Marques v QBE Insurance (Australia) Limited - [2022] NSWPICMP 302

DETERMINATION OF REVIEW PANEL
CITATION:	Marques v QBE Insurance (Australia) Limited [2022] NSWPICMP 302
CLAIMANT:	Elia Marques
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL:	Member John Harris Medical Assessor Drew Dixon Medical Assessor Clive Kenna
DATE OF DECISION:	26 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 10 November 2019 when she stopped her vehicle suddenly to avoid colliding with a vehicle travelling through a red light; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 (2017 Act); the Panel concluded that the claimant suffered an annular tear in the motor accident based on: absence of pre-existing low back symptoms; onset of low back pain immediately following the motor accident; the age of the claimant and the tear limited to one level; clinical findings made by Medical Assessor; opinions of two treating specialists; positive discogram findings supporting the annular tear as the source of the low back pain; the outer layer of the vertebral disc is known as the annulus fibrosus; the annulus fibrosus is a ring of cartilage and ligamentous fibres which contains nerve receptors; an annular tear is a tear of the annulus fibrosus which due to the presence of nerve fibres can result in significant back pain; an annular tear constituted a non-minor injury within the meaning of the 2017 Act; Held — original assessment revoked; finding made that claimant sustained a non-minor injury to the low back.
DETERMINATIONS MADE:	Review Panel Assessment of Minor Injury Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 20 December 2021 and issues a new certificate determining that: The lumbar spine injury is a NON-MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017.

REASONS

BACKGROUND

Ms Elia Marques (the claimant) suffered injury in a motor accident on 10 November 2019 when another vehicle travelled through a red light at speed and almost collided with her vehicle, forcing her to stop suddenly.
The insurer insured the owner and driver of the other motor vehicle for liability to pay to Ms Marques any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Ms Marques’ injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICMP 302
Decision Date: 26 July 2022

CaseChat Overview and Summary

The dispute in Marques v QBE Insurance (Australia) Limited involved the claimant, Marques, who sought compensation for injuries sustained in a motor accident on 11 November 2019. The incident occurred when Marques stopped her vehicle abruptly to avoid a collision with a vehicle that ran a red light. The primary issue was whether Marques suffered a non-minor injury as defined by the Motor Accident Injuries Act 2017 (2017 Act). The Panel was tasked with determining whether the injury Marques sustained was significant enough to qualify as a non-minor injury under the Act.

The legal issues before the Panel centred on the interpretation and application of the definition of a non-minor injury in the 2017 Act. Specifically, the Panel had to assess whether Marques' injury, identified as an annular tear in her lumbar spine, met the criteria for a non-minor injury. The Panel considered several factors, including the absence of pre-existing symptoms, the immediate onset of pain following the accident, and the medical evidence supporting the diagnosis of an annular tear. Additionally, the Panel examined the opinions of two treating specialists and the results of a discogram, which supported the presence of an annular tear as the source of Marques' pain.

The Panel concluded that Marques did indeed suffer a non-minor injury within the meaning of the 2017 Act. The absence of pre-existing symptoms and the onset of pain immediately following the accident, coupled with the clinical findings and the discogram results, provided sufficient evidence to support the diagnosis of an annular tear. The Panel found that an annular tear, being a tear in the annulus fibrosus which can result in significant pain due to the presence of nerve fibres, qualified as a non-minor injury. Consequently, the original assessment was revoked, and the finding was made that Marques sustained a non-minor injury to her low back.

The court ordered that the original assessment be revoked and that a new assessment be conducted to reflect that Marques sustained a non-minor injury to her low back. This decision was based on the evidence presented, which demonstrated that Marques' injury met the criteria for a non-minor injury under the 2017 Act.

Orders