AAI Limited t/as GIO v Hawach - [2024] NSWPICMP 348

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Hawach [2024] NSWPICMP 348
CLAIMANT:	Abdallah Hawach
INSURER:	AAI Ltd t/as GIO
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Geoffrey Stubbs
DATE OF DECISION:	30 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; accident in July 2019; T-bone impact; absence of contemporaneous complaint of right knee injury; no report in claim form of right knee injury; Bugat v Fox referred to; claimant re-examined; present findings of restriction of symmetrical movement in lumbar and cervical spine not assessable; assessment of shoulders; inconsistent movements in examination before Medical Assessor; loss of range of movement not explicable based on minor pathology; motor accident did not cause left shoulder injury; initial shoulder complaints probably referred neck pain; Panel did not accept any assessable impairment of shoulders; Held – medical assessment revoked; claimant assessed at 0% impairment.
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 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017* IS AS FOLLOWS:** 1. The Panel revokes the Medical Assessment Certificate dated 21 December 2023 and certifies that the following injuries caused by the motor accident does not give rise to a permanent impairment greater than 10%: · cervical spine, and · lumbar spine.

REASONS

BACKGROUND

On 3 July 2019 Mr Abdallah Hawach (the claimant) was injured whilst driving his motor vehicle. The insured driver failed to give way at a stop sign and collided with the claimant’s vehicle in a T-boned impact.[1]
[1] Claimant’s bundle, p 25, p 129.
AAI Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Hawach any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute 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 MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Herald and dated 21 December 2023 (the medical assessment…

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 348
Decision Date: 30 May 2024

CaseChat Overview and Summary

In the matter of AAI Limited t/as GIO versus Hawach, the dispute centred around the claimant's injuries sustained in a motor accident in July 2019, specifically a T-bone impact. The claimant had not contemporaneously complained of a right knee injury, nor had the injury been reported in the claim form. The dispute involved the assessment of the claimant's injuries and the subsequent determination of the impairment rating under the Motor Accident Injuries Act 2017.

The legal issues before the court were whether the claimant had sustained an assessable impairment from the motor accident, particularly regarding the right knee injury and the left shoulder injury. The court needed to determine if the claimant's findings of restriction of symmetrical movement in the lumbar and cervical spine, and the assessment of the shoulders, were attributable to the accident. The court also had to consider the consistency of the claimant's complaints and examination findings before the Medical Assessor.

The court examined the evidence, including the reference to Bugat v Fox, and re-examined the claimant. It found that the present findings of restriction of symmetrical movement in the lumbar and cervical spine were not assessable. Regarding the shoulders, the court noted inconsistencies in the claimant's examination before the Medical Assessor and determined that the loss of range of movement was not explicable based on the minor pathology found. The court concluded that the motor accident did not cause the left shoulder injury, and the initial shoulder complaints were likely referred neck pain. The Panel did not accept any assessable impairment of the shoulders. Consequently, the court revoked the medical assessment and assessed the claimant at 0% impairment.

The court ordered that the medical assessment be revoked and the claimant be assessed at 0% impairment. The claimant's claim for compensation was thus significantly reduced based on the findings of the court.

Orders