Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 75
15 November 2022
Welcome to the 75th 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
Evans v QBE Insurance (Australia) Limited
Member: Hugh Macken
MOTOR ACCIDENTS—settlement approval—claimant is self-represented—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, a 45-year-old female, was injured when she was a passenger in a vehicle in which the driver lost control, left the road ending up in a ditch. The claimant suffered fractures to her cervical, thoracic and lumbar region.
The claimant confirmed that she currently chooses to work 22 hours per week at the Lismore Base Hospital Library. She apparently had changed jobs to minimise travel time, to work in a smaller work environment and to work 22 hours per week to attend to the needs of her two children.
She also confirmed that although she had intermittent minor symptoms, she did not anticipate any ongoing difficulties with work as a result of accident related injuries as these symptoms were unlikely to cause any interference with her work as a librarian.
Should a change in employment be required due to any disabilities as a result of accident related injuries, the claimant confirmed that she was confident that she would be able to find alternative administrative work.
The parties agreed to resolve the claim for $266,755.57 for non-economic loss and past 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 $266,755.57 was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
Insurance Australia Limited t/as NRMA Insurance v Burgoyne [2022] NSWPIC 593
Member: Terence Stern
MOTOR ACCIDENTS—settlement approval—claimant is self-represented—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant sustained injuries to her head in a motor accident on 5 March 2020 including her left ear resulting in hearing loss, fracture of T11, bruising of the left ulnar, tenderness of the cervical spine and sternum and psychiatric injury. At the time of the accident, she was the passenger in a vehicle driven by her boyfriend when it slid off the road and crashed into two trees. She was almost 17 years of age at the time of the accident.
The insurer made an offer of settlement of $890,000 comprised of $400,000 for non-economic loss, $30,000 for past economic loss and $460,000 for 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 $890,000 was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
Claims Assessment
Luo v AAI Limited t/as GIO [2022] NSWPIC 584
Member: Terence Stern
MOTOR ACCIDENTS—claims assessment—whether the claimant used best endeavours to settle claim before referring for claims assessment.
The claimant was involved in an accident on 2 December 2018. There was a dispute regarding the claimant’s level of permanent impairment. The claimant’s solicitor wrote to the insurer’s legal representative on multiple occasions requesting an informal settlement conference, but the settlement conference did not take place. As such, the claimant’s solicitor requested that the matter be placed in the Stood Over list.
The claimant provided a chronology of actions taken by the claimant’s solicitors and by the claimant that showed that the claimant has been extremely proactive throughout the duration of his claim, that he responded promptly to insurer’s requests and that he used his best endeavours to settle the claim. In his submissions, the claimant submitted that he fulfilled his obligations under s 7.32(3) and has used his best endeavours in the circumstances.
The insurer relied on the judgment in Mammone v Insurance Australia Limited t/as NRMA [2021] NSWPIC 501 and submitted that the claimant did not use best endeavours to settle the claim before referring it for assessment. In response, the claimant submitted that he had invited the insurer to participate in a settlement conference on three separate occasions and that the claimant has consistently expressed a desire to settle the claim. Further, the claimant submitted that he was not in possession of the medico-legal evidence and therefore a PIC application with respect to whole person impairment (WPI) dispute could not be lodged. The claimant submitted that he should not be penalised for inaction by his previous legal representative where there has been no fault or negligence directly by him.
The Member considered that in this case the “best endeavours” test should be considered in the context of the practical utility of attempting a final settlement when the issue of entitlement to WPI has not been resolved. The Member noted that what was important in this context is what the claimant did as well as what the claimant’s solicitor did or did not do. Taking into consideration the claimant’s chronology, the Member was of the view that the claimant was very active and was doing everything he reasonably could to try and progress his claim. The Member determined that the claimant cannot be penalised for the failure of his solicitor to progress the matter and arranging an informal settlement conference. The Member noted that the evidence suggests that the claimant would have cooperated with any such arrangements had they been organised by his solicitor.
Findings: The Member found that the claimant has used his best endeavours to settle the claim prior to making his application to the Commission for claims assessment and therefore he did comply with s 7.32(3) of the Act.
Merit Review
Pauja v Allianz Australia Insurance Limited [2022] NSWPICMR 58
Merit Reviewer: Ray Pilbersek
MOTOR ACCIDENTS—merit review—whether the insurer should pay legal costs in full—parties must encourage early resolution of claims and the quick, cost effective and just resolution of disputes.
The claimant made a claim for statutory benefits in relation to an accident on 4 October 2018. The matter was brought before the Commission with regard to a dispute between the parties about the payment of the claimant’s legal costs. The claimant’s solicitors were seeking payment for a minor injury dispute.
The claimant’s solicitor issued a tax invoice for the minor injury medical dispute addressed to the insurer totalling $2,159.44 (inclusive of GST) for professional legal costs set out as below:
- Medical assessment - $1,660.16 under Schedule 1 Part 1 sub-cl 2(1) of the Motor Accident Injuries Regulation 2017 (Regulations)
- Acceptance of retainer preparation and service of notice of claim - $302.97 under Schedule 1 Part 1 sub-cl 2(1), Column 1 Stage 1 item (a).
The insurer paid the claimant’s solicitor $830.08 inclusive of GST for the minor injury dispute and advised that the insurer will not pay for the claim for $302.97 as it related to a claim for damages, which is not related to the matter.
The claimant referred the dispute to the Commission for merit review, seeking the full payment of the outstanding legal costs.
The insurer submitted that while the claimant’s solicitor were entitled to legal costs for legal services provided for the medial assessment dispute, they were only entitled to recover eight monetary units plus GST (i.e. $830.08) bearing in mind the amount of legal services provided and the prospects of success of the application. In relation to the claim for $302.97, the insurer submitted that Schedule 1 Part 2 of the Regulations relate only to legal services provided in connection with a claim for damages. The insurer submitted that the claimant’s claim was only in relation to statutory benefits and therefore there was no entitlement to payment of legal costs.
The Merit Reviewer referred to AAI Ltd trading as GIO v Moon [2020] NSWSC 714 where Wright J held that legal costs are recoverable by a claimant under ss 8.10(1) and (3) where “payment…is permitted by the regulations”, including all legal costs that do not exceed the maximum legal costs fixed by the regulations, subject to those costs being “incurred” and “reasonable and necessary” as required by s 8.10(1). The maximum costs for legal services in relation to the medical assessment is 16 monetary units under Schedule 1 Part 1 sub-cl 2(1). However, while the Merit Reviewer considered the claim for legal costs to be “reasonable and necessary”, he was not satisfied that the claimant’s solicitor had provided a detailed explanation of what work they did and why that work was reasonable and necessary to be entitled to the maximum legal costs. Based on the available evidence, the Merit Reviewer determined that the amount of $1,200 plus GST (or approximately 12 monetary units plus GST) was reasonable and necessary in the circumstances.
In relation to the claim for $302.97 under Schedule 1 Part 2 of the Regulations, the Merit Reviewer agreed with the insurer that this clause in the Regulations related only to legal services provided in connection with a claim for damages. As no claim for damages has been made, the claimant’s solicitor would not be entitled to claim legal costs for that amount.
Findings: The Merit Reviewer determined that the claimant was entitled to recover from the insurer reasonable and necessary legal costs incurred by the claimant in connection with the claim under ss 8.3 and 8.10 of the Act. The amount for legal costs was assessed as $1,200 plus GST. The insurer was to pay the claimant’s solicitor $1,200 plus GST less $830.08.
Gendy v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 59
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—merit review—payment of weekly benefits under Division 3.3—change in earning circumstances.
The claimant made a claim for statutory benefits following his injury sustained in a motor accident on 30 April 2022. The claimant contended his pre-accident weekly earnings (PAWE) were $957.74. The insurer however determined his PAWE was $630.63, which was affirmed on internal review.
The claimant lodged an application with the Commission disputing this amount and submitted that the relevant period for calculation of PAWE was 14 February 2022 to 29 April 2022 (approximately 11 weeks) on the basis he had not been earning continuously during the 12 month period prior to the accident and only commenced earning from 14 February 2022.
In support of his claim, the claimant provided a series of time sheets and partial bank records. The Merit Reviewer suspected the claimant may have cherry picked the bank records to support his contentions and also to maximise his weekly benefits.
After reviewing all available evidence, the Merit Reviewer considered there was insufficient information upon which to determine the claimant’s PAWE, in particular whether cl 4(1) or one of the subclauses under 4(2) applied.
Accordingly, the Merit Reviewer concluded that the matter was to be remitted back to the insurer for redetermination of the claimant’s PAWE following provision of further information and documents.
Findings: The Merit Reviewer determined the reviewable decision be remitted back to the insurer.
Miscellaneous Claims Assessment
Stevenson v Allianz Australia Insurance Limited [2022] NSWPIC 592
Member: Belinda Cassidy
MOTOR ACCIDENTS—whether claimant wholly or mostly at fault—claim against Nominal Defendant.
On 5 March 2022, the claimant was involved in a motor accident when his vehicle collided with a NSW Rural Fire Services twin cab truck. The accident occurred at Murwillumbah, NSW and the claimant was a resident of Queensland, driving his Queensland registered vehicle. There was a dispute as to whether the fire truck ran into the claimant’s vehicle or whether the claimant’s vehicle reversed into the fire truck.
The claimant made a claim against the Nominal Defendant as under Road Transport (Vehicle Registration) Regulation the fire truck is not required to be registered. The claimant’s statutory benefits claim was accepted for the first 26 weeks, however, the insurer denied liability after 26 weeks on the basis that the accident was caused wholly or mostly by the claimant’s own fault, which was affirmed on internal review. The claimant referred the dispute to the Commission.
The Member was satisfied that the dispute was in relation to the claimant’s statutory benefits claim as between a resident of Queensland and a part of the State of New South Wales. However, because the claimant was a resident of Queensland and the dispute was against the insurer in NSW, the Member determined that the dispute was a Federal matter. As the Commission is a NSW tribunal and not a state court, the Commission is not able to hear and determine the dispute between the claimant and the Nominal Defendant per Attorney General for New South Wales v Gatsby [2018] NSWCA 254.
Findings: The Member determined that the Commission had no power to determine the dispute and therefore dismissed the proceedings pursuant to s 54(c) of the Personal Injury Commission Act 2020.
Review Panel Determination
Meggitt v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 405
Panel: Principal Member Susan McTegg, Dr Mohammed Assem, Dr Chris Oates
MOTOR ACCIDENTS—whole person impairment dispute—minor injury dispute—total right hip replacement surgery—injuries to the cervical spine, lumbar spine and scarring.
The claimant sustained injuries as a result of a rear-end collision on 7 December 2018, requiring a right hip replacement surgery.
At first instance, the insurer had estimated that the claimant’s injuries had sufficiently recovered and that she had sustained a greater than 10% whole person impairment (WPI), entitling her to recover damages for non-economic loss. However, the insurer later issued a notice withdrawing the concession as to WPI and made a new determination that the claimant’s injuries did not exceed the 10% threshold. Further, the insurer notified the claimant that liability was denied on the basis that she had sustained a minor injury.
The claimant lodged an application for medical assessment and the matter was referred to Medical Assessor Cameron for assessment of the degree of permanent impairment and whether the accident related injury is a minor injury.
Medical Assessor Cameron found that the claimant sustained soft tissue injuries to the cervical spine, thoracic spine and lumbar spine, as a result of the accident and that it satisfied the definition of a minor injury under the Act. In addition, Medical Assessor Cameron determined that the following injuries were not caused by the accident:
- right hip – cartilage damage, partial thickness tear of the gluteus minimus tendon and post-traumatic trochanteric bursitis, aggravation/exacerbation of arthritic changes in right hip
- right knee – soft tissue injury and musculoskeletal injury, and
- scarring of right hip.
The claimant lodged an application for review, which was successful, and the matter was referred to the Review Panel.
On examination, the Review Panel diagnosed the claimant with soft tissue injuries to the cervical spine, thoracic spine and lumbar spine, and aggravated pre-existing asymptomatic right hip osteoarthritis. In relation to the right knee, the Review Panel found that there was no evidence of direct injury to the right knee, rather symptoms were referred from the right hip.
The Review Panel noted the motor accident did not have to be a sole cause as long as it was a contributing cause, which is more than negligible. The Review Panel was satisfied that the mechanism of injury was sufficient to aggravate the underlying right hip osteoarthritis resulting in the need for right total hip replacement surgery.
In relation to the minor injury dispute, the Review Panel determined injuries to the cervical spine, thoracic spine and lumbar spine satisfied the definition of a minor injury under the Act. As to the right hip, the Review Panel found that it is not a minor injury.
As the Review Panel determined injuries to the cervical spine, thoracic spine and lumbar spine were minor injuries, these were assessed at 0% WPI. In relation to the right hip, the Review Panel found that the right total hip replacement surgery resulted in 15% WPI. The Review Panel assessed 0% WPI for scarring.
Findings: The Review Panel revoked the certificate of Medical Assessor Cameron and determined the claimant sustained injuries giving rise to 15% WPI as follows:
- Cervical spine – 0% WPI
- Thoracic spine – 0% WPI
- Lumbar spine – 0% WPI
- Right hip – 15% WPI
- Scarring – 0% WPI
Aria v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 406
Panel: Principal Member Josephine Bamber, Dr Neil Berry, Dr Michael Rochford
MOTOR ACCIDENTS—minor injury dispute—whether a contusion to the left kidney caused by the motor accident was a minor injury.
The claimant sustained a contusion to his left kidney as a result of a T-bone collision when the insured vehicle performed a U-turn in front of the claimant’s vehicle. The claimant was transported by ambulance to Hornsby Hospital where he was admitted for treatment overnight.
At first instance, Medical Assessors Gorman and Korbel determined that the claimant’s injuries were minor. Following a successful review application by the claimant, the matter was referred to the Review Panel.
The Review Panel determined that a re-examination of the claimant was not required as having to physically re-examine the claimant would not assist in determining whether the claimant sustained a contusion to his left kidney as a result of the motor accident nor in relation to the determination of whether such an injury was a minor injury.
Upon reviewing the medical evidence provided by the parties, in particular the medical records of Hornsby Hospital, the Review Panel found that the hospital records did not support a finding that there was an injury to the kidney. The Review Panel noted that the hospital records documented the claimant’s abdomen was soft and non-tender, with no abdominal wall bruising and no organomegaly. Further, testing of the claimant’s blood revealed no abnormality. The Review Panel noted that had there been a contusion to the left kidney, this testing would have detected the presence of blood. The Review Panel also noted that the treating record of Dr Basiri recorded there was no haematuria. However, the Review Panel considered that the subsequent references to haematuria could not be related to the motor accident because had there been a contusion to the kidney, there would have been evidence of blood immediately after the accident.
Findings: The Review Panel determined the claimant’s chronic kidney disease stage 3 and prostatitis conditions were on the balance of probabilities the cause of the later findings of haematuria, and not due to the motor accident.
Therefore, the Review Panel found that it was not necessary to consider the issue in relation to whether a contusion to the kidney was a minor or non-minor injury.
Choi v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 407
Panel: Principal Member John Harris, Dr Samuel Lim, Dr Thomas Newlyn
MOTOR ACCIDENTS—permanent impairment dispute—whether the psychological condition caused by the motor accident was aggravated by a subsequent motor accident.
The claimant suffered psychological injury in a motor accident on 23 August 2017 when her vehicle was hit from behind by the insured vehicle. In December 2017, the claimant was involved in a further motor accident, which exacerbated her psychological condition.
At first instance, the Medical Assessor Samuell diagnosed the claimant with persistent depressive disorder and assessed 6% whole person impairment (WPI). Medical Assessor Samuell concluded that the persistent depressive disorder arose from the physical symptoms sustained in the motor accident.
The claimant lodged an application for review, which was successful. The matter was referred to the Review Panel.
On examination, the Review Panel noted the claimant had developed some anxieties with driving following the motor accident in August 2017. The claimant also developed a dysphoric response to the loss of role she experienced because of pain from physical injuries sustained in the motor accident, which resulted in the claimant withdrawing from socialising with her friends and engaging in related social activities that would be within her physical ability.
The Review Panel diagnosed her with an Adjustment Disorder and considered that the August 2017 motor accident was the cause of the onset of the stressor, which impaired her social and occupational functioning that attributed to that caused by her physical injuries. The Review Panel opined that the claimant’s symptoms of anxiety did not satisfy the full diagnostic criteria for post-traumatic stress disorder (PTSD).
In regard to the motor accident in December 2017, the Review Panel considered the subsequent motor accident aggravated her Adjustment Disorder because of the disruptive impact of her further physical injuries and as a result of the first motor accident. As a result, the claimant developed signs and symptoms consistent with a diagnosis of a Persistent Depressive Disorder (Dysthymia) with Anxious Distress.
The Review Panel determined that the claimant was diagnosed with Adjustment Disorder following the motor accident in August 2017, which led to her developing a Persistent Depressive Disorder (Dysthymia) with Anxious Distress after the second motor accident in December 2017.
The claimant was assessed at Class 2 for Travel and Social Functioning and Class 3 for Self-Care and Personal Hygiene, Social and Recreational Activities, Concentration, Persistence and Pace and Employability. This amounted to 17% WPI.
Findings: The Review Panel determined that the claimant’s WPI was 17% and revoked the certificate issued by Medical Assessor Samuell.
Aleksic v QBE Insurance (Australia) Limited [2022] NSWPICMP 416
Aleksic v AAI Limited t/as GIO [2022] NSWPICMP 417
Panel: Principal Member John Harris, Dr Drew Dixon, Dr Shane Moloney
MOTOR ACCIDENTS—minor injury dispute—no radiculopathy in the right knee—longstanding pathology associated with prior knee replacement—longstanding degenerative changes in the cervical spine.
The claimant sustained injuries in a motor accident on 1 February 2020 when the insured vehicle collided with the passenger side of the claimant’s vehicle. On 24 February 2020, the claimant was involved in a subsequent motor accident when a kangaroo collided with the claimant’s vehicle causing injuries.
At first instance, Medical Assessor Herald determined that the claimant sustained soft tissue injuries to the lumbar and cervical spine resulting from the two motor accidents, which was a minor injury. Following a successful review application by the claimant, the matter was referred to the Review Panel on the basis that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The Review Panel noted that the claimant has undergone bilateral knee replacements in August and November 2019. The claimant also has longstanding cervical spine problems where her discs were worn out due to long term prolonged sitting at work.
During re-examination, the claimant complained of persistent low back pain, which radiates into the right buttock region and occasionally is associated with cramps in the right anterior thigh. She also experiences pain around the right knee, which occasionally causes numbness in all of the toes. Her neck feels stiff and painful with the radiation of pain into the right arm and in particular the right upper arm and occasional spasm in the right thumb. The claimant reported that her right shoulder could be painful causing hand numbness, which prevents her sleeping on the right side.
In relation to the cervical spine, the Review Panel recorded that the MRI scan showed existence of osteophyte encroachment at C3/4, which must have arisen over a number of years. The existence of disc protrusions over three levels in the cervical spine was also highly suggestive of longstanding degenerative disease as opposed to any particular disc protrusion caused by either of the motor accidents. The Review Panel considered that the two motor accidents have aggravated the claimant’s degenerative cervical spine by rendering her condition symptomatic. Further, the Review Panel considered that “hand numbness” did not establish an objective sign of radiculopathy as it was non-specific. Therefore, in the absence of clinical evidence, the Review Panel considered the symptoms described by the claimant do not satisfy the definition of radiculopathy per cl 5.8 of the Motor Accident Guidelines.
In respect of the lumbar spine, the Review Panel accepted that the claimant suffered lumbar spine injury in the first motor accident, which was then aggravated by the subsequent motor accident. However, the Review Panel concluded that the claimant’s reported symptoms satisfied the definition of radiculopathy under cl 5.8.
Regarding the right knee, the Review Panel highlighted that the claimant has a history of bilateral knee problems resulting in knee replacements. The Review Panel found that the current bilateral knee condition reflects longstanding pathology unrelated to both motor accidents and there is no basis to suggest a mechanism of injury to the right knee as a result of the motor accident. As such, the Review Panel concluded that the right knee was not injured in the motor accident.
As to the right arm, the Review Panel considered that there was no radiology scan showing shoulder pathology that could satisfy the definition of radiculopathy. Accordingly, the Review Panel determined that the motor accident did not cause any shoulder pathology capable of being defined as a non-minor injury.
Findings: The Review Panel confirmed that the claimant suffered minor injuries and affirmed the certificate of Medical Assessor Herald.
Cundy v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 414
Panel: Principal Member John Harris, Dr Neil Berry, Dr David Gorman
MOTOR ACCIDENTS—permanent impairment dispute—compound fractures of the right tibia and fibula and soft tissue injuries to the right knee and low back—no assessable impairment of the scar based on a best fit principle.
The claimant suffered fractures to his right leg when the insured vehicle struck him whilst riding a bicycle.
The claimant was examined by Medical Assessor McGrath who determined that the claimant suffered a compound fracture of the tibia and fibula with associated scarring and soft tissue injuries to the back and right knee. He assessed the degree of permanent impairment at 9%.
The claimant lodged an application for review, which was successful, and the matter was referred to the Review Panel.
On re-examination, the claimant reported his main pain was in his right ankle. He reported having some right hip pain and low back pain if he sits for too long. He also reported that he walks with a limp with the leg turned outwards.
The Review Panel considered that the claimant has a normal range of lumbar spinal movements in all planes with no pain or sensory symptoms radiating to the legs. In relation to the lower extremities, the Review Panel observed the claimant walked with a slight limp with his right foot externally rotated around 10 degrees. Mild swelling around the right ankle was noted. The claimant has an old 2 cm raised scar over the right patella which is not related to the subject motor accident. There is also a surgical scar which has now well healed above the lateral malleolus on the right. The Review Panel opined the scar was a fine scar and not easily seen.
The Review Panel concluded that the low back pain and the right knee symptoms were causatively related to the subject motor accident. The Review Panel noted that the claimant’s knee extension had improved over the period since his examination with Medical Assessor McGrath and therefore assessed 6% whole person impairment (WPI).
Findings: The Review Panel determined the claimant sustained injuries gave rise to 6% WPI for right lower extremity.
We hope you find this publication of some interest and would be delighted to assist you on any queries you may have. Please feel free to contact Christy Lee or one of the CTP Partners below.
