Insurance Australia Limited t/as NRMA Insurance v Haklane (No 2)
[2025] NSWPICMP 732
•22 September 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Haklane (No 2) [2025] NSWPICMP 732 |
CLAIMANT: | Steven Haklane |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Tai-Tak Wan |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 22 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; insurer’s application for review of Medical Assessor’s (MA) further assessment of whole person impairment (WPI); significant dispute as to causation of injury due to earlier accidents and longstanding lumbar spine complaints; issue of WPI assessment complicated by surgery that was also disputed; re-examination; Held – Review Panel relied on findings in related treatment dispute that surgery was reasonable and necessary and related to the accident resulting in DRE IV impairment (less DRE II impairment for pre-existing condition); surgical scarring assessed at 1%; combined WPI at 16%; certificate of MA revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. revokes the certificate issued by Medical Assessor Truskett and dated 1 February 2024, and 2. certifies that the degree of permanent impairment that has resulted from the injuries sustained by the claimant and caused by the motor accident on 17 September 2016 is greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Steven Haklane was involved in a motor accident on 17 September 2016.
The claimant says he injured his neck, back and hand in the accident and made a claim for damages against NRMA, the third-party insurer of the vehicle that he says caused his accident.
The whole person impairment dispute
A medical dispute about the Mr Haklane’s whole person impairment (WPI) arose in connection with his damages claim and a brief chronology of that dispute is as follows:
(a) on 20 November 2019, Medical Assessor Truskett of the State Insurance Regulatory Authority’s Medical Assessment Service[1] assessed the claimant’s WPI at 8%;
(b) on 7 September 2023 the claimant referred the medical dispute to the Personal Injury Commission (the Commission) for further medical assessment;
(c) on 1 February 2024 Medical Assessor Truskett determined the degree of the claimant’s WPI was 15% primarily based on a finding that the claimant had a lumbar spine WPI related to lumbar spine surgery;
(d) on 28 February 2024 the insurer sought a review of that further assessment, and
(e) on 21 November 2024 the Review Panel determined the claimant had a WPI of 21% also based on a finding that the claimant had a lumbar spine WPI related to his lumbar spine surgery.
[1] The previous service which operated to resolve medical disputes in motor accident claims.
The insurer commenced judicial review proceedings in the Supreme Court in relation to that Panel’s dispute and on 26 May 2025 the Supreme Court ordered that the Review Panel’s decision be set aside and that the dispute about WPI was remitted to the Commission to be determined by a differently constituted Panel.
On or about 4 June 2025 a delegate of the President convened the current Panel in order to determine the WPI dispute.
The treatment dispute
On 8 December 2023 the insurer had referred to the Commission a dispute about whether the claimant’s lumbar spine surgeries, performed in 2021 and 2022 were related to the injuries sustained in the accident and whether the surgeries were reasonable and necessary in the circumstances. After assessment by Medical Assessor Bodel, an application for Review was lodged and allowed.
On 2 December 2024 the President’s delegate convened the current Panel to conduct the Review.
The resolution of both disputes
The Panel determined on 9 July 2025 that it would hear and determined both Reviews together.
These reasons are the Panel’s reasons for the WPI dispute only.
LEGISLATIVE FRAMEWORK
General
Mr Haklane’s claim, and his entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
The MAC Act provided a scheme for the compulsory registration of motor vehicles in this state by licensed insurers up to and including 30 November 2017. The Act also provides a scheme for some limited defined benefits and lump sum compensation for person’s injured in motor accidents which occurred on or before 1 December 2017.
Compensatory damages under the MAC Act are awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Non-economic loss damages and WPI
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act with some limitations and restrictions. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[2] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries caused by the accident.
[2] The current maximum as of October 2024 is $654,000.
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[3] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[3] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by Mr Haklane, chapter 3, the musculoskeletal chapter is relevant.
Dispute resolution
Section 58(1) of the MAC Act (in Part 3.3 of Chapter 3) provides for the resolution of the following “medical assessment matters” that may arise during the life of a claim:
“(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b) whether any such treatment relates to the injury caused by the motor accident,
(c) (Repealed)
(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(e) (Repealed)”.
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment, further medical assessments and the review of medical assessments by this Review Panel[4].
[4] Sections 61, 62 and 63 of the MAC Act.
Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Truskett examined the claimant on 19 January 2024 and issued his certificate on 1 February 2024. He confirms at [2] that he was asked to assess the following injuries and symptoms:
(a) cervical spine – aggravation of degenerative disease of cervical spine;
(b) lumbar spine – aggravation of spondylolytic spondylolisthesis at L5/S1 level with left L5 nerve root compression;
(c) left metacarpal – closed fracture;
(d) left carpal tunnel syndrome and ulnar condition, and
(e) stomach – stomach/oesophagus – gastro-oesophageal reflux disease.
Medical Assessor Truskett took the following history at [8] – [10]:
(a) Mr Haklane was born overseas and came to Australia as an infant in 1973, all his schooling occurred in Sydney, he studied electrical engineering at TAFE and then IT Management;
(b) he worked as a project manager at the time of the accident;
(c) he had a medical history of elevated cholesterol;
(d) in 2001 he had a car accident after which he developed neck and back pain which resolved but flared up in 2009;
(e) he had a quad bike accident in November 2009 in which he sustained a probable brachial plexus injury which was treated by Dr Goldberg;
(f) the current accident occurred at about 50 kmph when a vehicle failed to stop at an intersection and the front of his vehicle hit the passenger side of the other vehicle;
(g) he was not knocked out, but emergency services attended, and he was taken to hospital;
(h) his vehicle was written off in the accident;
(i) the claimant said he complained at hospital of pain in the left hand, neck and lower back pain. The undisplaced fracture of the first metacarpal on his left hand was discovered and the claimant was kept overnight. Radiology of his neck demonstrated no abnormality;
(j) he attended his GP on 21 September 2016 complaining of cervical and thoracic tenderness;
(k)
the claimant was referred to and assessed by Dr Parkinson, neurosurgeon on
28 March 2017. He had seen the claimant before, surgery was not recommended but pain management and physiotherapy was provided;
(l) the claimant reported that since his previous examination with Dr Truskett he had radiating pain down both legs which had not resolved;
(m)
the claimant was reviewed by Dr Parkinson on 10 December 2019 and on
27 April 2021 when he recommended a two-level decompression and fusion which was performed by Dr Wong due to an issue of affordability and private health insurance;
(n) Mr Haklane had ongoing numbness and pain in both legs with no improvement;
(o) he had further surgery on 20 April 2022 due to a concern that a small piece of bone graft material was in contact with the left S1 nerve root. There was some improvement in his left leg pain but three months later both his right and left sciatic pain returned and on 27 October 2022 Dr Wong suggested he might require L4/5 spinal fusion. If he has this surgery, he wants to see Dr Parkinson;
(p) the claimant was continuing with Dr Yu, pain specialist, and Professor Lim, and
(q) he has continued to work full time.
In terms of current symptoms, Medical Assessor Truskett notes that:
(a) Mr Haklane’s neck pain has resolved, and the claimant has been relatively pain-free in that part of his body for almost three years;
(b) his left arm pain has resolved but he still has “mild discomfort” of the left hand;
(c) he has constant pain in his lower back with exacerbations of worse pain which is relieved by medication and rest. He has radiating pain down his left and right left the former worse than the latter;
(d) he had epigastric pain weekly, relieved by Nexium and Gaviscon. This has been investigated with endoscopy and colonoscopy, and he has been advised he is lactose intolerant, and
(e) he also reported increased urinary frequency since the back surgery.
On examination of the neck there was no abnormality, and Mr Haklane had a normal range of wrist and finger movement. In the back there was a scar, with some loss of movement. There was some sensory loss and reduced reflexes but no wasting.
Medical Assessor Truskett diagnosed an aggravation of degenerative disease of the cervical and lumbar spine and a resolved left metacarpal fracture. He found the gastro-oesophageal symptoms and carpal tunnel syndrome not related to the accident.
WPI was assessed as follows:
(a) cervical spine DRE I = 0%
(b) lumbar spine DRE IV (20%) less DRE II (5%) = 15%
The DRE IV assessment was awarded because of the multilevel structural compromise in a region of the spine, that is fractures of more than one vertebra. However, the circumstances where a DRE IV is awarded “includes spinal fusion and intervertebral disc replacement” as per cl 1.145 of the Guidelines.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer submits at [10] that the Medical Assessor:
(a) failed to properly consider and refer to all the evidence before determining the dispute;
(b) provide adequate reasons in relation to causation, and
(c) did not conduct his assessment of impairment in accordance with the Guidelines.
The submissions concern the lumbar spine injury only and primarily causation. The insurer takes issue at [14] with the fact that the Medical Assessor did not adequately refer to the claimant’s pre-accident medical records and the insurer’s experts Doctors Mellick, Machart and Coroneos.
The insurer refers at [16] to medical evidence suggesting symptoms in the back in the years before the accident.
The insurer says at [20] and [21] that the Medical Assessor did not give real and genuine consideration to the insurer’s experts’ opinions and the issue of causation.
The insurer says at [23] that while the Medical Assessor did allow 5% for the pre-existing condition he has not adequately considered whether the motor accident was a cause or material contribution to the need for the claimant’s surgery.
The insurer submits at [26] and [27] that Dr Mosses found on 3 March 2016 reduced sensation, absent reflexes and a positive slump test which are three of the five signs of radiculopathy, and which could have resulted in a finding of 10% WPI at that time and which would have resulted in an accident related WPI of 10% (20% - 10%).
The insurer submits at [36] – [37] that if the Medical Assessor had found the surgery not related to the injuries caused by the accident or not reasonable and necessary that the claimant’s WPI would have been 0%.
Claimant’s submissions
The claimant submits at [3] that the Medical Assessor has said he has considered the documents provided and additional documents which were all of the documents before him. The claimant says the insurer is not required to specifically refer to everything and is obliged to provide brief reasons only.
The claimant says at [4] that the Medical Assessor was not asked to assess a dispute about treatment and has therefore not erred in not dealing with causation of the surgery.
The claimant submits at [5] that the Motor Accident Guidelines required there to be a pre-existing asymptomatic impairment which the Assessor has dealt with.
The claimant asks that the impairment in relation to the lumbo-sacral surgical scarring be assessed.
PROCEDURAL MATTERS
The Panel adopts the summary of the procedural steps in the current proceedings found in paragraphs 49 - 59 of the related decision involving the treatment dispute.
THE REVIEW OF THE EVIDENCE
The Panel adopts the Evidence Review found at paragraphs 63 - 200 of the related decision.
RE-EXAMINATION FINDINGS
The Panel adopts the re-examination findings of the Medical Assessors found at paragraphs 201 - 237 of the related decision.
CONSIDERATION OF THE ISSUES
The Panel adopts the findings of causation of injury and the diagnosis of injury from paragraphs 238 – 249 of the related decision and the findings in relation to the reasonableness and necessity of the surgery and its relationship to the accident.
IMPAIRMENT ASSESSMENT – THE PANEL
Assessment of spine injury
Assessment of the spine requires consideration of Chapter 3 of the AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.131) into three regions, cervical, thoracic and lumbar. In Mr Haklane’s claim, he only alleges injury to the lower back conceding his neck injury has resolved.
There are five diagnostic related categories, and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see Table 7). There are structural inclusions such as fractures and neurological inclusions such as radicular symptoms or signs of radiculopathy.
The first category is DRE I which is selected if there are symptoms which may include pain.
A classification of DRE category II on the basis there are no structural inclusions requires there to be:
(a) pain with guarding; or
(b) non-uniform range of motion – dysmetria, or
(c) non-verifiable radicular complaints defined in Table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
A classification of DRE category III without structural inclusions requires there to be two or more of the five signs of radiculopathy provided for in cl 1.138:
(a) loss or asymmetry of reflexes (see Table 8 in the Guidelines);
(b) positive sciatic nerve root tension signs (see Table 8 in the Guidelines);
(c) muscle atrophy or decreased limb circumference (see Table 8 in the Guidelines);
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
In terms of structural inclusions, the Guidelines provide at Table 7 for:
(a) multilevel structural compromise (DRE IV or V);
(b) spondylolisthesis without radiculopathy attracts a DRE I or II classification, and
(c) spondylolisthesis with radiculopathy attracts a finding of DRE III, IV or V.
Clause 1.145 states that multilevel structural compromise also includes spinal fusion and intervertebral disc replacement.
What is the claimant’s spine impairment?
Mr Haklane has had a lumbar spinal fusion however at the re-examination by the Medical Assessors he did not have two or more signs of radiculopathy (although he did have radicular pain).
The Medical Assessors are of the view that in their clinical judgment and pursuant to cl 1.145 the surgery places him in the DRE IV category on the basis of a multilevel structural compromise which attracts a 20% WPI based on Table 72 on page 110 of the AMA 4 Guides.
If Mr Haklane had two more signs of radiculopathy, then the Panel would have assessed him as having a DRE V category impairment.
Did the claimant have a pre-existing impairment?
Clauses 1.31 provides that:
“If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value.”
The claimant has a long history of lower back complaints with radicular symptoms and evidence of some signs of radiculopathy. For example, there were complaints made by Mr Haklane of muscle loss in 2014 but no record of testing of this. Dr Moses’ report from March 2016 documents paraesthesia but normal power and sensation, absent reflexes and a positive slump test.
However, at the time of the September 2016 accident the Panel is not satisfied that the claimant would have been assessed as having two or more of the required signs of radiculopathy to place him in the DRE III category (10%). The claimant’s significant pre-accident lumbar spine symptoms were not permanent or persistent at that time. It is the clinical judgment of the Medical Assessors that at the time of the accident, the claimant would have had a DRE II impairment on the basis of non-verifiable radicular complaints giving him a 5% WPI based on Table 72 on page 110 of AMA 4 Guides.
What is the claimant’s skin impairment?
The claimant has a 9cm surgical scar down his lower back as a result of the surgery related to the injuries caused by this accident.
The AMA4 Guides provide in chapter 13 for the assessment of injuries to the skin. Table 2 identifies five classes of impairment ranging from class 1 which attracts a WPI of between
0 – 9% and class 5 which attracts a WPI of between 85 and 95%.
It is the Medical Assessor’s clinical judgment that the claimant’s scarring falls within class 1 because of the:
(a) minimal signs and symptoms;
(b) limitation of activities (in this case none), and
(c) no treatment of intermittent treatment is required.
Because class 1 contains a relatively wide range of percentage impairments (0 – 9), the Guidelines provides at table 18 the TEMSKI that is the table for the evaluation of minor skin impairments which are assessed according to 10 criteria. These criteria and the Medical Assessor’s rating are as follows:
(a) he was conscious of the scar (1%);
(b) he was easily able to locate it (1%);
(c) the scar was slightly more pigmented than the surrounding skin (1%);
(d) there were no trophic changes (0%);
(e) there were visible suture marks (1%);
(f) the scar would be visible but only in swim shorts (1%);
(g) the scar was depressed (1%), and
(h) the scar had no effect on Mr Haklane’s activities of daily living (0%);
(i) the scar was not adherent to surrounding structures (0%), and
(j) the scar did not require treatment (0%).
The Table requires the application of the principle of best fit. It is the Medical Assessor’s clinical judgment that the best fit in this case is 1% WPI.
CONCLUSION
The Panel is of the view that the claimant’s impairment is assessed at 16% made up as follows:
(a) Current impairment lumbar spine 15% (DRE IV 20% less pre-existing DRE II 5%), and
(b) Skin impairment 1% for scarring
The claimant conceded there is no impairment from his cervical spine or left-hand injury the Panel has considered, in the light of the re-examination findings that there is no impairment in these areas as the claimant appears to have recovered from them.
The Panel has not considered the issue of gastric impairment as neither Medical Assessors Wan or Gorman are accredited in this module. In the light of the finding of the degree of impairment the Panel is of the view no further assessment of any gastro-intestinal symptoms is necessary. The Panel has also not considered any hip impairment as this area of the body was not referred for assessment.
Finally, the Panel notes that if the claimant had two or more signs of radiculopathy immediately before the 17 September 2016 accident attracting a DRE III (10%) impairment for the pre-existing injury, the claimant would still have a WPI of greater than 10% due to the addition of the 1% WPI for skin impairment.
As the Panel has arrived at the same outcome (a WPI of greater than 10%) but a different total (16% not 15%) which the Medical Assessor included in the certificate, the Panel will revoke Medical Assessor Truskett’s decision and issue a fresh certificate.
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