Talevska v AAI Limited t/as AAMI
[2022] NSWPICMP 82
•12 April 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Talevska v AAI Limited t/as AAMI [2022] NSWPICMP 82 |
| CLAIMANT: | Kristina Talevska |
INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL: | Member Belinda Cassidy Dr Margaret Gibson Dr Brian Williams |
| DATE OF DECISION: | 12 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Motor Accident Injuries Act 2017 (MAI Act); medical assessment of minor injury dispute and claimant’s review under section 7.26 of the MAI Act; claimant examined by two medical assessors; application for review of one lodged before outcome of the other assessment known; outcome of second in time assessment was that one injury was found to be non-minor; panel invited claimant to discontinue application; claimant asked Panel to proceed on basis the decision would assist the damages claim; Held- proceedings dismissed under s 54(b) of the Personal Injury Commission Act as they are now lacking in substance; discussion of relevance of minor injury decision as to the key that unlocks the door to ongoing statutory benefits under Part 3 of the MAI Act and the entitlement to recover damages under Part 4; threshold issue; not relevant to assessment of damages. |
| DETERMINATIONS MADE: | The Commission: 1. Vacates the Review Panel’s teleconference listed on 11 May 2022. 2. Dismisses the claimant’s application for review of the medical assessment of Medical Assessor Robert Payten dated 19 November 2021. |
STATEMENT OF REASONS
INTRODUCTION
Kristina Talevska was injured in a motor accident on 1 November 2018.
Ms Talevska was driving her sedan in a line of traffic. She was either stopped or slowing down when her vehicle was struck from behind. She was helped out of the car and taken to hospital.
On 27 November 2018 Ms Talevska made a claim against AAMI, the third-party insurer of the vehicle that ran into the back of her vehicle. That claim was for personal injury (statutory) benefits under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act).
On 29 February 2019, AAMI issued a liability notice advising Ms Talevska that her accident-related injuries were “minor injuries” within the definition set out in section 1.6 of the MAI Act.
On 21 October 2020, after the insurer’s internal review of that decision, the claimant referred the dispute about whether her injuries were minor injuries to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA) for determination. For ease of reference this will be referred to as the “minor injury dispute”.
DRS MEDICAL ASSESSMENTS
In her claim form Ms Talevska alleged “sore back, sore neck, sore chest, sore right hip occasionally, head (dizziness and cloudy)”.[1]
[1] The Panel does not have a copy of the application for statutory benefits or the original liability notice. Many of the details of the claim come from the insurer’s 19 page internal review decision dated 8 October 2020.
In the application form lodged with DRS, the claimant only referred two areas of her body for assessment, that is her lumbar spine and her right shoulder.
The Panel has not been provided with the DRS file in respect of the original medical assessment or any of the correspondence that may have passed between the parties and officers of the DRS. It is therefore not clear to the Panel why, but the DRS arranged for the claimant’s accident-related injuries to be assessed by:
(a) Medical Assessor Alan Home who was asked to assess the claimant’s neck, back, chest, right hip and right shoulder, and
(b) Medical Assessor Robert Payten who was asked to assess the claimant’s alleged “head injury with dizziness”.
On 21 November 2021, Assessor Payten issued a certificate indicating the claimant’s head injury with dizziness was a minor injury.
After an examination on 15 November 2021, Assessor Home issued a certificate on 12 December 2021 determining that the claimant’s neck, back, chest and right hip injuries were minor injuries but that the claimant’s right shoulder injury was not a minor injury. Assessor Home also determined that the claimant’s right shoulder arthroscopic rotator cuff and biceps tendinosis repair surgery was related to the accident and was reasonable and necessary. He also determined that Ms Taevska’s L3/4 interlaminar decompression surgery was related to her accident-related injuries and was reasonable and necessary in the circumstances.
THIS APPLICATION FOR REVIEW
The claimant, being dissatisfied with Assessor Payten’s determination lodged an application for review under s 7.26 of the MAI Act. Ms Talevska’s application was lodged with the Personal Injury Commission (the Commission) as the DRS had been abolished with the passage of the Personal Injury Commission Act 2020 (the PIC Act).
The application for review was lodged on 2 December 2021 and the insurer’s reply was received on 14 December 2021. Both dates were, of course, after Assessor Home’s medical examination but before he had issued his certificate.
On 8 February 2022, the President’s delegate determined that there was reasonable cause to suspect a material error in Assessor Payten’s decision and on 9 March 2022 the President convened the Review Panel comprising one legal member and two medical assessors.
A teleconference between all three members of the Panel was scheduled to take place on 11 May 2022 and the parties were advised.
On 28 March 2022, in advance of the teleconference, the Panel reviewed the matter for the purposes of issuing directions to the parties to ensure the Panel had all relevant documents before it. The Panel had been provided with a copy of Assessor Home’s assessment as well as Assessor Payten’s decision.
The Panel included in its directions to the parties this observation:
“The Panel notes that Medical Assessor Alan Home assessed the claimant’s other injuries and on 12 December 2021 certified the claimant’s right shoulder injury as a non-minor injury. The Panel is not aware of whether any review has been sought of that decision by the insurer but, if it has not, then the Panel notes the claimant has at least one injury that has been found to be a non-minor injury. If that is the case the Panel queries whether the review of Assessor Payten’s assessment needs to proceed? The Panel understands that the legislation operates to enable a claimant with at least one non-minor injury to obtain statutory benefits in relation to all of the injuries sustained in the accident, minor or non-minor.”
The Panel directed the insurer to advise the panel by 31 March 2022 whether Assessor Home’s decision was to be the subject of a review and, if not, to upload a copy of any revised liability notice in respect of its minor injury decision.
The claimant was directed to consider whether the current proceedings should be discontinued by 2 April 2022.
On 29 March 2022, the insurer’s solicitor responded to the direction and provided a copy of a revised liability notice dated 8 March 2022. The notice is somewhat confusing as it refers to a claim for damages[2] but then refers to the original liability notice in the statutory benefits claim dated 25 February 2019 and another letter sent by the insurer also in the statutory benefits claim.
[2] The Panel is not aware whether a claim for damages under Part 4 of the Act has been made and no copy of the claim form has been provided.
Whatever the irregularities in the notice, AAMI accepts that the claimant sustained non-minor injuries in the accident on the basis of Assessor Home’s determination regarding the claimant’s right shoulder injury. The insurer’s solicitor confirmed in a message to the Panel through the portal that no application for review had been lodged in respect of Assessor Home’s decision.
In the absence of any communication from the claimant’s solicitor, the Panel caused to be sent to the parties a message which confirmed receipt of the insurer’s updated liability notice and advised the parties as follows:
“On the basis of the revised liability decision the Panel is of the view that there is no utility in proceeding with the review. Member Cassidy, on behalf of the Panel proposes dismissing the proceedings in accordance with section 54(a) – due to the lack of communication from the claimant or 54(b) on the basis that the proceedings, as they stand are ‘lacking substance’.”
A response to the above was requested from the claimant by close of business on 8 April 2022. The following response was received from the claimant’s solicitor at 4.13pm on 11 April 2022:
“The claimant presses for the MAP[3] to determine the matter as it will be relevant to the damages assessment.”
[3] The reference to an “MAP” is a reference to a Medical Appeal Panel, the equivalent of a motor accident Medical Review Panel in the workers compensation scheme.
The insurer responded on 12 April 2022 as follows:
“The insurer agrees with the view adopted by the Panel, that is that there is no utility in proceeding with the outstanding application (Review of Assessor Payton's decision) in circumstances where the insurer has already conceded Non Minor injury in respect of another injury. In addition to the outstanding application now lacking "substance", the insurer submits, that proceeding with the application in these circumstances would cause further delay, expend additional costs unnecessarily and would not assist materially in the ultimate assessment of damages.”
SHOULD THE PROCEEDINGS BE DISMISSED?
The PIC Act and Rules
Section 54 provides that:
“The Commission may at any stage dismiss proceedings before it –
(a) If it is satisfied that the proceedings have been abandoned, or
(b) If it is satisfied that the proceedings are frivolous or vexations or otherwise misconceived or lacking in substance, or
(c) For any other ground of dismissal specified in the Commission rules.”
Rule 76 of the Personal Injury Commission Rules 2021 (the Rules) provides for the discontinuance of proceedings “at any time before the proceedings are finally determined”. The claimant, as the applicant in the current proceedings has not requested the proceedings be discontinued.
Rule 77(b) of the Rules provides for six reasons why a motor accident matter may be dismissed. None of them are relevant to the matter before the Panel.
Is the claimant’s application now lacking in substance?
The claimant submits that the Panel should continue the proceedings and determine whether the claimant’s alleged head injury and dizziness is a minor injury or not because “it will be relevant to the damages assessment”.
Since 1999, the greater than 10% whole person impairment (WPI) threshold has been referred to as a gateway or the key that unlocks the door to a claim for non-economic loss damages[4]. Once a claimant is certified as having a WPI of more than 10% then non-economic loss damages are assessed at large on the basis of all the injuries combined up to the maximum amount allowable[5].
[4] See section 131 of the Motor Accidents Compensation Act 1999 (the MAC Act) and section 4.11 of the MAI Act.
[5] Currently $590,000 in accordance with section 134 of the MAC Act and section 4.13 of the MAI Act.
Sections 3.11(1)(a) and 3.28(1)(b) operate to terminate statutory benefits if “the person’s only injuries resulting from the motor accident were minor injuries”. Section 4.4 provides that “no damages may be awarded … if the person’s only injuries resulting from the motor accident were minor injuries”. For a claimant who sustains multiple injuries, if all of them fall within the definition of “minor injury” as set out in section 1.6 then the claimant is not entitled to ongoing benefits and cannot recover damages. However, for the claimant who sustains multiple injuries in an accident, only one of those injuries needs to overcome the statutory definition. Once that definition is overcome, then benefits continue to be paid and damages are recoverable in respect of all injuries, be they minor or non-minor.
Therefore, a finding of non-minor injury can also be considered as the key that unlocks the door to a claim for continuing statutory benefits under Part 3 of the MAI Act and the gateway that allows the recovery of damages under Part 4.
The application for the review of Assessor Payten’s assessment was validly made on 2 December 2021. However, following the certification by Assessor Home and the lapsing of time for any review of that decision, there is no longer need for the claimant to pursue the review of Assessor Payten’s decision. The claimant has one non-minor injury. She is entitled to benefits and she is entitled to recover damages. The insurer concedes as much.
Whether the claimant has an entitlement to non-economic loss or not, is a medical assessment matter not before this Panel. Whether the claimant’s head injury and dizziness affect the claimant’s earning capacity is also not a matter before the Panel. Any decision by the Panel about whether the claimant’s head injury with dizziness is or is not a minor injury is not relevant to the assessment or quantification of Ms Talevska’s damages.
It is the Panel’s view that the proceedings are now, as a result of Assessor Home’s decision, lacking in substance. It would be a waste of the Commission’s resources to pursue the review and it would not further the guiding principle of the Commission as set out in section 42 of the PIC Act.
It is therefore the Panel’s decision that these proceedings should be dismissed.
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