Mehmood v AAI Limited t/as GIO - [2023] NSWPICMP 66

DETERMINATION OF REVIEW PANEL
CITATION:	Mehmood v AAI Limited t/as GIO [2023] NSWPICMP 66
CLAIMANT:	Faisal Mehmood
INSURER:	AAI Ltd t/as GIO
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Tai-Tak Wan
DATE OF DECISION:	2 March 2023
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 6 September 2017 when he was in a vehicle rear ended by the insured vehicle; the medical dispute was whether the degree of impairment of the injury caused by the motor accident was greater than 10%; the claimant had a chronic pre-existing lumbar spine condition; Panel found that the injury to the lumbar spine resolved adopting history that symptoms had settled to pre-accident levels; based on the circumstances of the motor accident, the contemporaneous complaint of neck pain, the likelihood that this type of accident would aggravate pre-existing pathology and the worsening shown in cervical spine pathology from the pre-accident condition, the Panel was satisfied that the motor accident aggravated the pathology at C6/7 resulting in further cervical symptoms and left sided radicular symptoms; the pathology aggravated by the motor accident was susceptible to further progressive symptoms which appear to have deteriorated in the latter part of 2018 which ultimately led to the spinal fusion; Held – claimant assessed at 20% permanent impairment in respect of the cervical spine after a deduction of 5% for the pre-existing condition; original Medical Assessment Certificate 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 Panel revokes the certificate of Medical Assessor Moloney dated 10 June 2022 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 GREATER THAN 10%: · cervical spine, and · lumbar spine (resolved).

REASONS

BACKGROUND

Mr Faisal Mehmood (the claimant) was injured in a motor accident on 6 September
[1] Claimant’s bundle, p 8.
2017. Mr Mehmood was in his vehicle stopped at a pedestrian crossing and was hit from behind by the insured vehicle.[1]
The insurer insured the owner and driver of the vehicle for liability to pay Mr Mehmood 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.[2]
[2] See ss 57 and 58 of the MAC Act.
Mr Mehmood claims that he suffered impairment of his cervical and lumbar spine. He ultimately came to cervical spine surgery in the form of C6/7 anterior cervical discectomy and fusion on 12 May 2020.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines…

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.

Keep reading for free

Create a free CaseChat account to read Mehmood v AAI Limited t/as GIO and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPICMP 66
Decision Date: 2 March 2023

CaseChat Overview and Summary

In Mehmood v AAI Limited t/as GIO, the claimant, Mehmood, sought compensation for injuries sustained in a motor accident on 6 September 2017. The accident occurred when Mehmood's vehicle was rear-ended by a vehicle insured by the defendant, AAI Limited trading as GIO. The dispute centred on the extent of impairment caused by the accident, specifically whether the claimant's injuries resulted in a degree of impairment greater than 10%. Mehmood had a pre-existing chronic lumbar spine condition, complicating the assessment of impairment caused by the accident. The case was heard by a panel, which needed to determine whether the motor accident had aggravated the claimant's pre-existing conditions and to what extent.

The primary legal issue was whether the motor accident caused an impairment greater than 10% beyond the claimant's pre-existing condition. The panel had to assess whether the accident aggravated the claimant's lumbar spine condition and whether it caused or exacerbated cervical spine symptoms. The panel also had to consider the likelihood that the accident would aggravate pre-existing pathology and whether the worsening shown in the claimant's cervical spine pathology was a result of the accident or the natural progression of the pre-existing condition.

The panel concluded that while the claimant's lumbar spine injury resolved, the motor accident did aggravate the pathology at C6/7, resulting in further cervical symptoms and left-sided radicular symptoms. The panel found that the pathology aggravated by the accident was susceptible to further progressive symptoms which appeared to have deteriorated in the latter part of 2018, ultimately leading to spinal fusion surgery. Based on these findings, the panel assessed the claimant's permanent impairment at 20% in respect of the cervical spine, deducting 5% for the pre-existing condition. The original Medical Assessment Certificate was revoked, and the claimant was awarded compensation reflecting the revised assessment of impairment.

The final orders of the court reflected the panel's findings, awarding the claimant compensation based on the revised assessment of permanent impairment. The court confirmed the claimant's entitlement to compensation for the injuries sustained in the motor accident, subject to the deductions for the pre-existing condition.

Orders