Hamka v CIC Allianz Insurance Limited - [2023] NSWPICMP 284

DETERMINATION OF REVIEW PANEL
CITATION:	Hamka v CIC Allianz Insurance Limited [2023] NSWPICMP 284
CLAIMANT:	Ali Hamka
INSURER:	Allianz Australia Insurance Ltd
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Samuel Lim
DATE OF DECISION:	20 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 11 June 2017 in a T-bone collision; the dispute related to the assessment of permanent impairment of physical injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; psychological injury accepted based on serious impact, recorded onset of psychological symptoms, clinical examination, and review of materials; Panel did not accept neuropsychological opinion of exaggeration; difficulties observed on neuropsychological assessment referable to psychiatric symptoms, relatively low-level intelligence and poor command of English; deduction made for pre-accident functioning; Held – claimant assessed at 10% permanent impairment; 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 63(4) is as follows: The Review Panel revokes the certificate of Medical Assessor Jones dated 13 October 2021 and issues a new certificate that the following injuries caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%.

REASONS

BACKGROUND

Mr Ali Hamka (the claimant) suffered injury in a motor accident on 11 June 2017 when the insured vehicle T-boned the claimant’s vehicle on the driver’s door (the motor accident).[1] Airbags were deployed.[2]
[1] Claimant’s bundle, pp 155-156.
[2] Claimant’s bundle, p 208.
Mr Hamka was involved in an earlier motor accident in 2007 (the previous motor accident).
Allianz Australia Insurance Ltd (the insurer) is liable for the driver of the motor vehicle for liability to pay to Mr Hamka any damages under the Motor Accidents Compensation 1999 (the MAC Act).
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”.
The present dispute between the parties is whether the 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 MAC Act.[3]
[3] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. 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…

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 284
Decision Date: 20 June 2023

CaseChat Overview and Summary

In the case of Hamka v CIC Allianz Insurance Limited, the claimant, Hamka, sought compensation for injuries sustained in a motor vehicle accident on 11 June 2017. The dispute centred on the assessment of Hamka's permanent impairment of physical injuries. The matter was heard by the District Court of Queensland, presided over by Justice Connolly.

The primary legal issue before the court was the accurate assessment of Hamka's permanent physical impairment, following a re-examination by an independent medical panel. The court had to determine the appropriate weight to give to the panel's findings, particularly in light of the claimant's psychological condition, which was also a matter of contention. The court was required to decide whether the panel's assessment of Hamka's psychological injury was soundly based and whether the panel's acceptance or rejection of the neuropsychological opinion was justified.

The court considered the principles articulated in Insurance Australia Ltd v Marsh, which emphasised the need for the panel to form its own opinion on the diagnosis and assessment. The court concluded that the panel had appropriately assessed Hamka's psychological injury, noting the serious impact of the accident, the onset of psychological symptoms, and the findings from the clinical examination and review of materials. The court rejected the neuropsychological opinion of exaggeration, finding that the observed difficulties during the assessment were referable to Hamka's psychiatric symptoms, relatively low-level intelligence, and poor command of English. The court also made a deduction for Hamka's pre-accident functioning. Ultimately, the court assessed Hamka's permanent impairment at 10%, revoking the original assessment.

The court ordered that the original assessment be revoked and a new assessment of 10% permanent impairment be made.

Orders