Pearce v AAI Limited t/as AAMI - [2023] NSWPICMP 370

DETERMINATION OF REVIEW PANEL
CITATION:	Pearce v AAI Limited t/as AAMI [2023] NSWPICMP 370
CLAIMANT:	Luke Pearce
INSURER:	AAI Limited trading as AAMI
REVIEW Panel
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Michael McGlynn
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	2 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) dated 2 July 2022; MA determined a whole person impairment (WPI) of 2% with respect to scarring of the claimant’s right knee, right forearm, right foot, right elbow, right ankle and right shoulder; the claimant was injured in an accident on 3 November 2018 when riding his motorcycle which collided with a car; the claimant had surgery on admission to hospital and thereafter fractional laser therapy treatment for approximately 12 months post-accident; scarring remains sensitive and required desensitisation therapy; the claimant submitted that the MA failed to apply TEMSKI descriptors but following examination by the Appeal Panel the TEMSKI descriptors were not deemed appropriate and assessment was applied adopting the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th Edition, and limitation of performance of several activities of daily living (ADL); Held – Appeal Panel assessed the claimant at WPI greater than 10%.
DETERMINATIONS MADE:	REPLACEMENT CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 DETERMINATION 1. The Panel revokes the Certificate of Medical Assessor Curtin dated 2 July 2022. 2. The Panel finds that the injuries suffered by the claimant in the accident on 3 November 2018 are causally related. 3. The Panel finds a total whole person impairment of 10% for his physical injuries being scarring to his right knee, right foot, right elbow, right ankle and right shoulder not including his injuries to his right leg – right knee soft tissue injury including lateral femoral condyle bruising and right hand – right 5th metacarpal fracture dislocation, avulsion fracture of the hamate, non-displaced fracture of the base of the 4th metacarpal 4. The Panel revokes the combined certificate of Medical Assessor Curtin dated 6 July 2022 and issues a new combined certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%: i. Scarring to right knee, right foot, right elbow, right ankle and right shoulder ii. Right leg – right knee soft tissue injury including lateral femoral condyle bruising iii. Right hand – right 5th metacarpal fracture dislocation, avulsion fracture of the hamate, non-displaced fracture of the base of the 4th metacarpal 5. The combined whole person impairment for these injuries is 15%. 6. The combined whole person impairment assessments of 10% by the Panel and 6% by Medical Assessor Menogue is 15% applying the combined tables.

STATEMENT OF REASONS

THE DECISION REVIEWED

Medical Assessor Curtin (the Medical Assessor), in his certificate of 2 July 2022, found the following injuries caused by the motor accident gave rise to a permanent impairment of 2%:
a) skin-scarring: right knee, right forearm, right foot, right elbow, right ankle,…

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

AGLC: Pearce v AAI Limited t/as AAMI [2023] NSWPICMP 370
Case: [2023] NSWPICMP 370
Decision Date: 2 August 2023

CaseChat Overview and Summary

In Pearce v AAI Limited t/as AAMI, the claimant, who was injured in a motorcycle accident, sought to overturn a decision made by a Medical Assessor (MA) who had determined a whole person impairment (WPI) of 2% based on scarring in various parts of the claimant's body. The claimant argued that the MA had failed to apply TEMSKI descriptors correctly, but the Appeal Panel found that TEMSKI descriptors were not suitable for this case. The claimant had surgery and received fractional laser therapy for about a year following the accident, but the scars remained sensitive and required desensitisation therapy. The Panel needed to decide whether the WPI assessment was appropriate and if the MA had correctly evaluated the claimant's limitations in performing activities of daily living.

The court was tasked with determining whether the MA had correctly assessed the claimant's WPI and whether the MA's methodology was in line with the applicable standards. The claimant contested the MA's decision, asserting that the MA had not applied TEMSKI descriptors accurately, which led to an underestimation of the impairment. The Appeal Panel, however, found that the TEMSKI descriptors were not suitable for this particular case and opted to use the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, and assess the limitation of the claimant's performance of several activities of daily living.

After reviewing the evidence and conducting its own assessment, the Appeal Panel concluded that the MA had significantly underestimated the claimant's WPI. The Panel found the claimant's WPI to be greater than 10%, a substantial increase from the MA's initial assessment of 2%. The court considered the sensitivity of the scars, the need for ongoing desensitisation therapy, and the claimant's limitations in performing daily activities when arriving at this decision. The Appeal Panel's assessment took into account the totality of the claimant's condition and its impact on his life, leading to a re-evaluation of the WPI.

The Appeal Panel's decision was that the claimant's WPI was greater than 10%, overturning the MA's assessment of 2%. The court found that the MA had not appropriately evaluated the claimant's condition and the impact of the scarring on his ability to perform daily activities. The claimant's appeal was successful, and the WPI was adjusted accordingly.

Orders