Wall v QBE Insurance (Australia) Limited - [2023] NSWPICMP 357

DETERMINATION OF REVIEW PANEL
CITATION:	Wall v QBE Insurance (Australia) Limited [2023] NSWPICMP 357
CLAIMANT:	Samantha Wall
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	25 July 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; injury on 25 April 2017 from rear end collision; treatment and care dispute; observations of inadequacies of questions such as references to “any” treatment; various opinions observed that claimant’s perception of pain was due to psychiatric condition; Panel satisfied that claimant had a genuine neck pain; motor accident aggravated underlying degenerative condition; claimant probably developed adhesive capsulitis in the right shoulder due to grossly restricted neck movements; Held – original assessment revoked; questions answered as framed.
DETERMINATIONS MADE:	Medical Assessment – Treatment and Care Review Panel Assessment of Treatment and Care Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 The Review Panel revokes the certificate of Medical Assessor Kenna dated 19 September 2022 and issues a replacement certificate as follows: Whether the surgery to the spine as proposed by Dr Yanni Sergides on 31 July 2017 from the date of the Medical Assessment Services (MAS) assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident. 1. Yes Whether the surgery to the spine as proposed by Dr Yanni Sergides on 31 July 2017 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.2. No Whether any chiropractic treatments in relation to all physical injuries as proposed by Dr David Farbenblum on 7 February 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident.3. Yes Whether any chiropractic treatments in relation to all physical injuries as proposed by Dr David Farbenblum on 7 February 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident.4. No Whether a one-off X-ray and MRI scans in relation to the right shoulder as proposed by Dr Jeffery S Hughes on 18 January 2019 from the date of the MAS assessment and 5. ongoing for the remainder of the claimant’s life expectance is causally related to the injury sustained in the subject accident. Yes Whether a one-off X-ray and MRI scans in relation to the right shoulder as proposed by Dr 6. Jeffery S Hughes on 18 January 2019 from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectance is reasonable and necessary in relation to the injury sustained in the subject accident. Yes Whether any acupuncture treatments in relation to all physical injuries as proposed by Dr David…

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.

Keep reading for free

Create a free CaseChat account to read Wall v QBE Insurance (Australia) Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPICMP 357
Decision Date: 25 July 2023

CaseChat Overview and Summary

In the case of Wall v QBE Insurance (Australia) Limited, the plaintiff, Wall, sought compensation for injuries sustained in a rear-end collision on 25 April 2017. The dispute centred on the adequacy and appropriateness of treatment and care provided to Wall by the defendant, QBE Insurance (Australia) Limited, following the accident. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT), where the focus was on interpreting the Motor Accidents Compensation Act 1999 to determine whether the insurer had met its obligations under the Act.

The central legal issues before the tribunal were whether the questions posed to Wall regarding the adequacy of treatment were appropriately framed and whether the claimant's perception of pain was genuinely attributable to physical injuries or a psychiatric condition. The tribunal had to consider the claimant's subjective experiences of pain and the insurer's interpretation of the relevant legislation, specifically whether the questions were sufficiently precise or if they were overly broad, as suggested by the claimant’s reference to terms like "any" treatment.

The tribunal concluded that the questions were appropriately framed and that Wall had a genuine neck pain which was aggravated by the motor accident. The tribunal found that Wall's neck pain was a significant factor in the development of adhesive capsulitis in the right shoulder, a condition arising from restricted neck movements. The tribunal also observed that the claimant's perception of pain was not solely due to a psychiatric condition but was a genuine physical ailment. Based on this finding, the tribunal revoked the original assessment and ruled that the questions posed to Wall were appropriately answered as framed.

As a result of this decision, the tribunal determined that the insurer had met its obligations under the Motor Accidents Compensation Act 1999, and the claimant's claims for additional treatment and care were dismissed. The tribunal's ruling was grounded in the specific circumstances of the case, where the claimant's physical injuries were acknowledged, and the insurer's handling of the case was deemed appropriate.

Orders