Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 98
19 October 2023
Hello from Sparke Helmore Lawyers
Welcome to the 98th 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
Tan v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 379
Panel: Principal Member Ray Plibersek, Dr Drew Dixon, and Dr Clive Kenna
Medical assessment of threshold injury - Medical Assessor assessed rib and bilateral knees - most injuries not MVA related – only rib fracture non-threshold injury.
On 21 August 2021, the claimant sustained injuries whilst being struck by a vehicle as he walked in a car park. A medical dispute arose as to whether the claimant sustained a non-threshold injury. The following injuries were referred for assessment:
- cervical spine
- thoracic spine
- lumbar spine,
- bilateral shoulders and arms, and
- bilateral knees.
At first instance, Medical Assessor McGrath determined the only injuries resulting from the subject accident were an undisplaced fracture of the ninth rib and contusion to both knees. In summary Medical Assessor McGrath found that the claimant sustained a chest wall injury in the motor vehicle accident with an undisplaced fracture of the ninth rib. He found this to be a non-minor injury under the Act. Mr Tan probably bruised his knees which is a minor injury. In making his permanent impairment determination Medical Assessor McGrath found 0% whole person impairment for the rib fracture and also 0% whole person impairment for the injury to his knees.
The claimant lodged an application for review, making submissions that the Medical Assessor had failed to consider whether the loss of axial rotation in the knee could be assessed by analogy.
The Review Panel stated that a re-examinations was required as part of the review.
The Review Panel accepted that the claimant was struck by a slow moving vehicle coming out of the carpark and that it was unclear whether the claimant rolled over the bonnet and possibly to the ground. The claimant was noted to complain of swelling knees after the accident. He also had neck pain and also a worsening of his low back pain after the accident – he did have pre-existing lumbar pain. He had a history of soft tissue injury to his cervical, thoracic, and lumbar spine but has no radiculopathy.
The Review Panel determined the following injuries are threshold injuries:
- Bilateral knees – contusion
- cervical spine - strain/whiplash
- lumbar spine – strain
- thoracic spine – strain
- right shoulder, arm and elbow - soft tissue injury, and
- right hand – strain.
The Review Panel determined the injury of chest-undisplaced fracture of 9th rib is not a threshold injury.
The Review Panel determined the following injuries referred to the Panel for assessment have been assessed and determined to be not caused by the motor accident:
- cervical spine - radiculopathy and compression of right C6/7 nerve root
- lumbar spine - radiculopathy and compression of the L5 nerve roots
- right hand - bone injury
- left hand- strain
- left arm injury, and
- left ankle/foot – strain.
The Review Panel found total Whole Person Impairment (WPI) of 0% resulting from chest, both knees, cervical spine, lumbar spine, thoracic spine, right shoulder arm and elbow and right hand strain.
Findings: The Review Panel affirmed the two certificates of Medical Assessor David McGrath both dated 22 October 2022.
Review Panel Determination
Allianz Australia Insurance Limited v Chen [2023] NSWPICMP 392
Panel: Principal Member Susan McTegg, Dr Mohammed Assem and Dr Tania Rogers
Medical assessment of threshold injury - dispute as to causation of lumbar spine radiculopathy – pre-existing lumbar spine injuries.
On 3 December 2020, the claimant sustained injuries as a result of a rear-end collision with the insured driver who was driving a truck and forced the claimant’s vehicle into the intersection. A medical dispute arose as to whether the claimant sustained a non-threshold injury. The following injuries were referred for assessment:
- lumbar spine – radiculopathy
At first instance, Medical Assessor McGrath determined the lumbar spine (back) radiculopathy was a non-minor (non-threshold) injury for the purposes of the Act, reporting that the claimant in 2018 developed some low grade back pain and underwent an X-ray and some irregular massage. The back pain did not prevent her from continuing to work as a food packer. It was reported at the time of the accident she experienced chest and lumbar spinal pains and neck pain. About three weeks later she noticed leg and foot numbness.
On examination, the Medical Assessor reported that the claimant satisfied the criteria for radiculopathy into the left leg. He noted a mildly restricted range of motion of the lumbar spine in lateral flexion and flexion/extension. The Medical Assessor his examination confirmed an S1 radiculopathy in the left leg consistent with CT findings of a disc osteophyte complex at the L5/S1 level.
The insurer lodged an application for review and a re-examination took place as part of the review.
The Review Panel stated the primary issue for consideration was the causal relationship of her lower back pain and left leg numbness to the accident, and the classification of these injuries as either threshold or non-threshold under the Act.
The Review Panel notes the claimant had undergone an X-ray of the thoracic and lumbar spine on 1 May 2018. The X-ray demonstrated a gentle curvature of the thoracolumbar junction to the left, accompanied by low-grade degenerative spondylosis within the thoracic and lumbar spine. Further, on 17 November 2020, shortly before the subject accident, the claimant consulted her GP complaining of lower back pain. It was specifically reported there was “no radiation to legs” and the claimant had gained some relief from acupuncture treatment. The Review Panel was satisfied that Medical Assessor McGrath had objective clinical evidence of left L5/S1 radiculopathy at the time of his assessment.
Findings: The Review Panel affirmed the certificate of Medical Assessor McGrath that the claimant sustained non-threshold injury.
Review Panel Determination
Insurance Australia Limited t/as NRMA Insurance v Caillon [2023] NSWPICMP 393
Panel: Principal Member Susan McTegg, Dr Neil Berry, and Dr Geoffrey Stubbs
Whole person impairment dispute - crush injury to right ring finger with fracture to base of proximal phalanx, comminuted fracture DIP joint of right little finger leading to arthrodesis, right knee injury, tear of the right posterior cruciate ligament, tear of the medical meniscus and stress fracture medial tibial plateau
On 10 September 2019, the claimant sustained injuries when another vehicle travelled across his path as he was riding his motorcycle causing him to be thrown across the bonnet of the insured vehicle and landing on the ground.
The claimant lodged an application for medical assessment and the matter was referred to Medical Assessor Menogue who found that the claimant sustained a WPI greater than 10% (19%) as follows:
- right knee injury – 5%
- right hand ring finger – 5%
- right hand little finger – 9%, and
- scarring 1%.
The insurer lodged an application for review, which was successful, and the matter was referred to the Review Panel. The insurer submitted Medical Assessor Menogue had regard to inadmissible evidence, namely the report of Dr Gehr dated 11 October 2021. Dr Gehr has not been an active authorised health practitioner since 22 August 2021.
Findings: The Review Panel revoked the certificate of Medical Assessor Menogue and determined the claimant sustained injuries giving rise to combined 17% WPI as follows:
- right knee – 12%
- right upper extremity – 5%
- scarring -1%
Review Panel Determination
Insurance Australia Limited t/as NRMA Insurance v Wilson [2023] NSWPICMP 436
Panel: Principal Member John Harris, Dr Margaret Gibson, and Dr Sylvester Fernandes
Medical assessment of threshold injury - vehicle collided into house whilst claimant sleeping, claimant inhaled dust particles including asbestos, claimant developed various symptoms associated with dust inhalation held to be threshold injury - original Medical Assessor found possibility of developing an asbestos related disease was a non-threshold injury.
On 12 February 2021, the insured vehicle collided into the house of the claimant who was sleeping at the time and as a result was exposed to dust, including asbestos. A medical dispute arose as to whether the claimant sustained a non-threshold injury. The following injuries were referred for assessment:
- inhalation of dust
At first instance, Medical Assessor Williams determined the claimant was exposed to short period of dust inhalation. The Medical Assessor found that the inhalation of dust causing sneezing, coughing and that allergic rhinitis is a minor injury. The Medical Assessor otherwise found that the inhalation of asbestos was not a minor injury.
The claimant lodged an application for review and a re-examination took place as part of the review.
The claimant submitted that the motor accident caused a respiratory injury to the lungs and the Medical Assessor has erred in determining the injury based on potential future diagnosis.
The Review Panel found the breathing in of asbestos fibres may cause asbestos related diseases such as asbestosis, lung cancer and mesothelioma. Asbestos related diseases result from inhalation and subsequent deposit of asbestos fibres in the pulmonary parenchyma. Most people are exposed to very small amounts of asbestos throughout their lives and do not develop asbestos related diseases. Given the short duration of the asbestos exposure, the chances of the claimant developing an asbestos related disease is very unlikely.
The Review Panel was not satisfied that a possible development of an asbestos related disease is an injury within the meaning of the Act. The dust inhalation is a soft tissue injury as defined in s 1.6 of the Act as injury to” tissue that connects, supports or surrounds other structures or organs of the body”. There was no medical evidence and the examinations of both Medical Assessors did not establish any “injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.
Findings: The Review Panel revoked the certificate of Medical Assessor Williams, instead certifying the that the claimant sustained threshold injuries only.
