Gorgis v AAI Limited t/as GIO - [2023] NSWPICMP 263

DETERMINATION OF REVIEW PANEL
CITATION:	Gorgis v AAI Limited t/as GIO [2023] NSWPICMP 263
CLAIMANT:	Edmon Gorgis
INSURER:	AAI Ltd t/as GIO
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	9 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act2017; threshold injury from sideswipe collision; short delay in onset of symptoms in right shoulder; greater delay in onset of left shoulder symptoms; claimant did not describe direct trauma to either shoulder from motor accident; claimant was regularly lifting very heavy weights at gym and otherwise lesser but repetitive weights at work; minimal force directed to right shoulder and none to the left shoulder from the motor accident; no injury to left shoulder; no aggravation of right shoulder pathology caused by motor accident; other injuries threshold injuries; Held – claimant suffered threshold injuries; original assessment confirmed.
DETERMINATIONS MADE:	Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 7 October 2022. Medical Assessment –Treatment and Care – Causation Review Panel Assessment of Treatment and Care and Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 7 October 2022. Medical Assessment –Treatment and Care – Reasonable and Necessary Review Panel Assessment of Treatment and Care and Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 7 October 2022 and issues a new certificate determining that: The following treatment and care: - Initial treatment with Dr Fred Nouh for the left shoulder IS REASONABLE AND NECESSARY IN THE CIRCUMSTANCES Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care and Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel issues a new certificate determining that: Initial treatment with Dr Balsam Darwish, neurosurgeon, for the neck injury IS NOT REASONABLE AND NECESSARY IN THE CIRCUMSTANCES

REASONS

BACKGROUND

Mr Edmon Gorgis (the claimant) suffered injury in a motor accident on 9 December 2021. The insured veered into the claimant’s lane colliding with the driver’s side of the claimant’s vehicle several times (the motor accident).[1]
[1] Claimant’s bundle, p 5.
The insurer for the other vehicle is liable to pay Mr Gorgis any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues presently in dispute are whether Mr Gorgis’ physical injuries caused by the motor accident are a “threshold injury” within the meaning of the MAI Act, whether certain treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of s 3.24 of the MAI Act.
The medical treatment was:
- initial treatment with Dr Fred Nouh for the left shoulder, and

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 263
Decision Date: 9 June 2023

CaseChat Overview and Summary

The case of Gorgis v AAI Limited t/as GIO involved the claimant seeking compensation for injuries sustained in a motor accident. The primary dispute was whether the claimant's injuries met the threshold criteria for compensation under the Motor Accident Injuries Act 2017. The decision was rendered by the relevant Australian court, which had to determine if the injuries sustained were sufficient to warrant compensation.

The central legal issues revolved around the nature and origin of the claimant's shoulder injuries. Specifically, the court had to assess whether the injuries sustained in the accident met the statutory threshold for compensable injuries. The claimant reported symptoms in both shoulders, but the force exerted on each shoulder during the accident was minimal, with no direct trauma to the left shoulder. Additionally, the claimant regularly engaged in heavy lifting activities both at the gym and at work, which complicated the attribution of the injuries to the motor accident.

The court found that the claimant did not experience any direct trauma to the shoulders during the accident. However, the claimant's symptoms in the right shoulder developed shortly after the accident, and those in the left shoulder developed later. Despite the minimal force applied to the shoulders during the accident, the court concluded that the claimant's injuries met the threshold criteria for compensation under the Act. The court confirmed the original assessment that the claimant had sustained compensable threshold injuries.

The court's decision affirmed the original assessment, and the final orders would reflect this confirmation, ensuring that the claimant is entitled to compensation for the injuries sustained in the motor accident.

Orders