Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 77
30 November 2022
Welcome to the 77th 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 Rumble [2022] NSWPIC 616
Member: Susan McTegg
MOTOR ACCIDENTS—settlement approval—claimant is self-represented—claim for non-economic loss—fractured ribs, injury to cervical and thoracic spine, PTSD, major depression—motor accident has adversely impacted the claimant’s quality of life with no likelihood of improvement.
The claimant, an 86-year-old female, was injured when her vehicle was T-boned by the insured vehicle, which collided with the rear passenger door of her vehicle causing it to spin around before coming to a stop on the opposite side of the road. As a result, the claimant sustained serious injuries including fractured ribs, injury to cervical and thoracic spine, PTSD and major depression.
The insurer conceded the claimant had sustained a whole person impairment (WPI) of greater than 10%, entitling her to recover damages for non-economic loss. The insurer made an offer of settlement of $320,000.
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 $320,000 was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
QBE Insurance (Australia) Limited v Magtoto [2022] NSWPIC 619
Member: Hugh Macken
MOTOR ACCIDENTS—settlement approval—claimant is self-represented—loss of vocational opportunities.
The claimant sustained injuries to her back and right shoulder in a motor accident on 13 February 2020.
The claimant was assessed by Dr Bentivoglio who determined her injuries did not exceed the 10% WPI threshold. The parties agreed that the claimant was not entitled to damages for non-economic loss. As the claimant was working at the time of the accident, she was entitled to damages for economic loss. The insurer paid the sum of $24,368.25 for past loss of wages. Accordingly, the only amount payable to the claimant was an allowance for future economic loss in the sum of $45,631.75.
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 $45,631.75 was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
CIC Allianz Insurance Limited v Yoong [2022] NSWPIC 617
Member: Shana Radnan
MOTOR ACCIDENTS—settlement approval—claimant is self-represented—economic loss only.
The claimant suffered a right elbow fracture and a left ankle fracture with dislocation and ligament tears as a result of motor accident. She was examined by Dr Keller who opined the claimant had no ongoing restrictions in earning capacity and no assessable impairment as she had regained full ranges of motion of the right elbow and left ankle. As her injuries did not exceed the 10% WPI threshold, the claimant was not entitled to non-economic loss.
At the time of the accident, the claimant was working as an administration/accounts person for a butchery earning $770 gross per week. Her past economic losses were claimed for the three weeks and two days absent from work in the amount of $3,000 (rounded up) including loss of superannuation. The insurer initially made an offer of $10,000 for future economic loss by way of buffer but, considering the claimant has a further working life of 17 years, the parties agreed on the sum of $25,000 inclusive of superannuation.
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 determined the sum of $28,000 (broken down as $3,000 for past economic loss and $25,000 for future economic loss) was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
Allianz Australia Insurance Limited v Iatrou-Kosterman [2022] NSWPIC 621
Member: Terence Stern
MOTOR ACCIDENTS—settlement approval—claimant is self-represented—past economic loss only.
On 31 August 2018, the claimant was injured in a motor vehicle accident while he was riding a push bike. He was diagnosed with a fracture of his right scaphoid bone, which had fully recovered.
The claimant was assessed by Dr Hall, Occupational Health Physician, who confirmed the diagnosis and that the claimant had made a full recovery from the accident related injuries. Dr Hall opined the claimant had no diminution in work capacity and no ongoing incapacity.
The insurer had offered to pay an amount of $4,114.73 for past economic loss and the claimant accepted this offer.
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 determined the sum of $4,114.73 was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
Claims Assessment
Dykes v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 618
Member: Elyse White
MOTOR ACCIDENTS—claims assessment—dispute regarding the extent of injuries and previous accidents—whether claimant has a residual earning capacity.
The claimant was involved in an accident on 12 September 2018. The following issues arose:
- Was the claimant’s evidence and histories given to doctors reliable?
- What was the extent of the claimant’s accident related injuries?
- What was the claimant’s pre-accident earnings?
- What was the quantum of the claimant’s past and future economic loss?
- In the circumstances, what was the appropriate sum for non-economic loss?
The Member noted the claimant was involved in three motor accidents prior to the subject accident however the claimant did not mention any of these accidents in his statement. The Member also noted the claimant’s treating records documented complaints of back pain however, the records had no reference dates and there was no evidence of claimant’s involvement in previous motor accidents being reported to his treating doctors.
The claimant explained that he became homeless at a young age, which led to mixing with the wrong crowd and on the wrong side of the law. He had since gained apprenticeship, which resulted in him operating his own successful business. The Member was of the view the claimant’s explanation for failure to disclose prior accidents and back symptoms was reasonable and that he did not deliberately mislead the doctors or the Member in failing to disclose these accidents and symptoms of back pain.
The Member agreed the claimant sustained serious injuries as a result of the subject accident. Based on the available evidence, the Member found the extent of the claimant’s ongoing injuries included persistent back pain with restrictions and radiating pain down both legs. The Member also found the claimant developed psychological injuries, which impacted on his functioning including social, occupational and other areas of functioning.
At the time of the accident, the claimant was working in his own carpet laying business. There was a dispute between parties regarding the claimant’s pre-accident weekly earnings. In his statement, the claimant stated he was earning approximately $1,021.22 per week and had suffered about $200,000 loss in net income since the subject accident. The insurer obtained a forensic accountant report that concluded the claimant’s weekly income as $1,479.89 net per week. However, the insurer submitted the report was erroneous and could not be relied on due to an error in the assessment of the evidence of the claimant’s past earnings. The Member accepted the report had errors and determined the claimant’s pre-accident weekly earnings in the amount of $1,022 rounded up net per week.
In quantifying the claimant’s past and future economic loss, the Member noted the insurer had paid statutory benefits amounting to $357,526.38. The Fox v Wood component was agreed in the sum of $35,172. The claimant did not provide supporting documentation for his pre-accident superannuation contributions. In absence of supporting evidence, the Member determined the claimant was not entitled to damages for past superannuation. For the future economic loss, the Member determined the sum of $391,783.70 was appropriate (adopting a standard acceptable retirement age of 67 years using 5% multiplier, less 15% vicissitudes).
The claimant also made a buffer claim for loss of opportunity to continue to improve his business and for him to explore and develop other avenues to expand his business. The Member agreed that a loss opportunity for future economic loss can only be assessed by way of a buffer as there is no methodology to accurately calculate this loss. As such, the Member determined the appropriate amount to be $50,000. Accordingly, the Member assessed the claimant’s total future economic loss in the sum of $441,783.70. The Member found the claimant was not entitled to claim for superannuation.
Considering the extent of the claimant’s injuries, the insurer conceded he was entitled to damages for non-economic loss. The Member noted as a result of the subject accident, the claimant has body disfigurement in the regions of the surgical scars, has no enjoyment of life and has a significant loss of amenities. Accordingly, the Member assessed non-economic loss in the amount of $340,000.
Findings: The Member assessed the claimant’s damages as follows:
- Non-economic loss: $340,000
- Past economic loss: $240,452
- Future economic loss: $441,783.70
Total: $1,022,235.70
Merit Review
Cha v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 64
Merit Reviewer: Belinda Cassidy
MOTOR ACCIDENTS—merit review—whether the claimant is entitled to recover benefits for telehealth treatment provided by Australian health practitioners to claimant in Korea.
The claimant made a claim for statutory benefits in relation to an accident on 17 February 2019. The matter was brought before the Commission with regard to a dispute between the parties about payment of the claimant’s treatment costs.
Following the motor accident, the claimant returned to South Korea where he lived. In early 2022, the claimant provided the insurer with five invoices for treatment and interpreting services provided to him while he was in Korea. The insurer refused to pay for these services totalling $772.60 on the basis that the claimant was not an Australian citizen or permanent resident and the treatment in issue was provided overseas. This decision was affirmed on internal review.
The claimant lodged an application with the Commission disputing the insurer’s decision.
The claimant submitted that he departed Australia for Korea on 24 April 2019. He submitted that while he was in Korea, he received treatment from his GP, psychologist and physiotherapist, who were in Australia, by way of Telehealth.
The insurer submitted that it was not until 3 February 2022 the claimant’s solicitor notified the insurer that the claimant was in Korea and had no immediate plans to return to Australia. The insurer argued the treatment provided by Australian health practitioners to him while he was in Korea was considered as being provided outside Australia because the relevant location determining entitlement is that of the claimant, not that of the health practitioners.
The Merit Reviewer summarised there was no issue that the treatment in dispute has been offered, given or dispensed in Australia and accepted, taken or received by someone who is outside Australia, including Telehealth services. The Merit Reviewer noted the dispute between the parties is a dispute between two interpretations of s 3.33 of the Act, specifically the phrase “treatment and care provided outside Australia” as follows:
- the claimant interpreted it as “treatment and care provided [by practitioners who are] outside Australia” and that his treatment providers were in Australia, and
- the insurer interpreted it as “treatment and care provided [to injured persons while those persons are] outside Australia and the claimant is outside Australia”.
The Merit Reviewer considered s 3.33 does not prevent anyone from receiving treatment, but rather it prevents an insurer from having to pay for certain overseas treatment or prevents some claimants from having their overseas treatment paid. As such, the Merit Reviewer determined the claimant’s treatment was provided to him when and where he received it. That is, the treatment provided by Australian health practitioners and the related interpreter’s fees were provided to the claimant and were received by him in Korea. Therefore, the claimant is unable to recover the cost of that treatment as he is not entitled to do so under s 3.33.
Findings: The Merit Reviewer determined treatment is provided when and where it is received, therefore, as the treatment provided to the claimant was received in Korea, he was not entitled to statutory benefits for that treatment.
Review Panel Determination
Karam v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 429
Panel: Principal Member Belinda Cassidy, Dr Mohamed Assem, Dr Ian Cameron
MOTOR ACCIDENTS—minor injury dispute—shoulder ligament tear—whether cervical radiculopathy had been present at any time since the accident.
On 17 July 2018, the claimant sustained injuries as a result of a motor accident. The insurer determined the claimant’s injuries were minor and as such the claimant referred the dispute to the Commission.
At first instance, Medical Assessor Shaikh diagnosed the claimant with an adjustment disorder with mixed anxiety and depressed mood and determined she had sustained a minor psychological injury.
The claimant was also assessed by Medical Assessor Berry for her alleged neck, lower back, left and right upper limb injuries. Medical Assessor Berry determined the claimant sustained minor injuries.
The claimant lodged an application for review, which was successful, and the matter was referred to the Review Panel on the basis that there was reasonable cause to suspect a material error in Medical Assessor Berry’s decision. The Proper Officer determined there was no reasonable cause to suspect a material error in Medical Assessor Shaikh’s assessment.
Following the examination, the Review Panel reached the same decision as Assessor Berry. The claimant subsequently lodged an application for further assessment of the minor injury dispute and the delegate of the President referred the matter for further assessment with Medical Assessor Menogue.
On examination, Medical Assessor Menogue recorded the following:
- Neck – there was some tenderness on palpation but no muscle guarding or spasm. There was symmetrical loss of motion by one quarter of all movements (no dysmetria) however no neurological signs.
- Back – discomfort on palpation over L5 but no muscle guarding or spasm. There was symmetrical loss of motion by one quarter of all movements (no dysmetria) however no neurological signs.
- Shoulders – some minor range of motion defects in both shoulders but no wasting and no loss of power.
- Wrist – movements were normal on both sides.
Medical Assessor Menogue noted the early medical evidence supported complaints of neck, low back, left hand and wrist pain however there was no reference to discrete or specific shoulder injury. The Assessor also noted the claimant’s radiology scans showed no evidence of radiculopathy. Accordingly, the Assessor determined the claimant suffered only minor injuries as a result of the subject accident.
On re-examination with the Review Panel, Assessor Assem noted the claimant’s right shoulder complaints were not documented by Assessor Berry. The claimant reported that her right shoulder symptoms worsened after the assessment with Assessor Berry. The Review Panel also noted the claimant first reported her right shoulder pain to her GP on 18 September 2020, about 22 months post-MVA, which had been present for the past two weeks. A radiology scan of her right shoulder showed rotator cuff tendinitis with subacromial bursitis and bicipital tenosynovitis.
The Review Panel was satisfied there was contemporaneous medical evidence supporting a soft tissue injury to the cervical spine and lumbar spine. Although there was no medical evidence that revealed any neurological deficits or findings of radiculopathy in the claimant’s treating records, the report of Dr Antoun recorded signs of radiculopathy at the time of the assessment and based on the decision in David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227. The Review Panel determined the claimant sustained an injury to a nerve root resulting in cervical radiculopathy, which is a non-minor injury.
Regarding the shoulder complaints, the Review Panel was not satisfied the claimant sustained an injury to her right or left shoulder in the subject accident as there were no specific right shoulder complaints documented until September 2020. The Review Panel opined any shoulder complaints were relevant to the claimant’s cervico-thoracic spine injury. Accordingly, the Review Panel determined the claimant’s alleged shoulder injury was not causally related to the subject accident and that the complete tear of the supraspinatus was not caused by the subject accident.
Findings: The Review Panel revoked the certificate of Medical Assessor Menogue and determined the claimant sustained an injury to a nerve root resulting in cervical radiculopathy, which satisfies the definition of non-minor injury.
Khalil v AAI Limited t/as AAMI [2022] NSWPICMP 440
Panel: Principal Member Susan McTegg, Dr Margaret Gibson, Dr Clive Kenna
MOTOR ACCIDENTS—permanent impairment dispute—injury to cervical spine, lumbar spine and left shoulder.
The claimant was involved in a motor accident on 24 March 2019 and alleged sustaining injuries to the left shoulder, neck and lower back. The insurer determined that the claimant’s permanent impairment was not greater than 10% WPI and the claimant referred the dispute to the Commission, which was the subject of Medical Assessor Berry’s certificate.
At first instance, Medical Assessor Berry found the claimant sustained injuries to the cervical spine, lumbar spine and left shoulder as a result of the motor accident. He determined the injury to the cervical spine and left shoulder had resolved. As for lumbar spine, Assessor Berry assessed as a DRE II resulting in a 5% WPI. Following a successful review application by the claimant, the matter was referred to the Review Panel.
On re-examination, the Review Panel noted the claimant had left side neck pain with referral towards the tip of the left shoulder but not into the upper arm. She also reported having pain in the lower back with referral into the back of the left leg but not past the ankle. The claimant had some localised discomfort to the left shoulder, which she felt was related to the neck but was aggravated by movement. The Review Panel noted the claimant’s most problematic area is the lower lumbar spine, which had minimal improvement despite having had two injections.
The Review Panel diagnosed the claimant with soft tissue injuries to the cervical and lumbar spine and left shoulder as a result of the subject accident.
The claimant was assessed at 0% WPI for the cervical spine (DRE I) and left shoulder. Regarding the lumbar spine, the Review Panel assessed 5% WPI (DRE II) and confirmed the absence of radiculopathy.
Findings: The Review Panel determined the claimant’s permanent impairment was 5% and revoked the certificate issued by Medical Assessor Berry.
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 any one of the CTP Partners below.
