AAI Limited t/as GIO v Amos - [2022] NSWPICMP 397

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Amos [2022] NSWPICMP 397
CLAIMANT:	Jesse Owen Amos
INSURER:	AAI Limited trading as GIO
REVIEW Panel
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Dr Geoffrey Curtin
MEDICAL ASSESSOR:	Dr Drew Dixon
DATE OF DECISION:	12 October 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident in 26 July 2018; assessment of permanent impairment under the Motor Accident Injuries Act 2017; lumbar spine, cervical spine, left shoulder, right shoulder, abdomen; treatment dispute about magnetic resonance imaging (MRI) of cervical spine and chiropractic treatment; Held – injury to left and right shoulder in accordance with referred pain from neck (Nguyen principle); 2% whole person impairment (WPI) assessed for each shoulder; soft tissue injury to cervical spine assessed 0% WPI; soft tissue injury to lumbar spine 0% WPI; musculo-skeletal injury to the abdomen resolved; total WPI 4%; MRI cervical spine reasonable and necessary diagnostic tool to determine if claimant had sustained a disc prolapse, annular disc tear or ligamentous injury; need for MRI scan caused by the accident; chiropractic treatment including mobilisation, deep tissue massage and dry needling accepted treatment modalities and reasonable and necessary treatment for injury; need for past chiropractic treatment caused by accident.
DETERMINATIONS MADE:	The Review Panel revokes the Certificate of Medical Assessor Farhan Shahzad dated 4 June 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is not greater than 10% and is 4%: · injury to the cervical spine; · injury to the lumbar spine; · injury to the left shoulder; · injury to the right shoulder, and · injury to the abdomen. The Review Panel revokes the certificate of Medical Assessor Farhan Shahzad dated 4 June 2021 and issues a new certificate as follows: The following treatment and care: · an MRI of the cervical spine, if undergone by the claimant, and · past chiropractic sessions for mobilisation, deep tissue massage and dry needling by Mr Nick Skalidas was reasonable and necessary and does relate to the injury caused by the motor accident.

PANEL REASONS FOR DECISION

INTRODUCTION

On 26 July 2018 Jesse Amos (the claimant) was the front seat passenger in a vehicle which collided with the rear of a bus (the accident).
Mr Amos asserts he sustained the following injuries in the accident:
1.     (a)   injury to the cervical spine;
2.     (b)   injury to the lumbar spine;
3.     (c)   injury to the thoracic spine;
4.     (d)   injury to the right shoulder,
5.     (e)   injury to the left shoulder;
6.     (f)    injury to the abdomen;
7.     (g)   injury to the teeth and gums;
8.     (h) fractured right orbit;
9.     (i)     injury to the nose;
10.   (j)     injury to the head resulting in vertigo, dizziness and headaches, and
11.   (k)   post-traumatic stress disorder.
Mr Amos has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI…

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 397
Decision Date: 12 October 2022

CaseChat Overview and Summary

The case of AAI Limited trading as GIO versus Amos involved a dispute arising from a motor vehicle accident that occurred on 26 July 2018. The claimant sought an assessment of permanent impairment under the Motor Accident Injuries Act 2017. The injuries claimed included the lumbar spine, cervical spine, left shoulder, right shoulder, and abdomen. The primary issues revolved around the necessity and reasonableness of a magnetic resonance imaging (MRI) of the cervical spine and chiropractic treatment. The court had to determine the extent of the claimant's injuries and whether the proposed treatments were reasonable and necessary.

The legal issues before the court included determining whether the injuries to the left and right shoulders were in accordance with referred pain from the neck, applying the principle established in Nguyen. The court had to assess the percentage of whole person impairment (WPI) for each shoulder, the cervical spine, the lumbar spine, and the abdomen. Additionally, the court had to decide if the MRI of the cervical spine was a reasonable and necessary diagnostic tool and if the chiropractic treatment, including mobilisation, deep tissue massage, and dry needling, was reasonable and necessary for the injuries sustained in the accident.

The court found that the injuries to the left and right shoulders were consistent with referred pain from the neck, applying the Nguyen principle. The claimant was assessed to have 2% WPI for each shoulder. The soft tissue injury to the cervical spine was assessed as 0% WPI, and the soft tissue injury to the lumbar spine was also assessed as 0% WPI. The musculo-skeletal injury to the abdomen had resolved. In total, the claimant was assessed to have 4% WPI. The court determined that the MRI of the cervical spine was a reasonable and necessary diagnostic tool to ascertain if the claimant had sustained a disc prolapse, annular disc tear, or ligamentous injury. The necessity for the MRI was caused by the accident. The court accepted that the chiropractic treatment, including mobilisation, deep tissue massage, and dry needling, were reasonable and necessary treatment modalities for the injuries sustained in the accident. The need for past chiropractic treatment was also deemed to have been caused by the accident.

The court ordered that the claimant was entitled to the MRI of the cervical spine and the chiropractic treatment as reasonable and necessary treatments for the injuries sustained in the accident. The total assessment of 4% WPI was upheld.

Orders