Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 94
30 August 2023
Welcome to the 94th 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
AAI Limited t/as AAMI v Yousif [2023] NSWPICMP 319
Panel: Principal Member Susan McTegg, Dr Drew Dixon, and Dr Tai-Tak Wan
Medical assessment of threshold injury – causation of injury to lumbar spine – aggravation of pre-existing lumbar spine injury.
On 16 December 2020, the claimant sustained injuries when his vehicle was rear-ended due to the insured driver causing a multi-vehicle collision. A medical dispute arose as to whether the claimant sustained a non-threshold injury. The lumbar spine injury was referred for assessment.
At first instance, Medical Assessor Assem determined the claimant aggravated pre-existing degenerative lumbar disc pathology and opined that whilst the claimant probably had episodes of non-verifiable radicular symptoms in the past, Medical Assessor Assem found he now had L5/S1 radiculopathy, which is a non-minor (threshold) injury.
The insurer lodged an application for review, making submissions that it was implicit from the definition of radiculopathy as defined at cl 5.8 of the Guidelines that it must be caused by dysfunction of a spinal nerve root. The insurer submitted that the Certificate of Medical Assessor Assem did not contain proper reasoning as to how the clinical signs were caused by dysfunction of a spinal nerve root where the radiology considered did not reveal any nerve root compression.
The Review Panel stated that a re-examination was required as part of the review.
The Review Panel accepted the claimant’s vehicle was the third in a seven vehicle rear end collision, as described in the diagram submitted in the application for personal injury benefits. The force of the collision was clearly sufficient to force his vehicle, and the three vehicles in front of him, into the rear of each preceding vehicle. It was noted that the claimant was transported to hospital by ambulance complaining of left sided lumbar pain. The Westmead Hospital clinical notes stated he hit the back of his head on the cushion seat twice and may also have hit the side panel next to the window. He also described timber poles carried on the vehicle in front of him coming through his windshield into his vehicle. At the hospital the claimant reported tenderness in the soft tissues around the left flank region.
The Review Panel stated that whether the annular tears were pre-existing or not, the additional stress can cause annular tears to evolve where the tear in the annulus allows the disc to protrude further through the annulus causing a disc protrusion.
The Review Panel accepted in this case the accident resulted in the evolution of the annular tear resulting in the disc protrusion and as such, at the time of his clinical examination, Medical Assessor Assem identified radicular symptoms involving the left leg. Medical Assessor Assem also identified sensory loss, weakness, absence of the left ankle jerk reflex and mildly positive root tension signs.
Findings: The Review Panel affirmed the certificate issued by Medical Assessor Assem and found the claimant presented with evidence of left L5/S1 radiculopathy causally related to the subject accident and as such the claimant had sustained a non-threshold injury.
Review Panel Determination
Ahmadi v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 321
Panel: Principal Member Susan McTegg, Dr Wayne Mason, and Dr Doron Samuell
Medical assessment of threshold injury - minor impact collision - pre-existing psychiatric injury.
On 7 July 2020, the claimant sustained injuries when the insured vehicle, which was parked, pulled out from the left colliding with the left front passenger side of the claimant’s vehicle. The claimant alleged she sustained physical and psychological injuries. A medical dispute arose as to whether the claimant sustained a non-threshold psychological injury. The injury— post-traumatic stress disorder and/or depressive disorder and/or anxiety disorder— was referred for assessment.
At first instance, Medical Assessor Fukui reported a pre-accident history of anxiety and stress following her divorce. She did not attract a psychiatric diagnosis and did not engage in specific treatment. She also noted her traumatic background, being a refugee from Afghanistan and having family killed by the Taliban. Medical Assessor Fukui reported the claimant was involved in a previous motor accident in 2014 but did not have any psychological sequelae. Medical Assessor Fukui determined the claimant’s symptoms were consistent with a diagnosis of adjustment disorder with anxiety.
The claimant lodged an application for review and a re-examination took place as part of the review.
The Review Panel accepted the insurer’s submissions that the:
- front right hand side of insured’s vehicle lightly impacted the left passenger side door of the claimant’s vehicle as the claimant was travelling under 20 km/ph
- insured’s vehicle then scraped along the entire left side of the claimant’s vehicle
- claimant stated she had been wearing a seatbelt and the airbags did not deploy
- claimant immediately parked her car and the insured driver said sorry and asked her not to call the police, and
- insured driver offered to call an ambulance but the claimant said it was not necessary.
The Review Panel found the claimant had been involved in a more serious motor accident one or two years later in which she suffered a sustained loss of consciousness and more serious physical injuries. The Review Panel noted that while it was unlikely the accident made a major contribution to her pre-existing psychiatric state, it is not possible to say it was a negligible contribution. Therefore, the accident is regarded as being capable of causing anxiety, but not to an extreme degree.
Findings: The Review Panel confirmed the Certificate of Medical Assessor Fukui and found that the claimant’s symptoms were not consistent with post-traumatic stress disorder and a threshold psychological injury.
Review Panel Determination
AAI Limited t/as GIO v Stojanov (No 1 and No 2) [2023] NSWPICMP 307
Panel: Principal Member Susan McTegg, Dr Drew Dixon, and Dr Tai-Tak Wan
Medical assessment of threshold injury – causation of injury to lumbar spine – aggravation of pre-existing lumbar spine injury.
On 2 October 2020, the claimant sustained injuries when the driver of the insured vehicle opened the driver’s door of the parked vehicle and there was a collision between the door and the claimant’s vehicle. A medical dispute arose as to whether the claimant sustained non-threshold physical injuries. The following injuries were referred to for assessment:
- cervical spine
- lumbar spine
- left knee, and
- right knee.
At first instance, Medical Assessor Bodel was asked to assess whether an arthroscopy and medial meniscectomy to the left knee requested by Associated Professor Ireland:
- related to the injury caused by the motor accident and was reasonable and necessary in the circumstances (under s 3.24), and
- would improve the recovery of the injured person (pursuant to s 3.28(3).
Medical Assessor Bodel reported the claimant was shocked and crying uncontrollably after the accident. She rang her brother and noted the damage to her car but drove home. She developed increasing head, neck, lower back, left knee and leg pain and then right knee pain as well. She put up with it and then saw her general practitioner (GP) two weeks later and he gave her Oxycontin and Panadeine Forte. Medical Assessor Bodel found no evidence of a non-minor injury in the claimant’s cervical, thoracic or lumbar spine and no evidence of any right knee non-minor injury.
In relation to the left knee, Medical Assessor Bodel noted the claimant was asymptomatic in the knees before the accident; she hit her knees on the dashboard in the accident and complained of knee symptoms since the accident. He noted she had a scan of her left knee which reported a meniscal tear which caused her left knee to lock. While he noted there were degenerative changes in the left knee, he said the torn and displaced medical meniscus was caused by the accident, and therefore found that the claimant’s left knee injury was a non-threshold injury and that the arthroscopy proposed by Dr Ireland was related to the accident, was reasonable and necessary in the circumstances and would improve the claimant’s recovery.
The insurer lodged an application for review and a re-examination took place as part of the review.
The Review Panel accepted the insurer’s submissions and the evidence of a biomechanical expert that it was a low-speed accident between a parked car and the claimant’s car driving at about 30kmph. The Review Panel accepted the claimant’s knees (in the area of the patello femoral joint) may have come into contact with the underside of the steering wheel or dashboard in the accident as the claimant lifted her knees up, however it was not satisfied that the impact between her knees and the steering wheel or dashboard was of such severity to cause a significant injury. The Review Panel was satisfied that any injury was a soft tissue injury on a background of pre-existing complaints in that knee. The Review Panel was not satisfied that there was a twisting mechanism involved in this accident. The claimant did not give a history to any medical examiner of twisting of her knee.
It was noted that if the claimant had torn her meniscus in the accident, the Review Panel would, like Dr Ireland, expect the immediate onset of severe pain, difficulty walking and locking. These were similar to the complaints made before the accident. The insured’s evidence of the claimant’s behaviour after the accident, and the absence of any complaints to a health practitioner until two weeks after the accident, did not satisfy the Review Panel that the claimant sustained the tear of her meniscus in the accident.
The Review Panel found the claimant sustained a soft tissue left and right knee threshold injury.
Findings: The Review Panel revoked the Certificate of Medical Assessor Bodel and found that the claimant’s symptoms were not consistent with left knee meniscal injury and the injury was not causally related to the subject accident and a threshold physical injury. The surgery proposed by the treating specialist was not therefore reasonable and necessary in the circumstances.
Review Panel Determination
Huo v QBE Insurance (Australia) Limited [2023] NSWPICMP 314
Panel: Principal Member Susan McTegg, Dr Peter Yu, and Dr Ian Cameron
Medical assessment of threshold injury – dispute of causation lumbar spine compression fracture injury.
On 22 November 2021 the claimant, a passenger in a vehicle traveling through an intersection, sustained injuries when the insured vehicle failed to stop at a red light and hit the claimant’s vehicle from the right side. A medical dispute arose as to whether the claimant’s sustained a non-threshold injury. The following injuries were referred for assessment:
- cervical spine – neck pain and numbness
- foot – right foot numbness
- leg – right leg numbness
- lumbar spine – lower back pain and numbness
- hip – right hip pain
- knee – right knee pain
- arm – right hand numbness, and
- shoulder – right shoulder pain and numbness.
At first instance, Medical Assessor Truskett found no evidence of radiculopathy of the right or left upper limb and no evidence of partial rupture of tendons, ligaments, menisci or cartilage. He concluded the injuries referred to him for assessment were minor (threshold) injuries.
The claimant lodged an application for review, making submissions of her complaints of numbness in the toes and legs generally, as well as weakness, and the MRI findings of “chronic L4 superior endplate compression fracture”. The claimant conceded that she had suffered a lower back injury prior to the accident but disputed it was a compression fracture. The claimant also made specific reference to the MRI report of the lumbar spine showing nerve root impact on L5 as well as S1.
The insurer submitted that by his deliberate insertion of the words “pre-existing” after “chronic L4 superior endplate compression fracture” Medical Assessor Truskett concluded that the L4 fracture was attributable to prior pathology.
The Review Panel stated that a re-examination was required as part of the review.
The Review Panel noted the dispute related to the diagnosis and causation of the lumbar spine injury in particular, whether the L4 superior endplate compression fracture was causally related to the accident.
On re-examination, the Review Panel accepted the claimant’s presentation to be straightforward with no suggestion of embellishment or exaggeration with no reason to doubt the history she provided. The claimant advised she had not sustained direct physical trauma to her low back before the accident, and there was evidence of a deterioration in the claimant’s post-accident participation in work, including absence from her pre-accident cleaning work. The Review Panel found the L4 superior endplate compression fracture was a non-threshold injury causally related to the subject accident.
Findings: The Review Panel revoked the Certificate issued by Medical Assessor Truskett and found the claimant presented with evidence of L4 superior endplate compression fracture causally related to the subject accident and as such the claimant had sustained a non-threshold injury.
Claims Assessment – Settlement Approval
Murray v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 332
Member: David Ford
Settlement approval - claimant is self-represented - no contributory negligence - claim non-economic loss only - physical injuries.
The claimant fell to the ground onto his outstretched left arm when the insured parked vehicle he was attempting to enter rolled backwards. Neither Police nor ambulance attended the scene of the accident and there was no need for hospitalisation. The claimant attended his general practitioner a week later for left shoulder pain.
The claimant was diagnosed with a rotator cuff tear with impingement. He was treated with analgesic medication and referred for physiotherapy. Surgery was not recommended.
At the time of the accident the 74-year-old claimant was retired. The parties agreed that there was only an award for non-economic loss as injuries were assessed at 11% whole person impairment (WPI) for a supraspinatus tear of the left shoulder and surgical intervention was not indicated due to significant comorbidities.
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 $140,000 for 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
Malta v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 333
Panel: Principal Member Ray Plibersek, Dr Drew Dixon, and Dr Shane Moloney
Assessment of permanent impairment— injuries reported to neck, spine left knee and right shoulder.
On 9 March 2018, the claimant sustained injuries when his vehicle was hit from behind. The claimant reported that he was wearing his seatbelt and that the airbags in his car did not deploy. Neither Police nor ambulance services attended the accident and the claimant was able to drive his car home when it was later repaired. 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:
- cervical spine
- thoracic spine
- lumbar spine
- right shoulder
- left knee, and
- scarring.
At first instance, Medical Assessor Cameron found the degree of permanent impairment at 4% as follows:
- cervical spine – soft tissue injury 0% WPI
- right shoulder – soft tissue injury 4% WPI, and
- scarring – right shoulder 0% WPI.
Medical Assessor Cameron found the thoracic spine, lumbar spine and left knee soft tissue injuries were not caused by the motor accident.
The claimant lodged an application for review and a re-examination took place as part of the review.
The Review Panel accepted:
- the contemporaneous clinical notes supported soft tissue injury to the cervical spine and torn ligament in the right shoulder. At the re-examination, the claimant did not give details about the mechanism of injuries to his right shoulder.
- there was little evidence to suggest he sustained a specific injury to his left knee, thoracic spine and lumber spine.
In relation to the right shoulder, the Review Panel noted that several doctors had examined and recorded the claimant’s range of motion in both of his shoulders with results indicating that the claimant’s range of motion in his right shoulder has varied over a number of examinations. After his operation there had been a gradual but inconsistent improvement in the claimant’s range of motion in his right shoulder. The Review Panel could not rule out the accident as one cause, more than negligible, of the claimant’s right shoulder injury. Given the weight of evidence the Review Panel considered that the right shoulder injury was causally related to the subject accident. In conclusion the Review Panel found there was 8% WPI of the right shoulder caused by or due to the accident.
In relation to left knee, the claimant did not give clear details about when he first experienced left knee pain after the accident. The Review Panel noted the claimant’s reports that his left knee pain most probably onset between June or July 2018. The Review Panel found that the claimant’s delay in presentation with the left knee was not medically consistent with soft tissue injury from the direct trauma of the subject accident and was not caused by the subject motor vehicle accident.
In relation to the thoracic spine, the Review Panel did not accept that the claimant sustained a soft tissue injury to his thoracic spine. On examination, movements were restricted, but there was no muscle spasm, dysmetria, guarding or asymmetry. There was no radicular signs or symptoms identified at the examination. Therefore, the appropriate assessment was DRE Thoracolumbar Category I, resulting in 0% WPI. Any injury to the thoracic spine was not causally related to the subject motor accident. The Review Panel noted the claimant’s prior history of degenerative changes to his spine.
In relation to the lumbar spine, the Review Panel did not accept that the claimant sustained a soft tissue injury to his lumbar spine. On examination movements were restricted, but there was no muscle spasm, dysmetria, guarding or asymmetry. There were no radicular signs or symptoms identified at the examination. Therefore, the appropriate assessment was DRE Lumbosacral Category I resulting in 0% WPI. Any injury to the lumbar spine was not causally related to the subject motor accident. The Panel noted the claimant’s prior history of degenerative changes to his spine.
Findings: The Review Panel revoked the Certificate issued by Medical Assessor Cameron and assessed the right shoulder injury at 8% WPI. The Review Panel found that the claimant’s degree of permanent impairment was not greater than 10%.
