Brown v AAI Limited t/as AAMI
[2023] NSWPICMP 121
•30 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Brown v AAI Limited t/as AAMI [2023] NSWPICMP 121 |
| CLAIMANT: | Kim Brown |
INSURER: | AAI Limited t/as AAMI |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 30 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (2017 Act); medical assessment of minor injury dispute and claimant’s review under section 7.26; Medical Assessor Cameron had assessed alleged disc bulge and lumbar radiculopathy and found all injuries minor; claimant examined by five Medical Assessors; application for review of one lodged before outcome of some of the other assessments known; outcome of two assessments was that the claimant’s psychological injury and a facial nerve injury was found to be non-minor; Panel invited claimant to discontinue application; claimant asked Panel to proceed on basis the decision would assist the claimant to obtain treatment and recognise the seriousness of the injury; Held – proceedings referred to the President of the Personal Injury Commission to be dismissed under section 54(b) of the Personal Injury Commission Act 2020 (2020 Act) as they are now lacking in substance; discussion of relevance of minor injury decision as the key that unlocks the door to ongoing statutory benefits under Part 3 of the 2017 Act and the entitlement to recover damages under Part 4; guiding principle in section 42 of the 2020 Act referred to and decision of Wood v NRMA Insurance cited and applied. |
| DETERMINATIONS MADE: | 1. It is the Panel’s recommendation to the President that these proceedings should be dismissed. |
STATEMENT OF REASONS
INTRODUCTION
Kim Brown was injured in a motor accident on 11 December 2020. She was the driver of a car, stationary at traffic lights when a vehicle hit hers from behind.
Ms Brown says as a result of the accident she injured the left side of her face, her chest, neck, head, shoulder, arms and lower back.
On or about 22 December 2020, Ms Brown made a claim against AAMI, the third-party insurer of the vehicle that ran into the back of her vehicle. That claim was for personal injury (statutory) benefits under part 3 of the Motor Accident Injuries Act 2017 (the MAI Act).
On 30 December 2020, AAMI issued a liability notice advising Ms Brown that her accident-related injuries were “minor injuries” within the definition set out in s 1.6 of the MAI Act. On 7 July 2021, the claimant sought an internal review of that decision and on 23 July 2021 the insurer’s internal reviewer affirmed the original decision.
On 19 October 2021, the claimant referred the dispute about whether her injuries were minor injuries to the Personal Injury Commission (Commission) for medical assessment under s 7.20(1) of the MAI Act. For ease of reference this will be referred to as the “minor injury dispute”.
MINOR INJURY MEDICAL ASSESSMENTS
The records of the Commission indicate that in accordance with s 7.20(2) the President of the Commission has referred the minor injury dispute to five medical assessors. Each of them considered a particular injury or injuries and each of them has issued a separate document comprising a certificate of assessment and reasons for their decision as follows:
(a) Medical Assessor Cameron – who assessed the claimant’s physical injuries (disc bulge at L6-S1 with posterolateral disc herniation on the left side impinging on the L6-S1 nerve root causing radiculopathy) and certified on 19 August 2022 that the injuries he was asked to assess were minor injuries. It is this medical assessment that is the subject of the current proceedings;
(b) Medical Assessor Curtin – who assessed the claimant’s soft tissue injury to the face and diagnosed a whiplash associated disorder with facial pain. On 13 July 2022 he certified this was a minor injury;
(c) Medical Assessor Steiner – who assessed the claimant’s eye injury (superior hemifield visual defect of the left eye and quadrantanopia of the right eye) and on 10 August 2022 the Medical Assessor certified this to be a minor injury;
(d) Medical Assessor Veerabangsa - who assessed the claimant’s left trigeminal nerve injury as not a minor injury on 14 December 2022, and
(e) Medical Assessor Friend – who was asked to assess the claimant’s alleged post-traumatic stress disorder, anxiety and depression and who, on
9 February 2023 certified that the claimant had a major depressive disorder which was not a minor injury.
THIS APPLICATION FOR REVIEW
On 14 September 2022, the claimant, being dissatisfied with Medical Assessor Cameron’s decision lodged with the Commission, an application for review under s 7.26 of the MAI Act.
The insurer’s reply to the application for review was lodged with the Commission on
5 October 2022.Both the application and the reply forms were lodged before Medical Assessors Veerabangsa and Friend issued their certificates.
On 20 October 2022, the President’s delegate determined that there was reasonable cause to suspect a material error in Medical Assessor Cameron’s decision and on
29 November 2022 the President convened the Review Panel comprising one legal member and two medical assessors.A teleconference between all three members of the Panel was scheduled to take place on 23 February 2023 and the parties were advised.
On 20 February 2023, in advance of the teleconference, the Panel reviewed the matter for the purposes of issuing directions to the parties to ensure the Panel had all relevant documents before it.
The Panel included in its directions to the parties this observation:
“[4]. The Panel has been advised that Assessor Veerabangsa’s assessment has not been the subject of an application for review and the time for the insurer to lodge such an application has expired.
[5]. It is the Panel’s understanding of the MAI Act that the claimant need only have one non-minor injury in order to have access to statutory benefits under Part 3 of the Act beyond the first 26 weeks and for the claimant to have an entitlement to recover damages under Part 4 of the Act.
[6]. If the Panel’s understanding of the operation of the minor injury definition is correct and there has been no review of Assessor Veerabangsa’s decision, then the claimant has been found to have a non-minor injury and the Panel queries whether there is any utility in this Panel continuing with its review.”
The claimant was invited to file a notice of discontinuance of the Review proceedings or alternatively upload submissions as to the utility of the Panel proceeding to assess the claimant’s lumbar spine and radiculopathy.
SHOULD THE REVIEW PROCEEDINGS BE DISMISSED?
The parties’ submissions
The claimant did not file a notice of discontinuance but on 14 March 2023 her solicitor sent the following message to the Panel through the portal:
“Whilst the claimant acknowledges that under the [MAI Act] only one non-minor injury is required to access statutory benefits post 26 weeks and to pursue a claim for common law damages, the Certificate of Assessor Ian Cameron which is under review finds the claimant’s injury to her lumbar spine to be a soft tissue injury.
It is our experience that insurer’s will seek to rely on these PIC decisions when assessing the claimant’s need for treatment and the severity of any ongoing disabilities to assert that soft tissue injuries are of less significance, and ought to recover within a short period of time.
We further note that the claimant has recently undergone surgery in relation to her lumbar spine, and in accordance with a recent decision by a PIC review panel, the act of a surgery itself ‘involved the cutting of skin, tendons, ligaments, and cartilage which falls outside the definition of a minor injury’.
It is therefore the claimant’s position that unless the insurer is willing to concede that the claimant’s injury to her lumbar spine falls outside the definition of a minor injury, we consider it necessary that the subject review application proceed as it is the claimant’s submission the injuries to her lumbar spine are in fact non-minor, which must be recognised.”
On 21 March 2023, the insurer responded by conceding that the claimant has non-minor injuries pursuant to the certificates of Medical Assessors Veerabangsa and Friend.
On 23 March 2023 a message was relayed to the parties from the Panel again inviting the claimant to discontinue the proceedings and on 24 March 2023 the claimant’s solicitor responded as follows:
“The Claimant maintains the position that is reflected in the submissions submitted previously. We request the review panel consider same and issue their decision.”
Dismissal - the Act and Rules
Section 54 of the Personal Injury Commission Act 2020 (the PIC Act) provides that:
“The Commission may at any stage dismiss proceedings before it –
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexations or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
Rule 77(b) of the Rules provides for six further reasons why a motor accident matter may be dismissed but none of these are appropriate for the circumstances of these medical review proceedings.
The Panel is however of the view that s 54(b) is relevant and in particular whether these proceedings are now “lacking in substance”.
What is the effect of a non-minor injury decision?
Since 1999, the greater than 10% whole person impairment (WPI) threshold has been referred to as a gateway or the key that unlocks the door to a claim for non-economic loss damages.[1] Once a claimant is certified as having a WPI of more than 10% then non-economic loss damages are assessed at large on the basis of all the injuries combined up to the maximum amount allowable.[2] For that reason, if a claimant had a certain injury assessed at 11% there was theoretically no need to assess any other injuries because whether a claimant has a WPI of 11%, 21% or 51% does not affect the entitlement to damages or the quantum of damages.
[1] See s 131 of the Motor Accidents Compensation Act 1999 (the MAC Act) and s 4.11 of the MAI Act.
[2] Currently $605,000 in accordance with s 134 of the MAC Act and s 4.13 of the MAI Act.
Sections 3.11(1)(a) and 3.28(1)(b) operate to terminate statutory benefits if “the person’s only injuries resulting from the motor accident were minor injuries”. Section 4.4 provides that “no damages may be awarded … if the person’s only injuries resulting from the motor accident were minor injuries”.
For a claimant who sustains multiple injuries, if all of them fall within the definition of “minor injury” as set out in s 1.6 then the claimant is not entitled to ongoing benefits and cannot recover damages. However, for the claimant who sustains multiple injuries in an accident, only one of those injuries needs to overcome the statutory definition. Once that definition is overcome, then benefits continue to be paid and damages are recoverable in respect of all injuries, be they minor or non-minor.
Therefore, a finding that an injury is not a minor injury can also be considered as a gateway provision and the key that unlocks the door to continuing statutory benefits under part 3 of the MAI Act and the gateway that allows the recovery of damages under part 4.
Is the claimant’s application now lacking in substance?
The application for the review of Medical Assessor Cameron’s assessment was validly made on 14 September 2022. However, following the certification by Medical Assessors Veerabangsa and Friend and due to the lapsing of time for any review of those decisions in the light of the insurer’s concession, there is no longer any need for the claimant to pursue the review of Assessor Cameron’s decision. The claimant has two non-minor injuries. The claimant agrees in her submissions that she is entitled to ongoing statutory benefits (including treatment) for all of her injuries, and she is entitled to recover damages.
The claimant submits that the Panel should continue the proceedings and determine whether the claimant’s alleged lumbar spine injury with radiculopathy is not a minor injury because in the claimant’s solicitor’s experience, AAMI will use Medical Assessor Cameron’s finding when considering what treatment to pay for in the statutory benefits claim and because the claimant wants this particular injury “recognised” as a non-minor injury due to her recent lumbar spine surgery.
The MAI Act provides for disputes about treatment to be referred to the Commission for assessment and determination.[3] The Act also provides a number of duties for insurers including to act with good faith.[4] It would appear that breaches of a duty and complaints[5] can be referred to the State Insurance Regulatory Authority.
[3] Division 7.5 and Schedule 2 cl 2(b) of the MAI Act.
[4] Section 6.3 of the MAI Act.
[5] See for example ss 6.7 and 9.24(1)(b) of the MAI Act.
It is not clear why the claimant wants her lumbar spine injury recognised as a non-minor injury due to her recent surgery. If there is a dispute about whether the surgery is accident-related and reasonable and necessary, there is a mechanism for that to be determined by the Commission.[6] If there is a dispute about whether the injury and any resultant impairment is sufficient to entitle the claimant to damages for non-economic loss, there is a mechanism for that to be determined by the Commission.[7]
[6] Division 7.5 and Schedule 2 cl 2(b) of the MAI Act.
[7] Division 7.5 and Schedule 2 cl 2(a) of the MAI Act.
It is trite to say it, but the Commission exists to determine disputes. Justice Wright said at [50] in Wood v Insurance Australia Group Limited trading as NRMA Insurance:[8]
“… if there is no dispute between the parties as to whether certain injuries were caused by a motor accident but there is a dispute as to whether the degree of impairment as a result of those injuries is greater than 10%, the medical assessor is only required to give a certificate as to whether the degree of impairment is greater than 10% and not as to causation.”
[8] [2022] NSWSC 1290.
In other words, Medical Assessors and Review Panels need only assess matters that are disputed. As the insurer no longer disputes whether the claimant has an entitlement to ongoing statutory benefits or an entitlement to recover damages, there is, in the Panel’s view no reason to pursue the review of Assessor Cameron’s decision.
It is the Panel’s view that the proceedings are now, as a result of Medical Assessors Veerabangsa and Friend’s decisions, lacking in substance.
It would be a waste of the Commission’s resources to pursue the review and it would not further the guiding principle of the Commission as set out in s 42 of the PIC Act to “facilitate the just, quick and cost-effective resolution of the real issues in the proceedings”. The real issue in the proceedings referred to the Commission on
19 October 2021 was whether any of the claimant’s injuries were not minor injuries. That has been decided by two of the five Medical Assessors who have assessed the claimant’s injuries.
CONCLUSION
The power to dismiss proceedings is found in s 54 of the PIC Act. Rule 127(3) of the Personal Injury Commission Rules 2021 provides that a function given to the Commission in s 54 of the PIC Act is to be read as being given to the President. Under item 51 of the Table of delegations (published on the Commission’s website) the President’s power to dismiss proceedings in medical review proceedings has not been delegated to the Panel and remains with the President.
As the Panel itself has no power to dismiss the proceedings, it is therefore the Panel’s recommendation to the President that these proceedings should be dismissed.
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