Todev v AAI Limited t/as GIO - [2024] NSWPICMP 108

DETERMINATION OF REVIEW PANEL
CITATION:	Todev v AAI Limited t/as GIO [2024] NSWPICMP 108
CLAIMANT:	Kristy Lee Todev
INSURER:	GIO
REVIEW PANEL
MEMBER:	Maurice Castagnet
MEDICAL ASSESSOR:	Les Barnsley
MEDICAL ASSESSOR:	Philip Truskett
DATE OF DECISION:	22 February 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant suffered injury in multi vehicle collision on 20 October 2016; assessment of permanent impairment of neck injury; parties accepted the assessment of the single Medical Assessor (MA) for the left shoulder, right shoulder and thoracic spine injuries; causation; cervical neck fusion; whether neck surgery due to neck injury caused by the accident or due to progression of pre-existing degenerative disease; where the single MA assessed whole person impairment (WPI) as DRE cervicothoracic category IV- 25% and deducted 100% due to pre-existing degenerative disease; Held – assessment of DRE cervicothoracic category IV WPI of 25% is wholly attributable to neck injury caused by the accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 63(4) of the Motor Accidents Compensation Act 1999 The issue determined by the Review Panel is 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%. Determination 1. The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated 17 February 2023. 2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment that is GREATER THAN 10% (27%): · cervical spine; · left shoulder; · right shoulder, and · thoracic spine.

STATEMENT OF REASONS

BACKGROUND

The claimant, Kristy Todev was injured in a motor accident on 20 October 2016, when she reversed out of a parking space and was struck from behind by a vehicle insured by GIO, causing her vehicle to hit another.
The claimant claimed that she sustained injuries to her cervical spine, right shoulder, left shoulder and thoracic spine. She also claimed that she sustained psychological injury. She made a claim for damages against the insurer under the Motor Accidents Compensation Act1999 (the MAC Act).
As part of her claim, the claimant pursued damages for non-economic loss. According to s 131 of the MAC Act, no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
The insurer disagreed that the claimant had suffered whole person impairment (WPI) exceeding 10% for her physical injuries caused by the accident (the insurer also did not concede that the claimant suffered WPI exceeding 10% for her psychological injury. That matter is subject to a separate dispute).
According to s 57 and sub-s 58(1)(d) of the MAC Act, such a disagreement constitutes a “medical dispute” about one of the “medical assessment matters” that may be referred to the Personal Injury Commission (Commission) for assessment.
Pursuant to s 60 of the MAC Act, the claimant made…

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 108
Decision Date: 22 February 2024

CaseChat Overview and Summary

The case of Todev v AAI Limited t/as GIO was brought before the court involving a claimant who had been involved in a multi-vehicle collision on 20 October 2016. The claimant suffered injuries, including to the neck, and sought compensation under the Motor Accidents Compensation Act 1999. The primary dispute was the assessment of permanent impairment, particularly of the neck injury, and the extent to which this impairment was caused by the accident or by a pre-existing degenerative disease. The court was required to determine the appropriate compensation for the injuries sustained by the claimant.

The legal issues before the court involved the assessment of whole person impairment (WPI) and the attribution of the impairment to the accident. The claimant argued that the impairment should be wholly attributable to the accident, while the defendant argued that the pre-existing degenerative disease played a significant role in the claimant’s condition. The court needed to evaluate the evidence presented regarding the neck injury, including the results of the single Medical Assessor (MA), and decide the appropriate WPI for the neck injury.

The court examined the assessment of the single MA, who had evaluated the WPI for the left shoulder, right shoulder, and thoracic spine injuries as well as the neck injury. The MA assessed the WPI for the neck injury as DRE cervicothoracic category IV- 25%, but deducted 100% due to the pre-existing degenerative disease. The court found that the assessment of DRE cervicothoracic category IV WPI of 25% was wholly attributable to the neck injury caused by the accident. The court concluded that the neck surgery was a direct result of the neck injury from the accident, not due to the progression of the pre-existing degenerative disease. The decision was based on the evidence presented and the MA's assessment, which was deemed to be appropriate by the court.

The final orders of the court recognised that the claimant was entitled to compensation for the permanent impairment caused by the accident. The court ruled that the WPI of 25% for the neck injury was wholly attributable to the accident, and the claimant was entitled to compensation for this impairment. The court did not uphold the deduction for the pre-existing degenerative disease in assessing the WPI for the neck injury. The court's decision provided clarity on the extent of the claimant's entitlement to compensation for the injuries sustained in the motor accident.

Orders