Jones v AAI Limited t/as AAMI - [2023] NSWPICMP 535

DETERMINATION OF REVIEW PANEL
CITATION:	Jones v AAI Limited t/as AAMI [2023] NSWPICMP 535
CLAIMANT:	Mercedes Jones
INSURER:	AAI Ltd t/as AAMI
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	25 October 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; various treatment disputes and threshold dispute; claimant involved in a motor accident on 18 June 2021 in rear end collision; claimant re-examined by Medical Assessor; claimant established that injury to right shoulder as non-threshold due to absence of prior scans, early complaint, medically plausible as seatbelt restrained right shoulder and subsequent imaging; separate findings made on each of the nine treatments on the separate issues of causation and reasonable and necessary; Held – medical assessment revoked; various findings made on treatment disputes; claimant suffered non-threshold injury to right shoulder.
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 revokes the certificate dated 28 February 2023 and certifies that the claimant suffered a non-threshold injury to the right shoulder. Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 28 February 2023 and issues a new certificate determining that: The following treatment and care: · referral to Dr Nham IS REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · request for further MRI scans in June 2022; · physiotherapy between 20 January 2022 and 1 February 2022, and · further physiotherapy on 9 June 2022. IS NOT REASONABLE AND NECESSARY in the circumstances. The Review Panel revokes the certificate dated 28 February 2023 and issues a new certificate determining that: The following treatment and care: · referral to Dr Nham; · request for further MRI scans in June 2022; · physiotherapy between 20 January 2022 and 1 February 2022, and · further physiotherapy on 9 June 2022. relates to the injury caused by the motor accident.

REASONS

BACKGROUND

Ms Mercedes Jones (the claimant) sustained injury in a motor accident on 18 June 2021. The claimant was the driver when the insured vehicle struck the claimant’s vehicle from behind.
The insurer is liable to pay Ms Jones any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The issues presently in dispute are whether Ms Jones physical injuries caused by the motor accident are a “threshold injury” and “whether any treatment and care 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 section 3.24 (Entitlement to statutory benefits for treatment and care)” within the meaning of the MAI Act.
The treatment and care disputes were:
- the referral for medical consultation with Dr Nham, neurologist;
- request for physiotherapy between 20 January…

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 535
Decision Date: 25 October 2023

CaseChat Overview and Summary

The case of Jones v AAI Limited t/as AAMI involved a dispute over various treatment issues and a threshold dispute following a motor accident that occurred on 18 June 2021. The claimant was involved in a rear-end collision, and subsequently, the Medical Assessor re-examined the claimant. The primary focus of the dispute was whether the claimant's right shoulder injury met the threshold criteria under the Motor Accident Injuries Act 2017. The claimant argued that the injury was non-threshold due to the absence of prior scans, early complaint, and the medically plausible explanation that the seatbelt restrained the right shoulder, as supported by subsequent imaging.

The court was required to determine several legal issues. First, whether the claimant's right shoulder injury met the threshold criteria for compensation under the Act. Second, the court needed to address the causation and necessity of nine specific treatments the claimant received. Each treatment was assessed on its own merits, with separate findings made regarding whether they were caused by the accident and whether they were reasonable and necessary.

The court found that the claimant's right shoulder injury was non-threshold, as the claimant successfully demonstrated the absence of prior scans, early complaint, and the medically plausible explanation regarding the seatbelt restraint. The court revoked the previous medical assessment and made separate findings on each of the nine treatments. The findings were based on whether the treatments were caused by the accident and whether they were reasonable and necessary. The court determined that the claimant suffered a non-threshold injury to the right shoulder and provided detailed findings on each treatment.

The court made specific findings on the nine treatments, determining the causation and reasonableness for each. The final orders included the revocation of the previous medical assessment and the establishment that the claimant's right shoulder injury was non-threshold, with detailed findings on the treatments.

Orders