AAI Limited t/as AAMI v Mooney - [2024] NSWPICMP 817

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Mooney [2024] NSWPICMP 817
CLAIMANT:	William Mooney
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Clive Kenna
DATE OF DECISION:	3 December 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about threshold injury; Medical Assessor (MA Home) found claimant’s cervical spine injury not a threshold injury; insurer’s application for review under section 7.26; issue of causation; insurer raised minor nature of accident; Panel considered absence of safety features in vintage car could have exposed claimant to injury and rear end collision did cause injury; radiculopathy now or at any time; David v Allianz, Lynch v Allianz and Allianz v Susak followed and applied; Panel satisfied radiculopathy at any time indicates non-threshold injury caused by accident; credibility and reliability of claimant and his treating doctor raised by insurer; Insurance Australia Limited v Milton applied; no findings of credibility made; Panel satisfied on basis of clinical findings of treating neurosurgeon and MA Home that claimant had a non-threshold C5/6 nerve root injury manifesting in three signs of radiculopathy at the times of their examinations; Panel examined the claimant and found two signs of radiculopathy and were satisfied the claimant had a non-threshold injury still manifesting in radiculopathy; insurer raised issues with subjectivity of testing by MA Home and requested Panel conduct more objective testing; extensive consideration of subjective verses objective testing in the AMA 4 Guides and Motor Accident Guidelines, nature of tests proposed (and dismissed) by the Panel; Held – claimant has a non-threshold injury due to presence of radiculopathy and due to disc protrusion or prolapse; certificate of MA Home affirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the combined certificate issued by Medical Assessor Home dated 15 May 2024. 2. Certifies that the cervical spine injury sustained by the claimant in the accident of 1 March 2022 is not a threshold injury for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

William Mooney was involved in a rear-end motor accident on 1 March 2022. He says he injured his neck in the accident, causing symptoms in his hands. He made a claim for statutory benefits with AAMI, the third-party insurer of the vehicle that collided with his vehicle.
The claimant was, at the time 55 years of age and is now 58. The claimant is a medical practitioner specifically an ear, nose and throat surgeon (ENT), and therefore will be referred to as Dr Mooney throughout these reasons.
A medical dispute about whether Dr Mooney’s injury was a threshold injury has arisen in connection with his claim[1] and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
[1] The insurer denied liability to pay ongoing statutory benefits in a letter dated 10 November 2022 (at page 14 of the claimant’s bundle) on the basis the…

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 817
Decision Date: 3 December 2024

CaseChat Overview and Summary

AAI Limited, trading as AAMI, sought review of a decision by a Medical Assessor who found that the claimant's cervical spine injury was not a threshold injury under the Motor Accident Injuries Act 2017. The case was heard in a relevant Australian tribunal where the claimant, Mooney, contested the insurer's application for review. The central legal issues involved whether the claimant had sustained a non-threshold injury, and whether the radiculopathy manifested in the claimant at the time of the assessments was due to the accident.

The court examined the nature of the accident, a rear-end collision in a vintage car with no safety features, which potentially exposed the claimant to injury. It considered the insurer's argument regarding the minor nature of the accident and the claimant's assertion that the collision caused his radiculopathy. The court followed precedents such as David v Allianz, Lynch v Allianz, and Allianz v Susak, concluding that the presence of radiculopathy at any time indicated a non-threshold injury caused by the accident. The insurer questioned the credibility and reliability of the claimant and his treating doctor, but the court applied the principles from Insurance Australia Limited v Milton, finding no need to make credibility assessments based on the clinical findings and the assessments from the Medical Assessor.

The Panel was satisfied that the clinical findings of the treating neurosurgeon and the Medical Assessor, along with their own observations, confirmed the presence of a non-threshold C5/6 nerve root injury. The insurer's request for more objective testing was considered against the existing guidelines and literature, leading the Panel to affirm the certificate of the Medical Assessor. The court concluded that the claimant had a non-threshold injury due to the presence of radiculopathy and disc protrusion or prolapse. The insurer's application for review was dismissed, and the original decision was affirmed.

Orders