Examing causation in the NSW Motor Accident Compensation Scheme (Briggs No.2)

"Without causation there is nothing."

We often hear from our clients and patients of specialists that their treatment is denied because the requested treatment for a certain body part is not related to the accident.

This is frustrating for our clients and patients because they often feel that the said body part only hurts after the accident and, therefore, must be because of the accident. In turn, they feel ripped off when their treatment is not approved due to causation problems.

The current causation test in the Motor Accident Scheme

Unfortunately, the above scenario is just one of the factors that the PIC Tribunal looks for when they consider causation in Motor Accident Matters. The current widely accepted test for causation the PIC Tribunal follows currently in Motor Accident Matters is the test set down in Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 (Briggs No 2), of which is summarised below:

A.      Could the accident have caused either or both of the labral tears in the right shoulder (medical determination), and

B.      did the accident in fact cause either or both of the labral tears in the right shoulder (non-medical informed Judgement).

An example of its application was discussed in the case of Fajloun v Allianz Australia Insurance Limited NSWPICMP 534. A summary of the case is provided below:

Facts:

•       The claimant was a 57 year old council worker who was involved in a significant rear end motor accident in early March 2020.  Reportedly the claimant lost consciousness and his vehicle was pushed 10 meters ahead. His rear tyre split, and his car was written off.

•       The claimant had no significant shoulder issues except for a right shoulder complaint which warranted some treatment 16 years before the accident.

•       The claimant saw his General Practitioner the next day and reported, among other injuries, pain in his left and right shoulders.

•       Bilateral shoulder ultrasounds were conducted on 18 March 2020. The report revealed degenerative changes in both AC joints, bilateral bursitis, bilateral tendinosis and bilateral partial thickness tears of the supraspinatus. There was also a tear of the right subscapularis.

•       A left shoulder MRI was conducted a year later on 21 April 2021 which confirmed various degenerative changes but no high grade cuff tear.

•       A right shoulder MRI also dated 21 April 2021 reported a SLAP tear involving the bicep, a posterior inferior labral tear, ACJ arthropathy and bursitis.  The SLAP tear was new and not picked up on the earlier ultrasound.

•       Allianz, the insurer for the vehicle at fault, alleged the claimant’s injuries were threshold injuries. This matter was referred to the PIC for determination.

•       The insurer relied on the report of biomechanical expert Dr Michael Griffiths. Dr Griffiths opined that the design of modern cars supported the shoulders and therefore it is unlikely the claimant sustained any injuries from the accident.  He did, however, confirm the accident may have aggravated a pre-existing shoulder condition.

•       Assessor Wijetunga examined the claimant on 20 October 2022 and determined all injuries referred for assessment were threshold injuries. Specifically, she found that the shoulder scans did not show any signs of acute injury. She also observed that partial thickness tears were common ultrasonographic findings for people in the claimant’s age group.

•       Dr Wijetunga did not comment on whether the accident caused the SLAP tear, so a review application was lodged and accepted.

•       Assessor Tania Rogers assessed the claimant on behalf of the Panel on 14 September 2023. She also read the MRI films.

•       Before the Panel could determine what injuries were caused by the accident, they first had to determine if shoulder injuries were present.

•       The Panel noted the presence of partial thickness tears in the bilateral shoulders on the ultrasounds. There was no tear on the MRI of the left shoulder. There was a SLAP tear on the right shoulder MRI. Dr Rogers also confirmed the presence of a further labral tear in the right shoulder.

•       The Panel at [116] determined that MRIs are a more accurate diagnostic tool for labral tears than ultrasound scans. The Panel preferred the MRI scan report over the ultrasound scan report.

•       LEFT SHOULDER: the MRI report as reviewed by Dr Rogers showed no tear and therefore the injury to the left shoulder was threshold only.

•       RIGHT SHOULDER: there was a SLAP tear in the right shoulder. The Panel then considered whether the accident caused the right shoulder tears.  Causation was considered in accordance with  Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 (Briggs No 2), which was conveniently summarised at [127] of the decision.

 [127] The test, therefore, to be applied as set out in Part 6 of the Guidelines and the questions to be answered by this Panel is whether Mr          Fajloun’s right shoulder injuries were “caused by the accident” and the approach to that should be a consideration of a medical decision and a non-medical informed judgment as follows:

(a)    could the accident have caused either or both of the labral tears in the right shoulder (medical determination), and

(b)    did the accident in fact cause either or both of the labral tears in the right shoulder (non-medical informed Judgement).

Could the accident have caused either or both of the right shoulder tears? (medical determination)

1. The Panel opined that the mechanism of injury (the tight gripping of the steering wheel while he moved backwards against the collapsing seat and subsequent sliding down in the seat) could have caused either or both of the two tears in the claimant’s right shoulder. They also noted that SLAP tears could be both traumatic and degenerative.

Did the accident in fact cause either or both of the labral tears? (non-medical determination)

The Panel noted the following factors:

1. Except for the right shoulder compliant some 16 years before the accident, the claimant's right shoulder has mostly been asymptomatic.

2. The claimant’s occupation as council worker whilst physical was not hard or strenuous – he mainly was spraying weedkiller, operating a ride on mower, whipper snipping and pruning small trees. The Panel observed that the claimant’s occupation would have made the right shoulder more vulnerable to injury.

3. There was a contemporaneous report of shoulder pain after the accident

4. There was a worsening of shoulder pain after the accident.

The panel determined that the labral tear was caused by the accident.

Takeaway lesson

(a)    MRIs are a more accurate diagnostic tool for labral tears than ultrasound.

(b)    When determining causation, the Panel is required to consider both non-medical and medical factors.

(c)    The claimant’s occupation is a relevant consideration when determining causation.

Causation is important because it determines your eligibility for compensation under the NSW Motor Accident Compensation Scheme.

How to Prove Causation

Proving causation can be challenging, especially if you have a complex or chronic injury that may have multiple causes or factors. To prove causation, you need to provide evidence that supports your claim. This may include:

1. Medical records and reports that document your injury, diagnosis, treatment and prognosis.

2. Details of the occupational and earning history of the claimant

3. Expert opinions from doctors, specialists or other health professionals who can explain how the accident caused or contributed to your injury.

4. Witness statements from people who saw the accident or can testify to your condition before and after the accident.

5. Photographs, videos or other physical evidence that show the scene of the accident or the extent of your injury.

Why You Need a Lawyer

Causation is a complex and contested issue in personal injury law. The insurer may dispute or deny your claim based on causation, or offer you a low settlement that does not reflect the true impact of your injury. To protect your rights and interests, you need a lawyer who can help you prove causation and secure the compensation you deserve.

A lawyer can help you by:

·       Gathering and analysing the evidence that supports your claim.

·       Engaging experts who can provide opinions on causation and the extent of your injury.

·       Negotiating with the insurer on your behalf and advocating for your best interests.

·       Representing you in the PIC Tribunal

If you have been injured in a motor vehicle accident in NSW, contact us today for a free consultation. We have the experience and expertise to help you prove causation and obtain the compensation you need and deserve.