Mourtada v AAI Limited t/as GIO - [2023] NSWPICMP 330

DETERMINATION OF REVIEW PANEL
CITATION:	Mourtada v AAI Limited t/as GIO [2023] NSWPICMP 330
CLAIMANT:	Ahmad Mourtada
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	Original certificate dated 11 July 2023 Replacement certificate dated 20 July 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of minor (now threshold) injuries and treatment dispute by Medical Assessor (MA) Wijetunga and claimant’s review under section 7.26; claimant injured in rear end collision alleging injuries to neck, back and both shoulders; Held – Panel satisfied claimant injured his neck and lower back in the accident; claimant had pre-accident lower back pain; claimant did not have two signs of radiculopathy when examined and did not have two signs of radiculopathy at any time since the accident; no evidence of complete or partial rupture of soft tissues in neck or back; neck and back injuries threshold injuries; no pre-existing shoulder injuries of significance and scans taken within two month of accident found tears in left shoulder with delamination in the right shoulder; left shoulder mentioned to GP within two days of accident but right shoulder not mentioned for a month; Panel not satisfied that biomechanics of accident could have caused a right shoulder injury but satisfied left shoulder injury was caused; Panel of the view the claimant could have torn the ligaments and tendons of the left shoulder or further torn already torn ligaments and tendons in the accident; shoulder injury a non-threshold injury; referral to orthopaedic surgeon therefore related and reasonable and necessary; certificate of MA revoked.
DETERMINATIONS MADE:	REPLACEMENT CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Wijetunga dated 24 October 2022. 2. Certifies that Ahmad Mourtada’s left shoulder injury is not a threshold injury for the purposes of the Act. 3. Certifies that an initial consultation with Professor George Murrell is related to the injury caused by the accident and is reasonable and necessary in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

Mr Amhad Mourtada was involved in a motor accident on 27 April 2021. He was stationary at traffic lights when he was rear-ended by a small truck.
Mr Mourtada was 53 at the time of the accident and says he injured his neck, back and both shoulders in the accident. As a result, he made a claim for statutory benefits with GIO, the third-party insurer of the vehicle that Mr Mourtada says caused his accident.
A medical dispute about whether any of Mr Mourtada’s injuries were “minor” (now threshold) injuries within the statutory definition arose in connection with that claim[1] and Mr Mourtada referred that medical assessment matter to the Personal Injury Commission (the Commission) for assessment.
[1] The insurer’s liability notice is dated 17 August 2021 and is document A7 at page 118 of the claimant’s bundle. The insurer accepted fault on the part of its insured…

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 330
Decision Date: 20 July 2023

CaseChat Overview and Summary

The case of Mourtada v AAI Limited t/as GIO dealt with a dispute regarding the assessment and treatment of minor injuries sustained in a motor accident. The claimant, Mourtada, was involved in a rear-end collision and alleged injuries to his neck, back, and both shoulders. The dispute centred on the assessment conducted by the Medical Assessor (MA), Wijetunga, and the claimant's subsequent review under section 7.26 of the Motor Accident Injuries Act 2017. The court was tasked with determining whether the injuries claimed by Mourtada were caused by the accident and if the treatment provided was reasonable and necessary.

The legal issues before the court included whether Mourtada had sustained injuries to his neck, lower back, and shoulders as a result of the accident, and if so, whether these injuries met the threshold criteria under the Motor Accident Injuries Act. The court also needed to determine whether the treatment provided, specifically the referral to an orthopaedic surgeon for the left shoulder injury, was reasonable and necessary. Furthermore, the court had to assess whether the biomechanical evidence supported the causation of the right shoulder injury.

The court found that Mourtada had indeed injured his neck and lower back in the accident, although he had pre-existing lower back pain. The court was not persuaded that the biomechanics of the accident could have caused the right shoulder injury, but it did find that the left shoulder injury was caused by the accident. The claimant could have torn the ligaments and tendons of the left shoulder or further torn already torn ligaments and tendons in the accident. The court concluded that the neck and back injuries were threshold injuries, while the left shoulder injury was a non-threshold injury. The referral to the orthopaedic surgeon for the left shoulder injury was deemed related, reasonable, and necessary. Consequently, the certificate of the MA was revoked.

The court's final order was to revoke the certificate of the MA and to find that the left shoulder injury was related, reasonable, and necessary, thus affirming the claimant's entitlement to the treatment provided.

Orders