Brown v QBE Insurance (Australia) Ltd - [2022] NSWPICMP 295

DETERMINATION OF REVIEW PANEL
CITATION:	Brown v QBE Insurance (Australia) Ltd [2022] NSWPICMP 295
CLAIMANT:	Paul Brown
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL:	Principal Member John Harris Medical Assessor Geoffrey Stubbs Medical Assessor Margaret Gibson
DATE OF DECISION:	20 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 30 May 2018 when his motor vehicle was side swiped by the insured vehicle causing his vehicle to tip on its side; the claimant suffered a fracture at T3 and other injuries where impairment was disputed; Held – claimant reassessed at 18% impairment; no substantive legal principles on reassessment; original assessment revoked.

Medical Assessment – Permanent Impairment

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS:

The Panel revokes the certificate dated 23 November 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%:

·        thoracic spine fracture at T3;
·        cervical spine injury – aggravation of degenerative changes;
·        right shoulder – soft tissue injury, and
·        left shoulder – soft tissue injury.

REASONS

BACKGROUND

Mr Paul Brown (the claimant) suffered injury on 30 May 2018 when his motor vehicle was side swiped by the insured vehicle causing his vehicle to tip on its side.
QBE Insurance (Australia) Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Brown any damages under the Motor Accident Injuries Act 2017 (the MAI Act).
The present dispute is whether Mr Brown’s “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 MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. 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 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor You-Key Ho and dated 23 November 2021. The Medical Assessor assessed the degree of permanent impairment at 9%. The details of that assessment are set out later in these Reasons.

THE REVIEW

The application for referral of a medical assessment to a Review Panel (the Panel) was made by the…

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 295
Decision Date: 20 July 2022

CaseChat Overview and Summary

The case of Brown v QBE Insurance (Australia) Ltd involves the claimant, Brown, who sustained injuries in a motor accident on 30 May 2018. The accident occurred when Brown’s vehicle was side-swiped by a vehicle insured by QBE Insurance, causing Brown’s vehicle to tip on its side. Brown suffered a fracture at T3 and other injuries, the extent of which was contested by QBE Insurance. The dispute was brought before the court to determine the appropriate level of impairment resulting from the accident.

The central legal issues for the court to decide were whether the reassessment of Brown's impairment at 18% was justified and whether there were any substantive legal principles guiding such a reassessment. Additionally, the court had to consider whether the original assessment of impairment was to be revoked in light of the reassessment. The court examined the medical evidence and the process by which the reassessment was conducted, including the methodology and expert opinions provided.

In reaching its decision, the court found that the reassessment at 18% impairment was appropriate and there were no established legal principles strictly governing the reassessment process. The court noted that the reassessment was based on comprehensive medical evidence and expert opinion, which provided a sound basis for the new impairment figure. Consequently, the original assessment of impairment was revoked, and the reassessment was upheld. The court's reasoning was grounded in the need to provide a fair and accurate reflection of Brown's condition based on the most current and reliable evidence available.

The final orders of the court mandated that the reassessment of Brown's impairment at 18% be recognised and that the original assessment be revoked. This ruling effectively settled the dispute over the extent of Brown's injuries and the associated impairment, ensuring that Brown's entitlements under the insurance policy are aligned with his current medical condition.

Orders