BGM v AAI Limited t/as GIO
[2023] NSWPIC 133
•23 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | BGM v AAI Limited t/as GIO [2023] NSWPIC 133 |
| Claimant: | BGM |
| insurer: | AAI Limited trading as AAMI |
| Member: | Susan McTegg |
| DATE OF DECISION: | 23 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; the claimant sustained injury in a motor vehicle accident on 19 November 2018; application by insurer for exemption under section 7.34(1)(b); the insurer alleged the claimant had made false and misleading statements in failing to disclose to medical assessors his pre-existing psychiatric condition; Held – recommendation made that claim be exempted from assessment; Insurance Australia Limited t/as NRMA Insurance v Banos, Insurance Australia Ltd t/as NRMA Insurance v Taylor and IAG Ltd t/as NRMA Insurance v Abiad referred to. |
| determinations made: | 1. I recommend to the President of the Commission that this claim be exempted from assessment under s 7.34(1)(b) of the MAI Act. 2. I vacate the teleconference listed on 6 June 2023 at 9am. |
INTRODUCTION
The insurer asks that I refer the claim to the President of the Personal Injury Commission (Commission) with a recommendation that the claim be exempted from assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (the MAI Act) and rule 99(3)(e) of the Personal Injury Commission Rules 2021 (the PIC rules).
In determining whether a claim is not suitable for assessment for the purposes of
s 7.34(1)(b), matters the Commission may consider under rule 99(3) of the PIC Rules include the following:
“(e) whether the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damages sustained by the claimant in the accident giving rise to the claim.”
The claimant opposes the application.
THE RELEVANT FACTS
The insurer submits the claimant has made false and misleading statements.
In his Application for personal injury benefits dated 27 May 2020 the claimant refers to his involvement in the motor vehicle accident on 19 November 2018 (the accident) and says he sustained a neck injury, a swollen fistula, lower back pain and psychological suffering post-accident.
The claimant replied “No” in response to the following question on page 5 of that Application:
“Were you suffering an illness or injury affecting the same or similar parts of your body at the time of the accident?”.
The claimant was assessed by Dr Biswas, psychiatrist who provided a report dated
26 October 2020. In relation to past history Dr Biswas recorded:“Prior to the motor vehicle accident, BGM did not report any psychiatric issues. After the accident he saw a psychiatrist regularly for several months without much improvement in his mental state.”
The claimant was assessed by Medical Assessor James Bodel who issued a certificate dated 20 May 2021. He noted the claimant presented in a wheelchair and now required a carer for all activities. Medical Assessor Bodel reported at the time of the accident the claimant was his wife’s carer, noting she was bedridden with severe psychiatric illness. He also reported the claimant had a number of serious chronic illnesses including the need for a kidney transplant, an arteriovenous fistula in the left wrist and hand in place for arterial access in regard to dialysis, as well as iron deficiency, ischaemic heart disease and hypertension. He also reported a history of intermittent neck and back pain but did not report any history of radiculopathy in either arm or leg.
In terms of consistency Medical Assessor Bodel stated:
“This is a difficult issue. This gentleman is wheelchair bound. He has no signs of major wasting in either arm or either leg. He was only able to stand and walk about two steps out of his wheelchair. I am unable to identify a pathology lesion from an orthopaedic point of view, which would render him moribund in this circumstance. There are a number of relevant issues and he has significant cervical spine pathology. He also has renal failure and has had a kidney transplant. He indicated to me that before this accident he was quite mobile and was his wife’s carer. He is now wheelchair bound and moribund. The exact cause for that degree of incapacity is uncertain.”
Medical Assessor Bodel also commented on an assessment by Dr Bruce dated
29 January 2021 as follows:
“Dr Bruce concludes that the ‘need for wheelchair, assistance and various braces and supports seem out of proportion to the nature of the injury and the findings on examination’. I do agree with that assessment. The braces and the fact that he is wheelchair bound and can only stand and take one or two steps does appear out of proportion to the pathology, which is identified, particularly in the lower part of the back and the leg.”
Medical Assessor Melissa Barrett assessed the claimant on 19 July 2021 and issued a certificate dated 27 July 2021. She reported he “denied any pre-accident psychiatric history” and further reported he “denied any psychological symptoms in the period before the accident, despite the chronic stress of his wife’s poor psychological health”.
The claimant was examined by Dr Graham Vickery, psychiatrist who provided a report dated 31 August 2022. In relation to any psychological or psychiatric history he stated: “Nil reported”.
The claimant was assessed by Dr Michael Hong, psychiatrist who provided a report dated 29 August 2022. He stated: “No past psychiatric history reported”.
Dr Hong also relevantly stated:
“I asked about obsessive compulsive disorder symptoms, he has never suffered problem before and said that since the accident, after he goes to the toilet and he drinks some water he has to go back to toilet immediately, even though there is no urine coming out, but he just cannot let go of the thought and that this is a new problem. He also washes his hands to the point that his skin became cracked from excessive washing and using sanitiser because he keeps worrying about infection. There is no other OCD like symptoms.”
The report of Dr Mark Ridhalgh dated 18 May 2022 refers to several additional records which are not available but are said to include the following:
(a)
Dr Ridhalgh refers to a letter from Dr Kumar dated 21 April 2017 where
Dr Kumar purported to diagnose the claimant with major depression and obsessive compulsive disorder.
(b) A consultation on 12 September 2018 purported to certify the claimant unfit for work or study by reason of anxiety, depression and obsessive compulsive disorder.
(c) Dr Riddalgh states the clinical notes of Lourdes Medical Centre, Blacktown include reference to obsessive compulsive disorder on 24 August 2017 and to obsessive compulsive disorder and stress and seeing a psychiatrist on
6 September 2017.(d) A consultation at the Lourdes Medical Centre on 12 September 2018 was for anxiety, depression – major obsessive compulsive disorder.
(e) A letter from Lourdes Medical Centre dated 3 May 2018 summarises the claimant as having major depression, dialysis, haemodialysis, disc prolapse, fistula AV left, obsessive compulsive disorder. There is also evidence of hypertension, renal transplant in 2008, angina pectoris, right eye injury in 2016, retinal detachment in 2016, rotator cuff tendinitis in 2018, left trochanteric bursitis in 2017.
The insurer also notes the claimant failed to inform the various medical assessors he has seen that he sustained a loss of vision in his right eye whilst playing cricket on
29 September 2016.
THE INSURER’S SUBMISSIONS
The insurer submits the claimant has given false and misleading information in relation to his pre-existing psychiatric condition. The insurer submits the matter is not suitable for assessment by the Commission as a proper examination of the evidence and the credibility of the claimant is required under cross-examination and through evidence given in open court, and under oath.
The insurer relies upon the authorities enunciated in Insurance Australia Ltd t/as NRMA Insurance v Taylor [2017] NSWSC 507. In Taylor, Davies J referred to the decision of Campbell J in Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519. Justice Campbell stated:
“[37] The matters relied upon by the insurer to found its application for discretionary exemption are the very type of thing inherently capable of founding a successful cross-examination as to the credit of the claimant. By credit I am referring to the claimant’s reliability and honesty as an accurate medical historian. In personal injury litigation this question will often be fundamental to the determination by the court or tribunal of the nature and extent of the injuries and disabilities caused by the negligence of the defendant.
[38] As Rothman J pointed out in Tarabay[1], it is erroneous for a claims assessor, called upon to determine the question raised by s 92(1)(b) – that is whether the claim ‘is not suitable for assessment under’ Part 4.4 – to decide for himself or herself; in the context of that preliminary assessment whether the impugned statements are in fact false or misleading; whether the histories proffered are accurate; whether the claimant’s presentation to doctors, and on other occasions, is consistent with the alleged injuries; whether apparent discrepancies are likely to have an innocent explanation; and whether or not the claimant’s account of her injuries and disabilities should be believed.
[41] … As Rothman J pointed out, a determination that a person has in fact made a false or misleading statement may only properly be made after what I will refer to as a full hearing on the merits during which the person whose statements are impugned has been given a fair opportunity to meet the allegations in accordance with the requirements of the rule in Browne v Dunn (1893) 6 R 67, or its administrative law equivalent where applicable cf Re Minister for Immigration and Multicultural Affairs’ Ex parte Applicant S154/2002 [2003] NCA 60; 77 ALJR 1909 at [56] – [57].”
[1] Allianz Australia Insurance Limited Ltd v Tarabay (2013) 62MVR537.
Whilst Campbell J and Davies J were both referring to the preceding legislation, the Motor Accident Compensation Act 1999, the provisions are similar and the same principles apply.
The insurer also notes that in Taylor Davis J also stated:
“[36] It can be reasonably inferred from the mandatory exemption in relation to a fraudulent claim that the absence of sworn compellable evidence with a right of cross examination in the CARS process meant that neither truth nor fairness to the parties was likely to be achieved other than in a court hearing, where, additionally, the rules of evidence apply. That is a relevant consideration where it is alleged a false and misleading statement has been made.”
The insurer also refers to the decision in IAG Ltd t/as NRMA Insurance v Abiad [2018] NSWSC 1422 at [76] – [77] as follows:
“It is not the role of a claims assessor to second guess an insurer’s allegations that a claimant has made a false or misleading claim. Section 92(1)(b) and cl 14.16.11 implicitly recognises the fact that in an appropriate case an insurer’s claims ought to be tested in a courtroom and be exposed to the type of forensic examination that the assessment process, to some extent at least, cannot necessarily provide...
The simple proposition is that a claims assessor’s task when an application has been made is to assess the allegation and whether it is not suitable for assessment under the relevant Part. The assessor’s role is not to determine the truth or even the strength of the insurer’s allegations…
The question … was whether the claims were not suitable for assessment on the basis that there was an allegation that the first or second defendants had made false or misleading statements in a material particular in relation to their injuries.”
THE CLAIMANT’S SUBMISSIONS
The claimant provided submissions dated 23 February 2023. The claimant submits that his failure to disclose his prior psychiatric history was made in good faith and was not deliberately false or misleading.
The claimant argues he was mentally and physically well in the period prior to the accident and as a result he did not believe that information regarding his previous mental health was relevant to the inquiries surrounding the accident.
The claimant submits that he is honest and truthful and this matter is suitable for assessment by the Commission.
CONCLUSION
It is not a matter for me to determine whether the claimant has made a false and misleading statement as that can only be determined after a full hearing on the merits and where the claimant is given a fair opportunity to meet those allegations.
As in Banos the matters relied upon by the insurer in support of the application for discretionary exemption relate to the claimant’s credibility and honesty as an accurate medical historian, which will be fundamental to the determination of the nature and extent of the injuries sustained by the claimant in the accident.
I refer to the oft quoted passage of Campbell J in Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519 at [43]:
“When deciding the statutory question in a case that turns upon whether a person has made a false and misleading statement, the following considerations are likely to be relevant. I do not mean to be exhaustive:
(a) the Act contemplates that the great majority of disputes will be resolved by the assessment process, and not in court;
(b) however, the consideration that s.92 provides for both mandatory exemptions and discretionary exemptions provides a clear legislative guidepost that appropriate cases should be ‘redirected’ to the court system at an early time by way of preliminary determination;
(c) a primary question will be, having regard to the nature of the issue raised, whether both parties can be afforded a hearing (assessment conference) which is in a practical sense fair having regard to the nature of the allegation raised;
(d) a related question will be which mode of hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other. Advantages of the latter may include a better opportunity for proper and fair cross-examination of witnesses whose credit is to be impugned and the greater availability of cross-examination of medical experts on the material which may call a claimant's reliability into question;
(e) as it is clear the claimant's credit will be called into question, a consideration of whether it is in the public interest that such an examination occur in open court;
(f) Finally, but by no means least, the consideration that it is not mandatory, whenever a credit issue is raised, to decide that the claim is not suitable for assessment under Part 4.4.”
I find that the assertion by the insurer that the claimant has failed to disclose his pre-accident psychiatric history to medical assessors means that his credit is in issue. Having regard to the nature of the allegations raised I am not satisfied the assessment process would afford both parties a hearing which, in a practical sense, is fair.
A court hearing will facilitate evidence being given on oath in a forum where the strict rules of evidence apply, a relevant consideration where it is alleged the claimant has made a false and misleading statement. As the Court said in Abiad it is appropriate that the insurer’s claims be tested in a courtroom where they can be exposed to the type of forensic examination that is not available in the assessment process.
Exemption of the claim from assessment will permit a better opportunity for proper and fair cross-examination of the claimant, whose credit has been impugned, and permit the cross-examination of medical experts on the material which may call into question the claimant’s reliability.
RECOMMENDATION AND DIRECTION
I recommend to the President of the Commission that this claim be exempted from assessment under s 7.34(1)(b) of the MAI Act.
I vacate the teleconference listed on 6 June 2023 at 9am.
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