Al Mahmoud v AAI Ltd - [2022] NSWPICMP 280

DETERMINATION OF REVIEW PANEL
CITATION:	Al Mahmoud v AAI Ltd [2022] NSWPICMP 280
CLAIMANT:	Talal Al Mahmoud
INSURER:	AAI Ltd
REVIEW PANEL:	Principal Member John Harris Medical Assessor Thomas Rosenthal Medical Assessor Alan Home
DATE OF DECISION:	8 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant was involved in a motor accident on 18 June 2017 when he was in his vehicle stationary in a carpark when the insured vehicle was reversing and collided with the back of the claimant’s vehicle; Held – the findings of the previous Medical Assessors and/or Review Panel are not, contrary to the claimant’s submission, determinative of causation in this dispute; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis and Pham v Shui considered; the claimant failed to establish that any of the treatment was causatively related to the motor accident based the evaluation of the records of pre-existing symptoms, the lack of initial treatment following the accident, histories recorded by the doctors in the months following the motor accident, the minor motor accident and the likelihood that the natural progression of degenerative changes which is the likely explanation for the subsequent deterioration in symptoms in the latter part of 2017; original assessment confirmed.
DETERMINATIONS MADE:	The Review Panel confirms the certificate dated 16 September 2021.

STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT

REASONS

BACKGROUND

Mr Talal Al Mahmoud (the claimant) was involved in a motor accident on 18 June 2017 when he was in his vehicle stationary in a carpark when the insured vehicle was reversing and collided with the back of the claimant’s vehicle.
The claimant’s vehicle suffered minor bumper damage and was driveable.
No ambulance or police attended at the accident. Mr Al Mahmoud did not seek medical attention at that time.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Mahmoud any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether 17 care and treatment disputes were “reasonable and necessary in the circumstances” and “relates to an injury caused by the motor accident”. Two of the care medical disputes relates to domestic assistance after 4 December 2017. The other 15 medical disputes concern treatment or care “from the date of the MAS assessment” into the future. These are medical disputes within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there…

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.

Continue reading Al Mahmoud v AAI Ltd

Details

AGLC: Al Mahmoud v AAI Ltd [2022] NSWPICMP 280
Case: [2022] NSWPICMP 280
Decision Date: 8 July 2022

CaseChat Overview and Summary

In Al Mahmoud v AAI Ltd, the claimant sought compensation from the defendant for injuries sustained in a motor accident that occurred on 18 June 2017. The claimant was stationary in a carpark when the insured vehicle, reversing, collided with the back of the claimant's vehicle. The dispute centred on whether the claimant's treatment and subsequent symptoms were causally linked to the motor accident. The matter was heard in the court, which had to determine the admissibility and weight of previous medical assessments and reviews, and whether they were determinative of causation.

The court had to decide whether the findings of previous Medical Assessors and/or Review Panel were determinative of causation in this case. The claimant argued that these findings should be determinative, but the court considered several precedents including Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis, and Pham v Shui. The court also had to evaluate the claimant's medical records, the lack of immediate treatment following the accident, the histories recorded by the claimant's doctors in the months after the accident, the minor nature of the accident, and the likelihood that the natural progression of degenerative changes, rather than the accident, was the cause of the claimant's later symptoms.

After considering the evidence and the legal principles, the court concluded that the claimant had not established that any of the treatment was causatively related to the motor accident. The court found that the evaluation of the records of pre-existing symptoms, the lack of initial treatment following the accident, the histories recorded by the doctors in the months following the motor accident, the minor nature of the accident, and the likelihood that the natural progression of degenerative changes were the most plausible explanations for the claimant's symptoms. Therefore, the original assessment was confirmed. The claimant's claim for compensation was dismissed.

The court's final orders were that the claimant's claim for compensation was dismissed, and the original assessment regarding the claimant's injuries was upheld. The claimant was not entitled to any compensation from the defendant for the injuries sustained in the motor accident.

Orders