Touma v AAI Limited t/as AAMI - [2024] NSWPICMP 451

DETERMINATION OF REVIEW PANEL
CITATION:	Touma v AAI Limited t/as AAMI [2024] NSWPICMP 451
CLAIMANT:	Jason Touma
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Anthony Scarcella
MEDICAL ASSESSOR:	Alan Home
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	9 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; threshold injury under section 1.6; injuries to the cervical and lumbar spines, bilateral shoulders and chest wall; Medical Assessment Certificate (MAC) determined that the claimant only sustained a soft tissue injury to the cervical spine and that it was a threshold injury; review sought by the insurer under section 7.26 of the Act; clauses 5.7, 5.8 and 5.9 of the Motor Accident Guidelines considered and applied; Held – the right shoulder injury was not caused by the motor accident; the claimant suffered a threshold injury to the chest wall and lumbar spine being soft tissue injuries; the claimant suffered non-threshold injuries to the left shoulder and cervical spine; MAC is revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Ray Wallace dated 4 August 2023. 2. Certifies that the following injuries caused by the motor accident on 10 December 2020 are non-threshold injuries for the purposes of the Motor Accident Injuries Act 2017: (a) a traumatic cervical spine annulus fissure or tear at C3/4, and (b) a traumatic tear of the left supraspinatus tendon. A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

The claimant, Mr Jason Touma, is a 30-year-old man who was involved in a motor accident on 10 December 2020 whilst a front seat passenger in a vehicle that came to a stop at traffic lights and was rear-ended by another vehicle (the motor accident).
On 10 October 2022, Mr Touma made a claim for personal injury benefits. The relevant compulsory third party insurer was AAI Limited t/as AAMI (the insurer).
Mr Touma claims that he suffered injuries to his cervical spine, left shoulder, right shoulder, chest wall, lumbar spine and a psychiatric disorder as a result of the motor accident.
Mr Touma’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A dispute has arisen between Mr Touma and the insurer as to whether, for the purposes of the MAI Act, the injuries caused by the motor accident were threshold injuries.
The dispute about whether the motor accident caused the claimed injuries are threshold injuries is a medical dispute, as defined by s 7.17 of the MAI Act and is a medical assessment matter: Schedule…

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 451
Decision Date: 9 July 2024

CaseChat Overview and Summary

The case of Touma v AAI Limited t/as AAMI was heard in a relevant Australian court, dealing with a dispute regarding the assessment of injuries sustained by the claimant in a motor accident. The primary issue was whether the Medical Assessment Certificate (MAC) accurately reflected the extent and nature of the injuries, particularly whether certain injuries were threshold injuries under the Motor Accidents Injuries Act 2017. The claimant argued that the MAC inaccurately assessed the severity of the injuries, particularly in relation to the cervical spine, lumbar spine, bilateral shoulders, and chest wall. The insurer, on the other hand, sought a review of the MAC, challenging the claimant's assertions and contending that the injuries did not meet the threshold for compensability.

The court was required to determine whether the claimant's injuries warranted compensation under the Act, specifically focusing on whether they met the threshold criteria for compensability. This involved a detailed analysis of the medical evidence provided, the applicability of the Motor Accident Guidelines, and the correct interpretation of the relevant sections of the Act. The court considered the specific provisions of clauses 5.7, 5.8, and 5.9 of the Motor Accident Guidelines, which outline the criteria for assessing threshold injuries. The claimant's medical reports and evidence were weighed against the insurer's arguments, with the court needing to decide whether the injuries to the cervical spine, lumbar spine, shoulders, and chest wall met the threshold for compensation under the Act.

After carefully reviewing the evidence and applying the relevant legal standards, the court found that the claimant did indeed sustain compensable injuries. The court determined that while the right shoulder injury was not caused by the motor accident, the claimant suffered threshold injuries to the chest wall and lumbar spine, both of which were soft tissue injuries. Additionally, the court found that the claimant sustained non-threshold injuries to the left shoulder and cervical spine. Consequently, the court revoked the MAC and ordered a new assessment that accurately reflected the claimant's injuries, ensuring they were appropriately compensated under the Act.

Orders