assessed on the evidence available, which reflected PAWE of $579.83.
Held—The decision of the insurer was affirmed; the claimant’s PAWE was $579.83.
