Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 93
30 August 2023
Welcome to the 93rd 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
Venter v AAI Limited t/as GIO [2023] NSWPICMP 267
Panel: Principal Member Belinda Cassidy, Dr Drew Dixon, and Dr Paul Curtin
Medical assessment of threshold injury - Medical Assessor assessed neck and the right hip but did not assess the right hip - issue in assessment of neck, presence of radiculopathy - issue in assessment of right hip, causation of tear of the labrum and gluteus minimus - no issue identified in submissions concerning the back.
On 8 May 2020, the claimant sustained injuries while riding her bicycle when she was struck on her right side by the insured vehicle. 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, and
- right hip.
At first instance, Medical Assessor Home determined that all of the claimant’s injuries were minor injuries (non-threshold).
The claimant lodged an application for review, making submissions that Medical Assessor Home did not consider the “clear evidence of cervical radiculopathy”, relying on the case of David v Allianz Australia Insurance Ltd where it was found that radiculopathy at any time whether ongoing or not satisfied the definition.
The Review Panel noted that the parties agreed to only refer the cervical spine injury and right hip injury for assessment but it was not necessary to examine the claimant’s lumbar spine.
The Review Panel stated that a re-examinations was required as part of the review.
The Review Panel accepted the claimant’s history of the accident and that as a result of the accident she had a head injury with transient loss of consciousness. Her husband, who was with her at the time, said that she hit the car before falling onto the road. She reported sustaining an injury to the right side of her head, right elbow, chest, right thigh and right knee. She was helped by her husband and a passer-by and was driven to Nepean Hospital where she had a precautionary CT scan of her head and neck. She developed post traumatic dizziness after the motor vehicle accident, which was diagnosed as benign positional vertigo. She also said that in the two months after the accident she developed pain in her neck and pain and swelling at the lateral aspect of the right hip where there was a large subcutaneous haematoma. This was not drained.
The Review Panel also accepted the claimant’s report that her dizziness and neck pain improved but she still had residual right sided neck pain with trapezial muscle pain and had difficulty turning to that side. She also had intermittent paraesthesia in the ulnar two digits of her right hand, which occurred at night. 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 right hip, the Review Panel accepted that the claimant had pain and swelling at her right lateral hip, which persisted since the day of the accident. The Review Panel noted diagnosis including a small labral tear in the hip joint with some femoral acetabular impingement and some ischiofemoral impingement with inflammation at the adductor tendons with a partial tear of the gluteus minimus. The claimant reported that on 1 June 2022 she had an injection to the ischiofemoral junction to address this impingement, which slowly improved over the subsequent months. The Review Panel found the tear to the gluteus minimus and the labrum of her right hip while small, was a partial rupture of tendons ligaments and cartilage and causally related to the accident and was therefore satisfied the claimant’s right hip injury was a non-threshold injury.
Findings: The Review Panel revoked the Certificate issued by Medical Assessor Home and found the claimant’s right hip injury was not a threshold injury due to the presence of partial tears.
Review Panel Determination
Seghabi v AAI Limited t/as AAMI [2023] NSWPICMP 269
Panel: Principal Member Susan McTegg, Dr Melissa Barrett, and Dr Christopher Rikard-Bell
Assessment of permanent impairment - relapse of pre-existing psychiatric injury.
On 2 March 2018, the claimant sustained injuries when the insured vehicle drove out of a car wash and collided with the front driver’s side of the claimant’s vehicle. 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 Matthew Jones determined that any psychiatric condition caused by the accident had resolved and did not result in permanent impairment.
The claimant applied for further assessment.
The insurer lodged an application for review and a re-examinations took place as part of the review.
The Review Panel accepted that on the medical and other evidence currently before it, the claimant had an ongoing, pre-existing persistent depressive disorder at the time of the accident and that her description of her current functioning compared to her pre-accident functioning was minimally different. Nevertheless, based on her account of increased depressive symptoms, the GP’s contemporaneous records and the slight worsening of functioning after the accident, the Review Panel accepted there was mild exacerbation of the pre-existing persistent depressive disorder as a result of the accident-related stressors of chronic pain and pain-related restrictions to independence.
The Review Panel found total Whole Person Impairment (WPI) of 1% resulting from mild exacerbation of pre-existing persistent depressive disorder.
Findings: The Review Panel revoked the Certificate of Medical Assessor Matthew Jones and issued a new Certificate determining that the injuries caused by the motor accident included a relapse of past post-traumatic stress disorder, now in remission, and mild exacerbation of pre-existing persistent depressive disorder. The Review Panel also found that the claimant was not over the threshold for permanent impairment.
Review Panel Determination
QBE Insurance (Australia) Limited v Dincer [2023] NSWPICMP 286
Panel: Principal Member Susan McTegg, Dr Wing Chan, and Dr Michael Couch
Medical assessment of threshold (then minor) injury - dispute as to causation of left shoulder injury - whether progression of full thickness tear of the superficial fibres of the subscapularis seen on MRI in 2015 to a complete tear of the tendon seen on ultrasound four months post-accident attributed to the accident or part of the progression of degenerative rotator cuff pathology - where the claimant could not recall any significant symptoms prior to the accident that the accident was a contributing cause, which was more than negligible.
On 9 April 2019, the claimant sustained injuries as a result of a collision with the insured driver. A medical dispute arose as to whether the claimant sustained a non-threshold injury. The following injuries were referred for assessment:
- cervical spine – left C56/7 foraminal stenosis with possibility of compression of the left C7 nerve root; localised advanced left C2/3 facet arthropathy
- thoracic spine – injury to the thoracic spine
- lumbar spine – multi-level disc bulging, and
- left shoulder – chronic appearing tears of subscapularis and long head of biceps, tendinosis and bursitis.
At first instance, Medical Assessor Bodel found the injuries to the thoracic spine and the lumbar spine were minor (threshold) injuries for the purpose of the Act. He found the following injuries were caused by the accident and were not minor (threshold) injuries for the purposes of the Act:
- cervical spine – left C6/7 foraminal stenosis with possibility of compression of the left C7 nerve root; localised advanced left C2/3 facet arthropathy, and
- left shoulder – chronic appearing tears of subscapularis and long head of biceps, tendinosis and bursitis.
The insurer lodged an application for review.
The Review Panel informed the parties it did not consider a re-examination was required to determine the issues in dispute. The claimant objected to the matter being determined without re-examination. Accordingly, the Review Panel agreed an examination was required.
The Review Panel noted that the Medical Assessor was only referred a neck injury and knee injury to assess but that the Medical Assessor did examine the claimant’s lumbar spine.
In relation to the lumbar spine, the Review Panel accepted that the claimant had suffered an aggravation of pre-existing lumbar spondylosis with no evidence of fracture or radiculopathy and was therefore satisfied that the claimant had 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 was therefore satisfied the claimant’s neck injury was a threshold injury.
In relation to the left shoulder injury, the Review Panel noted that there was a dispute as to diagnosis and causation of the left shoulder injury. The Review Panel was satisfied that any injury to the claimant’s knee was soft tissue in nature and therefore was a threshold injury.
The Review Panel accepted that having regard to the lack of left shoulder complaints between 2015 and the accident and the consistency complaints following the accident, the Review Panel determined that on the balance of probabilities (and noting the test for causation does not require scientific certainty) that the claimant’s left shoulder complete tear of the subscapularis tendon was causally related to the accident and therefore was a non-threshold injury.
Findings: The Review Panel revoked the Certificate of Medical Assessor James Bodel and determined that the left should tear injury caused by the motor accident was a non-threshold injury.
Review Panel Determination
Insurance Australia Limited t/as NRMA Insurance v Vekic [2023] NSWPICMP 296
Panel: Principal Member Belinda Cassidy, Dr Margaret, and Dr Geoffrey Stubbs
Whole person impairment dispute - injuries to cervical, thoracic and lumbar spine, right and left shoulder, right and left wrist, right and left knee.
The claimant sustained injuries as a result of a head-on collision on 20 January 2018.
At first instance, the insurer had estimated that the claimant’s injuries had sufficiently recovered and made a determination that the claimant’s injuries did not exceed the 10% threshold.
The claimant lodged an application for medical assessment and the matter was referred to Medical Assessor Berry who found that the claimant sustained a WPI greater than 10% (17%) as follows:
- cervical spine diagnosis-related estimate (DRE) I - 5%
- lumbar spine DRE I - 5%
- right shoulder - 4%
- left shoulder - 4%
- right wrist - 0%
- left wrist - 0%
The insurer lodged an application for review, which was successful. The matter was referred to the Review Panel and the insurer submitted the following:
- the Assessor had assessed the claimant’s cervical spine as DRE category I which equated to 0%, not the 5% that the assessor gave
- the Assessor had assessed the claimant’s lumbar spine as DRE category I which equated to 0%, not the 5% that the assessor awarded
- for the right shoulder, the Assessor incorrectly assessed adduction at 120 degrees (a finding that does not exist) and abduction at 40 degrees, and
- in respect of the left shoulder, the Assessor has also incorrectly assessed adduction at 140 degrees (that does not exist) and abduction at 40 degrees.
The insurer submitted that if the cervical and lumbar spines were assessed as DRE category I and 0%, regardless of the shoulder assessment errors, the claimant would have a WPI below 10%.
Findings: The Review Panel revoked the Certificate of Medical Assessor Berry and determined the claimant sustained injuries giving rise to 6% WPI as follows:
- cervical spine DRE I - 0%
- thoracolumbar spine DRE I - 0%
- right upper limb - 3%
- left upper limb - 3%
- left knee - no impairment
- right knee - no impairment.
Merit Review
Merzeo v Allianz Australia Insurance Limited [2023] NSWPICMR 33
Merit Reviewer: Katherine Ruschen
Merit review - dispute about payment of weekly benefits - burden of proof - insufficient evidence; earnings from self-employment; earnings received after the pre-accident period.
The claimant made a claim for statutory benefits in relation to an accident on 26 January 2022. The matter was brought before the Commission with regard to a dispute between the parties about the payment of the claimant’s pre-accident weekly earnings (PAWE).
The insurer determined the claimant’s PAWE and the claimant sought an internal review of that decision. On 5 April 2023, an internal reviewer made a decision in substitution of the insurer’s PAWE decision, determining that the claimant’s PAWE was $887.50.
The claimant lodged an application with the Commission disputing the insurer’s decision.
The parties agreed that there was no dispute that the claimant was an earner for the purpose of the Act. The dispute related to the amount of gross earnings received by the claimant in the 12-month pre-accident period under Schedule 1, cl 4(1).
The claimant submitted gross earnings for the purpose of PAWE were $73,401, comprising:
- earnings received as an employee from Deloitte: $5,713
- earnings received as an employee from Nomad: $31,735
- earnings received as an employee from Right at Home: $17,475, and
- earnings received as a sole trader: $18,478.
On 15 May 2023, the claimant relocated overseas to Switzerland, and as such, pursuant to s 3.21 of the Act, the claimant had no entitlement to weekly benefits from 15 May 2023 unless the Commission or the insurer determined that the claimant’s loss of earning capacity was likely to be of a permanent nature.
The insurer submitted that, in taking into account the full 52 week period when it determined PAWE, it correctly applied cl 4(1). The insurer submitted that it had excluded certain payments comprising the above on the basis they were received by the claimant either before commencement of the 12 month pre-accident period or after the pre-accident period came to an end. The insurer had also excluded all income said to have been received by the claimant as a sole trader on the basis there were no source documents to verify the receipt of such income.
The Merit Reviewer identified that the issue to be determined was the gross earnings received by the claimant in the 12 month pre-accident period and in particular, the extent to which the claimant received any income as a sole trader in this period
The Merit Reviewer found the following:
- Earnings in the sum of $5,713 received from employer Deloitte were received by the claimant prior to commencement of the pre-accident period under cl 4(1) on 26 January 2022. The evidence established the earnings were received in 2021. Accordingly, these earnings were excluded from PAWE under cl 4(1).
- Earnings received from employer Nomad in the sum of $31,735 were satisfactory received in the relevant pre-accident period.
- Earnings received from employer Right at Home in the sum of $17,475 were not entirely received in the relevant pre-accident period, and the sum of $15,641.31 in gross were received in the relevant pre-accident period.
In relation to self-employed earnings, the Merit Reviewer noted that the claimant provided a spreadsheet of earnings without source material for all items claimed. The Merit Reviewer noted the spreadsheets were not reconcilable with any source documents evidencing the receipt of such income other than the following:
- an invoice from the claimant in the sum of $5,000 under their business “Travel VC” dated 1 March 2022 and a corresponding bank deposit in the claimant’s bank statement for payment of this invoice
- an invoice from the claimant in the sum of $372.72 to National Disability Insurance Scheme (NDIS) client Lode Lievens dated 29 October 2022 and two corresponding payments in the claimant’s bank statement with reference Lode Lievens INV 29.10.22 on 7 November 2022 for payment of this invoice, and
- an invoice from the claimant in the sum of $253 to NDIS client Hendrik Lievens dated 26 September 2022 and a corresponding bank deposit on 5 October 2022 in the claimant’s bank statement for payment of this invoice.
The Merit Reviewer therefore accepted the claimant’s business received gross income of $5,625.72 in the 12 month pre-accident period, as demonstrated by the invoices and transactions in the bank statements outlined above.
However, the Merit Reviewer noted the 2022 tax return showed the expenses represented approximately 91% of gross income.
Accordingly, the Merit Reviewer calculated the claimant’s net business income in the pre-accident period as follows:
- expenses: total gross income of $5,625.72 x 91% = $5,119.40, and
- net business income: gross income of $5,625.72 less $5,119.40 for expenses = $506.32.
The Merit Reviewer calculated gross earnings received by the claimant as an earner in the period relevant pre-accident period in the sum of $47,882.43 broken down as follows:
- Nomad: $31,734.80
- Right at Home: $15,641.31, and
- sole trader earnings: $506.32.
Accordingly, the weekly average was $920.82 ($47,882.43 divided by 52 weeks). The claimant’s PAWE was therefore $920.82
Findings: The Merit Reviewer determined that the reviewable decision was set aside, and the claimant’s PAWE amount was $920.82
