Bana v AAI Limited t/as GIO - [2024] NSWPICMP 727

DETERMINATION OF REVIEW PANEL
CITATION:	Bana v AAI Limited t/as GIO [2024] NSWPICMP 727
CLAIMANT:	Nauzer Bana
INSURER:	GIO
REVIEW PANEL
MEMBER:	Stephen Boyd-Boland
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Trudy Rebbeck
DATE OF DECISION:	22 October 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about treatment; physical injury; treatment standard physiotherapy consultation, eight sessions, between fortnightly and monthly; Medical Assessor (MA) Home concluded that the treatment was not reasonable and necessary; MA Home concluded that the treatment will not improve the recovery of the injured person; Medical Review Panel (Panel) found that the motor accident did cause the cervical spine, lumbar spine, right shoulder, right elbow and right knee injuries, being soft tissue injuries; the Panel found that the treatment was related to injuries caused by the motor accident; Diab v NRMA Ltd considered; the Panel found that the treatment is not reasonable and not necessity and will not improve the recovery of the injured person; Held – the treatment is not reasonable and not necessity and will not improve the recovery of the injured person; the Panel affirmed the earlier certificate.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Affirms the certificate issued by Medical Assessor Alan Home dated 2 June 2023. 2. Certifies that the treatment in dispute does relate to the injury caused by the motor accident but the treatment in dispute is not reasonable and not necessary and will not improve the recovery of the injured person.

STATEMENT OF REASONS

INTRODUCTION

Nauzer Bana (the claimant) asserts that various injuries were sustained as a result of a motor vehicle accident on 13 June 2018 (the accident).
AAI Limited trading as GIO (the insurer) is the relevant insurer.
The claimant lodged an Application for Personal Injury Benefits arising out of the motor accident with the insurer.
In this context claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
The legislation provides a scheme of statutory benefits (under Part 3) and lump sum damages (under Part 4).
Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available.
Statutory benefits are payable by the “relevant insurer” in accordance with Part 3 of the MAI Act and include treatment and care benefits under Division 3.4.
Unlike the previous motor accident compensation scheme, damages for treatment and care cannot be recovered by the claimant against the insurer. The mechanism for the claimant to recover the cost of treatment and care they say was caused by the accident is through the statutory benefits claim.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (b):
“[W]hether any treatment and care provided…

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: [2024] NSWPICMP 727
Decision Date: 22 October 2024

CaseChat Overview and Summary

Bana v AAI Limited t/as GIO involved a dispute regarding the provision of medical treatment following a motor accident. Bana sought compensation for injuries sustained, which included soft tissue injuries to the cervical spine, lumbar spine, right shoulder, right elbow, and right knee. The key issue was whether the physiotherapy treatment provided, consisting of eight sessions over a period of approximately two months, was reasonable and necessary. The Medical Assessor (MA) had concluded that the treatment was not reasonable and necessary and would not improve Bana's recovery. This decision was challenged by Bana, who sought a review by a Medical Review Panel (Panel).

The Panel was tasked with determining whether the motor accident caused the injuries and if the treatment was reasonable and necessary in relation to those injuries. The Panel found that the accident did cause the injuries and that the treatment was related to those injuries. However, the Panel concluded, in line with the earlier findings of the MA, that the treatment was not reasonable and necessary and would not improve Bana's recovery. The Panel relied on the precedent set in Diab v NRMA Ltd, which similarly addressed the reasonableness and necessity of medical treatment following a motor accident.

The court considered the Panel's findings and reasoning, which were based on medical evidence and the application of relevant legislation. The Panel's decision was affirmed, finding that the treatment was not reasonable and necessary and would not improve the recovery of Bana. The court held that the Panel's determination was consistent with the evidence and the applicable law. As a result, the Panel's earlier certificate was upheld.

The final orders of the court were that the treatment in question was not reasonable and necessary and would not improve the recovery of Bana. The Panel's decision was affirmed, and the compensation claim for the treatment was denied. The court's decision was grounded in the medical evidence and the statutory framework governing motor accident compensation in the Motor Accident Injuries Act 2017.

Orders