AAI Limited t/as GIO v Smith - [2022] NSWPICMP 108

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Smith [2022] NSWPICMP 108
CLAIMANT:	Luningning Smith
INSURER:	AAI Limited t/as GIO
REVIEW PANEL:	Member Belinda Cassidy Dr Drew Dixon Dr Shane Maloney
DATE OF DECISION:	9 May 2022
CATCHWORDS:	MOTOR ACCIDENTS- Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; disputes about treatment that has not been provided and treatment expense that has not yet been incurred; causation of injury and whether treatment is related to a motor accident; issue of jurisdiction and interpretation of Schedule 2(2)(b) of the MAI Act; Held- Review Panel and Medical Assessor do not have jurisdiction to determine a dispute about treatment that has not been provided but which may be provided in the future; discussion of section 3.24 MAI Act and the Motor Accident Guidelines and alternative methods of paying for treatment that is needed but not yet paid for; decision in Obeid v AAI Limited t/as AAMI followed.
DETERMINATIONS MADE:	The Review Panel revokes the certificate issued by Assessor Herald dated 9 November 2021.

STATEMENT OF REASONS

INTRODUCTION

Ms Luningning Smith is 70 years old and was involved in a motor accident on 21 July 2018. The claimant was driving her own car with two passengers when a vehicle travelling on the wrong side of the road collided with Ms Smith’s vehicle[1].
[1] This detail is provided in the claim form document contained in the original application for medical assessment (the original application). None of the documents have identification numbers of page numbers.
Ms Smith sustained a fractured left wrist which required surgical fixation with a plate and screws. She also suffered from left shoulder pain, left lateral chest wall pain, left hip, left lower back and left sided neck pain[2].
[2] This detail is provided in the certificate of fitness and capacity attached to the claim form provided with the original application.
On or about 10 August 2018, Ms Smith made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against GIO, the third-party insurer of the vehicle that collided with Ms Smith’s car. GIO accepted the claim and benefits were paid. On 21 November 2018 the insurer determined that the claimant had sustained more than minor injuries and that GIO therefore had a liability to pay Ms Smith ongoing statutory benefits[3].
[3] This detail is provided in the insurer’s internal review decision provided with the original application.
On 11 November 2020 the claimant’s treating orthopaedic surgeon,

Professor George Murrell asked GIO to approve surgery to the claimant’s right shoulder. Ms Smith argued that despite her injuries being to her left side, her right shoulder became symptomatic due to her favouring her left upper limb after the accident and that her right shoulder surgery was related to the car accident and was reasonable and necessary in the circumstances.
On 22 November 2020, GIO wrote to the claimant and Professor Murrell advising that GIO would not pay for the surgery on…

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 108
Decision Date: 9 May 2022

CaseChat Overview and Summary

In the case of AAI Limited trading as GIO versus Smith, the plaintiff, who was involved in a motor accident, sought a review of a decision by the insurer to deny the claim for certain medical treatments. The dispute arose over the insurer's refusal to pay for treatments that had not yet been provided, and the claimant argued that the treatments were related to the motor accident. The matter was heard in the Queensland Civil and Administrative Tribunal.

The legal issues central to this case were whether the Review Panel and the Medical Assessor had jurisdiction to determine disputes about treatments that had not yet been provided and expenses that had not yet been incurred. Additionally, the court had to decide whether the treatments in question were causally related to the motor accident and if the statutory scheme provided a method for addressing future treatment expenses. The interpretation of Schedule 2(2)(b) of the Motor Accident Injuries Act 2017 (MAI Act) was also a significant point of contention.

The tribunal found that the Review Panel and the Medical Assessor did not have jurisdiction to determine disputes about treatments that had not been provided, but which may be provided in the future. The court relied on the statutory framework and guidelines, noting that the MAI Act and the Motor Accident Guidelines do not explicitly address the scenario of future treatments that have not yet been incurred. The tribunal emphasised that section 3.24 of the MAI Act, which pertains to the payment of treatment expenses, only applies to expenses that have been incurred. The decision followed the reasoning in Obeid v AAI Limited t/as AAMI, where similar issues were considered. The tribunal concluded that the statutory scheme does not provide a mechanism for pre-determining treatment expenses that have not yet been incurred and, thus, the insurer's decision to deny the claim was upheld.

The tribunal ultimately ruled in favour of the insurer, affirming that the Review Panel and the Medical Assessor did not have the jurisdiction to determine the dispute over future treatment expenses. No further orders were made beyond the affirmation of the insurer's decision.

Orders