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Welcome to the 84th 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

Insurance Australia Limited t/as NRMA Insurance v Mansour [2023] NSWPICMP 141

Panel Member: John Harris

Medical Assessors: Geoffrey Curtin and Neil Berry

MOTOR ACCIDENTS – review panel determination – threshold injury dispute – pre-existing history of neck pain.

A dispute was brought before the Commission in relation to whether the claimant’s physical injury was a threshold injury. Medical Assessor McGrath provided a Certificate dated 16 July 2022, which concluded the accident caused radiculopathy in the C7 dermatome and was not a threshold injury.

A successful application for review was lodged by the insurer on the basis that Medical Assessor McGrath failed to consider relevant documents, namely those that demonstrated the claimant’s long history of neck pain.

On re-examination the Panel was not satisfied that the accident caused a herniated disc resulting in radiculopathy, but rather the claimant only suffered a soft tissue injury.

Findings: The Panel revoked the Certificate of Medical Assessor McGrath and issued a new certificate consistent with the findings.

View decision

Merit Review Panel Determination

Ali v AAI Limited t/as AAMI [2023] NSWPICMP 144

Panel Member: Susan McTegg

Medical Assessors: Samson Roberts and Wayne Mason

MOTOR ACCIDENTS – review panel determination – permanent impairment dispute – diagnosis of post-traumatic stress disorder.

A dispute was brought before the Commission in relation to whether permanent impairment of the claimant’s psychological injury was greater than 10%. Medical Assessor Samuell issued a Certificate dated 14 December 2021 with a diagnosis of post-traumatic stress disorder caused by the accident. He provided Class 1 assessment of impairment across all categories under the Psychiatric Impairment Rating Scale, though added 2% for the effects of treatment and assessed a total whole person impairment (WPI) of 2% caused by the accident.

A successful application for review was lodged by the claimant on the basis that it was unclear whether such impairment was consistent with class 1 or class 3. A re-examination was undertaken, and it was determined that the severity of post-traumatic stress disorder symptoms had diminished over time. A revised assessment of 1% WPI was provided.

Findings: The Panel revoked the Certificate of Medical Assessor Samuell and issued a new Certificate consistent with the findings.

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Merit Review Panel Determination

QBE Insurance (Australia) Limited v Quigley [2023] NSWPICMP 143

Panel Member: Susan McTegg

Medical Assessors: Margaret Gibson and Brett Williams

MOTOR ACCIDENTS – Review Panel determination – treatment and care dispute – whether hearing aids reasonable and necessary and whether related to injury sustained in the accident.

The claimant alleged hearing loss and tinnitus as result of the accident. A dispute was brought before the Commission in relation to whether treatment, namely hearing aids, were reasonable and necessary and whether these were related to the injury sustained in the accident. It was highlighted that the claimant had a history of chronic sinusitis with eustachian dysfunction and recurrent otitis externa, with the left ear impacted more so that the right, in the context of work as a swimming instructor. The insurer noted that the symptoms of hearing loss were reported approximately seven months prior to the accident, though the claimant denied any relevant history on assessment.

Medical Assessor Howison issued a Certificate dated 15 September 2022.  He determined the claimant had bilateral high tone sensori-neural hearing loss and required bilateral digital hearing aids because of the accident, however he considered that the hearing loss was not related to the accident. Medical Assessor Howison did in fact find that the claimant’s somatosensory tinnitus was related to the physical injuries caused by the accident, therefore the hearing aids were considered reasonable and necessary in the circumstances to mask the tinnitus and improve the recovery of the claimant.

A successful application for review was lodged by the insurer. Re-examination was conducted by the Panel and the findings remained unaltered.

Findings: The Panel affirmed the certificate of Medical Assessor Howison.

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Merit Review Determination

Thomas v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 24

Panel Member: Brett Williams

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. In his claim form, the claimant recorded that at the time of the accident he was self-employed as a landscape gardener earning “$500+ per week average”. The claimant provided a schedule that contained all his earnings from both Airtasker and non-Airtasker sources for the 12 months before the day of the accident. He disagreed with the PAWE calculated by the insurer in the sum of $110.56, which was derived from a PKF accounting report.

PKF based its assessment of income derived and expenses incurred on the claimant’s 2022 tax return, noting that he did not derive income for the period July 2021 to October 2021. The claimant received JobSaver payments over this period and received government pension payments throughout the 52 weeks prior to the accident. Neither of these payments were included in PKF’s assessment of PAWE on the basis that they did not relate to income derived from personal exertion. This assessment was based on Sch1 cl 4(2)(a) of the Act.

In short, the Member interpreted the claimant’s argument to mean that there was a change in his earnings once the COVID lockdown came to an end, and that change resulted in him regularly earning more than he was earning before the change occurred. This is because he went from receiving no earnings during the COVID lockdown to receiving regular earnings from early 2022. It was believed that the subclause that best fit the claimant’s argument was cl 4(3) of Sch 1. However, this subclause was considered not to apply as none of the examples from the note to this clause involved circumstances where an earner goes from earning nothing to earning something.

The Member proceeded to re-calculate the claimant’s PAWE to $180.19.

Findings: The insurer’s decision was set aside. The matter was remitted to the insurer to determine the claimant’s entitlements under Part 3 Division 3.3 of the Act in accordance with the Member’s findings.

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Claims Assessment – Settlement Approval

Allianz Australia Insurance Limited v Thwaites [2023] NSWPIC 169

Member: Terence Stern OAM

MOTOR ACCIDENTS—settlement approval—claimant is self-represented—claim for non-economic loss—multiple upper limb and lower limb fractures—degloving injuries to right arm and both lower legs.

The claimant was 94 years of age. She suffered multiple upper limb and lower limb fractures, as well as degloving injuries to right arm and both lower legs.

The claim was limited to damages for non-economic loss. Professor Ian Cameron assessed the claimant with 12% WPI. The insurer made an offer of $140,000 accordingly.

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 was satisfied that the proposed settlement was appropriate and complied with clause 7.04.2 of the Guidelines in that it is “just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a member of the PIC, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.” The settlement was approved.

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