Bartone v Insurance Australia Ltd ACN 000 016 722 Trading as NRMA (Motor Accident Injuries)

In the case of Bartone v Insurance Australia Ltd ACN 000 016 722 Trading as NRMA (Motor Accident Injuries), the applicant sought a review of the respondent's decision to determine their quality of life benefits at $0, arguing that the decision was unreasonable and did not meet the statutory requirement of being "just". The respondent maintained that the decision was reasonable, legally sound, and that procedural fairness was observed. The applicant also contested the choice of a rheumatologist for the Independent Medical Examiner (IME) assessment, but the respondent argued that the decision was in accordance with the Motor Accident Injuries Act 2019 (MAI Act) and Assessment Guidelines.

The central legal issue was the interpretation of the WPI assessment process under the MAI Act, with the applicant contending that the determination of the WPI was a factual question that required a logical weighing of evidence, while the respondent argued that the process was outsourced to specialist doctors, with the insurer's role being limited to selecting between the WPI determined by the IME and the treating medical practitioner (PME). The court had to decide whether the respondent's decision was legally unreasonable and whether it complied with the statutory requirement for decisions to be "just". The court also had to determine whether the choice of the IME was proper and whether procedural fairness was observed.

The court found that the respondent was correct in its interpretation of the WPI assessment process, which involved outsourcing the essential fact-finding to specialist doctors. The court held that the insurer's role was limited to selecting between the WPI determined by the IME and PME, if one was engaged, and that the choice of IME was not within the insurer's control. The court further found that the respondent's decision was not unreasonable, as it had followed the legislatively prescribed course and adhered to the procedural fairness aspects of the process. The court also held that the requirement for decisions to be "just" did not impose an additional burden on the respondent, as it had already met the statutory requirements.

The Tribunal ordered that the respondent's decision of 3 September 2024 be set aside and that the matter be remitted to the respondent with directions to recommence the quality of life application for the applicant's musculoskeletal and psychological injuries. The respondent was required to refer the applicant to an authorised IME provider for a first WPI assessment in accordance with division 2.6.3 of the MAI Act. The IME provider was to be asked to encourage those assessing the applicant to provide brief reasons for their decisions on MMI and apportionment, and the parties' preference for assessment of the applicant's musculoskeletal injuries by an orthopaedic surgeon was to be communicated to the IME provider.