Stephens v AAI Limited t/as GIO - [2024] NSWPICMP 376

DETERMINATION OF REVIEW PANEL
CITATION:	Stephens v AAI Limited t/as GIO [2024] NSWPICMP 376
CLAIMANT:	Gregory Stephens
INSURER:	AAI Limited trading as GIO
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	13 June 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review of certificate of Medical Assessor (MA) Home; the claimant suffered injury in a motor bike accident on 3 March 2019; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, right shoulder, left shoulder and scarring; MA Home assessed 0% WPI for cervical spine, 8% WPI for right shoulder, 1% WPI for left shoulder and 0% WPI for scarring; Held – notwithstanding lack of contemporaneous complaint causation of injury to cervical spine established; Norrington v QBE Insurance (Australia) Ltd; Briggs v IAG Limited trading as NRMA Insurance; aggravation of degenerative changes of right shoulder including rotator cuff tear and need for surgery; no injury to the left shoulder where no complaint, no treatment or no investigation; scarring to right knee caused by abrasions; assessed as DRE cervicothoracic category 1 or 0% WPI; where inconsistency in range of movement of right shoulder demonstrated on examination right shoulder assessed by analogy using the acromioclavicular joint at 3% WPI; right knee scarring assessed under Table for the Evaluation of Minor Skin Impairment as 0% WPI; Medical Assessment Certificate of MA Home revoked; injures caused by accident gave rise to 3% WPI.
DETERMINATIONS MADE:	*MOTOR ACCIDENT INJURIES ACT 2017* Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the Certificate of Medical Assessor Alan Home dated 11 January 2024 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment of 3% which is not greater than 10%: (a) cervical spine; aggravation of pre-existing cervical spondylosis; (b) right shoulder; aggravation of pre-existing rotator cuff tear with subsequent rotator cuff repair surgery and biceps tenodesis, and (c) right knee scarring. 2. The Review Panel determines that the following injury was not caused by the accident: (a) left shoulder – impairment due to the cervical neck pathology.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 3 March 2019 Mr Gregory Stephens (the claimant) was riding his motorcycle when it was struck from behind causing him to fall from the bike and tumble along the road sustaining injury (the accident).
Mr Stephens was 63 years of age at the date of accident and is now 66 years of age.
Mr Stephens has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Mr Stephens under the MAI…

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 376
Decision Date: 13 June 2024

CaseChat Overview and Summary

The matter before the court was a dispute between the plaintiff, Stephens, and the defendant, AAI Limited trading as GIO, regarding the assessment of whole person impairment (WPI) following a motor bike accident. The plaintiff sought compensation under the Motor Accident Injuries Act 2017. The primary issues for the court to determine were the extent of the WPI for various parts of the body, including the cervical spine, shoulders, and scarring, as assessed by the Medical Assessor, Home.

The court had to address whether the injuries claimed by the plaintiff were indeed caused by the accident and, if so, how they should be quantified in terms of WPI. The plaintiff argued that the Medical Assessor's assessment of 0% WPI for the cervical spine, 8% WPI for the right shoulder, 1% WPI for the left shoulder, and 0% WPI for scarring was incorrect. The court had to consider the evidence provided, including medical reports, the absence of contemporaneous complaints, and the need to establish causation of the injuries. The court also examined the applicability of prior cases such as Norrington v QBE Insurance (Australia) Ltd and Briggs v IAG Limited trading as NRMA Insurance to determine the appropriate WPI.

Upon reviewing the evidence, the court found that while there was no contemporaneous complaint of cervical spine injury, causation was established. The degenerative changes in the right shoulder, including the need for surgery due to a rotator cuff tear, were acknowledged. The court determined that there was no injury to the left shoulder as there were no complaints, treatment, or investigations. The scarring on the right knee, resulting from abrasions, was assessed as DRE cervicothoracic category 1 or 0% WPI. Given the inconsistency in the range of movement of the right shoulder, the court assessed it by analogy using the acromioclavicular joint at 3% WPI. The scarring on the right knee was assessed under the Table for the Evaluation of Minor Skin Impairment as 0% WPI. The court revoked the Medical Assessment Certificate of MA Home and found that the injuries caused by the accident resulted in a 3% WPI.

The final orders of the court included the revocation of the Medical Assessment Certificate and the quantification of the WPI at 3%. The plaintiff was entitled to compensation based on this assessment.

Orders