MC PIC Decision of the Week
30 April 2024 – A Claimant has a history of right shoulder problems including a partial thickness tear. She has a motor accident just eight days after complaining to her GP of right shoulder pain. Post-accident imaging demonstrates that the tear has progressed from a partial tear to a full thickness tear. The Claimant was 68 years old on the day of her accident.
Who has the onus of proving that the progression of the shoulder tear was caused by the motor accident.
In Toomey and IAG, the Medical Review Panel confirmed that the Claimant shoulders the onus of proof in threshold injury disputes. In this claim, the Review Panel was not satisfied that the Claimant discharged her onus given her pre-accident complaints, the low-speed nature of the impact and the Claimant’s age.
To see our full case note, click here.
22 April 2024 – A claimant is injured in a motor accident. After a prolonged delay, she lodges an application for damages under common law with the relevant insurer. She lodges a damages dispute in the PIC a mere two weeks later.
Has the Claimant used her best endeavours to resolve the claim before proceeding to the PIC for assessment?
In Kaur v TAC, a PIC Member dismissed the damages dispute because the Claimant made no attempt to resolve her damages claim before proceeding to the PIC. In particular, she neither extended an invitation to negotiate nor made an offer of settlement.
To see our full case note, click here.
15 April 2024 – An infant Claimant develops anxiety post-accident which leads to urinary urgency and frequency.
Does this behavioural outcome constitute an above-threshold injury?
In Khoder v GIO, the Review Panel determined that urinary urgency and frequency is a behavioural outcome, which is not a recognised psychological injury, and is therefore a threshold injury for the purposes of the Act.
To see our full case note, click here.
8 April 2024 – A claimant suffers a laceration to her wrist in a motor accident. Has she sustained an above-threshold injury?
In Abawi v Allianz, the Review Panel determined that only injuries to the connective tissue of the body fall within the definition of a “soft tissue injury” in s 1.6 of the Motor Accident Injuries Act. Given that the skin performs functions above and beyond that of connective tissue – including regulating temperature, protecting from ultraviolet radiation and retaining water – an injury to the skin is not a soft tissue injury and is, therefore, an above threshold injury.
To see our full case note, click here.
2 April 2024 – A claimant is driving a bus when the insured driver sideswipes the rear of the bus. The experts agree that the low speed impact is below the usual injury threshold.
Did the accident cause the claimant any permanent impairment?
In TAC v Kelyana, the Medical Review Panel determined that the forces involved in the accident were insufficient to cause the claimant any injury. In coming to its conclusion, the Review Panel had regard to expert biomechanical reports together with CCTV which demonstrated 80 incidents, prior to the accident, where the bus went over expansion plates and speed humps, which involved great impact pulse than the motor accident.
To see our full case note, click here.
25 March 2024 – A Claimant departs from a boat cruise on St Patrick’s Day and walks along the roadway. She is struck by a boat trailer being towed by a vehicle. Despite her denials, her blood alcohol content was measured at 0.14.
Was the Claimant wholly or mostly at fault?
In Kelly v Allianz, the Member found that the Claimant was mostly at fault because, on the balance of probabilities, she stepped into the path of the moving boat trailer.
To see our full case note, click here
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18 March 2024 – A Claimant is running her own business when she is injured in a motor accident. The business is running at a loss. How are the Claimant’s pre-accident weekly earnings calculated?
In Zou v QBE a Personal Injury Commission Merit Reviewer agreed that the Claimant was “an earner” because she was self-employed. The Merit Reviewer confirmed, however, that the net proceeds of a business are the business income less all business expenses. Where the business is running at a loss, it follows that the Claimant’s PAWE is $Nil.
To see our full case note, click here.
11 March 2023 – A Claimant’s brother is killed in a tragic motor accident. A Medical Assessor finds she suffers a recognised psychiatric illness giving rise to 13% WPI.
In GIO and Adnan, however, the Medical Review Panel found that the Claimant’s level of functioning was inconsistent with a psychiatric diagnosis, the tragic circumstances notwithstanding. In assessing the Claimant’s functioning the Review Panel looked at her work history, her academic performance and her level of day-to-day independence.
To see our full case note, click here.
4 March 2024 – A Claimant is injured in a motor accident. Her clothes are destroyed during her post-accident treatment at a hospital. She seeks to recover of the cost from the Insurer.
Is this expense claimable under the Motor Accident Injuries Act?
In Edwards v Allianz, the Member determined the reimbursement of clothing does not fall within the definition of treatment and care.
To see our full case, click here.
26 February 2024 – A claimant is injured in a motor accident. Post-accident radiology reveals a fracture at T11. Pre-accident imaging reports suggest fractures at T10.
Did the accident cause above-threshold injuries at T11.
Surprisingly, it did not.
In Verscio v IAG, the Medical Review Panel concluded that the Claimant was a member of a rare club with an L6 vertebra. Given this extra lumbar vertebra, the pre-accident reports had incorrectly labelled the thoracic vertebra which had been fractured. As such, the T11 fractures revealed by post-accident imaging were pre-existing and the accident only caused soft tissue injuries to the thoracic spine.
To see our full case note, click here.
A claimant is injured when the all-terrain vehicle he is riding on private property flips over and lands on him, breaking his leg. The claimant opts to pursue a claim against the land-owner’s public liability insurer rather than a CTP claim against the Nominal Defendant.
Is the claim suitable for assessment by the Commission?
No, it is not.
In Pout v Shipway, a PIC Member decided that the claim was not suitable for assessment by the PIC given the complex issues involved and the fact that the claimant was proceeding against non-CTP parties.
To see our full case note, click here.
12 February 2024 – A Claimant works as a labourer, pre-accident, and receives cash-in-hand. Can he rely on that income when calculating PAWE? And what about income received post-accident for work done pre-accident?
In, Kipkorir v NRMA, the Merit Reviewer included undocumented income in the calculation of PAWE because she was satisfied that the income related to personal exertion labour. The Merit Reviewer, however, excluded income received post-accident on the grounds that only income actually received pre-accident was relevant to the calculation of PAWE.
To see our full case note, click here.
5 February 2024 – The Claimant undergoes lumbar spine surgery for his discogenic injuries. Unfortunately, the surgery does not result in a good outcome.
The Claimant claims that his injuries warrant an award of $70,000 for future travel because he will require upgrades from economy class to business class.
Is an award for future increased travel costs warranted under s 4.5(1)(b) of the Motor Accident Injuries Act?
Yes, in Noor v Transport Accident Commission, the Member took `judicial notice’ of the challenges a person with spinal injuries might encounter whilst travelling in economy class and awarded $27,000.
To see our full case note, click here.
29 January 2024 – A claimant suffers a soft tissue injury to his cervical spine in a motor accident. The injury, however, aggravates his pre-existing asymptomatic cervical spondylosis and leads to cervical fusion surgery after conservative treatment fails.
Did the accident cause an above-threshold injury?
Yes it did.
In Saleh and NRMA, the Medical Review Panel found that the surgery involved cutting of the skin and tearing of the Claimant’s nerves, ligaments, muscle and bone. As such, the surgery rendered the injury to the cervical spine an above-threshold injury.
To see our full case note, click here.
22 January 2024 – The Claimant is injured in the subject accident and then has two subsequent accidents.
She has surgery to both her cervical spine and her lumbar spine following each of those subsequent accidents.
The Insurer submits the claim is not suitable for assessment due to the complex causation issues surrounding the Claimant’s injuries and seeks a discretionary exemption.
In RACQ Insurance v BRT, the Member agreed the claim was not suitable for assessment under Division 7.6 of MAIA.
To see our full case, click here.
15 January 2024 – A Claimant’s husband is injured in a minor motor accident. She alleges suffering PTSD as a consequence. Does the Claimant have to show that a person of normal fortitude would have suffered a psychiatric illness in the same circumstances?
Yes, she does.
In Zhao v GIO, the Personal Injury Commission noted that s 3.39 of MAIA provided that the Mental Harm provisions in Part 3 the Civil Liability Act apply to stat benefit claims. Section 32 of the CLA provides that there is no duty of care to avoid mental harm unless it is reasonably foreseeable that a person of normal fortitude would suffer mental harm in the circumstances. The Merit Reviewer found that a personal of normal fortitude would not have suffered a psych illness given the minor nature of the accident.
To see our full case note, click here.
18 December 2023 – A Medical Assessor found the Claimant developed an adjustment disorder which is a threshold injury.
The Claimant argued she developed depression and potential post-traumatic stress disorder as a result of the accident.
Did the Claimant develop a non-threshold psychological injury?
In Dokoza v GIO, the Review Panel accepted the Claimant developed Persistent Depressive Disorder, which is a non-threshold injury.
To see our full case note, click here.
11 December 2023 – A Claimant is thrown to the ground when the rear doors of a bus close on her. She alleges that the accident caused her above-threshold injuries in the form of fractured right ribs. A contemporaneous x-ray did not confirm the Claimant’s rib fractures. A CT scan may have been more determinative, but the Claimant could not undergo such a scan because she was pregnant.
Is the PIC still able to find above-threshold injuries.
Yes, they are.
In Ghaznawi and Allianz, the Medical Review Panel gave weight to the clinical opinion of hospital staff specialists who diagnosed rib fractures based on the Claimant’s clinical presentation.
To see our full case note, click here.
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.
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 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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.