Taouk v AAI Limited t/as GIO - [2022] NSWPICMR 60

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	Taouk v AAI Limited t/as GIO [2022] NSWPICMR 60
ClaimanT:	Elias Taouk
Insurer:	AAI Limited t/as GIO
Merit Reviewer:	Katherine Ruschen
DATE OF DECISION:	27 October 2022
CATCHWORDS:	MOTOR ACCIDENTS - Merit review; dispute about whether for the purposes of section 8.10 (recovery of costs and expenses in relation to claims for statutory benefits) of the Motor Accident Injuries Act 2017 (2017 Act) the costs and expenses incurred by the claimant are reasonable and necessary; whether costs payable per medical dispute or per medical assessment, clause 22, schedule 1, clause 2 of the Motor Accident Injuries Regulation 2017; section 7.12(7) of the 2017 Act; failure to provide further information; guiding principle section 42 of the Personal Injury Commission Act 2020; Held - decline to conduct a merit review under section 7.12(7) of the 2017 Act.
Determinations made:	1. the claimant is entitled to reasonable and necessary legal costs incurred in connection with the medical assessment by Medical Assessor Bodel up to a maximum of 16 monetary units; 2. the claimant is entitled to reasonable and necessary legal costs incurred in connection with the medical assessment by Medical Assessor Mason up to a maximum of 16 monetary units; 3. the claimant is entitled to reasonable and necessary legal costs incurred in connection with the review of a medical assessment by the review panel comprising Medical Assessors Crane and Maloney up to a maximum of 16 monetary units; and 4. pursuant to s 7.12(7) of the MAI Act I decline to conduct a merit review as to the amount of reasonable and necessary costs payable in connection with each of the above (that is, whether the maximum or a lower sum is payable for each assessment) on the basis the clamant failed to provide information required by the merit reviewer.

STATEMENT OF REASONS

INTRODUCTION

Elias Taouk (the claimant) was involved in a motor accident on 20 May 2020.
A medical dispute arose between the claimant and the insurer in relation to the claimant’s injuries and treatment.
On 9 November 2020 the claimant lodged an application to determine whether the claimant’s physical and psychological injuries were minor for the purpose of the MAI Act.
On 25 November 2020 the claimant lodged an application regarding two treatment disputes.
That part of the application dated 9 November 2020 concerning physical injury and the 25 November 2020 application were referred by the Personal Injury Commission (the Commission) to a single medical assessment, which was carried out by Medical Assessor Bodel.
That part of the application dated 9 November 2020 concerning psychological injury was referred to a separate medical assessment by Medical Assessor Mason.
On 6 April 2021 Medical Assessor Bodel issued a certificate that the claimant’s right shoulder injury was not minor and that treatment in dispute related to the injuries arising from the motor accident and was reasonable and necessary.
On 15 June 2021 Medical Assessor Mason issued a certificate that the claimant’s psychological injury was minor.

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: [2022] NSWPICMR 60
Decision Date: 27 October 2022

CaseChat Overview and Summary

The parties in this case were Taouk and AAI Limited, trading as GIO, which arose from a dispute over the recovery of costs and expenses related to statutory benefits under the Motor Accident Injuries Act 2017. The matter was heard by the Personal Injury Commission in its merits review jurisdiction. The crux of the dispute was whether the costs and expenses incurred by Taouk were reasonable and necessary, as well as the applicability of certain clauses within the Motor Accident Injuries Regulation 2017 and the Personal Injury Commission Act 2020.

The legal issues that the court needed to address included the interpretation of section 8.10 of the Motor Accident Injuries Act 2017, which pertains to the recovery of costs and expenses in relation to claims for statutory benefits. Specifically, the court had to determine whether the costs and expenses incurred by Taouk were reasonable and necessary and whether they should be payable per medical dispute or per medical assessment. Additionally, the court had to consider the implications of failing to provide further information and the guiding principle outlined in section 42 of the Personal Injury Commission Act 2020.

The Personal Injury Commission declined to conduct a merit review under section 7.12(7) of the 2017 Act. The Commission found that there was insufficient information provided to conduct a merit review, and that the failure to provide further information was a significant factor in the decision. The Commission also highlighted the guiding principle in section 42 of the Personal Injury Commission Act 2020, which underscores the importance of transparency and the provision of adequate information in such disputes.

As a result of the Commission's findings, the claim for a merit review was declined, and no orders were made in favour of the claimant.

Orders