Tawk v QBE Insurance (Australia) Ltd - [2025] NSWPICMP 530

DETERMINATION OF REVIEW PANEL
CITATION:	Tawk v QBE Insurance (Australia) Ltd [2025] NSWPICMP 530
CLAIMANT:	Charbel Tawk
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Thomas Rosenthal
DATE OF DECISION:	22 July 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); initial assessment by Medical Assessor assessed the claimant as having 9% whole person impairment (WPI) which, together with a certificate from another Medical Assessor (MA) gave a combined assessment of 11% WPI; review sought by the insurer; claimant alleged injuries to his cervical spine, right hip, thoracic spine, lumbar spine and right ankle; claimant made no complaint about his right ankle until after he suffered a fall at his home down some steps and thereafter sought medical treatment resulting in immediate surgery; Held – Review Panel not satisfied that the right ankle injury arose as a result of the accident; Review Panel assessed the claimant as having 0% WPI; Review Panel revoked the initial MAC and the combined MAC and issued a new combined MAC for a total WPI of 2%.
DETERMINATIONS MADE:	1. The Panel revokes the certificate and reasons of Medical Assessor Bodel dated 5 March 2024. 2. As a result of the accident the claimant suffered the following injuries: (a) cervical spine – soft tissue injury; (b) right hip – soft tissue injury; (c) thoracic spine – soft tissue injury, and (d) lumbar spine – soft tissue injury. 3. The Panel is not satisfied that the claimant suffered injury to his right ankle in the accident. 4. The Panel has assessed the claimant’s whole person impairment at 0%. 5. The Panel revokes the Combined Certificate of Medical Assessor Curtin dated 7 March 2024 and issues a new Combined Certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment assessment of 2%: (a) Certificate of this Panel of 0% whole person impairment: (i) cervical spine – soft tissue injury; (ii) right hip – soft tissue injury; (iii) thoracic spine – soft tissue injury, and (iv) lumbar spine – soft tissue injury. (b) Certificate of Medical Assessor Curtin dated 8 October 2023 for assessment of 2% whole person impairment: (i) scarring to the claimant’s right ankle 6. Using the Combined Values chart at page 322 of the American’s Medical Association Guides to the Evaluation of Permanent Impairment, 4^th Edition, the combined impairment is 2%.

STATEMENT OF REASONS

INTRODUCTION

The insurer seeks a review of the decision of Medical Assessor Bodel dated
5 March 2024.
The Medical Assessor found the following injuries caused by the motor accident gave rise to a permanent impairment of 9%:
(a)    cervical spine – soft tissue injury;
(b)    right ankle – appearances of a sub-acute on chronic syndesmotic injury. there is a sub-acute on chronic syndesmotic injury, partial-thickness tear involving the malleolar insertion of the anterior talofibular ligament (atfl);
(c)    right hip – soft tissue injury;
(d)    thoracic…

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: [2025] NSWPICMP 530
Decision Date: 22 July 2025

CaseChat Overview and Summary

The case of Tawk v QBE Insurance (Australia) Ltd involved a dispute concerning the assessment of motor accident injuries under the Motor Accident Injuries Act 2017. The claimant alleged injuries to his cervical spine, right hip, thoracic spine, lumbar spine, and right ankle. An initial assessment by a Medical Assessor resulted in a whole person impairment (WPI) of 9%, which, when combined with a certificate from another Medical Assessor, led to a combined WPI of 11%. The insurer sought a review of the Medical Assessment Certificate (MAC), leading to a review process.

The legal issues before the court included whether the Review Panel was correct in its assessment of the claimant's WPI, particularly regarding the claimant's right ankle injury. The claimant alleged that the right ankle injury arose from the accident, while the insurer argued otherwise. The Review Panel ultimately determined that the right ankle injury did not result from the accident and assessed the claimant's WPI at 0% for the right ankle. The Review Panel revoked the initial and combined MACs and issued a new combined MAC with a total WPI of 2%.

The court considered the evidence presented, including medical reports and the claimant's history of complaints and treatment. The Review Panel's findings were based on the claimant's failure to report the right ankle injury until after a fall at home, leading to the conclusion that the injury did not arise from the accident. The court upheld the Review Panel's decision, affirming the new combined MAC of 2% WPI. The claimant's appeal against the decision was dismissed.

Orders