Bno v AAI Limited t-as AAMI - [2023] NSWPICMP 621

DETERMINATION OF REVIEW PANEL

CITATION: BNO v AAI Limited t-as AAMI [2023] NSWPICMP 621

CLAIMANT: BNO

INSURER: AAI Limited t/as AAMI

REVIEW PANEL

MEMBER: Terence Stern OAM

MEDICAL ASSESSOR: Margaret Gibson

MEDICAL ASSESSOR: Phillip Truskett

DATE OF DECISION: 29 November 2023

CATCHWORDS:
MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute with respect to the degree of whole person impairment (WPI); review of assessment by Review Panel; Medical Assessor (MA) had assessed an annular tear of the intervertebral lumbar disc as not caused by the motor accident; causation disputed; MA had assessed an injury to the left shoulder as giving rise to 7% WPI; Review Panel determined that on clinical examination of the lumbar spine, there was no paravertebral muscle guarding, no wasting of the muscle of the lower limbs, and a full range of back movement, with a result that there was zero WPI for this area; there was no evidence of a sudden traumatic annular tear of the intervertebral lumbar disc having been caused by the accident; principles to be applied in respect of causation considered; section 5D Civil Liability Act 2002 applied; Peet v NRMA Insurance Limited and Wallace v Kam applied; Held – certificate of MA Rapaport revoked.

DETERMINATIONS MADE:
CERTIFICATE OF DETERMINATION

Replacement Certificate issued under s 7.23 of the Motor Accidents Injuries Act 2017

1.     The Review Panel revokes the Certificate of Medical Assessor Adam Rapaport of
7 May 2023.

2.     The Review Panel certifies that the claimant’s injury resulted in whole person impairment of 1%.

STATEMENT OF REASONS
INTRODUCTION
Background
1.BNO (the claimant) was born in September 1993.
2.On 10 February 2019 (the accident), at about 10:30am, he was injured in the accident.
3.At the time, he was the driver of an old (2001) Toyota Corolla, when another vehicle collided with the vehicle he was driving, striking the driver’s door as a result of which, the claimant alleges that he sustained significant injury.
4.More substantial details of the background are provided by Medical Assessor Truskett in his ‘Sequence of Events’, which I reproduce below.

APPLICATION UNDER REVIEW
5.On 7 May 2023, Medical Assessor Adam Rapaport certified that the degree of permanent impairment, caused by the accident, was 7%.
6.A significant matter in dispute between the parties was whether or not the Medical Assessor was correct in finding [25] that an annular tear of the intervertebral lumbar disc was not caused by the accident.
7.Another significant issue in dispute between the parties was whether there was an injury to the left shoulder, giving rise to whole person impairment of 7%, as found by the Medical Assessor.

ISSUES FOR DETERMINATION
Materials before the Review Panel
8.The Panel had available to it the materials which had been uploaded to Pathway by the claimant and the insurer.

Claimant’s submissions of 15 June 2023
9.The Panel briefly refers to the claimant’s submissions.
10.The submission referred to the Medical Assessor’s conclusion that if the claimant had had a sudden traumatic annular tear of the intervertebral lumbar disc,…

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: [2023] NSWPICMP 621
Decision Date: 29 November 2023

CaseChat Overview and Summary

The case between Bno and AAI Limited trading as AAMI involves a dispute over the degree of whole person impairment (WPI) resulting from a motor accident. The matter was heard and determined by the relevant court, which had to review the assessment made by a Review Panel under the Motor Accident Injuries Act 2017. The central issue in the case was whether the Medical Assessor (MA) correctly assessed the injuries and determined their causation in relation to the motor accident. Specifically, the MA had assessed an annular tear of the intervertebral lumbar disc as not being caused by the accident, while the degree of WPI arising from a left shoulder injury was contested. The Review Panel found that there was no WPI for the lumbar spine due to the absence of clinical indicators such as paravertebral muscle guarding, muscle wasting, and limited back movement.

The court was required to examine the principles of causation in the context of the statutory framework and the relevant case law. The court considered the application of section 5D of the Civil Liability Act 2002, which provides guidance on determining causation in motor accident claims. The principles established in Peet v NRMA Insurance Limited and Wallace v Kam were also relevant to the analysis. The MA's assessment of the lumbar spine injury was challenged on the basis that there was no evidence of a sudden traumatic event that could be directly linked to the motor accident. The court had to determine whether the MA's assessment was consistent with the clinical findings and whether the causation was appropriately established.

In its reasoning, the court found that the MA's certificate regarding the lumbar spine injury was not supported by the clinical evidence. The absence of paravertebral muscle guarding, muscle wasting, and the full range of back movement indicated that the injury was not attributable to the motor accident. The court revoked the MA's certificate, aligning with the Review Panel's determination of zero WPI for the lumbar spine. The court also considered the contested WPI for the left shoulder injury but did not provide a detailed ruling on this aspect in the extract provided. The outcome of the case resulted in the revocation of the MA's certificate, which was a significant determination in resolving the dispute over the WPI assessment.

Orders