Shen v AAI Limited t/as AAMI - [2024] NSWPICMP 480

DETERMINATION OF REVIEW PANEL
CITATION:	Shen v AAI Limited t/as AAMI [2024] NSWPICMP 480
CLAIMANT:	Ou Shen
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	17 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Assessor determined the degree of permanent impairment caused by the accident was 7% and that the proposed treatment disputes were not reasonable or necessary; Medical Review Panel considered the issue of causation; Held – the injuries referred and caused by the accident gave rise to a permanent impairment of 12%; the proposed treatment for eight sessions of physiotherapy in relation to the knee injury was causally related to the accident and was reasonable and necessary in the circumstances; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Cameron dated 25 May 2024 and substitutes the determination to certify that the injuries caused by the motor accident and referred to the Review Panel, gave rise to a whole person impairment of 12%. 2. The Review Panel concludes that the only treatment and care related to the injuries caused by the motor accident that is reasonable and necessary in the circumstances are: (a) the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023 in relation to the knee injury sustained in the subject accident. 3. The Review Panel concludes that the following treatment and care were caused by the accident however are not reasonable and necessary in the circumstances: (a) the request for an MRI scan of the brain; (b) the request for an MRI scan of the lumbar spine; (c) the request for an MRI scan of the left shoulder; (d) the request for a CT angiogram; (e) the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023, and (f) the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023.

STATEMENT OF REASONS

INTRODUCTION

On 8 April 2021, Ou Shen (Mrs Shen), the claimant, was injured in a motor vehicle accident (the accident). She was a pedestrian when the insured vehicle struck her at approximately 30kmph. She was walking with her husband when the accident occurred. Both were injured and admitted to hospital. Further details of the accident are set out below.
Mrs Shen has brought a claim for common law damages for the injuries she sustained under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Limited ABN 48 005 297 807 trading as AAMI (AAMI) is the relevant insurer.
A medical dispute about the degree of Mrs Shen’s whole person impairment (WPI) and treatment has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI…

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 480
Decision Date: 17 July 2024

CaseChat Overview and Summary

The case involved Shen, the plaintiff, and AAI Limited trading as AAMI, the defendant, in a dispute concerning motor accident injuries. The plaintiff sought compensation under the Motor Accidents Injuries Act 2017, contesting the Medical Assessor's determination that the degree of permanent impairment caused by the accident was 7% and that the proposed treatment disputes were not reasonable or necessary. A Medical Review Panel was convened to consider the issue of causation and the appropriateness of the treatment. The court was required to decide whether the Medical Assessor's determination was correct and whether the proposed treatment was reasonable and necessary.

The legal issues before the court were the degree of permanent impairment resulting from the accident and the necessity and reasonableness of the proposed treatment. The court had to assess whether the Medical Assessor's determination of a 7% degree of permanent impairment was accurate and whether the proposed treatment for eight sessions of physiotherapy in relation to the knee injury was causally related to the accident and appropriate in the circumstances. The court's role was to review the evidence and findings of the Medical Review Panel and determine whether they were consistent with the statutory provisions and supported by the evidence.

The court found that the injuries referred and caused by the accident gave rise to a permanent impairment of 12%, which was higher than the Medical Assessor's determination. The court also concluded that the proposed treatment for eight sessions of physiotherapy was causally related to the accident and was reasonable and necessary in the circumstances. The court was satisfied that the Medical Review Panel's findings were supported by the evidence and were consistent with the statutory provisions. Consequently, the court revoked the Medical Assessment Certificate and ordered that the plaintiff's claim be reassessed in light of the new findings.

The court ordered that the Medical Assessment Certificate be revoked and that the plaintiff's claim be reassessed to reflect the new findings of a 12% degree of permanent impairment and the reasonableness and necessity of the proposed treatment for eight sessions of physiotherapy. The court's decision provided clarity and guidance on the application of the Motor Accidents Injuries Act 2017 in relation to the assessment of permanent impairment and the reasonableness and necessity of treatment in motor accident injury claims.

Orders