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Welcome to the 127th 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 select 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) (the MAI Act) 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.

Medical Review Panel

Rahimi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 31 (14 January 2025)

Panel: Member Nolan and Medical Assessors Dixon and Barnsley

Medical assessment review: whole person impairment (WPI) dispute – relevant pre-existing history and degenerative conditions; delayed onset of radicular symptoms; analogous assessment applied where there is evidence of inconsistency.

The claimant was injured in a motor accident on 5 February 2018. She was the driver of a vehicle travelling through a roundabout, which was struck at the left rear by the insured vehicle. 

Relevantly, the claimant sustained overlapping injuries to her cervical spine and lumbar spine in motor accidents in 2006 and 2010. There was evidence of radiating pain and restricted capacity to work and attend to activities of daily living in the medical records.  

A dispute arose between the parties as to whether the injuries resulted in greater than 10% WPI and following the claimant’s application for medical assessment under Sch 2, cl 2(a), the dispute was allocated to Medical Assessor Mohammad Assem to resolve (the assessment).

By a Certificate and Reasons dated 15 February 2023, Medical Assessor Assem assessed total impairment of 9%. This impairment reflected a combined assessment of 5% for the cervical spine and 2% for each shoulder. The Assessor acknowledged ongoing complaints of pain in the lumbar spine, legs and right hand but found insufficient evidence to attribute impairment to the motor accident. Specifically, the Assessor assessed DRE I lumbosacral impairment attracting 0%.

The claimant was successful in having the assessment referred to a review panel. Her application for review argued that the Certificate of reasons failed to adequately consider the post-accident radicular lumbar complaints, which she said was consistent with DRE II impairment.

The Panel affirmed that the injuries were soft tissue injuries, considering that:

  1. There was no evidence of acute structural damage or significant abnormalities directly related to the motor accident. Findings of mild disc protrusions with low-grade facet joint arthropathy were “degenerative and typical for the claimant’s age, rather than indicative of a traumatic injury.”
  2. The radicular complaints did not onset immediately after the accident, they were reported 14 months post-accident. The Panel said this suggested that the injury was limited to soft tissue and the “significant temporal gap further suggests that the initial injury did not involve major neurological components”. 
  3. Clinical examination aligned with the characteristics of a soft tissue injury due to an absence of muscle spasm or guarding and the functional limitations observed were not accompanied by significant findings on imaging.  

The Panel affirmed the decision that the soft tissue injuries were not pre-existing, placing weight on the evidence that symptoms and clinical observations post-accident were new and distinct from those in the pre-accident medical history. Absent of radiculopathy, guarding or structural injury, the Panel affirmed Assessor Assem’s assessment entirely, including the DRE I lumbosacral categorisation.

The Panel agreed that the relevant method of assessment for the shoulders was by way of analogy because there was no evidence of an independent injury but inconsistencies in her range of motion and muscle guarding in the upper trapezius. An assessment was conducted in line with the principles of Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351 for a finding that the shoulder impairment was caused by referred pain from the cervical spine.

The Panel agreed there was no separate injury to account for the symptoms in the legs and right hand.

The Panel confirmed the total impairment of 9% in the assessment and affirmed the Certificate.

Held —The Certificate was affirmed; impairment did not exceed 10%.

View decision

Rim v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 27 (13 January 2025)

Panel: Member Nolan, Medical Assessors Canaris and Hong

Medical assessment review: threshold injury – psychological injury – relevant pre-existing history of workplace psychological injury; no evidence of material aggravation of pre-existing depressive disorder; Adjustment Disorder classified as a threshold injury.

The claimant was injured as a driver in a chain collision on 4 May 2021.

A dispute arose between the parties as to whether the injury caused by the motor accident was a “threshold” injury for the purposes of s 1.6 of the MAI Act. This medical dispute was allocated to Medical Assessor Alexey Sidorov to resolve as a medical assessment matter under Sch 2, cl 2(e) of the MAI Act.

The claimant alleged that the motor accident aggravated her pre-existing depressive disorder with anxious distress caused by a prior violent assault, which occurred at work in 2020. The insurer argued that the post-accident symptoms aligned with a diagnosis of a threshold psychological injury, and that the pre-accident depressive disorder was not materially contributed to by the motor accident.

Medical Assessor Sidorov determined in a Certificate dated 25 January 2023 that the motor accident was relatively minor and insufficient to cause a psychological injury. Whilst the diagnosis was that of Persistent Depressive Disorder, which is not a threshold injury, Assessor Sidorov attributed this condition to the 2020 workplace assault and determined that the motor accident did not materially contribute.

The claimant was successful in having the assessment referred to a review panel. Her application for review argued that the assessment failed to apply the appropriate test of causation, that the motor accident was not “relatively minor” and that the Certificate lacked a clear path of reasoning.

Ultimately, the Panel revoked the certificate of Assessor Sidorov because it was determined that the motor accident caused a new psychological injury of Adjustment Disorder with Anxiety. The Panel referred to post-accident evidence of driving anxiety that arose after the accident and determined that this “impressed as a condition separate from her pre-existing persistent depressive disorder and was considered to be consistent with a diagnosis of Adjustment Disorder with anxiety”.

The Panel otherwise affirmed a finding that the pre-existing condition was not materially aggravated by the motor accident because there was not “significant deviation in her psychological trajectory post-accident that could be attributed to the motor accident beyond minor and temporary symptoms of shock and anxiety.”

Held—The Certificate was revoked and a new Certificate issued affirming that the motor accident caused the Adjustment Disorder with Anxiety but pre-existing depressive disorder was not aggravated by the motor accident.

View decision

Insurance Australia Limited t/as NRMA Insurance v Quigley [2025] NSWPICMP 3 (6 January 2025)

Panel: Member Macken, Medical Assessors McGlynn and Lahz

Medical assessment review; WPI dispute - assessment of head and traumatic brain injury (TBI); relevant complex pre-accident medical history; clinical dementia rating – Certificate included assessment of impairment for injury not referred for assessment by application. 

The claimant was injured in a motorcycle accident on 28 September 2020. A dispute arose between the parties as to whether the injuries resulted in greater than 10% WPI. The claimant’s applied for medical assessment under Sch 2, cl 2(a).

A combined Certificate was issued certifying 11% WPI on 26 April 2024. This reflected Assessor Curtin’s assessment of 4% WPI, 2% for left ankle scarring and 2% for the left lower leg nerve injury, and Assessor Cameron’s assessment of 7% WPI for a brain injury and an injury to the left shoulder.

In a review application of Assessor Cameron’s assessment, the insurer argued that the lower left leg nerve damage was not referred to the Medical Assessor and should not have been assessed. The application was accepted, and the assessment referred to a review panel.

The Panel determined that the claimant did sustain a nerve injury to the left lower leg capable of assessment and directed the parties to make further submissions prior to the re-examination of the claimant.

Relevant to the brain injury assessment, the Panel placed weight on evidence of a diffuse axonal injury on imaging taken after the accident, medically verifiable diminution of GCS 14 at the accident scene, a substantial head blow with a resultant laceration requiring skin graft and mild emotional impairments.

The Panel assessed 2% for the left shoulder long thoracic nerve dysfunction and 6% for the head injury giving a total impairment of 8%. It revoked Medical Assessor Cameron’s assessment of 7% and issued a new Certificate that impairment was 8%.

Held—The Certificate was revoked and new Certificate issued.

View decision

Sam v QBE Insurance (Australia) Limited [2025] NSWPICMP 1 (6 January 2025)

Panel: Member Harris, Medical Assessors Couch and Lahz

Medical assessment review: threshold injury – claimant did not establish that the motor accident caused or aggravated discal pathology in neck or back – binding precedent of Allianz Australia Insurance Ltd v The Estate of the Late Summer Abawi: skin abrasion to right forearm constitutes a non-threshold injury.

The claimant was injured in a motor accident on 9 December 2019 when the insured vehicle turned to the wrong side of the road and collided with the claimant’s vehicle.

A dispute arose between the parties as to whether the injury caused by the motor accident was a “threshold” injury for the purposes of s 1.6. The medical dispute was allocated to Medical Assessor Cameron to resolve as a medical assessment matter under Sch 2, cl 2.

In a Certificate dated 27 January 2024 (the assessment), Assessor Cameron determined that the claimant sustained threshold injuries as a result of the accident, namely soft tissue injuries to the cervical spine and “possibly other body areas”.

In a review application of the assessment, the claimant argued that Assessor Cameron did not provide adequate reasons explaining why the claimant did not aggravate his degenerative disc disease in the accident, that the Assessor did not apply the proper test of causation and referred to Guidelines applicable to the Motor Accidents Compensation Act 1999, not the current legislative scheme that applied to this motor accident. The insurer argued that there was an extensive pre-existing history of chronic pain and spinal complaints including prior accidents in 2009 and in 2018 and no evidence that the claimant sustained more than a soft tissue injury in the accident.

The assessment was referred to a review panel.

The Panel ultimately affirmed that the claimant sustained soft tissue injuries to the cervical and lumbar spine as a result of the accident. Weight was placed on the pre-accident evidence of chronic pain, a 15-month delay between the motor accident and the first reports of sciatica and same delay between the accident and lumbar decompression surgery.

Critically the Panel overturned Assessor Cameron’s Certificate because there was evidence that the claimant sustained a “superficial abrasion right forearm” in the motor accident because it was bound by Favelle Mort Ltd v Murray [1976] HCA 13 to apply the precedent of Allianz Australia Insurance Ltd v the Estate of the Late Summer Abawi [2024] NSWSC 1245.

The Panel commented that but for the precedent of Abawi, the injury would be considered a threshold injury because it “did not involve any injury to nerves, tendons, ligaments of cartilage. There are no ongoing symptoms in the right forearm due to the skin injury, which, we noted, would have resolved within a short period.”

Held—The claimant suffered a skin abrasion, which was not a threshold injury. The original assessment revoked.

View decision

Insurance Australia Limited t/as NRMA Insurance v Jaghuri [2025] NSWPICMP 15 (8 January 2025)

Panel: Member Nolan, Medical Assessors Gibson and Assem

Medical assessment review – WPI dispute – causation in issue for lumbar spine injury where there was a delay in symptom onset but high-impact collision and two-week hospitalisation – absent of muscle guarding, spasm, or radiculopathy the impairment is DRE lumbosacral category I with no impairment.

The claimant was injured in a motor accident on 18 May 2018. The airbags deployed and the claimant lost consciousness.  He was taken to hospital and admitted for a two week period.

A dispute arose between the parties as to whether the injuries resulted in greater than 10% WPI. The claimant’s applied for medical assessment under Sch 2, cl 2(a) and the dispute was allocated to Medical Assessor Woo to resolve.

Medical Assessor Woo determined in a Certificate dated 21 December 2020 that the claimant sustained a sternal fracture and injuries to the right shoulder, cervical and thoracic spine giving rise to 7% WPI.

In July 2022, the claimant applied for assessment of injuries to his lumbar spine, left arm and psychiatric condition. In a Certificate dated 12 September 2023, Medical Assessor Shahzad assessed 5% for the lumbar spine and 0% for the left arm injury as it had resolved.

A combined Certificate was subsequently issued determining 12% total permanent impairment.   

In a review application of Assessor Shahzad’s assessment, the insurer argued that the Medical Assessor failed to explain his path of reasoning and applied the incorrect test of causation in finding that the lumbar spine injury was caused by the motor accident. The insurer relied on medical evidence which was silent to a lumbar injury including the ambulance report, the claimant’s report of Dr Gehr in 2019 and the insurer’s report of Dr Keller in 2020.

The claimant argued that there was no evidence of a pre-existing impairment and that the claimant’s pre-occupation with his sternal fracture was the reason for the two and half-year delay between the accident and complaints of lumbar pain in the post-accident documentation.

Ultimately, the Panel determined that the claimant did injure his lumbar spine in the accident notwithstanding the delay in contemporaneous lumbar complaints because “the claimant’s explanation is consistent with known patterns of injury reporting, where individuals in acute pain may not recognise or communicate all their symptoms at the time”.

The Panel overturned Assessor Shahzad’s assessment, however, because on re-examination of the claimant there was no radiculopathy, asymmetry, muscle spasm or guarding and therefore the lumbar spine was assessed as DRE I, which attracted 0% WPI.

Held—The Certificate was revoked and new Certificate was issued affirming that total impairment was not greater than 10% WPI.

View decision

Chen v Allianz Australia Insurance Limited [2025] NSWPICMP 17 (8 January 2025)

Panel: Member Nolan, Medical Assessors Kenna and Gibson

Medical assessment review: threshold injury – right shoulder injury where causation and diagnosis in dispute – claimant’s work history as a gyprocker and history of degenerative changes discussed – biomechanical report considered – inconsistencies in reporting - labral tearing confirmed as non-displaced and within scope of threshold injuries.

The claimant was injured in a motor accident on 9 November 2019.

A dispute arose between the parties as to whether the claimant sustained more than a threshold injury as defined by s 1.6. The claimant applied for medical assessment in the commission and referred a number of injuries for assessment including, as relevant to the review application that followed, right shoulder rotator cuff strain/partial tear with associated impingement signs.

On 12 June 2023, Medical Assessor David Gorman classified all injuries, including the right shoulder rotator cuff strain and partial tear with associated impingement signs, as threshold injuries. Reference was made to the pre-accident overlapping history, and Assessor Gorman determined that the accident likely caused an aggravation of pre-existing degenerative conditions.

In a review application, the claimant argued there was a reasonable suspicion of material error because “although the Medical Assessor acknowledged the tear, he classified the injury as threshold, contrary to statutory definitions that consider partial ruptures to be non-threshold injuries”. The claimant advanced other particulars for review, including that substantial weight was afforded to a biomechanical report of Michael Griffiths even where, as submitted by the claimant, his conclusions were contrary to medical evidence.

The President’s Delegate accepted the review application and stated that the Assessor’s failure to “address statutory definitions distinguishing partial tendon ruptures from soft tissue injuries raised doubts about the accuracy of the assessment”. The President’s Delegate also raised concerns regarding the reliance on Griffiths’ report because “its conclusions exceeded the scope of biomechanical expertise”.

The Panel determined that the right shoulder “labral tearing, low-grade cuff insertional tendinopathy, and degenerative osteoarthrosis of the acromioclavicular joint” was longstanding and degenerative, predating the accident, rather than being caused by the motor accident. Weight was placed on a pre-accident scan (which revealed bursitis with impingement) and the claimant’s history of physical work, which was corroborated by the Griffiths’ report that determined the forces generated in the accident were insufficient to cause the pathology in the claimant’s right shoulder on scans post-dating the accident.

The Panel critiqued the claimant’s credibility as he denied pre-accident right shoulder issues, and this contradicted the documented medical evidence. The Panel said that this reinforced the conclusion that the shoulder pathology and symptomatology predated the motor accident.

Despite its findings on causation, the Panel considered whether a labral tear was a threshold injury. The Panel determined that the labral tear was “non-displaced, meaning the torn segments remain aligned and intact, with no significant disruption to the labrum’s structural integrity”, and that this was not a rupture as contemplated by the MAI Act. The conclusion was that the labral tear “preserves the stability and overall functionality of the shoulder joint” and “aligns with the characteristics of a soft tissue injury under the statutory framework, which encompasses injuries that do not rise to the level of substantial structural musculoskeletal damage.”

Held—The Certificate was revoked and new Certificate was issued affirming that the right shoulder injury was not caused by the motor accident.  The injury was classified as a threshold injury.

View decision

Imer v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 24 (10 January 2025)

Panel: Member McTegg, Medical Assessors Cameron and Gibson

Medical assessment review: threshold injury – causation of left femur fracture in dispute – where claimant fell on day following motor accident – consideration of contemporaneous medical evidence and lack of evidence to support that accident-related injury would cause osteoporotic fracture – engineering report persuasive.

The claimant was injured in a motor accident on 1 April 2022 when the insured driver turned right into the left rear of the claimant’s vehicle. The claimant alighted her vehicle after the accident and recalled “walking without additional symptoms”. Police did not attend the scene.

The claimant attended the police station the following day to report the incident. She used her wheeled walking frame as she did prior to the motor accident. She did not have left thigh pain.

The claimant consulted her GP the following day on 2 April 2022 with complaints of neck and shoulder pain. Later in the evening on 2 April 2022, the claimant fell in her home and “felt a crack in her lower thigh”. She was taken to hospital and diagnosed with a comminuted left distal femur fracture, osteoporosis, and hypercalcaemia.

A dispute arose between the parties as to whether the claimant sustained more than a threshold injury as defined by section 1.6. The claimant applied for medical assessment in the commission and referred a number of injuries for assessment including, as relevant to the review application that followed, a left femur fracture.

Medical Assessor Home determined in a Certificate dated 17 February 2023 that the claimant sustained aggravating soft tissue injuries to the shoulders and cervical spine in the accident and that the left femur fracture and bilateral knee injuries were not caused by the motor accident.

The claimant argued in a review application that Medical Assessor Home erred in the assessment of the left femur and the assessment was referred to a review panel. Neither party challenged the assessment of the cervical spine, right shoulder, and left shoulder and the Panel limited their review to the left femur and knees. A re-examination was not necessary.

The Panel ultimately affirmed Assessor Home’s Certificate as it was determined that the left femur fracture was not caused by the motor accident. The Panel placed weight on the absence of contemporaneous left thigh complaints and the evidence that the claimant walked after the accident. It was considered implausible to suggest that the GP failed to identify the femur fracture at the consultation after the accident.

The Panel also said that it was “it is not plausible that there could have been an asymptomatic partial fracture of the femur caused by the accident which then spontaneously fractured. Major force is required to fracture a femoral shaft and that is normally sustained in a fall.

The Panel said that the engineering report relied upon by the insurer was not conclusive but persuasive for a finding that the accident forces were not sufficient to cause a femur fracture. The Panel further determined that there was not sufficient evidence to support a finding that the claimant sustained an osteoporotic fracture in the accident or that the claimant sustained an injury that caused the left leg to give way and result in the fall.

The Panel otherwise determined that there was no definitive evidence of non-threshold knee injuries after the accident and no clear evidence of bilateral knee injuries sustained as a result of the accident. If it was incorrect on causation, however, the Panel commented that the claimant at most sustained a soft tissue aggravation of the underlying osteoarthritis of both knees these would be threshold injuries.

Held—The Certificate was affirmed.

View decision

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