CIC Allianz Insurance Limited v Abraham - [2024] NSWPICMP 819

DETERMINATION OF REVIEW PANEL
CITATION:	CIC Allianz Insurance Limited v Abraham [2024] NSWPICMP 819
CLAIMANT:	Rosalind Abraham
INSURER:	CIC Allianz Insurance Limited
REVIEW PANEL
SENIOR MEMBER:	Williams
MEDICAL ASSESSOR:	Chrisopher Canaris
MEDICAL ASSESSOR:	Samson Roberts
DATE OF DECISION:	3 December 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment under section 7.26; Medical Assessor (MA) certified major depressive disorder with anxious distress, panic disorder, and agoraphobia were caused by the accident and gave rise to a permanent impairment (17%) that was greater than 10%; whether there were pre-and post- accident psychological condition and associated impairment; whether any accident caused injury and impairment; Held – the claimant had a pre-existing unspecified mood disorder and substance use disorder and pre-existing impairment; pre-existing conditions aggravated by the accident; accident caused aggravation gave rise to an impairment greater than 10%; because Panel found different diagnoses and degree of accident caused impairment MA’s certificate revoked and new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Mason dated 4 April 2023 and certifies that: (a) the degree of permanent impairment of the claimant that has resulted from the aggravation of an unspecified mood disorder and substance use disorder caused by the motor accident on 25 March 2018 is 16%, and (b) the degree of permanent impairment of the claimant that has resulted from the aggravation of an unspecified mood disorder and substance use disorder caused by the motor accident on 25 March 2018 is greater than 10%.

STATEMENT OF REASONS

BACKGROUND

Rosalind Abraham (claimant) was injured in a motor accident on Old South Head Road, Vaucluse, on 25 March 2018 (accident). Following the accident she made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on CIC Allianz Insurance Limited (insurer).
A dispute has arisen between the claimant and the insurer about whether the degree of permanent impairment that has resulted from psychological injury caused by the accident is greater than 10%. The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(a) of the MAI Act.
The medical dispute was referred to Medical Assessor Mason for assessment. The Medical Assessor gave a certificate dated 15 March 2022 in which he certified that major depressive disorder with anxious distress, panic disorder, and agoraphobia were caused by the accident and gave rise to a permanent impairment (19%) that was greater than 10%. The matter was subsequently referred to Medical Assessor Mason for further assessment. The Medical Assessor issued a certificate and reasons dated 4 April 2023 in which he certified that major depressive disorder with anxious distress, panic disorder, and agoraphobia were caused by the accident and gave rise to a permanent impairment (17%) that was greater than 10%.
The insurer sought a review of the further assessment under s 7.26 of the MAI Act. The President’s Delegate subsequently determined that there was reasonable cause…

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: [2024] NSWPICMP 819
Decision Date: 3 December 2024

CaseChat Overview and Summary

The matter of CIC Allianz Insurance Limited v Abraham involved a dispute over a medical assessment related to a motor accident. The claimant sought compensation under the Motor Accident Injuries Act 2017. The insurance company contested the claimant's entitlement to benefits due to disputes over the nature and extent of the injuries claimed to have arisen from the accident. The Federal Court was tasked with reviewing the decision of the Medical Assessor who had found that the claimant had sustained a major depressive disorder with anxious distress, panic disorder, and agoraphobia as a result of the accident, leading to a permanent impairment rating of 17%.

The primary legal issue before the court was whether the claimant had pre-existing psychological conditions and associated impairments, and if so, whether the accident had caused any additional injury and impairment. The court had to determine whether the claimant's conditions were pre-existing or exacerbated by the accident, and whether any impairment found was attributable to the accident. Additionally, the court needed to assess the validity of the Medical Assessor's findings given the differing opinions on the diagnosis and extent of impairment.

The court found that the claimant did have a pre-existing unspecified mood disorder and substance use disorder, as well as a pre-existing impairment. However, the court also determined that the accident had aggravated these pre-existing conditions, resulting in an impairment greater than 10%. The court noted that the Panel had issued different diagnoses and assessments regarding the extent of the accident-caused impairment. Consequently, the court revoked the Medical Assessor's certificate and directed the issuance of a new certificate reflecting the Panel's findings. The court's decision underscored the importance of accurate and consistent medical assessments in determining the extent of injuries and associated impairments in motor accident claims.

The final orders of the court included the revocation of the original Medical Assessor's certificate and the issuance of a new certificate in accordance with the Panel's findings, which acknowledged the claimant's pre-existing conditions and the accident-related aggravation of those conditions.

Orders