Baaruud v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 70
•03 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Baaruud v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 70 |
| CLAIMANT: | Ayan Baaruud |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Robert Foggo |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 03 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of Certificate of Medical Assessor (MA) Christopher Grainge of 13 May 2022 finding 0% whole person impairment (WPI); neither party sought a re-examination of the claimant; Panel determined that a clinical examination of the claimant by the Panel not required. MA certified “the sleep disorder suffered by Ms Baaruud is secondary to her post traumatic stress disorder and chronic pain syndrome, and hence any WPI relating to sleep disturbance from these diagnoses should be incorporated in the WPI already determined for these issues; there is no intrinsic sleep disorder which warrants additional assessment of WPI”; the Panel found that the MA had clearly and convincingly set out his reasons for arriving at this conclusion, and had explicitly addressed the reasons why he did not adopt the methodology of WPI contended for by the claimant; Held – the Panel rejected the claimant’s contention that the assessor failed to employ Table 6 at page 143 of the American Medical Association Guides to the Evaluation of Permanent Impairment Version 4 as he was prohibited from doing so by the text of the section “Arousal and sleep disorders” at pages 143 – 144; the Panel accordingly accepted the MA’s diagnosis of sleep fragmentation and chronic hypersomnolence secondary to chronic pain and post-traumatic stress disorder for the reasons set out at paragraph 20 of page 4 of the Certificate; Certificate of MA of 13 May 2022 confirmed. |
| DETERMINATIONS MADE: | Review Panel Certificate and Reasons Certificate issued under section 63 of the Motor Accidents Compensation Act 1999 (the Act) THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS: The Review Panel confirms the certificate dated 11 September 2022. |
Background
Review Panel for determination under section 7.26 of the Motor Accidents Injury Act 2017 (the MAI Act).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 provides that the Panel determines how it conducts and determines the proceedings and that it may determine the proceedings solely based on the written application.
Section 63(3A) of the MAC Act provides that the review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.
All Review Panel members confirmed that they had no previous involvement with this matter, or with the above injured person. All Review Panel members also confirmed that there was no conflict or any other reason that they would be unable to approach this review with an open mind.
Conduct of the review
The Review Panel met via teleconference on 13 February 2023. The Review Panel determined that it was able, for the reasons set out below, to come to a conclusion without seeking further submissions or material from the parties.
In Sydney Trains v Batshon [2021] NSWCA 143 at [41] Leeming JA observed that “under the motor accidents legislation, the default position where there is a review of the medical assessment is that the review “should generally include a re-examination of the Claimant”, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings.”
In the present matter, there has been no challenge to the Assessor’s clinical findings that the Claimant’s respiratory system was normal, and accordingly the panel concluded that a re-examination of the Claimant was not necessary.
Assessment under Review
Medical Assessor Christopher Grainge had certified the following:
·The sleep disorder suffered by Ms Baaruud is secondary to her post traumatic stress disorder and chronic pain syndrome, and hence any WPI relating to sleep disturbance from these diagnoses should be incorporated in the WPI already determined for these issues. There is no intrinsic sleep disorder which warrants additional assessment of WPI.
Disputes and issues identified by the parties
The Review Panel considered all of the material provided by each party in their bundles of documents, provided to the PIC in response to the Panel’s Direction of 12 January 2023.
The Claimant’s submissions of 9 August 2022 at pages 8 – 19 of the Claimant’s bundle of evidence, set out what was contended to be the errors in the Certificate, and were detailed in paragraphs 2 – 6.
It was contended in paragraph 2 “that the Assessor erred in finding that any WPI related to sleep disturbance from the Claimant’s psychological diagnoses should be incorporated in the WPI already determined for these issues.” It was also submitted that the Assessor failed to determine causation correctly in accordance with the law and the Guidelines, failed to take into consideration the submission that the sleep disturbance suffered by the Claimant warranted a separate assessment of whole person impairment outside that allocated in relation to pain and psychological disorder.
It was further contended “that the Assessor failed to use Table 6 (page 143, AMA 4 Guides) to a sleep and arousal disorders,” and that the Assessor had thereby fallen into error.
The Insurer’s submissions (R1 at page 960 of the Insurer’s bundle of documents) argued that the Assessor had not made any material error. It was submitted that the Assessor had no obligation to determine WPI, as he found that there was no intrinsic sleep disorder, that the path proposed in the Claimant’s submissions would have caused material error, that the Assessor disclosed his path of reasoning sufficiently, and that the errors alleged by the Claimant are immaterial.
Reasons
Matters Considered and Decided by the Review Panel
The Review Panel considered afresh all aspects of the assessment under review.
The panel noted that the Assessor, a respiratory physician, was required by the Personal Injury commission to assess “Respiratory injury – sleep disturbance, sleep disorder, chronic hypersomnolence” (Certificate page 2). He acknowledged, also at page 2, the Claimant’s submission “that the sleep disturbance suffered by Ms Baaruud warrants a separate assessment of whole person impairment outside that allocated via the realms of pain and psychological disorder.”
Clearly, the Assessor did give consideration to the Claimant’s submission that there should be a separate assessment of whole person impairment other than that related to pain and psychological disorder. The panel concluded that the Assessor had clearly, later in the Certificate, set out the reasons why he did not adopt methodology of whole person impairment assessment contended for by the Claimant.
At paragraph 19 (Page 4 of the Certificate)e he Assessor set out his diagnosis, namely sleep fragmentation and chronic hypersomnolence secondary to chronic pain and post-traumatic stress disorder. He then in paragraph 20 provided his reasons for this conclusion and his findings on causation:
Ms Baaruud’s difficulty with sleep initiation appears to be secondary to recurrent intrusive thoughts which have been addressed under the banner of Post-Traumatic Stress Disorder and Psychological Disturbance. The recurrent arousals through the night which are likely leading to the chronic hypersomnolence appear secondary to pain and that has been addressed under the banner of pain assessment. There is no evidence of any sleep disordered breathing, limb movement disorder or any intrinsic sleep diagnosis.
The Claimant’s submissions on causation are confined to reciting extracts from the Guidelines relating to causation without identifying how the Assessor failed to take into account the law and the guidelines when arriving at his conclusions.
The Claimant’s submission that the Assessor failed to employ Table 6 at page 143 of the AMA 4 Guides to the evaluation of permanent impairment is undoubtedly correct.
However, the reason why the Assessor did not utilise Table 6 was because the text of the section titled “Arousal and sleep disorders” at pages 143 – 144 of the AMA4 Guides, in which Table 6 is embedded, prohibited him from doing so. The Motor Accident Guidelines do not provide any direction about this issue (section 6.229 to 6.232).
The section explains that Arousal and sleep disorders “include disorders related to initiating and maintaining sleep or inability to sleep; disorders of excessive somnolence, including those associated sleep-induced respiratory impairment; disorders of sleep – wake schedules; and dysfunctions associated with sleep, sleep stages or parasomnias.” The concluding sentence of the section on arousal and sleep disorders notes that sleep disorders are also considered in the chapter on the respiratory system. That section appears at pages 163 – 164 of the AMA4 Guides. It notes that some sleep disorders are not readily quantifiable by testing pulmonary functioning, spirometry, diffusing capacity or measured exercise testing. These are disorders are essentially differing forms of sleep apnoea.
That condition was not diagnosed by the Assessor, or by any health professional who examined the Claimant.
At pages 3 – 4 of the Certificate, the Assessor detailed his clinical examination of the Claimant and concluded “Respiratory examination including expansion, percussion note and breath sounds were all normal. The trachea was central, there were no peripheral stigmata of respiratory disease.”
At paragraph 19 on page 4 of the Certificate he accordingly sets out his diagnosis of “Sleep fragmentation and chronic hyper is secondary to chronic pain and post-traumatic stress disorder.” He explains in paragraph 20 on page 4 of the Certificate the reasons why he came to this conclusion:
Ms Baaruud’s difficulty with sleep initiation appears to be secondary to recurrent intrusive thoughts which have been addressed under the banner of Post-Traumatic Stress Disorder and Psychological Disturbance. The recurrent arousals through the night which are likely leading to the chronic hypersomnolence appear secondary to pain and that has been addressed under the banner of pain assessment. There is no evidence of any sleep disordered breathing, limb movement disorder or any intrinsic sleep diagnosis.
These findings echo the “Current Symptoms” noted at page 4 of the Certificate of Assessor Jungfer: “She goes to bed approximately 11 PM, has delayed sleep onset then wakes through the night secondary to the pain. Three times per week she will dream about the accident and recalls the woman at the accident confronting her.”
The panel concludes that the Assessor clearly and explicitly addressed the causation of the Claimant’s sleep disturbance. Further, no challenge has been made to the Assessor’s clinical findings that the Claimant’s respiratory system was normal.
Accordingly, the requirement set out at page 144 of the AMA4 Guides that “Sleep disorders relating to these systems should be evaluated according to the Guides chapters that deal with the respective systems” prevented him from making any assessment of the Claimant’s sleep disorder. This was because he had found that the claimant’s sleep disorder related to “(2) mental and behavioural factors, including depression, irritability, interpersonal difficulties, and social problems” (AMA4 Guides page 143).
In addition, had the Assessor endeavoured to assess the claimant’s whole person impairment in respect of her sleep disorder, he would have gone beyond the task which the PIC required him to perform, namely making an assessment of whole person impairment as a result of a respiratory injury caused by the motor vehicle accident. (See Wood v Insurance Australia Group Limited trading as NRMA insurance [2022] NSWSC 1290 at [65]). That is, any finding or assessment of whole person impairment which was not caused by a respiratory injury suffered by the claimant in the motor vehicle accident would be ultra vires of the referral of the medical dispute by the PIC to Assessor Grainge.
After consideration of all of the material submitted by the parties in this matter, and in particular the clinical records and expert medical opinion and Certificates of the Medical Assessors, the panel agreed with Assessor’s Grainge’s finding that the Claimant did not have a sleep disorder which was caused by a respiratory injury, as it was the result of the Claimant’s psychological or psychiatric injuries.
Review Panel Certification
This certificate has been viewed by Assessor Cameron and Assessor Gibson who have confirmed that they are in agreement.
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