Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 89
10 August 2023
Welcome to the 89th 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 Tahir [2023] NSWPIC 248
Member Hugh Macken
Settlement approval—claimant is self-represented—claim for past and future economic loss and non-economic loss —physical injuries.
The claimant was a rear seat passenger in the insured’s vehicle which was struck by a train at a level crossing. The claimant suffered significant injuries including multiple fractures to his cervical and thoracic spine, rib fractures, fractures to his right arm as well as the development of deep vein thrombosis and a pulmonary embolism.
At the time of the accident the 67-year-old claimant was a part-time handyman for his wife’s real estate business working an average of 15 hours per week earning $110. This amounted to about $15,000 per year. The insurer did not dispute this.
The parties agreed to a buffer for future economic loss of $15,000 reflecting loss of earnings to beyond his 70th birthday.
The insurer conceded entitlement to damages for non-economic loss and the parties agreed to $250,000 taking into account the significant injuries and the adverse effects these had on the claimant’s day to day activities particularly prolonged standing, bending, lifting, and carrying.
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 that damages of $280,000 for past and future economic loss and non-economic loss was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
Review Panel Determination
Repaja v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 233
Panel: Principal Member John Harris, Dr Drew Dixon, and Dr Margaret Gibson
Assessment of permanent impairment— delayed onset of complaint of left hip pain is relevant but not determinative on injury - findings on MRI scan consistent with direct trauma from airbag deployment to left side of body - no pre-existing or other factors to explain left hip symptoms which were first reported two months after accident.
On 25 November 2018, the claimant sustained injuries when the vehicle he was a front seat passenger in was T-boned on the passenger side by the insured’s vehicle; airbags were deployed. A medical dispute arose as to whether the claimant’s degree of permanent impairment as a result of the injury caused by the accident was greater than 10%. The following injuries were referred for assessment:
- mechanical injury to cervical spine discs with likely intermittent impingement
- mechanical trauma to lumbar spine with aggravation of pre-existing degenerative change
- subacromial/subdeltoid there was an absence of early reference to the left hip although incorrectly submitted that the first reference was on 27 February 2019
- bursitis of the left shoulder with impingement
- enthesopathy of the left hip.
At first instance, Medical Assessor Rappaport found the degree of permanent impairment at 0%.
The claimant lodged an application for review and a re-examination took place as part of the review.
The Review Panel accepted:
- the cervical and lumbar spine were mentioned to the GP on 27 November 2018, being only two days after the motor accident
- not mentioning the cervical and lumbar spine injuries at hospital did not detract from the reporting of symptoms within a short period
- the motor accident could and did cause soft tissue injury to the spine
- whilst there were ongoing symptoms in the spine, the signs were insufficient to establish a DRE Category II rating and were assessed at DRE Category I
- the insurer’s submissions that there was an absence of early reference to the left hip although incorrectly submitted that the first reference was on 27 February 2019. However, the absence of record is relevant but not determinative of the question of causation.
The Review Panel accepted that the both the mechanism of the injury and the pathology shown on MRI scan were consistent with the motor accident whereby there was direct trauma to the left side of the body.
Findings: The Review Panel revoked the certificate issued by Medical Assessor Rapaport and assessed the left shoulder and left hip injuries gave a combined at 8%. The Review Panel found that the claimant has not greater than 10% whole person impairment.
Review Panel Determination
Insurance Australia Limited t/as NRMA Insurance v McCarthy [2023] NSWPICMP 235
Panel: Principal Member Belinda Cassidy, Dr Paul Friend, Dr Michael Hong
Assessment of permanent impairment— claimant had pre-existing mental health issues and significant issues about pre-accident functioning and calculation of impairment - claimant developed post-traumatic stress disorder and aggravated two pre-existing disorders (obsessive compulsive disorder and generalised anxiety disorder).
On 11 April 2019, the claimant sustained injuries when he pulled up behind a car at a stop sign; the car reversed into him and knocked him off his motorbike. The driver continued reversing over the claimant’s motor bike although the claimant was not run over. A medical dispute arose as to whether the claimant’s degree of permanent impairment as a result of the injury caused by the accident was greater than 10%.
At first instance, Medical Assessor Samuell found the degree of permanent impairment at 19%.
The insurer applied for further assessment upon receipt of additional information and the Commission allowed a further assessment with Medical Assessor Limo, who found permanent impairment at 14%.
The insurer lodged an application for review and a re-examination took place as part of the review.
The insurer submitted that Medical Assessor Lim referred to documents from the claimant’s bundle and did not refer to any of the insurer’s documents.
The Review Panel accepted that on the medical and other evidence currently before the Panel, the claimant had, at the time of the accident, pre-existing symptomatic and treated psychiatric conditions as follows:
- OCD
- generalised anxiety disorder, and
- a probable panic disorder.
The Panel accepted that before the accident, the claimant had received treatment from a counsellor and had been prescribed:
- Cymbalta
- Fluoxetin
- Clonazepam, and
- Diazepam.
The Review Panel found total WPI resulting from the psychiatric injuries sustained by the accident was 11% (18% current impairment less 7% for the pre-existing impairment).
Findings: The Review Panel revoked the certificate issued by Medical Assessor Lim and also found that the claimant has greater than 10% whole person impairment.
Review Panel Determination
AAI Limited t/as AAMI v Haramis (No 1 and No 2) [2023] NSWPICMP 234
Panel: Principal Member Terence O’Riain, Dr Clive Kenna, Dr David Gorman
Medical assessment — treatment dispute - whether the claimant suffered a threshold injury (previously called a minor injury) - complained about left shoulder pain soon after the motor accident and submitted that she sustained a left shoulder tear in the motor accident meaning the injury was classified as a non-threshold injury.
On 19 October 2019, the claimant sustained injuries as a front seat passenger when the insured driver collided with the rear of their stationary vehicle. A medical dispute arose as to whether:
- the claimant’s injuries were threshold injuries
- the request for reimbursement of pharmaceutical medication listed on the tax invoice dated 27 May 2022 would improve recovery, and
- the request for reimbursement of pharmaceutical medication was reasonable and necessary.
The following injuries were referred for assessment:
- cervical spine (neck injury)
- left and right hip injury
- left and right shoulder injury, and
- lumbar spine (lower back pain).
At first instance, Medical Assessor Alan Home found the partial thickness tear to the claimant’s left shoulder was not a minor injury and that the request for reimbursement for pharmaceutical medication (Otsemol, Burprenorphine patch and Pregabalin) was causally related to the accident was reasonable and necessary and would aid recovery.
The insurer lodged an application for review and a re-examination took place as part of the review.
The Review Panel accepted that:
- the claimant had ongoing symptoms following the motor vehicle accident
- her neck, back and shoulders pain arose immediately after the accident
- the analgesic medications were for the effects of the accident – she was not on these prior to the accident
- she reported the medications continued to be needed, and
- there was little doubt that if the medications were ceased the claimant would deteriorate.
The Review Panel accepted that the left shoulder ultrasound report was consistent with degeneration, the history was of immediately worsening pain suggesting the while there may have been pre-existing pathology, there was a further tear at the time of the accident.
The Review Panel confirmed Medical Assessor Home’s Certificate, finding that the tear to the claimant’s left shoulder was not a minor injury and that the request for reimbursement for pharmaceutical medication was causally related to the accident, was reasonable and necessary and would aid recovery.
Findings: The Review Panel confirmed the Certificate issued by Medical Assessor Home.
Review Panel Determination
Allianz Australia Insurance Limited v Wagemans [2023] NSWPICMP 243
Panel: Principal Member Susan McTegg, Dr Neil Berry, Dr Shane Moloney
Determination of non-threshold injury — application for review on the basis there had been a denial of procedural fairness - claimant furnished Medical Assessor with an MRI scan of the right shoulder which had not been served on the insurer.
On 3 September 2019, the claimant sustained injuries when she was struck by a car as she crossed a road on foot. A medical dispute arose as to whether the claimant sustained a non-threshold injury. The following injuries were referred for assessment:
- shoulder – constant aching and stiffness alongside occasional clicking in the right shoulder
- cervical spine – ongoing tightness and stiffness in the neck – intermittent sharp stabbing pains with movement or rotation of the neck
- right arm – frequent onset of sharp pains and tenderness in the right upper arm and forearm
- wrist – persistent pain in the right wrist radiating into the right hand with feelings of numbness, and
- lumbar spine – constant pain and discomfort and restriction of movement in the lower back.
At first instance, Medical Assessor Bodel found the injuries referred for assessment were caused by the accident and he certified all the injuries listed, except the right shoulder injury, were minor injuries. However, Assessor Bodel noted that the right shoulder was not referred for assessment but was causally related to the subject accident on the basis of the MRI scan dated 15 September 2022 which confirms a small full-thickness supraspinatus tendon tear which was a non-minor injury.
The insurer lodged an application for review and submitting that on the available medical evidence the claimant’s injuries were soft tissue in nature.
A re-examination took place as part of the review.
The Review Panel accepted that there is no dispute as to the findings of Medical Assessor Bodel that the injuries to the cervical spine, right arm, wrist, and lumbar spine were threshold injuries caused by the accident.
In relation to the right shoulder, the Review Panel accepted there was dispute as to diagnosis and causation. Having regard to the consistency of both presentation and complaint the Review Panel found on the balance of probabilities that the accident was a contributing cause, which was more than negligible to the development of the right small full-thickness supraspinatus tendon tear.
Findings: The Review Panel found the following right shoulder injury caused by the accident was not a threshold injury for the purposes of the MAI Act.
