Djekic v AAI Limited t/as GIO - [2023] NSWPICMP 211

DETERMINATION OF REVIEW PANEL
CITATION:	Djekic v AAI Limited t/as GIO [2023] NSWPICMP 211
CLAIMANT:	Irena Djekic
INSURER:	AAI Ltd t/as GIO
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Rhys Gray
DATE OF DECISION:	16 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 10 September 2019 in a T-bone collision; the dispute related to the assessment of permanent impairment; claimant re-examined; frank injury to shoulders not established; claimant had referred pain providing loss of movement; range of movement not a valid measurement of impairment given inconsistency observed in reports; Panel satisfied that transverse fractures sustained in the motor accident; not assessed unless there is displacement; clause 6.149 of the SIRA Motor Accidents Guidelines (Version 9.1, commencement on 1 April 2023); Held – original assessment revoked.
DETERMINATIONS MADE:	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 S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017* IS AS FOLLOWS:** The Panel revokes the certificate dated 16 October 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%: (a) fractures of the transverse processes at L2, L3 and L4; (b) left hip; (c) cervical spine, and (d) left and right shoulder (referred loss of movement).

REASONS
BACKGROUND

Ms Irena Djekic (the claimant) suffered injury on 10 September 2019 when her vehicle was crossing an intersection and involved in a T-bone collision with the insured vehicle.[1]
[1] Claimant’s bundle, p 21.
AAI Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Djekic any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in dispute is whether Ms Djekic’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.[2]
[2] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
The following injuries were referred for assessment:
•       lumbar spine / lumbosacral – fractures through the left transverse processes;
•       cervical spine / cervicothoracic – general restriction of movement in the cervical spine as well as pain and pins/needles radiating down upper limbs;
•       left upper extremity (left shoulder) rotator cuff/soft tissue injury or alternatively restriction of movement consequential or neck/cervical spine injury assessable under Nguyen principle;
•       right upper extremity (right shoulder) rotator cuff/soft tissue injury or alternatively restriction of movement consequential or neck/cervical spine injury assessable under Nguyen principle, and
•       left hip/lower extremity – soft tissue injury, pain and restriction down left lower limb.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is…

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 211
Decision Date: 16 May 2023

CaseChat Overview and Summary

In Djekic v AAI Limited t/as GIO, the claimant, Mr. Djekic, was involved in a motor accident on 10 September 2019 and subsequently claimed compensation for injuries sustained. The dispute centred on the assessment of Mr. Djekic's permanent impairment. The matter was heard and determined by the tribunal, which was required to review the initial assessment of Mr. Djekic's injuries and decide whether the assessment was accurate and in accordance with the relevant legislative and regulatory framework.

The primary legal issues before the tribunal were whether the claimant had established frank injury to his shoulders, the validity of using the range of movement as a measure of impairment, and whether the transverse fractures sustained in the accident warranted an assessment of impairment. The tribunal had to examine the evidence provided, including medical reports and assessments, to determine if the original assessment of permanent impairment was appropriate under the Motor Accident Injuries Act 2017 and the SIRA Motor Accidents Guidelines.

The tribunal found that while Mr. Djekic had sustained transverse fractures in the accident, these fractures did not result in displacement and therefore did not require an assessment of impairment under clause 6.149 of the SIRA Motor Accidents Guidelines. The claimant had referred pain leading to a loss of movement, but the tribunal was not convinced that the range of movement was a valid measurement of impairment due to the inconsistencies observed in the reports. Consequently, the tribunal concluded that the original assessment of permanent impairment should be revoked.

Following the tribunal's determination, the original assessment of Mr. Djekic's permanent impairment was revoked, and the matter was to be reassessed in accordance with the tribunal's findings. The tribunal's decision highlighted the importance of consistent and accurate medical evidence in assessing permanent impairment following motor accidents.

Orders