Benderovska v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL

CITATION:

Benderovska v AAI Limited t/as GIO [2025] NSWPICMP 50

CLAIMANT:

Emilija Benderovska

INSURER:

GIO

REVIEW PANEL

MEMBER:

Jeremy Lum

MEDICAL ASSESSOR:

Christopher Canaris

MEDICAL ASSESSOR:

Matthew Jones

DATE OF DECISION:

28 January 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; psychiatric injury; claimant hit by forklift while at work causing adjustment disorder of 4%; subsequent incident at work causing persistent depressive disorder with additional impairment or aggravated motor accident related impairment resulting in total impairment of 22%; whether subsequent impairment causally related to motor accident; State Government Insurance Commission v Oakley principles applied; Held – all impairment causally related to motor accident; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Review Panel assessment of the degree of permanent impairment

Certificate issued under s63(4) of the Motor Accidents Compensation Act 1999

1.     The Review Panel revokes the certificate of Medical Assessor Shen dated 24 August 2023 and issues a new certificate as follows:

(a)    the Review Panel certifies the following injuries were caused by the motor accident:

·         adjustment disorder with mixed anxiety and depressed mood;

·         somatic symptom disorder, and

·         persistent depressive disorder.

2.     The Review Panel finds that the above injuries result in a whole person impairment of 22% which is greater than 10%.

STATEMENT OF REASONS

BACKGROUND

1. Emilija Benderovska (the claimant) was involved in a motor accident on 29 November 2017. She was employed as a warehouse worker at a transport company where she had worked for a number of years. She was at work on the day of the accident, outside the roller-doors of the warehouse checking paperwork for deliveries. As she was walking back into the warehouse, along a yellow pedestrian walkway, she was hit by a forklift.

2. As a result of the motor accident, the claimant says she sustained physical injuries to her head (including brain injury), cervical spine, lumbar spine, right shoulder, right hip, right knee, right foot, right ankle and psychiatric injuries.

3. The claimant returned to work two to three weeks later and was placed on suitable work duties.

4. In August 2018, the claimant was asked by a staff member from her workplace to view a training video which included CCTV footage of her motor accident and titled “Dumb Way to Die”. She stated that she did not view the video and left the workplace on the same day and never returned. She alleges that her psychiatric injuries deteriorated as a result of this event.

5. She made a claim for personal injury benefits with GIO, the third-party insurer of the vehicle that she says caused the accident.

6. A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. Where there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination. 

   [1] Section 131 of the Motor Accidents Compensation Act 1999.

7. Accordingly, the medical dispute was…