Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 82
14 March 2023
Welcome to the 82nd 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.
Merit Review Panel Determination
Luo v QBE Insurance (Australia) Limited [2022] NSWPICMR 9
Merit Review Panel Members: Terence O’Riain, Katherine Ruschen and Elizabeth Medland
MOTOR ACCIDENTS – merit review – dispute about payment of weekly benefits – pre-accident weekly earnings (PAWE) calculation.
A dispute was referred to the Commission about the amount of weekly benefits payable under Division 3.3 of the Act. The dispute had previously come before Merit Reviewer Seeneevassen who adjusted PAWE from $523,80 to $654.75. The claimant applied for a Review Panel to consider PAWE, and the application was accepted by the President’s delegate.
The insurer’s original decision held that the claimant could not include Jobkeeper payments to calculate PAWE. Merit Review Seeneevassen affirmed the insurer’s finding. The claimant agreed with the Merit Reviewer’s calculations on all points, aside from the Jobkeeper payments. She submitted that the Panel should treat Jobkeeper payments as gross business income. The insurer argued that the claimant did not receive Jobkeeper payments for services rendered, therefore they could be included in PAWE as earnings received as an earner under the Act.
The Panel concluded that Centrelink did not pay COVID-19 disaster payments in return for services. The Panel agreed with the Merit Reviewer and excluded Jobkeeper from PAWE. This finding is consistent with the guiding article “COVID-19 hub for injured workers and road users”, published by the State Insurance Regulatory Authority. It confirms that an insurer calculating PAWE cannot include COVID-19 disaster payments.
Findings: The Panel agreed with the Merit Reviewer’s treatment of the COVID–19 payments for calculating gross earnings. The Panel affirmed the outcome of the Merit Review certificate. Costs were also assessed at $1,980 inclusive of GST.
Review Panel Determination
Lim v QBE Insurance (Australia) Limited [2022] NSWPICMP 529
Panel Member: Susan McTegg
Medical Assessors: John Carter and Michael Couch
MOTOR ACCIDENTS – review panel determination – permanent impairment dispute – traumatic injury alleged to groin/male reproductive organs.
The claimant suffered injury when his vehicle was rear-ended by a light truck, propelling it into a vehicle in front. He alleged a traumatic injury to his groin/reproductive organs. A dispute was brought before the Commission in relation to whether permanent impairment was greater than 10%. Medical Assessor Korbel issued a certificate dated 29 July 2022 finding no injury to the groin/reproductive organs and assessed 0% whole person impairment (WPI). A successful application for review was lodged by the claimant.
The parties agreed to the Panel determining the matter without re-examination. Both parties provided submissions. The claimant noted a diagnosis of groin strain by general practitioner, Dr Lim. He also identified reports of urinary urgency and erectile dysfunction. The insurer highlighted there was no mention of traumatic injury to the groin/reproductive organs in the hospital discharge summary or hospital records, or in other relevant reports.
The Panel noted a report of groin strain following the accident, however there was no evidence of neurological or anatomical abnormality. The Panel found no objective evidence of injury to the bladder and urethra. In accordance with cl 6.252 of the AMA 4 Guides, the Panel was not required to assess urinary incontinence due to trauma.
The Panel further held there was no clinically identifiable pathology relating to sexual dysfunction. The Panel was not satisfied that the claimant suffered erectile dysfunction caused by traumatic injury to the groin or reproductive organs. The Panel was therefore unable to assess permanent impairment pursuant to cl 6.251 of the AMA 4 Guides.
Findings: The Panel affirmed the certificate of Medical Assessor Korbel.
Review Panel Determination
Bajada v QBE Insurance (Australia) Limited [2023] NSWPICMP 5
Panel Member: Ray Plibersek
Medical Assessors: Geoffrey Stubbs and Shane Moloney
MOTOR ACCIDENTS – review panel determination – minor injury dispute – rotator cuff tears – long-standing degenerative rotator cuff disease.
The claimant suffered injury when she was trapped and crushed by a rear bus door when exiting the bus. She alleged injuries to her arms, shoulders, abrasions on right ankle and shock. There was a dispute as to whether the accident caused a non-minor injury. Medical Assessor Woo’s certificate dated 25 April 2022 concluded that the injuries were all minor for the purposes of the Act. A successful application for review was lodged by the claimant.
The Panel decided that based on the material before it, there was sufficient material to form a view of the claimant’s injuries without the need for a re-examination. The claimant provided submissions arguing that the Assessor made findings inconsistent with the overwhelming majority of treating evidence and did not refer to the claimant’s reduction in bone density. The insurer submitted that radiological investigations objectively showed pre-existing tears to both shoulders and degenerative age-related change, which did not arise from the accident.
The Panel reviewed the radiology, which showed long-standing degenerative rotator cuff disease at both shoulders and no radiological evidence of new injury following the accident. It was held that any changes were a consequence of normal progression of rotator cuff disease.
The Panel noted reports made a few months before the accident that showed recent extension of chronic rotator cuff tears. The Panel also noted pre-accident general practitioner reports of increasing pain and weakness. The Panel concluded that prior to the accident, the claimant suffered chronic rotator cuff tears with natural progression expected. This was not attributable to the accident.
There was an issue of inconsistent reporting by the claimant. However, no weight was placed on this as the Panel did not re-examine the claimant and were unable to ask her about those inconsistencies.
Findings: The Panel found the claimant had long-standing degenerative rotator cuff disease, which pre-dated her accident.
The Panel issued a new certificate determining all injuries referred for assessment are minor injuries for the purposes of the Act.
Review Panel Determination
McShane v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 9
Panel Member: Terence O’Riain
Medical Assessors: Clive Kenna and Margaret Gibson
MOTOR ACCIDENTS – review panel determination – permanent impairment dispute – minor scarring – TEMSKI scale.
The claimant suffered injury in a motor accident when a car ran a stop sign and hit the motorbike she was riding. The collision injured her right shoulder, cervical spine, and left wrist. A dispute was brought before the Commission in relation to whether permanent impairment was greater than 10%. Medical Assessor Tamba-Lebbie issued a certificate dated 23 February 2022 assessing 10% WPI (right shoulder/clavicle: 2%, left wrist: 6%; scarring: 2%). A successful application for review was lodged by the claimant.
The claimant submitted that the Medical Assessor erred when concluding that scarring gave 2% WPI. The President’s delegate accepted that the Medical Assessor did not address the TEMSKI table, other than to refer to it when he wrote it into the permanent impairment table, and this was not a sufficient outline of his path of reasoning.
Ultimately, the Review Panel’s findings in relation to permanent impairment were different to Medical Assessor Tamba-Lebbie’s findings. These are summarised as follows:
- Right shoulder – The permanent impairment was alike, rated at 2%.
- Left wrist – The permanent impairment was rated at 5%, compared with 6% in the original assessment.
- Cervical spine – Findings were identical and rated at 2%.
- Scarring – The permanent impairment was rated at 3%, compared with 2% in the original assessment.
The Panel found that the accident caused an overall permanent impairment at 10%. This is an identical rating to the earlier assessment but, the percentage was distributed differently.
Findings: The Panel revoked the certificate of Medical Assessor Tamba-Lebbie and issued a replacement certificate consistent with the findings detailed above.
Review Panel Determination
AAI Limited t/as AAMI v Sefian [2023] NSWPICMP 8
Panel Member: Belinda Cassidy
Medical Assessors: Ian Cameron and Geoffrey Curtin
MOTOR ACCIDENTS – review panel determination – minor injury dispute – right knee medial meniscal tear – causation in question.
The claimant was involved in a rear-end collision and claimed injury to his lumbar and cervical spine, both knees, right hip, and right wrist. The claimant was a builder and had previously undergone a right knee ACL repair in 2010. There was a dispute as to whether the accident caused a minor injury. Medical Assessor Moloney issued a certificate dated 9 March 2022 concluding that the claimant sustained a non-minor injury - a medial meniscal tear at his right knee. A successful application for review was lodged by the insurer.
The insurer submitted that the right knee condition was pre-existing. It also highlighted that the first mention of knee injury was six weeks after the accident.
The claimant was re-examined on 20 December 2022. The Panel was satisfied that the claimant sustained an injury to his right knee in the accident. It noted that the claimant was not a frequent attender at his doctor’s surgery, and even if he did not mention his right knee to his general practitioner at a consultation the day after the accident, this could not be considered conclusive evidence that he did not injure his right knee in the accident. The first complaint of knee pain was in the claim form and certificate of capacity dated three weeks after accident. It noted that the claimant consistently complained of right knee pain after the accident.
The Panel accepted that the torn medial meniscus was dues to the accident and was not a minor injury.
Findings: The Panel was satisfied for the purposes of the Act the claimant had an injury that was not a “minor injury”.
Review Panel Determination
Usher v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 7
Principal Member: John Harris
Medical Assessors: Alan Home and Lesley Barnsley
MOTOR ACCIDENTS – review panel determination – permanent impairment dispute – multiple physical injuries.
The claimant suffered injury in a motor accident when he was a pedestrian struck by the insured vehicle, which was travelling at speed. A dispute before the Commission related to whether permanent impairment was greater than 10%. Medical Assessor Cameron issued a certificate dated 23 May 2022 finding that a fracture of the tibial plateau with ligament laxity gave rise to 8% WPI. He otherwise found that other injuries had not resolved but did not result in impairment. A successful application for review was lodged by the claimant.
The claimant was re-examined by the Panel on 19 December 2022. It determined that the following injuries were caused by the accident:
- Lumbar spine – soft tissue injury and consequential condition due to abnormal gait.
- Right ankle/ foot – sprain
- Left knee – consequential injury
- Right knee – intraarticular tibial plateau fracture
- Face – scarring
- Chest – contusion, resolved
- Abdomen – contusion, resolved
- Scarring – post-surgical, right leg
The findings were:
- Cervical spine – The cervical spine was not injured in the accident.
- Lumbar spine – Serious right leg injury resulted in altered gait and ongoing effects to the lumbar spine. DRE category II was assessed.
- Right knee/tibial plateau fracture – The condition deteriorated over time because of traumatic osteoarthritis. The range of active motion had deteriorated.
- Left knee – The impaired gait from the right knee injury placed stress on the left knee but caused no impairment.
Using the combined values chart, the Panel assessed WPI at 14% (lumbar spine: 5%; scarring: 1%; right knee: 8%).
Findings: The Review Panel revoked the certificate of Medical Assessor Cameron and issued a new certificate determining that the injuries caused by the accident gave rise to a WPI greater than 10%.
Merit Review Determination
Cortes v QBE Insurance (Australia) Limited [2023] NSWPICMR 11
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS – merit review – dispute about payment of weekly benefits – meaning of post-accident earning capacity – whether insurer has improperly excluded injuries said to be a result of the motor accident – whether insurer is in breach of cl 4.56 of the Motor Accident Guidelines.
A dispute was referred to the Commission about the amount of weekly benefits payable under Division 3.3 of the Act. The claimant sought a merit review of the insurer’s internal review decision that his entitlement to weekly benefits was $9.73 per week.
As an aside, the insurer has determined that left knee and back injuries were not as a result of the accident. The claimant disputed this decision and lodged an application with the Commission for a medical assessment. The Merit Reviewer considered that the pending dispute did not prevent a decision about earning capacity.
The claimant raised two issues, that:
- the insurer failed to consider certain injuries and care and treatment in the determination of post-accident earning capacity, and
- the insurer’s earning capacity determination breached cl 4.56 of the Motor Accident Guidelines (Guidelines) on the basis it was “incomplete, capricious and not evidence based”.
The insurer submitted the claimant was certified with capacity to work six hours per day, five days per week (30 hours per week) and a vocational assessment identified postal delivery officer as a suitable role.
The Merit Reviewer first considered that the claimant’s pre-accident earning capacity allowed him to work an average of 30 hours per week (taking into account an ability to work additional hours outside school term), as fulltime work was not reasonably available to him due to visa restrictions and requirement to study. Adopting an hourly rate of $25 to $30 based on the claimant’s education, training, experience, and young age, the Merit Reviewer accepted pre-accident earning capacity equated to $886.45 gross per week, which is $764.45 net per week.
The Merit Reviewer stated that the substantive issue for determination was whether the claimant’s earning capacity was less than was determined by the insurer because of a left knee and/or back injury. She noted that the claimant’s submissions and documents do not address this issue or point to expert medical evidence that provides opinion on earning capacity when considering the left knee and/or back injury.
The Merit Reviewer accepted that post-accident the claimant had capacity to work six hours per week, five days per week (30 hours per week) in a range of occupations including postal delivery officer, crossing supervisor and in sales and such roles available to the claimant, which would generate around $753 net per week.
Overall, the Merit Reviewer was satisfied that the claimant had pre and post-accident earning capacities consistent with those determined by the insurer. She also found that the claimant had not established any breach of cl 4.56 of the Guidelines by the insurer.
Findings: The reviewable decision was affirmed.
Review Panel Determination
Allianz Australia Insurance Limited v Whitehurst [2023] NSWPICMP 4
Principal Member: John Harris
Medical Assessors: Shane Moloney and Margaret Gibson
MOTOR ACCIDENTS – review panel determination – permanent impairment dispute – concurrent treatment dispute.
The claimant suffered injury in a motor accident when her vehicle was rear-ended by the insured vehicle. The issues in dispute were whether permanent impairment was greater than 10% and whether physiotherapy treatment as a result of the accident was reasonable and necessary. Medical Assessor Bodel issued a certificate dated 15 March 2022 assessing impairment at 25%. He also found that the request for physiotherapy was reasonable and necessary and related to the accident. Medical Assessor Steiner did not find loss of vision caused by the motor accident. A successful application for review was lodged by the insurer only in relation to the certificate issued by Medical Assessor Bodel.
In submissions the insurer noted Dr Barrett’s opinion that there was pre-existing condition lumbar spine WPI of 20%. The insurer also referred to Dr Dixon’s opinion that a left shoulder injury had recovered and submitted that this showed inconsistency or raised a need for an alternative mode of assessment.
The claimant was re-examined by Assessor Moloney on 14 December 2022. The findings were:
- Cervical spine – The Panel was satisfied that present impairment was caused by the accident. The findings established DRE category II and 5%.
- Lumbar spine – The Panel accepted that the accident caused increased pain in the lumbar region. A pre-existing L5/S1 fusion was assessed at 20%. It was noted that the current symptoms were at the same level of impairment as the pre-existing impairment and there was no additional impairment. Accordingly, the impairment for the lumbar spine after the deduction for pre-existing impairment was 0%.
- Femoral nerve – The Panel did not accept as injury to the femoral nerve because this was medically inexplicable from a rear-end collision. Further, the claimant complained of femoral nerve discomfort prior to the accident.
- Shoulders – The Panel was not satisfied that there was traumatic injury to either shoulder. The report by the claimant was that shoulder loss of movement was due to interscapular pain, which clinically should not cause loss of shoulder movement. The Panel believed the interscapular pain was muscular related and probably due posture. Further, the examination by did not establish loss of shoulder movement due to a cervical spine injury. There was no shoulder impairment caused by the accident.
- Right knee – The Panel found this condition resolved. There was no impairment.
The Panel assessed 5% WPI at the cervical spine.
As to the treatment and care dispute, the Panel noted that the claimant has ongoing symptoms in the cervical spine, which may benefit from further physiotherapy. It was considered that this type of treatment is recognised by medical experts and was appropriate. The Panel accepted that the request for physiotherapy was reasonable and necessary and related to the cervical spine condition caused by the accident.
Findings: The Review Panel revoked the certificate of Medical Assessor Bodel and issued a new Certificate determining that injuries caused by the accident gave rise to a WPI not greater than 10%. The Review Panel confirmed the certificate of Medical Assessor Bodel in relation to treatment.
Merit Review Determination
Babaee v QBE Insurance (Australia) Limited [2023] NSWPICMR 3
Merit Reviewer: Maurice Castagnet
MOTOR ACCIDENTS – merit review – dispute about payment of weekly benefits – calculation of PAWE – self-employed.
A dispute was referred to the Commission about the amount of weekly benefits payable under Division 3.3 of the Act. At the time of the accident, the claimant was a self-employed cement renderer. The claimant disagreed with the insurer’s initial calculation of PAWE of $352.38, instead submitting that his PAWE should be $2,322.82. The insurer’s review decision determined that PAWE should be $1,584.83. The claimant disagreed with the review decision.
In determining the claimant’s PAWE, the insurer relied upon two forensic accountant reports. The insurer submitted that asserted income of $138,123 could not be verified with reference to objective evidence. The claimant had been paid by cash and bank transfer. A review of bank statements, and financial records demonstrated a gross total of $109,048, with a deduction of $26,637 for work expenses.
The claimant contended that earnings adopted by the insurer did not take into account money received into his bank accounts. The claimant identified those earnings at $25,575 and highlighted the transactions in his bank statements.
Having reviewed the claimant’s bank statements and the explanation provided in submissions, the Merit Reviewer was satisfied that direct bank deposits totalling $25,575 were received as income. The Reviewer did not see any reason why earnings verified via bank deposits could not be considered earnings. He also accepted a further amount of $3,500 received in cash.
Overall, the Merit Reviewer found that the claimant’s total average gross earnings during the relevant period was $136,023. After deduction of work expenses of $26,598, that came to the sum of $109,425. That sum divided by 52 weeks yields PAWE of $2,104.33.
Findings: The reviewable decision was set aside. It was held that the amount of the claimant’s PAWE for the purposes of weekly payments of statutory benefits under Division 3.3 of the Act is $2,104.33 effective from 13 July 2022.
Merit Review Determination
BFH v Allianz Australia Insurance Limited [2023] NSWPICMR 2
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS – merit review – dispute about entitlement to weekly benefits – compensation to relatives.
A dispute was referred to the Commission between the claimant and insurer about the claimant’s entitlement to statutory benefits, including weekly benefits and treatment and care. The claimant lodged an application to compensate relatives and a claim for statutory benefits following the death of his mother-in-law in an accident. The claimant was not involved in the accident and did not witness the victim being put in peril, killed, or injured. The insurer determined the claimant was not entitled to statutory benefits as he was not a person eligible to bring a claim for pure mental harm under s 30 of the Civil Liability Act 2002 (CLA). This was affirmed on internal review.
The claimant submitted that as a result of the accident it was necessary for him to take time off work to provide support to his father-in-law and to other family members injured in the accident. He also submitted that this resulted in lost income and detailed various “unique” circumstances to entitle him to statutory benefits. The insurer maintained its internal review decision, and also argued there was no evidence the claimant suffered a recognised psychiatric injury, as required by s 31 of the CLA.
The Merit Reviewer noted that the CLA is clear and unambiguous in its application. She held that as the claimant does not fall within the definition of close member of the family or the victim (or any other person involved in the accident) for the purpose of s 30 of the CLA and did not witness the victim (or any other person) being killed, injured, or put in peril, pursuant to s 3.39 of the Act, he was not eligible for statutory benefits.
The Merit Reviewer also noted there was no evidence the claimant suffered a recognised psychiatric illness as required by s 31 of the CLA.
As to the “unique” circumstances, the Merit Reviewer was of the view that there was no flexibility in the Act to allow statutory benefits outside the scope of s 30 and 31 of the CLA, regardless of the reasons.
Accordingly, the Merit Reviewer found that the insurer was entitled to refuse payment of statutory benefits in accordance with Part 3 of the CLA and s 3.39 of the Act.
Findings: The reviewable decision was affirmed.
Claims Assessment – Settlement Approval
QBE Insurance (Australia) Limited v Silcocks [2023] NSWPIC 24
Member: Susan McTegg
MOTOR ACCIDENTS—settlement approval—claimant is self-represented—claim for non-economic loss—degloving injury requiring debridement and skin graft to left lower leg.
The claimant was 88 years of age at the time of the accident. She suffered a degloving injury, a fracture of her left ankle as well as scarring of her lower leg and thigh in an accident as a passenger, which required debridement (x4) and a skin graft to her lower leg.
The claim was limited to damages for non-economic loss. The insurer did not concede WPI greater than 10%, pursuant to evidence received from Dr Wallace and A/Prof Haertsch.
Nonetheless, the insurer agreed to pay damages for non-economic loss of $120,000, having regard to the serious nature of the injury sustained.
As the claimant was not represented by solicitors, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
Findings: The Member was satisfied the proposed settlement was just, fair, and reasonable and within the range of likely potential damages assessed if the claim was to proceed to assessment, considering the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant. The settlement was approved.
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 Monique Essey or any one of the CTP Partners below.
