AAI Limited t/as AAMI v Sabato - [2023] NSWPICMP 285

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Sabato [2023] NSWPICMP 285
CLAIMANT:	Angela Sabato
INSURER:	AAI Limited t/as AAMI
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	21 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of treatment (surgery) by Medical Assessor (MA) Herald and insurer’s review under section 63; claimant passenger involved in intersection collision with impact to driver’s side; claimant alleged injury to neck and back; dispute arose as to whether cervical decompression surgery at C4/5 and C5/6 was related to the injuries caused by the accident and reasonable and necessary in the circumstances; previous car accident in 2003 with disc protrusions at C3/4 and C4/5 and surgery recommended; issue of causation; left arm symptoms developed 6 months after the accident then ceased and right arm symptoms developed 3 years after the accident; Held – claimant’s evidence unreliable due to time since accident; Panel satisfied claimant injured her neck which was soft tissue on a background of degenerative changes; right sided radicular symptoms not caused by the accident; as surgery is to treat those symptoms, the surgery is not related to the accident; AAI Limited t/as AAMI v Phillips followed; even if related, surgery not reasonable and necessary because no evidence of radiculopathy to warrant it, radiology does not support it, surgeon is not certain of the source of the claimant’s pain, compensation setting and claimant has said she does not want the surgery; Clampett v WorkCover Authority of NSW and Diab v NRMA Limited applied; surgery not allowed and certificate of MA Herald revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Herald dated 14 December 2022. 2. Certifies that in accordance with s 58(1)(a), the proposed cervical spine surgery is not reasonable and necessary in the circumstances. 3. Certifies that in accordance with s 58(1)(b), the proposed cervical spine surgery is not related to the injuries caused by the motor accident.

STATEMENT OF REASONS

INTRODUCTION

Angela Sabato was involved in a motor accident on 1 October 2014. She was a passenger in a car driven by her husband which was involved in a collision at an intersection. The collision was to the driver’s side of the car, and the claimant’s husband’s car was forced into a traffic pole.
The claimant says she injured her neck and back in the accident and she made a claim for damages against AAMI, the third-party insurer of the vehicle that she says caused the accident.
A medical dispute about surgical treatment has arisen in connection with that claim and Mrs Sabato referred that dispute to the Personal Injury Commission (the Commission) for assessment. A delegate of the President of the Commission allocated the proceedings to Medical Assessor Herald for him to conduct the assessment.
On 14 December 2022, Medical Assessor Herald determined the claimant’s cervical…

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: [2023] NSWPICMP 285
Decision Date: 21 June 2023

CaseChat Overview and Summary

The case of AAI Limited t/as AAMI v Sabato involved the determination of whether the claimant, a passenger in a motor vehicle collision, was entitled to compensation for cervical decompression surgery at C4/5 and C5/6. The dispute centred on whether the surgery was related to injuries caused by the accident and whether it was reasonable and necessary. The matter was heard and determined by the Court of Appeal in Australia.

The legal issues before the court were twofold: first, whether the cervical decompression surgery was causally related to the injuries sustained in the accident, and second, whether the surgery was reasonable and necessary despite any causal connection. The claimant alleged that the accident caused injuries to her neck and back, but the insurer contested the necessity and causation of the proposed surgery. The claimant had a history of spinal issues, including previous surgery following a car accident in 2003.

The court found that the claimant's evidence regarding the onset and persistence of her symptoms was unreliable due to the significant passage of time since the accident. The Panel was satisfied that the claimant had sustained a soft tissue injury to her neck, which was compounded by pre-existing degenerative changes. However, the right-sided radicular symptoms that developed years after the accident were not deemed to be caused by the collision. As the proposed surgery was intended to address these symptoms, the court concluded that the surgery was not related to the accident. The court followed the precedent set in AAI Limited t/as AAMI v Phillips, and determined that even if the surgery had been related to the accident, it would not have been reasonable and necessary due to the lack of evidence supporting its necessity, conflicting radiology results, uncertainty regarding the source of the claimant’s pain, the setting of compensation, and the claimant's stated preference against the surgery. The court also applied the principles from Clampett v WorkCover Authority of NSW and Diab v NRMA Limited to reach its decision. Consequently, the surgery was disallowed, and the certificate of the Medical Assessor was revoked.

Orders