AAI Limited t/as GIO v Leverrier

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as GIO v Leverrier [2024] NSWPIC 548
CLAIMANT:	Timothy Leverrier
INSURER:	AAI Limited t/as GIO
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	3 October 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; insurer admitted that the claimant exceed the threshold for recovery of non-economic loss damages by way of internal review; insurer subsequently purported to raise a medical dispute on that issue; claimant objected to insurer’s application to refer to the purported medical dispute to a Medical Assessor (MA); claimant alleged insurer had no power to change its decision following an internal review or the matter be dismissed pursuant to section 7.20(3) on the basis of absence of medical evidence; Commission’s power to determine whether there is a medical dispute in Smalley v Motor Accidents Authority discussed and applied; principles of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority discussed; discussion of internal review procedures under the Motor Accident Guidelines; discussion of medical disputes in sections 4.12 and 7.17 and the wording of these provisions; contextual considerations and discussion of medical assessment procedures; no clear purpose identified other than medical assessment process difficult, complex and time-consuming; discussion of power in section 7.20(3) to refuse to accept the medical dispute where there is insufficient evidence; insurer not bound by medico-legal opinion qualified by it; MA required to form own opinion; Insurance Australia Ltd v Marsh applied; issue raised by insurer of causation of injury to the right ankle; lack of contemporaneous complaint and treatment; AAI Ltd v McGiffen applied; causation not solely a medical issue; medico-legal opinions arguably suffered from an absence of fair climate; Paric v John Holland (Constructions) Pty Ltd; inclusion of assessment of permanent impairment of the right ankle necessary in qualified opinion to establish over threshold; absence of inclusion of right ankle as not caused by motor accident showed sufficient evidence below threshold; Held – claimant’s application to dismiss the insurer’s application for assessment of medical dispute rejected.
DETERMINATIONS MADE:	1. The application to dismiss the insurer’s application for medical assessment is rejected.

REASONS

BACKGROUND

Mr Timothy Leverrier (the claimant) suffered injury in a motor accident on 21 August 2020 whilst riding a motor bike which collided with the insured vehicle. The claimant was thrown from his motor bike and sustained various injuries including a partial amputation of the right middle finger and fracture of the left fifth metacarpal.
The insurer is liable to pay to Mr Leverrier any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
On 4 October 2023 the insurer issued an internal review decision setting aside its previous decision and accepting that the claimant’s permanent impairment as a result of the motor accident was greater than 10%. That acceptance was based on an acceptance of the opinions expressed by Dr Dixon and Dr Rastogi.
On 11 June 2024 the insurer wrote to the claimant’s solicitor withdrawing the concession that the impairment was greater than 10%. The insurer then purported to raise a medical dispute concerning the extent of the claimant’s degree of permanent impairment.
The letter noted the absence of right ankle recorded complaints until 15 months post-accident following the motor accident. It also noted the failure by the claimant to refer to prior injuries in 2016 and 2019. The insurer referred to updated records from Royal North Shore Hospital referring to right ankle injuries in April 2016 from a motor vehicle accident and August 2019 whilst playing soccer.
The insurer then commenced proceedings in the Personal Injury Commission (Commission) seeking an assessment of the claimant’s degree of permanent impairment caused by the motor accident.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.

Present application

By letter dated 18 July 2024 the claimant applied for a dismissal of the insurer’s application for medical assessment. The claimant relied on two grounds for the dismissal:
(a) the insurer had conducted an internal review admitting that the claimant’s degree of permanent impairment was greater than 10% and there is no provision allowing that decision to be withdrawn. Accordingly, there was no medical dispute before the Commission, and
(b) the matter should be dismissed on discretionary grounds pursuant to s 7.20(3) of the MAI Act because the insurer has not provided medical evidence that the impairment is not greater than 10%.
The claimant provided submissions and submissions in reply. The insurer filed submissions. The insurer filed further submissions which the claimant objected to but also responded.
The claimant submitted that the matter be heard by the President and the parties be heard orally given the importance of the legal issues raised by it. In its submissions in reply the claimant emphasised that this matter should be heard by the President because it was a question of central importance to the functions and operations of the Commission, was a novel question and had far-reaching consequences.
The application for dismissal was referred by the President to me for determination. On
[3] [2016] NSWCA 138 (Scott).
27 September 2024 the parties were advised that I had considered the insurer’s bundle filed in the portal and Dr Dixon’s reports. The parties were also referred to the decision of the Court of Appeal in Insurance Australia Ltd v Scott[3] and the contextual provisions of the MAI Act. The claimant was directed to file any evidence and submissions responding to these specific matters.
The claimant’s solicitor provided prompt and well reasoned submissions in response to the direction.
I am not bound by a construction of legislation that has not been argued by the parties provided procedural fairness has been provided.[4] The further direction was provided because, whilst I am rejecting the application, it is not for the reasons contended by the insurer.
[4] Coleman v Power [2004] HCA 39 (Coleman) at [243].
I have considered the material, and the submissions filed in the Commission portal.
The parties were provided with an opportunity to make submissions, reply to submissions, and respond to a direction. In these circumstances there was ample opportunity for the claimant to address any issues in writing. I do not accept that the presentation of the arguments could be further advanced by an oral hearing.

Evidence

For reasons which become self-evident, I do not intend to exhaustively summarise the material.
Dr Dixon was qualified by the claimant and provided a report dated 18 January 2023. The doctor recorded a history of the motor accident which included the claimant’s boot wrenching off and causing injury to the right heel. Past history was recorded as a “motor bike in 2014 without any significant injuries”.
Dr Gothelf was qualified by the insurer and provided a report dated 19 February 2024. The doctor assessed the claimant at 11% whole person impairment. This opinion included an assessment of 4% impairment for the right lower extremity solely due to loss of movement of the right ankle and hindfoot.
Dr Gothelf recorded that the claimant advised him that the right foot and ankle “underwent evaluations and investigations at Royal North Shore Hospital”. I observe that a history of right foot and ankle injury caused by the motor accident is unsupported by the contemporaneous material from Royal North Shore Hospital.
The factual material relied upon by the insurer raises a substantially articulated argument that the motor accident did not cause injury to the right ankle and hindfoot. On that basis alone without reference to the issues concerning any finger impairment and considering
Dr Gothelf’s assessment, the insurer has a proper basis for submitting that the claimant’s impairment resulting from the physical injuries is not greater than 10%.
On 19 April 2016 the claimant was admitted to hospital following a motor bike accident with injuries to the back, left lower leg and right heel.
The claimant was admitted to hospital on 30 August 2019 after playing soccer. The complaint of pain at that time related to the right quadricep. Examination noted “reduced ankle power and ROM – pain limited”. Scan evidence showed a partial tear of the rectus femoris tendon (quadricep) rather than direct injury to the right ankle/hindfoot.
The insurer referred to the absence of contemporaneous complaint of right ankle injury caused by the motor accident. I do not intend to refer to the material evidencing the absence of complaint to the right lower limb. I have perused the material and note the insurer’s submission of a substantial delay in recorded complaint of right ankle injury which was not contradicted by the claimant in his submissions.
The ambulance report referred to the motor accident and noted that the “Pt able to ambulate independently on scene prior to ambulance arrival”. There was a reference to “grazing R) knee and shin – minor with no obvious deformity” as well as the significant bilateral hand injuries.
Hospital records confirm the hand injuries as well as a fractured left 12th rib. There was no reference in these clinical records of any symptoms in the right ankle and foot.
The claim form does not appear in the evidence before me. However, the records by
Dr Gothelf refer to the claim form where the injuries are said to be fracture in left hand, rib and right middle finger, grazes and bruising and back pain.
On 3 August 2021 the physiotherapist wrote:
“It has become apparent during rehab that the injuries that occurred to the right lower limb need to be addressed.
Tom told me that in the accident the Rectus Femoris has been ruptured at the level of the superior insertion at the AIIS. He noted that after the accident the right knee became swollen and he had difficulty walking, particularly up an incline.
….
He has developed Achilles tendinopathy, likely the result of hip extension and the calf contracture.”
On 21 October 2021, Dr Nash, general practitioner (GP), requested an ultrasound of the foot and achilles tendon. The GP records prior to that time do not refer to the right ankle/hindfoot.
An ultrasound of the right ankle dated 1 November 2021 showed a thickened right achilles tendon.

FINDINGS

Can the insurer withdraw an internal review acceptance of the impairment threshold

Submissions

The claimant submits that there is no medical dispute in respect of the medical assessment matter. He relies on the issuing of an internal review on 4 October 2023 when the insurer accepted that the claimant’s permanent impairment caused by the motor accident was greater than 10%.
The claimant referred to the requirement to conduct an internal review in accordance with
cls 7.4 to 7.28 of the Guidelines. He submitted:
“The inclusion of the internal review process and associated decision-making in the MAI Act is a significant departure from the Motor Accidents Compensation Act 1999 (MAC Act), where ‘concessions’ of impairment thresholds were informal. The new regime of formal decision-making via internal review, imposed by statute, more closely resembles the statutory admission process set out in section 81 of the MAC Act.”
The claimant referred to the decision of the Court of Appeal in Nominal Defendant v Gabriel[5] which concerned the statutory admission made by the insurer under s 81 of the MAC Act. The Court held that an admission of liability could not be withdrawn other than in accordance with the statute.
[5] [2007] NSWCA 52 (Gabriel).
The claimant submitted that important consequences flow from the admission of the impairment threshold including the right to damages and extended rights to statutory benefits. It was submitted that there was no provision in the MAI Act to withdraw the decision made by the internal review pursuant to s 7.11. It described the process as pointless if the insurer retained the right “to override a decision on a whim”.
The claimant referred to the decision of Brennan J in Re Adams and the Tax Agents‘ Board[6] which held that an administrative body was entitled to pronounce upon the limits of its powers. It submitted that the appropriate course was for the President to decide this question after receiving oral and written submissions.
[6] (1976) 12 ALR 239 at 242.
The insurer referred to s 7.19(2A) of the MAI Act and noted that there is no requirement for an insurer to conduct an internal review for a medical dispute concerning the extent of the degree of permanent impairment. It was submitted that it would be counter intuitive to deem the internal review decision binding where that decision was unnecessary and had been voluntarily conducted.
The insurer also referred to Rule 105(2B) of the Personal Injury Commission Rules 2021 which allows the claimant or insurer to refer a medical dispute about permanent impairment at any time.
The claimant submitted that the determination of the issue arose from the statutory context of the MAI Act.
The claimant submitted that the internal review process is not voluntary although it is optional as far as the claimant is concerned in that s 7.9(1) provides that the claimant “may” request an insurer to review its decision about a medical assessment matter. If such a request is made the insurer is to conduct an internal review in accordance with the guidelines (s 7.9(4)).
The claimant noted that the insurer may only decline to conduct an internal review if it is late (cl 7.5) or the insurer does not accept that it can conduct an internal review (cl 7.11).
The claimant noted that there was an express requirement that acceptance of liability to statutory benefits may be withdrawn (s 6.19(5)). There was no express permission to withdraw an admission of liability (s 6.20).
The claimant submitted that the admission that the claimant exceeds the statutory threshold for an entitlement to damages for non-economic loss falls within the scope of admitting liability for part of the claim pursuant to s 6.20(2) of the MAI Act. Reference was made to the decision of the Court of Appeal in Smalley v Motor Accidents Authority of New South Wales[7] which held that an admission of liability for part of the claim is an admission that the insurer owes some obligation to the claimant.[8]
[7] See [2013] NSWCA 318 (Smalley).
[8] Smalley at [54].
The claimant submitted that the admission that the claimant exceeds the 10% permanent impairment threshold necessarily carries with it an admission that the insurer owes some pecuniary obligation to the claimant in the nature of damages and falls within the scope of s 6.20(2) of the MAI Act. Accordingly, it submitted that s 6.20 is similar to an admission under s 81 of the MAC Act and it followed that the principles discussed in Gabriel applied.
The claimant submitted that there was no express procedure to withdraw the admission.
The claimant submitted that Rule 105(2B) of the PIC Rules had no relevance as the determination of the issue must be found in the MAI Act, not in the PIC Rules.
The insurer subsequently referred to the decision of Senior Member Williams in Atwal v Insurance Australia Ltd[9] which held that the insurer did not have to accept the opinion proffered in a medic-legal report qualified by it. The claimant accepted that the insurer was not bound by such an opinion but contended that this did not answer the present issues.
[9] [2024] NSWPIC 440 (Atwal).
The claimant, as noted, provided further written submissions responding to the direction. I have addressed these submissions below.

Findings

Principles of Statutory interpretation

I accept the claimant’s submission, that the question of whether there is a medical dispute can be determined by the Commission.[10] In this context I am required to determine whether the insurer has the power to subsequently assert that a medical dispute exists contrary to the terms of the internal review.[11]
[10] See also Insurance Australia Ltd v Scott [2016] NSWCA 138 (Scott) at [6], [113] and [125].
[11] Claimant’s further submission dated 1 October 2024, paras 12-13.
As the plurality stated in Military Rehabilitation and Compensation Commission v May[12] the “question of construction is determined by reference to the text, context and purpose of the Act” citing Project Blue Sky Inc v Australian Broadcasting Authority[13] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[14]
[12] [2016] HCA 19 (May) at [10].
[13] [1998] HCA 28 [69]-[71].
[14] [2009] HCA 41 (Alcan) at [47].
In Grain Growers Limited v Chief Commissioner of State Revenue (NSW)[15] Beazley P stated (with whom Bathurst CJ and Leeming JA agreed) that “the starting point and end point is with the text of the provision”, citing the comments of the High Court in Alcan at [47] when the plurality stated:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (footnotes omitted)
[15] [2016] NSWCA 359 at [108].
The suggestion in Alcan that the task of statutory construction must begin with the text does not ignore considerations of context and purpose. In SZTAL v Minister for Immigration and Border Protection[16] the High Court stated:
“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (footnotes omitted)
[16] [2017] HCA 34 at [14].
Similar observations were made by Kiefel CJ and Keane J in the Queen v A2[17] when their Honours stated:[18]
“The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. ‘Mischief’ is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.” (footnotes omitted)

Legislation
[17] [2019] HCA 35.
[18] At [32]-[33].

A medical dispute is defined in s 7.17 of the MAI Act as “a dispute between the claimant and an insurer about a medical assessment matter”.
A medical assessment matter is defined in Schedule 2, cl 2 of the MAI Act and includes:
“the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)”.
Division 7.5 of the MAI Act concerns the determination of medical assessments. These procedures include the referral by the President of a medical dispute for assessment to a Medical Assessor (s 7.20), the manner of assessment (s 7.21) including that it is made in accordance with the Guidelines, the status of assessments (s 7.23), further medical assessments (s 7.24), and reviews of medical assessments (s 7.26).
Section 7.19 provides that a medical dispute about a decision of an insurer may not be referred for assessment by the Commission until it has been the subject of internal review. However, this section does not apply to a medical dispute about the degree of permanent impairment (s 7.19(2A)).
A claimant may request an internal review for various decisions including a medical assessment matter (s 7.9). Section 7.9(3) of the MAI Act provides that the request, timing and manner of conducting an internal review is contained in the Guidelines.
Clause 7.4 of the Guidelines provides that an applicant may request an internal review within 28 days after receiving the insurer’s decision. An insurer may decline an internal review if the request is made outside the 28-day period (cl 7.5).
The claimant may withdraw a request for an internal review prior to the insurer notifying the claimant of the internal review decision (cl 7.8).
Clauses 7.9 to 7.14 of the Guidelines relate to the procedure for the insurer to respond in writing as to whether it accepts or rejects that it can conduct an internal review.
Clause 7.15 of the Guidelines notes the requirements of an internal review and also provides an internal reviewer “may have previously conducted an internal review for the same claim”. The process is set out in the following clauses and includes that the review be conducted in a way that best supports the objects of the MAI Act, is not bound by the rules of evidence, may include further information from the claimant, can consider information that was not provided previously under s 7.9(6) of the MAI Act, allow the insurer to reasonably request information from the claimant under s 7.9(2) of the MAI Act and allow the insurer to decline to conduct an internal review if such information was not provided.
Clauses 7.22 and 7.23 provides that the reviewer must review the matter on the merits and either affirm, vary, or set aside and substitute a new decision. Clauses 7.24 and 7.25 provide the time periods for the determination of an internal review.

Construction of medical dispute

The letter from the insurer dated 11 June 2024 clearly raises a medical dispute between the parties based on proper grounds. The genuine basis of the insurer’s denial is discussed under the second ground.
I do not accept the claimant’s submission that the insurer accepting, by way of internal review, that the claimant’s impairment exceeds the threshold means that a medical dispute cannot subsequently exist between the parties. In my view this construction is inconsistent with the definition of a medical dispute and the contextual provisions of the assessment of medical assessments under the MAI Act.
Section 6.20 of the MAI Act makes provision for the insurer wholly denying liability or admitting liability for only part of the claim. I do not accept the claimant’s submission that an admission that the claimant exceeds the threshold for the recovery of damages for non-economic loss falls within the meaning of s 6.20 for the following reasons.
Firstly, this construction is inconsistent with the observations of Leeming JA in Smalley[19] that an admission of liability in whole or part is an admission that the insurer owes some pecuniary obligation to the claimant.
[19] Smalley at [54], Meagher and Barrett JJA agreeing.
An admission that the claimant exceeds the threshold does not mean that the insurer must pay any sum of money as the fault of the insurer driver in the use or operation of the vehicle could be wholly denied by the insurer. The insurer in those circumstances is under no pecuniary obligation to pay any damages to the claimant. An admission that the claimant exceeds the threshold is only an admission that the impairment of the injured person was caused by the motor accident,[20] not that the insured was, wholly or party at fault.
[20] See s 4.11 of the MAI Act.
This construction is consistent with the obligation of the Commission when assessing a claim to determine “the issue of liability for the claim” and “the amount of damages for that liability” (s 7.36).
For these reasons, I do not accept the claimant’s further submission that an acceptance in the internal review notice constitute a “further admission of liability for part of a claim”.[21]
[21] Claimant’s further submission dated 1 October 2024, para 10.
Secondly, the Guidelines, insofar as they are relevant, provide a clear distinction between the insurer making a liability decision on the one hand, and those provisions requiring a response to a request for the concession of the degree of permanent impairment and those relating to the conduct of internal reviews of medical disputes.
Clauses 4.115 to 4.118 of the Guidelines provide that the insurer must make a decision whether it accepts or declines the request that the claimant exceeds the permanent impairment threshold within 90 days of the request.
Section 6.20 of the MAI Act requires that the insurer make a decision “expeditiously” on liability and in accordance with the Guidelines. The relevant guidelines are contained in cl 4.125 and following and include various matters that the insurer must address.
I have earlier discussed the relevant clauses of the Guidelines pertaining to the conduct of internal reviews.
I do not accept that a concession of the extent of the degree of permanent impairment constitutes an admission of liability or partial admission within s 6.20. In any event the Court in Gabriel noted that the right to retract an admission depended upon a construction of the statute.
The claimant’s construction is inconsistent with the wording of s 7.17 of the MAI Act and the contextual provisions of the legislation providing for medical assessments. Section 7.17 defines a medical dispute as a dispute between the claimant and the insurer about a medical assessment matter. That dispute may arise, such as in the present case, by reason of further information becoming available. In the present case that information includes the lack of support in the contemporaneous hospital notes and subsequent clinical records of complaints of right ankle symptoms and any treatment.
Section 4.12 of the MAI Act requires an assessment under Division 7.5 if there is a dispute about whether the degree of permanent impairment has exceeded the threshold. That dispute must refer back to the definition of medical dispute defined in s 7.17.
Both ss 4.12 and 7.17 are clear in their terms, do not provide that they are subject to the internal review procedure and do not support the claimant’s construction.
Division 7.5 of the MAI provides for a complex system of medical assessments either at first instance, on further assessment or by way of review. The parties can apply for a further assessment for grounds prescribed under the regulations which include the provision of additional relevant information about the injury which can have a material effect on the outcome of the previous assessment.[22] That procedure is often utilised when further information becomes available to an insurer placing doubt on the claimant’s version of events.
[22] Cl 13 of the Motor Accident Injuries Regulation 2017.
I agree with the claimant’s submission that the internal review process is not voluntary, and the Guidelines contain a rigid standard following a request made by the claimant. However, I do not accept that the requirements of the Guidelines pertaining to the procedures and conducts of internal review, of themselves, contradict the clear wording in s 4.12 and s 7.17 of the MAI Act of the meaning of medical dispute and the procedure to be adopted if a dispute is raised.
Whilst the further assessment procedure did not occur in this case, the legislation allows for the reopening of a medical dispute upon the receipt of further information which can affect the outcome of the medical dispute. These assessment provisions provide contextual support that the parties are not necessarily bound by prior assessments and do not favour the claimant’s proposed construction of a lack of flexibility following an internal review decision.
The claimant submitted that the unfairness of the insurer’s construction meant that a rejection of his rights following a successful internal review decision could be made by the insurer at a “whim”. However, the MAI Act requires the parties to act in good faith and it is not uncommon that the initial decision could change when further information becomes available.
The internal review process requires the insurer to make decisions within strict time provisions. The present case is an example where the insurer was faced with medical opinion from a qualified doctor which failed to consider relevant contemporaneous notes. In my view, the construction posed by the claimant may lead to greater unfairness given the severe time constraints in the insurer if it is unable to change its decision.
Far from creating an unfairness as suggested in his submissions, the alternative proposed by the claimant would preclude the insurer from relying on further information which created a dispute after an internal review had been issued.
My conclusion is consistent with the observations of the Court of Appeal in Scott concerning the definition of medical dispute in the MAC Act. That provision is in identical terms to the MAI Act although there are obvious contextual differences. Ward JA stated:[23]
“On the material before this Court, as at the time that the application to refer the matter for medical assessment was made, the insurer’s position was that it did not accept that there was a need for attendant care services as a result of the injury at least as that claim had been particularised. In simple terms, that can surely only be understood as the insurer disputing or disagreeing with the particularised claim. It may readily be accepted for present purposes that the insurer does not appear to have taken any steps to negotiate or resolve that dispute. However, s 60 in terms is not predicated on a “genuine dispute”. If the fact is that the insurer did not accept the claimed need for domestic assistance as particularised, then it was on its face a medical dispute.” (emphasis added)
[23] Scott at [119].
The claimant submitted that the observations in Scott were distinguishable because there “was no legal reason [in that matter] why the insurer could not put the issue in dispute”.[24]
[24] Claimant’s further submission dated 1 October 2024, para 7.
Whilst there was, as the claimant submitted, no internal review procedure under the MAC Act, the Court there emphasised the plain wording in the MAC Act on the equivalent provision to s 7.17 of the MAI Act.
The claimant referred to the discussion by the Court of Appeal in Mandoukos v Allianz Australia Insurance Ltd[25] on the scope of the medical dispute and emphasised the discussion concerning the words “about a medical assessment matter” in s 7.17 which was “a reference to the dispute which has in fact arisen”.[26]
[25] [2024] NSWCA 71 (Mandoukas).
[26] Mandoukas at [73].
Both the motor accidents and workers compensation schemes have otherwise emphasised the issue of the scope of the medical dispute being determined by the documentation rather than restricted to the formal referral.[27] In this context the emphasis by the Court is directed to the actual dispute shown by the documentation and is inconsistent with the claimant’s proposed construction.
[27] Mandoukas v Allianz Australia Insurance LtdSkates v Hills Industries Ltd [2021] NSWCA 142; Scone Race Club Ltd v Cottom [2024] NSWCA 34 at [47]–[48], [53] applying Skates at [44].
The claimant’s submissions are somewhat circular because they assume the finality of the internal review notice by submitting that there can be no medical dispute because the internal review notice finally determined the issue. In my view the clear statutory provisions discussed above concerning the nature and effect of medical disputes and the procedures for determining a medical assessment matter are inconsistent with a construction that purportedly binds the insurer and prevents a change in their position.
The above analysis has not considered purpose of the legislation given the competing objects under the MAI Act which provide for the “early resolution of motor accident claims and the quick, cost effect and just resolution of disputes” on the one hand and the need to keep premiums affordable. The legislation rarely shows a specific purpose.
The provisions of the medical assessment process, to the extent that any purpose is identified, illustrate an extremely difficult, complex and time-consuming process where the legislation provides for ongoing medical disputes with both “further assessments” and the review procedure which requires a new assessment of all issues. The motor accidents legislation requires a new assessment of all matters in the medical dispute even when there are no grounds of review pertinent to a particular aspect of the medical dispute.[28] This differs substantially from the more efficient appeal procedure under the workers compensation legislation.[29]
[28] See s 7.26(6) of the MAI Act.
[29] See Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [35].
The principle of reading legislation in accordance with its purpose was discussed in All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd[30] when Leeming and Payne JJA observed:[31]
“42. The applicant repeatedly invoked in support of its construction the legislative purpose, which was to benefit subcontractors in its position. But Gleeson CJ observed in Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [6] that:
‘[T]he underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose.’
43. In Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd[32] it was said, by reference to Carr, that:
‘Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem’.”
[30] [2017] NSWCA 289.
[31] At [42]-[43], White JA agreeing.
[32] (2013) 248 CLR 619; [2013] HCA 36 at [40].
The claimant has assumed that the insurer’s conduct has prevented the quick, cost-effective and just resolution of the of the dispute. A consideration of the merits of the allegation of injury to the right ankle, discussed later in these reasons, suggests that the assumptions underlying the claimant’s allegation of that injury is far from clear. I do not accept the claimant’s submission that what the insurer is attempting is inconsistent with the guiding principle of a “just” resolution of the proceedings. The guiding principles of a quick and cost effective resolution of disputes is not necessarily synonymous with a just resolution.
I do not accept the claimant’s submission that the acceptance of the threshold for paying non-economic loss damages by an internal review means that an insurer cannot subsequently assert that there is a medical dispute.

Application to dismiss pursuant to s 7.20(3)

Submissions

The claimant referred to s 7.20(3) of the MAI Act which provides:
“The President can refuse to accept the referral by a party to a claim of a dispute about the degree of permanent impairment if the party has provided insufficient evidence in support of the degree of permanent impairment asserted by the party.”
The claimant referred to the guiding principle in s 42 of the Personal Injury Commission Act 2020 that there be just, quick and cost-effective resolution of the real issues in the proceedings and referred to the dismissal of the insurer’s application as “discretionary”.
The claimant submitted that the insurer had provided no evidence assessing the claimant’s degree of permanent impairment of the physical injuries at less than 11%. The claimant asserted that the insurer’s application is that Dr Gothelf is wrong and that its submission is “based wholly upon the unqualified medical opinions of insurer’s solicitor”.
The claimant submitted that the opinion of Dr Barrett on psychological impairment is wrong because the doctor stated that the impairment is not stable.
The insurer’s submissions dated 11 June 2024 identified a dispute with respect to the cause of any right ankle impairment. The insurer referred to:
(a)    a prior motor accident on 19 April 2016 and a football injury on 29 August 2019 both involving the right ankle;
(b)    absence of history of these incidents provided to Dr Dixon and Dr Gothelf, and
(c)    absence of complaint and treatment of the right ankle post-accident until it was reported to the physiotherapist 12 months after the motor accident and to the general practitioner on 21 October 2021 (15 months after the motor accident).
The insurer also asserted that there were deficiencies with respect to the assessment of the right hand. I do not intend to address those arguments because the insurer’s submission with respect to the assessment of the right ankle/hindfoot, of itself, is a sufficient basis to show that the impairment is less than the threshold.
The insurer referred to Dr Barrett’s assessment that the assessment for psychological injury does not exceed the threshold.

Reasons

I will assume in the claimant’s favour that these provisions provide a statutory basis for the exercise of a discretion to reject an insurer’s application for the determination of a medical dispute.
This ground, unlike the earlier ground, is not a question of jurisdiction to assess a medical dispute, but a determination of whether the President should reject an application due to “insufficient evidence in support of the degree of permanent impairment asserted by a party”. It is inaccurate to describe the application of the test under s 7.20(3) as a determination on discretionary grounds. The determination of this application must be based on the terms of the legislation. This provision requires satisfaction that “the party has provided insufficient evidence in support of the degree of permanent impairment asserted by the party”.
The provision clearly applies to a claimant’s application where there is insufficient evidence supporting an assessment of permanent impairment.
I will assume in the claimant’s favour without deciding the issue, that the sub-section applies to an insurer’s application, and I am required to determine whether the insurer has provided insufficient evidence in support of the degree of permanent impairment. In this matter I interpret the sub-section to mean that I am required to determine whether the insurer has provided insufficient information that the degree of permanent impairment is below the threshold for the claimant to recover non-economic loss damages.
A Medical Assessor is not required to choose between competing medical opinions and is required to form his or her own opinion: Insurance Australia Group Ltd v Keen[33] and Insurance Australia Ltd v Marsh.[34] The claimant’s assumption that the respective medical opinions determine the medical dispute is inconsistent with the process in which the medical dispute is assessed by a Medical Assessor.
[33] [2021] NSWCA 287 at [40], [41] and [45].
[34] [2022] NSWCA 31 at [11], [21] and [64].

Causation issues are not pure medical questions as the claimant’s submissions assume and state by his reference to the insurer’s solicitor making “unqualified medical opinions”. The issue of causation involves mixed questions of fact and medical opinion in the context of the application of the legal test of causation.
The assumption in the claimant’s submissions that the medical dispute is solely determined by reference to the opinion of respective qualified opinions cannot be correct.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[35] In Raina v CIC Allianz Insurance Ltd[36] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[35] See s 3B(2) of the CL Act.
[36] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The medical dispute of the extent of the degree of permanent impairment has been raised by the insurer on a clearly articulated argument that the motor accident did not cause (amongst other issues) a right ankle/foot injury.
On the material before me the insurer is entitled to raise that argument because of the absence of a proper history in Dr Gothelf’s report. The absence of a proper history undercuts the value of the opinion as it is not based on a fair climate.[37]
[37] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
Similarly, an incorrect history would undercut the value of Dr Dixon’s opinion concerning right ankle/foot injury.
The assumption that the insurer is bound by a medico-legal opinion qualified by it is unsupported by any legal principle. A qualified opinion is only evidence and does not bind the party. The failure to rely on a report by a party may create a Jones v Dunkel ruling however does not create a binding admission. Senior Member Williams reached a similar conclusion in Atwal. The claimant conceded in further submissions in reply that the insurer was “not bound by the WPI assessments of its own doctors”.[38] That concession was properly made and makes the claimant’s position of objecting to the assessment on what it described as “discretionary grounds” pursuant to s 7.20(3) difficult to justify.
[38] Claimant’s further submissions in reply dated 12 September 2024, at [8].
The parties have obligations to act in good faith (s 6.3) and to resolve the claims justly and expeditiously (s 6.4). However, those provisions do not mean that an insurer is bound to accept an opinion which, on reasons articulated by it, are arguably incorrect.
An insurer is entitled to rely on the absence of contemporaneous complaint which, whilst not determinative, is relevant to the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[39] and AAI Ltd v McGiffen.[40] There is a clear basis to support the insurer’s contention that the claimant did not report right ankle/foot injury following the motor accident. The ambulance report states that the claimant was able to ambulate independently following the motor accident and the contemporaneous hospital records do not refer to complaints of symptoms in the right ankle/foot.
[39] [2021] NSWSC 548 (Norrington).
[40] [2016] NSWCA 229 at [64]-[66].
I note that I am unpersuaded by the insurer’s reliance on the 2019 soccer injury. Those notes show a right quadriceps injury with some referred pain down the right leg to the foot. They do not show right ankle injury.
In relation to the extent of the impairment for the psychological injury, acceptance of
Dr Barrett’s opinion means that this impairment is not presently assessable. In any event the doctor did not assess the claimant’s impairment above the threshold. I reject the claimant’s submission that there is no medical dispute raised by a reading of the respective psychiatrists qualified by the parties. This is because the psychological condition, according to Dr Barrett, is not stable and assessable as defined in the Guidelines.
There is a proper basis for the insurer to dispute that the injuries, either physical or psychological, do not exceed the 10% threshold. Accordingly, there is clearly a medical dispute which must be determined by a Medical Assessor.
I decline to exercise the power under s 7.20(3) of the MAI Act. I accept that there is sufficient evidence provided by the insurer, both for the physical and psychological injuries, that the impairment is below the threshold. This ground is rejected.

Conclusion

The claimant’s application to dismiss the insurer’s application for medical assessment is rejected.

[2024] NSWPIC 548

3 October 2024