Ginnelly v AAI Limited t/as GIO - [2023] NSWPICMP 648

DETERMINATION OF REVIEW PANEL
CITATION:	Ginnelly v AAI Limited t/as GIO [2023] NSWPICMP 648
CLAIMANT:	Michael Ginnelly
INSURER:	AAI Ltd t/as GIO
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	John Carter
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	1 December 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant involved in a motor accident on 31 October 2017 whilst riding a motor bike that struck insured vehicle and claimant impaled on bike pedal; issue as to the extent of the issues before the Panel given the limited grounds of review; review applied to all matters in the medical assessment; Allianz Australia Ltd v Ellul applied; Meeuwissen v Boden and Wood v Insurance Australia Ltd referred to; permanent impairment and multiple impairment disputes; claimant had prior neck, back and bilateral shoulder symptoms; various findings made on causation of injuries and need for treatment; assessment of bilateral shoulder condition noting prior symptoms and surgical procedures; no deduction made; IAG Ltd v Chahoud applied; Held – medical assessment revoked; finding made that impairment exceeded 10%; various findings made on treatment disputes.
DETERMINATIONS MADE:	Medical Assessment – Treatment and Care Review Panel Assessment of Treatment and Care Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 The Review Panel revokes the certificate of Medical Assessor Cameron dated 27 March 2022 and issues a new certificate determining that: The following treatment and care: · a future steroid injection; · visits to general practitioner, twice yearly for the remainder of life; · past gratuitous assistance; · future domestic assistance; · left shoulder arthroscopy; · future right shoulder arthroscopy; · past gratuitous assistance; · future domestic assistance; RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT The following treatment and care · a future steroid injection; · visits to general practitioner, twice yearly for the remainder of life; · left shoulder arthroscopy; · left carpal tunnel decompression; · future right carpal tunnel decompression; is REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · future consumption of Tramadol; · future fentanyl patches and endone; · left carpal tunnel decompression; · future left knee arthroscopy; · future right carpal tunnel decompression; DOES NOT RELATE TO THE INJURY CAUSED BY THE MOTOR ACCIDENT The following treatment and care: · future consumption of Tramadol; · future fentanyl patches and endone; · future left knee arthroscopy; · future right shoulder surgery; is NOT REASONABLE AND NECESSARY in the circumstances. The extent of any need for past gratuitous assistance and future domestic assistance, if any, is to be assessed by an Occupational Therapist. Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The assessment made by the review panel under s 63(4) is as follows: The Review Panel revokes the certificate of Medical Assessor Cameron dated 27 March 2022 and issues a new certificate that the following injuries caused by the motor…

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 648
Decision Date: 1 December 2023

CaseChat Overview and Summary

In the case of Ginnelly v AAI Limited t/as GIO, the matter was heard in the Queensland Civil and Administrative Tribunal. The dispute involved a motor accident that occurred on 31 October 2017, where the claimant was riding a motorbike and collided with an insured vehicle, resulting in the claimant being impaled on the bike's pedal. The primary issue before the tribunal was the extent of the review applicable to the medical assessment conducted in relation to the injuries sustained by the claimant.

The legal issues that the tribunal had to decide included the scope of the review in the context of the limited grounds of review provided. The tribunal had to determine whether the review applied to all matters in the medical assessment and whether the findings regarding the extent of impairment and the need for treatment were appropriate. The tribunal considered the case law of Allianz Australia Ltd v Ellul and referenced Meeuwissen v Boden and Wood v Insurance Australia Ltd to understand the principles of review in this context. The tribunal also had to consider the claimant's pre-existing conditions and how they impacted the assessment of the injuries sustained in the accident.

The tribunal's reasoning and outcome involved a detailed analysis of the medical evidence and the legal principles that applied. The tribunal found that the review applied to all matters in the medical assessment, and as such, the assessment was revoked. The tribunal made findings that the claimant's impairment exceeded 10% and various findings on the treatment disputes. Notably, the tribunal did not make any deductions for the claimant's pre-existing conditions, following the principles set out in IAG Ltd v Chahoud. The tribunal's decision was based on a comprehensive assessment of the medical evidence and the applicable legal standards.

The final orders of the tribunal included the revocation of the medical assessment, a finding that the claimant's impairment exceeded 10%, and various findings on the treatment disputes. The tribunal's decision provided clarity on the extent of the review and the appropriate assessment of the claimant's injuries and treatment needs.

Orders