Estphan v AAI Limited t/as AAMI (No 1)
[2022] NSWPIC 580
•19 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Estphan v AAI Limited t/as AAMI (No 1) [2022] NSWPIC 580 |
| Claimant: | Khalil Estphan |
| insurer: | AAI Limited t/as AAMI |
| Member: | Bridie Nolan |
| DATE OF DECISION: | 19 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Interim decision; application for an adjournment to allow for determination of whole person impairment under Division 7.5 of the Motor Accidents Injuries Act 2017; consideration of Motor Accidents Guidelines clauses 8.8 to 8.10 regarding joint medico-legal report obtained by parties in proceedings; insurer did not raise dispute to joint medico-legal report within statutory timeframe; whether in the absence of contradicting opinion there is a medical dispute between claimant and insurer about a medical assessment matter; Held – determined no medical dispute. |
Introduction
On 2 March 2022, the matter came before me for the first time for a preliminary assessment conference. In a joint medico-legal report dated 8 November 2021,
Dr Bruce assessed the claimant’s accident-related injuries as giving rise to 15% whole person impairment (WPI).
The insurer disputes the validity of Dr Bruce’s assessment. It contends that Dr Bruce incorrectly categorised the claimant’s L5/S1 radiculopathy as the thoracolumbar radiculopathy, when he ought to have classified it as lumbar radiculopathy, which attracts an assessment of 10% WPI. To advance this proposition, it does not rely on medical evidence to this effect, rather, by way of submissions in its correspondence with the claimant, it makes several medico-legal contentions critical of the assessment purporting to raise the dispute.
It was the claimant’s application that the matter be set down for an assessment conference. The insurer opposes this course and seeks that the matter be placed in the “Stood Over List” to permit it to make an application for the determination of whole person impairment under Division 7.5 of the Motor Accidents Injuries Act 2017 (NSW).
These reasons concern whether I am able, as a matter of law, to permit that application.
The Motor Accident Guidelines (Guidelines) at cls 8.8 to 8.10 (see paragraph 19 (ii) and (iii) below) provide regulation around the way parties are to govern the commissioning of a joint medico-legal report in proceedings. The insurer did not request Dr Bruce to re-issue his joint report, further to cl 8.8 of the Guidelines. Despite invitation, the claimant has not agreed to obtain a supplementary report from Dr Bruce.
The insurer wrote to the claimant on 6 December 2021 advising that it declined to concede the non-economic loss threshold and invited the claimant to seek an internal review. The invitation to seek an internal review was renewed on 10 February 2022, but the claimant has not sought internal review.
Submissions
The insurer submits that by reason of these circumstances there remains a dispute as to whether the claimant is entitled to non-economic loss. It submits that the nature of the joint medico-legal report is not binding. It submits that there is no express or implied provision within the Act, Regulations or Guidelines which imputes a binding effect on the joint medico-legal reports.
It refers to the claimant’s oral submissions made at the last preliminary teleconference that is within the Objects of the Act and Guidelines that the joint medical opinion is deemed to be binding. It contends that it cannot be said that the Guidelines or Act can be read in such a manner to implicitly bind the parties to opinions expressed by a jointly qualified medical expert; I interpolate such as to preclude the insurer as it seeks to do so in this case from lodging a whole person impairment dispute or seeking clarification of the expert’s opinion out of time.
It relies upon the Objects of the Act, namely, to encourage the early resolution of motor accidents claims and the quick, cost effective and just resolution of disputes (section 1.3(2)(g)). It submits that Guidelines permit joint reports to achieve this object by attempting to minimise the number of medical expert reports. However, it points to the fact that section 1.3(3)(b) provides that it must be acknowledged that in the application and administration of the Act that the law should be relating to assessment of damages and claims should be interpreted in a way that acknowledges the clear legislative intention to restrict access to non-economic loss compensation to serious injuries. It contends therefore that it must be inconsistent with the Objects and Acknowledgments
in the Act to read the relevant legislative provisions in such a manner such as to bind any party to an opinion or assessment contained in a joint medical report. It says that doing so risks reading words in the statute which are inconsistent with the legislative intent, and which are simply not there.
It relies upon s 7.23(2) of the Act, which is the provision dealing with the conclusive nature of a medical assessor’s certificate.
It also relies to s 7.19(1) of the Act and says that until the claimant has sought an internal review and an internal review has been conducted and the issue of WPI is determined by the Personal Injury Commission (the Commission) if required to do so, the application for damages assessment cannot further proceed. It submits that having regard to what it says is the non-binding nature of Dr Bruce’s report that if the matter were to proceed to damages assessment and damages for non-economic loss were awarded, then such an award would give rise to jurisdictional error.
Legislative framework
The determination of this question requires a detailed analysis of the complex legislative framework, which governs the handling of the assessment of claims, and whole person impairment disputes.
Insurer’s handling of claims
The legislative power to make the Guidelines resides in section 10.2 of the Act. It confers power to issue guidelines with respect to any matter that is authorised or required by or under this Act to be provided for by Guidelines. Section 6.1 of the Act provides that the Guidelines may make provision with respect to the way insurers and those acting on their behalf are to deal with claims.
Clause 4.1 of the Guidelines stipulates that Part 4 of the Guidelines applies to all claims made on insurers in respect of motor accidents that occur on or after 1 December 2017. Clause 4.5 requires insurers to deal with claims in a manner consistent with the Objects of the Act and the general duties under Division 6.2 of the Act.
Clause 4.6 of the Guidelines sets out principles which apply across all claims management aspects for the life of a claim, which include proactively supporting the claimant to optimise their recovery and return to work or other activities, making decisions justly and expeditiously, taking into account the health emergency caused by
the COVID-19 pandemic on a claimant’s circumstances when making decisions about a claim, including decisions related to disputes, and the claimant’s ability to comply with obligations or timeframes under the Act, regulations or these Guidelines.
Clauses 4.121 – 4.125 of the Guidelines sets out specific requirements with respect to non-economic loss. Particularly, the insurer must make decisions relating to non- economic loss based on all the available information and documents, consistent with the facts and in accordance with the law. For example, the insurer should concede an entitlement to non-economic loss when it is in possession of a health service provider examination reports that indicates that a claimant’s WPI is greater than 10%.
Clause 4.122 of the Guidelines provides that the insurer must in every case, regardless of whether the claimant makes a claim for non-economic loss:
(a)clearly indicate that it has determined whether or not the claimant is entitled to non-economic loss;
(b)when a claimant claims to be entitled to non-economic loss but the insurer disagrees, clearly explain the reasons and detail any medical information considered in the course of making its decision that the injured person’s degree of permanent impairment is not greater than 10%;
(c)ensure that the explanation is sufficient to enable the claimant to make an informed decision about whether to accept the insurer’s decision, and
(d)where a claimant has sufficiently recovered to enable the claim to be quantified, and the insurer is unable to determine whether the claimant’s degree of permanent impairment is greater than 10%, refer the matter to the President of the Commission for assessment.
Clause 4.107 of the Guidelines provides that when the insurer receives a request by the claimant to concede that the injured person’s degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%, the insurer must accept or decline the request and notify the claimant of this decision within 90 days of receipt. Clause 4.108 sets up requirements for acknowledgement of the request, including the claimant’s right to seek internal review of the insurer’s decision. Clause
4.109 of the Guidelines sets out the requirements of the insurer’s reasons for its decision. Clause 4.110 of the Guidelines provides that if the insurer fails to either accept or decline the request and notify the claimant within 90 days, the insurer’s
decision is taken as declining to concede that the injured person’s degree of permanent impairment is greater than 10%, and the claimant may request an internal review of that decision.
Joint medical assessments
The Guidelines relevantly provide for the purposes of section 7.52 of the Act, a mechanism for agreement between the parties for a health practitioner to conduct a joint medical assessment. It authorises that health practitioner to give evidence in proceedings about a medical matter (which includes the degree of permanent impairment of an injured person that has resulted from an injury caused by a major accident) for the purposes of section 7.52 of the Act. Section 7.52 of the act sets up a restriction on the health practitioners who may give evidence in proceedings for a medical assessment under Division 7.5 and the assessment of a claim under Division
7.6 (which governs this proceeding before me) to evidence given by a health practitioner who is either the treating health practitioner of the injured person or a practitioner authorised by the Guidelines to give evidence in proceedings.
The Guidelines (cls 8.6 – 8.10) set up a procedure in a claim, where a legally- represented claimant and an insurer agree to a health practitioner conducting a joint medical assessment, that health practitioner is authorised under section 7.52(1)(b) of the Act for the purposes of that claim. Relevantly:
(a)clause 8.7 provides that the parties must instruct the health practitioner in writing to conduct the joint medical assessment. The joint instruction letter must state that: (i) the health practitioner is to perform a joint medical assessment, and (ii) the health practitioner must send the report and any supplementary reports to both parties on completion;
(b)clause 8.8 provides that if a party identifies an error in the report, it may request the health practitioner to re-issue the report with the correct information. The party must send the request and supporting evidence to the health practitioner in writing within seven calendar days of receiving the initial report and provide a copy of the request and supporting evidence to the other party, and
(c)clause 8.9 provides that no supplementary reports can be requested unless agreed to by both parties. A report issued by the health practitioner to correct an error is not considered supplementary.
Medical assessment matters
Section 4.12(1) of the Act provides that 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. The corollary of this is if there be no dispute as to the claimant’s degree of permanent impairment as sufficient for an award of damages for non-economic loss, damages may be awarded.
Under Division 7.5, section 7.17 of the Act, defines medical assessment matter means a matter declared by Schedule 2 to be a medical assessment matter for the purposes of this Part. Schedule 2 defines 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) as a medical assessment matter.
Section 7.17 also defines medical dispute to mean either a dispute between a claimant and an insurer about a medical assessment matter, or an issue arising about a medical assessment matter in proceedings before a court for damages or in connection with the assessment of a claim by the Commission. Division 7.5 sets up a scheme whereby a medical dispute about a decision of an insurer is referred for assessment under the Division. It makes a pre-requisite for this referral an internal review by the insurer under Division 7.3.
Reasons
The parties’ choice to use a joint medical assessor has promoted the Act’s Objects of expedience and consensus, particularly in circumstances where the COVID pandemic has occasioned extensive delays in the assessment of medical assessment matters. This choice is commendable.
By reason of this choice, the parties have bypassed the process provided under Division 7.3 of the Act, and, thereby, section 7.19 of the Act, which permits a claimant to make an application with respect to a medical dispute.
While the insurer raises medico-legal contentions, which are said to give rise to a dispute, in my view it only does so consistent with the ordinary meaning of the word. This is not the same as a dispute in this statutory context. A dispute in the context of
the Act is one which is capable of resolution, in particular resolution by proceedings under either Division 7.5 or 7.6 of the Act. Particularly, in those proceedings it is only the evidence of that is authorised by section 7.52 of the Act, which is admissible to support the grounds for a dispute. The insurer may raise contentions, which if supported by medical evidence would fall within that condition of admissibility contained in section 7.52, in the assessment regimes prescribed by Division 4.3 and Division 7.3 (section 7.9, which provides for an internal review of an insurance decision with respect to a decision about a medical assessment matter). However, it has not taken that path. Therefore, in the absence of evidence going to the allegations of error consistent with the limitation provided in section 7.52, there is no relevant medical dispute, as it is properly understood in the context of this Act and the threshold for a referral to the Commission for the resolution of a medical assessment is not enlivened.
The matter is therefore listed for a further preliminary teleconference on 31 May 2022 at 9.00am.
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