Pearce v AAI Limited t/as AAMI - [2023] NSWPICMP 151

DETERMINATION OF REVIEW PANEL
CITATION:	Pearce v AAI Limited t/as AAMI [2023] NSWPICMP 151
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:	18 April 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 10% WPI.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Curtin dated 2 July 2022. 2. Finds the following injuries caused by the motor accident give rise to a permanent impairment of 10%: (a) skin-scarring: right knee, right forearm, right foot, right elbow, right ankle, and right shoulder.

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, and right shoulder.
The claimant applied for a review of the decision of the Medical Assessor.
The Panel requested the parties provide respective bundles of documentation upon which they relied and these have been provided, including submissions. The Panel have read all of the documentation within each bundle of documents.

THE ACCIDENT AND IMMEDIATE POST-ACCIDENT TREATMENT

The accident occurred on 3 November 2018. The claimant was riding a motorbike, wearing a helmet, gloves, and no other protective gear. The claimant was confronted with a car suddenly appearing on his right. A collision occurred, and the claimant was thrown onto the road, hitting his right leg and knee and sliding along the road with his motorbike on top of him. Amongst other things, the claimant suffered scarring as well as physical injuries.
The claimant was admitted to St George Hospital by ambulance. He had deep lacerations to the right knee and the plantar surface of the right foot and multiple abrasions of the right ankle and foot, the right shoulder, elbow and forearm.
The claimant had surgery on 3 November 2018 and again on 9 November 2018.
Following discharge from the…

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.

Continue reading Pearce v AAI Limited t/as AAMI

Details

AGLC: Pearce v AAI Limited t/as AAMI [2023] NSWPICMP 151
Case: [2023] NSWPICMP 151
Decision Date: 18 April 2023

CaseChat Overview and Summary

In Pearce v AAI Limited t/as AAMI, the claimant sought a review of a decision made by the Medical Assessor (MA) regarding the whole person impairment (WPI) resulting from injuries sustained in a motorcycle accident on 3 November 2018. The MA had determined a WPI of 2% relating to scarring on the claimant's right knee, right forearm, right foot, right elbow, right ankle, and right shoulder. The claimant argued that the MA had failed to apply the TEMSKI descriptors, but this was dismissed by the Appeal Panel, who found that the TEMSKI descriptors were not appropriate. Instead, the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, was applied, alongside an assessment of the limitation of performance of several activities of daily living (ADL).

The legal issues before the court involved the proper application of impairment assessment guidelines and the appropriateness of the method used to determine the WPI. The claimant contended that the MA's assessment of 2% WPI was significantly undervaluing the extent of the claimant's impairments and the impact on their daily life. The Appeal Panel had to determine whether the MA's decision was correct or whether the claimant's impairments warranted a higher WPI rating.

The Appeal Panel examined the evidence and the methodologies used by the MA. They considered the claimant's ongoing sensitive scarring, which required desensitisation therapy, and the limitation of performance of daily activities. Ultimately, the Appeal Panel determined that the MA's assessment of 2% WPI was insufficient. They reassessed the claimant's impairments using the American Medical Association’s Guides and concluded that a 10% WPI was more appropriate. This decision was based on the claimant's persistent symptoms and the impact on their ability to perform daily activities.

The Appeal Panel's decision was upheld, and the claimant's WPI was revised to 10%. The panel found that the MA had not adequately considered the claimant's limitations and the impact of the scarring on their daily life. The claimant's appeal was successful in part, with the WPI rating being increased from 2% to 10%. This decision underscored the importance of a comprehensive assessment of all factors contributing to the claimant's impairments and their daily functioning.

Orders