Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 97
19 October 2023
Welcome to the 97th 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
AAI Limited t/as GIO v Russell [2023] NSWPICMP 359
Panel: Member Belinda Cassidy, Dr Michael Couch, and Dr Neil Berry
Assessment of permanent impairment – injuries reported to right shoulder, left knee, right hip and lumbar spine – right shoulder range of motion not assessable – aggravation and stabilisation of left knee injury to pre-injury level.
On 10 May 2018, the claimant sustained injuries when a car reversed into him in a shopping district, causing him to fall to the ground.
A medical dispute arose as to whether the claimant’s degree of whole person impairment (WPI) for injuries arising from the accident were greater than 10%. Injuries to the following areas were referred for assessment:
- right shoulder
- left knee
- right hip – soft tissue injury, and
- lumbar back – soft tissue injury.
At first instance, Medical Assessor Wijetunga assessed the claimant’s WPI at 13%, comprising the following:
- lumbar spine – diagnostic related estimate (DRE) category II (5% WPI)
- right shoulder – upper extremity impairment (UEI) 13% (8% WPI)
- left knee – no impairment, and
- left hip – no impairment.
The insurer lodged an Application for Review and a re-examination took place as part of the review, performed by Medical Assessor Berry.
On re-examination, Medical Assessor Berry noted the claimant’s ‘blurred’ recollection of the accident, noting that his left knee injury had since settled since the subject accident, albeit with an ongoing feeling of instability. Importantly, the claimant was unable to get on the examination couch, and unable to remove his clothing.
Commenting on the inconsistency of the claimant’s presentation, Medical Assessor Berry noted that the claimant had shown a far greater range of movement in the right shoulder when examined by other doctors and, when this was put to the claimant, he said that his range of movement varied with his level of activity and discomfort.
In relation to the right hip, the Review Panel noted that the claimant denied any right hip pain at both the examination and re-examination. Ultimately, the Review Panel was not satisfied that the claimant had sustained any injury to the right hip in the subject accident and had therefore suffered no resulting impairment.
In relation to the left knee, the Review Panel considered the treating report of Ms Liang, who reported that she did not think the accident exacerbated the claimant’s left knee injury, but rather delayed the claimant’s recovery by hindering his ability to participate in rehabilitation and recovery programs for his other injuries. Citing the ‘regular thread of complaints of left knee pain’ referred to in the available treating medical evidence, in tandem with the Review Panel’s clinical judgment, they concluded that the claimant had sustained an aggravation of the pre-existing injury to his left knee. As to impairment, the Review Panel was satisfied that the claimant’s left knee injury had returned to its pre-injury level and had therefore suffered no impairment resulting from the subject accident. In addition, the Review Panel noted that even if the claimant’s current level of left knee function had arisen from the subject accident alone, it would have attracted 0% WPI nonetheless.
Consistent with the available treating records, the Review Panel accepted the claimant’s history of shoulder pain immediately following the accident, concluding that the claimant did injure his right shoulder in the subject accident. Despite the claimant not being able to recall injuring his shoulder in a subsequent fall, the Review Panel noted the comprehensive note in the related hospital discharge summary regarding a right shoulder examination. The Review Panel was of the view that ‘the right shoulder would have been examined because the claimant complained of injury to it’. Similarly, the Review Panel highlighted the claimant’s complaints of an aggravation of arm pain following two or three further incidents, concluding that these would have had a bearing on the claimant’s impairment to the right shoulder. Furthermore, accepting the claimant’s complaints of pain using a crutch in his right hand as related to the claimant’s pre-accident condition, the Review Panel concluded that ‘the progression of the [claimant’s shoulder] tears is likely to have been caused by the further incidents or the claimant’s continued use of a crutch as a result of his pre-accident injury’.
As to the claimant’s right shoulder impairment, the Review Panel noted the most common test for shoulder impairment as being through the restriction or loss of motion in the shoulder joint according to various movements. Unfortunately, the claimant was unable to perform two of the six assessable movements, and even then, with assistance. The Review Panel noted that the Guidelines permit only active motion, and not assisted (passive) motion to be considered.
The Review Panel considered the likely applicability of part 3.1m of chapter 3 of the AMA4, assessing ‘impairment due to other disorders of the upper extremity’. Noting the claimant’s anterior shoulder tenderness and his overall condition’s similarity to acromioclavicular arthropathy causing joint crepitation, the Review Panel found an overall WPI to the right shoulder of 3%.
In relation to the lumbar spine, the Review Panel considered the available treating medical evidence and accepted that the claimant injured his back in the subject accident, with the injury sustained being a soft tissue injury which subsequently recovered. Moreover, the Review Panel rejected the claimant’s allegation of a sacroiliac joint injury, as no evidence referring to same had been produced by either party. Ultimately, the Review Panel concluded that the claimant did not sustain any injury to the right buttock or right sacroiliac joint.
In their assessment of the claimant’s level of WPI to the lumbar spine, the Review Panel noted that the DRE method was the only allowable method, per cl 6.111 of the Guidelines. The Review Panel was unable to find two or more signs of radiculopathy, with several radicular complaints being unable to be tested due to the claimant’s inability to move onto the examination couch. Furthermore, the Review Panel noted similarly to Medical Assessor Wijetunga that the claimant’s own expert, Dr Khan, had failed to find any signs of radiculopathy, assessing DRE category I (0% WPI). Therefore, the Review Panel assessed the claimant’s lumbar spine impairment as a DRE category I, attracting a WPI of 0%.
Findings: The Review Panel revoked the certificate issued by Medical Assessor Wijetunga and assessed the claimant’s right shoulder injury at 3% WPI and his lumbar spine at 0% WPI. Accordingly, The Review Panel found that the claimant’s degree of permanent impairment was 3% and therefore not greater than 10%.
Review Panel Determination
Seke v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 360
Panel: Principal Member John Harris, Dr Drew Dixon, and Dr Margaret Gibson
Medical assessment of threshold injury – decided on written application – failure to refer to pre-accident records – whether pre-accident ultrasound determinative of shoulder tear.
On 22 February 2021, the claimant sustained injuries as a front seat passenger when the insured vehicle entered into the lane and collided with the left side of the claimant’s vehicle. A medical dispute arose as to whether the claimant’s injuries were threshold injuries under the Act. Injuries to the following areas were referred for assessment:
- cervical spine
- thoracic spine
- lumbar spine
- both shoulders, and
- left leg.
At first instance, Medical Assessor Young determined all the claimant’s injuries as soft tissue injuries, and therefore threshold injuries under the Act.
The claimant subsequently lodged an Application for Review, and the Review Panel stated that a re-examination of the claimant was required as part of the review. Following a review of the evidence, the Review Panel ultimately decided that the application could be decided solely on the written application, per r 128(2) of the Personal Injury Commission Rules 2021 (NSW).
The claimant’s review hinged on the failure of the Medical Assessor to consider all relevant materials, including the MRI scans of the cervical and lumbar spine and relevant records from the claimant’s treating doctor.
In reply, the insurer highlighted the claimant’s pre-existing conditions to the right shoulder and neck, submitting that the mechanism of accident could not have caused a right shoulder tear, as the claimant was a front seat passenger. Reliance was placed on a number of medical articles, such as biomechanics, what is intervertebral disc degeneration and analysis of radiological methods, which were considered by the Review Panel.
In further submissions, the insurer argued that the possibility of an annular fissure at L5/S1 noted on imaging was ‘more than likely pre-existing and an incidental finding’. Alternatively, the insurer submitted that the intervertebral disc was not cartilage, being merely ‘connective tissue’, with any fissure in the region therefore not being able to constitute a non-threshold injury, per s 1.6 of the Act. Citing medical literature, the insurer argued that the claimant’s imaging findings were merely due to ’progressive age-related changes not associated with acute events’.
The Review Panel noted the claimant’s emphasis on the MRI scan of the lumbar spine and the treating records not referred to at first instance, finding that the claimant had failed to specify how those records established the existence of a non-threshold injury. Indeed, on review of the treating medical evidence themselves, the Review Panel ‘could not locate any specific record that established the claimant’s contention that she sustained a non-threshold injury’. This was a fatal problem with the Application for Review.
The Review Panel agreed that an ‘otherwise extremely unlikely that a modest collision would cause an annular fissure in the low back’, particular given the protection offered by the vehicle seat. Ultimately, as they could not find any signs of radiculopathy, the Review Panel was satisfied that the claimant sustained a soft tissue injury to the lower back, being a threshold injury as defined in the Act.
In relation to the cervical spine, the Review Panel noted that the findings of the MRI scan were ‘essentially normal’, with there being ‘no basis to find that there [were] any symptoms and/or radiological findings in the cervical spine that could support a finding that the claimant sustained a non-threshold injury’.
As to the claimant’s thoracic spine injury, the Review Panel noted that the MRI scan did not find any traumatic changes in the thoracic spine and agreed that the claimant sustained a soft tissue injury to the thoracic spine, which had subsequently resolved.
As to the right shoulder, the Review Panel noted the claimant’s history of right shoulder injury, with a pre-accident ultrasound failing to show a tear. The Review Panel opined that MRI scans are far more sensitive than ultrasounds, being highly dependent on the reporting radiologist. Ultimately, given the lack of medical plausibility of a left shoulder injury in the accident and the inherently questionable reliability of the pre-accident ultrasound, the Review Panel was not satisfied that the accident caused a right shoulder injury.
Additionally, the Review Panel found the claimant sustained a soft tissue injury to the left shoulder, with the lack of scan evidence and the mechanism of accident being consistent with a finding of threshold injury. The Review Panel was satisfied with the reasoning of the Medical Assessor at first instance.
Finally, the Review Panel accepted the claimant sustained a muscular injury to the left leg, which, being a soft tissue injury defined in s 1.6 of the Act, confirmed it as a threshold injury.
Findings: It was confirmed, according with the reasoning in Lynch v AAI Ltd [2022[ NSWPICMP 6 that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the Act.
The Review Panel confirmed the certificate of Medical Assessor Young, finding all of the claimant’s injuries were threshold injuries.
Claims Assessment
Mossman v Insurance Australia Limited t/as NRMA NSWPIC 377
Member: David Ford
Claims assessment – contributory negligence – whether total occupational incapacity – whether claimant precluded from light duties.
The claimant was a 31-year-old male involved in an accident on 9 September 2019 when his motorcycle collided with a stationary truck parked across both lanes at the crest of a hill. The claimant alleged sustaining injuries to his ribs, liver, left shoulder, right knee, right shin, and left thigh.
The insurer conceded the claimant’s entitlement to non-economic loss and past and future economic loss but alleged contributory negligence of 20%.
The issues that needed to be determined were the allegation of contributory negligence, non-economic loss and quantum for past loss and ongoing impairment to the claimant’s earning capacity under div 4.2 of the Act.
As to contributory negligence, the insurer alleged that the claimant had been negligent in failing to slow his motorcycle when approaching the crest, leaving him an inadequate amount of time to react to potential hazards. The Member reiterated the finding in Manley v Alexander [2005] HCA 79 that motorists have a duty to be observant of all possible sources of danger on the road, with the onus being on the insurer to prove that the claimant had an opportunity to see the insured driver. Both sides produced their own expert biomechanical evidence, with the claimant’s expert suggesting that the claimant was presented with ‘very unusual circumstances’ with the truck being illegally parked. Conversely, the insurer’s expert suggested that had the claimant been travelling at 50km/h rather than the speed limit of 60 km/h, the accident would have been avoidable.
The Member rejected the submissions of the insurer, finding that the claimant had in fact reduced his speed when approaching the crest of the hill and was subsequently confronted with unusual circumstances, ultimately making an accident unavoidable for the claimant. The Member assessed contributory negligence at 0%.
Taking into consideration all of the evidence produced by both parties, the Member assessed damages as follows:
Non-economic loss
- The Member agreed with the submissions of the claimant, accepting that the accident had significantly impacted the claimant’s enjoyment of life, as well as his physical and mental wellbeing. The Member further found the claimant’s suffering would continue perpetually, with his ongoing disabilities and scarring being permanent. Accordingly, referring to the claimant’s age and his ongoing disabilities, the Member assessed non-economic loss damages at $350,000, identical to the claimant’s submissions.
Past economic loss
- The Member was satisfied with the claimant’s evidence about his past work participation and authentic desire to continue work. However, given the claimant’s unsuccessful attempts at re-entering the workforce, the Member agreed with the claimant’s calculation of past loss of earnings, allowing 200 weeks at $742 net per week, for a total of $148,400.
- The Member calculated the claimant’s loss of past superannuation on the basis of 12% of the net sum of $148,400, totalling $17,808.
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 would have likely worked to 67 years of age and will suffer a diminution in earning capacity for the remainder of his working life. The Member found that the claimant would always be at risk on the open labour market and would find it difficult to obtain suitable light duty work following rehabilitation and appropriate retraining. The Member rejected the claimant’s submission of $950 net per week, finding it to be unsubstantiated by the evidence. The Member awarded future economic loss based on a diminution of $550 per week, which, in accordance with the actuarial tables less 15% for vicissitudes, resulted in a calculation of $413,644.
- On the basis of an agreement between the parties, the Member assessed loss of future superannuation on the basis of 14% of the net sum of $413,644, totalling $57,910.
Fox v Wood
- The Member awarded the agreed amount of Fox v Wood damages in the sum of $12,062.
Findings: The Member assessed the claimant’s damages as follows:
Non-economic loss: $350,000
Past loss of earnings: $148,400
Past superannuation: $17,808
Future loss of earnings: $413,644
Future superannuation: $57,910
Fox v Wood: $12,062
Total: $999,824
Claims Assessment – Settlement Approval
CIC Allianz Insurance Limited v Ristevski [2023] NSWPIC 400
Member: Shana Radman
Settlement approval – claimant is self-represented – claim non-economic loss only – physical and psychological injuries.
On 5 December 2018, the claimant was a passenger on a bus and was injured when she fell after the driver made a sudden move before she had reached her seat.
As a result of the accident, the claimant sustained the following injuries:
- aggravation to pre-existing injury to right shoulder rotator cuff, and
- psychological injury – post-traumatic stress disorder and adjustment disorder.
At the time of the accident, the claimant was 76 years of age and was a pensioner. The parties agreed that there was no claim for economic loss, past or future. The insurer relied on the report of Dr Gothelf who opined 10% whole person impairment for shoulder injury, with a later report of Dr Strokon demonstrating further deterioration, causing the insurer to concede both non-threshold injury and the claimant’s entitlement to non-economic loss damages.
The claimant was not represented by solicitors 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 Guidelines.
At a Preliminary Conference, the parties agreed on a settlement of $170,000 for non-economic loss, but later amended the settlement to $225,000.
Findings: The Member accepted that a damages award of $225,000 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.
Claims Assessment – Settlement Approval
Insurance Australia Limited t/as NRMA v Hussain [2023] NSWPIC 383
Member: Maurice Castagnet
Settlement approval – claimant is self-represented – claim economic loss only – physical injuries only.
On 19 May 2018, the claimant sustained injuries when the insured vehicle made a right-hand turn into the path of the claimant’s motorcycle causing the claimant to take evasive action, with the claimant consequently falling into the roadway.
As a result of the accident, the claimant sustained the following injuries:
- undisplaced distal fracture of the left ankle, and
- symptomatic exacerbation of a pre-existing condition of the lumbar sacral spine.
At the time of the accident, the claimant was employed as software engineer working 20 hours per week. The claimant was subsequently assessed with 4% WPI for the ankle, and 0% WPI for both the thoracic spine and the lumbar spine. Accordingly, the parties agreed that only economic loss damages would be awarded.
The claimant was not represented by solicitors 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 Guidelines.
Findings: The Member accepted that a damages award of $134,500 for economic loss was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
