Keverian v Insurance Australia Ltd - [2022] NSWPICMP 294

DETERMINATION OF REVIEW PANEL
CITATION:	Keverian v Insurance Australia Ltd [2022] NSWPICMP 294
CLAIMANT:	Varoujan Keverian
INSURER:	Insurance Australia Ltd
REVIEW PANEL:	Principal Member John Harris Medical Assessor Leslie Barnsley Medical Assessor Rhys Gray
DATE OF DECISION:	19 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant purportedly suffered injury in a motor accident on 24 August 2015; the present application related to numerous past and future treatment and care disputes; a Medical Assessor previously assessed the claimant at 8% permanent impairment resulting from the motor accident; the Medical Assessment in the present dispute was that none of the treatment or care disputes resulted from the motor accident; Held – the previous findings on impairment were not binding on this Panel on the issue of causation; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis and Pham v Shui considered; the claimant had pre-accident morbid obesity, diabetes and a degenerative spine with debilitating lower back symptoms into the legs; he did not seek any medical treatment until four months after the motor accident; the scan evidence did not show any traumatic injury; claimant’s clinical presentation to Medical Assessors and recollection of prior condition was inconsistent; findings made that claimant had not established injury; none of the treatment and care related to the motor accident; Medical Assessment confirmed.

Medical Assessment – Treatment and Care

Review Panel Assessment of Treatment and Care and

Replacement Certificate issued under section 63 of the Motor Accidents Compensation Act 1999

The Review Panel confirms the certificate of Medical Assessor McGrath dated 24 November 2021.

REASONS

BACKGROUND

Mr Keverian (the claimant) alleges that he suffered injuries in a motor accident on 24 August 2015. The insurer insurers the liability of the at fault vehicle under the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
The present disputes between the parties are whether various medical treatments are “reasonable and necessary in the circumstances” and “relates to an injury caused by the motor accident”. These constitute medical disputes within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[2] Section 60 of the MAC Act.
On 24 November 2021 Medical Assessor McGrath issued a certificate that none of the various listed treatments or care were either reasonable and necessary or caused by the motor accident.
The treatment disputes were related to causation and reasonable and necessary. The causation disputes were described as:
“1. Treatment Type: Domestic assistance - causation Treatment Description: Whether the physical injuries give rise to a need for domestic assistance from the date of the subject accident to the date of the MAS assessment and whether this assistance is causally related to the injury sustained in 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.

Keep reading for free

Create a free CaseChat account to read Keverian v Insurance Australia Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWPICMP 294
Decision Date: 19 July 2022

CaseChat Overview and Summary

In the matter of Keverian v Insurance Australia Ltd, the dispute involved the claimant’s claims for past and future treatment and care, which were allegedly a result of a motor accident that occurred on 24 August 2015. The case was heard in a relevant Australian court where the claimant sought to challenge the insurer’s denial of his treatment and care claims.

The legal issues before the court included whether the claimant had established that his treatment and care were caused by the motor accident, and if the previous findings on his permanent impairment were binding in this matter. The court had to consider the consistency of the claimant's medical history, his recollection of events, and the available medical evidence. The decision hinged on the causation of the claimant's condition and whether it was related to the motor accident.

The court found that the previous findings of impairment were not binding on this Panel for the issue of causation. The court considered the claimant's pre-existing morbid obesity, diabetes, and degenerative spine, as well as the lack of immediate medical treatment following the accident. The scan evidence did not show any traumatic injury, and the claimant's presentation and recollection of his prior condition were inconsistent. Consequently, the court concluded that the claimant had not established that his treatment and care were related to the motor accident. The Medical Assessment was confirmed, and the claimant's claims were denied.

The final orders of the court confirmed the findings that none of the treatment and care were related to the motor accident, and the claimant's claims were dismissed.

Orders