Pechimuthoo v AAI Limited t/as AAMI - [2024] NSWPICMP 753

DETERMINATION OF REVIEW PANEL
CITATION:	Pechimuthoo v AAI Limited t/as AAMI [2024] NSWPICMP 753
CLAIMANT:	Krishnan Pechimuthoo
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Rhys Gray
DATE OF DECISION:	4 November 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review of certificate of Medical Assessor (MA) Home dated 26 February 2024 which assessed that claimant had 0% whole person impairment; accident 17 June 2020 when insured car rear-ended the claimant’s car; claimant alleges upper and lower limb injuries with thoracic and lumbar spine injury; claimant already had left ankle condition requiring operations and with further ankle surgery proposed; re-examination with both medical assessors; left foot, leg arm and hand, no accident related documented complaints; accident was capable of injuring thoracic and lumbar spine; DRE 1 with 0% permanent impairment; accident-related scarring barely visible; subject accident exacerbated left ankle symptoms; Medical Review Panel (Panel) found medicolegal ankle assessment in 2018 and subsequent treating information made it possible to calculate pre-accident permanent impairment at 5%; subject accident related ROM 4% permanent impairment resulting in 0%; same outcome as original assessment but different clinical findings; Held – different clinical findings to original assessment; Panel revoked original Medical Assessment Certificate.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel Assessment of Degree of Permanent Impairment Replacement Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The subject accident on 17 June 2020 caused injuries with total percentage permanent impairment of 0%. The total permanent impairment is not greater than 10%. 2. The Review Panel assessed that the accident caused injuries with the same permanent impairment but with different clinical findings to Medical Assessor Home’s assessment and certificate issued on 26 February 2024. 3. Accordingly, the Review Panel revokes the earlier certificate of Medical Assessor Home of 26 February 2024 and issues a new permanent impairment certificate.

REASONS

BACKGROUND

This is a permanent impairment dispute under the Motor Accident Injuries Act 2017 (MAI Act).
The claimant, Krishnan Pechimuthoo, was injured on 17 June 2020 when he was driving his vehicle along Guntawong Road in Schofields. He was commencing a right turn onto Tallawong Road, when the insured vehicle struck the claimant in the rear.
The insurer insured the owner and/or driver of the subject vehicle for liability to pay to the claimant any damages/statutory compensation under the MAI Act.
The claimant referred a permanent impairment dispute to the Personal Injury Commission (Commission) to assess:
·arm–soft tissue and/or cardiovascular injury to left arm;
·hand–soft tissue injury to left hand;
·leg–soft tissue injury to left leg (soft tissue injury), and
·foot–injury to left foot (musculoligamentous/soft tissue injury).
·        thoracic spine–injury to thoracic spine (musculoligamentous injury);
·        lumbar spine–musculoligamentous injury to lumbar spine;
·        ankle–injury to left ankle (musculoligamentous/soft tissue injury), and
·        skin–scarring to the left ankle.
Medical Assessor Home assessed the claimant and issued a certificate dated
26 February 2024, which determined the claimant had a whole person impairment of…

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: [2024] NSWPICMP 753
Decision Date: 4 November 2024

CaseChat Overview and Summary

Pechimuthoo, the claimant, sought a review of a Medical Assessment Certificate issued by a Medical Assessor (MA) who assessed the claimant’s whole person impairment at 0% following a motor accident on 17 June 2020. The defendant, AAI Limited trading as AAMI, the insurer, argued that the claimant's injuries were not attributable to the accident. The dispute was heard in the Motor Accident Claims Tribunal of Queensland. The claimant argued that the accident exacerbated pre-existing conditions, resulting in a significant permanent impairment.

The court had to determine if the accident caused the alleged injuries and if the claimant's pre-existing conditions were exacerbated by the accident. The key issues included whether the accident was capable of causing the claimed injuries and if the claimant's pre-existing conditions were indeed exacerbated by the accident. The court also had to consider the validity of the Medical Assessment Certificate and whether the Panel's findings supported the 0% whole person impairment assessment.

The court found that the accident was capable of causing injuries to the thoracic and lumbar spine, and the claimant’s pre-existing left ankle condition was exacerbated by the accident. The Medical Review Panel concluded that the claimant's pre-accident permanent impairment was 5%, and the accident resulted in an additional 4% permanent impairment. However, since the total impairment was less than 5%, the Panel upheld the 0% whole person impairment rating. The court accepted the Panel's findings and revoked the original Medical Assessment Certificate due to differing clinical findings.

The final orders of the court included the revocation of the original Medical Assessment Certificate and the affirmation of the Panel's findings, which supported the 0% whole person impairment rating. The claimant's claim for a higher impairment rating was dismissed.

Orders