Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 28

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 Personal Injury Commission, we are publishing weekly the relevant headnotes of published decisions with a link to the decisions on Australasian Legal Information Institute (AustLII) website. 

All legislative provisions are from the Motor Accident Injuries Act 2017 unless otherwise noted.

Claims assessment

AAI Limited trading as GIO v Martin [2021] NSWPIC 418

Member: Alexander Bolton

MOTOR ACCIDENTS—settlement approval—claimant sustained fractured finger in dominant hand, soft tissue injury to neck, and post-traumatic stress disorder (PTSD) from a head-on collision—limited time off work following accident—parties agreed to resolve claim for $43,439.77—as claimant unrepresented, whether settlement just, fair and reasonable and within the range of likely potential damages assessments if the matter were to proceed to formal assessment.

The claimant fractured his finger, sustained a soft tissue injury to his neck, and PTSD, from an accident that occurred on 6 September 2018. Despite his finger fracture, that injury healed relatively well with the claimant regaining almost full range of motion. Evidence also indicated that the claimant’s PTSD was in remission by the time the parties had agreed to resolve the claim. The claimant was also able to return to his pre-accident employment shortly after a period of time off work.

The parties agreed to resolve the claim for $43,439.77. This included past weekly statutory benefits totalling $9,439.77 and an addition $5,000 for loss of overtime, and the sum of $29,000 for future economic loss.

As the claimant was not represented by solicitors, the proposed settlement required the Commission’s approval under s 6.23 of the Act.

Findings: Having regard to the extent of the claimant’s recovery from his injuries, and taking into account the intermittent losses that might arise in the future, the Member accepted that the proposed settlement was just, fair and reasonable and within the range of likely potential damages assessments if the matter were to proceed to formal assessment.

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President’s Delegate’s decision

NRMA v Sciortino [2021] NSWPIC 419

Delegate: Jeremy Lum

MOTOR ACCIDENTS—application for review of Merit Reviewer’s decision regarding calculation of claimant’s Pre-Accident Weekly Earnings (PAWE)—whether reasonable cause to suspect merit review decision was incorrect in a material respect.

The claimant was injured in an accident and applied for statutory benefits. A dispute arose between the parties as to the extent of his PAWE.

The dispute initially proceeded before Merit Reviewer Delfendahl. The Merit Reviewer assessed the claimant’s PAWE by taking into account the claimant’s earnings as a shop fitter and carpenter, and passive rental income.

The insurer lodged an application for review of Merit Reviewer Delfendahl’s decision, asserting the Merit Reviewer erred in incorporating passive rental income in the PAWE calculation, as that income was not derived from the claimant’s physical exertion, as required by clause 3(1) of schedule 1 of the Act and consistent with the principles in Husher v Husher [1999] HCA 47.

Findings: Without knowing the source of the rental income but nonetheless incorporating it in the PAWE calculation, the Merit Reviewer may have erred in their interpretation and application of clause 3(1) of schedule 1 of the Act. The Delegate accordingly accepted that there was reasonable cause to suspect that Merit Reviewer Delfendahl’s decision was incorrect in a material respect.

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Medical Review Panel decision

Review Panel: Member John Harris, Dr Richard Crane, Dr Shane Moloney

GIO Insurance (Australia) Ltd v Taouk [2021] NSWPICMP 193

MOTOR ACCIDENTS—minor injury assessment. The claimant was injured in a rear-end accident on 20 May 2020. He alleged that he suffered injuries to his to his neck, upper back, lower back, and right shoulder from the accident. He specifically asserted that the accident caused a supraspinatus tear which required surgery, and that this injury was non-minor. The insurer denied the accident caused a supraspinatus tear to the right shoulder or a neck injury, and that it was liable for any treatment for the alleged neck and shoulder injuries.

The minor injury and treatment disputes were initially determined by Medical Assessor Bodel. He concluded the accident caused a supraspinatus tear in the claimant’s right shoulder, that the injury was a non-minor injury within the meaning of the Act, and that the insurer was liable for the treatment for that injury, as well as the neck injury.

The insurer applied for a review of Assessor Bodel’s decision. It asserted that the Assessor erred in assessment of the right shoulder in particular, in failing to take into account the lack of contemporaneous material documenting a right shoulder injury in the immediate post-accident period.

The Panel accepted, applying Bugat v Fox [2014] NSWSC 888 that the absence of contemporaneous evidence is relevant to determinations of causation but is not determinative.

However, the Panel highlighted that the claimant was treated by Ambulance paramedics, hospital personnel, and a number of treating doctors, but never reported any shoulder complaints, until July 2020. They also noted that the examination of the claimant’s right shoulder was essentially normal until July 2020.

Findings: Having regard to the claimant’s treatment in the immediate post-accident treatment, and the records kept by his treating practitioners, the Panel concluded that the accident did not cause the right shoulder injury, nor give rise to a need for treatment. The Panel also concluded that treatment for the neck injury was not causally related to the accident, as it was only after a subsequent assault that the claimant begun experiencing neck symptoms.

The Panel revoked Assessor Bodel’s Certificate, certified the claimant’s neck, upper back, and lower back injuries as being minor injuries, the right shoulder injury as not being caused by the accident, and the proposed neck and shoulder treatment as not being causally related to the accident.

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