Beydoun v AAI Ltd t/as GIO - [2022] NSWPICMP 65

DETERMINATION OF REVIEW PANEL
CITATION:	Beydoun v AAI Ltd t/as GIO [2022] NSWPICMP 65
CLAIMANT:	Batoul Beydoun
INSURER:	AAI Ltd t/as GIO
REVIEW PANEL:	Principal Member John Harris Dr Neil Berry Dr Margaret Gibson
DATE OF DECISION:	25 March 2022
CATCHWORDS:	MOTOR ACCIDENTS- The claimant was involved in a motor accident on 31 May 2016 when she sustained an injury to the lumbar spine; an MRI scan in May 2017 showed a disc lesion at L5/S1; the claimant underwent a discectomy in April 2019; Held- the disc lesion was not caused by the motor accident; the contemporaneous notes of the general practitioner record no neurological signs which did not arise until at least 12 months after the accident; the absence of contemporaneous neurological signs was confirmed by the claimant to the Medical Assessor and consistent with the history provided to Dr Conrad in April 2017; the conclusion that that there was no disc injury was consistent with the opinion of Dr McIntosh based on the minor impact in the motor accident; the doctors who opined that the disc injury was caused by the motor accident was based on a history of contemporary neurological symptoms; those opinions were not based on a fair climate; Paric v John Holland (Constructions) Pty Ltd applied; finding made that the claimant suffered a soft tissue injury to the lumbar spine causing non-uniform range of motion; claimant assessed at 5% impairment; original assessment confirmed.
DETERMINATIONS MADE:	The Panel confirms the certificate dated 4 July 2021.

REASONS

BACKGROUND

Ms Batoul Bedoun (the claimant) was involved in a motor accident on 31 May 2016 when another motor vehicle collided with the rear of her vehicle (the motor accident). Ms Beydoun was sitting in the front passenger seat in a motor vehicle driven by her husband.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Ms Beydoun 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 a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC 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 the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined…

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 65
Decision Date: 25 March 2022

CaseChat Overview and Summary

Beydoun was involved in a motor accident on 31 May 2016, which resulted in an injury to her lumbar spine. An MRI scan conducted in May 2017 revealed a disc lesion at L5/S1. Subsequently, Beydoun underwent a discectomy in April 2019. She sought compensation from AAI Ltd, trading as GIO, for the injuries sustained in the accident. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the disc lesion was caused by the motor accident or some other event. This involved assessing the medical evidence provided by the parties, particularly focusing on the contemporaneous notes of Beydoun's general practitioner, the history of neurological symptoms, and the opinions of various medical experts. The key issue was the timeline of the onset of neurological symptoms and whether they were present immediately after the accident or developed later.

The court concluded that the disc lesion was not caused by the motor accident. The contemporaneous notes of Beydoun's general practitioner indicated no neurological signs, which only appeared at least 12 months after the accident. This absence of immediate neurological signs was corroborated by Beydoun's statements to the Medical Assessor and consistent with her history provided to Dr Conrad in April 2017. The court found that the opinion of Dr McIntosh, who considered the minor impact of the accident, supported the conclusion that there was no disc injury. The medical opinions asserting that the disc injury was caused by the accident were deemed to be based on a history of contemporary neurological symptoms, which the court found to be unreliable. The decision in Paric v John Holland (Constructions) Pty Ltd was applied, emphasising the importance of a fair assessment of the medical evidence. The court ultimately found that Beydoun suffered a soft tissue injury to the lumbar spine causing non-uniform range of motion and assessed her at 5% impairment, confirming the original assessment.

The court upheld the original assessment of Beydoun's impairment, finding that she suffered a soft tissue injury to the lumbar spine causing non-uniform range of motion, and assessed her impairment at 5%. The decision confirmed the original assessment made by the relevant authorities.

Orders