Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 95

Welcome to the 95th 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 (NSW) 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

Insurance Australia Limited t/as NRMA Insurance v Hmaydan [2023] NSWPICMP 337

Panel: Principal Member John Harris, Dr Shane Moloney, and Dr Mohammed Assem

Medical assessment of threshold injury – causation of injuries to lumbar and cervical spine – aggravation of asymptomatic pre-accident injury.

On 20 April 2021, the claimant sustained injuries when her vehicle, in which she was a front seat passenger, was rear-ended by the insured driver. A medical dispute arose as to whether the claimant sustained a non-threshold injury as defined by s 1.6 of the Act. Injuries to the following areas were referred for assessment:

• both hips
• cervical spine
• both shoulders
• lumbar spine, and
• right ankle and calf – soleus muscle tear.

At first instance, Medical Assessor Truskett determined that the claimant’s injuries to the left shoulder and lumbar spine were threshold injuries (known at the time as ‘minor injuries’), with the claimant’s annular tear at C5/6 and the right soleus calf muscle being certified as non-threshold injuries (known at the time as ‘non-minor injuries’).

The insurer lodged an application for review, lodging submissions that the claimant’s right calf muscle tear was a soft tissue injury, satisfying the definition of ‘threshold injury’ under s 1.6 of the Act. The insurer further argued that Medical Assessor Truskett failed to review a pre-accident MRI scan of the claimant’s cervical spine, which demonstrated degenerative changes at various levels. Moreover, the insurer sought to dispute the casual link between the accident and the claimant’s back injuries, highlighting her prior history of chronic back pain. Additionally, the insurer submitted that the claimant had not adequately satisfied two signs of radiculopathy, thereby rendering her back injuries as threshold injuries pursuant to s 1.6 of the Act and reg 4 of the Motor Accident Injuries Regulation 2017 (NSW).

In reply, the claimant argued the aforementioned MRI scan merely showed mild degenerative changes with no evidence of a tear, with the accident having clearly caused the claimant’s neck pain and annular tear.

The Review Panel stated that a re-examination of the claimant was required as part of the review, performed by Medical Assessor Assem.

The Review Panel accepted the claimant was a front seat passenger and that she was involved in a rear-end collision, which resulted in the claimant hitting the back of her head against the headrest, causing a whiplash injury to her cervical spine, and her right lower calf against a bar under the seat. On examination, it was reported that the claimant had a slight restriction in shoulder motion due to cervical and upper thoracic spine pain, and her lumbar spine appeared normal.

As to causation, the Review Panel noted there had been a stark deterioration in the claimant’s physical capabilities post-accident; prior to the accident, the claimant was able to participate in high-intensity interval training, whereas post-accident she was limited to walking on a treadmill. Similarly, the MRI scan that was not reviewed at first instance merely demonstrated mild disc bulges at the C4/5 and C5/6 levels, being injuries that were ‘quite common and can be asymptomatic or cause varying levels of pain or discomfort.’ Conversely, an MRI scan taken post-accident identified a clear annular tear at the C5/6 level, being a more significant injury than a mild disc bulge.

Similarly, the Review Panel noted that an additional pre-accident MRI scan of the cervical spine did not refer to an annular tear, but rather showed mild posterior bulging at multiple levels indicating degenerative changes, being a clear pre-accident injury. They further found this injury to be more susceptible to further whiplash injury as was sustained in the subject accident; however, the operative question was whether the motor accident did in fact, on the balance of probabilities, cause or aggravate the annular tear. Notably, a post-accident MRI scan of the cervical spine reported an annular tear, with the Review Panel ultimately deciding that a pre-accident annular tear at C5/6 was ‘extremely likely’, albeit one that may have been asymptomatic pre-accident.

Applying Marques v QBE Insurance (Australia) Ltd [2022] NSWPICMP 302, the Review Panel found due to the consistency of the claimant’s ongoing cervical spine symptoms, they were satisfied on the balance of probabilities that the accident had caused the annular tear at C5/6. Moreover, given that the annulus fibrosus contains nerve receptors and that the annular tear was a partial tear of a ligament and cartilage, it therefore fell outside the definition of ‘soft tissue injury’ per s 1.6(2) of the Act.

Similarly, the Review Panel rejected the review of the calf muscle tear as it was a clear soft tissue injury under s 1.6(2) of the Act, with the remainder of the claimant’s injuries being maintained as threshold injuries.

Findings: The Review Panel found the claimant’s annular tear at C5/6 as a non-threshold injury and the injury to the right soleus calf muscle as a threshold injury for the purposes of the Act.

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Review Panel Determination

Allianz Australia Insurance Limited v Ellul [2023] NSWPICMP 338

Panel: Principal Member John Harris, Dr Drew Dixon, and Dr Thomas Rosenthal

Medical assessment of threshold injury – whether left knee reconstruction surgery reasonable and necessary – rupture to previously-reconstructed ligament.

On 21 January 2021, the claimant sustained injuries whilst riding a motorcycle, becoming wedged between two vehicles, causing the claimant to fall to the ground. The claimant alleged that he sustained injuries including to the left knee, which required an anterior cruciate ligament reconstruction. Two medical disputes arose, the first being whether the abovementioned surgery was reasonable and necessary in the circumstances and whether the need for treatment was caused by the subject accident; and second, whether the injury caused by the accident was a threshold injury for the purposes of the Act.

At first instance, Medical Assessor Harrington determined the claimant’s injuries to the left ribs, left hand and pelvis had resolved and that the left knee injury was a threshold injury for the purposes of the Act. Similarly, Medical Assessor Harrington found the proposed surgery to be reasonable and necessary in the circumstances, with the need caused by the subject accident.

The Review Panel accepted the claimant’s submissions as to causation of injury, namely that there had been no clear anchorage of fibres to the femur, and there was intrasubstance tearing of the reconstructed ligaments. Given that the claimant had previously sustained an injury to his ACL some five years prior to the accident, the claimant submitted he had made a full recovery and was not having any issues with his left knee immediately prior to the accident. The claimant further submitted that the changes shown in a post-accident MRI report demonstrated the claimant had sustained significant trauma in the accident with the disputed revision surgery being reasonable, necessary and caused by the subject accident.

In reply, the insurer referred to the initial ambulance and hospital treating notes, which asserted that there had only been a soft tissue injury. The insurer further referred to the initial post-accident MRI scan, which merely referred to a mild joint effusion and the anterior cruciate ligament, showing no tear. Additionally, the insurer suggested that the Medical Assessor had failed to adequately explain the correlation between the claimant’s knee stability and the subject accident. Moreover, the insurer referred to the claimant’s treating records, arguing that the claimant’s prior left ACL reconstruction in 2016 had not fully healed, further arguing that the Medical Assessor’s reasons, when read as a whole, found the proposed surgery to be ‘not the most appropriate treatment option’.

The Review Panel stated that a re-examination of the claimant was required, performed by Medical Assessor Dixon. On examination, it was found that the claimant’s previous ACL graft had either attenuated and given way or actually torn within the bony tunnel following the accident.

The Review Panel found that the contemporaneous accounts provided by ambulance officers and hospital records demonstrated that the accident caused an exacerbation of the claimant’s left knee condition, wherein the accident caused further intrasubstance tearing resulting in no clear anchorage of fibres to the femur. Accordingly, the Review Panel determined that the accident caused a tear of the claimant’s reconstructed anterior cruciate ligament, being a partial, if not complete rupture of a ligament, thereby falling outside the definition of ‘soft tissue injury’ per s 1.6(2) of the Act. As such, the Review Panel found the claimant’s left knee injury to be a non-threshold injury.

As to the claimant’s proposed treatment, the Review Panel identified the first operative question as being whether the specified treatment ‘relate[d] to the injury caused by the motor accident’. In order to determine this, the motor accident would need only be a material contribution to the need for treatment, per AAI Limited v Phillips [2018] NSWSC 1710. As such, the Review Panel found the motor accident caused further intrasubstance tearing of the reconstructed ligament, being a material cause of the need for the proposed surgery. Similarly, the Review Panel identified the second operative question as being whether the treatment was both reasonable and necessary. Using the findings of Medical Assessor Dixon, the Review Panel determined the proposed surgery as both reasonable and necessary to repair the claimant’s rotatory instability caused by the tear; the Review Panel further determined there to be no alternative treatment available.

Findings: The Review Panel confirmed the Certificate of Medical Assessor Harrington insofar as it pertained to the claimant’s proposed surgery being reasonable and necessary in the circumstances. Conversely, the Review Panel revoked the Certificate of Medical Assessor Harrington regarding threshold injury, issuing a new Certificate denoting the claimant’s left knee injury as a non-threshold injury.

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Review Panel Determination

Warner v Insurance Australia Limited t/as NRMA Insurance (No 1) [2023] NSWPICMP 334

Panel: Member Belinda Cassidy, Dr Margaret Gibson, and Dr Shane Moloney

Treatment dispute – whether home modifications a ‘treatment’ matter – definition of ‘treatment and care’ – whether massage services are ‘domestic services’ – whether ‘domestic services’ are a medical assessment matter.

On 14 June 2019, the claimant sustained injuries when he was rear ended by another vehicle; the claimant was stationery on this moped at the time of impact and was wearing a helmet. The claimant alleged injuries to his neck and back, sustaining fractures at L1 and L3 and to his coccyx. Five separate treatment disputes had previously been raised, being referred for assessment on two separate occasions. The Commission opened a file in respect of the following four treatment matters:

• a new mattress
• home modifications
• a lymphatic massage machine, and
• replacement of a continuous positive airway pressure (CPAP) machine.

The subject review concerned the Medical Assessors’ decisions regarding home modifications and the lymphatic massage machine.

At first instance, Medical Assessor Harrington determined that both the proposed home modifications and lymphatic massage machine were unrelated to the injuries caused by the accident and were not reasonable nor necessary in the circumstances.

The claimant submitted the following grounds in support of review:

• Medical Assessor Harrington merely summarised the insurer’s submissions and failed to explain his reasoning or consider the definition of treatment at all.
• The purchase of the massage machine and home modifications were ‘everyday’ expenses included in the non-exhaustive list in s 1.4 of the Act (emphasis added).
• The claimant commenced his home modifications prior to the accident but was unable to complete them due to his injuries.
• The claimant provided massage services to his wife for many years and could no longer do so due to his injuries. Attempting to do so post-accident was not assisting his recovery.
• Medical Assessor Harrington erred in his conflation of ‘attendant care services’ and ‘treatment and care’; instead, the Medical Assessor should have found the treatment fell within the definition.

In reply, the insurer submitted that the Medical Assessor had adequately considered the injuries and submissions from both sides, noting the conservative treatment and finding that what had been provided to date was both reasonable and necessary. The insurer further submitted that the Medical Assessor satisfactorily substantiated his findings, finding that the claimant’s injuries and condition had stabilised with no further treatment required. Moreover, the insurer put forward that the Medical Assessor was specifically required to assess the claimant’s treatment and care needs, not his lack of capacity to provide gratuitous services to his wife.

By way of aside, the Review Panel noted that both the claimant and insurer’s omission of submissions or particulars pertaining to the claimant’s proposed new mattress demonstrated that it was not a matter under review and would therefore not be considered. In support of this proposition, the Review Panel applied Wood v Insurance Australia Group Limited t/as NRMA Insurance [2022] NSWSC 1290 in that ‘Medical Assessors (and by extension Review Panels) need only assess what is disputed between the parties’. Similarly, the Review Panel found this finding to be consistent with s 42 of the Personal Injury Commission Act 2020 (NSW), which required Medical Assessors and Review Panels to be cognisant of and attempt to resolve only ‘the real issues in the proceedings’.

In determining whether the proposed home modifications were treatment for the purposes of s 1.4 of the Act, the Review Panel not only rejected the claimant’s assertion that the definition of ‘everyday expenses’ in s 1.4 was non-exhaustive, but further rejected that ‘everyday expenses’ is defined in the Act at all. Instead, the Review Panel noted the existence of an exhaustive definition of ‘treatment and care’, as well as a non-exhaustive list of the type of services contemplated by the phrase ‘attendant care services’. Similarly, the Review Panel found that when s 3.24 – that injured persons are entitled to statutory benefits for treatment and care expenses of the injured person – and s 1.4 – which defines treatment and care to include ‘home and transport modifications’ – are read together, they were of the view that the claimant was entitled to statutory benefits for home modifications undertaken to alleviate physical limitations or restrictions caused by the accident. The Review Panel further discussed the kinds of home modifications undertaken pursuant to the Act, including grab rails in bathrooms or ramps at the front or back door to improve accessibility. Notably, the Review Panel found the completion of renovations commenced prior to the accident to be outside the definition of ‘treatment and care’. Instead, the Review Panel opined that these costs may be covered in economic loss damages in a common law claim but were not a matter for the Review Panel to determine in the subject statutory benefits claim.

Ultimately, the Review Panel was of the view that the subject dispute regarding home modifications was not a dispute about treatment and was therefore not a medical assessment matter declared as such under sch 2(2) of the Act. Therefore, the Review Panel was of the opinion that they and Medical Assessor Harrington had no power to determine the dispute.

Moreover, in determining whether the massage machine was treatment for the purposes of s 1.4 of the Act, the Review Panel noted the insurer’s submission that the machine was not treatment for the claimant’s injuries sustained in the accident, but rather treatment for his wife’s condition. The Review Panel noted the claimant’s acceptance of this, noting the claimant’s stipulation that he provided the massage services to his wife on a gratuitous basis; therefore, the claimant argued that this fell within the definition of care and assistance per s 3.26 of the Act. Ultimately, the Review Panel rejected the claimant’s argument for the following reasons:

• The definition of ‘attendant care services’ in s 1.4 specifically distinguishes between personal assistance services, nursing services, home maintenance services and domestic services.
• The claimant’s provision of massage services to his wife was not a service of a domestic nature, per s 3.26(5) of the Act. Instead, the Review Panel would consider the phrase ‘domestic services’ to include services such as cooking, cleaning or laundry. The abovementioned massage services would therefore be more akin to a therapeutic or nursing service provided for his wife’s medical condition.
• While s 3.26 compensates reasonable costs of ‘employing a person’ to provide the services, the claimant has clearly not done so, instead purchasing a machine to provide the services.

The Review Panel further opined even if the massage service were to fall within the definition of ‘services of a domestic nature’, the determination of s 3.26 statutory benefits is not a declared medical assessment under sch 2(2) of the Act; this would need to be determined as a merit review matter rather than a medical assessment matter.

Findings: The Review Panel found the proposed home modifications were not treatment within the statutory definition and therefore Medical Assessor Harrington had no power to make a determination. The Review Panel revoked Medical Assessor Harrington’s certifications of that medical assessment.. Similarly, the Review Panel found a dispute about s 3.26 statutory benefits not to be a medical assessment matter, but rather a merit review matter. Accordingly, the Review Panel revoked Medical Assessor Harrington’s certifications of that medical assessment, given that he had no power to determine it.

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Review Panel Determination

Mourtada v AAI Limited t/as GIO [2023] NSWPICMP 330

Panel: Member Belinda Cassidy, Dr Drew Dixon, and Dr Margaret Gibson

Medical assessment of threshold injury – causation of left shoulder injury – whether mechanism of accident suffice to determine severity of injury.

On 27 April 2021, the claimant sustained injuries while stationary at a set of traffic lights, when he was rear-ended by a small truck. A medical dispute arose as to whether the claimant’s injuries were threshold injuries per s 1.6 of the Act. The following injuries were referred for assessment:

• lumbar spine – disc bulge at L4 and L5, radiating pain to both legs causing numbness, positive sciatic nerve root tension
• cervical spine – restricted range of movement, stiffness, spasms/tensions, aggravation of asymptomatic degenerative changes in the cervical spine
• right shoulder – right supraspinatus tendinopathy with a small linear intrasubstance insertional delamination (tear in shoulder), and
• left shoulder – full thickness insertional anterior supraspinatus tendon (tear in shoulder).

At first instance, Medical Assessor Wijetunga determined all of the claimant’s injuries to be threshold injuries, and further found the orthopaedic surgeon consultation to be unrelated to the injuries, and not reasonable nor necessary in the circumstances.

The claimant lodged an application for review, and the Review Panel stated that a re-examination of the claimant was required as part of the review, performed by Medical Assessor Dixon.

The claimant’s submissions purely took issue with Medical Assessor Wijetunga’s findings of threshold injury, stipulating that her acknowledgement of tendinopathy and a full thickness insertional tear would, per se, demonstrate that a non-threshold injury was sustained. Moreover, the claimant argued that a lack of complaints from the claimant did not assumedly mean the changes were degenerative and pre-existing. Furthermore, the claimant posited that the Medical Assessor should have considered the mechanism of injury, noting that a vulnerable tendon could have been further torn in the accident. Additionally, the claimant submitted the lack of prior history of shoulder symptoms was, on balance, indicative of a causal link between the accident and the full thickness tear in the left shoulder.

In reply, the insurer provided a photograph of the rear of the claimant’s vehicle, suggesting it was ‘an extremely minor collision’. Similarly, the insurer argued that the Medical Assessor satisfactorily substantiated her reasons, making correct references to the Motor Accident Guidelines and the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th Edition (AMA4). Further, the insurer noted that the Medical Assessor measured shoulder motion correctly, using her clinical judgment to make her decision.

Following close examination of an MRI scan of the cervical spine performed some eight years prior to the accident as well as one performed following the accident, the Review Panel determined that the claimant did, in fact, sustain injuries to the neck and back. The Review Panel noted despite the ostensibly limited impact force of the accident, the claimant’s pre-existing conditions and extensive degenerative changes rendered him vulnerable to injury. The Review Panel determined that the accident exacerbated or aggravated these pre-existing conditions in the cervical and lumbar spine.

As for the claimant’s shoulder injuries, the Review Panel found on re-examination that the claimant certainly possessed a genuine problem in both shoulders; the operative question was whether this shoulder pathology was caused by the accident. Applying Amaca Pty Limited v Ellis [2010] HCA 5, the Review Panel opined that ‘where one [event] “can” … cause an injury, causation will only be established if it is shown that it “did” cause the injury assessed on the balance of probabilities’. The Review Panel opined while the claimant may have sustained a minor soft tissue injury to his right shoulder from his seatbelt, there was no evidence to suggest that the mechanism of accident would have caused a more substantial injury to the joint. Being the shoulder not held in position by a seatbelt, the Review Panel was of the opinion that the claimant sustained an injury to his left shoulder in the accident.

In assessing whether the claimant sustained threshold injuries for the purposes of the Act, the Review Panel considered whether the claimant sustained an injury to a spinal nerve root manifesting in radiculopathy, which per reg 4 of the Motor Accident Injuries Regulation 2017 (NSW) and cl 5.8 of the Motor Accident Guidelines, would be a non-threshold injury. For cervical radiculopathy, Medical Assessor Dixon found only one sign of radiculopathy, being a positive Spurling’s test indicative of pressure upon the nerves; consequently, the Review Panel did not find cervical radiculopathy. For lumbar radiculopathy, Medical Assessor Dixon did not find any signs of radiculopathy, consistent with the findings of Medical Assessor Wijetunga at first instance. However, irrespective of a lack of radiculopathy, the Review Panel, on a holistic review of the available treating and expert evidence, found while the claimant could have torn his anterior supraspinatus tendon in the accident, it is more likely that he tore an already weakened tendon in the accident. Ultimately, the Review Panel found the claimant’s left shoulder injury, being a tear or further tear of the anterior supraspinatus tendon, was not a soft tissue injury therefore a non-threshold injury for the purposes of s 1.6 of the Act.

Finally, the Review Panel considered whether the claimant’s initial consultation with an orthopaedic surgeon was reasonable and necessary in the circumstances. Being a referral dated less than four months following the accident, the Review Panel was satisfied the consultation was related to the left shoulder injury caused by the accident, as well as the right shoulder condition caused by the accident. The Review Panel further opined that the consultation was both reasonable and necessary in the circumstances, being a further investigation in pursuit of eliminating the pain.

Findings: The Review Panel revoked the certificates of Medical Assessor Wijetunga as to the two medical assessment matters, finding both non-threshold injury and the proposed treatment as reasonable and necessary in the circumstances.

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Claims Assessment – Settlement Approval

Insurance Australia Limited t/as NRMA Insurance v Thomson [2023] NSWPIC 357

Member: Shana Radnan

Settlement approval – claimant is self-represented – claim economic loss only – physical and psychological injuries.

On 9 April 2020, the claimant was injured when the insured lost control and collided with the claimant’s vehicle, forcing both vehicles onto the incorrect side of the roadway. The Police and ambulance services attended the scene of the accident and the claimant was conveyed to hospital, where he remained for two days.

As a result of the accident, the claimant sustained injuries to the following areas of his body:

• right posterior 5th and 8th rib fracture
• lumbar – L3 transverse process fracture
• chipped vertebrae
• bruising to forehead, arms, legs, and back
• concussion, and
• psychological injuries – post-traumatic stress disorder.

At the time of the accident, the 65-year-old claimant was employed on a casual basis as an optical dispenser and was subsequently deemed totally unfit to work for some seven months following the accident. Notwithstanding temporary periods of his employment being affected by COVID-19 restrictions, the claimant returned to his pre-injury role 18 months after the accident and had remained with the same employer at the time of judgment. The parties agreed that there was only an award for economic loss damages, as the claimant did not dispute the insurer’s finding that the claimant’s injuries did not exceed 10% whole person impairment, as is required under s 4.11 of the Act for an award of non-economic loss damages.

The claimant was not represented by a solicitor and the proposed settlement required approval pursuant to s 6.23 of the Act, ensuring that the settlement was ‘just, fair and reasonable’ per cl 7.37 of the Motor Accident Guidelines.

Findings: The Member accepted that a damages award of $77,100 for economic loss was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.

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