AAI Limited t/as GIO v Hlis - [2023] NSWPICMP 16

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Hlis [2023] NSWPICMP 16
CLAIMANT:	The late Linda Hlis
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Tai-Tak Wan
DATE OF DECISION:	20 January 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury in a motor accident on 17 May 2017; medical dispute under Part 3.4 about whether the motor accident caused permanent impairment greater than 10%; medical assessment done on the papers; only complaint of neck injury more than 2 years after the accident; hospital specifically excluded neck injury; no reasons provided for neck condition nexus with accident; claimant frequently saw treating doctors before and after accident with nil complaint of neck injury; accepted right shoulder injury; neck and shoulder combined more than 10%; Dogon v Redmond & Ors, Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd and Bugat v Fox considered; Held – Panel found no nexus with cervical injury and accident; permanent impairment 10%; previous Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	Medical Assessment – Permanent impairment Review Panel Certificate *Issued under Part 3.4 of the Motor Accidents Compensation Act 1999* following a review under s 63 as to WHETHER THE INJURED PERSON’S DEGREE OF PERMANENT IMPAIRMENT AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE REVIEW PANEL ASSESSMENT UNDER SECTION 63(4) IS AS FOLLOWS: The Panel revokes the certificate dated 11 November 2021 and issues a new certificate The motor accident caused the following injuries to give rise to a permanent impairment which is 10% and IS NOT GREATER THAN 10%: · right shoulder – soft tissue injury The motor accident did not cause the following injuries, and does not give rise to a permanent impairment** · Neck injury–soft tissue

REASONS

BACKGROUND

The late Ms Linda Hlis (the claimant) suffered injury when a motor vehicle struck her when she was moving across a pedestrian crossing on 17 May 2017 in NSW.
AAI Limited t/as GIO (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay the claimant any damages to which she may be entitled under the Motor Accidents Compensation 1999 (the MAC Act).
The parties are in dispute as to whether the motor accident caused injuries with a degree of permanent impairment greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Section 63(7) of the MAC Act.
Permanent impairment is determined by assessment pursuant to Motor Accident Permanent Impairment Guidelines - Version 1, effective from 1 June 2018 (the Guidelines)[2]. The Guidelines are based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4). However, where there is any difference between AMA 4 and the Guidelines, the Guidelines prevail.[3]
[2] Issued pursuant to s 44(1)(c) of the MAC Act and see s 133 of the MAC Act.
[3] Clause 1.2…

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: [2023] NSWPICMP 16
Decision Date: 20 January 2023

CaseChat Overview and Summary

The parties involved in the case were AAI Limited trading as GIO (the defendant) and Hlis (the plaintiff). The dispute centred on a motor accident that occurred on 17 May 2017, where the plaintiff sought compensation for injuries sustained. The matter was dealt with under the Motor Accidents Compensation Act 1999 and involved a medical dispute concerning whether the motor accident caused a permanent impairment greater than 10%. The case was assessed on paper by the court.

The legal issues the court was required to decide were whether the motor accident caused the plaintiff's cervical injury and, if so, whether the combined impairment of the neck and shoulder was more than 10%. The court considered relevant precedents, including Dogon v Redmond & Ors, Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd, and Bugat v Fox, to assist in its determination. The plaintiff had only complained of a neck injury more than two years after the accident, a condition which the hospital had specifically excluded at the time. Furthermore, there were no reasons provided for the nexus between the neck condition and the accident. The plaintiff frequently saw treating doctors before and after the accident with no complaint of neck injury. The plaintiff did, however, accept a right shoulder injury.

The court found that there was no nexus between the cervical injury and the accident, as the plaintiff had not complained of any neck issues at the time of the accident. The court also noted that the combined impairment of the neck and shoulder did not exceed 10%. Consequently, the panel revoked the previous Medical Assessment Certificate. The court's decision was based on the lack of evidence linking the cervical injury to the motor accident and the absence of a combined impairment greater than 10%.

Orders