AAI Limited t/as AAMI v Ali - [2022] NSWPICMP 377

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Ali [2022] NSWPICMP 377
CLAIMANT:	Maibul Ali
INSURER:	AAI Limited t/as AAMI
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Dr Geoffrey Stubbs
MEDICAL ASSESSOR:	Dr Margaret Gibson
DATE OF DECISION:	27 September 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 24 August 2018 from a T-bone collision suffering a fractured sternum and other soft tissue injuries; the issue was the extent of permanent impairment and whether physiotherapy was reasonable and necessary; the claimant was reassessed; no issues of principle; findings made that initial shoulder symptoms were probably due to the fractured sternum and aggravation of cervical spine condition; the spine was assessed as Diagnosis Related Estimate (DRE) I; crepitus found in right knee which suffered injury due to impact on the dashboard; the claimant has an extensive pain condition over a number of years; the provision of physiotherapy according to the physiotherapy plan is not necessary as in light of the claimant’s presentation and past history no there benefit was expected; Held – claimant assessed below 10% threshold; physiotherapy held not to be necessary and would not assist recovery.
DETERMINATIONS MADE:	The Panel confirms the certificate dated 27 February 2022 that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%: · Cervical spine · Lumbar spine · right shoulder – Nguyen principle · left shoulder – Nguyen principle · Gastrointestinal condition · Right and left knee Review Panel Assessment of Recovery Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 · The Review Panel confirms the certificate dated 27 February 2022. Review Panel Assessment of Treatment and Care and Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 · The Review Panel confirms the certificate dated 27 February 2022.

REASONS
BACKGROUND

Ms Maibul Ali (the claimant) suffered injury on 24 August 2018 when the insured vehicle turned right in front of the claimant’s vehicle resulting in a T-bone collision.
2. AAI Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Ali any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
3. The present disputes are whether Ms Ali’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”, whether the treatment and care is reasonable and necessary in the circumstances or relates to the motor accident for the purposes of s 3.24 of the MAI Act and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person. These constitute medical disputes within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
4. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person…

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: [2022] NSWPICMP 377
Decision Date: 27 September 2022

CaseChat Overview and Summary

In the case of AAI Limited trading as AAMI versus Ali, the dispute centred on the consequences of a motor accident that occurred on 24 August 2018. The plaintiff, Ali, was involved in a T-bone collision, resulting in a fractured sternum and various soft tissue injuries. The core issues before the court were the extent of the plaintiff's permanent impairment and whether the provision of physiotherapy was both reasonable and necessary for his recovery.

The court had to determine the extent of Ali's permanent impairment, which was influenced by the injuries sustained in the accident. Additionally, the court was tasked with deciding if the physiotherapy recommended was appropriate and necessary for Ali's recovery, considering his extensive history of pain conditions and the potential benefits of such treatment. The findings noted that the initial shoulder symptoms were likely due to the fractured sternum and any aggravation of a pre-existing cervical spine condition. The spine was assessed under the Diagnosis Related Estimate (DRE) as category I, indicating a minor impact. There was also evidence of crepitus in the right knee, which was injured due to the impact with the dashboard.

The court concluded that Ali's impairments, when assessed collectively, fell below the 10% threshold for permanent impairment. It was also determined that the physiotherapy prescribed was not necessary, as there was no anticipated benefit to Ali given his extensive pain history and current presentation. The court found that the physiotherapy would not assist in Ali's recovery. As such, the court ruled in favour of AAI Limited, finding that the physiotherapy was not reasonable and necessary, and Ali's impairment did not exceed the 10% threshold.

Orders