Metlej v AAI Limited t/as AAMI - [2022] NSWPICMP 479

DETERMINATION OF REVIEW PANEL
CITATION:	Metlej v AAI Limited t/as AAMI [2022] NSWPICMP 479
CLAIMANT:	Toni Metlej
INSURER:	AAI Limited t/as AAMI
REVIEW Panel
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	24 November 2022
CATCHWORDS:	MOTOR ACCIDENTS – This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant complained of right shoulder and right arm pain following the motor accident and submitted he sustained non-minor injuries a rotator cuff tear injury in the right shoulder and right arm nerve tear; subsequent scan evidence showed complete transverse tear in right shoulder; right arm injury soft tissue; lack of early complaints; Bugat v Fox considered; original Medical Assessor opined on accident mechanism; Makita (Australia) Pty Ltd v Sprowles considered; Held – the Panel satisfied the claimant suffered a right shoulder tear in the motor accident as scans showed changes; Panel not satisfied the claimant had right arm nerve injury following the motor accident; the accident caused the right shoulder tear; non-minor injury under section 1.6 of the Motor Accident Injuries Act 2017.
DETERMINATIONS MADE:	Review Panel Assessment of Minor Injury Replacement Certificate** issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act) The Review Panel revokes Medical Assessor Wallace’s certificate dated 2 November 2021 and issues a new certificate determining that: The motor accident caused the following injuries: · right shoulder injury, and · right arm (nerve) injury. The right shoulder injury is not a MINOR INJURY for the purposes of the MAI Act The right arm (nerve) injury is a MINOR INJURY for the purposes of the MAI Act.**

REASONS

Background

Mr Metlej (the claimant) was seated in in the driver's position in his stationary motor-vehicle on 24 December 2019, when another motor vehicle struck his car in the rear. He claims the collision injured his right upper extremity being the right shoulder and the ulnar nerve and neck.
The insurer insured the owner and/or driver of the motor vehicle at fault for liability to pay to the claimant any damages/statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
On 1 July 2020 the insurer made an internal dispute review decision that the injuries Mr Metlej suffered in the accident were minor, for the purpose of s 1.6 of the MAI Act. The insurer took into account its findings in the notes and reports that the claimant's general practitioner, physiotherapist and neurologist, which included MRI scans and a bone scan.
The claimant lodged a medical dispute with the Dispute Resolution Service (DRS), which preceded the Personal Injury Commission (Commission). The DRS referred the dispute to MAS Assessor Dr Ray Wallace.
Medical Assessor Wallace provided a certificate dated 2 November 2021 deciding that the motor accident did not cause an injury to the right upper extremity (nerve).
Mr Metlej applied to have Medical Assessor Wallace's certificate referred to a review panel within 28 days of receiving the original 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 479
Decision Date: 24 November 2022

CaseChat Overview and Summary

The case of Metlej v AAI Limited t/as AAMI involved a dispute regarding the extent and nature of injuries sustained by the claimant following a motor accident. The claimant alleged that he suffered non-minor injuries, specifically a rotator cuff tear in the right shoulder and a nerve tear in the right arm, as a result of the accident. The matter was heard by a Panel, whose task was to determine the legitimacy of these claims and whether they constituted non-minor injuries under the Motor Accident Injuries Act 2017.

The primary legal issues before the Panel were to determine whether the claimant had indeed suffered a non-minor injury to his right shoulder and right arm, and if so, to what extent these injuries were attributable to the motor accident. This involved examining the claimant's medical evidence, including scans and reports, and assessing the credibility of his complaints in light of the available evidence. The Panel had to consider the accident mechanism and the timeline of the claimant’s complaints and medical assessments.

The Panel concluded that the claimant had indeed suffered a tear in his right shoulder, which was confirmed by subsequent scans that revealed complete transverse tear in the right shoulder. However, the Panel was not satisfied that the claimant had a right arm nerve injury following the accident. The Panel found that the accident caused the right shoulder tear, which qualified as a non-minor injury under section 1.6 of the Motor Accident Injuries Act 2017. Given this finding, the Panel determined that the claimant's right shoulder injury was a non-minor injury arising from the motor accident, while the claim for a right arm nerve injury was dismissed.

In summary, the Panel ruled in favour of the claimant on the issue of the right shoulder injury, recognising it as a non-minor injury resulting from the motor accident. Conversely, the claim for a right arm nerve injury was rejected.

Orders