AAI Limited t/as GIO v Ryan - [2023] NSWPICMP 44

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Ryan [2023] NSWPICMP 44
CLAIMANT:	Thomas Ryan
INSURER:	AAI Ltd t/as GIO
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Clive Kenna
DATE OF DECISION:	15 February 2023
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 15 September 2017 whilst riding a bicycle when he was struck by the insured vehicle and thrown on to the kerb of the road; the medical dispute concerned whether the degree of impairment of the injury caused by the motor accident was greater than 10%; the claimant had ongoing dysmetria in the cervical spine and assessed at 5% consistent with previous assessments in the matter; the claimant underwent a left shoulder arthroscopic lateral clavicle excision and minimal subacromial decompression bursectomy; the claimant was assessed by the Medical Assessor (MA) on the Panel at 7% for loss of range of motion of the shoulder; the claimant contended that an allowance for resection under Table 27 of American Medical Association’s Guides to the Evaluation of Permanent Impairment 4^th Edition (AMA 4) should also be included; clause 1.65 of the Motor Accident Permanent Impairment Guidelines Version 1 (Effective from 1 June 2018) provides that section 3.1M of AMA 4 (pages 58-64 which contains Table 27) “should be rarely used in the context of motor accident injuries” and that the MA “must take care to avoid duplication of impairments”; section 3.1m of AMA 4 noted that “impairments from the disorders considered in this section are usually estimated by using other criteria”; clause 1.65 is consistent with the note in section 3.1m of AMA 4; an assessment in this matter which included an allowance for both the resection and the assessable loss of range of movement would involve a “duplication of impairments” given the extent of the loss of range of motion; no allowance made for the resection; Held – claimant assessed at 5% permanent impairment in respect of the cervical spine and 7% for the left shoulder; original assessment confirmed.
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/NOT GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: The Panel confirms the certificate of Medical Assessor Home dated 1 March 2022 that the permanent impairment caused by the motor accident is greater than 10%.

REASONS

BACKGROUND

Mr Thomas Ryan (the claimant) was injured in a motor accident on 15 September 2017 whilst riding a bicycle when he was struck by the insured vehicle and thrown on to the kerb of the road.[1]
[1] Insurer’s bundle, p 27.
The insurer insured the owner and driver of the vehicle for liability to pay Mr Ryan any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as…

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 44
Decision Date: 15 February 2023

CaseChat Overview and Summary

The case of AAI Limited trading as GIO versus Ryan involved a claim for permanent impairment arising from a motor accident. The claimant, Ryan, was struck by an insured vehicle while riding a bicycle on 15 September 2017. He was thrown onto the kerb and suffered injuries that led to a dispute over the degree of impairment, specifically whether it exceeded 10%. Ryan had ongoing dysmetria in the cervical spine, which was consistently assessed at 5%. He also underwent surgery for his left shoulder, leading to further assessments for loss of range of motion. Ryan argued that an allowance for the resection should be included under Table 27 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th Edition (AMA 4).

The court had to decide whether the Medical Assessor (MA) was correct in not including an allowance for the resection in the impairment assessment. Ryan contended that the AMA 4 should be used to calculate the impairment, but the MA had not done so, instead adhering to the Motor Accident Permanent Impairment Guidelines Version 1. The court needed to consider the interaction between these guidelines and the AMA 4, particularly clause 1.65, which advises against using Table 27 in the context of motor accident injuries to avoid duplication of impairments. The court also had to consider whether the MA's decision to exclude the resection allowance was consistent with the need to avoid duplication of impairments as noted in section 3.1M of the AMA 4.

The court found that the MA's assessment was consistent with the relevant guidelines and the AMA 4. It held that the MA had correctly avoided duplication of impairments by not including an allowance for the resection. The claimant's cervical spine was assessed at 5% impairment, and the left shoulder was assessed at 7% for loss of range of motion. The court confirmed the original assessment, rejecting Ryan's argument for including the resection allowance.

The court's decision was that the claimant's assessment remained at 5% for the cervical spine and 7% for the left shoulder. The MA's original assessment was upheld, and Ryan's contention regarding the inclusion of the resection allowance was rejected.

Orders