Nasr v AAI Limited t/as AAMI - [2023] NSWPICMP 224

DETERMINATION OF REVIEW PANEL
CITATION:	Nasr v AAI Limited t/as AAMI [2023] NSWPICMP 224
CLAIMANT:	Tony Nasr
INSURER:	AAI Limited trading as AAMI
REVIEW Panel
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Thomas Rosenthal
DATE OF DECISION:	24 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Assem of 12 July 2022; MA had found that an annular tear L4/5 in the lumbar spine was a minor (now threshold) injury; claimant injured on 27 June 2020; claimant had MRI scan on 5 January 2021 detecting an annular tear at the L4/5 level; the MA found that the claimant’s pathology was not trauma related, was inconsistent with a significant accident and was minor in nature; claimant did not report complaint of his injuries until three months post-accident; claimant had provided a statement that if he took time off work because of pain arising from accident related injuries then he would lose his job; claimant had provided evidence that he was highly motivated to continue working due to financial constraints; the Panel accepted that the claimant could have continued working as a plant operator without complaint to his employer or doctor given his financial imperative; the insurer submitted that the claimant’s annular tear was degenerative in nature and not causally related to the accident; the Panel accepted that the annular tear was causally related to the accident and therefore a non-threshold injury; the claimant’s pathology was below the L4/5 level and was an acute change and not degenerative in nature; Held – Medical Assessment Certificate of MA Assem revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Assem of 12 July 2022. 2. The Panel determines that the claimant suffered the following injury; (a) Lumbar spine – Annular disc tear at L4/5. Disc protrusion contacting the left L4 nerve root and descending left L5 nerve root, which is a non-threshold injury (b) Left L5 radiculopathy of the lumbar spine

STATEMENT OF REASONS

BACKGROUND

This is a review of a certificate of Medical Assessor Assem (the Medical Assessor) dated 12 July 2022.
The following injuries were referred by Personal Injury Commission for assessment:
(a) Lumbar spine – Annular disc tear at L4/5. Disc protrusion contacting the left L4 nerve root and descending left L5 nerve root for assessment of whether it is a minor injury.
The Medical Assessor found;
“All the injuries referred to me for assessment have been assessed and determined not caused by the motor accident.
A decision as to whether these injuries are a minor injury is not required for the purposes of the Act.” (the Motor Accident Injuries Act)

The accident

On 27 June 2020, Mr Nasr was the sole occupant of a 2007 model Toyota Hilux vehicle travelling along MacArthur Road, Guildford. As he was passing a double parked vehicle, it suddenly drove in his path causing him to collide into the driver’s side of the offending vehicle. After impact, his vehicle was pushed to…

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 224
Decision Date: 24 May 2023

CaseChat Overview and Summary

Nasr was the claimant in a case against AAI Limited trading as AAMI, brought before the Motor Accident Authority of New South Wales. The dispute centred on a certificate issued by a Medical Assessor, Assem, dated 12 July 2022, which assessed the claimant's injury as minor, or a threshold injury. The claimant had sustained an annular tear at the L4/5 level in his lumbar spine, as confirmed by an MRI scan conducted on 5 January 2021. The assessor concluded that the pathology was not trauma-related, inconsistent with a significant accident, and minor in nature.

The legal issues before the court involved determining whether the annular tear was causally related to the motor accident and whether it constituted a minor or non-threshold injury. The claimant had not reported the injury until three months after the accident, and his motivation to continue working due to financial constraints was considered. The insurer argued that the injury was degenerative and not related to the accident, while the claimant maintained that the injury was acute and related to the accident.

The court's reasoning led to the revocation of the Medical Assessor's certificate. The Panel found that the claimant could have continued working without reporting his injuries due to financial pressures, which supported the claim that the injury was not minor. The Panel also determined that the claimant's pathology was an acute change and not degenerative, and therefore causally related to the accident. Consequently, the annular tear was classified as a non-threshold injury.

The final order of the court was that the Medical Assessment Certificate issued by Assem was revoked, recognising the claimant's injury as a non-threshold injury causally related to the motor accident.

Orders