Allianz Australia Insurance Ltd v Argyle - [2022] NSWPICMP 109

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Ltd v Argyle [2022] NSWPICMP 109
CLAIMANT:	Gregory Argyle
INSURER:	Allianz Australia Insurance Ltd
REVIEW PANEL:	Principal Member John Harris Dr Geoffrey Stubbs Dr Margaret Gibson
DATE OF DECISION:	10 May 2022
CATCHWORDS:	MOTOR ACCIDENTS- The claimant was involved in a motor accident on 2 February 2016 when he sustained various soft tissue injuries; Held- The claimant suffered soft tissue injuries to the cervical and thoracic spines; on reassessment by both Medical Assessors there was nil impairment of these body parts; the Panel was not satisfied that there was injury to the lumbar spine due to the absence of contemporaneous notes, the absence of allegation of injury by the claimant in 2016 and 2017, the underlying degenerative problems and the problems caused by the underlying polyneuropathy; the description of the mechanism of the injury did not suggest traumatic insult to the shoulders. Any initial shoulder symptoms were caused by referred pain from the cervical and/or thoracic spines; the current shoulder problems were due to progression of adhesive capsulitis caused by poorly controlled diabetes; Panel was not prepared to accept that there was any restriction of movement in the shoulder was caused by the motor accident; claimant assessed at 0% whole person impairment; original assessment revoked.
DETERMINATIONS MADE:	The Panel revokes the certificate dated 16 March 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%: · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury; · left shoulder – referred pain - Nguyen principle, and · right shoulder – referred pain - Nguyen principle.

BACKGROUND

Mr Gregory Argyle (the claimant) suffered injury in a motor accident on 2 February 2016 when a vehicle travelling in the opposite direction made an illegal right-hand turn and collided with the claimant’s vehicle.
Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay to Mr Argyle any damages under the Motor Accidents Compensation 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the Act.[1]
[1] See ss 57 and 58 of the MAC Act.
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.[2]
[2] Clause 1.2 of…

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 109
Decision Date: 10 May 2022

CaseChat Overview and Summary

Allianz Australia Insurance Ltd v Argyle involved a claimant who had been involved in a motor accident on 2 February 2016 and subsequently sustained various soft tissue injuries. The case was heard in a relevant Australian court, where the primary focus was to determine the extent of the injuries sustained and their impact on the claimant. The dispute centred on the nature and severity of the injuries, as well as their connection to the motor accident.

The legal issues the court had to decide included whether the claimant had sustained soft tissue injuries to the cervical and thoracic spines, the lumbar spine, and the shoulders, as well as the extent of any impairment resulting from these injuries. Additionally, the court needed to assess whether any impairments were caused by the motor accident or by other underlying conditions, such as polyneuropathy and diabetes.

The court examined the evidence provided by medical assessors, who reassessed the claimant's condition. The assessors found that there was no impairment of the cervical and thoracic spines. The court also noted that the claimant had not alleged injury to the lumbar spine in 2016 and 2017, and the absence of contemporaneous notes further complicated the claim. The underlying degenerative problems and polyneuropathy, as well as the progression of adhesive capsulitis due to poorly controlled diabetes, were significant factors in the court's reasoning. The mechanism of the injury did not suggest a traumatic insult to the shoulders, and any initial symptoms were attributed to referred pain from the cervical and thoracic spines. Consequently, the court concluded that there was no restriction of movement in the shoulder caused by the motor accident. The claimant was assessed at 0% whole person impairment, and the original assessment was revoked.

The final orders of the court reflected the determination that the claimant had not sustained significant impairments from the motor accident, and the insurance company was directed to adjust the claimant's assessment accordingly.

Orders