Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 92
30 August 2023
Welcome to the 92nd 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
Tomic v AAI Limited t/as GIO [2023] NSWPICMP 258
Panel: Principal Member Belinda Cassidy, Dr Drew Dixon, and Dr Mohammed Assem
Medical assessment of threshold injury - issue in cervical spine, presence of radiculopathy at any time since the accident - issue with shoulders, whether labral tear caused by the accident.
On 18 March 2020, the claimant sustained injuries when the insured driver collided with the rear of the claimant’s vehicle. A medical dispute arose as to whether the claimant’s sustained a non-threshold injury. The following injuries were referred for assessment:
- cervical spine
- thoracic spine
- left, and
- right shoulder.
At first instance, Medical Assessor Gorman found that all of the claimant’s accident-related injuries were minor injuries.
The claimant lodged an application for review and stated that a re-examination was required as part of the review.
In relation to the cervical and thoracic 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 cervical and thoracic spine injuries were a threshold injury.
In relation to the left shoulder, the Review Panel found full range of motion and was satisfied that the injury had resolved.
In relation to the right shoulder, the Review Panel were satisfied that, as a seat-belted driver holding onto the steering wheel and involved in a rear end collision, the claimant could have sustained a tear of the ligaments and tendons in the accident. The Review Panel was satisfied that the injury to the claimant’s right shoulder was therefore a non-threshold injury.
Findings: The Review Panel revoked the Certificate issued by Medical Assessor Gorman and found the claimant’s right shoulder injury was not a threshold injury.
Review Panel Determination
BQD v Allianz Australia Insurance Limited [2023] NSWPICMP 264
Panel: Principal Member Brett Williams, Dr Thomas Newlyn, and Dr Michael Hong
Medical assessment of threshold injury - psychological injury.
On 26 April 2018, the claimant sustained psychological injuries when he attended the scene of a collision wherein his brother was stuck in between vehicles. A medical dispute arose as to whether the claimant’s psychological injury sustained was a non-threshold injury.
At first instance, Medical Assessor Fukui found that the claimant’s chronic adjustment disorder with anxiety was caused by the accident and was a minor injury for the purposes of the Act.
The claimant lodged an application for review and stated that a re-examinations was required as part of the review.
The claimant submitted that, as a result of witnessing the accident, he sustained severe psychological injuries. It was argued that the claimant experienced psychological symptoms immediately following the accident. Those symptoms, it was argued, led the claimant to “adopt a habit of substance abuse”. The submissions record that the claimant did not have a history of seizures prior to the accident that were related to drug use.
The insurer submitted that the claimant’s symptoms were consistent with a diagnosis of adjustment disorder, and that that injury was a ‘minor injury’ in accordance with the Act. The insurer submitted that the claimant’s symptoms did not meet the DSM-5 criteria for major depressive disorder or post-traumatic stress disorder. The insurer also argued that the claimant’s symptoms might have been the effect of substance abuse.
The Review Panel found that the claimant on re-examination by two Medical Assessors did not satisfy the DSM-5-TR criterion for post-traumatic stress disorder. The Review Panel also found that the claimant did not satisfy the criteria for a diagnosis of substance use disorder.
The Review Panel found that the claimant suffered from adjustment disorder with mixed disturbance of emotions and conduct, persistent, and that this condition was caused by the accident. The Review Panel found that, but for the accident, the claimant would not have developed this condition and were satisfied on the balance of probabilities that the accident was a necessary condition of the occurrence of the adjustment disorder.
Findings: The Review Panel confirmed the Certificate issued by Medical Assessor Fukui although it noted that Medical Assessor used the term “minor injury” and this term has been replaced with “threshold injury” under the Act.
Review Panel Determination
Gorgis v AAI Limited t/as GIO [2023] NSWPICMP 263
Panel: Principal Member John Harris, Dr Margaret Gibson, and Dr Drew Dixon
Medical assessment of threshold injury - short delay in onset of symptoms in right shoulder - greater delay in onset of left shoulder symptoms - claimant did not describe direct trauma to either shoulder from motor accident.
On 9 December 2021, the claimant sustained injuries when the insured driver veered into the claimant’s lane colliding with the driver’s side of the claimant’s vehicle several times. A medical dispute arose as to whether the claimant sustained a non-threshold injury. The following injuries were referred for assessment:
- cervical spine
- lumbar spine
- right shoulder injury, and
- left shoulder injury.
At first instance, Medical Assessor Shahzad noted that the claimant had a history of chronic cervical spine pain and had undergone an MRI scan of the right shoulder in November 2018. The Medical Assessor recorded a history of no pain for three days after the motor accident after which there was an onset of headache and shoulder pain. Neurological examination of the upper and lower limbs was unremarkable with normal sensation, reflexes and power. The Medical Assessor noted inconsistency and variability on presentation, which was not rectified despite direct questioning of the claimant. The Medical Assessor concluded that the injuries to the cervical spine, lumbar spine, right shoulder and left shoulder had resolved.
The claimant lodged an application for review.
The Review Panel stated that a re-examination was not required as part of the review noting that the issues articulated in the written submissions relate to causation of the shoulder tears.
In relation to the lumbar spine, the Review Panel was satisfied the claimant’s initial clinical note, three weeks after the motor accident, referred to onset of back pain after two or three days following the motor accident. This onset of pain was in the context of an acknowledged pre-existing low back condition. The injury to the lumbar spine was a soft tissue injury.
In relation to the cervical injury, the Review Panel accepted the claimant’s description of the mechanism of the impact suggested there was a likely whiplash effect on the cervical spine and no indication of radiculopathy.
In relation to the left shoulder, the Review Panel accepted the minor nature of the motor accident where there was no direct trauma to the right shoulder. The low-speed nature of the accident meant there was minimal indirect trauma through the right shoulder, which was restrained by a seatbelt. The Review Panel found any injury to the right shoulder was minimal if at all. Noting that the motor accident need only be a contributing cause, the Review Panel was not satisfied that the motor accident caused any injury or aggravation to the abnormal right shoulder pathology.
The Review Panel was not satisfied that the motor accident caused an injury to the left shoulder. There was no plausible medical reason why the unrestrained left shoulder would be injured from a side impact from the ride side.
Findings: The Review Panel confirmed the Certificate issued by Medical Assessor Shahzad and found the claimant’s injuries to the lumbar spine, cervical spine and right shoulder were threshold injuries and the left should injury was not causally related to the accident.
Claims Assessment
Rodic v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 273
Member: Terence O’Riain
Claims assessment - earning capacity assessment - claimant working two jobs - liability to pay damages - owed duty of care - breach duty of care.
The claimant was involved in an accident on 5 March 2018, which occurred when she was slowing to a complete stop and the insured driver collided with force from behind. The claimant alleged she sustained injuries to her cervical spine, right shoulder, left shoulder and lumbar spine.
The insurer conceded the claimant’s entitlement to non-economic loss and past and future economic loss. The issues that needed to be decided were the non-economic loss damages and quantum for past loss and ongoing impairment to the claimant’s earning capacity under Division 4.2 of the Act. The claimant sought $500,000 for non-economic loss on the basis that prior to the accident she lived a fully content life, was focused on being a care taking partner and mother, and after the accident struggled with daily activities with pain, restrictions and suffering. The insurer allowed $190,000 for non-economic loss as the insurer submitted it was a case where the relatively minor nature of the accident was inconsistent with the relatively serious psychological consequences.
The parties agreed to past economic loss and submitted that at the time of the accident, the claimant was employed on a permanent part-time basis with ORS Group Employment Services (ORS) and had been in that position since 20 July 2009. At the time of the subject accident, the claimant was working for ORS six days per fortnight, amounting to 45.6 hours with a yearly salary of $26,200 plus superannuation.
For future economic loss, the insurer submitted an economic buffer of $125,000, as this was reflective of three years’ earnings before the accident.
Taking into consideration all of the evidence produced by both parties, the Member assessed damages as follows:
Non-economic loss
The Member noted the only surgery offered was for bilateral carpal tunnel syndrome and this was not related to the accident. There was no objective evidence supporting any ongoing connection between her physical pain and suffering and the accident. Her physical injuries from the accident were soft tissue injuries, which had resolved at least two years before this assessment. Accordingly, the Member determined the appropriate non-economic loss damages at $180,000.
Past economic loss
The Member was satisfied with the claimant’s evidence about her past work participation and that she had an authentic desire to continue to work. However, the non-accident sacroiliitis and carpal tunnel syndrome could have reduced her capacity, as the former would impact her cleaning and the latter her ability to complete forms, which was part of her work with OSR.
As such, the Member allowed 274 weeks at $495.31 for reduced part-time work at 95%, which equated to $128,929. The Member then allowed for the second job loss at 274 weeks at $381.08 for reduced part-time work at 95%, which equated to $99,125. The claimant’s total past economic loss was assessed at $242,559, including superannuation at 11.5% ($14,505) for the job with ORS but not for the second job as the claimant was self-employed and was not paid superannuation.
Future economic loss
The Member accepted the claimant was likely to suffer future economic loss due to her accident-related injuries and disabilities. The Member noted the claimant’s claim that but for the accident, she would have worked until she was 72 years old instead of the statutory retirement age of 67 years old.
Residual earning capacity
The claimant was required to prove her economic loss per the decision of Garling J in Kerney v Mead & Anor [2011] NSWSC 518. Once established, the insurer must prove that the claimant had a residual earning capacity and provide evidence of what she was capable of doing and what jobs were open to her. The Member noted the insurer did not provide any evidence and was not satisfied that the insurer had discharged the onus that the claimant could be employable on a sustained basis in the administrative field or be successful in her business. Nevertheless, the Member was satisfied the claimant could find suitable part-time work for some time as she has demonstrated she enjoyed work, was resilient and had a can-do attitude proven by her seeking suitable treatment.
Loss of opportunity
The Member relied on the dicta in Malec v Hutton (1990) 169 CLR and State of NSW v Moss [2000] NSWCA 133 and allowed future economic loss by way of buffer for the claimant’s loss of opportunity to develop her cleaning business. The Member noted but for the accident, the claimant would have been able grow her business and the business could have had longevity as there was no statutory retirement age for that type of work. Accordingly, the Member allowed an additional $15,000 for the buffer.
In summary, the Member assessed the claimant’s future economic loss at $215,000 inclusive of superannuation.
Findings: The Member assessed the claimant’s damages as follows:
- Non-economic loss: $180,000
- Past economic loss: $242,559
- Future economic loss: $215,000
Total: $640,077
