Hawach v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	Hawach v AAI Limited t/as GIO [2022] NSWPICMR 68
ClaimanT:	Abdallah Hawach
Insurer:	AAI Limited t/as GIO
Merit Reviewer:	Katherine Ruschen
DATE OF DECISION:	28 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the degree of permanent impairment as a result of the injury is greater than 10%; section 3.12 of the 2017 Act; cessation of weekly payments; pending claim for damages; whether weekly payments continue if there is an internal review decision and no medical dispute or a pending medical under Division 7.5 of the 2017 Act; Held – the reviewable decision is affirmed.
Determinations made:	CERTIFICATE OF DETERMINATION Issued under s 7.13(4) of the Motor Accident Injuries Act2017 The reviewable decision is about the amount of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. The reviewable decision is affirmed.

STATEMENT OF REASONS

introduction

Abdallah Hawach (the claimant) was involved in a motor accident on 3 July 2019.
On 15 July 2019 the claimant lodged an application for statutory benefits under the MAI Act.
On 3 March 2021 the claimant made a claim for damages.
On 10 May 2022, the insurer determined that the claimant’s degree of permanent impairment as a result of the injury is not greater than 10%.
The claimant requested an internal review of the insurer’s decision dated 10 May 2022.
On 1 June 2022, the insurer issued their internal review decision in which the insurer affirmed their 10 May 2022 decision that the claimant’s degree of impairment is not greater than 10%.
To date, the claimant has not lodged an application with the Personal Injury Commission (the Commission) for determination of a medical dispute under Division 7.5 of the MAI Act in relation to the insurer’s impairment decision.
On 10 May 2022 the insurer also determined that the claimant’s entitlement to statutory benefits ceased on 5 July 2022 pursuant to s 3.12(2)(b) of the MAI Act on the basis the claimant’s degree of impairment as a result of the injury is not greater than 10%.
The claimant requested an internal review of the insurer’s 10 May 2022 decision to cease statutory benefits from 5 July 2022.
On 17 June 2022 the insurer issued their internal review decision which affirmed their 10 May 2022 decision that statutory benefits cease on 5 July 2022.
The claimant seeks a merit review of the internal review decision dated 17 June 2022 which determined that statutory benefits ceased from 5 July 2022 on the basis the claimant’s degree of impairment is not greater than 10%.

SUBMISSIONS

The claimant disputes the insurer’s internal review decision dated 1 June 2022 in which the insurer determined the claimant’s degree of impairment is not greater than 10%, although it has not been formally disputed by way of an application for a medical assessment.
The claimant relies on various medical reports which challenge the insurer’s

1 June 2022 decision regarding the degree of impairment and submits that this evidence demonstrates that the claimant’s degree of impairment exceeds 10%. The claimant submits that as there is also a pending claim for common law damages, both requirements of s 3.12 of the MAI Act are met and therefore weekly benefits continue past 156 weeks, up to 260 weeks.
The insurer submits that as there is a determination that the claimant’s degree of impairment is not greater than 10% and this determination has not been overturned by the Commission by way of a medical assessment determination under Division 7.5 of the MAI Act, the requirement that the claimant’s degree of impairment is greater than 10% is not satisfied. Accordingly, weekly benefits cease after 156 weeks after the date of the motor accident.

REASONS

Section 3.12 of the MAI Act addresses the cessation of weekly payments to other injured persons after the maximum weekly payments period and provides that:
“(1)    An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than the maximum weekly payment period after the motor accident concerned.
(2)     The maximum weekly payment period is as follows--
(a) 104 weeks, unless the person's injury is the subject of a pending claim for damages (whether or not the insurer has accepted liability),
(b) 156 weeks if the person's injury is the subject of such a pending claim and the degree of any permanent impairment of the injured person as a result of the injury is not greater than 10%,
(c) 260 weeks if the person's injury is the subject of such a pending claim and the degree of permanent impairment of the injured person as a result of the injury is greater than 10%.
(3)     The maximum weekly payment period ends if any such pending claim for damages is withdrawn, settled or finally determined after the period of 104 weeks after the motor accident concerned.”
The claimant was coming up to 156 weeks post-accident and accordingly, the question arose as to whether his degree of permanent impairment as a result of the injury is greater than 10%. If it is not greater than 10%, weekly payments cease at 156 weeks pursuant to s 3.12(2)(b). If it is greater than 10%, weekly payments may continue up to 260 weeks under s 3.12(2)(c).
There is various medical evidence in which there is competing expert opinion about the claimant’s degree of impairment. There is clearly no consensus among the medical experts and questions arise about the adequacy of briefs to doctors and their investigations. For example, it is unclear whether the claimant’s solicitor properly briefed Dr Bodel. The extent of documents received by Dr Bodel is unclear. Dr Dias was not fully briefed, as he was not provided with a copy of Dr Keller’s report in circumstances where it would have been relevant to do so. Further, Dr Bodel and

Dr Dias assign impairment assessments in 2021 and 2022 respectively to body parts (both shoulders, right knee and left arm) that were not the subject of any ongoing disability in August 2020 when the claimant presented to Dr Keller. At that time, the claimant’s complaints were limited to neck and lower back pain only. It is unclear from the reasoning in the reports of Dr Bodel and Dr Dias how they arrive at their conclusion that these additional injuries are a result of the motor accident and/or result in permanent impairment. Of note, after the attendance on Dr Keller on 25 August 2020 the claimant fell down some stairs in or about September 2020, a matter that does not seem to have been considered by Dr Bodel or Dr Dias. Dr Bodel’s and Dr Dias’ combined impairment assessments for the cervical spine and lumbosacral spine are not greater than 10%.
The claimant contends that none of the medical evidence relied on by the insurer for their impairment decision contains an opinion on the degree of impairment. However, I do not consider this statement accurately reflects the content of the reports. Dr Keller makes clear in his report that there were “profound inconsistencies” in the claimant’s presentation, a lack of explanation for claimed disabilities, no objective evidence to support a claim of physical disability and no objective evidence of injuries. The only logical conclusion that a reader of this report can reach is that Dr Keller concludes the claimant has no assessable impairment. In other words, the impairment is nil.
The above stated, what must be made clear from the outset in this merit review is that I do not have jurisdiction to determine the degree of impairment as a result of the injury and whether it is or is not greater than 10%.
There is clearly a dispute between the parties as to the degree of impairment. The claimant contends it is greater than 10% based on Dr Dias and Dr Bodel and the insurer contends it is less than 10% based on Dr Keller together with other medical evidence considered. The insurer has issued an internal review decision in which a formal determination has been made that the claimant’s degree of impairment is not greater than 10%. In these circumstances, the question of whether the degree of impairment is greater than 10% is not a merit review matter under Schedule 2 of the MAI Act. Rather, it is a medical assessment matter under Schedule 2, cl 2(a). If the claimant disputes the internal review decision dated 1 June 2022 regarding the degree of impairment the claimant will need to lodge an application for a medical assessment under Division 7.5 of the MAI Act.
In the meantime, this is a merit review of the insurer’s separate internal review decision dated 17 June 2022 which is the decision to cease weekly benefits after 156 weeks. The only issue arising which I have jurisdiction to determine as a merit review is whether the claimant is entitled to weekly benefits after 156 weeks after the motor accident in circumstances where he has a pending claim for damages, but the insurer has made a determination that his degree of impairment is not greater than 10%.
It is clear from the wording of s 3.12(2)(c) that the only basis upon which weekly payments can continue beyond 156 weeks where there is a pending claim for damages is if “the degree of permanent impairment of the injured person as a result of the injury is greater than 10%” (emphasis added). To be able to say the claimant’s impairment “is” greater than 10% the expert medical evidence must establish on the balance of probabilities that the claimant’s permanent impairment is in fact greater than 10%. The wording is that the impairment “is” greater. In other words, the permanent impairment “must be” greater than 10% as distinct from “might be”, “may be” or “could be” greater than 10% or is “yet to be determined” or is “in dispute”. None of these alternatives to the position that the impairment must be greater than 10% can be inferred from the wording of s 3.12(2)(c). Section 3.12(2)(c) is not a contingent provision, depending on the outcome of a medical despite. Nothing in the wording suggests the provision can operate based on a contingency that the claimant might be assessed as greater than 10% in a medical dispute. Instead, the wording of s 3.12(2)(c) requires a positive position to be established at 156 weeks that is, that the degree of permanent impairment “is” greater than 10%.
The claimant has the onus of proof and must therefore establish for the purpose of s 3.12(2)(c) that their permanent impairment is greater than 10%. To do this, there must be reliable expert medical evidence which establishes on the balance of probabilities that the claimant’s impairment is greater than 10%. However, there is a significant divide between the opinions of Dr Bodel and Dr Dias on the one hand and Dr Keller on the other hand. As noted above, questions arise about Dr Bodel’s and

Dr Dias’ reports such that I am not comfortably satisfied on balance that Dr Bodel and/or Dr Dias should be readily accepted over Dr Keller. The division between opinions is such that if the claimant continues to dispute the insurer’s internal review decision dated 1 June 2022, then he should apply for a medical assessment to resolve the dispute.
The above stated, this is not a case where a formal determination as to whether the degree of impairment is greater than 10% has not been made. The current circumstances in this matter are that there is a formal determination by the insurer by way of the internal review decision dated 1 June 2022 that the claimant’s degree of permanent impairment is not greater than 10%. Until and unless there is a medical assessment and a medical assessment outcome that determines the degree of impairment is greater than 10% the current position is that the claimant’s degree of impairment has been determined as being not greater than 10%. Whether the medical evidence establishes this on balance is relevant prior to such determination being made. As a determination has been made by the insurer the discussion above simply serves to demonstrate that the insurer’s decision is not untenable.
While it is possible to say the claimant’s impairment is assessed at greater than 10% in the reports of Dr Bodel and Dr Dias, the MAI Act prescribes clear processes regarding disputes. Where there is a dispute about the degree of impairment parties typically obtain expert medical evidence in an effort to resolve the dispute. The insurer then makes a determination based on the medical evidence available to the insurer. Once the insurer has made a formal determination as to whether the impairment is greater than 10% the insurer’s determination supersedes the impairment assessments and becomes the current assessment. The insurer’s internal review determination remains in force under the MAI Act for the purpose of payment of statutory benefits, unless and until there is a medical assessment, which sets aside the insurer’s decision.
The wording “is assessed” in s 3.12 of the MAI Act is in current tense and therefore, where there are competing assessments, it can only be a reference to the current assessment that is in force and supersedes previous assessments, at the current time. That assessment is the insurer’s internal review decision of 17 June 2022, which effectively overrules the underlying medical evidence by virtue of the dispute resolution processes prescribed in the MAI Act.
The claimant relies on cl 4.129 of the Guidelines, which states:
“The insurer must make decisions relating to non-economic loss based on all the available information and documents, consistent with the facts and in accordance with the law. For example, the insurer should concede an entitlement to non-economic loss when it is in possession of health service provider examination reports that indicate that a claimant’s WPI is greater than 10%” (emphasis added).
However:
(a)    clause 4.129 is in relation to non-economic loss not statutory benefits. The matter at hand is in relation to statutory benefits and therefore cl 4.129 has no specific application, although may provide some guidance;
(b)    the wording of cl 4.129 is “should” as opposed to “must” or “shall” and is therefore not mandatory; and
(c)    the example given in cl 4.129 is that where there are health service provider examination reports that indicate a claimant’s WPI is greater than 10% the insurer should concede an entitlement to non-economic loss. In this case, the claimant relies on medico-legal reports. There is potential for those reports to be flawed, as noted above, and the insurer is equally in possession of medical reports which indicate the claimant’s degree of impairment is not greater than 10%, including Dr Keller. It cannot be intended that cl 4.129 has absolute application such that the insurer should concede the 10% threshold because one or more doctors conclude the injured person’s degree of impairment is greater than 10% even though other doctors disagree.
If the legislation intended that s 3.12 provide for the continuation of weekly payments beyond 156 weeks if there is underlying medical opinion that the degree of impairment is greater than 10%, regardless of a formal determination by the insurer in an internal review decision, presumably it would have said so. Instead, as noted, the requirement is that the claimant “is” assessed as being greater than 10% which is in current tense and therefore, I consider it clear that the overriding current decision is the relevant decision for the purpose of cl 3.12. For the reasons set out above the current assessment is the insurer’s internal review decision dated 1 June 2022.
In summary, the position in this matter is as follows:
(a) the claimant has been assessed by some doctors as having a degree of impairment greater than 10% and by others as having a degree of impairment that is not greater than 10%;
(b) on 1 June 2022 the insurer issued an internal review decision under the MAI Act in which they formally affirmed their decision on 10 May 2022 that the claimant’s degree of impairment is not greater than 10%, and
(c) the dispute resolution process under the MAI Act is such that the insurer’s internal review decision effectively overrides and therefore supersedes the underlying medical assessments as to impairment and remains in force as the current determination on impairment in so far as statutory benefits are concerned, unless and until it is set aside by a Medical Assessor in an application by the claimant for a medical assessment.
The requirement in s 3.12 that the claimant’s degree of impairment “is assessed” as being greater than 10% can only be a reference to the assessment in force in relation to statutory benefits when the question arises under s 3.12. For the reasons outlined above, the assessment in force is the insurer’s internal review decision dated 1 June 2022 that the claimant’s degree of impairment is assessed as being not greater than 10%. That decision remains the current impairment assessment for the purpose of s 3.12.
As the insurer’s internal review decision has not been set aside in a medical assessment, for the purpose of s 3.12 the claimant’s impairment is assessed as not being greater than 10%.
Given the divided medical opinions, it cannot be said that the insurer’s decision is untenable. The medical controversy is a matter to be resolved by way of a medical assessment. If interim payments under s 3.12 were permitted simply because some of the medical evidence assessed the injured person as being greater than 10% despite competing assessments or pending a medical dispute it would be problematic for the motor accident scheme. If ongoing payments were permitted in such circumstances, a not insignificant amount of money could be paid to a claimant resulting in an insurer being put in the position of trying to claw back the payments, if a medical dispute outcome confirms the claimant is not greater than 10%. Such circumstances are inconsistent with the objects of the MAI Act under s 1.3, which include:
(a)    to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities;
(b)    to keep premiums for third-party policies affordable by … limiting benefits payable for minor injuries, and
(c)    keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable and of promoting the recovery and return to work or other activities of those injured in motor accidents.

CONCLUSION

Pursuant to s 3.12(2)(b) of the MAI Act weekly payments cease after 156 weeks if the claimant’s degree of permanent impairment as a result of the injury is not greater than 10%.
Pursuant to s 3.12(2)(c) weekly payments may only continue beyond 156 weeks if the degree of permanent impairment is greater than 10%.
The wording “is assessed” in s 3.12 requires consideration of the current position. The current position is that there has been a formal determination by the insurer in an internal review decision that the claimant’s impairment is not greater than 10%.
By virtue of the dispute resolution process under the MAI Act the internal review decision is the current authoritative decision in so far as payment of statutory benefits is concerned, and as it assesses the degree of impairment as being less than 10% s 3.12(2)(c) is not triggered and instead, s 3.12(2)(b) applies.
It is understood the claimant has not applied for a medical assessment to resolve a medical dispute about the degree of impairment. If the claimant disputes the insurer’s internal review decision dated 1 June 2022, then he will need to apply for a medical assessment under Division 7.5 of the MAI Act. A review of the insurer’s 1 June 2022 internal review decision is a medical assessment matter under Schedule 2 of the MAI Act and not a merit review matter.

In the meantime, the language of the MAI Act does not permit payments to continue beyond 156 weeks on a contingent basis in case a medical dispute is determined in the claimant’s favour.
Unless and until an appointed Medical Assessor determines the claimant’s degree of permanent impairment is greater than 10% in the claimant’s degree of permanent impairment is not greater than 10%, as determined in the insurer’s internal review decision dated 1 June 2022.
The insurer’s decision to cease payments after 156 weeks under s 3.12(2)(b) is therefore correct at the current time and continues to be the correct decision, pending determination of a medical dispute about the question of impairment under Division 7.5 of the MAI Act.
Accordingly, the reviewable decision is affirmed.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation.

[2022] NSWPICMR 68

28 November 2022