QBE Insurance (Australia) Limited v Kumar - [2023] NSWPICMP 371

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Kumar [2023] NSWPICMP 371
CLAIMANT:	Ajay Kumar
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Clive Kenna
DATE OF DECISION:	3 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Claimant was a driving a car that was hit by a small truck in a rear end collision; claimant reported injuries to all levels of the spine; request made for consultation with neurosurgeon; Medical Assessor approved consultation as reasonable and necessary; Held – original Medical Assessment Certificate set aside; claimant not medically re-examined by Panel; claimant’s proposed treatment and care of a consultation with neurosurgeon not reasonable and necessary in the circumstances; all of claimants reported injuries and spinal symptoms were soft tissue injuries and thus threshold injuries; CT scans, X-Rays and MRI scans all show chronic degenerative changes to the spine including disc bulging but no fractures or nerve root compression; no definite evidence of radiculopathy.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor James G Bodel dated 28 June 2022 and issues a replacement certificate determining that: 1. The following injuries caused by the motor accident are threshold injuries (formerly minor injuries): • cervical spine – soft tissue injury; • thoracic spine – soft tissue injury, and • lumbar spine – soft tissue injury. 2. The following treatment and care of a: · medical consultation with Dr Gambhir, neurosurgeon, for lumbar spine; is not reasonable and necessary in the circumstances. . .

STATEMENT OF REASONS

INTRODUCTION

On 15 October 2020 Mr Ajay Kumar (the claimant) was driving on the Great Western Highway, Parramatta, NSW near the Church Street exit ramp. Mr Kumar reports being in heavy traffic and driving at about 40 kmph when he was hit from behind by a delivery truck.
Immediately after the accident, Mr Kumar and parked in a side street. Police and ambulance did not attend the accident scene. His vehicle was towed away and subsequently written off by the insurer.
After the accident Mr Kumar continued on his way to work. At work he developed neck and lower back pain. He went to consult his general practitioner (GP) and was told he had a whiplash injury and was given medication for the pain. He was initially off work for three days and then went back to work.
In the Application for Personal Injury Benefits dated 17 October 2020 Mr Kumar stated he started to feel a sharp pain in his neck and upper back and lower back at around midday on the day of the accident.[1]
[1] Insurer’s bundle AD p 30.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Kumar under the Motor Accident Injuries Act 2017 (MAI Act).
The insurer decided that the lumbar spine injury was a minor injury and that the proposed medical consultation with Dr Gambhir was not reasonable and necessary. The claimant sought an internal…

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 371
Decision Date: 3 August 2023

CaseChat Overview and Summary

The case of QBE Insurance (Australia) Limited versus Kumar arose from a motor accident in which Kumar, the claimant, was a passenger in a car that was rear-ended by a small truck. Kumar reported injuries to all levels of the spine and requested a consultation with a neurosurgeon, which the Medical Assessor initially approved as reasonable and necessary. The insurer, QBE Insurance (Australia) Limited, sought to challenge the Medical Assessor’s decision. The court was tasked with determining the appropriateness of the proposed medical treatment and the necessity of the consultation with a neurosurgeon under the circumstances.

The legal issues at hand were whether the consultation with the neurosurgeon was reasonable and necessary, and if the claimant's reported injuries and spinal symptoms were indeed serious enough to warrant such a consultation. The court examined the evidence provided, including CT scans, X-rays, and MRI scans, which showed chronic degenerative changes to the spine, including disc bulging, but no fractures or nerve root compression. The court also considered the absence of definitive evidence of radiculopathy.

The court concluded that the claimant's proposed treatment and care, specifically the consultation with a neurosurgeon, was not reasonable and necessary. The injuries reported by Kumar were classified as soft tissue injuries, which are considered threshold injuries. The medical evidence indicated chronic changes rather than acute injuries requiring specialist intervention. As such, the court set aside the original Medical Assessment Certificate and ruled that the treatment proposed was not justified in the circumstances. Consequently, the court's decision resulted in the claimant not receiving the proposed medical consultation.

The final orders of the court mandated that the original Medical Assessment Certificate be set aside and that the claimant's request for a consultation with a neurosurgeon was not upheld. This decision was based on the lack of necessity for such a consultation given the nature of the claimant's injuries and the medical evidence presented.

Orders