Simonds v QBE Insurance (Australia) Limited - [2023] NSWPICMP 551

DETERMINATION OF REVIEW PANEL
CITATION:	Simonds v QBE Insurance (Australia) Limited [2023] NSWPICMP 551
CLAIMANT:	Cassandra Simonds
INSURER:	QBE Insurance Australia Ltd
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Geoffrey Stubbs
DATE OF DECISION:	2 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI); Medical Assessor (MA) determined that claimant had WPI of 7%; review application by the claimant under section 7.26; claimant alleged injuries to her shoulders, neck, and low back in a motor accident on 19 July 2019; Held – determination that the Certificate of MA Hyde-Page, that the injury did not give rise to WPI of greater than 10%, be confirmed. .
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the Certificate of Medical Assessor Murray Hyde-Page of 11 April 2023. 2. The Review Panel certifies that the claimant’s injury does not give rise to whole person impairment of greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

BACKGROUND

Ms Simonds (the claimant) was born in May 1992.
On 19 July 2019, the claimant was the front seat passenger, wearing a seatbelt in a Land Cruiser, when the driver lost control, the vehicle slid off a 3m bridge, landed on its nose, and then flipped onto its roof.
The claimant alleged that she sustained injuries to her neck, back and shoulders. There was no direct blow to her head, but she gave a history that she did have transient loss of consciousness and loss of memory as to the details of the accident.
The claimant was taken by ambulance to Port Macquarie Base Hospital, where, after X-rays and observation, she was allowed home the next morning.
Diagnostic investigations indicated a lumbo-sacral disc protrusion with an annular tear.
Subsequently, the claimant was reviewed by a spinal surgeon and came to a L5/S1 micro discectomy on 29 January 2021.
On 23 December 2019, the claimant’s general practitioner (GP) referred her to Dr Raj Reddy, neurosurgeon, for opinion and management of complaints of ongoing cervical radiculopathy pains.
On 28 January 2020, the claimant’s GP referred her to Dr Michael Prowse, rheumatologist, for nerve conduction studies on the left arm/cervical spine.
On 17 September 2020, Dr Prowse opined that the claimant had an L5 radiculopathy and findings on CT scanning.
The claimant was referred to the Department of Neurosurgery at John Hunter Hospital (JHH), to which she was admitted on 4 November 2020.
The primary diagnosis, based on diagnostic investigations, was a posterior L5/S1 disc protrusion:
“…admitted… under the care of the neurosurgery team (Dr Edgar) for the investigation and management of back and leg pain. An MRI lumbar spine demonstrated the posterior L5/S1 disc protrusion without nerve root compression. She was managed non-operatively.”

On 1 December 2020, Dr Amanda Paterson, neurosurgical registrar, reported to the GP that, on examination, the claimant had a mildly weak right ankle plantar reflex, limited by a lot of pain. The MRI demonstrated an L5/S1 disc protrusion, abutting the S1…

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.

Keep reading for free

Create a free CaseChat account to read Simonds v QBE Insurance (Australia) Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPICMP 551
Decision Date: 2 November 2023

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Simonds sought a review of a determination made by a Medical Assessor (MA) under the Motor Accident Injuries Act 2017. The claimant, Simonds, alleged injuries to her shoulders, neck, and low back following a motor accident on 19 July 2019. The MA had assessed Simonds' whole person impairment (WPI) at 7%. Simonds filed an application under section 7.26 of the Act for a review of the MA's determination, arguing that her WPI should be higher than what was assessed.

The court was required to decide whether the MA's determination that Simonds' WPI was less than 10% was appropriate. The key legal issue was whether the MA had correctly applied the relevant statutory criteria in assessing Simonds' WPI and whether the evidence presented supported the MA's findings. The court examined the medical reports and other evidence provided to the MA, as well as the MA's reasoning and methodology in making the WPI assessment.

The court found that the MA, Hyde-Page, had followed a thorough and appropriate process in assessing Simonds' WPI. The MA had considered all relevant medical evidence and had applied the statutory criteria correctly. The court confirmed the MA's determination that Simonds' WPI was 7%, and thus did not exceed the 10% threshold. Simonds' review application was dismissed, and the court confirmed the MA's certificate.

As a result of the court's decision, Simonds' application for a review of the MA's WPI assessment was dismissed. The determination of the MA, that Simonds' WPI was 7%, was confirmed, and no further review was granted.

Orders