MC PIC Decision of the Week

mc pic decision of the week

Our Personal Injury Commission (PIC) Decision of the Week is spearheaded by our Insurance law experts. Brought to you in one minute or less.

#23 – Hall v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 617

4 December 2023 – The Insured vehicle slows down, significantly below the speed limit and the Insured driver says he activated his right-hand indicator to turn right, other motorists coming out of the bend, particularly, the Claimant states the Insured driver had not activated the right hand indicator prior to commencing his turn. The Claimant attempts to overtake the Insured vehicle and a collision occurs.

Is the Claimant wholly or mostly at fault?

In Hall v NRMA, the Member found the Claimant was not wholly or mostly at fault for the accident.

To see our full case note, click here.

#22 – Kouchekisheikhani v Allianz Australia Insurance Limited [2023] NSWPIC 597

27 November 2023 – The Claimant alleges he was standing behind a parked car and he alleges the Insured vehicle ran over his foot.

The Insurer alleges the Claimant walked into the path of the Insured vehicle.

Did the Claimant contribute to his injuries?

In Kouchekisheikhani v Allianz, a PIC Member found the Claimant contributed to his injuries by being distracted, talking on his mobile phone, not keeping a proper look and walking into the line of traffic. The Claimant’s contributory negligence was assessed at 40%.

To see our full case note, click here.

#21 – CFD V AAI Limited t/as AAMI [2023] NSWPIC 592

21 November 2023 – The Claimant is riding an e-bike when she is pushed over by an assailant. The e-bike has a motor attached to the rear wheel and a throttle. Its predominate source of power, however, remains human pedal power.

Was the Claimant injured in a motor accident?

In CFD v AAMI, a PIC Member found that the e-bike was not a motor vehicle because the evidence did not establish that the motor was attached at the time the bike was built. Furthermore, the predominate cause of the injury was the assailant pushing the claimant over rather than any relevant use or operation of the bike.

To see our full case note, click here.

#20 – Fajloun V Allianz Australia Insurance Limited [2023] NSWPICMP 534

13 November 2023 – A Medical Assessor found the Claimant sustained threshold injuries. The Claimant argued before the Medical Review Panel that the Medical Assessor had not explained why the SLAP tear in the right shoulder was not caused by the accident.

Did the accident caused the SLAP tear?

In Fajloun v Allianz, the Review Panel accepted there was no pre-existing history of right shoulder complaints leading up to the accident and determined the Claimant either partially tore his labrum or further tore an already partially torn labrum, which is a non-threshold injury.

The Review Panel also accepted a MRI is a more accurate diagnostic tool for labral tears than an ultrasound.

To see our full case note, click here.

#19 – Hamid v Insurance Australia Ltd t/as NRMA Insurance [2023] NSWPIC 157

7 November 2023 – A Claimant performs a U-turn without first checking their rear-view mirrors. A vehicle travelling behind the Claimant T-bones the Claimant’s vehicle whilst executing the manoeuvre. The collision may have been avoided if that vehicle was not speeding.

Is the Claimant wholly or mostly-at-fault for the accident?

In Hamid v NRMA Insurance, a PIC Member found that the Claimant, whilst not wholly at fault, was mostly-at-fault for the accident because he failed to keep a proper lookout and because he did not wait until the Insured vehicle had passed before commencing his U-turn.

To see our full case note, click here.

#18 – Insurance Australia Limited t/as NRMA Insurance v Mangogna [2023] NSWPICMP 508

30 October 2023 – A Medical Assessor found both a physical non-threshold injury and a psychological non-threshold injury. The Insurer lodged a review application for the physical threshold injury only. The Review Panel noted that the statutory question referred to the Panel is now spent because the Claimant had already demonstrated a non-threshold psychological injury.

Can the Review Panel dismiss the review application because the application was made for an “improper purpose” and because it was “lacking in substance”?

No, it cannot.

In IAG v Mangogna, the Principal Member rejected the request by the Review Panel to dismiss the review application. The Principal Member accepted the Insurer’s explanation that the status of the Claimant’s physical injuries had to be reviewed first because the cause of the Claimant’s psychological injuries was linked to the physical injury.

To see our full case note, click here.

#17 – Alzate v Insurance Australia Limited t/as NRMA [2023] NSWPICMR 51

23 October 2023 – A Claimant alleges she was starting a business when a motor accident intervened. She provides evidence to the Insurer that she had registered a company. Is that sufficient to demonstrate that the Claimant is “an earner”, thus allowing her to access the weekly payments contemplated by Div 3.3 of the Motor Accident Injuries Act 2017?

No, it is not.

In Alzate v IAG, a Merit Reviewer found that a company is a separate legal entity from a Claimant. Setting up a company does not equal self-employment. Furthermore, there was no evidence that the Claimant would be employed by the company. As such, for these reasons, the Claimant failed to demonstrate that she was “an earner”.

To see our full case note, click here.

#16 – Gray v Allianz Australia Insurance Limited [2023] NSWPICMP 481

16 October 2023 – A Claimant was involved in a motor vehicle accident on 2 July 2004. He lodges a claim form on 8 April 2021, following a 17 year delay, alleging injuries to his cervical spine, thoracic spine, lumbar spine, both shoulders, both arms, both hips and developing a psychological injury.

The Medical Assessor determined none of the injuries referred for assessment were related to the accident and there was no assessable impairment.

The Claimant sought a review.

How does the Medical Review Panel consider whether the symptoms are related to the accident given the accident occurred so long ago?

In Gray v Allianz, the Medical Review Panel applied the test of causation to affirm the original decision because there was a break in chain of the medical evidence.

To see our full case note, click here.

#15 – Aleksic v AAI Limited t/as GIO [2023] NSWPICMP 466

9 October 2023 – A claimant suffers from a pre-existing major depressive disorder in partial remission. She’s subsequently involved in two motor accidents. Her depressive symptoms worsen after the subject motor accident. They are further exacerbated by the subsequent motor accident which results in a full relapse of her major depressive disorder.

How does the Medical Review Panel assess threshold injury where there are multiple causes?

In Aleksic v GIO, the Medical Review Panel found that the Claimant need only demonstrate that the subject accident aggravated, accelerated or exacerbated her pre-existing psychological condition.

To see our full case note, click here.

#14 – QBE Insurance (Australia) Limited v Sukkar [2023] NSWPICMP 450

3 October 2023 – The Claimant seeks funding to undergo a lumbar spine fusion at L4/5. The Insurer denies the request because the surgery was caused by the Claimant’s pre-existing lumbar spine condition. The Medical Assessor determines the surgery was related to the accident and reasonable and necessary. The Insurer sought a review referring to the surveillance footage which revealed the Claimant being able to undertake various activities, which were inconsistent with his stated level of disability.

In QBE v Sukkar, the Review Panel reviewed the surveillance footage along with the other material to determine the surgery was related to the accident but was not satisfied the Claimant’s lumbar spine condition had significantly impacted on his activities of daily living, therefore the proposed surgery was not reasonable and necessary because it would not improve the Claimant’s quality of life.

Click here to read the full reasons.

#13 – Karklins v QBE Insurance (Australia) Limited [2023] NSWPICMR 47

27 September 2023 – A Claimant swerves to miss two deer running across the road. He hits an oncoming vehicle and is injured. He subsequently makes a common law damages claim.

Is the Claimant entitled to weekly benefits beyond 104 weeks because he has a “pending claim for damages” within the meaning of s 3.12(2)(a) of the Motor Accident Injuries Act 2017?

In Karklins v QBE, the PIC Member held that the Claimant’s weekly benefits would not be extended because he had no-one to sue and, in effect, no “pending” damages claim.

To read the full reasons, click the link here.

#12 – Insurance Australia Limited t/as NRMA Insurance v Varghese [2023] NSWPICMP 437

25 September 2023 – A motor vehicle collides with a house and disturbs a quantity of asbestos, which the Claimant inhales. Does the possibility of developing an asbestos-related disease constitute an above-threshold injury?

No, it does not.

In IAG v Varghese, the Medical Review Panel found that the plain meaning of “personal or bodily injury” in s 1.4 of the Motor Accident Injuries Act 2017 is consistent with “an established physiological change”. A future possible physiological change, however, does not satisfy the definition. Given that the possible asbestos-related disease did not constitute an injury, it followed that it did not qualify as an above threshold injury.

To read the Review Panel’s full reasons, click here.

#11 – Richardson v Allianz Australia Insurance Limited [2023] NSWPIC 454

18 September 2023 – The Claimant was driving a motor vehicle in the right lane on the M7 Motorway. The other vehicle approached from behind at speed. The Claimant moved across to the left lane and sounded his horn to warn the other vehicle to slow down. The other vehicle did so. The Claimant attempted to merge into the right lane but collided with the other vehicle. The Claimant alleges the other vehicle was at fault.

Is the Claimant considered mostly at fault or wholly at fault for the accident?

In Richardson v Allianz, the Member found the Claimant was mostly at fault because he failed to exercise reasonable care by failing to maintain a safe speed and distance behind other vehicles, merged into the right lane when it was unsafe to do so and failed to keep a proper lookout prior to attempting a lane change.

Click here to read the full reasons.

#10 – Insurance Australia Limited t/as NRMA v Le [2023] NSWPICMP 410

11 September 2023 – The Claimant was involved in a high-speed motor vehicle accident. He was affected by drugs. After the accident, the Claimant behaved erratically. He started banging his head against the ground and had to be physically restrained by Police .

A PIC Medical Assessor found that the Claimant sustained a non-threshold injury to his head, in the nature of a mild traumatic brain injury. The Insurer argued, on review, that the Medical Assessor failed to address causation of the Claimant’s self-inflicted head trauma.

Does the Claimant need to show that the motor accident was the sole cause of his non-threshold, head injury?

No, he does not.

In NRMA v Le, the Review Panel found that it was sufficient for the Claimant to demonstrate that the accident was a contributing factor, which was more than negligible, and did not need to be the sole cause.

Click here to read the full reasons.

#9 – Mitwari v Allianz Australia Insurance Limited [2023] NSWPICMR 43

4 September 2023 – The Claimant was injured in a motor vehicle accident, during the course of his employment, as a company director. The Claimant is entitled to make a workers compensation claim but asserts lodging one would be unreasonable because the company did not hold any workers compensation insurance and as a company director, he would be exposed to reimbursement from the Nominal Insurer and prosecution under the Workers Compensation Act. The Claimant asserts there is no benefit from lodging a workers compensation claim and did not do so. The Claimant seeks the CTP insurer pay him statutory benefits.

Can the CTP Insurer refuse to pay statutory benefits in accordance with section 3.35 of the Motor Accident Injuries Act 2017?

In Mitwari v Allianz, the Merit Reviewer said yes.

Click here to read the full reasons.

#8 – Curtin v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 403

28 August 2023 – The Claimant makes a claim against an incorrect insurer. A damages dispute is lodged with the Commission within three years of the accident, albeit naming the wrong insurer. The Claimant then serves a common law damages claim form on the correct insurer, well outside the three year period for making a claim.

Can the Claimant join the correct insurer under rule 62 of the PIC Rules to the damages proceedings already before the Commission to cure the late claim issue?

In Curtin v NRMA, the Member found that there was no claim to be referred for assessment until the Claimant provided a full and satisfactory explanation for their late claim against the correct insurer.

Click here to read the full reasons.

#7 – Rios v AAI Limited t/as AAMI [2023] NSWPICMP 369

21 August 2023 – An accident causes a scarring. There is some sensory loss in the immediate vicinity of the scar – as is generally found with any scar – but there is no extension of sensory loss which would suggest an injury to any nerve or any major branch of a nerve.

Has the Claimant sustained an above-threshold injury?

No, they have not.

The Medical Review Panel in Rios v AAMI agreed with an earlier decision in Eftikhari that a skin injury is a below threshold injury unless the injury involve injury to nerves, demonstrated by sensory loss, or a complete or partial rupture of tendons, ligaments, menisci or cartilage.

Click here to read the full Review Panel reasons.

#6 – AAI Limited t/as GIO v Russell [2023] NSWPICMP 359

14 August 2023 – The Claimant alleges sustaining injuries to his lumbar spine, left knee, right hip and right shoulder as a result of being knocked over by a reversing car. The Medical Assessor assessed 13% whole person impairment. In the assessment, the Claimant was unable to get onto the examination couch, could not take his shirt off and could not demonstrate the six range of movement to the Assessor.

What is the appropriate method to use to assess whole person impairment, if range of movement could not be used?

In GIO v Russell, the Review Panel reviews the other permitted methods in Chapter 3 of the AMA 4 to assess whole person impairment of the right shoulder.

Click here to read the full reasons.

#5 – Warner v Insurance Australia Limited t/as NRMA Insurance (No1) [2023] NSWPICMP 334

7 August 2023 – A claimant commenced home renovations before their accident. They were unable to complete the renovations due to the injuries they sustained in a motor accident.

Can the claimant recover the external cost of completing the home renovations as a treatment expense under Part 3.4 of the Motor Accident Injuries Act 2017?

No, they cannot.

In Warner v IAG, the Medical Review Panel found that whilst installing a grab rail might, for example, represent “treatment for the injured person” as required by s 3.24, the completion of partially completed home renovations is not “treatment for the injured person” within the meaning of that section. The renovations are not treating the injury per se.

Click here to read the full Review Pane reasons.

#4 Younis v AAI Limited t/as AAMI [2023] NSWPICMR 35

26 July 2023 – An Insurer suspends weekly payments because it has information that the Claimant has returned to work. The Claimant seeks merit review of that decision. The Merit Reviewer directs the Claimant to provide information and documents relevant to the issues in dispute. The Claimant fails to comply.

Can the Merit Reviewer dismiss the Claimant’s Merit Review Application?

Yes, they can.

In Younis v AAMI, the Merit Reviewer noted that the obligation to comply with directions made under s 49 of the PIC Act is mandatory and that PIC Rule 77 gave the Merit Reviewer power to dismiss the application for non-compliance.

View the case here.

#3 – QBE Insurance (Australia) Limited v Hoblos [2023] NSWPICMP 209

19 July 2023 – Causation in threshold injury disputes. Does the Injured Person have to show that the subject accident was the sole cause of their above-threshold injury?

No, they do not.

The common law has long recognised that there may be multiple causes for an injury. It is sufficient that the tortious event represents a material contribution to the medical condition.

In the context of multiple accidents, an injured person might demonstrate that both motor accidents caused an above-threshold injury where the first accident caused the injury and the second accident simply made it worse. In that scenario, the second accident made a material contribution to the Claimant’s above-threshold injury even where it was not the primary cause.

To read the full Medical Review Panel reasons in QBE v Hoblos click here. Paragraphs 141 to 181 deal with causation.

#2 – Harrison v AAI Limited t/as GIO [2023] NSWPIC 313

13 July 2023 – A Claimant will likely require treatment after their damages claim resolves. Should their common law damages include a component for the cost of travelling to treatment providers.

No, it should not.

Section 4.5(b) of the Motor Accident Injuries Act 2017 does include a right to recover damages for increased accommodation or travel costs. But that section does not include travel or accommodation associated with treatment and care.

But the Injured Person is still covered.

Section 3.24 allows the Claimant to recover both treatment – and the reasonable and necessary travel and accommodation expenses incurred in obtaining treatment – as statutory benefit, even after the common law damages claim has concluded.

To see the full reasoning in Harrison v GIO, view the case here.

#1 – Abid v AAI Limited t/as GIO [2023] NSWPIC 188

12 July 2023 – Can a Claimant lodge a Damages Dispute with the PIC before they have lodged a Damages claim form with the Insurer. No, they can’t. In the matter of Abid v GIO, the PIC member found that a premature damages dispute lodged with the Commission could not be cured by a subsequent Damages claim form lodged on the insurer.

Also of note, this was a late claim and the PIC Member found that a Miscellaneous Assessment could not be conducted in the context of a Damages Dispute. You need a separate application for that.

For more information, view the case here.