QBE Insurance (Australia) Ltd v Kumar

DETERMINATION OF REVIEW PANEL

CITATION:

QBE Insurance (Australia) Ltd v Kumar [2022] NSWPICMP 66

CLAIMANT:

Rajiv Kumar

INSURER:

QBE Insurance (Australia) Ltd

REVIEW PANEL:

Principal Member John Harris
Dr Mohammed Assem
Dr Margaret Gibson

DATE OF DECISION:

28 March 2022

CATCHWORDS:

MOTOR ACCIDENTS- The claimant was involved in a motor accident on 24 August 2015 when he sustained soft tissue injuries to the cervical and lumbar spines and left shoulder; Held- The claimant was examined by both Medical Assessors who found impairment of the lumbar spine but no impairment of the cervical spine; discussion of whether claimant suffered discrete injury to shoulders and/or whether he has referred pain restricting movement under the Nguyen principle; examination findings of shoulders showed significant variability and measurements could not be accepted as a valid and reliable method; restriction in shoulder movement assessed by way of analogy; no deduction made for nay pre-existing impairment; observations that the onus was on the insurer to establish the deduction; Vines v Djordjevitch and Matthew Hall Pty Ltd v Smart referred to; claimant assessed at 9% whole person impairment; original assessment revoked.

DETERMINATIONS MADE:  

The Panel revokes the certificate dated 31 May 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%:

·        aggravation of degenerative changes in the lumbar spine;

·        soft tissue injury to the cervical spine;

·        left shoulder injury and Nguyen principle, and

·        right shoulder – referred pain from neck – Nguyen principle.

REASONS

BACKGROUND

1. Mr Rajiv Kumar (the claimant) was involved in a motor accident on 24 August 2015 when another motor vehicle collided with the passenger side of his vehicle (the motor accident).

2. The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Kumar any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).

3. The present disputes between the parties are whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. These constitute medical disputes within the meaning of the MAC Act.[1]

   [1] See ss 57 and 58 of the MAC Act.

4. Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

5. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]

   [2] Clause 1.2 of the Guidelines.

6. A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to…