Ni v AAI Limited t/as AAMI - [2023] NSWPICMP 241

DETERMINATION OF REVIEW PANEL
CITATION:	Ni v AAI Limited t/as AAMI [2023] NSWPICMP 241
CLAIMANT:	Shi Ming Ni
INSURER:	AAI Limited trading as AAMI
REVIEW Panel
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Tai-Tak Wan
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	24 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury whilst riding a pushbike on 19 January 2021; the claimant was assessed by Medical Assessor Wallace who was subsequently found to have a conflict of interest; the Panel found no evidence of radiculopathy in lumbar spine; claimant sustained soft tissue injury of the lumbar spine and left sacroiliac joint; left shoulder, no evidence of injury to the shoulder joint or the rotator cuff; persisting pain and tenderness in left shoulder; sustained soft tissue injury to the left shoulder; any soft tissue injury to right shoulder and left hip now resolved; claimant sustained soft tissue injury to left leg now largely resolved; Panel observed severe psychological sequalae; remedial massage to left leg recommended by general practitioner, effective because the claimant’s left leg condition largely resolved; future remedial massage is a passive treatment and not likely to ameliorate effect of soft tissue injuries; Chinese herbal treatment of limited value in acute phase of injury; no medically accepted peer reviewed evidence to show use of Chinese herbal treatments effective in the long term; Panel of view Chinese herbal remedies unlikely to assist in recovery; Held – soft tissue injury to the left shoulder, the lumbar spine, the right shoulder, the left hip and left leg are all threshold injuries; remedial massage and Chinese Herbal remedies relate to the injury caused by the accident; up to 20 past remedial massage sessions reasonable and necessary; past and future Chinese herbal remedies and future remedial massage not reasonable and necessary.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Ray Wallace dated 12 July 2022 and determines that the following injuries caused by the motor accident are threshold injuries: · soft tissue injury to the left shoulder; · soft tissue injury to the lumbar spine; · soft tissue injury to the right shoulder; · soft tissue injury to the left hip, and · soft tissue injury to the left leg. ASSESSMENT OF TREATMENT AND CARE Certificate issued under s 7.23(1) of the MotorAccident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Ray Wallace dated 12 July 2022 and issues a new certificate as follows: 1. The Panel finds the following treatments relate to the injury caused by the accident: (a) up to 20 past remedial massage sessions, from the time of the accident to the time of the Personal Injury Commission’s (Commission) assessment for treatment of the claimant’s leg; (b) Chinese herbal remedies as prescribed by Mr Y F Zhang, between April and July 2021, for treatment of the claimant’s leg; (c) future remedial massage sessions (at any frequency)…

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 241
Decision Date: 24 May 2023

CaseChat Overview and Summary

The claimant, Ni, brought an action against AAI Limited t/as AAMI, seeking compensation for injuries sustained in a motor accident on 19 January 2021. Ni was riding a pushbike at the time of the incident and suffered various injuries. The matter was determined by the court, which examined the nature and extent of the injuries and the appropriateness of treatments recommended and pursued by Ni.

The legal issues before the court involved determining the extent of Ni's injuries and the appropriateness of both past and proposed future treatments. Specifically, the court needed to decide whether the injuries sustained by Ni were compensable under the Motor Accident Insurance Act and whether the treatments received or proposed were reasonable and necessary. This included assessing the validity of the soft tissue injuries diagnosed, the efficacy of remedial massage and Chinese herbal treatments, and the reasonableness of the treatments in both the past and the future.

The court meticulously evaluated the evidence presented by the Medical Assessor, Wallace, who had a conflict of interest. Despite this conflict, the court relied on the panel's findings that Ni sustained soft tissue injuries to the lumbar spine, left sacroiliac joint, left shoulder, right shoulder, left hip, and left leg. The court also accepted the panel's observations regarding the absence of radiculopathy in the lumbar spine and the resolution of injuries to the right shoulder, left hip, and left leg. The court found that past remedial massage was effective for the left leg injury, but future massage and Chinese herbal treatments were not reasonable and necessary. The court determined that the soft tissue injuries were compensable threshold injuries and that up to 20 past remedial massage sessions were reasonable and necessary.

The court concluded that while the injuries sustained were compensable, the proposed future treatments of remedial massage and Chinese herbal remedies were not reasonable and necessary. The court ordered that past remedial massage treatments were justified, but future treatments were not. The court also determined that the claimant's entitlement to compensation would be calculated based on the injuries sustained and the reasonable and necessary treatments provided in the past.

Orders