Atwal v Insurance Australia Limited t/as NRMA Insurance

[2024] NSWPIC 440

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Atwal v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 440
CLAIMANT:	Tajinder Atwal
INSURER:	Insurance Australia Limited t/as NRMA Insurance
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	15 August 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); section 4.12; determination of preliminary issue; whether damages may be awarded where insurer does not concede permanent impairment greater than 10% and degree of permanent impairment has not been assessed by a Medical Assessor; whether there is a “dispute”; whether there is a “medical dispute”; whether insurer bound by medico-legal opinion where insurer considers medico-legal opinion flawed; Held – the existence of a dispute does not necessarily require evidence from an approved health practitioner of permanent impairment below the threshold; a dispute about permanent impairment may arise on the basis that the medical evidence is in some identified way flawed, and cannot be relied on to establish the level of impairment contended for; there is a dispute about whether the degree of permanent impairment is sufficient for an award of damages for non-economic loss; section 4.12(1) of MAI Act is engaged; section 4.12 of MAI Act places a restriction on the award of damages for non-economic loss where there is a dispute about permanent impairment, while section 7.20 of MAI Act establishes a procedure for the dispute to be determined; if the matter were to proceed to assessment of damages, damages for non-economic loss may not be awarded.

REASONS

1. Tajinder Atwal (claimant) was injured in a motor accident at Ashfield on 27 June 2020 (accident). He subsequently made a claim for damages in accordance with the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer). Liability for the claim was admitted by the insurer on 19 May 2023.

2. The claimant has referred his claim to the Commission for assessment under Division 7.6 of the MAI Act. He seeks awards for non-economic loss, past economic loss and future economic loss.

3. There is a preliminary issue as to whether damages may be awarded to the claimant for non-economic loss. At the preliminary conference held on 1 July 2024 directions were made for provision by the parties of written submissions addressing whether damages for non-economic loss may be awarded to the claimant.

4. At the preliminary conference held on 12 August 2024 I informed the parties that I was satisfied there was, for the purposes of  s 4.12(1) of the MAI Act, a dispute about whether the degree of permanent impairment of the claimant is sufficient for an award of damages for non-economic loss. That being the case, s 4.12(1) is clear: damages may not be awarded to the claimant for non-economic loss unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5.

5. In short, as matters presently stand if the matter proceeded to assessment I could not make an allowance for non-economic loss. The claimant sought written reasons for my decision. Those reasons follow.

BACKGROUND

1. The claimant seeks damages for non-economic loss. He does so on the basis that he has a permanent impairment greater than 10% arising from both the physical and psychological injuries he suffered as a result of the accident.[1] For present purposes, it is the impairment arising from the psychological injury that is relevant.

   [1] Letter from the claimant’s solicitor to the insurer’s solicitor dated 17 October 2023.

2. The claimant’s position is that the matter should be listed for assessment of damages, that he is entitled to damages for non-economic loss, and that the Commission may award him damages for non-economic loss. The insurer disagrees.

3. Among other evidence, the claimant relies on reports of Dr Lim, psychiatrist, dated

   
   

   17 August 2023. Dr Lim provided an impairment assessment in which he recorded that the claimant has a “Final % WPI” of 50%.

4. At the request of the insurer’s solicitors the claimant was assessed by Dr Cocks, psychiatrist. The doctor prepared two reports dated 26 October 2023. A report described as an “Impairment Assessment Report”, records that the claimant has a “Final WPI” of 24%.

5. The insurer served Dr Cocks’ report on 19 January 2024. In the letter serving the report the insurer stated as follows:

   “…The Insurer notes Dr Cocks' WPI assessment and notes that the following matters were not taken into account by Dr Cocks:

   1. The Claimant completed an Advanced Diploma in Hospitality after the subject accident. The course was undertaken from June 2021 to May 2022 and was completed satisfactorily, albeit with some credit transfers.

   2. The Claimant had a shoulder surgery in June 2022 and is still undergoing rehabilitation. His shoulder injury has affected his capacity for household chores. The Claimant's general practitioner adjusted his capacity for work from 12 hours per week to no capacity on account of the surgery.

   As these matters are relevant for the PIRS categories of self-care, concentration and adaptation, the Insurer does not accept that the WPI assessment made by

   
   

   Dr Cocks is reliable.

   Consequently, the Insurer is not in a position to concede that the Claimant's WPI exceeds 10% in respect of his alleged psychological injury…”

SUBMISSIONS

Claimant’s submissions

1. In his written submissions dated 12 July 2024, the claimant confirms that he wants the matter listed for assessment in respect of both non-economic loss and economic loss. He acknowledges that the:

   “[i]nsurer continues to dispute [his] eligibility for non-economic loss. The Insurer says there is a medical dispute requiring the whole person impairment to be assessed by a medical assessor before the claimant will be eligible for non-economic loss.”

2. The claimant argues that there is nothing in the legislation that the insurer identifies that makes a medical assessment mandatory or a precondition to eligibility for non-economic loss. The claimant submits that s 4.12 is not a limitation on the Commission’s power or jurisdiction to determine non-economic loss but is instead only a limitation on the circumstances in which a party to a medical dispute can seek to claim non-economic loss.

3. The claimant argues that the assessments of permanent impairment made by Drs Lim and Cocks “result in [him] satisfying the eligibility to non-economic loss damages”.

4. The claimant addresses various provisions contained in Division 7.5 of the MAI Act, and argues that there is no “medical dispute” about his permanent impairment. Reliance is also placed on Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138 (Scott) at [118].

5. The claimant argues that it would be nonsensical to construe s 4.12 as requiring him, in the absence of any factual dispute as to impairment, to request that the President determine whether there is a “medical dispute” in the absence of plausible evidence to support a dispute. I reject that submission. There is a factual dispute about his impairment.

6. In the claimant’s submission, it would be illogical to construe s 4.12 as having an application to preclude his eligibility for non-economic loss pending a medical assessment for which there is no jurisdiction or likelihood of ever happening.

Insurer’s submissions

1. The insurer relies on written submissions dated 26 July 2024. The insurer’s submissions address ss 4.12, 7.17, and 7.20. The insurer refers to and relies on what was said by the Court of Appeal in Scott at [119].

2. The insurer argues that it has obtained a medico-legal report which it considers to be flawed, namely the report of Dr Cocks. The insurer submits that it has provided “particulars” to the claimant explaining why it does not accept the doctor’s permanent impairment assessment.

3. The insurer argues that the medicolegal reports are:

   “…outdated in light of the subsequent treating reports[2]… the treating reports state that improvements are expected for the physical injuries and that work capacity in relation to psychological injury is to be assessed after the planned EMDR treatment sessions are completed. These subsequent treating reports will put the Claimant's degree of permanent impairment in issue at any assessment of this matter.”

   [2] Referred to at [16]-[18] of the insurer’s submissions.

4. The insurer submits that the "dispute" envisaged in s 4.12(1) is a dispute that can be referred for assessment under Division 7.5. The insurer argues that such a dispute is defined by

   
   

   s 7.17 to include both a dispute between the parties and an issue about the degree of permanent impairment arising in the proceedings.

5. The insurer submits that the existence of a dispute does not necessarily require evidence from an approved health practitioner of permanent impairment being above or below the threshold.

6. The insurer submits that the parties are plainly in dispute regarding the claimant's degree of permanent impairment and that “this issue will arise at any assessment of this matter based on the claimant's subsequent treating reports”.

CONSIDERATION

1. Resolution of the dispute turns on the application of s 4.12 of the MAI Act. That provision is in the following terms:

   “4.12   Assessment of permanent impairment required if dispute over impairment threshold

   (1)  If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5.

   Note—

   The assessment of the medical assessor is conclusive in proceedings before a court or the Commission—see section 7.23. Section 7.20 authorises a court, the Commission or party to a dispute, to refer the dispute about the degree of permanent impairment to the Commission for assessment by a medical assessor.

   (2)  This section does not prevent—

   (a)  the degree of impairment from being re-assessed under Division 7.5, or

   (b)  a claim from being settled at any time.”

2. For the purposes of s 4.12(1), the relevant degree of impairment is a permanent impairment greater than 10%: s 4.11.

3. I accept the insurer’s submission that the existence of a dispute, for the purposes of s 4.12, does not necessarily require evidence from an approved health practitioner of permanent impairment below the threshold. A party may, for example, dispute the degree of permanent impairment on the basis that the medical evidence is in some identified way(s) flawed, and cannot be relied on to establish the level of impairment contended for. A dispute  arising in these circumstances is a factual dispute about impairment.

4. At [22]- [23] of its written submissions, and in its correspondence of 29 January 2024, the insurer has given reasons why it does not accept the medico-legal opinions of Dr Lim and Dr Cocks with respect to permanent impairment.

5. The insurer’s correspondence of 19 January 2024 states that it does not “accept that the WPI assessment made by Dr Cocks is reliable”, and that it is “not in a position to concede that the [c]laimant's WPI exceeds 10% in respect of his alleged psychological injury”.

6. In circumstances where the insurer considers Dr Cocks’ assessment of permanent impairment to be “flawed”, the opinion (including the assessment of permanent impairment) does not bind the insurer, nor does it prevent the insurer from declining to accept that he has a permanent impairment that is greater than 10%. Authority to the contrary has not been identified by the claimant. Ultimately, the insurer may be right that the doctor’s opinion is flawed, it may be wrong. What is clear is that it does not accept his opinion.

7. The claimant’s submissions acknowledge that the insurer continues to dispute his eligibility for non-economic loss.

8. I am satisfied that the insurer does not accept the claimant has a permanent impairment that is greater than 10%. That, in my view, means that the insurer disputes that the degree of permanent impairment of the claimant as a result of the psychological injury caused by the accident is greater than 10%. Accordingly, for the purposes of s 4.12, there is a dispute between the parties about whether the degree of permanent impairment of the claimant is sufficient for an award of damages for non-economic loss. Section 4.12(1) is engaged.

9. To the extent that a finding is required, for the purposes of s 4.12, as to whether there is a “medical dispute”, I am well satisfied that there is. A “medical dispute” is a dispute between a claimant and an insurer about a medical assessment matter, not a dispute between doctors.

10. The fact is that the insurer does not accept the claimant has a permanent impairment of greater than 10%. There is, therefore, a dispute about that issue. Whether the degree of permanent impairment is greater than a particular percentage is a “medical assessment matter”: Sch 2 cl2(a) MAI Act. A dispute about a “medical assessment matter” is a “medical dispute”: s 7.17 MAI Act.

11. The claimant argues that s 4.12 is not a limitation upon the Commission’s power or jurisdiction to determine non-economic loss, but is instead only a limitation on the circumstances in which a party to a medical dispute can seek to claim non-economic loss. I reject that submission.

12. The task of statutory construction begins, as it ends, with the statutory text, construed in context: SZTAL v Minister for Immigration and Boarder Protection [2017] HCA 34 per Gageler J at [37].

13. Section 4.12 is found in Part 4 of the Act. Part 4 deals with the award of damages, and applies to and in respect of the assessment of the amount of damages by the Commission: s 4.1(2)(b). Damages cannot be awarded to a person in respect of a motor accident contrary to Part 4: s 4.2(1).

14. The text of s 4.12 is in clear and unambiguous terms: if there is a dispute about whether the degree of permanent impairment of the claimant is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5. No such assessment has been undertaken. As things stand, if the matter were to proceed to assessment of damages under s 7.36, damages for non-economic loss may not be awarded.

15. The claimant submits that, for there to be a medical dispute to which s 4.12 applies, there must first be a referral under s 7.20 and a determination by the President that there is a bona fide dispute which can be referred for medical assessment. I reject that submission.

16. Section 7.20 is found in Div 7.6. That Division deals with resolution of medical disputes, including disputes about whether the degree of permanent impairment is greater than a particular percentage. Section 7.20 provides a mechanism for a dispute about permanent impairment, arising under s 4.12, to be determined: by way of assessment by a medical assessor. In short, considered in its statutory context, s 4.12 places a restriction on the award of damages for non-economic loss where there is a dispute about permanent impairment, while s 7.20 establishes a procedure for the dispute to be determined.

17. The claimant’s submissions address s 7.20(3). That provision gives the President the power to 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 power can only be exercised by the President or his delegate. It cannot be exercised by me. Nor can I make a finding under that provision. Further, a referral under s 7.20 and a determination by the President that there is a “bona fide dispute” which can be referred for medical assessment is not a condition precedent to s 4.12 being engaged.

18. Neither party has made an application for assessment of a medical dispute about permanent impairment. No determination has been made under s 7.20 as to whether the dispute is to be assessed by a medical assessor. As it stands, there is an undetermined dispute between the parties about permanent impairment.

19. Both parties have referred in their submissions to Scott. In that case the Court of Appeal considered various provisions in the Motor Accidents Compensation Act 1999 (MAC Act) in the context of a claim for “attendant care services”. Among other matters, the court determined at [119] that s 60, a provision in similar but not identical terms to s 7.20 of the MAI Act, is not predicated on a “genuine dispute”.

20. Section 60 of the MAC Act does not include, as s 7.20 does, a discretion to refuse to accept the referral of a dispute about the degree of permanent impairment: s 7.20(3). It remains to be seen whether this difference in statutory language requires a different approach to be taken to s 7.20, in terms of whether there needs to be a “genuine dispute”. That question doesn’t arise here, as I am satisfied that there is a “genuine dispute”.