AAI Limited t/as AAMI v Free - [2024] NSWPICMP 430

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Free [2024] NSWPICMP 430
CLAIMANT:	Gabrielle Free
INSURER:	AAI Ltd t/as AAMI
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Tania Rogers
DATE OF DECISION:	3 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant struck by vehicle in carpark and thrown; assessment of permanent impairment; claimant alleged impairment of multiple body parts; consideration of medical records; absence of complaint of some body parts in contemporaneous records; omission of injury of some body parts in claim form; AAI Ltd v McGiffen and Bugat v Fox referred to; examination by Medical Assessors and extensive review of radiology; findings made that some body parts recovered based on records and nature of injuries; other body parts, except right shoulder, had no rateable assessment; Held – claimant assessed at 4% permanent impairment due to right shoulder; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The assessment made by the review panel under s 63(4) is as follows: 1. The Review Panel revokes the medical assessment certificate of Medical Assessor Dixon dated 30 October 2023 and issues a new certificate that the following injuries caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%: · right shoulder injury; · cervical spine; · lumbar spine, and · knees (resolved).

REASONS

BACKGROUND

Ms Gabrielle Free (the claimant) suffered injury in a motor accident on 25 February 2013. The claimant was walking across a pedestrian crossing at a shopping centre carpark when she was struck by the insured vehicle.[1]
[1] Claimant’s bundle, p 42.
AAI Ltd (the insurer) is liable to pay Ms Free any damages under the Motor Accidents Compensation 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this…

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 430
Decision Date: 3 July 2024

CaseChat Overview and Summary

The case of AAI Limited trading as AAMI versus Free involved an assessment of permanent impairment following an incident where Free was struck by a vehicle in a car park and subsequently thrown. The dispute was heard in the Queensland Civil and Administrative Tribunal. Free alleged impairment to multiple body parts, while AAMI argued against the assessment of some of these claims.

The primary legal issue before the Tribunal was whether Free had suffered permanent impairment to the extent claimed and, if so, what the appropriate assessment of that impairment was. This involved a detailed examination of Free's medical records, the contemporaneous documentation of his injuries, and the completeness of the information provided in his claim form. AAMI questioned the validity of some of the alleged impairments, particularly those not documented contemporaneously or included in the claim form.

The Tribunal conducted an extensive review of the medical evidence, including an examination by Medical Assessors and analysis of radiology results. It found that some of the body parts for which Free claimed impairment had recovered based on the nature of the injuries and the medical records. However, apart from the right shoulder, the Tribunal determined that no other body parts had a rateable assessment. The Tribunal revoked the Medical Assessment Certificate for all body parts except the right shoulder, which resulted in a 4% permanent impairment assessment. The Tribunal concluded that the correct assessment was a 4% permanent impairment due to the right shoulder.

The Tribunal ordered the revocation of the Medical Assessment Certificate for all body parts except the right shoulder, which resulted in a 4% permanent impairment assessment. The Tribunal further directed that the parties were to bear their own costs of the proceedings.

Orders