Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 148
24 February 2026
Welcome to the 148th edition of Sparke Helmore’s MAD Publication!
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 relevant headnotes of select published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Please see the new 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.
Medical Review
Morrison v QBE Insurance (Australia) Limited [2026] NSWPICMP 79 (4 February 2026)
Member Cassidy, Medical Assessor’s Margaret Gibson and Les Barnsley
Assessment of threshold injury and application for review under s 7.26 - question of whether there is verifiable radiculopathy in documented medical evidence relying on David v Allianz - application of two step criterion for radiculopathy in Guidelines at C3 nerve root.
The claimant was involved in a rear-end motor accident on 23 August 2023. She made a claim for statutory benefits, and the CTP insurer denied liability for statutory benefits after 26 weeks on the grounds that the injuries were threshold in nature. That decision was affirmed on internal review and a medical dispute about whether the claimant’s injury is a threshold injury was referred to the Commission for assessment.
Assessor Truskett determined that the claimant’s cervical spine injury was a threshold injury. She had an obvious error in the assessment corrected by way of a further certificate on 11 June 2025. The claimant applied for review on 11 July 2025 and it was determined there was reasonable cause to suspect a material error in the assessment. The Review Panel convened and determined it was not necessary to re-examine the claimant to resolve the dispute.
Assessor Truskett was allocated to examine the referred injury as ’cervical spine – radiculopathy and disc bulge indenting thecal sac’. Assessor Truskett determined in a replacement certificate that there was no evidence of radiculopathy and no evidence of disc rupture on the imaging.
In Assessor Truskett’s reasons, he accepted that the claimant sustained an aggravation of right C3/4 and left C2/3 facet joints with left C2/3 marked sub-chondral nerve oedema but said that radiculopathy at the C3 level was ’impossible’ because there was no myotome, reflex or stretch test referable to this level. The claimant argued that there was documented evidence or verifiable radiculopathy in the historical post-accident documentation and relied on David v Allianz Australia Insurance Limited which recognised that ’radiculopathy symptoms can fluctuate over time as spinal nerve root compression may vary due to inflammation’. She also said that the disc bulge and osteophyte complex at C2/3 was a non-threshold injury. The insurer disputed the first point and said that there was no evidence of non-threshold disc injury to substantiate the second point.
The Panel determined ’that the claimant’s C3 nerve injury symptoms cannot satisfy the definition of radiculopathy’. They set out the definition of radiculopathy from cls 5.8 and 6.128 of the Guidelines and noted that the statutory wording created a difficulty in diagnosing radiculopathy because the C3 nerve does not supply a limb with power and there is no reflex to measure nor muscle that can be wasted which might be measured to indicate nerve root dysfunction.
The Panel accepted that the claimant sustained a left sided C3 nerve root injury as a result of the accident but said the claimant did not have two or more signs of radiculopathy, explicitly noting that pain is not evidence of radiculopathy. The Panel distinguished a disc bulge (swelling of the body of the disc) and a disc protrusion/herniation (where the softer middle of the disc extrudes through fissures or tears in the ligamentous outer ring of the disc). The Panel said there was no medical or radiological evidence of any disc bulge or disc protrusion on imaging. The Panel also concluded that the disc bulge was not causing sac indentation thus distinguishing it from Momand v Allianz Australia Insurance Limited.
Held: The Certificate was revoked due to the Panel agreeing to Assessor Truskett’s conclusions but arriving at a different diagnosis. The threshold injury was confirmed - the claimant sustained a nerve injury in her motor accident, but it was a threshold nerve injury within the meaning of the Regulation and for the purposes of the MAI Act.
Chiarelli v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 78 (3 February 2026)
Member Alexander Bolton, Medical Assessors Shane Moloney and Drew Dixon
Medical assessment review of treatment decision – delay in contemporaneous reporting of right knee injury – predominant complaints in first eight weeks post-accident were to the neck and an L1 vertebral fracture with general pain – consideration of causation and reasonable delay of symptom reporting.
The claimant was injured in a motor accident on 6 November 2022 as a passenger on a bus. A motor vehicle collided with the right side of the bus pushing it off the road down into a ditch on its left side. The claimant’s major injuries were to his neck and an L1 vertebral fracture. He had general symptoms affecting his left wrist, cervical spine, right foot, left shoulder and arm, right elbow and right knee. He was initially treated at Tamworth Base Hospital, then Mater Hospital and then remained in Hunter Valley Rehabilitation Hospital for eight weeks.
The claimant made a claim for statutory benefits against the insurer. As part of that claim, a dispute arose between the parties regarding whether the request for total right knee replacement surgery related to the injury caused by the accident, and whether the request for total right knee replacement surgery was reasonable and necessary in the circumstances. The insurer determined that it was not, and that decision was affirmed by Medical Assessor Hyde-Page on 12 June 2025.
The insurer determined that there was an absence of contemporaneous complaints for the first three months and a background of a history of right knee pain and distinct degenerative changes which indicated that causation was not likely to be satisfied. The Medical Assessor agreed and stated that the right knee had ’only become symptomatic some months after the motor vehicle accident and was never mentioned as an injury during the acute phase’.
The insurer stated that s 3.24(2) confirms that statutory benefits are not payable for the cost of treatment that is not reasonable and necessary in the circumstances and does not relate to the accident.
The claimant was successful in arguing that there was a reasonable suspicion of material error in the medical assessment before the President’s Delegate and a Review Panel was convened. The claimant argued that his lumbar fractures resulted in a period of immobility and analgesia during rehabilitation, and that the delay in complaint was explainable in the circumstances.
The Panel acknowledged the lack of immediate reported complaint of a right knee disability but said that this alone should not preclude a conclusion that it was related to the motor accident. The Panel acknowledged the historical complaints of right knee pain before the accident but noted that the treating practitioner did not recommend surgery until after the motor accident. The Panel concluded ’on the balance of probabilities, the accident was a contributing cause to the need for right knee replacement surgery, an outcome caused by the accident which was more than negligible.’
Held: The medical Certificate was revoked and a new decision issued - the claimant suffered an injury to his right knee as a result of the accident and the proposed right knee replacement surgery was reasonable and necessary.
Allianz Australia Insurance Limited v Solaka [2026] NSWPICMP 76 (3 February 2026)
Member Susan McTegg, Medical Assessors Margaret Gibson and David Gorman
Medical review of permanent impairment medical assessment certificate – application of Briggs v IAG Limited Trading as NRMA Insurance – no plausible mechanism where injury to right knee and antalgic gait would lead to consequential injury to cervical spine.
The claimant motorcyclist was injured in a motor accident on 23 May 2023. The claimant lodged a claim for common law damages, and as part of the claim, a dispute arose between the parties as to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident was greater than 10%.
The claimant’s physical injury was referred to Medical Assessor Shahzad to assess permanent impairment, and on 26 August 2025, Assessor Shahzad determined that the claimant sustained the following injuries giving rise to 19% WPI:
- injury to right leg – fracture requiring open reduction, internal fixation, meniscal repair and removal of hardware and meniscectomy
- consequential injury to lumbar spine – aggravation of underlying degenerative change
- injury to cervical spine – aggravation of underlying degenerative change
- injury to left shoulder – rotator cuff disease, and
- injury to skin system – surgical scarring of the right leg.
The insurer applied for review of the medical assessment on grounds that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, and that application was accepted by the President’s Delegate on 20 October 2025. The insurer argued that the available evidence did not support the conclusions regarding the cervical and lumbar spine and left shoulder injuries, that the claimant’s expert evidence of Dr Giblin was not reliable in that consequential injuries to the cervical spine and lower back could not follow a period of use of crutches and that there was an absence of documented complaints in the treating evidence to otherwise satisfy causation.
The Panel re-examined the claimant on 23 January 2026. The Panel referred to the test of causation in the Guidelines and noted that Briggs is authority for the position that the relevant legal test in relation to causation does not require scientific certainty. The Panel acknowledged that the evidence did not support the assertion accepted by Dr Giblin that the claimant used crutches for a year, but said that there were lengthy periods of time when he has been required to mobilise using crutches and/or a stick and that the markedly antalgic gait observable on examination could reasonably be caused by the right knee injury sustained in the accident. It was further stated that this could reasonably contribute to the aggravation of pre-existing underlying degenerative change in the lumbar spine.
The Panel rejected that the injury to the right knee and a subsequent antalgic gait would lead to a consequential injury to the cervical spine. It was concluded that the injury to cervical spine – aggravation of underlying degenerative change – was not caused by the motor accident and that aspect of the medical assessment certificate was revoked.
The Panel did accept that cervical spine pain could be caused by an injury to the left shoulder, and that on the balance of probabilities, the use of walking aids caused by the right knee injury could and did cause or contribute to injury sustained to the left shoulder.
The Panel accepted that the claimant sustained injuries as a result of the motor accident to the right lower extremity, lumbar spine and left shoulder and had scarring which attracted assessable impairment. Total combined impairment was assessed at 23% WPI.
Held: The combined medical assessment Certificate was revoked and a new Certificate issued with the same outcome, notably that impairment exceeded 23%.
Merit Review
Saadouni v Allianz Australia Insurance Limited [2026] NSWPICMR 3 (3 February 2026)
Merit Reviewer: David Ford
Application for merit review of determination that the claimant was not entitled to payment of weekly statutory benefits under Division 3.3 because loss of earnings was not because of the injury or incapacity, but due to the termination of employment following poor performance and conduct; where alternative employment secured after termination.
The claimant sustained injuries to her left leg as a result of the motor accident on 1 January 2024 and the claimant made a claim for statutory benefits and on 4 June 2024. The insurer determined that she was not entitled to payment of weekly statutory benefits because she did not suffer a loss of earnings as a result of the subject motor accident.
The claimant was employed as a hairdresser full time before the motor accident. She alleged that the injuries sustained in the motor accident caused a loss of earnings and her consequent termination. The insurer disputed that the claimant’s injuries impacted her ability to perform her duties and resulted in her loss of income.
There was no dispute that the claimant was an earner pursuant of Sch 1 cl 2 (a), the insurer argued that under ss 3.6 and 3.7 weekly payments were only payable if, as a result of the motor accident, the claimant suffered a loss or partial loss of earnings as a result of the injury, and that there was documented evidence that the claimant’s termination after the accident was following concerns regarding her performance and conduct (the termination letter in May 2024 referenced certain incidents resulting in termination, none of which referred to injuries or restrictions caused by the subject accident). The insurer further argued that the claimant was certified fit to work full-time duties by April 2024 and that the claimant obtained alternative employment post-dismissal, comparable to her previous employment.
The Member accepted the insurer’s position on the available evidence and found that the claimant did not incur a loss of earnings because of the accident and was not entitled to weekly payments of statutory benefits.
Held: The reviewable decision was affirmed - the claimant did not incur a loss of earnings as a result of the accident and was not entitled to weekly payments of statutory benefits under the MAI Act.
Damages Assessment
QBE Insurance (Australia) Limited v Masri [2025] NSWPIC 645 (2 December 2025)
Member: Elyse White
Damages assessment pursuant to s 7.36 – claimant not legally represented – question as to entitlement to economic loss, and whether claimant is a reliable witness – Member assessed damages as $0.
The claimant sustained physical and psychological injuries as a front seat passenger in a motor accident on 6 August 2020. The insurer accepted liability for the damages claim and her WPI was assessed at 6%.
A dispute arose as to whether the claimant suffered a loss of earning capacity because of the accident, which would amount to economic loss.
A damages assessment was conducted by Member White, where all parties including an interpreter, were in attendance via video link.
The Member was required to assess most likely future circumstances, but for the accident, and to assess whether the claimant was a reliable witness given the conflicting evidence.
The claimant alleged she wanted to work and would have done so, if not for the accident. The claimant was in receipt of Centrelink benefits prior to the accident and was supported by a full-time carer. The insurer obtained pre-accident medical records which indicated prior diagnoses of depression and severe lumbar disc disease in 2017.
Following questioning by the insurer’s barrister, the Member determined that the claimant was deliberately avoiding answering questions that could have impacted her claim for damages for economic loss. Accordingly, the Member viewed the claimant’s evidence as unreliable.
The Member reviewed the claimant’s Centrelink file which ranged from June 2009 to June 2025 and noted that the claimant had most recently been in receipt of a disability support pension.
The Member ultimately found that there was no objective evidence to support the submission that the claimant had capacity to work before the accident. The Member also found that there was no objective evidence to support the claimant’s claim that she was looking for work before the accident occurred.
Held: The most likely future circumstances but for the accident was that the claimant would have continued to receive Centrelink benefits and be totally incapacitated to work. Damages for past and future economic loss were assessed at $0.
Settlement Approval
AAI Limited t/as AAMI v Witschi [2026] NSWPIC 48 (29 January 2026)
Member: Terence O’Riain
Settlement approval under s 6.23(2)(b) – where claimant not legally represented – Member satisfied that the claimant educated and expressed himself as having agency to decide on accepting settlement.
The claimant sustained a right shoulder injury and psychological injury as a passenger in a motor accident on 6 November 2024. The CTP insurer accepted liability for the damages claim lodged by the claimant. On 10 December 2025, parties met a settlement for the claim for damages for $37,922.04 compromising of past weekly benefits at $1,922.04 and $36,000 for future economic loss only.
As the claimant was not legally represented, s 6.23(2)(b) required the settlement to be approved by the Commission. Section 6.23 refers to the requirements for settlement approval under the Guidelines. Relevantly, cl 7.37 of the Guidelines require a decision maker to be satisfied that:
'(a) (Omitted)
(b) the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.'
The Member, in approving the settlement, was satisfied by ’the claimant’s demeanour, his educational background and the quality of his contributions that he was in a position to competently resolve the dispute with the insurer.’ The Member considered that the settlement was ’at the lower end of a possible range of damages’ but said that the claimant had exercised his agency in accepting the offer.
The Member further noted the treating evidence which said that deterioration and early retirement was unlikely, and that in any event, entitlement to payment of reasonable treatment expenses would not be extinguished by settlement of the damages claim.
The settlement was considered to be suitable and was approved under s 6.23(2)(b).
Held: The proposed settlement was just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission per s 6.23(2)(b).
