Luo v AAI Ltd - [2022] NSWPICMP 52

DETERMINATION OF REVIEW PANEL
CITATION:	Luo v AAI Ltd [2022] NSWPICMP 52
CLAIMANT:	Zeming Luo
INSURER:	AAI Ltd
REVIEW PANEL:	Principal Member John Harris Dr Rhys Gray Dr Shane Moloney
DATE OF DECISION:	11 March 2022
CATCHWORDS:	MOTOR ACCIDENTS- The claimant was involved in a motor accident on 22 January 2017 when he sustained soft tissue injuries to the cervical and lumbar spines; the claimant also had pre-existing bilateral shoulder problems for work injuries; the claimant alleged the motor accident aggravated the bilateral shoulder condition; Held- The claimant was examined by both Medical Assessors (MA) who found nil impairment under the Motor Accident Permanent Impairment Guidelines; that assessment was consistent with the fact that the nature of a soft tissue injury may and can resolve over time; finding made that the bilateral shoulder condition was not aggravated by the motor accident based on the absence of contemporaneous complaint to doctors and in the claim form, the absence of complaint that the shoulders was injured to various qualified doctors and the history provided to the MA; the nature of the motor accident was not consistent with a shoulder injury; QBE Insurance (Australia) Ltd v Shah applied; no need to assess the shoulders as they were injured in the motor accident; Jarvis v Allianz Australia Insurance Ltd applied.
DETERMINATIONS MADE:	The Panel revokes the certificate dated 6 May 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is NOT GREATER THAN 10%: · lumbar spine, and · cervical spine. The Panel determines that the following injuries were not caused by the motor accident: - Injury or exacerbation to the shoulders.

REASONS

Background

The claimant (Mr Luo) suffered injury in a motor accident on 22 January 2017. The insured vehicle collided into the rear of the claimant’s vehicle.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Luo any damages under the Motor Accidents Compensation Act 1999 (the MAC
Act).
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.[1]
[1] See ss 57 and 58 of the 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 Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of 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: [2022] NSWPICMP 52
Decision Date: 11 March 2022

CaseChat Overview and Summary

In Luo v AAI Ltd, the claimant, Mr Luo, was involved in a motor accident on 22 January 2017. He sustained soft tissue injuries to the cervical and lumbar spines. Additionally, Mr Luo had pre-existing bilateral shoulder problems from previous work-related injuries. He alleged that the motor accident aggravated his bilateral shoulder condition. The dispute came before the court for resolution.

The central legal issues involved determining whether the motor accident had caused or aggravated Mr Luo's bilateral shoulder condition. Specifically, the court needed to assess if the accident led to a permanent impairment of his shoulders. This assessment was critical as it would determine the extent of compensation Mr Luo was entitled to receive.

The court examined the evidence provided by the Medical Assessors (MA), who found no impairment related to the bilateral shoulder condition. The court noted that the nature of soft tissue injuries can resolve over time, which was consistent with the MA's findings. Furthermore, the claimant's failure to contemporaneously complain of shoulder injuries to doctors or in his claim form, along with the history provided to the MA, supported the conclusion that the motor accident did not aggravate his shoulder condition. The court applied principles from QBE Insurance (Australia) Ltd v Shah and Jarvis v Allianz Australia Insurance Ltd, which reinforced the conclusion that there was no aggravation of the pre-existing condition.

The court ultimately ruled in favour of the defendant, finding that the bilateral shoulder condition was not aggravated by the motor accident. Consequently, Mr Luo was not entitled to compensation for the aggravation of his shoulder condition.

Orders