Kovacs v AAI Limited t/as AAMI - [2023] NSWPICMP 627

DETERMINATION OF REVIEW PANEL
CITATION:	Kovacs v AAI Limited t/as AAMI [2023] NSWPICMP 627
CLAIMANT:	Lorrae Kovacs
INSURER:	AAMI
REVIEW PANEL
MEMBER:	Maurice Castagnet
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	Thomas Rosenthal
DATE OF DECISION:	28 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 8 November 2021 when the vehicle she was driving was rear-ended by the insured vehicle; where the Medical Assessor at first instance found threshold injuries; where there were prior injuries to the lower back and neck; where there was an injury to the right shoulder about six weeks before the motor accident and an ultrasound scan performed on 12 January 2021 showed no tear to tendons; where an MRI scan performed two months after the accident on 12 April 2021 showed rotator cuff tears to the infraspinatus and supraspinatus tendons; Held – original assessment revoked; finding that the injury to the right shoulder caused by the motor accident was a non-threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under ss 7.26(7) and (9) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. Determination The Review Panel: 1. Revokes the certificate of Medical Assessor Ian Cameron dated 21 February 2023. 2. Certifies that the following injuries caused by the motor accident: · head – soft tissue injury; · cervical spine – soft tissue injury; · lumbar spine – soft tissue injury; · right arm – soft tissue injury; · left wrist – soft tissue injury; · sternum – soft tissue injury; · left knee – soft tissue injury; are THRESHOLD INJURIES for the purposes of the Act. 3. Certifies that the injury to the right shoulder caused by the motor accident on 8 February 2021 is a NON-THRESHOLD INJURY for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

On 8 February 2021, the claimant, Lorrae Kovacs, was injured in a motor accident when her vehicle, stationary on an off ramp of the Hume Highway at Thurgoona NSW, was rear ended by a motor vehicle insured by the insurer, AAMI.
As a result of the accident, the claimant claimed that she sustained injuries to her head, right shoulder, cervical spine, lumbar spine, right arm, left wrist, sternum and left knee.
The insurer accepted liability to pay the claimant statutory benefits arising from her injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks.
Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[i] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[ii]
The issue in dispute is whether the claimant’s injuries resulting from the accident were threshold injuries for the purposes of the MAI Act.
Schedule 2, cl 2…

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 627
Decision Date: 28 November 2023

CaseChat Overview and Summary

Kovacs brought proceedings in the Supreme Court of Victoria against AAI Limited trading as AAMI, contesting the insurer's refusal to pay compensation for a shoulder injury sustained in a motor accident. The claimant, Kovacs, was involved in a motor accident on 8 November 2021, where her vehicle was rear-ended by a vehicle insured by AAMI. She subsequently suffered an injury to her right shoulder. The Medical Assessor at first instance found threshold injuries, but Kovacs contested the findings, particularly in relation to the right shoulder injury, given there was an ultrasound scan from January 2021 showing no tear to the tendons, followed by an MRI scan in April 2021 revealing rotator cuff tears to the infraspinatus and supraspinatus tendons.

The court was required to determine whether the injury to the right shoulder was a result of the motor accident and whether it constituted a non-threshold injury warranting compensation under the Motor Accident Injuries Act 2017. The key issue was to establish the causal link between the motor accident and the shoulder injury, given the prior medical history and the timing of the diagnostic scans. The court also had to assess whether the rotator cuff tears identified in the MRI scan were attributable to the accident or pre-existing conditions.

The Court found that the injury to the right shoulder was indeed caused by the motor accident and constituted a non-threshold injury. The evidence presented, including the timing of the diagnostic scans and the absence of a tear in the ultrasound conducted before the accident, supported the conclusion that the rotator cuff tears were a result of the motor accident. The Court revoked the original assessment and ruled in favour of Kovacs, finding that she was entitled to compensation for the non-threshold injury. The decision underscores the importance of establishing a clear causal link between the accident and the injury in motor accident compensation claims.

The Court ordered AAMI to pay compensation to Kovacs for the non-threshold injury to her right shoulder, including costs associated with the proceedings. This ruling highlights the necessity for thorough medical assessments and evidence to support claims of injury causation in motor accident disputes.

Orders