Kotb v AAI Limited t/as GIO - [2023] NSWPICMP 312

DETERMINATION OF REVIEW PANEL
CITATION:	Kotb v AAI Limited t/as GIO [2023] NSWPICMP 312
CLAIMANT:	Hanadi Kotb
INSURER:	AAI Ltd t/as GIO
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	4 July 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 10 October 2020 in a rear-end collision; the dispute related to the assessment of threshold injury and treatment and care; claimant re-examined; significant pre-existing history of cervical lumbar spine pain; findings made that claimant suffered threshold injuries; findings made on treatment disputes on “reasonable and necessary”; discussion of the Motor Accident Injuries Amendment Act 2022; repeal of clause 2(c) of Schedule 2 without associated saving provision; no power of review panel to determine dispute pertaining to “recovery”; Held – assessment of threshold injury confirmed; treatment and care certificate revoked.
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 18 August 2022. 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 revokes the certificate dated 18 August 2022 and issues a new certificate determining that: The following treatment and care: · request for a TENS machine; · request for a whole body bone scan; · request for a consultation with Dr Frederik Joshua, rheumatologist; IS REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · further physiotherapy, IS NOT REASONABLE AND NECESSARY in the circumstances. Medical Assessment – Recovery Review Panel Assessment of Recovery Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel has no power to determine the issue of recovery.

REASONS

BACKGROUND

Ms Hanadi Kotb (the claimant) suffered injury in a motor accident on 10 October 2020 (the motor accident) when she was a front seat passenger struck by the insured vehicle from behind. After the impact the vehicle swerved to the left but did not result in any secondary collision.[1]
[1] Claimant’s bundle, p 19.
The claimant alleges that the motor accident caused injuries to the cervical, thoracic and lumbar spine and right hip.
The insurer is liable to pay to Ms Kotb any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute is whether Ms Kotb’s injury is classified as a “threshold injury” within the meaning of the MAI Act and whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances for the purposes of section 3.24” and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person.
Whether the treatment was caused by the motor accident was…

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 312
Decision Date: 4 July 2023

CaseChat Overview and Summary

Kotb v AAI Limited t/as GIO involved a dispute between the claimant, who suffered an injury in a motor accident on 10 October 2020, and the insurer, regarding the assessment of the injury and treatment and care provided. The claimant had a significant pre-existing history of cervical lumbar spine pain, which complicated the evaluation of the injuries sustained in the accident. The case was heard in a relevant tribunal under the Motor Accident Injuries Act 2017.

The court had to determine whether the claimant's injuries met the threshold for compensation and, if so, the nature and extent of treatment and care that was deemed "reasonable and necessary" under the Act. The claimant was re-examined to assist in making these findings. A key issue was the impact of the Motor Accident Injuries Amendment Act 2022, which repealed clause 2(c) of Schedule 2 without including a saving provision, affecting the tribunal's ability to review disputes pertaining to "recovery."

The tribunal found that the claimant suffered threshold injuries and issued findings accordingly. However, regarding the treatment and care, the tribunal revoked the certificate due to disputes over what constituted "reasonable and necessary" treatment. The tribunal concluded that the amendment act had removed its power to review disputes on "recovery," affecting the scope of the tribunal's determination in this case. The assessment of the threshold injury was confirmed, and the treatment and care certificate was revoked.

The tribunal ordered that the assessment of the threshold injury be upheld and that the certificate for treatment and care be revoked. The claimant was entitled to compensation for the threshold injuries, but the insurer was not required to provide further treatment and care as per the revoked certificate.

Orders