AAI Limited t/as GIO v Ellis - [2024] NSWPICMP 159

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Ellis [2024] NSWPICMP 159
CLAIMANT:	Sean Ellis
INSURER:	GIO Insurance Ltd
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	15 March 2024
CATCHWORDS:	MOTOR ACCIDENTS – Claimant was riding his bicycle on when a car pulled out from a driveway hitting his bicycle; he sustained fractures to his cervical spine and left wrist; Held – original medical certificate which found 12% whole person impairment (WPI) injuries caused by the motor accident to the claimant’s spine and wrist affirmed; on review, the Panel found that the injuries to the claimant’s cervical spine and left wrist were caused by the motor accident; claimant assessed at 5% WPI arising from injury to the cervical spine consistent with DRE cervicothoracic category II; claimant assessed at 7% WPI arising from injury to the left wrist; total permanent impairment assessed at 12% WPI; claimant had a significant past history of injury and disability following an assault in 2009 where he fell off a roof and injured his back.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate of Medical Assessor Adam Rappaport dated 21 March 2023 regarding permanent impairment.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 26 October 2019 Sean Ellis (the claimant) was riding his bicycle on Great Western Hwy Kingswood when a car pulled out from a driveway hitting his bicycle. He was knocked off his bicycle and injured.
In his personal injury claim form Mr Ellis says that as a result of the accident he sustained injuries to his neck and left arm. He also says that the car ran over him as he hit the road. After the accident he was taken to Nepean Hospital.[1]
[1] Insurer’s bundle p 10.
In an application dated 1 December 2021 Mr Ellis has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).[2]
[2] Insurer’s bundle p 15
GIO Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Ellis under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Ellis as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
The dispute as to permanent impairment and assessment of treatment and care was referred to Medical Assessor Rappaport. He assessed Mr Ellis on 21 March 2023 and issued a certificate dated 21 March 2023.
Medical Assessor Rappaport assessed the degree of…

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 159
Decision Date: 15 March 2024

CaseChat Overview and Summary

The case of AAI Limited t/as GIO v Ellis involved a claimant who sustained injuries from a motor accident while riding his bicycle. The claimant was hit by a car pulling out of a driveway, resulting in fractures to his cervical spine and left wrist. The insurance company, AAI Limited trading as GIO, contested the claimant's assessment of impairment and sought to review the initial medical certificate which found 12% whole person impairment (WPI) resulting from the accident. The dispute was heard in the court, which had to decide whether the injuries sustained in the motor accident were indeed responsible for the WPI found.

The court had to address whether the injuries to the claimant's cervical spine and left wrist were directly caused by the motor accident, and if so, to what extent they contributed to the overall WPI. Additionally, the court needed to consider the claimant's pre-existing conditions and history of injuries, including a significant past injury from an assault in 2009, to determine the extent of impairment attributable to the motor accident. The post-accident medical evidence, including CT scans and specialist reports, played a crucial role in the court's assessment.

In its decision, the court reviewed the medical evidence and found that the injuries to the claimant's cervical spine and left wrist were indeed caused by the motor accident. The Panel affirmed the original medical certificate's findings and concluded that the claimant had a 5% WPI from the cervical spine injury and 7% WPI from the left wrist injury, totalling 12% WPI. The court acknowledged the claimant's history of past injuries but determined that the current assessment of impairment was consistent with the injuries sustained in the motor accident. The court thus upheld the original assessment of 12% WPI.

The final orders of the court confirmed that the claimant was entitled to the 12% WPI assessment as a result of the motor accident, and the insurance company was required to compensate accordingly. The court's decision highlighted the importance of considering both the immediate injuries and the claimant's medical history in determining the extent of impairment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Post-accident treating medical evidence The claimant was taken by ambulance to Nepean Hospital shortly after the accident. The hospital notes show that he stayed in hospital for some days. At the hospital a CT scan of the cervical spine showed teardrop fractures at the inferior end plates of C3/C4 vertebra and small avulsion fracture to the spinous process of the C4 and 5 vertebra. The claimant was discharged later that day with his left arm immobilised in a temporary splint. Mr Ellis had a comminuted left wrist open fracture of the distal radius requiring open reduction and internal fixation. The claimant was advised to return to hospital after further imaging identified a fracture of the C3 and C4 in addition to a partial tear to the anterior longitudinal ligament. There was also a fracture of T4 spinous process with oedema. Further details of the claimant’s treatment after the subject motor accident are also referred to in other parts of these reasons. Dr Mohammed Assem, rehabilitation specialist There is a medical report from Dr Assem dated 2 June 2021.[14] [14] Insurer’s bundle p 270. In the report Dr Assem notes that in 1984, the claimant was involved in a motor vehicle accident, sustaining an injury to his right foot. In 2009, he fell off a roof sustaining a fracture to the L3 vertebra. He was able to return to work as a boilermaker despite persistent low back discomfort until 2017 when he was physically assaulted causing an aggravation of his lower back discomfort. He required a lumbar fusion that was complicated by urinary incontinence. He was subsequently placed on a disability support pension but continued to complete odd jobs as a welder and boilermaker. After the subject motor accident Dr Assem notes that the claimant was taken to Nepean Hospital where a CT scan of the cervical spine showed teardrop fractures at the inferior end plates of C3/C4 vertebra and small avulsion fracture to the spinous process of the C4 and 5 vertebra. He was discharged later that day with his left arm immobilised in a temporary splint. The claimant was again advised to return to hospital after further imaging identified a fracture of the C3 and C4 in addition to a partial tear to the anterior longitudinal ligament. There was also a fracture of T4 spinous process with oedema. On examination of the claimant’s cervical spine Dr Assem found as follows: 16.“There was mild tenderness while palpating the spinous process of the cervical vertebra. There was no muscle guarding or spasm. He demonstrated a normal range of cervical movement in flexion, extension, lateral flexion and rotation with pain at the end of range.” Dr Assem’s diagnosis is as follows. Cervical spine – fractured C4-C5 spinous process, partial tear to the anterior longitudinal ligament with possible left C6 radiculopathy. Thoracic spine – fractured T4 vertebra. Left wrist – open fracture distal radius requiring open reduction and internal fixation. Professor Ian Cameron, rehabilitation physician

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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