GIO Insurance (Australia) Ltd v Taouk - [2021] NSWPICMP 193

DETERMINATION OF REVIEW PANEL
CITATION:	GIO Insurance (Australia) Ltd v Taouk [2021] NSWPICMP 193
CLAIMANT:	Elias Taouk
INSURER:	GIO Insurance (Australia) Ltd
REVIEW PANEL:	Principal Member John Harris Dr Richard Crane Dr Shane Moloney
DATE OF DECISION:	20 September 2021
CATCHWORDS:	MOTOR ACCIDENTS- The Claimant was injured in a motor accident; the issue before the Review Panel (RP) was whether he sustained a right shoulder injury and specifically a supraspinatus tear which required surgery; other treatment was sought by way of neurological review for the cervical spine injury; Held -the Claimant did not suffer a right shoulder injury; over a two-month period the Claimant was examined by four different health professionals including an ambulance officer, at hospital and by two different general practitioners with no complaint of right shoulder injury; the hospital notes also indicated normal power in the upper and lower limbs; the right shoulder was not mentioned by the Claimant in the claim form completed approximately six weeks after the motor accident; the minor rear end collision from which the biomechanical forces would have simply pushed the shoulders into the supporting car seat, was most unlikely to have caused anything although may cause a minor soft tissue injury; the tear and degenerative changes shown on MRI may be found in shoulders with no history of trauma; whilst the absence of contemporaneous complaint is not determinative, AAI Ltd v McGiffen, the existence of other evidence such as the claim form Bugat v Foxdid not support injury; biomechanical factors did not favour the claimed injury; QBE Insurance (Australia) Ltd v Shah considered; the proposed treatment to the cervical spine was not reasonable and necessary; observations of the meaning of “necessary” when compared to workers compensation legislation; Clampett v WorkCover Authority of NSW applied; referral to a neurosurgeon for cervical spine condition not necessary because examination findings of Medical Assessor showed normal reflexes, no muscle wasting or sensory changes in a dermatomal distribution in the upper limbs; as there are no documented signs of radiculopathy, no neurosurgical referral is indicated and is not necessary.

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

Medical Assessment – Minor Injury and Treatment and Care

Review Panel Assessment of Minor Injury
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate dated 6 April 2021 and issues a new certificate determining that:

The following injuries:

Cervical spine – soft tissue injury
Thoracic spine – soft tissue injury
Lumbar spine – soft tissue injury

are MINOR INJURIES for the purposes of the Act

The right shoulder was not injured in the motor accident.

Review Panel Assessment of Treatment and Care
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate dated 6 April 2021 and issues a new certificate determining that:

The following treatment and care:

Referral to Dr John Trantalis, orthopaedic surgeon
Referral to Dr Simon McKechnie, neurosurgeon

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: [2021] NSWPICMP 193
Decision Date: 20 September 2021

CaseChat Overview and Summary

In the case of GIO Insurance (Australia) Ltd v Taouk, the dispute centred on whether the claimant had sustained a right shoulder injury and specifically a supraspinatus tear requiring surgery, as well as the necessity of neurological review for a cervical spine injury. The matter was brought before the court to determine these issues.

The legal issues before the court involved the claimant's assertions of injury and the reasonableness and necessity of the proposed treatments. The court needed to evaluate the credibility of the claimant's injury claims, including the right shoulder injury and the proposed treatment for the cervical spine condition.

The court examined the evidence presented, including the claimant's lack of contemporaneous complaints about the right shoulder injury, the minor nature of the motor accident which would not have caused the claimed injury, and the absence of support for the injury in the MRI findings and the claim form. The biomechanical factors were also considered, and it was concluded that they did not support the claimed injury. Furthermore, the proposed treatment for the cervical spine was deemed not reasonable and necessary, as there were no documented signs of radiculopathy and the claimant's examination findings showed normal reflexes and no muscle wasting or sensory changes.

The court found that the claimant did not suffer a right shoulder injury and that the proposed treatment for the cervical spine was not reasonable and necessary. Therefore, the claimant's claims for treatment related to these injuries were denied. The court's decision was based on the lack of evidence supporting the claimed injuries and the absence of necessity for the proposed treatments.

Orders