Emery v AAI Limited t/as GIO - [2024] NSWPICMP 478

DETERMINATION OF REVIEW PANEL
CITATION:	Emery v AAI Limited t/as GIO [2024] NSWPICMP 478
CLAIMANT:	Billie Emery
INSURER:	AAI Limited trading as GIO
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Clive Kenna
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	17 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Motor Accident Guidelines; causation; cervical spine, thoracic spine, lumbar spine, right shoulder, left shoulder, and legs; compression fracture; dispute related to the assessment of whole person impairment (WPI); Medical Assessor (MA) assessed 7% WPI; notwithstanding lack of contemporaneous complaint causation of injury to the cervical spine, both shoulders, and the left leg established where the pain arising from the thoracolumbar spine would have masked perception of pain in other body parts; no injury to right leg; Norrington v QBE Insurance (Australia) Ltd, and Briggs v IAG Limited t/as NRMA Insurance; cervical spine assessed as DRE cervicothoracic category I or 0% WPI; right shoulder WPI 2%; left shoulder injury resolved; left leg contusions resolved; in assessing injury to thoracic and lumbar spine, Medical Review Panel considered clause 6.146 of the Guidelines applies and not clause 6.151; endplate fracture of T12 assessed as DRE category II or 5% WPI; wedge compression fracture of the lumbar spine assessed as DRE category II also gives rise to 5% WPI; in accordance with clause 6.146 of the Guidelines the impairment to the thoracolumbar spine can only be allocated to one region of the spine (the highest region); both the thoracic and lumbar regions give rise to 5% WPI so the Medical Review Panel allocates the 5% WPI to the lumbar spine; Held – Medical Assessment Certificate revoked and certificate assessing 7% WPI issued.
DETERMINATIONS MADE:	*MOTOR ACCIDENT INJURIES ACT 2017* 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% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Bernard Tamba-Lebbie dated 15 November 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment of 7% which is not greater than 10%: (a) injury to the cervical spine – soft tissue injury; (b) injury to the thoracic spine – end plate fracture of T12; (c) injury to the lumbar spine – end plate compression fracture of L1, and (d) injury to the right shoulder – soft tissue injury. 2. The Review Panel finds the following injures caused by the motor accident have resolved: (a) injury to the left shoulder – soft tissue injury, and (b) left leg – soft tissue contusions. 3. The Review Panel finds the following injury was not caused by the motor accident: A) right leg injury.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 19 April 2019 Ms Billie Emery (the claimant) was a passenger in a vehicle driven by her husband travelling at 80kmph.…

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 478
Decision Date: 17 July 2024

CaseChat Overview and Summary

The case of Emery v AAI Limited t/as GIO involved a dispute over the assessment of whole person impairment (WPI) for injuries sustained in a motor accident. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT), where the plaintiff sought to challenge the assessment made by the defendant's Medical Assessor (MA). The MA had assessed the plaintiff's WPI at 7%, a figure which the plaintiff contested, arguing that it did not fully reflect the extent of her injuries.

The legal issues at the heart of this case centred on the proper application of the Motor Accident Guidelines in assessing WPI, particularly regarding the allocation of WPI for injuries to the cervical spine, both shoulders, the thoracic and lumbar spine, and the left leg. The plaintiff contended that the MA had not correctly applied the relevant provisions of the Motor Accident Guidelines, leading to an underestimation of the WPI. The defendant, on the other hand, argued that the MA's assessment was in line with the applicable guidelines and should be upheld.

In its decision, the Tribunal found that the MA's assessment of WPI at 7% did not appropriately reflect the extent of the plaintiff's injuries. Despite the lack of contemporaneous complaints, the Tribunal determined that the plaintiff had established the causation of injuries to her cervical spine, both shoulders, and left leg. The Tribunal noted that the pain arising from the thoracolumbar spine would have masked the perception of pain in other body parts. The Tribunal also concluded that the MA's assessment of the plaintiff's cervical spine as DRE cervicothoracic category I or 0% WPI was incorrect, as the correct category should have been DRE category II, which would result in 2% WPI. Additionally, the Tribunal found that the endplate fracture of T12 and the wedge compression fracture of the lumbar spine should each be assessed as DRE category II, resulting in 5% WPI each. Given the Tribunal's findings, the Medical Assessment Certificate was revoked, and a new certificate assessing 7% WPI was issued.

In conclusion, the Tribunal found in favour of the plaintiff and ordered that the Medical Assessment Certificate be revoked and a new certificate issued reflecting the correct assessment of whole person impairment. The new certificate assessed the plaintiff's WPI at 7%, taking into account the injuries to her cervical spine, both shoulders, and left leg, as well as the injuries to her thoracolumbar spine.

Orders