Ayoub v AAI Limited t/as GIO - [2022] NSWPICMP 511

DETERMINATION OF REVIEW PANEL
CITATION:	Ayoub v AAI Limited t/as GIO [2022] NSWPICMP 511
CLAIMANT:	Joseph Ayoub
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	John Harris
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	13 December 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injuries in a motor accident on 25 September 2015 whilst test riding a motorcycle; the issues were whether a cervical spine surgery was reasonable and necessary and caused by the motor accident; the issue of injury to the cervical spine was in dispute; there was an absence of reference to cervical spine symptoms following the accident although the claimant was eventually referred for a scan of the neck; the neck symptoms in the months after the motor accident were mild and intermittent consistent with a reference to neck pain being “non-specific” by the chiropractor in December 2015; there was an absence of any reference to neck pain in any clinical notes and the medical reports during the period from 2016 to 2018; when the neck was examined on the two occasions identified during this period it was reported as normal; the neck was reported as symptomatic in 2019 and deteriorated since that time; findings made that the claimant suffered a soft tissue neck injury which recovered after three months; no material contribution between the injury and need for surgery; various factors considered when assessing whether the surgery was reasonable and necessary in the circumstances; Diab v NRMA referred to; Panel not satisfied that the proposed surgery was necessary because of the claimant’s psychological condition and the non-dermatome nature of the upper extremity symptoms, resulting in a likely poor outcome from this surgery; Held – the proposed surgery was not reasonable and necessary and not caused by the motor accident.
DETERMINATIONS MADE:	Review Panel Assessment of Treatment and Care Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 The Review Panel confirms the certificate of Medical Assessor Home dated 31 March 2022.

REASONS

BACKGROUND

Mr Joseph Ayoub (the claimant) was involved in a motor accident on 25 September 2015 whilst riding a motorcycle. The accident occurred when Mr Ayoub was test riding a motor bike and the brakes locked causing him to fall onto the roadway.[1]
[1] Claimant’s bundle, p 1,780.
The insurer is liable to pay Mr Ayoub any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute before the Panel is whether surgery proposed by Dr Coughlan is “reasonable and necessary in the circumstances” and “relates to the injuries caused by the motor accident”.[2] These constitute medical disputes within the meaning of the Act.[3]
[2] This was confirmed by the parties in response to a direction dated 21 October 2022.
[3] See ss 57 and 58 of the MAC Act.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[4] and, pursuant to s…

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 511
Decision Date: 13 December 2022

CaseChat Overview and Summary

In the case of Ayoub v AAI Limited t/as GIO, the claimant, Mr Ayoub, sought to recover costs relating to a proposed cervical spine surgery following a motor accident in 2015. The primary dispute centred on the reasonableness and necessity of the proposed surgery and whether it was caused by the motor accident. The matter was heard by a Compensation Assessment Panel (CAP) of the Supreme Court of New South Wales.

The legal issues that the Panel had to decide included whether Mr Ayoub had suffered a cervical spine injury as a result of the motor accident, and if so, whether the proposed surgery was reasonable and necessary. The Panel had to assess the medical evidence to determine whether the proposed surgery was necessary because of the claimant’s injury and whether there was a material contribution between the injury and the need for surgery. The Panel also had to consider whether there were other factors that made the proposed surgery unreasonable or unnecessary.

The Panel found that Mr Ayoub had suffered a soft tissue neck injury as a result of the motor accident. However, the injury had recovered within three months, and there was no material contribution between the injury and the need for surgery. The Panel considered various factors when assessing whether the proposed surgery was reasonable and necessary, including the claimant’s psychological condition and the non-dermatome nature of the upper extremity symptoms. The Panel referred to the case of Diab v NRMA and found that the proposed surgery was not necessary because of the claimant’s psychological condition and the non-dermatome nature of the upper extremity symptoms, which would likely result in a poor outcome from the surgery. The Panel concluded that the proposed surgery was not reasonable and necessary and was not caused by the motor accident.

The final orders of the Panel were that the claimant was not entitled to the costs of the proposed surgery.

Orders