Delia v AAI Limited t/as GIO - [2022] NSWPICMP 83

DETERMINATION OF REVIEW PANEL
CITATION:	Delia v AAI Limited t/as GIO [2022] NSWPICMP 83
CLAIMANT:	Diana Delia
INSURER:	AAI Limited t/as GIO
REVIEW PANEL:	Member Susan McTegg Dr Neil Berry Professor Ian Cameron
DATE OF DECISION:	12 April 2022
CATCHWORDS:	MOTOR ACCIDENTS- Motor Accident Compensation Act 1999 (MAC Act); medical review panel; permanent impairment; causation; gastro-oesophageal reflux disease (GORD); constipation; opioid medication; medication consumption: whole person impairment; the claimant suffered injury in a motor vehicle accident; assessment of permanent impairment under the MAC Act; the dispute related to the ingestion of analgesic medications, opioids Panadeine Forte and Palexia; long term use of opioid medication, both pre- and post-accident; increase in medication usage as a result of chronic pain caused by accident; Held- GORD caused by the accident; constipation caused by the accident; analgesic gastropathy and medication induced motility disorder not caused by the accident; 0% whole person impairment (WPI) as a result of constipation under clause 1.248 of the Permanent Impairment Guidelines; 2% WPI as a result of GORD under Table 2, page 239 AMA 4 Guides; injury to right ankle and hindfoot previously assessed at 4% WPI and injury to lumbar spine previously assessed at 5% WPI; new combined certificate issued certifying a combined impairment of 11%.
DETERMINATIONS MADE:	The Review Panel revokes the Combined Certificate of Medical Assessor Andrew Connolly dated 20 February 2020 and issues a new Combined Certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10%: · right ankle and hindfoot – musculo-ligamentous strain; · lumbar spine – musculo-ligamentous strain, and · gastro-oesophageal reflux disease (GORD). REASONS This is to certify that permanent impairment was assessed by a Medical Review Panel comprising Member Susan McTegg, Medical Assessor Neil Berry and Medical Assessor Ian Cameron and by Medical Assessor Mark Burns. Details of the assessments and full reasons are given in the following certificates: Assessment 1 *Certificate of the Medical Review Panel dated 12 April 2022* The Review Panel revokes the certificate of Medical Assessor Kumar dated 3 June 2021 and issues a new certificate determining the following injuries were caused by the motor accident but give rise to a permanent impairment of 2%. · gastro-oesophageal reflux disease (GORD). The Review Panel finds the following injuries were not caused by the accident: · analgesic gastropathy, and · medication induced motility disorder. Assessment 2 *Certificate of Medical Assessor Burns dated 13 May 2019* The permanent impairment in relation to the following injuries is 4% · right ankle and hindfoot – musculo-ligamentous strain. *Certificate of Medical Assessor Burns dated 14 February 2020* The permanent impairment in relation to the following injuries is 5% · lumbar spine – musculo-ligamentous strain. Using the Combined Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4^th edition, the combined permanent impairment is 11%.

STATEMENT OF REASONS

INTRODUCTION

Ms Diana Delia (the claimant) suffered injury…

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 83
Decision Date: 12 April 2022

CaseChat Overview and Summary

The case of Delia v AAI Limited t/as GIO involved a claimant who sustained injuries in a motor vehicle accident. The dispute centered on the assessment of her permanent impairment under the Motor Accident Compensation Act 1999 (MAC Act). The claimant sought compensation for various medical conditions, including gastro-oesophageal reflux disease (GORD) and constipation, both of which she attributed to the accident. The insurer, AAI Limited t/as GIO, disputed the extent of these conditions and their causation by the accident. The primary legal issues were whether the claimant's GORD and constipation were caused by the accident, and if so, the extent of the permanent impairment resulting from these conditions. Additionally, the court needed to consider the impact of long-term opioid medication use on the assessment of impairment.

The court found that the claimant's GORD was caused by the accident, resulting in a 2% whole person impairment (WPI) according to the AMA 4th Edition Guides. Regarding constipation, the court ruled that it was not caused by the accident, thus 0% WPI was assigned under clause 1.248 of the Permanent Impairment Guidelines. The court also concluded that the claimant's pre-existing conditions, such as analgesic gastropathy and medication-induced motility disorder, were not caused by the accident. The claimant had previously been assessed for injuries to her right ankle and hindfoot, and lumbar spine, which had been rated at 4% and 5% WPI respectively. Considering all factors, the court issued a new combined certificate, certifying a combined impairment of 11%.

The final orders of the court were that the claimant was entitled to compensation for the assessed impairment of 11%, acknowledging the GORD caused by the accident but not the constipation. The court's decision addressed the complex interplay between pre-existing conditions, post-accident pain management, and the resultant impact on the claimant's overall impairment rating.

Orders