AAI Ltd t/as AAMI v Shamsirad - [2022] NSWPICMP 284

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Ltd t/as AAMI v Shamsirad [2022] NSWPICMP 284
CLAIMANT:	Hosain Shamsirad
INSURER:	AAI Ltd t/as AAMI
REVIEW PANEL:	Principal Member John Harris Medical Assessor Dr Margaret Gibson Medical Assessor Dr Clive Kenna
DATE OF DECISION:	12 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 7 February 2020 when his vehicle was hit at the back by the insured vehicle; the issue in dispute was whether he suffered a non-minor injury; Held – radiculopathy can occur at any time relying on David v Allianz Australia Insurance Ltd; an analysis of the medical evidence showed the claimant had three signs of radiculopathy in the C6 dermatome noting the treating reports were business records; ASIC v Rich and Hancock v East Coast Timber Products Pty Ltd referred to; findings made that the tear of the right supraspinatus was probably extended from the motor accident; assessment revoked and findings made that the claimant suffered non-minor injuries.

Medical Assessment – Minor injury

Review Panel Assessment of Minor Injury
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate dated 13 November 2021 and issues a new certificate determining that:

Cervical spine injury – right C6 radiculopathy; and
Right shoulder injury - aggravation of supraspinatus tear
Is not a MINOR INJURY for the purposes of the Act.

STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT

REASONS

BACKGROUND

Mr Hosain Shamsirad (the claimant) suffered injury in a motor accident on 7 February 2020 when his vehicle was hit at the back by the insured vehicle.
The insurer insured the owner and driver of the motor vehicle for liability to pay to Mr Shamsirad any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Mr Shamsirad’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Truskett who issued a Medical Assessment Certificate dated 13 November 2021. Medical Assessor Truskett concluded that Mr Shamsirad sustained a number of injuries which are a minor injury for the purposes of the MAI Act and otherwise sustained a right shoulder injury which was classified as a non-minor injury.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to…

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: [2022] NSWPICMP 284
Decision Date: 12 July 2022

CaseChat Overview and Summary

AAI Limited, trading as AAMI, was the defendant in a dispute against Shamsirad, the plaintiff, in relation to a motor accident that occurred on 7 February 2020. Shamsirad's vehicle was struck at the back by a vehicle insured by AAMI. The central issue was whether Shamsirad suffered a non-minor injury from the accident. The case was heard in a court which handled matters related to motor accidents.

The primary legal issue revolved around the determination of whether Shamsirad's injuries were of a non-minor nature. The court had to assess whether the injuries were significant enough to meet the threshold for compensation. This required an analysis of the medical evidence presented, particularly in relation to the diagnosis of radiculopathy and the extent of the injury to the right supraspinatus. The court referenced several precedent cases to aid in its determination.

The court found that radiculopathy could manifest at any time following a motor accident, citing the decision in David v Allianz Australia Insurance Ltd. It examined the medical evidence, identifying three signs of radiculopathy in the C6 dermatome, and noted that the treating reports were considered business records. The court also referenced ASIC v Rich and Hancock v East Coast Timber Products Pty Ltd to support its findings. It determined that the tear of the right supraspinatus was likely a result of the motor accident. Consequently, the assessment was revoked, and the court made a finding that Shamsirad had suffered non-minor injuries.

The court's decision resulted in the revocation of the previous assessment and the establishment of findings that Shamsirad suffered non-minor injuries. This ruling likely affects the compensation to which Shamsirad is entitled.

Orders