Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 132
20 March 2025
Welcome to the 132nd 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
George v AAI Limited t/as GIO [2025] NSWPICMP 126 (27 February 2025)
Panel: Member Terence O’Riain and Medical Assessors Tai-Tak Wan and David Gorman
Panel review of claimant’s permanent impairment assessment (WPI) application - delayed because claimant not at maximum medical improvement – claimant re-examined – assessment of brain injury – where panel prefers objective evidence in neuropsychological impairment to claimant’s statements.
The claimant was injured as a pedestrian in a motor accident on 20 May 2018. The insurer admitted liability for common law damages and a dispute arose between the parties on permanent impairment.
On 14 July 2022, Medical Assessor Dixon determined that the claimant’s permanent impairment of orthopaedic injuries was 9%, being 8% for the right knee and 1% right thumb (hand). All the other injuries were assessed as 0%. He determined that the thoracic spine injury had resolved.
On 28 July 2022, Medical Assessor Cameron determined that the accident caused a mild traumatic brain injury with ongoing cognitive symptoms, as well as musculoskeletal pain, which did not give rise to assessable impairment as there was no medically verified abnormalities in level of consciousness, brain imaging abnormalities or post-traumatic amnesia.
The claimant applied to have both assessments referred to a review panel on the grounds that each of the medical assessments were incorrect in a material respect under s 7.26. The applications were accepted and allocated to a Review Panel to determine concurrently.
The insurer firstly applied for Member O’Riain to recuse himself because the Commission had earlier allocated the application to assess damages to him. The insurer argued that there was a risk of perceived bias, but instead it was determined that another Member would eventually take over the damages assessment once the medical disputes were resolved.
The Panel re-examined the claimant. A lower permanent impairment assessment was made than that of Assessor Dixon as the examination was slightly different. The Panel stated that this was reasonable given the passage of time and treatment since that examination. The total assessment was 6% WPI.
The Panel highlighted that cl 6.164 of the Guidelines require a brain injury assessor to consider available neuropsychological reports. The Panel gave more weight to the experienced neuropsychologist’s conclusion than the claimant's history, or the other specialists' opinion, because the psychometric tests were more objective and validated.
Contrary to the claimant’s allegations of error with Medical Assessor Cameron’s application of the Clinical Dementia Rating Scale, the Panel agreed the assessment affirming that there was no evidence of existing cognitive impairment due to an organic cause, no significant medically verified abnormalities such as abnormal initial post-injury GCS score, or post traumatic amnesia, or brain imaging abnormality. This meant that assessable impairment was 0%.
Held—The Review Panel revoked and replaced the original medical certificates. The combined impairment was not greater than 10%.
Allianz Australia Insurance Limited v Predescu [2025] NSWPICMP 129 (28 February 2025)
Panel: Member Belinda Cassidy and Medical Assessors Thomas Newlyn and Surabhi Verma
Panel review of claimant’s permanent impairment assessment application – criterion A of diagnosis of post-traumatic stress disorder (PTSD) not established - adjustment disorder caused by the accident; disorder was a threshold injury.
The claimant was a front seat passenger in the not at fault vehicle injured in a rear-end motor accident on 25 March 2021. The insurer denied liability for statutory benefits on the basis that the claimant sustained threshold injuries. A dispute arose between the parties and was referred to the Commission as a medical assessment matter under s 7.26.
On 15 September 2023, Medical Assessor Robertson determined that the motor accident had caused the claimant to sustain PTSD. He also commented that her presentation was not consistent with an adjustment disorder, but later said that she “has been through a possible concurrent adjustment disorder following her husband’s death”.
The insurer firstly applied for review on the grounds that the Medical Assessor had failed to consider the insurer’s documents, however instead the Certificate was considered incomplete and was referred back to the Medical Assessor to complete. The insurer then applied again for review arguing that the assessment still contained material errors.
In submissions, the insurer argued that the Medical Assessor had failed to give adequate weight to the claimant’s husband’s death in August 2021. The insurer also argued that the Medical Assessor failed to provide reasons as to why the exacerbation of the claimant’s psychological distress following the death of her husband did not impact his diagnosis of a post-traumatic stress disorder.
The Panel concluded that the claimant did not meet criterion A of the DSM-5-TR criteria for PTSD. In making that finding, the Panel highlighted that during the assessment of the physical injuries, Medical Assessor Rapaport took a history of the accident that the claimant “remained in the car after the collision while her son exchanged particulars with the at fault driver and that she got out of the car with the assistance of her son when they later arrived at home”. The Panel also placed weight on the four-month delay between the motor accident and the claimant being referred to a psychologist.
In coming to the diagnosis of an adjustment disorder, the Panel stated that the “claimant’s response to the minor accident is out of proportion” so as to satisfy criterion B of the DSM-5-TR criteria for that condition. Regarding criterion E—once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months—the Panel said that “the stressor (the accident and her injuries) had not ended” and that the condition was a “persistent (chronic) sub-type permitted within the DSM-5-TR.”
The panel discussed the authority of Lynch v AAI Limited t/as AAMI regarding whether the claimant had ever sustained a non-threshold psychological injury as a result of the motor accident. On that issue, the Panel found that the lack of accident severity could not have ever satisfied criterion A for PTSD.
Held—The Medical Assessment Certificate was revoked and new Certificate determining a threshold injury was sustained in the motor accident.
AAI Limited t/as GIO v Slocombe [2025] NSWPICMP 132 (3 March 2025)
Panel: Member Hugh Macken and Medical Assessors David Gorman and Tai-Tak Wan
Panel review of medical assessment relating to treatment – whether cervical discectomy is causally related to injury sustained in the accident and whether surgery is reasonable and necessary in the circumstances; pre-existing degenerative disease – marked pain behaviours and numbness does not follow dermatomal distribution.
The claimant was injured in a motor accident on 26 February 2017. The claimant sought approval from the insurer to undergo an anterior cervical discectomy fusion at C5-6 level (the requested treatment) based on a referral by Dr Abrazsko. The insurer declined on the basis that the injury was neither caused by the motor vehicle accident nor was reasonable and necessary. A dispute arose and was allocated to Medical Assessor David McGrath.
On 18 February 2024, Medical Assessor McGrath determined that the requested treatment was causally related to an injury sustained in the accident and was reasonable and necessary treatment.
The insurer applied for review and argued that the Medical Assessor did not comment on whether the identified disc disease could have been caused by the accident and, accordingly, did not meet the definition of causation in the Guidelines. The application was accepted and allocated to a review panel.
The Panel re-examined the claimant. During the examination, the Panel observed marked pain behaviours and stated that the gait was not in keeping with any pathological cause. The Panel further observed that the claimant was morbidly obese and stated that whilst possible that the accident “caused some aggravation for some months”, that it was likely that the claimant’s current condition “is now related to her ongoing degenerative disease and abnormal illness behaviours rather than any effects of the accident.”
The Panel placed weight on post-accident treating reports, which found that the complaints were of a soft tissue nature and that there was no objective evidence of an underlying injury to the neck. The Panel determined that the treatment request was not related to an injury sustained in the accident, and that further in the absence of evidence of radiculopathy, and in light of such “widespread symptoms and abnormal illness behaviour”, the surgery was likely to worsen the condition.
Held—The Certificate was revoked and if was affirmed that the treatment and care did not relate to injuries sustained in the accident; the treatment was not reasonable and necessary in the circumstances.
