Newman v AAI Limited t/as GIO - [2022] NSWPICMR 42

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Newman v AAI Limited t/as GIO [2022] NSWPICMR 42
CLAIMANT:	Florence Enriquez Newman
INSURER:	AAI Limited t/as GIO
MERIT REVIEWER:	Terence O'Riain
DATE OF DECISION:	22 July 2022
CATCHWORDS:	MOTOR ACCIDENTS- Dispute about the amount of weekly payments of statutory benefits payable under section 3.8, Division 3.3, Part 3 of the Motor Accident Injuries Act 2017 (2017 Act) after the second entitlement period (after 78 weeks); insurer argues this claimant’s earning capacity dispute constitutes a medical assessment matter under Schedule 2 clause 2(d) of the 2017 Act and the Personal Injury Commission (Commission) may not determine the dispute as a merit review matter; “impairment of earning capacity” as a medical dispute is found in Part 4 of the 2017 Act; see for example sections 4.5(1)(a), 4.6(1)(a), 4.6(3), 4.8 & 4.9(1)(a); Part 4 addresses damages not statutory benefits; right shoulder condition complained of 4 months post–accident; General Practitioner supports accident causing claimant’s loss of earning capacity; conflicting causation opinions in medical assessments on treatment and minor injury status; medical assessments not binding on causation; conflicting claimant accounts of accident mechanism and symptom onset in right shoulder; Assessors relying on uneducated and mentally ill claimant to provide account of accident mechanism; right shoulder asymptomatic pre–accident; insurer preferred view that psychological condition related only to right shoulder; not accident related; 3 member Medical Review Panel (Panel) questioned claimant on accident mechanism via video; Panel made findings on credit; Panel found right shoulder not related to accident; but neck condition related and non–minor; Medical Assessor found accident primarily caused non-minor psychological condition and secondarily related to accepted neck and disputed right shoulder conditions; Held — the Commission can determine this dispute about earning capacity as a merit review matter under Schedule 2(1)(a) of the 2017 Act; reviewable decision set aside and remitted to insurer to consider; correct and preferable conclusion claimant’s loss of earning capacity was substantially a result of her primary psychological condition arising from the accident and secondary psychological condition arising from her neck injury.
DETERMINATIONS MADE:	Certificate Issued under section 7.13(4) of the Motor Accident Injuries Act 2017 The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Act, and is therefore a merit review matter *under Schedule 2(1)(a) of the Motor Accidents Injuries Act 2017.* The reviewable decision dated 15 October 2022 is set aside and remitted to the insurer for reconsideration in accordance with the directions below: 1. Ms Newman on consideration of her treating general practitioner certificates supporting her loss has suffered a loss of earning capacity as a result of her injuries sustained in the subject motor accident. 2. I find that the correct and preferable conclusion is that Ms Newman’s loss of earning capacity was substantially a result of her primary psychological condition arising from the accident and secondary psychological condition arising from her neck injury. 3. This decision is to have effect from 8 December 2020.

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] NSWPICMR 42
Decision Date: 22 July 2022

CaseChat Overview and Summary

Newman brought a claim against AAI Limited t/as GIO for weekly statutory benefits under the Motor Accident Injuries Act 2017. The dispute centred on the amount of benefits payable after the second entitlement period, specifically regarding the claimant's loss of earning capacity. AAI argued that the claimant's dispute about her earning capacity was a medical assessment matter, which under the Act should be determined by the Personal Injury Commission. The claimant contended that the dispute was a merit review matter, which the Commission was empowered to decide.

The court had to determine whether the dispute about the claimant's earning capacity was a medical assessment matter or a merit review matter. The court had to examine the provisions of the Motor Accident Injuries Act 2017, particularly Schedule 2 clause 2(d) which pertains to medical assessment matters, and Schedule 2(1)(a) which relates to merit review matters. Additionally, the court needed to consider the nature of the claimant's injuries and the evidence presented about the causation and impact of these injuries on her earning capacity.

The court found that the dispute about the claimant's earning capacity was indeed a merit review matter. The court held that the claimant's loss of earning capacity was primarily due to her primary psychological condition arising from the accident and secondarily due to her neck injury, which was also a result of the accident. The court set aside the insurer's decision and remitted the matter back to the insurer to reconsider the claimant's entitlement to benefits based on the correct and preferable conclusion reached by the court. The court's decision was based on the evidence presented, including the findings of the Medical Review Panel and the claimant's medical history and condition.

Orders