Ms S was injured in an accident in June 2020. She was riding her bicycle on the footpath when a car reversing from a driveway collided with her. The car hit her bike on her right-hand side and our client fell onto her left side.
As a result of the collision, Ms S suffered injury to her left knee, left leg, right shoulder, right elbow right arm and lower back.
The CTP insurer issued a Liability Notice which initially assessed our client was 20% contributorily negligent for the accident and that she sustained minor injuries. We lodged an internal review which maintained the original decision. We then lodged applications at the Personal Injury Commission (PIC) on the issue of contributory negligence and minor injury.
Ms S’s case was assessed by the PIC and the amount of contributory negligence was reduced to 10% after we made submissions to the Member.
Ms S was also assessed by a PIC Medical Assessor as where her injuries were assessed minor.
Application to Review Panel of the Personal Injury Commission
We lodged an application to the Review Panel of the Personal Injury Commission to review the original Medical Assessor’s certificate under Section 7.26 of the Motor Accident Injuries Act 2017 (NSW) (MAIA) on the grounds that the original assessment was incorrect in a material aspect, in relation to the left knee injury and right shoulder injury.
The High Court in Wingfoot Australia Partners Pty Ltd v Kocak  HCA 43 at 55 held that the Medical Panel’s obligation to give reasons required it to set out “the actual path of reasoning” by which it arrived at its assessment. It has a duty to set out the findings and provide reasons for the decision as per Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 10 and 68.
We made submissions that the original Medical Assessor’s findings were inconsistent with the history of the accident and failed to explain the actual path of reasoning in sufficient detail t o enable a court of law to see whether the opinion does or does not involve any error of law.
The Personal Injury Commission’s Presidential Delegate was satisfied that there were reasonable grounds to suspect that the medical assessment was incorrect in a material respect and allowed the review application to be referred to a Review Panel consisting of a Member of the PIC and 2 Medical Assessors.
Issues in relation to minor injury
Ms S underwent radiological scans which showed the following:
- Right shoulder – supraspinatus tear at the insertion on a background of supraspinatus tendinosis. Subscapularis tendinosis. AC joint arthropathy. Subacromial – subdeltoid bursitis;
- Left knee – small loose body in the anterior joint, moderate increase in osteoblastic reaction localised of left anterior tibial tuberosity, consistent with bone contusion/trauma induced tendinitis at insertion site of left infrapatellar ligament;
In relation to the right shoulder, the original Medical Assessor stated in the certificate that:
“With regards to her right shoulder, she has radiological evidence of a partial tear to the supraspinatus. Had there been an acute supraspinatus tear, there would have been surrounding oedema on radiological imaging and the bone scan would show significant trauma to the supraspinatus tendon or surrounding structures. I have therefore reached the conclusion that the pathology identified on radiological imaging is more likely to be pre-existing and not related to the subject motor vehicle accident.”
We made submissions that the Assessor fell into error in determining that the injury is more likely to be pre-existing and not related to the motor vehicle accident. In particular, Ms S’s Application for Personal Injury Benefits stated that she suffered a right shoulder, arm and elbow injury. She had also made a statement that “after my bike was hit I fell to the ground and landed on my right side.”
Clinical notes and physiotherapy reports had noted “right shoulder rotator cuff strain and right shoulder injury.”
Of particular note is that the insurer’s Internal Review Certificate specifically noted no prior right shoulder injury in the assessment or previous medical history.
In relation to the left knee, the original Medical Assessor stated:
“With regards to the left knee, there is evidence of a direct injury to her knee causing a minor abrasion. She continues to experience intermittent discomfort associated with patellofemoral crepitations. Radiological imaging did not identify a fracture. A bone scan suggested infrapatellar tendinosis or a partial tear but a subsequent MRI scan did not identify any tendon tears. The injury to her left knee is therefore a minor injury.”
The original Medical Assessor was of the view that the left knee pathology was more likely to be pre-existent and not related to the subject motor vehicle accident. He reached this conclusion on the basis that if it was acute, there would have been surrounding oedema on the radiological imaging.
Findings by the Review Panel
The Review Panel agreed with the assessment that Ms S’s right shoulder rotator cuff tear was a non-minor injury. The MRI scan of the right shoulder was performed 6 months post-accident. The Review Panel found that despite there being no oedema, it was not of the opinion that significant trauma did not occur a the time of the accident. The Review Panel thus did not accept the original Medical Assessor’s conclusion that the right shoulder injury was pre-existing.
In relation to the left knee injury, the Review Panel noted that a bone scan suggested infrapatellar tendinosis or a partial tear and was therefore inconclusive. Therefore the left knee injury was deemed to be minor.
Favourable outcome for our client
The favourable outcome in relation to minor injury means that our client is now entitled to be paid her backdated statutory benefits.
We also lodged a common law claim against the CTP insurer and anticipate a settlement in the future because our client has suffered past and future economic loss. Our client has not been able to return to work since the date of accident.
If you are intending to make a CTP claim or are currently facing difficulties with an insurer please do not hesitate to contact our CTP lawyers for a free consultation.
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