Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 39
04 March 2022
Welcome to the 39th 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 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 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.
Claims Assessment - Settlement Approval
GIO v Dowd [2022] NSWPIC 61
Member: Hugh Macken
MOTOR ACCIDENTS—settlement approval—liability admitted—claimant returned to pre-injury role--whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, a 37-year old male, was injured in a motorcycle accident on 19 November 2018, suffering injuries to the cervical spine (fracture of C7 spinous process), right knee (fracture patella) and dental injury. Liability was wholly admitted.
The insurer conceded that the claimant met the s 4.11 threshold for damages for non-economic loss.
The parties agreed to resolve the claim for the sum of $368,913.19, for non-economic loss and economic loss damages ($240,000 for non-economic loss, $78,913.19 for past economic loss and $50,000 for future economic loss). As the claimant was not represented by solicitors, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
The Member noted the claimant presented as a stoic figure, wanting to move forward with his life post-accident.
The claimant had returned to pre-injury duties in his role in the public sector, and the Member was satisfied that it was unlikely he would require time off work but for potentially following any further surgery.
Findings: The Member accepted the proposed sum of $368,913.19 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing. The Member approved the settlement.
Miscellaneous Claims Assessment
Brown v The Nominal Defendant [2022] NSWPIC 65
Member: Belinda Cassidy
MOTOR ACCIDENTS—claim against the Nominal Defendant and another CTP insurer—multi-vehicle accident— whether unidentified vehicle involved in accident—whether the claimant was wholly or mostly at fault.
The claimant was involved in a multi-vehicle collision on the M1 whereby a truck (insured by QBE) collided with the left rear of the claimant’s yellow Audi, and then the claimant collided with another vehicle and a guard rail. It was agreed that there were two lines of traffic and the claimant was travelling in the right-hand lane, which had stopped as the claimant approached. A claim for statutory benefits was made against QBE.
However, the police report suggested that there was an unidentified vehicle that caused the accident and therefore QBE referred the claim for management by the Nominal Defendant. A question arose as to whether the claimant had attempted to change lanes into the left-hand lane, and whether there was another vehicle that had been involved in the collision or caused the accident by pulling out from the left-hand lane in front of the QBE-insured truck. Both insurers undertook investigations during the course of the claim.
The Nominal Defendant terminated statutory benefits when it received expert evidence concluding that there was no evidence of an unidentified vehicle being involved in the accident and leaving the scene. The damage supported only a collision between the QBE-insured truck and the claimant’s vehicle. The Nominal Defendant issued a notice denying liability on the basis it was the claimant that had changed from the right-hand lane into the left-hand lane into the path of the QBE-insured truck and that there was no unidentified vehicle.
The decision was affirmed on internal review and the claimant referred a dispute to the Commission as to whether he was wholly or mostly at fault, and therefore whether he was entitled to ongoing statutory benefits pursuant to ss 3.11 and 3.28 of the Act. The Nominal Defendant also referred a dispute as to the relevant insurer between it and QBE, if the claimant was to receive further statutory benefits.
The claimant maintained that an unidentified vehicle caused the QBE-insured truck to collide with the claimant’s vehicle.
There was evidence from a number of parties in addition to the claimant, including the QBE-insured driver, his passenger, the driver of the vehicle the claimant had collided with and the attending police officer. There was reference by the QBE-insured driver to a yellow Audi being the vehicle that had pulled out in front of him suddenly and without indicating as he travelled in the left-hand lane, and that the police version of events was incorrect.
The Member agreed that the police version of events was not correct and there was no unidentified vehicle. After comparing the various versions of events and clarifying how some evidence filled gaps in other evidence, the Member determined that the vehicle described as being unidentified was in fact the claimant’s vehicle and that the accident was caused wholly by the claimant. She believed that after consideration of the material this was the plausible mechanism of accident. The Member did not consider the claimant was dishonest but that there was confusion at the scene, and he had been persuaded by differing reconstructions of the circumstances of the accident as they came to his attention.
In the alternative, if the QBE-insured driver was at fault, the Member considered there was likely to be a significant reduction for contributory negligence on the part of the claimant, and therefore the claimant would be mostly at fault.
Findings: The Member determined that the accident was caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28 of the Act. She accordingly did not need to consider the relevant insurer for payment of ongoing statutory benefits.
ACV v The Nominal Defendant [2022] NSWPIC 64
Member: Belinda Cassidy
MOTOR ACCIDENTS—claim against the Nominal Defendant for uninsured vehicle—single vehicle accident collision with pole during psychotic episode—whether the claimant was wholly or mostly at fault.
Medical evidence before the Member demonstrated the claimant had a longstanding history of mental health issues, including on a background of child abuse, PTSD and personality disorder. He had previously also had suicidal thoughts, brief psychotic episodes, audio-visual hallucinations, and delusions.
In the lead up to the accident, the claimant had five days of insomnia and anxiety and after a drug-induced sleep, experienced audio-visual hallucinations of figures he thought may kill or dismember him. He preferred to drive than be killed in his sleep and drove up to 180 km/h in an attempt to escape these figures and a desire to kill himself as a result of delusional beliefs that he was being pursued, when the accident occurred. He reported that in his delusional state after the accident he thought police had discovered him after the accident and left him, and also that his mother had been killed. He was detained by hospital staff as they considered he lacked capacity.
The Member was to determine whether the claimant was wholly or mostly at fault for the purposes of s 3.36 of the Act.
The claimant alleged that the accident was not wholly or mostly at fault, or in the alternative a no-fault accident, and that he was incapacitated by a medical condition, did not know what he was doing and therefore unable to control his car.
The insurer submitted that it was the claimant’s act or omission that caused the accident and that the claimant was suicidal and drove at speed into the pole.
Having considered all the evidence, the Member was satisfied that the claimant’s psychotic episode had manifested itself in hallucinations.
The Member noted she was to consider whether the claimant was wholly or mostly at fault pursuant to s 3.36 and that the no-fault provisions were of limited assistance.
The Member determined that the claimant was not solely responsible and therefore not wholly at fault because of his psychotic state. The Member found that the claimant’s actions were not voluntary or of his own will as a result of his psychotic state. She compared his condition to a person having a heart attack or stroke and losing control of a vehicle.
The Member considered whether the claimant was mostly at fault, and therefore whether the claimant’s contributory negligence was more than 61%. She referred to Axiak and that the standard of care the claimant was required to observe was the interests of his own safety.
The Member noted that the claimant was wearing a seatbelt at the time of the accident and had taken steps to prevent his behaviour causing an accident (such as chaining the gate at his property in an attempt to prompt him to recognise he was having a hallucination, and taking a sleeping pill on the day of the accident as he had recognised that his condition was deteriorating and his psychotic episodes were heightened by no sleep). She was therefore satisfied that he had “taken steps in the interests of his own safety but was not responsible, due to his psychotic state, for any conduct that might ordinarily accord with ‘contributory negligence’”.
Findings: The Member was satisfied that the claimant was not wholly or mostly at fault for the accident.
Kennedy v GIO Insurance (Australia) Ltd [2022] NSWPIC 62
Member: Ray Pilbersek
MOTOR ACCIDENTS—late claim for statutory benefits—refusal to pay weekly payments for period prior to claim being made—can time be suspended for disability under the Limitation Act 1969.
The claimant was involved in an accident on 10 October 2020 when his motorcycle hit a tree. A branch penetrated his foot requiring six operations; he was discharged from hospital in early January 2021. He lodged an application for personal injury benefits, more than 28 days later, on 9 January 2021. The insurer advised him weekly benefits would be paid from that date, not the date of the accident in accordance with s 6.13(2) of the Act, as the claim was lodged outside of 28 days from the date of the accident. The claimant sought an internal review, which confirmed the original decision. Accordingly, the matter was referred to the Commission for determination.
The insurer submitted that there was no discretion in the wording of s 6.13(2). The insurer also submitted that s 50F does not apply to statutory benefits and the claimant did not meet the definition of being a person under a disability/incapacitated person under that section.
The claimant contended that a literal reading of s 6.13(2) of the Act was oppressive and led to an absurd result, and that the Member was empowered to adopt the articles of the Universal Declaration of Human Rights to overcome this harshness. The claimant also submitted that s 50F of the Limitation Act 1969 applied as the claimant was a person under a disability as he was an incapacitated person for 28 days or more and therefore that time should be suspended
The Member noted that while s 6.13(2) may be seen as harsh or unfair, this is the outcome intended by the use of clear and unambiguous words in the legislation. The Member agreed that s 50F does not apply to the claimant’s case having regard to the decision of AFQ v GIO Insurance [2019] NSWDRS CA143-SIRA, which reached that conclusion. Accordingly, the Member did not need to consider whether the claimant met the definition.
Findings: The Member determined that the insurer was entitled to refuse payment of weekly benefits for the period before the claim was made.
Merit Review
Glover v GIO [2022] NSWPICMR 7
Merit Reviewer: Kriesen Seeneevassen
MOTOR ACCIDENTS—claim for statutory weekly benefits—calculating claimant’s pre-accident weekly earnings (PAWE)—self-employed service technician—meaning of gross earnings.
The claimant made a claim for statutory weekly benefits for loss of income as a result of an accident on 7 January 2021. He was a self-employed service technician at the time of the accident.
The insurer calculated the claimant’s PAWE to be $441.71 (based on net profits of $23,451). The claimant disagreed and sought an internal review. On internal review, the insurer maintained its position. The claimant disagreed with the internal review determination and proceeded to the Commission.
The claimant asserted that his gross earnings were $46,389.32 (based on total income of $67,225 less the cost of sales and variable expenses) and therefore PAWE of $872.96. The claimant submitted the only variable expense was a bad debt.
The Merit Reviewer determined that:
If earning equates to profit, then the term gross earnings has the same ordinary meaning as gross profits. That is, gross earnings are gross receipts (or income) less the immediate cost of production, or variable cost. It appears to me that gross earnings in the context of the self-employed is not net profit after accounting for all business expenses but before tax, as the insurer contends. In my view, this ordinary meaning of gross earnings supports the claimant’s submission that gross earnings should be interpreted as gross receipts less variable costs, or the immediate cost of production.
The Merit Reviewer calculated a total $41,039 based on gross profits and adding a portion of income from revenue other than business income, including government allowances. The Merit Reviewer determined that a total $15,987 variable expenses to be deducted including general expenses, motor vehicle expenses, printing postage and stationery, travel, accommodation and meals costs in addition to the bad debt. Gross earnings were therefore calculated to be $25,052 over a period of 53.14 weeks.
Findings: The Merit Reviewer determined that the claimant’s PAWE was $471.43 and varied the reviewable decision.
Watts v QBE [2022] NSWPICMR 8
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—claim for statutory weekly benefits—post-accident earning capacity—allegation that the claimant was overqualified for suitable roles identified.
At the time of the accident, the claimant worked as a casual accounts officer (as described in his claim form), though later alleged this was a senior credit controller/accountant role. A few days following the accident he returned to work but, was later terminated for unknown reasons. He obtained further employment but, this also ceased due to the lockdowns arising from the COVID-19 pandemic.
In considering the claimant’s entitlement to weekly benefits in the second entitlement period, the insurer submitted that the claimant had capacity to work up to 20 hours per week in roles that were identified as being reasonably suited to him by a rehabilitation provider, being a credit controller/finance clerk, accounts payable and/or administration worker. The claimant had a bachelor’s degree in accounting and submitted that he was overqualified for the roles identified, and therefore they were not suitable to him. Further he submitted that the insurer had not considered various increases and/or performance bonuses that would have been available to him but for the accident, in calculating his entitlement to weekly benefits
The insurer submitted that the claimant was entitled to weekly benefits at the rate of 85% of the difference between the claimant’s net pre-accident earning capacity as a credit controller and his net post-accident earning capacity.
The Merit Reviewer found that the claimant’s employment history demonstrated he had never realised the full potential of his accounting degree at any time in his career, as he had not practised or held the position of an accountant at any time. The Merit Reviewer also determined that the claimant’s role at the time of the accident did not specifically require a degree in accounting, or that the role was senior.
The Merit Reviewer commented:
The claimant’s submission that the roles he has been certified fit to perform are not suitable to him because he is overqualified is inconsistent with the objects of the MAI Act. In particular, it is inconsistent with the intention of the MAI Act that injured persons with capacity to return to employment stay off work only as long as is necessary to support their recovery…
If injured persons were only considered to have capacity to work in circumstances where they had capacity for their specific pre-injury employment or a role that requires all of their qualifications, training and skills and not just some of them then the objects of the MAI Act would not be fulfilled, as injured persons would stay off work longer having the benefit of weekly benefits, and premiums would increase.
She further determined that the Act and Guidelines did not allow for an assessment of pre or post-accident capacity to take into account such speculative matters, such as promotions or pay increases.
The Merit Reviewer considered the various medical evidence, the claimant’s age, education, training, skills and experience, and determined that the claimant had capacity to engage in one of the roles identified by the rehabilitation provider for at least 20 hours per week. In reaching this conclusion, the Merit Reviewer determined that the GP’s certificates of capacity were not reliable as the GP had conceded that the change in certification to the claimant having no capacity was based on the claimant reporting issues with the insurer paying weekly benefits.
The Merit Reviewer therefore agreed with the insurer’s determination of the amount of weekly benefits payable and further commented that the insurer was generous in that not only had the insurer assumed that the claimant would have worked full-time casual hours for the year (rather than taking some time off), but the insurer had chosen the role that earned the least when making its assessment.
Findings: The Merit Reviewer affirmed the reviewable decision.
Mula v NRMA [2022] NSWPICMR 9
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—claim for statutory weekly benefits—calculating claimant’s pre-accident weekly earnings (PAWE)—self-employed food delivery driver—depreciation of vehicle.
The claimant made a claim for statutory weekly benefits for loss of income as a result of an accident on 30 June 2021. He was a self-employed food delivery driver at the time of the accident and operated as a sole tradership. He was also in receipt of wage subsidy payments in relation to a prior accident (and in receipt of these payments also in the financial year prior).
The insurer calculated the claimant’s PAWE to be $544.70. The claimant disagreed and sought an internal review. On internal review, the insurer maintained its position. The claimant disagreed with the internal review determination and proceeded to the Commission.
The claimant asserted his earnings were between $1,000 and $1,500 per week. No submissions were made in support of this figure.
Of note, the insurer relied on a report prepared by a forensic accountant. While the forensic accountant considered the wage subsidy payment artificially inflated the claimant’s income, the insurer agreed to its inclusion in the claimant’s PAWE and therefore the Merit Reviewer did not need to consider the issue.
The Merit Reviewer determined the financial records demonstrated gross business income of $52,326 and total business expenses of $29,703, with the claimant’s gross earnings from his business being $22,623. Combined with the wage subsidy of $6,843, the claimant’s income was $29,466, which equates to $566.65 per week.
The Merit Reviewer did not agree with the forensic accountant’s opinion that the depreciation figure in deducting business expenses relating to a vehicle was not correctly calculated by the claimant’s accountant based on the purchase price/date. The Merit Reviewer noted there are several methods for calculating depreciation and that there was inadequate reasoning on the part of the forensic accountant, particularly having regard to the higher depreciation the claimant claimed in the tax return the year prior.
Findings: The Merit Reviewer determined that the claimant’s PAWE was $566.65 and varied the reviewable decision.
Zhao v Allianz [2022] NSWPICMR 10
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—claim for statutory weekly benefits—calculating claimant’s pre-accident weekly earnings (PAWE)—treatment of COVID-19 disaster payments—significant change in earning circumstances.
The claimant made a claim for statutory weekly benefits for loss of income as a result of an accident on 21 October 2021.
The insurer calculated the claimant’s PAWE to be $640.54. The claimant disagreed and sought an internal review. On internal review, the insurer varied its decision to $712.70. The claimant disagreed with the internal review determination and proceeded to the Commission.
The claimant submitted that the insurer had failed to include COVID-19 disaster payments in calculating the claimant’s PAWE and that the period of weeks for which he received the disaster payment should be excluded from the pre-accident period for calculating average weekly earnings.
The insurer disagreed and contended the disaster payments were excluded on the basis they were not “income from personal exertion” as defined in Schedule 1, clause 3 of the Act, and that the period should not be excluded.
The Merit Reviewer noted the commencement of employment with a new employer after the lockdown period (for which the claimant received disaster payments) but, prior the accident was a “significant change in the claimant’s earning circumstances”, which entitled the claimant to regularly earn more on a weekly basis than he was earning before the change occurred.
Therefore, the Merit Reviewer determined that the claimant’s PAWE was to be assessed under clause 4(3) of Schedule 1. Accordingly, the claimant’s PAWE was to be calculated based on the weekly average gross earnings received as an earner during the period from when the change of circumstance occurred to immediately before the accident.
In relation to the COVID-19 disaster payments, the Merit Reviewer noted the claimant did not receive them as an “earner” as he did not receive the payments for services rendered. She therefore determined that any such payments were to be excluded from the calculation of PAWE. While some of those payments were received for the period the Merit Reviewer had assessed was the relevant pre-accident period (though it was unclear why he had received those payments whilst employed), the payments were excluded as they were not categorised as earnings.
The Merit Reviewer therefore determined that the relevant pre-accident period for calculating the claimant’s PAWE was 7.14 weeks during which he was employed by his pre-accident employer prior to the accident and calculated the claimant’s PAWE on the basis of his gross earnings during that period.
Findings: The Merit Reviewer determined that the claimant’s PAWE was $1,787.20 and varied the reviewable decision.
Khadka v CIC Allianz [2022] NSWPICMR 11
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—claim for statutory weekly benefits—post-accident earning capacity—calculation of pre-accident earning capacity—working restrictions on visa.
The claimant was on a bridging visa and had a work restriction of 20 hours per week. On that basis, initially her pre-injury earning capacity was assessed at 20 hours per week and PAWE $534.
However, the work restriction on his visa was then lifted. The insurer made a post 78-week earning capacity decision. The insurer submitted that apart from the work restriction being lifted, there was no evidence that more than 20 hours per week would have been available to her, and therefore her pre-accident earnings were limited to her 20 hours per week earnings.
The dispute before the Commission was in relation a period of no post-accident earning capacity following shoulder surgery and recovery. Prior to the surgery, the claimant was certified by medical professionals as having capacity to work 40 hours per week. The claimant challenged the insurer’s assessment of her pre-accident earning capacity for the purpose of a claim for weekly benefits for that period. Weekly benefits for the second entitlement period are based on the difference between the person’s “pre-accident earning capacity” and the person’s “post-accident earning capacity”.
The Merit Reviewer highlighted that “pre-accident earning capacity” required a consideration of the type of employment reasonably available to the claimant if she was to realise her full potential to earn in view of her training, skills and experience, not whether more than 20 hours of work be made available to the claimant. The Merit Reviewer noted that none of the occupations identified as being available to her in a vocational assessment, or that are available to her by virtue of her training, skills and experience, did not have a restriction on the number of hours a person might expect to be able to work. It was further noted there was nothing in the meaning of pre-accident earning capacity that required an assessment of whether full-time hours would have been specifically available. The Merit Reviewer therefore did not consider the visa restriction a relevant consideration to the determination of pre-accident earning capacity.
The Merit Reviewer determined:
The distinction between pre-accident and post-accident earning capacity effectively means there is to be a theoretical assessment of pre-accident earning capacity (that is, what the claimant could have earned if she had realised the full earning potential arising from her training, skills and experience) and a practical assessment of post-accident earning capacity (that is, a practical assessment of the extent to which the claimant is able to realise that theoretical earning capacity, post-accident).
The Merit Reviewer further determined that if the claimant were to realise the full potential to earn (without visa or other such restrictions relevant to pre-accident earning capacity), based on her specific training, skills and experience, in employment as a housekeeper, administrative assistant, guest services officer, customer services officer or retail worker, there was no reason why she would not expect to earn in such employment on a full-time basis.
Therefore, the claimant’s pre-accident weekly earning capacity was to be assessed based on the average full-time equivalent in such an occupation and not the casual hourly rate that was considered in calculating the PAWE. The Merit Reviewer noted that such a calculation based on the claimant’s casual hourly rate would be inflated due to casual loading.
Findings: The Merit Reviewer determined the claimant’s pre-accident earning capacity was to be calculated based on the average weekly earnings of a hotel housekeeper employed on a full-time permanent basis.
The Merit Reviewer considered an hourly rate based on reducing the claimant’s casual hourly rate by an adopted likely casual loading percentage when calculating the claimant’s pre-accident weekly earning capacity based on full-time hourly rates but could not be comfortably satisfied that the correct figure was reached. The matter was therefore remitted to the insurer for reconsideration.
Review Panel Determination
Insurance Australia Limited t/as NRMA v McCabe [2022] NSWPICMR 25
Review Panel: Member Belinda Cassidy, Medical Assessor Neil Berry, Medical Assessor Michael McGlynn
MOTOR ACCIDENTS—review panel determination—damage to breast implant requiring removal and mastectomy—permanent impairment of left breast or mammary gland.
The claimant sustained a number of injuries as a result of a motor vehicle accident, including to her left breast. The claimant had breast implants for 25 years prior to the accident. It was suspected the left implant had ruptured due the accident and it was also suspected that the right implant had as well. Both implants were therefore removed. It was later confirmed that silicone had leaked into the breast tissue and lymph nodes.
The claimant was assessed by Medical Assessor Curtin at 8% WPI in relation to a breast injury due to the combination of a breast deformity and risk of ongoing complications caused by the accident. The Medical Assessor noted the risk of potential complications, which he assessed by analogy to facial deformities due to similar cosmetic and emotional penalties.
Medical Assessor Dixon assessed 16% WPI in relation to the claimant’s other physical injuries (neck (5%), left shoulder (7%) and right shoulder/arm (4%)). The Medical Assessor issued a combined certificate.
The insurer lodged an application for review in relation to both certificates. In addition to various grounds in relation to Medical Assessor Dixon’s Certificate, the insurer submitted that Medical Assessor Curtin had used the incorrect methodology in using analogy rather than applying clause 6.257 of the Guidelines, which specifically provides that an injury to the breasts causing damage to breast implants must be assessed as a skin impairment class 1, and that by referring to the prospect of future deterioration, the Medical Assessor breached clause 6.21 of the Guidelines. The claimant opposed the application and noted the injury to the breast was caused by the removal of breast implants and that under the skin impairment table, the range in any event is 0-9%.
The application for review was accepted. Thereafter the claimant served further evidence that demonstrated the claimant had developed granulomas in her left breast, which her treating plastic surgeon considered were likely caused by the leaked silicone. A left breast mastectomy was recommended because the granulomas would be difficult to distinguish from malignancies. A left breast implant and right breast reduction for symmetry were also recommended. These operations were performed, and the insurer agreed they were causally related to the injury and accident.
At the Panel’s direction, the insurer provided further submissions in response to the Panel drawing the insurer’s direction to clause 6.256 of the Guidelines, which provides that total loss of one or both mammary glands is deemed to be an impairment of greater than 10% WPI. The insurer did not concede that the claimant’s WPI was greater than 10% and did not withdraw its application, submitting that as the claimant had a reconstruction of the left breast, it can be argued that the claimant had not suffered a total loss of her left mammary gland as it had been restored to a “substantially similar state to that which existed before the accident”.
However, the Panel disagreed.
Firstly, the Panel commented the implant that has now been inserted into the claimant’s left breast is not a prosthesis enhancing an existing breast but a replacement of an absent breast (removed by surgery), which it concluded was a substantial difference.
The Panel considered the mastectomy operation reports in detail and noted that while the skin of the claimant’s left breast was preserved, her nipple, aureole and “the whole of the internal parts” of the claimant’s left breast were extracted including the ligaments and fatty tissue, the lobules and ducts that “form part of the system of lactation in the mammary gland in its narrow sense”.
The Panel commented that if the claimant were of childbearing age, she would have no part of the lactation system in place and would be unable to breastfeed. The Panel notes the Guidelines do not distinguish between the loss of a mammary gland in a male or female be they pre-pubescent, in their child-bearing years or post-menopausal.
The Panel took the view, noting that the assessment of the mammary glands is provided for in the AMA4 Guides in the endocrine chapter, that the reference to “mammary glands” in clause 6.256 was a reference to it in its glandular and more specific sense and determined that the clause applied.
The Panel noted that if the claimant had not had the mastectomy, then clause 6.257 would have applied instead.
Given that the Panel had reached the conclusion it had in relation to the permanent impairment of the claimant’s breast/mammary gland injury, and deemed the claimant’s permanent impairment to be over 10% WPI in accordance with clause 6.256, the Panel did not need to proceed with determining the remainder of the issues in relation to the claimant’s orthopaedic injuries. The certificates of both Medical Assessor Curtin and Medical Assessor Dixon were revoked (the latter being a combined certificate), but the Panel noted that the new combined certificate would neither confirm or revoke Medical Assessor Dixon’s assessment.
