Insurance Australia Ltd v Fayed - [2023] NSWPICMP 413

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Fayed [2023] NSWPICMP 413
CLAIMANT:	Helen Fayad
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	25 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 14 November 2021 in a side swipe collision; the dispute related to proposed treatment and care including future surgery; Medical Assessor (MA) found signs of radiculopathy and found proposed treatment both reasonable and necessary and caused by motor accident; previous finding by insurer that claimant had minor (now threshold) injuries only; Panel advised that application was “lacking in substance” and should be dismissed pursuant to section 54 of the Personal Injury Commission Act 2020; matter referred to decision maker with power to determine that issue; dismissal application exercised sparingly and with exceptional caution; Perera v Genworth Financial Mortgage Insurance Pty Ltd applied; meaning of lacking in substance; The Owners Corporation of Strata Pan 4521 v Zouk applied; original MA had arguably found two signs of radiculopathy in the C6 distribution; finding in favour of claimant for treatment dispute would mean that she would need to be successful in establishing “recovery” or a non-threshold injury in other proceedings; present proceedings not lacking in substance merely because the claimant would need to take further proceedings to establish the liability of insurer to pay for treatment; Held – application to summarily dismiss review application rejected.
DETERMINATIONS MADE:	The application to dismiss the review of the medical assessment pursuant to s 54 of the Personal Injury Commission Act 2020 is rejected.

REASONS

BACKGROUND

There is presently an application for review of a medical assessment before a Medical Review Panel. That Panel has requested that the review be dismissed because they stated that the application was “lacking in substance”. The application for summary dismissal was referred to me.
For the following reasons I decline to summarily dismiss the review of the medical assessment.
Ms Helen Fayad (the claimant) alleges that she suffered injury in a motor accident on
14 November 2021. The claimant was travelling in the left lane when a vehicle in the adjacent lane changed lanes colliding with the right side of the claimant’s vehicle. The offending vehicle drove away.
The insurer is liable to pay to Ms Fayad any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
On 30 August 2022 the insurer advised the claimant that she had suffered a minor injury and it would not be paying benefits beyond 1 December 2022.
In September 2022 the claimant requested the insurer to pay for physiotherapy and the surgery recommended by Dr Rao which included a C5/6 anterior cervical discectomy and fusion.
The insurer declined these requests. The claimant then commenced proceedings in the Personal Injury Commission (Commission) seeking findings that the proposed treatment was reasonable and necessary in the circumstances or relates to the injuries caused by the…

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 413
Decision Date: 25 August 2023

CaseChat Overview and Summary

In the matter of Insurance Australia Ltd versus Fayed, the dispute centred around the claimant’s entitlement to proposed treatment and care following a motor accident that occurred on 14 November 2021. The case was heard by the Personal Injury Commission of New South Wales. The claimant had suffered injuries in a side-swipe collision and was seeking approval for future surgery. The insurer had previously assessed the claimant’s injuries as minor, now referred to as threshold injuries.

The key legal issues before the court were whether the application to summarily dismiss the claimant's review was “lacking in substance” and whether the dismissal application should be exercised sparingly and with exceptional caution. The court needed to determine if the application met the criteria for summary dismissal under section 54 of the Personal Injury Commission Act 2020. Additionally, the court had to consider the implications of the Medical Assessor's findings regarding signs of radiculopathy and the necessity of the proposed treatment.

In examining these issues, the court noted that the Panel had found the application "lacking in substance" and recommended its dismissal. However, the court applied the principles from Perera v Genworth Financial Mortgage Insurance Pty Ltd and The Owners Corporation of Strata Plan 4521 v Zouk, which emphasised the importance of exercising dismissal powers sparingly and with caution. The court found that the original Medical Assessor had arguably identified two signs of radiculopathy in the C6 distribution, suggesting that the proposed treatment was both reasonable and necessary. The court also highlighted that a finding in favour of the claimant in the present proceedings did not automatically render the application lacking in substance, even if the claimant needed to establish a non-threshold injury in other proceedings. Consequently, the application to summarily dismiss the review was rejected.

The court's decision ensured that the claimant's right to seek a review was upheld, and the matter was referred back to the decision-maker for further consideration. This outcome underscored the importance of thoroughly evaluating each application to dismiss and the need to balance procedural efficiency with the rights of claimants.

Orders