AAI Ltd t as AAMI v Ahmed - [2023] NSWPICMP 126

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Ahmed [2023] NSWPICMP 126
CLAIMANT:	Ahmad Subhi Ahmed
INSURER:	AAI Limited trading as AAMI
REVIEW Panel
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Dr Drew Dixon
MEDICAL ASSESSOR:	Dr Thomas Rosenthal
DATE OF DECISION:	4 April 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 17 June 2021; Medical Assessor (MA) Berry found the following injuries were threshold injuries; lumbar spine, soft tissue injury; right foot, soft tissue injury; left foot, soft tissue injury; certified injury to the right knee, radial tear or medial meniscus was a non-threshold injury; dispute as to causation of the right knee injury; Held – applying test of causation as per Briggs v IAG Limited, claimant struck knee on dashboard as claimed with slight twist or rotatory force causing radial tear of the medial meniscus; if causation satisfied insurer agreed injury to the knee would be a non-threshold injury; injury to right knee was a non-threshold injury; soft tissue injury to lumbar spine and to both feet were threshold injuries; Medical Assessment Certificate of MA Berry affirmed.
DETERMINATIONS MADE:	Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel affirms the certificate of Medical Assessor Berry dated 6 July 2022.

REASONS
BACKGROUND

On 17 June 2021 Mr Ahmad Ahmed (the claimant) was a driver of a car stationary in traffic when his car was hit from behind. The airbags did not deploy. Mr Ahmed states he was thrown forwards striking his knees on the dashboard.
Mr Ahmed asserts he sustained the following injuries in the accident:
(a)     injury to the back;
(b)     injury to both feet, and
(c)     injury to the right knee.
AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to make statutory payments to, for, or on behalf of Mr Ahmed under the Motor Accident Injuries Act 2017 (the MAI Act).
On 24 June 2021 Mr Ahmed lodged an Application for Personal Injury Benefits in which he alleged back pain and foot pain.
On 1 October 2021 the insurer issued a “Liability Notice- benefits after 26 weeks” in which the insurer determined the injury sustained by Mr Ahmed was minor and that his entitlement to medical and care related expenses would cease 26 weeks after the date of accident.[1]
[1] AD4 p 15.
On 29 October 2021 Mr Ahmed sought an Internal Review of that decision and on
15 November 2021 the insurer affirmed the earlier decision that all the injuries suffered by Mr Ahmed in the accident fell within the definition of minor injury.[2]
[2] AD4 p 23.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the threshold injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to…

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 126
Decision Date: 4 April 2023

CaseChat Overview and Summary

AAI Limited, trading as AAMI, brought a case against Mr Ahmed in relation to a motor accident that occurred on 17 June 2021. Mr Ahmed sought compensation for injuries sustained in the accident. The primary dispute centred on whether certain injuries were classified as "threshold injuries" under the Motor Accident Injuries Act 2017, which would entitle Mr Ahmed to compensation for medical expenses and other related costs.

The legal issues before the court were whether the injuries to the lumbar spine, right foot, and left foot qualified as threshold injuries and whether the radial tear to Mr Ahmed's right knee, which was identified as a non-threshold injury, was properly classified. Additionally, the court had to determine the causation of the right knee injury, as this was a point of contention between the parties.

The court found that the injuries to the lumbar spine and both feet were threshold injuries, as determined by the Medical Assessor (MA) Berry. Regarding the right knee injury, the court applied the test of causation as established in Briggs v IAG Limited. The evidence supported that Mr Ahmed's right knee had struck the dashboard with a slight twist or rotatory force, resulting in a radial tear to the medial meniscus. The insurer conceded that if the causation was satisfied, the injury to the knee would indeed be a non-threshold injury. Consequently, the court concluded that the injury to the right knee was a non-threshold injury, while the soft tissue injuries to the lumbar spine and both feet were threshold injuries. The Medical Assessment Certificate of MA Berry was affirmed by the court.

Orders