Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 6728 September 2022
Welcome to the 67th 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
Insurance Australia Limited t/as NRMA Insurance v Lang  NSWPIC 481
Member: Susan McTegg
MOTOR ACCIDENTS—settlement approval—non-economic loss—claimant under legal incapacity as a result of injury and age-related cognitive deficit—appointed representative.
On 11 September 2020, the claimant was a passenger in a vehicle when it was involved in a motor vehicle accident. As a result of the accident, the claimant suffered multiple injuries. The claimant is now 90 years of age and at the time of the accident she was 88 years of age.
The claimant made a common law damages claim and liability was accepted. The parties agreed to settle the claim for lump sum damages for the sum of $200,000 for non-economic loss.
As the claimant was not represented by a solicitor, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act. The claimant’s daughter, who holds a Power of Attorney for the claimant, has been appointed as her authorised representative in relation to the claim.
Findings: The Member accepted the proposed sum of $200,000 was just, fair and reasonable and the range of damages likely to be awarded if the matter had progressed to hearing.
Insurance Australia Limited t/as NRMA Insurance v Warner  NSWPIC 479
Member: Belinda Cassidy
MOTOR ACCIDENTS—settlement approval—claimant is not legally represented—past economic loss—claimant has returned to full time work.
The claimant is a 24-year-old female who was injured in a motor accident on 6 February 2019. At the time of the accident, she was 20 years old and was riding her motorbike in a car parking area, when the insured vehicle reversed into her, knocking her to the ground. As a result of the accident, the claimant sustained burns to both sides of her left calf when her leg was caught between the hot exhaust of the car and the hot engine of her motorbike.
The claimant made a common law damages claim and liability was accepted. The claimant makes no claim for future loss of earnings or earning capacity as there is no impairment to her earning capacity in the future as a result of this accident. The insurer made an offer of $9,858.96 for damages, which the claimant accepted. However, as the claimant was not represented by a solicitor, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
Findings: The Member accepted the proposed sum of $9,858.96 was just, fair and reasonable and the range of damages likely to be awarded if the matter had progressed to hearing. This amount reflected $3,863.84 paid in weekly benefits and reimbursement of $824 in income tax paid by the insurer on statutory benefits. The remainder of the settlement sum represented lost “past earnings”, which the claimant indicated was by way of compensation for lost shifts and work she may have been able to do but for the accident.
The Member confirmed that the claimant was not entitled to non-economic loss as the only assessable injury is her scarring, which was assessed below the 10% threshold. Similarly, the Member found that the claimant’s psychological injury did not satisfy the 10% threshold based on the claimant’s evidence, her return to work, her resumption of sport and continuation of domestic activities.
AAI Limited t/as GIO v Solis  NSWPIC 472
Member: David Ford
MOTOR ACCIDENTS—settlement approval—claimant is not legally represented—non-economic loss—no allegation of contributory negligence.
On 21 November 2018, the claimant was a passenger on a state transit bus travelling from Lane Park to Park Street, Town Hall NSW. The claimant is currently 76 years of age and at the time of the accident she was standing on the bus when the bus driver suddenly braked to avoid colliding with another motor vehicle. As a result, the claimant was thrown backwards, falling to the floor of the bus and suffered an acute L1 anterior wedge fracture and bilateral rib fractures.
The claimant made a common law damages claim and liability was accepted. The insurer arranged for Dr Barrett, orthopaedic surgeon, who assessed the claimant’s whole person impairment (WPI) at 20% based upon DRE I lumbosacral impairment. The insurer therefore conceded the claimant was entitled to non-economic loss. The claimant had not sought damages for either past or future economic loss.
As the claimant was not represented by a solicitor, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
Findings: The Member accepted the proposed sum of $150,000 was just, fair and reasonable and the range of damages likely to be awarded if the matter had progressed to hearing.
Cimen v AAI Limited t/as GIO  NSWPIC 482
Member: Susan McTegg
MOTOR ACCIDENTS—claims assessment—economic loss—consistency—residual earning capacity—consistency of presentation—assessment of damages.
The claimant is a 33-year-old male who was injured in a motorbike accident on 10 December 2017. At the time of the accident, he was 28 years of age. The claimant alleges that he sustained injuries to the neck, thoracic spine, lumbar spine, right knee, left knee and psychological injury.
The claim was referred to the Commission for determination of the following disputes:
- the reliability of the claimant’s evidence
- the extent to which the accident has resulted in an impairment of the claimant’s earning capacity, and
- the amount of the claimant’s pre-injury earnings.
The Member was to determine the quantum of the claimant’s past economic loss and future economic loss.
The claimant stated that he continues to suffer pain and discomfort in the right side of his neck, right shoulder, mid back, right elbow and upper right arm. He stated that he has right knee pain, which is exacerbated by kneeling or going up and down stairs. The claimant also stated he suffers from anxiety and panic attacks and that he resumed treatment with a psychiatrist and psychologist.
Dr Marsh, occupational physician, assessed the claimant at the request of the insurer who reported that the claimant demonstrated features of exaggerated pain behaviour and increased pain focus. Dr Marsh also reported that there was no clinical evidence of radiculopathy or of any pathology involving the right knee however on examination the claimant reported suffering pain.
The insurer also obtained reports from Dr George, psychiatrist, and Dr McMahon, clinical psychologist. Dr George reported that the claimant was “extremely talkative and able to laugh and giggle” despite scoring extremely severely for depression, anxiety and stress and as such recommended forensic psychological testing to validate the claimant’s subjective report.
Dr McMahon performed the Test of Memory Malingering and Trauma Symptom Inventory Test on the claimant on 9 September 2020. On examination, Dr McMahon found feigning spectrum behaviour and concluded he was precluded from making an accident-related diagnosis.
Dr George provided a supplementary report following his review of the claimant on 21 June 2022 and found that the claimant was an inconsistent historian. Dr George considered the test results of Dr McMahon and determined that he was not prepared to diagnose the claimant with an ongoing disorder. Dr George considered that there was no reason why the claimant could not participate in employment from a psychiatric point of view.
The claimant was assessed by Assessor Kenna who issued a certificate dated 2 June 2021. On examination, Assessor Kenna reported inconsistencies in the claimant’s symptomology. While Assessor Kenna noted the claimant’s range of movement of the neck was uniformly restricted by 30%, there was no abnormality on neurological tests in relation to reflexes, muscle power and dural tension tests. Assessor Kenna also found a full range of movement of the thoracic spine and did not observe any abnormalities on examination.
Similarly, the claimant had a full range of motion and no asymmetry of the lumbar spine with no muscle guarding or spasm. Assessor Kenna did not observe any neurological deficit in either lower limb, noted any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint. Regarding the right upper arm, Assessor Kenna concluded that the range of movement would be unreliable indicator with regard to impairment assessment due to the lack of consistency. Assessor Kenna reported that the claimant’s right shoulder AC joint had been repaired and that he had excellent muscle build over the right upper quadrant.
Assessor Kenna found that the claimant’s overall presentation belied the limited level of mobility he was prepared to demonstrate at the assessment. Assessor Kenna determined that the claimant sustained soft tissue injuries to his cervical spine, thoracic spine, lumbar spine, right knee and left knee as a result of the motorbike accident. The claimant was assessed at 6% WPI for right shoulder dislocation and surgical repair of right should A/C and scarring.
On 28 July 2021 the claimant was assessed by Assessor Samuell who issued a certificate dated 6 August 2021.
Assessor Samuell referred to inconsistencies in the physical reports and strong evidence from Dr McMahon and inconsistencies both he and Dr George identified, which he considered were sufficiently severe to undermine a reliable psychiatric diagnosis. Accordingly, Assessor Samuell concluded a psychiatric diagnosis could not be made.
Findings: The Member made the following determination:
- Reliability of the claimant’s evidence
The Member found that the claimant is pain focused and pain avoidant. The Member accepted that the claimant sustained a right shoulder dislocation requiring surgery, followed by the development of frozen shoulder, which has now largely recovered. He also accepted that the claimant experiences pain and restriction of movement as a result of soft tissue injuries to his cervical spine, thoracic spine, lumbar spine, right knee and left knee. The Member accepted that the claimant continues to suffer from a major depressive disorder with anxiety symptoms.
As for reliability, the Member noted that it was difficult to assess to what extent the claimant’s presentation is as a result of his psychological overlay. However, the Member determined that he is not satisfied the claimant is as disabled as he alleges nor that he has no residual work capacity.
- Past economic loss
The Member calculated the claimant’s past economic loss in the sum of $954 gross per week ($787 net per week) based on his payslips from Steve’s Eggs.
The assessment of the claimant’s past wage loss was calculated at a loss of $787 net per week for 248 weeks totalling $195,176 plus superannuation at 9.5%, being $18,541.72.
- Future economic loss
The Member calculated the claimant’s future wage loss on the basis of total incapacity for work for the next two years and thereafter on the basis the claimant has a residual earning capacity for 20 hours per week in alternative sedentary work.
The Member referred to the report of Vocational Capacity Centre and assessed the claimant’s residual earning capacity for the remainder of his working life in the sum of $500 net per week. A discount of 15% vicissitudes of life was also applied.
Accordingly, the claimant’s future wage loss was assessed in the sum of $557,404.93 plus superannuation at 14.49%, being $80,767.97.
- Fox v Wood
The Member assessed the sum of $9,967 for the claimant to recover taxation payments deducted from statutory payments of compensation.
The Member determined that the claim for the loss of the deposit payment on the tipper truck purchased in the sum of $15,000 could not be categorised as a loss of earnings or deprivation or impairment of earning capacity pursuant to s 4.5(1)(a) of the Act.
Mastroianni v AAI Limited t/as GIO  NSWPIC 476
Merit Reviewer: Brett Williams
MOTOR ACCIDENTS—merit review—whether costs should be paid in accordance with s 8.10(4)—costs incurred by the claimant in connection with review of medical assessment lodged by insurer—whether exceptional circumstances exist.
The claimant sought payment from the insurer in connection with two medical disputes. The first medical dispute involved an application by the insurer for review by a Review Panel regarding the reasonable and necessary treatment determination by the original Medical Assessor Wijetunga. The review was dismissed by the Proper Officer as the Proper Officer was not satisfied that there was reasonable cause to suspect that the assessment of Assessor Wijetunga was incorrect in a material respect.
The second dispute involved an application made by the claimant regarding whether her accident related injuries were minor injuries. The minor injury dispute was assessed by Assessor Cameron and that dispute is now the subject of an application for review by a Review Panel initiated by the claimant.
The claimant elected to discontinue the dispute in relation to her costs incurred in connection with the minor injury dispute at the hearing, leaving only the dispute about the claimant’s costs incurred in connection with the review. The claimant argued that the Commission should find that exceptional circumstances exist under s 8.10(4)(b) of the Act.
In deliberating whether exceptional circumstances existed, the Merit Reviewer considered the analysis of the concept in AAI Ltd trading as GIO v Moon  NSWSC 714 and San v Rumble (No. 2)  NSWCA 259. The Merit Reviewer highlighted that it was consistent with the objects of the Act that to be ”exceptional circumstances”, the circumstances must be unusual or out of the ordinary that “involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant”.
The Merit Reviewer determined that exceptional circumstances existed for the purposes of s 8.10(4)(b) by taking into consideration the following:
- the insurer made an application for the review of a medical assessment that had originally been determined in the claimant’s favour
- the claimant was not legally represented with respect to the initial medical assessment, having lodged that application herself after the insurer declined to pay for the treatment the subject of the application
- the legal work involved in responding to the review lodged by the insurer.
Findings: The Merit Reviewer found that exceptional circumstances existed in accordance with s 8.10(4)(b), and that the claimant was entitled to $2,475 plus GST for costs in connection with the review. The insurer is to have credit for the costs it has already paid in connection with the review in the sum of $913.09.
Review Panel Determination
Thorn v QBE Insurance (Australia) Limited  NSWPICMP 342
Panel: Principal Member Belinda Cassidy, Dr Mohammed Assem, Dr Paul Curtin
MOTOR ACCIDENTS—review panel determination—original Medical Assessor had assessed WPI at 7% for left knee and neck injury—0% WPI for a back injury—Medical Assessor’s finding had indicated the possibility of radicular symptoms, which would have provided a 5% WPI.
On 15 December 2018, the claimant’s vehicle was hit by the insured vehicle that failed to give way at a stop sign. As a result of the accident, the claimant suffered injuries to the left knee, lumbar spine and cervical spine.
A medical dispute arose regarding the claimant’s degree of WPI. On 9 March 2022, the claimant was assessed by Assessor Dixon who determined the claimant did not have a WPI of greater than 10%.
On examination, Assessor Dixon noted that the claimant had difficulty with toe and heel walking due to pain in the knee and lower back. The claimant had restriction in squatting and there was audible and palpable crepitus behind the kneecap and mild effusion in the popliteal area. Assessor Dixon also noted that the claimant’s cervical and lumbar spine were stiff. However, it was noted the claimant has a full range of motion of both shoulders, elbows, hands, wrists and toes and no neurological deficit in either upper limb. There was no neurological deficit in the lower limbs.
Assessor Dixon considered the claimant’s impairment was permanent and diagnosed:
- post traumatic chondromalacia patella, secondary to a direct blow to the left knee
- neck strain injury with aggravation of cervical spondylosis consistent with muscle spasm and asymmetry of movement of flexion and extension, and
- low back strain with post traumatic stiffness with aggravation of spondylosis with radicular complaints.
Assessor Dixon assessed the claimant’s left knee impairment at 2% WPI and 5% WPI for the neck (DRE II). Assessor Dixon determined there was no impairment to the claimant’s lower back (DRE I). Therefore, the claimant’s WPI amounted to a total of 7%.
The claimant lodged an application for review of Assessor Dixon’s determination and submitted that despite Assessor Dixon finding the claimant has post traumatic stiffness with radicular complaints but no structural lesion, the Assessor failed to consider that there is some neurological impairment in the claimant’s lumbosacral spine, which would fall under DRE category II.
The insurer submitted that there was no calculation or methodological error made by Assessor Dixon based on the insurer’s expert Dr Harrington and an MRI scan result showing no evidence of nerve root impingement.
Both the claimant and the insurer agreed that there is 2% knee impairment and a 5% neck impairment and that the only injury to be assessed is whether the claimant’s lumbar spine impairment fell into DRE I (0% WPI) or II (5% WPI).
The Panel re-examined the claimant and found that the lateral flexion to the left was slightly more reduced than lateral flexion to the right. There was some increased muscle tension during this manoeuvre but no muscle guarding or spasm. The claimant demonstrated that he continued to have a consistent restriction in his lumbar movements. The Panel found there were no neurological deficits in either lower limb.
The Panel considered the medical evidence of the claimant’s treating doctors and the insurer’s expert report and noted that there was a greater variation of the findings of Dr Harrington who noted the claimant could touch his toes but did not specifically mention the other planes of movement or record any measurements. The claimant said that his condition had generally deteriorated since the examination with Dr Harrington and this was supported by the GP’s treating records and MRI investigations of the neck and back. As such, the Panel was satisfied that there is an explanation for the variation in findings between Dr Harrington and the Panel and Assessor Dixon, whose findings were similar to those of the Panel.
Findings: The Panel determined that as the claimant has dysmetria, his back injury must be categorised as DRE II. An impairment categorised as DRE II attracts a WPI of 5%. As the claimant and the insurer had already agreed that the claimant’s WPI for the neck injury was 5% and 2% for the left knee injury, the claimant now has a total WPI of 12%, which included 5% for the neck injury.
The Panel determined that the certificate of Assessor Dixon must be revoked.