Pain & Suffering – A Lost Cause??

How to get over 10% WPI

One of the biggest problems that innocent motor vehicle accident victims have when they bring their claim for compensation for the personal injury and loss that they have suffered as a result of someone else’s negligence, is that all too often they find out that they are not entitled to any amount for pain and suffering.  This is even though they have, very often, suffered very serious injuries including spinal injuries, multiple fractures, broken limbs, scarring and so on.

The reason for that is because the Government has said that before any innocent motor vehicle accident victim is entitled to any amount for pain and suffering they need to be assessed by the Medical Assessment Service (MAS), a division of the Motor Accidents Authority of NSW (MAA), as having greater than 10% whole person impairment (WPI).

Most people think this should be fairly easy to establish.  The problem is that the doctors who assess WPI, are appointed by MAS and are required to apply a set of guides that were developed in America and which were never intended to be used for compensation purposes.  As a result we find that many many clients, often with very serious injuries, are assessed at not having greater than 10% WPI and therefore do not get anything for their pain and suffering.  In fact, in our experience, at least 80% to 90% of all injured motor vehicle accident victims miss out on compensation for pain and suffering altogether!

For many claimants such as students, housewives, retirees and the unemployed, who cannot claim any wage loss, this can often mean that they are left with next to nothing to claim at all.

Consequently it becomes all important in every case to do all that we possibly can to get the client assessed over this 10% WPI threshold.  Our motto when it comes to this is, “If at first we don’t succeed then try, try again.”

A good example of this occurred in a recent case for one of my clients who suffered very serious injuries in a motor vehicle accident many years ago now.  We’ll call him, John.

John was injured as he was riding his motorcycle, during his work, along Old Windsor Road in Sydney when another driver made a right hand turn across his path and there was a collision.  John suffered multiple injuries including a closed head injury, which rendered him unconscious for a time, a fracture of the left elbow and a fracture to the left forearm.  John was admitted to hospital and had a lengthy rehabilitation.  As he was left handed his left arm and elbow injuries caused him particular difficulty.

Because of the injuries he was unable to return to his previous employment as a courier and to give you some idea just how serious the consequences were for him he has received workers compensation payments to date in excess of $300,000.  However, when it came to MAS, he was assessed as having only 10% WPI.  But because he wasn’t assessed as having greater than 10% WPI this meant that he wasn’t entitled to a single solitary cent to compensate him for any of the pain and suffering that he had endured as a result of the serious injuries which he suffered and which he would continue to suffer for the rest of his life.

I, of course, was not taking that lying down and so I brought an application for further assessment.  To my dismay the second MAS Assessor reduced the original assessment from 10% WPI down to 4% WPI!

However, when I looked into the second Assessor’s report in more detail, I realised that he had simply failed to assess a significant component of John’s claim.  Consequently I made an application for review of this assessment by the MAS Review Panel made up of three independent doctors.

Now you could be excused for thinking that this would have been a relatively straight forward application particularly as the insurance company did not dispute that the Assessor had left out an important component of the claim.  However the Review Officer at MAS refused to refer the matter to a Review Panel on the basis that in her opinion, even if all of John’s injuries were assessed, he would still only get to 10% WPI and as that wasn’t enough there was no point in allowing the matter to go further.  Now never mind that this Review Officer didn’t have any medical qualifications at all.  Never mind that she had absolutely no legal qualifications whatsoever.  That didn’t stop her from effectively ruling that John shouldn’t get anything for his pain and suffering! 

Personally I thought that was a travesty of justice and so I appealed to a Judge of the Supreme Court.  Imagine my dismay then when the Judge held that the Review Officer was correct and the matter should not go before the MAS Review Panel because, even though everyone agreed that the second MAS Assessor had left out a very significant part of John’s claim, there was no point because he wouldn’t be assessed at greater than 10% WPI anyway.

Now that really made me mad.  But I wasn’t giving up.  I then appealed to the Court of Appeal consisting of three Judges.  I am pleased to report that finally common sense and justice prevailed and the Court of Appeal overruled both the first Judge and the MAS Review Officer and directed that John’s claim be allowed to be reviewed by the MAS Review Panel.  The Court of Appeal held that it wasn’t a matter for the Review Officer to second guess what a MAS Review Panel might decide.  So far as the Court of Appeal was concerned, just so long as John could show some error by the original Assessor which was capable of altering the percentage of WPI, then that was enough.

To make the victory even sweeter the insurance company was ordered to pay all the court costs in the Supreme Court and the Court of Appeal.  My only regret was that the MAS Review Officer didn’t have to pay them herself.

The matter was then referred back to the Review Officer who, no doubt with her tail well and truly between her legs, now did what she should have done in the beginning and referred the matter to the MAS Review Panel.

This meant that John duly went along to another appointment with the Review Panel and the Panel finally handed down its decision on 18 January 2011 and, guess what?  The Panel found, not only that the previous Assessor had got it wrong, but that John had 11% WPI!  Yes, greater than 10% WPI!  For the very first time, after years and years of battling away, John was finally entitled to some compensation for his pain and suffering.

In this case the difference between 10% WPI and 11% WPI probably means an extra $300,000 to John for compensation for pain and suffering.

I have published details of this case to highlight just how difficult it can be to achieve justice for innocent motor vehicle accident victims particularly when it comes to recovering something for their pain and suffering.

Just to demonstrate what an ass the law is in this area let me tell you something else about John’s case that you will find hard to believe.  I mentioned that he had received over $300,000 in workers compensation payments.  This was because his accident occurred during his work as a motorcycle courier.  Included in that amount was $35,000 for lump sum benefits under Section 66 and 67 for the Workers Compensation Act (WCA) for disability and pain and suffering.

Now I said before that when it comes to assessing John’s WPI under the Motor Accidents Compensation Act (MACA) the law says that the Assessors must use an American guide but when it comes to assessing WPI under the WCA, whilst the Assessors also must use an American guide, they use a different edition.  This often throws up different results.  This means that the same person, having the same injuries assessed for the same accident can, and very often does, have different WPI assessments depending on whether their case is assessed under MACA or WCA.

But the anomalies don’t end there.  At the end of his claim under MACA John will have to repay the workers compensation insurer all the payments he has received including the $35,000 he had received for disability plus pain and suffering at workers compensation.

Now if we hadn’t got John over 10% WPI so that he was entitled to receive compensation for pain and suffering in his claim under MACA he would have had $35,000 deducted for the result in his MACA claim even though he had not actually received any compensation for pain and suffering.  How wrong is that?!  But that is the law in NSW and it happens to innocent victims of motor vehicle accidents all the time.  Fortunately it won’t happen to John because in the end we got him over but it does happen to many and it could happen to you or your spouse or child.

It is wrong, pure and simple and any decent and just parliament would do something about it.