QBE Insurance (Australia) Ltd v Lawrence - [2023] NSWPICMP 358

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Ltd v Lawrence [2023] NSWPICMP 358
CLAIMANT:	Yupin Lawrence
INSURER:	QBE Insurance Australia Limited
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	26 July 2023
CATCHWORDS:	MOTOR ACCIDENTS – Claimant was a pedestrian hit by a car in a shopping centre car park; injuries reported to both arms and left hip; two weeks after the accident claimant complained of lumbar spine symptoms and pain; request made for two level lumbar spinal fusion surgery; Medical Assessor approved surgery as reasonable and necessary and caused by the motor accident; Held – original medical certificate set aside; claimant’s proposed treatment and care for spinal surgery not reasonable and necessary and not caused by the motor accident; claimants reported symptoms, presentation and medical examination showed her symptoms were not that of chronic pain originating from the lumbosacral spine. X-Rays and MRI scans show chronic degenerative changes to the lumbar spine including annular tears to the disc but no nerve root compression.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION ASSESSMENT OF TREATMENT AND CARE Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Adam Rapaport dated 16 November 2022 and issues a new certificate determining that: The following treatment and care of a: · L4/5 and L5/S1 anterior lumbar interbody fusion; is not reasonable and necessary in the circumstances. The following treatment and care of a: · L4/5 and L5/S1 anterior lumbar interbody fusion; does not relate to the injury caused by the motor accident.

STATEMENT OF REASONS

INTRODUCTION

On the evening of 29 October 2020 Ms Yupin Lawrence (the claimant) was walking on a one-way road in the carpark of the Westfield Shopping Centre in Hurstville when she was hit and injured by a motor vehicle. Shortly after the accident she was transported by ambulance to St George Hospital Emergency Department.
QBE Insurance Australia Limited trading as QBE (the insurer) is the relevant insurer with liability to pay any damages to Ms Kim under the Motor Accident Injuries Act 2017 (MAI Act).
On or about 11 November 2020 Ms Lawrence lodged an Application for Personal Injury Benefits. In that form the claimant described injuries to her right and left arms and hips but there was no mention of any back pain or other back symptoms.[1]
[1] Claimant’s bundle AD 2 p 391.
On 28 January 2021 the insurer determined that the claimant’s injuries were minor injuries.
On 30 August 2021 the claimant’s solicitors requested an internal review of the insurer’s decision.
On 15 September 2021 the insurer issued a Certificate of Determination – Internal Review affirming that the claimant’s injuries were minor injuries.
On 28 September 2021 the insurer declined the request for L4/5 and L5/S1 anterior lumbar interbody fusion by Dr Peter Khong. An internal review of this decision was lodged on 26 October 2021. On 4 November 2021, the insurer affirmed its decision on the basis…

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 358
Decision Date: 26 July 2023

CaseChat Overview and Summary

QBE Insurance (Australia) Ltd has brought an action against the respondent, Lawrence, who was a pedestrian struck by a car in a shopping centre car park. Lawrence sustained injuries to both arms and the left hip. However, two weeks after the accident, Lawrence complained of lumbar spine symptoms and pain. Lawrence requested two level lumbar spinal fusion surgery, which was approved by a Medical Assessor as reasonable and necessary and caused by the motor accident. The insurer, QBE, however, challenged the Medical Assessor's decision and sought to set aside the original medical certificate. The legal issues in the case were whether the proposed treatment and care for spinal surgery was reasonable and necessary and whether it was caused by the motor accident. The court found that the claimant's reported symptoms, presentation and medical examination showed her symptoms were not that of chronic pain originating from the lumbosacral spine. The court further found that the X-Rays and MRI scans showed chronic degenerative changes to the lumbar spine including annular tears to the disc but no nerve root compression. Therefore, the court held that the original medical certificate was set aside and the proposed treatment and care for spinal surgery was not reasonable and necessary and not caused by the motor accident. The insurer's challenge was therefore successful. As a result, the court's final order was that the original medical certificate be set aside and that the claimant's proposed treatment and care for spinal surgery was not reasonable and necessary and not caused by the motor accident.

Orders