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Welcome to the 40th 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.

Medical Review Panel decision

Fisher v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 27

Review Panel: Member Belinda Cassidy, Medical Assessor Margaret Gibson, Medical Assessor Shane Moloney

MOTOR ACCIDENTS—Medical Review Panel decision—WPI assessment—pre-existing impairment.

The claimant sustained injuries to her neck and lower back following an accident on 31 December 2017. She claimed damages for non-economic loss but the insurer declined to concede the relevant threshold, being that the permanent impairment arising from her accident-related injuries exceeded 10%.

The issue of WPI was initially determined by Medical Assessor Alan Home. In a certificate dated 12 May 2021, he assessed total impairment at 10%. This comprised of 5% WPI for the neck injury, and 5% for the lower back injury.

With respect to the lower back injury, Assessor Home assessed the claimant’s current impairment at 10% WPI, based on the presence of lumbar radiculopathy, but deducted 5% WPI for pre-existing impairment. The Assessor determined that the well-documented history of lower back pain with referred pain down her left leg warranted that deduction.

Importantly, Assessor Home considered the TEMSKI scale for the assessment of scarring, but concluded that the claimant’s scars did not give rise to permanent impairment.

The claimant lodged an application for review of Assessor Home’s assessment. She said that a deduction should not have been made for pre-existing lower back impairment as she had largely recovered from her pre-accident symptoms by the time the subject accident occurred, and that the Assessor incorrectly determined scarring.

There was no dispute between the parties as to Assessor Home’s assessment of the claimant’s neck.

Findings: The Panel found the claimant’s reporting that she had recovered from her pre-accident lower back injuries by the time of the subject accident was inconsistent with the treating evidence, which documented ongoing complaints and treatment for her radicular symptoms. The Panel accordingly affirmed Assessor Home’s 5% WPI assessment with respect to lower back.

However, the Panel disagreed with Assessor Home’s assessment of nil impairment with respect to scarring. Applying the TEMSKI scale, they assessed scarring at 1% WPI.

The Panel accordingly revoked Assessor Home’s certificate, and issued a Review Panel certificate, certifying that the impairment arising from the claimant’s injuries was greater than 10%. The final impairment rating was 11%, being 5% WPI each for the neck and lower back, and 1% WPI for scarring.

View decision

Claims Assessment - Settlement Approval

AAMI v Banh [2022] NSWPIC 68

Member: David Ford

MOTOR ACCIDENTS—settlement approval—liability admitted—Compensation to Relatives claim—deceased not working at time of accident—claims for funeral expenses, loss of services, and installation of home security system only—legal advice—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.

The deceased, the Late Tang Banh, was fatally injured in a motor vehicle accident on 23 October 2019. He was 79 years old when he passed.

The claimant’s wife lodged a claim under the Compensation to Relatives Act. The insurer accepted liability for the claim. The parties agreed to resolve the claim for the sum of $116,007.27. That sum included funeral expenses totalling $79,588.01, past and future loss of services quantified at $22,948.76 and $12,470 respectively, and $1,000 for the cost of the installation of a home security system.

As the claimant was not represented by solicitors, the settlement had to be approved by the Commission pursuant to s 6.23 of the Act.

During the course of the settlement approval process, the Member raised concerns regarding the terms of settlement, particularly clauses in the deed that precluded the claimant and other family members from lodging claims for nervous shock. The Member also queried whether the claimant was content with the sum allowed for future loss of services. In view of these concerns, the Member suggested to the claimant that she seek legal advice.

After a number of teleconferences, the claimant advised the Member that she did not wish to seek legal advice, and was content with the sums allowed in the proposed settlement.

Findings: The Member accepted the proposed settlement sum of $116,007.27 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing and accordingly approved the settlement.

View decision

Miscellaneous Claims Assessment

Shamoun v Allianz [2022] NSWPIC 67

Member: Maurice Castagnet

MOTOR ACCIDENTS—miscellaneous claims assessment—dismissal of proceedings for serial non-compliance with directions—whether claimant prosecuted claim with due despatch—proceedings dismissed.

The claimant claimed statutory benefits following an accident on 28 April 2020. The insurer declined liability for benefits after 26 weeks, having determined that the claimant was wholly at fault. The claimant disputed this decision and lodged an application with the Dispute Resolution Services, as it then was, on 9 November 2020.

The first teleconference in the dispute took place on 12 January 2021. The Member directed the claimant to serve a statement as to the circumstances of the accident.

The claimant failed to comply with the initial direction to serve his statement. The Member subsequently granted three extensions of time for the claimant to provide that statement, but one was never served nor lodged.

At the fourth Preliminary Conference, the claimant’s solicitor advised that she was no longer instructed to act for the claimant. At the fifth Preliminary Conference, the claimant appeared self-represented and was granted a further extension of time to serve a statement. He did not do so and made no appearance at the sixth and seventh Preliminary Conferences.

A further, and final, extension of time was granted on 25 October 2021, for the claimant to lodge his statement by 8 November 2021. The claimant also failed to comply with this direction.

Given the claimant’s serial non-compliance with directions, the Member considered whether to dismiss the proceedings for want of due despatch.

Findings: The Member concluded that the claimant had failed to engage constructively in the proceedings and comply with multiple directions. He accordingly concluded the claimant failed to prosecute his proceedings with due despatch and dismissed the proceedings pursuant to s 54 of the Personal Injury Commission Act and rule 77(b) of the Personal Injury Commission Rules.

View decision

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