George v AAI Limited t/as GIO - [2025] NSWPICMP 126

DETERMINATION OF REVIEW PANEL
CITATION:	George v AAI Limited t/as GIO [2025] NSWPICMP 126
CLAIMANT:	Tanya George
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Terence O'Riain
MEDICAL ASSESSOR:	Tai-Tak Wan
MEDICAL ASSESSOR:	David Gorman
DATE OF DECISION:	27 February 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review; claimant’s application; accident on 20 May 2018 as pedestrian; whole person impairment (WPI) dispute; certificates from Medical Assessors dated 14 July 2022 (musculoskeletal) and 28 July 2022 (brain injury) assessed combined WPI at 9% (9% & 0% WPI); claimant applied for reviews; Review Panel met in 2023; assessments delayed because claimant not at maximum medical improvement (MMI); claimant re-examined; claimant’s statement on brain injury impact; Held – different clinical findings to original assessments; musculoskeletal conditions 6% WPI; brain injury 0% WPI; Medical Assessors preferred objective evidence in neuropsychological impairment to claimant’s statements; Review Panel revoked and replaced original medical certificates and combined impairment certificate; permanent impairment not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel Assessment of Degree of Permanent Impairment Replacement certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. This certificate refers to two medical disputes referred to this Panel arising from the accident dated 20 May 2018. 2. The Panel has assessed that the degree of permanent impairment that has resulted from musculo-skeletal injuries caused by the accident is 6%. It follows that the Panel finds that the degree of impairment is not greater than 10%. 3. This is a different permanent impairment to Medical Assessor Dixon's assessment and certificate issued on 14 July 2022. 4. Accordingly, the Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate. 5. The Panel has assessed that the degree of permanent impairment that has resulted from the brain injury caused by the accident is 0%. It follows that the Panel finds that the degree of impairment is not greater than 10%. 6. The Panel made different clinical findings to Medical Assessor Cameron's assessment and certificate issued on 28 July 2022. 7. Accordingly, the Panel revokes the latter certificate and issues a new Permanent Impairment Certificate. 8. Further, this Panel revokes Lead Medical Assessor Cameron’s combined assessment certificate dated 29 July 2022 and issues a replacement combined assessment certificate under s 7.26 (8) of the Motor Accidents Injuries Act 2017 stating the combined injuries caused by the accident were assessed at permanent impairment of 6% which is not greater than 10%.

REASONS

BACKGROUND

The insurer bears the liability for the claim for damages arising from the claimant's injuries under the Motor Accidents Injuries Act 2017 (MAI Act).
The claimant was injured in a car accident as a pedestrian on 20 May 2018.
There is a dispute between the parties about the amount of permanent impairment[1] resulting from the claimant’s injuries caused by the accident. The claimant referred the dispute to the Personal Injury Commission (Commission) following s 2 (a) of sch 2 of the MAI Act for a Medical…

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: [2025] NSWPICMP 126
Decision Date: 27 February 2025

CaseChat Overview and Summary

The case of George v AAI Limited t/as GIO involves a claimant who was injured in a motor accident while acting as a pedestrian on 20 May 2018. The dispute centres on the assessment of the claimant's whole person impairment (WPI) following the accident, specifically the calculation of the percentage of impairment attributed to musculoskeletal and brain injuries. The claimant sought a review of the WPI assessment conducted by the insurer, AAI Limited t/as GIO, and the matter was heard by the relevant tribunal. The original assessments by Medical Assessors dated 14 July 2022 and 28 July 2022 assessed the claimant’s combined WPI at 9%, with 9% attributed to musculoskeletal conditions and 0% to the brain injury. Dissatisfied with the outcome, the claimant applied for a review of the WPI assessment.

The legal issues that the court was required to decide included whether the original WPI assessment was accurate and whether the claimant’s application for review was justified. Specifically, the court needed to determine the correct WPI for both the musculoskeletal conditions and the brain injury, and whether the assessments provided by the Medical Assessors were valid and reliable. The claimant argued that the WPI assessments were flawed, and that the impact of the brain injury had been underestimated. The insurer, on the other hand, maintained that the original assessments were correct and that the claimant’s application for review was not supported by sufficient evidence.

The court found that there were different clinical findings in the re-examination compared to the original assessments. The Review Panel, which convened in 2023, concluded that the claimant's musculoskeletal conditions warranted a WPI of 6%, while the brain injury did not result in any WPI. The Review Panel preferred the objective evidence provided by the neuropsychological impairment assessments over the claimant's subjective statements regarding the impact of the brain injury. Consequently, the Review Panel revoked and replaced the original medical certificates and combined impairment certificate. The court ultimately determined that the permanent impairment did not exceed 10%, aligning with the Review Panel's findings.

The final orders of the tribunal were that the original medical certificates and the combined impairment certificate were revoked and replaced with new certificates reflecting a combined WPI of no more than 10%. The claimant’s application for a higher WPI assessment was dismissed, and the insurer’s original assessment was upheld, albeit with a minor adjustment to the WPI for musculoskeletal conditions.

Orders