Dordevic v AAI Limited trading as GIO - [2022] NSWPICMP 279

DETERMINATION OF REVIEW PANEL
CITATION:	Dordevic v AAI Limited trading as GIO [2022] NSWPICMP 279
CLAIMANT:	Snezana Dordevic
INSURER:	AAI Limited trading as GIO
REVIEW PANEL:	Member Alexander Bolton Medical Assessor Drew Dixon Medical Assessor Neil Berry
DATE OF DECISION:	8 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – Claimant aged 46 years and involved in two accidents; car versus bicycle on 19 February 2019 and front seat passenger in car on 5 February 2020; same CTP insurer on risk for both accidents; first accident causing injury to cervical spine with disc protrusion and an annular tear amongst other injuries; Panel satisfied that disc protrusion and annular tear not age-related; no issue about decision of Medical Assessor that the claimant suffered injuries to her left shoulder, left hand, lower back, right hip and right leg and that all of these are minor injuries and this decision adopted by the Panel; review undertaken only to whether the injury to the claimant’s cervical spine was not a minor injury; scan of cervical spine of 4 August 2020 and claimant’s submissions not referred to by Medical Assessor; scan confirmed disc protrusion and an annular fissure; Held – Medical Review Panel concluded that the claimant suffered a disc protrusion and an annular tear as a result of and causally related to the accident of 19 February 2019.
DETERMINATIONS MADE:	i) The Panel revokes the certificate of Medical Assessor Wijetunga dated 24 June 2021. ii) As there is no dispute by the parties about the findings of Medical Assessor Wijetunga that the claimants left and right shoulder injuries are minor and that the injuries to the claimants thoracic and lumbar spine are minor, the Panel adopts the findings of the Medical Assessor about this. iii) The Panel finds that the injury to the claimant’s cervical spine was a non-minor injury. Effective date: 4 July 2022

Background

There is a dispute between Snezana Dordevic (the claimant) and the insurer about whether an injury to the claimant’s cervical spine was a minor or non-minor injury.
On 5 May 2021, the claimant was assessed by Personal Injury Commission Medical Assessor Nel Wijetunga (the assessor) for injuries arising from two motor vehicle accidents on 19 February 2019 and 5 February 2020.
The same CTP insurer is on risk with respect to both accidents.
The assessor issued a certificate dated 24 June 2021.
The assessor determined that the claimant sustained minor injuries in both accidents.
This dispute was lodged by the claimant, requesting a review of the assessor’s Medical Assessment Certificate, dated 24 June 2021. The claimant submits that the assessor erred in determining that the claimant’s cervical spine injury was minor.
In her Medical Assessment Certificate, the assessor determined the following:
The following injuries caused by the motor accident:
• Cervical spine – whiplash associated disorder
• Left and right shoulder – whiplash associated disorder
• Thoracic and lumbar spine – musculoligamentous strain
are MINOR INJURIES for the purposes of the Act.
The following treatment and care:
• MRI of 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 279
Decision Date: 8 July 2022

CaseChat Overview and Summary

Dordevic brought a claim against AAI Limited trading as GIO regarding injuries sustained from two separate motor accidents. Dordevic was involved in a collision with a bicycle on 19 February 2019 and later as a front seat passenger in another car accident on 5 February 2020. Both accidents involved the same insurer. Dordevic's injuries from the first accident included cervical spine damage with disc protrusion and an annular tear, along with injuries to the left shoulder, left hand, lower back, right hip, and right leg. The dispute primarily centred on whether the cervical spine injuries were minor or significant.

The court was required to determine whether the claimant's cervical spine injuries were minor or significant. The Panel had already concluded that the disc protrusion and annular tear were not age-related and that the other injuries were minor. The main focus of the review was whether the injuries to the cervical spine were minor, as initially assessed by the Medical Assessor. Dordevic argued that a scan of the cervical spine taken on 4 August 2020 confirmed the disc protrusion and an annular fissure, suggesting the injuries were not minor.

The court found that the Medical Review Panel's conclusion that Dordevic suffered a disc protrusion and an annular tear as a result of the 19 February 2019 accident was correct. The Panel's decision was based on the medical evidence and assessments, including the scan and submissions made by Dordevic. The court upheld the Panel's findings, affirming that the claimant's cervical spine injuries were significant and not minor. The court's reasoning was grounded in the medical evidence presented and the Panel's expert assessment. The final order upheld the Panel's decision, confirming that Dordevic's cervical spine injuries were not minor.

Orders