Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 90
10 August 2023
Welcome to the 90th 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.
Review Panel Determination
El Shaimy v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 247
Panel: Principal Member Belinda Cassidy, Dr Geoffrey Stubbs, and Dr Shane Moloney
Medical assessment of threshold (then minor) injury - lack of clarity in body parts referred for assessment and only neck and left lower limb assessed – Medical Assessor not satisfied saphenous nerve not injured and no evidence of radiculopathy or tear to any discs or ligaments in the neck - insurer submitted lower back injury should not be reviewed.
On 6 May 2019, the claimant sustained injuries as a passenger on a bus when a semi-trailer collided with the rear of the bus. A medical dispute arose as to whether the claimant’s sustained a non-threshold injury. The following injuries were referred for assessment:
- neck
- back, and
- left knee saphenous nerve.
At first instance, Medical Assessor Assem found the claimant’s explanation for the delay in seeking treatment plausible and accepted the claimant injured his left knee and cervical spine in the accident. Medical Assessor Assem noted the radiology suggested progression of the C5-6 bulge but no evidence of an annular tear and therefore the injury was a minor injury. Medical Assessor Assem considered a saphenous nerve injury was inconsistent with the distribution of the claimant’s symptoms. Medical Assessor Assem was of the view that a saphenous nerve injury can occur when a knee hits a dashboard, but this would result in symptoms below the knee and not above the knee.
The claimant lodged an application for review, including submissions that Medical Assessor Assem did not consider the annular tear to the claimant’s lumbar spine (later conceding that their application could have been more complete to clearly identify this injury as there was no annular tear alleged elsewhere).
The Review Panel noted that the Medical Assessor was only referred a neck injury and knee injury to assess but that he also examined the claimant’s lumbar spine.
The Review Panel accepted that Medical Assessor Assem determined the two injuries referred to him (neck and saphenous nerve) were minor injuries. The Review Panel stated it was not conducting an “appeal” of Medical Assessor Assem’s assessment of those two injuries, but were undertaking a fresh assessment of the medical assessment matter that was referred by the claimant to the Commission, being:
- what injuries were caused by the accident, and
- whether any of them are threshold injuries.
The Review Panel stated that a re-examination was not required as part of the review.
In relation to the lumbar spine, the Review Panel was satisfied the claimant has sustained injury to the spinal nerves most likely at L3 or L4 and was therefore satisfied that the claimant had a non-threshold lumbar spine nerve root injury.
In relation to the neck injury, the Review Panel found no evidence of two or more signs of radiculopathy at any stage in the claimant’s cervical spine and was therefore satisfied the claimant’s neck injury was a threshold injury.
In relation to the left knee saphenous nerve injury, the Review Panel noted that the claimant had nerve conduction studies done of the saphenous nerve, which revealed the same diminution of sensation in both the left lower limb (injured) and the right lower limb (uninjured). If there had been a saphenous nerve injury the Review Panel would have expected the saphenous sensory responses to have been asymmetrical being lower on the left than the right. While the claimant may have injured his knee in the accident, there was no evidence of a saphenous nerve injury to the left lower limb caused by the accident. The Review Panel was satisfied that any injury to the claimant’s knee was soft tissue in nature and therefore was a threshold injury.
Findings: The Review Panel revoked the certificate issued by Medical Assessor Assem and found the claimant’s lower back nerve injury was not a threshold injury due to the presence of radiculopathy.
Claims Assessment – Settlement Approval
Allianz Australia Insurance Limited v Davison [2023] NSWPIC 269
Member Shana Radnan
Settlement approval—claimant is self-represented—contributory negligence - claim for past and future economic loss — physical and psychological injuries.
The claimant was a pedestrian who stepped from the kerb when the insured driver sounded the horn, which startled him causing him to fall into the side of the insured’s vehicle. An ambulance was not required and there was no need for hospitalisation. The claimant attended his general practitioner a few weeks later.
The claimant sustained a suspected labral tear in his left hip and worsening depression against a background of pre-existing anxiety.
At the time of the accident the 58-year-old claimant was working as an Uber driver taking a break from his trade as a construction electrician. The parties agreed to past economic losses of $2,900 and future economic losses in the sum of $75,500, representing an ongoing loss of $215 per week. The sum total of $78,400 was rounded up to $79,000.
The parties agreed to 60% contributory negligence.
The parties agreed that there was no award for non-economic loss as injuries were assessed at 3% Whole Person Impairment (WPI) for left hip labral tear. And there was no rateable impairment for psychological injuries as Dr Vickery determined no psychological injuries were attributable to the accident. As such, the claimant was not entitled to non-economic loss.
The claimant was not represented by a solicitor and the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
Findings: The Member accepted that damages of $32,000 after 60% contributory negligence for past and future economic loss was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
Claims Assessment – General Assessment of Damages
Telebrico v QBE Insurance (Australia) Limited [2023] NSWPIC 268
Member: Gary Victor Patterson
Assessment for damages - claim for past and future economic loss —physical injuries
The claimant was a driver of a stationary vehicle when the insured driver collided with the rear end of the claimant’s vehicle at the traffic lights. The claimant’s vehicle was pushed into the vehicle in front of it. Both the front and rear of the claimant’s vehicle was damaged. Ambulance officers attended the scene but the claimant was not assessed and was taken home by her husband. Police did not attend. The claimant suffered injuries including multiple neck, right shoulder with partial thickness supraspinatus tear, right arm, left shoulder and back.
In relation to WPI, Medical Assessor Alan Home had previously assessed the claimant’s degree of permanent impairment and certified 9% finding injuries to the cervical spine, lumbar spine, right shoulder and left shoulder were causally related to the accident. Whereas the injuries to the left knee and right knee had resolved.
At the time of the accident the 50-year-old claimant was employed full-time as a packaging coordinator with a large pharmaceutical company. The claimant had been in that employment for 13 years. She had commenced as an entry-level process worker and had been promoted a number of times. That employment ceased in December 2020 when the claimant’s employer ceased its Sydney operation and she was retrenched, receiving a substantial redundancy payment. The claimant conceded that her retrenchment was unrelated to the motor accident. The claimant then obtained casual employment in a quality assurance position with another medical products producer. The claimant resigned that employment after some weeks in circumstances that were disputed. The claimant submitted that she was unable to undertake heavy lifting due to her injuries sustained in the motor accident. The insurer submitted that her resignation was due to causes unrelated to the motor accident.
The Member allowed $88,800 for past loss of earnings and $9,768 for past superannuation at the agreed rate of 11% of the past loss of earnings. Additionally, $2,765 was allowed for the agreed Fox v Wood component.
In relation to future economic loss, the Member accepted the following:
- at the time of the motor accident, the claimant had unrestricted earning capacity
- her earning capacity had been reduced by reason of the injuries caused by the motor accident, especially as they overlayed underlying degenerative changes in her cervical spine and shoulders, and
- the reduction in her earning capacity was likely to be predictive of future economic loss.
The Member allowed $150,000 as a buffer, for future loss of earning capacity.
Findings: The Member determined that damages of $251,421 for past and future economic loss were just, fair and reasonable
Review Panel Determination
Elizondo v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 245
Panel: Principal Member John Harris, Dr Margaret Gibson, and Dr Mohammed Assem
Medical assessment of threshold (then minor) injury - initial clinical note did not refer to right shoulder pain - initial clinical note by physiotherapist one week later referred to right shoulder pain - initial absence of complaint may be an omission - post-accident scan showed full thickness tear of the supraspinatus tendon - pre-accident right shoulder scan did not show a tear
On 26 May 2019, the claimant sustained injuries when the insured driver collided first with the right-hand side of the claimant’s vehicle and then secondly, collided with the rear of the claimant’s vehicle. A medical dispute arose as to whether the claimant sustained a non-threshold injury. The following injuries were referred for assessment:
- right shoulder
- thoracic spine; lumbar spine with radiating pain into both legs and
- cervical spine injury with radiating pain into the right arm and hand and a rib injury nerve.
At first instance, Medical Assessor Harrington found soft tissue injuries to the cervical, thoracic and lumbar spines, right shoulder and ribs, which were minor injuries.
The claimant lodged an application for review submitting that Medical Assessor Harrington failed to articulate how the right shoulder tear was not causatively related to the accident in circumstances where the condition was asymptomatic.
The insurer submitted that the injury to the cervical and lumbar spines was an aggravation of pre-existing pathology, which constituted a minor injury. There was no evidence of two signs of radiculopathy as defined in the Guidelines.
The Review Panel stated that a re-examination was required as part of the review.
The Review Panel accepted that the claimant had severe side-to-side jolting with the impact of her right shoulder hitting the inside of her car. She said she had noticed some bruising in the same distribution some days later and the right shoulder symptoms were delayed for a few days but had definitely come on in the period after the subject accident.
In relation to the lumbar spine, the Review Panel was satisfied there was no evidence of traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The MRI scan of the lumbar spine shows degenerative changes and was therefore a threshold injury.
In relation to the neck injury, the Review Panel found no evidence of two or more signs of radiculopathy at any stage in the claimant’s cervical spine and therefore was satisfied the claimant’s neck injury was a threshold injury.
In relation to the right shoulder, the Review Panel accepted the treating specialist records that the impingement signs suggested a right rotator cuff tear. The claimant’s scan evidence showed a full thickness tear of the supraspinatus tendon and the Review Panel noted that it was medically plausible that the supraspinatus tendon could be torn or at least aggravated by the nature of this motor accident.
The Review Panel was satisfied that the supraspinatus tendon tear injury to the claimant’s right shoulder was causally related to the accident and was a non-threshold injury.
Findings: The Review Panel revoked the certificate issued by Medical Assessor Harrington and found the claimant’s right shoulder injury was not a threshold injury due to the presence of radiculopathy.
