How immediate do symptoms need to be, to be considered “immediate”?

In Brief

• An injured person can make a claim for damages for non-economic loss and economic loss arising from a motor vehicle accident under the Motor Accidents Injuries Act 2017 (MAIA).
• Under section 4.11 of the Act, an injured person is entitled to damages for non-economic loss if they have a greater than 10% whole person impairment as a result of the injuries sustained in the accident.
• Section 7.21 of MAIA provides the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (Guidelines).
• Clause 6.252 of the Guidelines provides “objective evidence of neurological impairment is necessary to assess incontinence related to spinal injury (AMA4 Guides, Chapter 4, 4.3d) and objective evidence of injury to the bladder and urethra associated with urinary incontinence is necessary to assess urinary incontinence due to trauma (AMA Guides, Chapter 11, 11.3 and 11.4)”.

Facts

On 28 June 2024, the Personal Injury Commission published its decision in QBE Insurance (Australia) Limited v McKenzie [2024] NSWPICMP 377.

The Claimant was involved in a motor vehicle accident on 18 October 2018. As a result of the accident, the Claimant alleged a variety of injuries, including an injury to her urinary tract, including the bladder, with severe urinary incontinence.

The matter proceeded to the Commission for whole person impairment dispute.

The original Medical Assessor concluded the subject accident caused an injury to the urinary tract because her bladder problems commenced after the accident. The original Medical Assessor assessed whole person impairment of 9% for this injury.

The Insurer lodged a review application alleging the original Medical Assessor did not diagnose a traumatic injury to the bladder or urethra caused by the motor vehicle accident in accordance with clause 6.252 of the Guidelines which requires objective evidence of neurological impairment to assess a urinary bladder dysfunction under table 17 of AMA 4.

The President’s Delegate was satisfied there was reasonable cause to suspect the assessment was incorrect in a material respect and the matter was referred to the Review Panel.

The Review Panel

The Review Panel made the following findings:

• The Review Panel did not accept the Claimant’s history that the urinary symptoms were an “immediate onset” because of the following contemporaneous evidence:
  • The hospital records and the initial consultations with the Claimant’s general practitioner did not record any history of urinary symptoms.
  • The claim form completed by the Claimant dated 31 October 2018 did not mention a urological condition. The Review Panel referred to the decision of Bugat v Fox where an inclusion of injury in the claim form is relevant to establishing causation but similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.
  • The first mention of a urological condition was in a consultation entry dated 5 November 2018, nearly a month after the accident, even though the Claimant attended the general practitioner on 2 November 2018 and previous occasions.
  • The Claimant had a poor recollection of her urinary symptoms and was unable to provide an explanation for the absence of early reference to the urological symptoms.
  • The history recorded by the Claimant’s specialist, of several days of urgency, is inconsistent with immediate onset of symptoms.
• The Review Panel did not accept the Claimant sustained a spinal injury causing bladder symptoms because there was no evidence of a spinal injury and no evidence of neurological impairment in the spine causing urological symptoms.
• The Review Panel did not accept the accident caused an injury to the bladder because there was no report of an injury to the pelvic ring of bones which can impinge on the bladder causing an injury and the mechanism of the accident does not support the basis for a bladder injury.
• The Review Panel also noted the Claimant’s pre-accident history of urological symptoms following a childbirth, the Claimant suffering from two urinary tract infections after the accident and the Claimant has a predisposition to anxiety, which could be an explanation for the onset of urinary symptoms.
• The Review Panel accepted the Claimant’s response to treatment and the urodynamic studies are consistent with the cause of the symptoms due to anxiety.
• The Review Panel determined there was no underlying pathology caused by the motor accident.
• The Review Panel did not accept the Claimant established objective evidence of injury to the bladder or the urethra within the meaning of clause 6.252 of the Guidelines.
• The Review Panel did not assess whole person impairment because there is no entitlement under the Guidelines.

The Review Panel revoked the original Medical Assessor’s Certificate and the Combined Medical Assessment Certificate.

Key Learnings

This decision provides another example of a Medical Review Panel carefully scrutinising the contemporaneous medical evidence to cross-check whether the Claimant’s history of post-accident symptoms is accurate. In this claim, the records failed to support the Claimant’s claims that she suffered an immediate onset of urinary incontinence after the accident.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.

Additional McCabes Resources

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner