AAI Limited t/as AAMI v Burns - [2024] NSWPICMP 323

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Burns [2024] NSWPICMP 323
CLAIMANT:	Christopher Burns
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	22 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant was injured in a motor accident on 3 February 2019; medical dispute review under section 7.26 about whether the motor accident caused whole person impairment (WPI) greater than 10%; Medical Assessor (MA) found accident did not injure left hip; examined and assessed the claimant’s scarring and range of motion in left leg at 25% permanent impairment including left hip injury range of motion; insurer alleged error because MA did not consider the neuropathy and use of walking stick before the accident; Panel re-examined claimant; considered healthy before accident; lack of documentary evidence to calculate pre-accident permanent impairment; no deduction; Held – claimant reassessed at 29% permanent impairment; different outcome for body parts; previous certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel Assessment of Degree of Permanent Impairment Replacement Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 9 November 2023 and issues a new certificate determining that: (a) the motor accident caused the following injuries which give rise to a permanent impairment of 29% that IS GREATER THAN 10%: (i) left knee – knee and leg injury, and consequential left hip stiffness (ii) skin/scarring. (b) The motor accident caused the following injuries which have resolved and do not result in permanent impairment: (i) left ankle injury; (ii) lumbar spine injury, and (iii) right wrist injury. (c) The motor accident did not cause the following injuries: (i) right hip – injury/pain, and (ii) left hip – injury/pain.

REASONS

BACKGROUND

This is a permanent impairment dispute under the Motor Accidents Injuries Act 2017 (MAI Act).
Mr Burns (the claimant) was riding his motor tricycle on the afternoon 3 February 2019. He was riding in the front of his group of friends, who were riding motorbikes.
He entered a roundabout and a car pulled across in front of him. Mr Burns took evasive action and hit the median strip and then guardrails. He sustained immediate pain in his left leg. An ambulance took him to Port Macquarie Base Hospital. The doctors diagnosed a left femur fracture, which required surgery to place a rod in the femur. There was a complicated path to recovery as the claimant’s surgical wound became infected, leading to osteomyelitis. He required further operations and considerable follow-up for treatment and rehabilitation.
Mr Burns had a significant medical history before the accident, which must be considered when assessing the permanent impairment for any injuries this accident caused. A more detailed clinical history is set out in the re-examination report below.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages and statutory compensation.
The insurer disputed Mr…

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: [2024] NSWPICMP 323
Decision Date: 22 May 2024

CaseChat Overview and Summary

In the case of AAI Limited trading as AAMI v Burns, the claimant sought compensation for injuries sustained in a motor accident on 3 February 2019. The dispute centred on whether the motor accident caused whole person impairment (WPI) greater than 10%, as required under the Motor Accident Injuries Act 2017. The Court of Appeal was tasked with reviewing a medical dispute about the extent of the claimant's injuries, particularly concerning the left hip and leg.

The legal issues before the court were whether the Medical Assessor (MA) correctly assessed the claimant's pre-existing conditions and the impact of the motor accident on the claimant's condition. The insurer argued that the MA had erred by not considering the claimant's neuropathy and use of a walking stick before the accident, and thus did not accurately determine the extent of impairment resulting from the accident. The court needed to determine if the MA's assessment was flawed and whether the claimant's WPI was greater than 10%.

The court found that the MA had indeed made an error by not considering the claimant's pre-accident condition, including the neuropathy and use of the walking stick. Upon re-examining the claimant, the panel concluded that the claimant was in good health before the accident, and there was insufficient documentary evidence to calculate the pre-accident permanent impairment. Consequently, the claimant was reassessed at 29% permanent impairment, which was a different outcome for certain body parts. As a result, the previous certificate was revoked.

This decision underscores the importance of a thorough medical assessment that considers all relevant factors, including pre-existing conditions, when determining the impact of a motor accident on a claimant's impairment. The court's ruling highlights the necessity for accurate and comprehensive evaluations to ensure fair compensation outcomes.

Orders