Taouk v QBE Insurance (Australia) Limited - [2025] NSWPICMP 154

DETERMINATION OF REVIEW PANEL
CITATION:	Taouk v QBE Insurance (Australia) Limited [2025] NSWPICMP 154
CLAIMANT:	Mansour Taouk
INSURER:	QBE (Insurance) Australia Limited
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	12 March 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review; insurer’s application; Medical Assessor’s (MA) certificate dated 9 May 2024 assessed cervical-thoracic spine at 5% permanent impairment; accident 3 December 2020; MA declined causative link with accident and referred neck pain causing impaired bilateral shoulder active range of movement (AROM); claimant applied for review; claimant re-examined; causation; application of Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd (Nguyen) principle disputed; claimant made consistent best effort to demonstrate AROM; consistent with previous examinations; accident significant intervention; no objective evidence of pre-accident permanent impairment; 11% permanent impairment; combined impairment certificate; Held – secondary restriction of AROM in the shoulders due to the cervicothoracic spine injury; Nguyen principle applied; different causation and permanent impairment findings to original assessment; Review Panel revoked and replaced original medical certificate and combined impairment certificate; permanent impairment greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel assessment of degree of permanent impairment Replacement certificates issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Review Panel has assessed that the accident caused injuries with a different degree of permanent impairment to Medical Assessor Wallace's assessment and certificate issued on 9 May 2024. 2. Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate assessing the claimant’s permanent impairment that has resulted from the injuries caused by the accident as 11%. 3. Medical Assessor Adrian Vertoudakis’ certificate dated 17 May 2024 found the claimant’s referred dental injuries were not related to the subject accident. Accordingly, this Review Panel revokes Lead Medical Assessor Wallace’s combined assessment certificate dated 2 July 2024 and issues a replacement combined assessment certificate under s 7.26 (8) of the Motor Accident Injuries Act 2017 stating the combined permanent impairment that has resulted from the injuries caused by the accident were 11% which is greater than 10%.

REASONS

BACKGROUND

On 3 December 2020, the claimant Mr Mansour Taouk was driving his Ford Ranger utility on Gale Street Concord. He was wearing his seat belt. While he was stationary waiting to park, a car collided with the rear of his vehicle.
An ambulance attended the accident scene but the claimant did not go to hospital with the ambulance, but he presented soon after at Canterbury Hospital where he remained under observation.
The claimant underwent a spinal CT examination, and the attending doctor consulted the neurological registrar at Royal Prince Alfred Hospital (RPAH) before he was discharged with analgesia. He was treated with physiotherapy until early 2022.
QBE is the relevant insurer with liability for the injury under the Motor Accident Injuries Act 2017 (MAI Act).
Disputes arose between the parties relating to the claimant's permanent impairment resulting from injuries…

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: [2025] NSWPICMP 154
Decision Date: 12 March 2025

CaseChat Overview and Summary

Taouk v QBE Insurance (Australia) Limited involved a dispute over the determination of permanent impairment following a motor accident. The claimant sought review of a certificate issued by a Medical Assessor (MA) that assessed the claimant's permanent impairment at 5% following an accident on 3 December 2020. The MA had declined to find a causative link between the accident and the claimant's neck pain, which was causing impaired bilateral shoulder active range of motion (AROM). The claimant applied for a review of this decision, arguing that the MA's assessment was incorrect and that the principle set out in Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd should be applied.

The court was required to determine whether the claimant's neck pain and impaired shoulder AROM were causally linked to the motor accident and, if so, what the correct assessment of permanent impairment should be. The claimant argued that the MA had erred in not recognising the secondary restriction of AROM in the shoulders due to the cervicothoracic spine injury, and that the Nguyen principle should apply. The claimant also contended that they had made a consistent best effort to demonstrate their AROM, and this was consistent with previous examinations. The insurer, QBE Insurance, disputed the application of the Nguyen principle and maintained the original assessment.

The Review Panel found that the claimant's neck pain and impaired shoulder AROM were indeed linked to the motor accident, and the principle from Nguyen was correctly applied. The Panel found that the accident constituted a significant intervention and that there was no objective evidence of pre-accident permanent impairment. The Review Panel determined that the claimant's permanent impairment was 11%, which was greater than 10%, and revoked and replaced the original medical certificate and combined impairment certificate accordingly.

Orders