Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 4621 April 2022
Welcome to the 46th 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.
Panel Review Determination
Obeid v AAI Ltd t/as AAMI  NSWPICMP 76
Panel: Principal Member John Harris, Dr Drew Dixon, Dr Geoffrey Stubbs
MOTOR ACCIDENTS—review panel determination—no jurisdiction to determine claim for medical expenses not incurred or provided—right shoulder surgery and diagnostic blocks.
The claimant had sought approval for an arthroscopy and rotator cuff repair of the right shoulder proposed by Professor Murrell and a diagnostic lumbar facet joint block and caudal epidural block proposed by Dr Ho. The insurer affirmed its decision to deny agreeing to pay for this treatment on internal review.
Accordingly, the claimant referred treatment disputes to the Commission, which was referred to Medical Assessor Woo. Medical Assessor Woo determined that none of the proposed treatments related to injury caused by the accident and were not reasonable and necessary in the circumstances. The claimant lodged an application for review.
The insurer submitted that the application should be dismissed as the dispute was not a “medical assessment matter” pursuant to Schedule 2, clause 2(b) of the Act, which provides
“whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care).”
Accordingly, the issue before the Panel was could it determine whether treatment not yet provided or incurred was reasonable or necessary and causally related to an accident.
The Panel considered the relevant provisions at length and also compared those provisions to the Motor Accident Compensation Act 1999 (MAC Act).
Specifically, the Panel noted that s 58 of the MAC Act defined medical assessment matters to include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances.” However, the Act does not include the words “to be provided”.
The Panel concluded that it was “difficult to read words into clause 2(b) when the words “to be provided” were included in the MAC Act and seemingly intentionally left out of the relevant provision in the MAI Act. That can be contrasted with various provisions that have been copied over from the MAC Act to the MAI Act.”
Further, in considering the context of the relevant provision, the Panel analysed s 3.24 of the Act, which provides:
“(1) An injured person is entitled to statutory benefits for the following expenses ("treatment and care expenses") incurred in connection with providing treatment and care for the injured person--
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided…”
The Panel found it was arguable that the context of “incurred” was not limited to past tense, but the preferred construction of the wording suggested the provision related to expenses that had already been incurred, which was consistent with s 3.27 of the Act. That section provides that no statutory benefits are payable unless the expenses are verified in accordance with the Guidelines.
Therefore, it was concluded that s 3.24 does not provide an entitlement to enforce a claim for future expenses.
The claimant had submitted that a broad beneficial interpretation of the Act should apply, but the Panel did not agree highlighting that the Act significantly reduced entitlements to damages that existed under the MAC Act. Furthermore, while the Panel considered authority that a construction appearing unjust or irrational should be avoided and agreed it might be considered unjust that the claimant was without remedy unless he incurred the expense of the treatment, the Panel concluded that this did not satisfy the “unjust” criteria. In any event, the Panel did not consider such interpretation was required and considered the issue was of policy and “a matter for the legislature”.
The claimant had also suggested in submissions that if the dispute was not a “medical assessment matter”, then the dispute could be determined as either a merit review matter or miscellaneous claims assessment. While the Panel was not required to consider this issue, it commented that:
“there is a “catch all” under miscellaneous claims assessment matters for any other issue of liability for statutory benefits in clause 3(n). However, our view is that clause 2(b) refers back to s 3.24 and probably encompasses the totality of any liability dispute under that provision. This interpretation of the relevant provisions would mean that clause 3(n) would have no operation with respect to any liability under s 3.24.”
Clause 3(n) refers to “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule”.
Findings: The Panel determined that it did not have the power to determine the dispute as it was not a “medical assessment matter” as the treatment had not been provided and no liability to pay for the treatment had been incurred.
Further it considered that the Certificate of Medical Assessor Woo should also be revoked as “it would be unfair to leave a certificate made without power undisturbed”.
Kerde v AAI Ltd t/as AAMI  NSWPICMP 74
Panel: Member Belinda Cassidy, Dr Alan Home, Dr Neil Berry
MOTOR ACCIDENTS—review panel determination—permanent impairment dispute.
The claimant alleged injuries to the right knee, right shoulder, cervical, thoracic and lumbar spine, and gastrointestinal system as a result of a rear end collision on 24 January 2017.
At first instance, Medical Assessor Cameron found injuries only to the right knee, lumbar spine and cervical spine and assessed a total 0% WPI. The claimant lodged an application for review on various grounds, including that the Medical Assessor had not provided his path of reasoning for findings on causation.
Following examination by the Panel, the following observations were made:
- The claimant reported his neck pain had resolved and there was no abnormality on examination. The Panel diagnosed a soft tissue injury to the cervical spine, which had resolved.
- The claimant demonstrated muscle guarding and dysmetria at the lumbar spine. He reported referred pain into the buttocks and back of thigh, which was not consistent with radiculopathy. The Panel diagnosed a soft tissue injury aggravating a pre-existing condition with somatic referred pain and assessed DRE II and 5% WPI.
- The Panel observed moderate crepitation in the right knee, some restriction of movement and patella femoral pain. The mechanism of injury to the right knee involved a direct impact and therefore the Panel assessed 2% WPI in accordance with the note on page 82-83 of the AMA4.
- The Panel found that the claimant’s mild gastritis (diagnosed on investigative endoscopy and gastroscopy) was causally related to the accident as it was the result of taking medication to treat his musculoskeletal injuries. There was no history of prior gastrointestinal issues and while the claimant had recently ceased his medication, he was still experiencing vomiting, upper abdominal pain and diarrhoea. The Panel assessed 1% WPI noting that the claimant’s weight was maintained, he was not having continuous treatment or medication but was still experiencing mild symptoms.
- The Panel was not satisfied that the claimant had suffered injuries to the thoracic spine or right shoulder. The Panel found that there was no evidence of early thoracic pain and only recent complaints of such pain, and that there was no direct injury to the right arm or shoulder or restriction secondary to cervical spine injury.
Findings: The Panel determined that the claimant’s permanent impairment was 8% WPI, and therefore not greater than 10% WPI.
Allianz Australia Insurance Ltd v Zou  NSWPICMP 69
Review Panel: Principal Member John Harris, Dr Mohammed Assem, Dr Margaret Gibson
MOTOR ACCIDENTS—review panel determination—permanent impairment dispute—inconsistent or no range of motion.
The claimant alleged injuries to the neck, right shoulder, lower back and right knee as a result of a rear end collision on 2 December 2017.
At first instance, Medical Assessor Woo assessed 16% WPI., having found dysmetria at the cervical spine, restricted movement of the lumbar spine and loss of range of motion of the right shoulder equating to 8% WPI.
The insurer lodged an application to refer a dispute to the Panel in relation to permanent impairment. The submissions largely were based on the Medical Assessor’s failure to consider the lack of contemporaneous evidence of some of the injuries.
The Panel re-examined the claimant and noted that the range of motion displayed was even less than those identified in other assessments by the parties’ experts and other Medical Assessors.
In relation to the cervical spine, it was accepted there was an ongoing neck condition and that there was contemporaneous evidence of reports of pain despite not being initially reported to the ambulance officers. Right arm symptoms were not consistent with radiculopathy. However, the claimant had a complete absence of neck movement, which was considered by the Panel to not be medically explicable, inconsistent with previous reporting and not asymmetric. Accordingly, the cervical spine injury was assessed at DRE I.
The Panel determined there was no distinct and separate right shoulder diagnosis or pathology, and that any soft tissue injury likely resolved. It was agreed that any loss of movement was due to referred pain from the cervical spine and therefore impairment was assessed in accordance with Nguyen. As the Panel considered the goniometer measurements were unreliable, the right shoulder was assessed by way of analogy to moderate crepitation of the left AC joint and assessed 3% WPI.
The Panel noted the lack of contemporaneous evidence of lower back complaints, with pain first being noted a couple of weeks post-accident. The Panel, however, found the accident was of “sufficient magnitude” to cause low back pain and that there were no other causes at the time. While on examination the claimant had marked restriction, there was no muscle guarding, spasm, dysmetria or signs of radiculopathy. The Panel assessed DRE I.
While the Panel accepted the mechanism of injury of the claimant striking his knee during the accident, it was not satisfied that the claimant would have sustained the pathology demonstrated on MRI scan. Further, there was full range of motion with no crepitation, and therefore there was no permanent impairment of the right knee as a result of the accident.
Findings: The Panel determined that the claimant suffered soft tissue injuries to the cervical spine, right shoulder and right knee and aggravation of degenerative changes in the lumbar spine and assessed the claimant’s permanent impairment as not greater than 10% WPI.
Miscellaneous Claims Assessment
Chit v Allianz Australia Insurance Limited  NSWPIC 139
Member: Maurice Castagnet
MOTOR ACCIDENTS—miscellaneous claims assessment—no reduction of statutory benefits due to contributory negligence—insured bus driver overtaking cyclist.
The claimant made a claim for statutory benefits arising from an accident where he was cycling in the Sydney CBD when he was struck by the insured bus. The claimant had travelled in both lanes 1 and 2 (a bus lane) and shortly before the collision had changed into the bus lane to avoid a parked vehicle in lane 1. The evidence suggested the back of the claimant’s bicycle was hit by the front left wheel of the bus and then hit again at the rear left side of the bus.
At first instance, the insurer declined liability for statutory benefits after 26 weeks on the basis that the claimant was wholly at fault. On internal review, the insurer revised its decision to accepting liability with a reduction of 25% for contributory negligence.
The insurer alleged that the claimant failed to make his intention to change lanes known or give sufficient warning to the insured bus driver and therefore did not comply with rule 48 of the Road Rules.
A dispute was referred to the Commission in relation to whether the insurer was entitled to reduce the payable statutory benefits in accordance with s 3.38 of the Act for contributory negligence.
Having considered the evidence of the parties and the parked vehicle owner, including an apology letter from the insured driver, the Member determined that the insured driver had been aware that the claimant was travelling between both lanes for more than a minute prior to the accident, was travelling behind the claimant, and had time to observe the hazard of the parked car and to observe the claimant’s manoeuvre to avoid the hazard.
Finally, while the Member found that the claimant did not indicate his intention to change lanes, he did not consider the failure to do so contributed to the accident. He considered that the insured driver was not looking and had “lost appreciation and perspective” the claimant’s position on the road, as was admitted in the apology letter.
Findings: The Member found that the insured driver had made an unsafe and dangerous manoeuvre by overtaking the claimant when it was unsafe to do so. Accordingly, he determined that there should be no reduction of statutory benefits for contributory negligence, effective from six months after the accident
Huynh v Allianz Australia Insurance Limited  NSWPICMR 20
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—claim for statutory weekly benefits—calculating claimant’s pre-accident weekly earnings (PAWE)—self-employed claimant—treatment of depreciation and alleged income splitting payments to family members.
The claimant made a claim for statutory weekly benefits for loss of income resulting from a whiplash injury and an associated right brachial plexus injury to the right shoulder in the motor vehicle accident on 15 February 2019. He had a right shoulder arthroscopy and labral and cuff repair surgery but was otherwise treated conservatively.
Prior to the accident he had worked 40 years as a metal bending machine operator in a factory environment with the same employer. He received and followed instructions given in English. It was agreed that the claimant’s pre-accident earning capacity was $1,173 net per week.
The insurer determined that the claimant’s weekly benefits in the third entitlement period were $115.60 based on the claimant’s earning capacity, having regard to certificates of capacity and a vocational assessment, both of which suggested the claimant had capacity to work as a picker/packer or assembler working 40 hours per week. The decision was affirmed on internal review.
The claimant relied on the opinion of Dr Dias who opined the claimant was totally unfit. He also contended that he was incapable of working the identified roles due to his limited English skills, education and his age (62).
The Merit Reviewer confirmed that she had jurisdiction to determine the dispute as she could decide the amount payable based on earning capacity established on the balance of the evidence.
The Merit Reviewer found that that the evidence supported the claimant was a desirable candidate to employers due to his loyalty to his pre-accident employer, that his age, education and limited English were not likely a hindrance to working in the roles identified, that he had several transferable skills relevant to those roles and the benefit of rehabilitation services. The Merit Reviewer further preferred the evidence of the GP and Rehabilitation Provider to Dr Dias, particularly noting Dr Dias did not have all the evidence available to him and that he only examined the claimant once.
Findings: The Merit Reviewer affirmed the insurer’s decision on the basis that the claimant had capacity to work in the roles identified by the rehabilitation provider on a full-time basis.
Nouri v Insurance Australia Limited t/as NRMA Insurance  NSWPICMR 19
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—claim for statutory weekly benefits—calculating claimant’s pre-accident weekly earnings (PAWE)—claimant failure to provide submissions or supporting documents.
The claimant made a claim for statutory weekly benefits for loss of income in the motor vehicle accident on 17 July 2020.
The insurer calculated the claimant’s PAWE to be $807.28 allegedly based upon the period of 18 January to 16 July 2020, after first calculating the PAWE to be $207.35 based on an extended period commencing 19 August 2019 to 16 July 2020. The calculation of $807.28 was affirmed on internal review.
The Merit Reviewer was critical of the claimant who, despite being legally represented, did not provide any submissions setting out how the PAWE should be calculated, though suggested the dispute was that the PAWE was calculated based on net rather than gross earnings. The claimant also failed to provide various financial records sought under direction.
The Merit Reviewer considered the payslips available to her for the 52 weeks prior to the accident, which suggested gross earnings on a fortnightly basis of $390. It was noted the claimant was employed by on a casual basis and during that period had taken a number of weeks leave. The Merit Reviewer also referred to the claimant’s assertion in the application for personal injury benefits that he earned $195 gross per week.
The Merit Reviewer considered the insurer had inadvertently incorporated payslips that post-date the accident from another employer in the calculation of $807.28. There was no evidence before the Merit Reviewer in relation to pre-accident income from this employer or any other employment, though the Merit Reviewer suggested the insurer verify any such earnings by independent means such as a tax return and notice of assessment if the claimant requested the inclusion of such earnings.
Findings: The Merit Reviewer accordingly calculated the claimant’s PAWE to be $150.58 gross per week by dividing the total gross income for the preceding year by 52 weeks and set aside the insurer’s decision.