NRMA Insurance Ltd v Seymour - [2021] NSWPICMP 194

DETERMINATION OF REVIEW PANEL
CITATION:	NRMA Insurance Ltd v Seymour [2021] NSWPICMP 194
CLAIMANT:	Raymond Bruce Seymour
INSURER:	NRMA Insurance Ltd
REVIEW PANEL:	Principal Member John Harris Dr Shane Moloney Dr Thomas Rosenthal
DATE OF DECISION:	5 October 2021
CATCHWORDS:	MOTOR ACCIDENTS- The Claimant was injured whilst driving a tractor which was struck from behind and tipped over; Held - the parties accepted that the Review Panel (RP) could adopt the examination findings made by the original Medical Assessor; the Claimant was injured in a motor accident on 5 May 2006 and underwent shoulder surgery in December 2006; despite the absence of contemporaneous reports and detailed clinical notes, the RP was satisfied that the accident caused a shoulder tear that required surgery by reason of the manner of injury and temporal relationship with consulting and being treated by the specialist; QBE Insurance v Shah and AAI Ltd v McGiffen applied; the Claimant underwent a lumbar fusion in late 2009; the RP was not satisfied that the surgery was causally related to the motor accident because the pathology treated by the surgeon was pre-existing and not aggravated by the motor accident; the clinical notes were deficient, and the Claimant’s memory was poor due to subsequent cardiac surgery; RP satisfied that the Claimant suffered a soft tissue injury to the lumbar spine that would have resolved and that the subsequent fusion was unrelated injury; the Claimant had a pre-existing right knee injury where the patella and cartilage were removed; the removal of the patella and cartilage would have affected the biomechanics of the knee and inevitably led to further degeneration affecting loss of range of motion; the Claimant suffered a soft tissue right knee injury which would have resolved over a period of time; the present loss of range of motion was entirely due to the previous injury; Claimant reassessed at 1% impairment due to shoulder injury.

STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT

Medical Assessment – Permanent Impairment

Review Panel Certificate

issued under Part 3.4 of the Motor Accidents Compensation Act 1999

following a review under section 63 as to

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 SECTION 63(4) IS AS FOLLOWS:

The Panel revokes the certificate dated 10 March 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 – soft tissue injury;
·        right knee – soft tissue injury, and
·        right shoulder – supraspinatus tear.

BACKGROUND

Mr Raymond Seymour suffered injury in a motor accident on 5 May 2006 whilst driving a tractor. Mr Seymour’s vehicle was struck from behind by another vehicle causing the tractor to tip and throwing him out of his seat.

NRMA Insurance Limited (the insurer)…

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: [2021] NSWPICMP 194
Decision Date: 5 October 2021

CaseChat Overview and Summary

NRMA Insurance Ltd was contesting a claim brought by Mr. Seymour for injuries sustained in a motor accident. Mr. Seymour was driving a tractor that was struck from behind, causing it to tip over. The case was heard in the relevant Australian court. The central issue was whether the injuries Mr. Seymour sustained during the accident required medical intervention, and if so, whether those interventions were causally linked to the accident.

The court had to determine whether the shoulder tear, necessitating surgery in December 2006, was caused by the accident. The parties agreed that the Review Panel could rely on the examination findings of the original Medical Assessor. Despite the lack of contemporaneous reports and detailed clinical notes, the Review Panel concluded that the accident caused the shoulder tear due to the manner of injury and the temporal relationship between the accident and the treatment. The court applied the principles from QBE Insurance v Shah and AAI Ltd v McGiffen to support this conclusion. However, the court found that the lumbar fusion surgery in late 2009 was not causally related to the accident because the underlying pathology was pre-existing, and the clinical notes were insufficient to establish a causal link. The soft tissue injury to the lumbar spine was considered to have resolved naturally.

The court also examined Mr. Seymour's right knee injury, where the patella and cartilage were removed before the accident. It was determined that this pre-existing condition inevitably led to further degeneration, and the present loss of range of motion was due to this earlier injury. The soft tissue injury to the right knee, which would have resolved over time, was not causally linked to the accident. As a result, Mr. Seymour was reassessed at 1% impairment due to the shoulder injury.

Orders