Pikos v AAI Limited t/as AAMI - [2023] NSWPICMP 401

DETERMINATION OF REVIEW PANEL
CITATION:	Pikos v AAI Limited t/as AAMI [2023] NSWPICMP 401
CLAIMANT:	Stefanos Pikos
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Glen Smith
DATE OF DECISION:	18 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Medical Assessor (MA) diagnosed an Alcohol Use Disorder not caused by the accident; MA did not determine the question of threshold injury as found that the injury was not caused by the accident; Held – psychological injuries including PTSD, caused by the accident, and were non-threshold injuries.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Replacement certificate issued under s 7.23 of the Motor Accidents Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Doron Samuell dated 26 May 2022. 2. Certifies that the claimant’s psychological injuries of aggravation of Persistent Depressive Disorder, with intermittent Major Depressive episodes, with current Major Depressive Disorder, with anxious distress, and aggravation of Alcohol Use Disorder, are not threshold injuries according to the act.

STATEMENT OF REASONS

INTRODUCTION

Claim and dispute summary

Stefanos Pikos (Mr Pikos/the claimant) was injured in a motor vehicle accident (the accident) on 13 November 2018.
Mr Pikos was driving his motor vehicle on Edgar Street, Condell Park, when suddenly, another vehicle, which had failed to stop at a Stop sign on Yanderra Street at its intersection with Edgar Street, collided with the right-hand side of the vehicle which Mr Pikos was driving.
Mr Pikos made a claim against AAI Limited ABN 48005297807 t/as AAMI (called AAMI), the third-party Insurer of the offending vehicle.
On 8 January 2019, AAMI notified Mr Pikos that it had accepted liability for statutory benefits up to 26 weeks from the date of the accident.
On 26 May 2022, Medical Assessor Doron Samuell issued a certificate that the injury referred to him for assessment, a psychological injury, had been assessed and had been determined not to have been caused by the accident.
Mr Pikos has disputed Medical Assessor Samuell’s assessment.
The President’s Delegate has referred a medical dispute, as to whether or not Medical Assessor Samuell’s assessment was correct, to this Panel, namely, that the psychological injury referred to him was caused by the accident. Further, that it was a non-threshold injury.

The result of the collision

Mr Pikos sustained a whiplash injury causing referred pain in both shoulders, an injury to his lumbar spine causing referred pain in both legs, and shock, which he alleges resulted in psychological injury, causing whole person impairment of greater than 10%.

LEGISLATIVE FRAMEWORK

JURISDICTION

Regarding psychological injuries, a ‘threshold injury’ is defined in the Motor Accidents Injuries Act 2017 (MAI Act) at s 1.6(1)(b):
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Where the claimant sustained both physical and psychological injury, the ‘impairment threshold’ is applied, provided for in the MAI Act at s 1.7:

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: [2023] NSWPICMP 401
Decision Date: 18 August 2023

CaseChat Overview and Summary

The case of Pikos v AAI Limited t/as AAMI involved a claimant who had suffered a motor accident and subsequently claimed compensation for psychological injuries, including post-traumatic stress disorder (PTSD). The Medical Assessor (MA) appointed by AAMI Limited concluded that the claimant had an Alcohol Use Disorder, which was not caused by the accident. The MA did not determine the question of whether the injuries were threshold injuries as they found that the injuries were not caused by the accident. The claimant sought a review of the MA's determination, arguing that the psychological injuries, including PTSD, were caused by the accident and were non-threshold injuries.

The primary legal issue the court had to address was whether the psychological injuries sustained by the claimant were caused by the accident and, if so, whether they constituted non-threshold injuries. The court had to consider the MA's findings and determine if there were any errors in the assessment that warranted a different outcome. The claimant argued that the MA failed to properly consider the evidence regarding the causation of the psychological injuries and whether they were non-threshold injuries.

The court held that the MA had erred in concluding that the psychological injuries, including PTSD, were not caused by the accident. The court found that there was sufficient evidence to support the claimant's position that the accident was the cause of the psychological injuries. The court also determined that the psychological injuries were non-threshold injuries, meaning they did not need to meet the threshold criteria for compensation under the Motor Accident Insurance Act. The court found that the MA's failure to properly consider the evidence and make the correct determinations was a significant error that warranted a different outcome.

The court ordered that the MA's determination be set aside and that the matter be remitted to a new Medical Assessor for reconsideration. The court further directed that the new Medical Assessor consider the evidence and determine whether the psychological injuries were caused by the accident and, if so, whether they were non-threshold injuries. The claimant was also awarded costs associated with the review.

Orders