Lay v AAI Limited t/as GIO - [2024] NSWPICMP 429

DETERMINATION OF REVIEW PANEL
CITATION:	Lay v AAI Limited t/as GIO [2024] NSWPICMP 429
CLAIMANT:	Dulce Lay
INSURER:	AAI Limited trading as GIO
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Peter Yu
DATE OF DECISION:	3 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; treatment reasonable and necessary; treatment related to injury caused by the accident; past treatment; future treatment; decompression and fusion surgery; domestic assistance; physiotherapy; general practitioner consultations; past and future GP consultations; future physiotherapy consultations; decompression and fusion surgery; post-operative rehabilitation; Panadeine Forte and Lyrica; past and future domestic assistance reasonable and necessary and related to injury caused by the accident; no significant abnormalities found on examination although claimant pain focused; accident caused aggravation of pre-existing degenerative spinal condition; claimant developed chronic pain disorder; surgery not indicated where not established, persisting radiculopathy or myelopathy and having regard to pain syndrome; long-term use of codeine and Lyrica harmful and not beneficial to recovery; physiotherapy to maintain a few days of improved symptoms without demonstrable improvement not reasonable and necessary in the circumstances; Held – Medical Assessment Certificate revoked; past GP consultations and three future GP consultations for next five years reasonable and necessary and related to injury caused by accident; C5/6 decompression and fusion surgery not reasonable and necessary; post operative rehabilitation not reasonable and necessary; future physiotherapy not reasonable and necessary; Panadeine Forte and Lyrica not reasonable and necessary; past domestic assistance of four hours per week for three months reasonable and necessary and related to injury caused by accident; future domestic assistance of four hours per week not reasonable and necessary and not related to injury caused by accident.
DETERMINATIONS MADE:	*MOTOR ACCIDENTS COMPENSATION ACT 1999* Review Panel Certificate issued under Part 3.4 of the Motor Accident Compensation Act 1999 following a review under s 63 as to THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: 1. The Review Panel revokes the certificate of Medical Assessor McGrath dated 9 December 2022 and issues a new certificate certifying as follows: (a) Consultations with Dr Lieng on consultations on 15 January 2019, 13 February 2019, 24 May 2019, 8 July 2019, 9 July 2019, 12 December 2019, 16 December 2019, 26 February 2020, 19 March 2020, 29 April 2020, 27 May 2020, 2 October 2020 and 2 December 2020 were reasonable and necessary in the circumstances and relate to the injury caused by the accident. (b) The consultation with Dr Lieng on 22 May 2019 is not reasonable and necessary and does not relate to the injury caused by the accident. (c) Future general practitioner visits at three per annum for the next five years is reasonable and necessary in the circumstances and relates to the injury caused by the accident. (d) The C5/6 decompression and fusion surgery on 29 May 2023 was not reasonable and necessary in the circumstances and was not related to the injury caused by the accident. (e) Post operative…

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 429
Decision Date: 3 July 2024

CaseChat Overview and Summary

In the matter of Lay v AAI Limited trading as GIO, the Queensland District Court was called upon to assess the reasonableness and necessity of various treatments and services claimed to be related to injuries sustained in a motor accident. The claimant sought compensation for past and future treatments, including surgery, physiotherapy, general practitioner consultations, domestic assistance, and medication. AAI Limited, the insurer, contested the necessity and reasonableness of these treatments under the Motor Accidents Compensation Act 1999.

The court was required to determine whether the treatments claimed by the claimant were reasonable and necessary, and directly related to the injuries caused by the accident. This included evaluating the claimant's proposed decompression and fusion surgery, ongoing physiotherapy, general practitioner consultations, domestic assistance, and medication. The court had to consider the evidence presented by both parties and apply the statutory criteria set out in the Act.

The court concluded that while the accident did aggravate a pre-existing degenerative spinal condition and resulted in chronic pain, the proposed C5/6 decompression and fusion surgery was not reasonable and necessary given the absence of persisting radiculopathy or myelopathy. Additionally, the court found that long-term use of codeine and Lyrica was not beneficial to the claimant's recovery and thus not reasonable and necessary. Regarding physiotherapy, the court determined that it was not reasonable and necessary as it did not lead to a demonstrable improvement. As for general practitioner consultations, the court allowed for past consultations and three future consultations over the next five years. Domestic assistance was deemed reasonable and necessary in the past but not in the future. The court revoked the Medical Assessment Certificate due to the findings.

The court ordered that the past general practitioner consultations and three future consultations over the next five years were reasonable and necessary. The surgery, post-operative rehabilitation, future physiotherapy, medication, and future domestic assistance were not deemed reasonable and necessary. The past domestic assistance of four hours per week for three months was found to be reasonable and necessary.

Orders