GIO Insurance (Australia) Ltd v Koles - [2021] NSWPICMP 199

DETERMINATION OF REVIEW PANEL

CITATION: GIO Insurance (Australia) Ltd v Koles [2021] NSWPICMP 199

CLAIMANT: Lana Koles

INSURER: GIO Insurance (Australia) Ltd

REVIEW PANEL: Principal Member John Harris
Dr Mohammed Assem
Dr Richard Crane

DATE OF DECISION: 6 October 2021

CATCHWORDS:
MOTOR ACCIDENTS- The Claimant was injured in a motor accident whilst walking across a pedestrian crossing; the original Medical Assessor (MA) held that the injuries were assessed at 15% permanent impairment for the purposes of the Motor Accident Injuries Act 2017 (2017 Act); on review the Insurer only disputed that there was a fractured coccyx and that it should be assessed at 5%; Held - although the review is a new assessment of all matters, the Review Panel (RP) accepted the agreement of the parties that the findings of the MA of the other body parties; the MRI scan was reviewed by the MAs on the RP who agreed with the Radiologist that it showed a subluxation at C2 on C3; there was no indication of a fracture line; the Claimant’s clinical symptoms were consistent with the MRI findings; it was appropriate to assess impairment based on analogy (clause 6.24 of the Motor Accident Guidelines) relating to the deformity of the second and third coccygeal segments with residual signs; this pathology is analogous to the non-union of a displaced coccygeal fracture as described in Table 3.4 of the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment; the RP came to the same assessment as the original MA for slightly different reasons; original certificate confirmed.

STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT
Medical Assessment – Permanent Impairment
Review Panel Certificate
Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel confirms the certificate dated 6 May 2021.
REASONS
Background
1.Ms Lana Koles suffered injury on 10 April 2019 when she was walking across a pedestrian crossing with her young daughter and was struck by a motor vehicle.
2.GIO Insurance (Australia) Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Koles any damages under the Motor Accident Injuries Act 2017 (the MAI Act).

3.The present dispute is whether Ms Koles’ 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.[1]
[1] See Division 7.5 and Schedule 2 clause 2 of the Act.
4.Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
5.The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause…

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: [2021] NSWPICMP 199
Decision Date: 6 October 2021

CaseChat Overview and Summary

In the case of GIO Insurance (Australia) Ltd v Koles, the dispute arose from an injury sustained by the claimant in a motor accident while walking across a pedestrian crossing. The claimant sought compensation under the Motor Accident Injuries Act 2017 (2017 Act), specifically for the assessment of permanent impairment. The original Medical Assessor (MA) determined that the claimant's injuries were equivalent to a 15% permanent impairment. However, the insurer contested this assessment, specifically challenging the presence of a fractured coccyx and its associated impairment rating, arguing it should be rated at 5%.

The primary legal issues before the court were whether the Review Panel (RP) was correct in affirming the original MA's assessment and if the RP's methodology and conclusions were legally sound. Specifically, the court needed to examine whether the RP properly assessed the impairment, taking into account the MRI findings and the claimant's clinical symptoms. The court also needed to determine if the RP's reliance on analogy, as permitted under clause 6.24 of the Motor Accident Guidelines, was appropriate in this context.

The court found that the RP's review was indeed a fresh assessment of all matters, but it was permissible for the RP to accept the parties' agreement on the findings of the original MA regarding other body parts. The RP reviewed the MRI scan and agreed with the Radiologist that it showed a subluxation at C2 on C3, without any fracture line. The claimant's clinical symptoms aligned with the MRI findings. The court upheld that it was appropriate for the RP to assess the impairment based on analogy, relating to the deformity of the second and third coccygeal segments with residual signs, which was analogous to a non-union of a displaced coccygeal fracture as described in the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The RP's assessment was consistent with the original MA's, albeit for slightly different reasons, and the original certificate was confirmed.

Orders