Karbajha v AAI Limited t/as GIO - [2024] NSWPICMP 93

DETERMINATION OF REVIEW PANEL
CITATION:	Karbajha v AAI Limited t/as GIO [2024] NSWPICMP 93
CLAIMANT:	Rabih Karbajha
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	22 February 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor vehicle accident on 13 August 2019; review of determination of injuries as threshold and non-threshold; Held – Certificate by Medical Assessor (MA) Cameron certifying that five injuries, all soft-tissue, were threshold injuries; revocation of determination by MA Cameron that the lumbar spinal injury was a threshold injury, for the reason that the Panel certified that the annular disruption at L5/S1, a broad-disc bulge with a right paracentral component, and peripheral hyperintensity in the disc, is a non-threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. Partially revokes the certificate of Medical Assessor Ian Cameron of 8 August 2023. 2. The Panel confirms that the injuries to the: · left arm; · cervical spine; · head, and · left and right shoulder, were all soft tissue injuries and therefore threshold injuries. 3. The Panel revokes the determination of Medical Assessor Cameron that the injury to the lumbar spine was a soft tissue injury and threshold injury and certifies instead that the injury to the lumbar spine caused an annular disruption at L5/S1 and was a non-threshold injury.

STATEMENT OF REASONS

Introduction

Rabih Karbajha, who was born in 1988 in Lebanon, and who migrated to Australia in 2017, was involved in the subject accident on 13 August 2019.
The vehicle he was driving was hit from behind and pushed into the vehicle in front.
Mr Karbajha had multiple symptoms and was taken by ambulance to Liverpool Hospital where he was assessed and discharged.
A number of medical disputes about threshold injuries have arisen, and those disputes were referred to the Personal Injury Commission (Commission) for assessment.
The Commission referred the disputes to Medical Assessor Cameron and on 8 August 2023, he determined that Mr Karbahja has sustained the following injuries, caused by the motor accident:
- left arm – soft tissue injury;
- cervical spine – soft tissue injury;
- head – soft tissue injury;
- lumbar spine – soft tissue injury, and
- left and right shoulder – soft tissue injury,

and that each injury was a threshold injury for the purposes of the Act.

Mr Karbajha lodged an application with the Commission seeking a review of the Medical Assessor’s decision.

The Review Panel

The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s determination.
The delegate of the President determined that there was a reasonable cause to suspect a material error in the assessment and the review of that determination has been referred to this Panel.

Reasons for determination of Medical Assessor Cameron

The following injuries were referred by the Commission to Medical Assessor Cameron:
·        arm – traumatic injury to left arm;
·        cervical spine – traumatic injury to neck;
·        head – closed head injury;
·        lumbar spine – traumatic injury to…

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: [2024] NSWPICMP 93
Decision Date: 22 February 2024

CaseChat Overview and Summary

The matter of Karbajha v AAI Limited t/as GIO was heard in the Workers Compensation Scheme of the Queensland Civil and Administrative Tribunal. The plaintiff, Mr Karbajha, sought compensation for injuries sustained in a motor vehicle accident on 13 August 2019. The dispute centred on the classification of his injuries as either threshold or non-threshold under the workers' compensation legislation. The defendant, AAI Limited trading as GIO, contested the determination made by a Medical Assessor that certain injuries were threshold injuries. The tribunal was tasked with determining the correct classification of the injuries in question.

The primary legal issue for the tribunal to address was whether the injuries sustained by Mr Karbajha were threshold injuries, entitling him to compensation for those injuries, or non-threshold injuries, which would not entitle him to such compensation. The tribunal needed to consider the evidence provided by the Medical Assessor and the Panel, as well as the statutory criteria for classifying injuries as threshold or non-threshold. The tribunal also needed to determine whether the Panel's decision to revoke the Medical Assessor's determination regarding the lumbar spinal injury was legally sound.

The tribunal found that the Medical Assessor's determination that five of the plaintiff's injuries were threshold injuries was correct. However, the tribunal agreed with the Panel's decision to revoke the Medical Assessor's determination that the lumbar spinal injury was a threshold injury. The tribunal accepted the Panel's finding that the annular disruption at L5/S1, a broad-disc bulge with a right paracentral component, and peripheral hyperintensity in the disc, were non-threshold injuries. The tribunal considered the evidence presented by both the Medical Assessor and the Panel, and concluded that the Panel's determination was more consistent with the statutory criteria for classifying injuries as threshold or non-threshold. The tribunal's decision resulted in the revocation of the Medical Assessor's determination regarding the lumbar spinal injury.

The tribunal ordered that the determination of the Medical Assessor that five of Mr Karbajha's injuries were threshold injuries be affirmed. The tribunal also ordered that the determination of the Medical Assessor that the lumbar spinal injury was a threshold injury be revoked, and that the Panel's determination that this injury was a non-threshold injury be affirmed. The tribunal's decision had the effect of entitling Mr Karbajha to compensation for the five threshold injuries, but not for the lumbar spinal injury.

Orders