Gerling v AAI Limited t/as GIO

In the case of Gerling v AAI Limited t/as GIO, the claimant, Gerling, was involved in a motor accident in 2017. Gerling had previously injured her low back, resulting in surgery. Following the accident, the parties referred 24 treatment and care disputes to the Panel, 22 of which related to claims for future treatment. The Panel had determined that the recency of the low back surgery meant that the condition had not stabilised and that the future treatment could not be determined at that stage. Gerling subsequently sought to rephrase the future treatment disputes and have them determined as past treatment disputes. The Panel opposed and rejected this application, finding that any amendment would create procedural unfairness and cause further delay.

The legal issues before the court involved whether the Panel had the authority to reclassify the future treatment disputes as past treatment disputes, and whether such a reclassification would be procedurally fair and reasonable. The court had to consider the implications of such a reclassification, including the potential for further delays and the need for additional evidence. The court also had to determine the appropriate level of domestic assistance that Gerling was entitled to receive, taking into account her medical condition and the need to restrict heavy lifting. The court had to balance the need for assistance with the claimant’s improvement in condition following surgery.

The court found that the Panel had correctly opposed and rejected Gerling’s application to reclassify the future treatment disputes as past treatment disputes. The court held that such an amendment would create procedural unfairness and cause further delay, as the affected party would be entitled to adduce further evidence. The court also found that the Panel had appropriately determined the past dispute for domestic assistance, making orders specifying varying degrees of assistance over the past four years. The amount of assistance was reduced due to previous findings that Gerling did not injure her shoulders or knees in the subject accident, and these were contributing to the loss. The court held that Gerling’s condition had improved substantially following surgery and ordered modest assistance (3 hours per week) since that time based on the need to restrict heavy lifting such as cleaning and shopping.