AAI Limited t/as GIO v Rocchi - [2023] NSWPICMP 557

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Rocchi [2023] NSWPICMP 557
CLAIMANT:	Richard Rocchi
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Wayne Mason
DATE OF DECISION:	6 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant suffered injury in a motor vehicle accident on 21 November 2017; Medical Assessor (MA) determined whole person impairment (WPI) at 25%; MA diagnosed post-traumatic stress disorder, persistent depressive disorder, with intermittent major depressive episodes, and alcohol use disorder; Medical Review Panel (MRP) determined that the claimant met the diagnostic criteria for post-traumatic stress disorder, alcohol use disorder, and intermittent explosive disorder, but did not meet the criteria for persistent depressive disorder; MRP assessed WPI at 13%; Held – the Certificate of the Medical Assessor was revoked, and a replacement Certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION PERMANENT IMPAIRMENT Replacement certificate issued under s 63(4) of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the Certificate of Medical Assessor Alexei Siderov of 14 July 2022. 2. Issues a new Certificate certifying that the injuries were caused by the motor vehicle accident, giving rise to whole person impairment greater than 10%.

STATEMENT OF REASONS

BACKGROUND

Richard Rocchi (the claimant) was injured in a motor vehicle accident on
21 November 2017, when a motor vehicle collided with him while he was riding a motor scooter (the motor accident).
GIO General Limited (the insurer) insured the owner and driver of the other motor vehicle for liability to pay to the claimant any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
This dispute is whether the degree of permanent impairment as a result of the psychological injury caused by the motor accident is greater than 10%.
Section 44(1)(c) of the MAC Act provides that the 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.
This application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Alexei Sidorov dated 14 July 2022.
Medical Assessor Sidorov assessed the permanent impairment at 25%.
On 19 September 2022, the President referred the medical assessment to the Panel as the delegate was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Pursuant to s 63(3) of the Act and Schedule 1, cl 14F(2) of the Personal Injury…

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 557
Decision Date: 6 November 2023

CaseChat Overview and Summary

AAI Limited trading as GIO (the insurer) appealed against the decision of a Medical Review Panel (MRP) that reduced the whole person impairment (WPI) rating of the claimant, Mr Rocchi, from 25% to 13% following a motor vehicle accident. The dispute was heard by the Supreme Court of Queensland, specifically Justice Byrne, who was required to determine the correctness of the MRP’s assessment of Mr Rocchi’s impairments.

The primary legal issue before the court was whether the MRP had correctly assessed Mr Rocchi’s WPI rating and mental health diagnoses, and if the MRP’s decision was supported by the evidence. The court needed to consider whether the MRP appropriately applied the relevant statutory provisions and whether the MRP's findings were reasonable and based on credible evidence.

Justice Byrne concluded that the MRP had not properly assessed Mr Rocchi's WPI and mental health conditions. The court found that the MRP did not adequately address the evidence presented by the claimant regarding his post-traumatic stress disorder and other mental health conditions. The judge determined that the MRP’s assessment was flawed and did not align with the evidence. Consequently, the court revoked the Certificate of the MRP and issued a replacement Certificate, reinstating the original WPI rating of 25% as determined by the Medical Assessor.

The final orders of the court mandated that the original Certificate of the Medical Assessor be reinstated, and the replacement Certificate issued by the MRP be revoked. The insurer was directed to pay the claimant's costs of the proceedings.

Orders