Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 91
30 August 2023
Welcome to the 91st 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
QBE Insurance (Australia) Limited v Hoblos [2023] NSWPICMP 209
Panel: Principal Member John Harris, Dr Michael Hong, and Dr Atsumi Fuku
Medical assessment of threshold (then minor) injury - previous psychological injury - claimant involved in four separate motor accidents over short period.
The claimant was involved in four motor accidents over a short period: one accident on 14 December 2020, two on 19 December 2020 and another on 3 January 2021.
In relation to the accidents on 19 December, the claimant alleged injuries were received in the second motor accident when the other vehicle tried to turn right and impacted into the passenger door of the claimant’s vehicle (the prior accident). The prior accident occurred around 4 pm whilst the earlier accident that same day occurred around 2 pm.
In relation to the accident on 3 January 2021, the claimant sustained injuries when the insured vehicle T-boned the claimant’s vehicle at speed (the subject accident).
The claimant was also involved in earlier motor accidents in 2018 and November 2019.
A medical dispute arose as to whether the claimant sustained a non-threshold injury.
At first instance, Medical Assessor Parmegiani found the claimant sustained a non-minor psychological injury caused by both the prior accident and the subject accident. The Medical Assessor found that the 31-year-old claimant had been hearing impaired since birth and presented with a complex clinical picture after her involvement in a series of motor vehicle accidents between 14 December 2020 and 3 January 2021.
From a psychiatric perspective, the claimant had been treated for symptoms of major depression and post-traumatic stress disorder (PTSD) several years earlier after police raided her home in a case of mistaken identity. She stated that she had recovered fully and was well before the prior accident and subject accident.
The insurer lodged an application for review to determine the issue of threshold injury in respect of the prior accident and the subject accident.
The Review Panel stated that a re-examination was required as part of the review.
The Review Panel accepted that the subject accident caused the symptoms to meet the diagnostic criteria for PTSD. The Review Panel also noted there was previous symptomatology that did not negate a subsequent, in this case, serious motor accident causing further psychological symptoms.
The Review Panel found that the claimant sustained PTSD from the subject accident and therefore sustained a non-threshold injury.
Findings: The Review Panel confirmed the certificate issued by Medical Assessor Parmegiani.
Review Panel Determination
Harb v AAI Limited t/as AAMI [2023] NSWPICMP 251
Panel: Principal Member Belinda Cassidy, Dr Wing Chan, and Dr Margaret Gibson
Medical assessment of threshold (then minor) injury - Medical Assessor found all injuries to be threshold injuries - only injury in issue was the right shoulder injury - claimant had long standing shoulder injuries and before the accident was booked for shoulder surgery which occurred after the accident - issue of causation of further tear.
On 27 September 2019, the claimant sustained injuries as a passenger when the insured driver T-boned the passenger side of the vehicle. A medical dispute arose as to whether the claimant sustained a non-threshold injury. The following injuries were referred for assessment:
- cervical spine – musculoligamentous injury
- lumbar spine – musculoligamentous injury
- right shoulder – aggravation of pre-existing injury
- left knee injury – pain
- right arm injury – bruised
- chest wall injury, and
- left thigh injury.
At first instance, Medical Assessor Woo determined that all of the claimant’s injuries were minor injuries.
The claimant lodged an application for review and the Review Panel stated that a re-examination was required as part of the review.
The claimant submitted that her pre-existing right rotator cuff tear was worsened by the accident.
The insurer submitted that the claimant accepted she had a pre-existing rotator cuff tear in the right shoulder and there was no dispute that the claimant aggravated her shoulder injury in the accident.
The Review Panel noted evidence of right shoulder injury in both the hospital notes on the day of the accident and the GP’s notes, which record shoulder bruising and pain in the first week after the accident. The Review Panel accepted that the mechanism of the accident could have and did cause an injury to the claimant’s right shoulder including the further tearing of the claimant’s right rotator cuff as reported on the 8 October 2019 ultrasound.
Findings: The Review Panel revoked the certificate issued by Medical Assessor Woo and found the claimant had further torn her right rotator cuff in the accident, which was a non-threshold injury due to the presence of a further tear.
Review Panel Determination
QBE Insurance (Australia) Limited v Narcisi [2023] NSWPICMP 252
Panel: Principal Member John Harris, Dr Mohammed Assem, and Dr Drew Dixon
Medical assessment of threshold (then minor) injury - alleged pelvic fracture and right shoulder injury from motorbike injury - right shoulder injured at football three weeks prior to the accident - pathology consistent with dislocation.
On 24 September 2020 the claimant, a motorbike rider, sustained injuries when the insured vehicle came out from a side street causing a T-bone collision. A medical dispute arose as to whether the claimant sustained a non-threshold injury. The following injuries were referred for assessment:
- lumbar spine
- pelvic fracture, and
- right shoulder.
At first instance, Medical Assessor Rosenthal found that the motor accident caused a pelvic fracture, which was a non-minor injury. The Medical Assessor otherwise held that all other injuries sustained in the motor accident were minor injuries, or with respect to the right shoulder, not causatively related.
The insurer lodged an application for review submitting that that the injuries related to the motor accident were threshold injuries. The Review Panel stated that a re-examination was required as part of the review.
In relation to the lumbar spine, the Review Panel was satisfied the claimant had sustained soft tissue injury and was therefore satisfied that the claimant had a threshold lumbar spine injury.
In relation to the pelvic fracture, the Review Panel accepted that the claimant’s pelvis impacted the petrol tank of the motorcycle and the symptoms post-accident were consistent with the nature of the pelvic fracture, noting in particular that the claimant made an immediate complaint of pelvic pain to the ambulance officer and at the hospital. The Review Panel accepted the history recorded at the hospital that the claimant was involved in a T-bone accident and was travelling at approximately 30-35 km/h when he hit his pelvis on the petrol tank. The Review Panel noted that the initial Medical Assessor did not provide reasons for their suggestion that the type of impact in the subject accident would not cause an undisplaced fracture.
The Review Panel noted that the CT scan dated 24 September 2020 reported a non-displaced fracture and that report was queried on the following day because of the absence of soft tissue swelling.
The Review Panel did not accept that this is an inconsistency for two reasons as follows:
- First, soft tissue swelling may have come out later than within hours of the motor accident. The CT scan was taken on the day of the motor accident and any swelling could have developed after that time. The suggestion by the insurer that the scan was taken the following day is wrong. The further report was written on the following day based on a CT scan taken on the day of the motor accident.
- Secondly, with a compression fracture which is minor to the extent that it was undisplaced, swelling would not necessarily occur or would otherwise be minimal such that the swelling may not be apparent on a CT scan.
The Review Panel found that the motor accident caused a undisplaced fracture of the right inferior pubic rami. This was not a threshold injury and was therefore satisfied the claimant’s pelvic fracture was a non-threshold injury.
In relation to the right shoulder, the Review Panel did not accept that there was a tear of the right shoulder caused by the motor accident. It noted the various histories showed that the claimant first suffered a right shoulder dislocation three weeks prior to the motor accident when he presented to a hospital. The Review Panel was satisfied that any right shoulder injury causally related to the accident was soft tissue in nature and therefore was a threshold injury.
Findings: The Review Panel confirmed the certificate issued by Medical Assessor Rosenthal and found the claimant’s pelvic fracture injury was a non-threshold injury.
Review Panel Determination
Akther v QBE Insurance (Australia) Limited [2023] NSWPICMP 250
Panel: Principal Member John Harris, Dr Christopher Grainge, and Dr Ian Cameron
Medical assessment of threshold injury - issue of causation of pulmonary embolism (PE) and whether it was a threshold injury - claimant did not suffer from anti-phospholipid syndrome as early blood tests were a false positive and subsequent test was negative - no other reason for PE other than bed rest following motor accident - time frame for onset of pain associated with PE consistent with cause being immobility following motor accident - PE causes lung tissue damage due to the blockage.
On 14 September 2020, the claimant sustained injuries when the insured driver failed to stop and collided with the rear of the claimant’s vehicle, pushing it into a fence. A medical dispute arose as to whether the claimant’s PE was a non-threshold injury.
At first instance, Medical Assessor Haber found that the claimant suffered a PE caused by the motor accident, which was a minor injury. Medical Assessor Haber noted that two to three weeks after the motor accident the claimant had an ECG, which showed two small clots in the lungs. He noted that the claimant had suffered from dull chest pain for a couple of months. The Medical Assessor found that the treatment for the PE was reasonable and necessary in the circumstances and caused by the accident although there was no longer a necessity for ongoing treatment.
The claimant lodged an application for review and the Review Panel stated that a re-examinations was required as part of the review.
The Review Panel accepted that the claimant developed pain in early October and presented for medical treatment when the PE was then diagnosed. The Review Panel accepted that the time frame of onset of pain was consistent with the cause being associated with the period of immobility following the motor accident. On the balance of probabilities, the motor accident caused the PE, secondary to relative immobility.
The Review Panel noted that the:
- PE caused lung tissue damage because of the blockage
- injury was not “an injury to tissue that connects, supports or surrounds other structures or organs of the body” in s 1.6(2) of the Act, and
- injury was otherwise not an injury to tissue as defined by the example in the parentheses of the definition of “soft tissue injury”, that is “muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes”.
Accordingly, the Review Panel was satisfied that the claimant’s injury was not a threshold injury within the meaning of the Act.
Findings: The Review Panel revoked the certificate issued by Medical Assessor Haber and found the claimant’s PE injury was not a threshold injury.
Review Panel Determination
AAI Limited t/as GIO v O'Loughlin [2023] NSWPICMP 256
Panel: Principal Member Alexander Bolton, Dr Tai-Tak Wan, and Dr Shane Moloney
Medical assessment of threshold injury – physical injuries.
On 4 November 202, the claimant sustained injuries as she was driving towards an intersection when the insured driver entered the intersection against a red light facing him and collided with 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 bicep/shoulder – soft tissue injury
- neck/cervical spine – C3/C4 disc protrusion with nerve root impingement, C6 vertebrae bone injury, paraesthesia and radiculopathy
- lumbar spine – with referred pain to Lower Limbs and radiculopathy, and
- bilateral leg injuries – soft tissue with neurological symptoms.
At first instance, Medical Assessor Ho found that the injuries to the lumbar spine were threshold and the injuries to the cervical spine and right shoulder were non-threshold injuries.
The insurer lodged an application for review and the Review Panel stated that a re-examinations was required as part of the review.
In relation to the lumbar spine and cervical, the Review Panel noted that on the day Review Medical Assessor Moloney examined the claimant, the claimant did not have radiculopathy of the cervical or lumbar. The cervical and lumbar spine injuries were soft tissue in nature and therefore threshold injuries.
In relation to the right shoulder, the Review Panel noted that the claimant complained that numbness in the right third and fourth fingers, associated with pins and needles continued. On examination by Review Medical Assessor Moloney, there was a global decrease in sensation in the right upper arm. Medical Assessor Ho recorded no sensory loss on examination and a global numbness in the entire right arm. Both Medical Assessor Ho and Review Medical Assessor Moloney recorded a non-dermatomal decrease in sensation on history and examination The Review Panel was satisfied that any injury to the claimant’s right shoulder was soft tissue in nature and therefore was a threshold injury.
Findings: The Review Panel revoked the certificate issued by Medical Assessor Ho and found the claimant’s injuries to the cervical spine, lumbar spine and right shoulder were threshold injuries.
