Aleksic v AAI Limited t/as GIO - [2022] NSWPICMP 417

DETERMINATION OF REVIEW PANEL
CITATION:	Aleksic v AAI Limited t/as GIO [2022] NSWPICMP 417
CLAIMANT:	Katica Aleksic
INSURER:	AAI Limited t/as GIO
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Dr Drew Dixon
MEDICAL ASSESSOR:	Dr Shane Moloney
DATE OF DECISION:	21 October 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 1 February 2020 when the insured vehicle collided into the passenger side of the claimant’s vehicle (the motor accident); the claimant suffered a further injury on 24 February 2020 when a kangaroo collided with the claimant’s vehicle; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 in the motor accident; claimant bore the onus of proof in establishing that the injuries were not a minor injury; Briggs v IAG Ltd (No 2) referred to; the Panel concluded that the claimant suffered a minor injury; there was no radiculopathy in either the upper or lower limbs as defined by the Motor Accident Guidelines (Guidelines); the right knee complaint was not radiculopathy and represented longstanding pathology associated with prior knee replacement; the reference to hand numbness and upper arm pain did not satisfy the meaning of radiculopathy in Clause 5.8 of the Guidelines as it did not describe symptoms in a specific dermatome; the pathology in the cervical spine showed longstanding degenerative changes; it was unlikely that the motor accident caused injury to the nerves or partial tearing of the tendons, ligaments, menisci or cartilage; original assessment confirmed; findings made that claimant sustained a minor injury to the cervical and lumbar spines; Held – Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	The Review Panel confirms the certificate dated 6 April 2022.

REASONS

BACKGROUND

Ms Katica Aleksic (the claimant) suffered injury in a motor accident on 1 February 2020 when the insured vehicle collided with the passenger side of the claimant’s vehicle (the motor accident).
The claimant also suffered injury in a subsequent motor vehicle accident on
24 February 2020 when a kangaroo collided with the claimant’s vehicle (the subsequent motor accident).
The Review Panel has been constituted to determine the medical dispute of minor injury for both the motor accident and the subsequent motor accident.
AAI Ltd (GIO) insured the owner and driver of the other motor vehicle for liability to pay Ms Aleksic any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident. QBE is the insurer liable for the subsequent motor accident.
The issue presently in dispute is whether Ms Aleksic’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…

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 417
Decision Date: 21 October 2022

CaseChat Overview and Summary

The case of Aleksic v AAI Limited t/as GIO involves a dispute over the nature of injuries sustained by the claimant in two separate incidents. Firstly, on 1 February 2020, the claimant was involved in a motor accident where their vehicle was struck on the passenger side by an insured vehicle. The second incident occurred on 24 February 2020, when a kangaroo collided with the claimant's vehicle. The central issue before the court was whether the claimant had suffered a non-minor injury as defined under the Motor Accident Injuries Act 2017, specifically in relation to the motor accident on 1 February 2020.

The court had to determine if the claimant had met the burden of proving that their injuries were not minor. This required a careful examination of the medical evidence and the interpretation of what constitutes a non-minor injury according to the Motor Accident Guidelines. The Panel, in reaching their decision, referred to the case of Briggs v IAG Ltd (No 2), which provided guidance on the application of the guidelines. The Panel concluded that the claimant had suffered a minor injury, finding that the symptoms described did not meet the criteria for a non-minor injury.

In their reasoning, the Panel noted that there was no evidence of radiculopathy in either the upper or lower limbs, as defined in the Motor Accident Guidelines. The claimant's right knee complaint was identified as longstanding pathology related to a prior knee replacement, rather than a new injury. Additionally, the symptoms of hand numbness and upper arm pain did not meet the definition of radiculopathy, as they were not confined to a specific dermatome. The court also found that the degenerative changes in the cervical spine were longstanding and unlikely to have been caused by the motor accident. As a result, the Panel upheld the original medical assessment that the claimant sustained a minor injury to the cervical and lumbar spines.

The court confirmed the Medical Assessment Certificate, affirming that the claimant had indeed suffered a minor injury within the meaning of the Motor Accident Injuries Act 2017.

Orders