Estphan v AAI Limited t/as AAMI (No 2)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Estphan v AAI Limited t/as AAMI (No 2) [2022] NSWPIC 582
Claimant:	Khalil Estphan
insurer:	AAI Limited t/as AAMI
Member:	Bridie Nolan
DATE OF DECISION:	25 August 2022
CATCHWORDS:	MOTOR ACCIDENTS - Interim decision; application to admit late documents being evidence of medico-legal professional giving rise to “medical dispute”; medical practitioner authorised to give evidence for the purposes of section 7.52 of the Motor Accident Injuries Act 2017 (2017 Act); consideration of sections 67(4) and 67(5) of the Personal Injury Commission Act 2020; Held – matter referred for determination of medical assessment under section 7.20 of the 2017 Act.

INTRODUCTION

This interim determination is to be read in addition to my reasons in the above matter dated 19 May 2022, on the insurer’s application for an adjournment 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) (MAI Act). Regard must also be had to my preliminary teleconference report dated 31 May 2022, wherein I indicated that I was inclined to reconsider my decision dated 19 May 2022, by reason of my inadvertent failure to have regard to the report of Dr Gothelf dated 31 March 2022 (Report) and accompanying submissions dated 1 April 2022. The Report was uploaded to the Portal late but was submitted prior to me making my 19 May 2022 determination. It did not come to my attention for reasons which remain opaque.
By email dated 31 May 2022, sent at 15.17, the claimant’s solicitor submitted that Dr Gothelf did not have the benefit of a physical examination of the claimant (as did Dr Bruce) and in those circumstances the Report should only be regarded as commentary on Dr Bruce’s report.
In response, by return email, I indicated that I would take this matter into account as a submission in my reasons on my reconsideration. I inquired of the claimant’s representative as to whether there remained a concession forthcoming from the claimant that the Report is nonetheless a “medical dispute”.
On 1 June 2022, by email sent at 17.06, the claimant’s representative conceded that the comments in the Report created a difference in medical opinion, but in the absence of not having formally examined the claimant, he could not concede that there was a medical dispute.
By email dated 21 June 2022, sent at 14.23 to me, (and by message on the Portal to the Dispute Officer also dated 21 June 2022 sent at 14.30), the claimant indicated that the insurer’s application to rely lately on the Report and submissions was not consented to.
On 21 June 2022, at 14.56, I was contacted again by email, on this occasion by the insurer’s representative. The insurer relied upon paragraph 22 of the Practice Direction PIC1, which precludes the party from contacting me directly, unless through the Portal. The insurer stated that in the circumstances, it asked me to exercise my discretion under paragraph 3 of the Practice Direction to dispense with the requirement to comply with paragraph 22. This email was copied to the claimant’s representatives.
The insurer submitted that the claimant had had the opportunity to raise the admissibility of the Report and its letter dated 1 April 2022 at the teleconference before me on 31 May 2022 but did not do so. Rather, it submitted, the claimant conceded that the Report would be medical evidence sufficient to “generate” a medical dispute between the parties. It applied to have the Report admitted under rule 67(5)(b) of the Personal Injury Commission Rules (PIC Rules) on the basis that at the 31 May 2022 teleconference I was said to have directed it to provide me with a copy of the Report.
The insurer submits in the alternative that it would otherwise be in the interests of justice for the Report to be received and relied upon: s 67(5)(c) of the PIC Rules. It submits that the Report is material which squarely addresses the issue as to whether there is a “medical dispute” within the meaning of the MAI Act. It also submits that the claimant is not prejudiced by the Report’s admission considering that he has had the Report and 1 April 2022 letter for several months and has had ample time to meet it. It submits that the absence of a formal application to admit late documents is a matter of technicality. It points to s 43 (1) of the Personal Injury Commission Act 2020 (NSW) (PIC Act) which says that proceedings in any matter before the Personal Injury Commission (the Commission) are to be conducted with a little formality of technicality as the proper consideration of the matter permits.

REASONS

Dr Gothelf is a practitioner authorised to give evidence for the purposes of se 7.52 of the MAI Act as he is a practitioner appointed by the State Insurance Regulatory Authority to its list of Authorised Health Practitioners (Motor Accident Guidelines, cl 8.3(b)). The Report is a file review based on:
(a)     medico-legal report by Dr Gregor Bruce dated 8 November 2021;
(b)     imaging report by Dr Rashidi Mbakada dated 19 June 2018;
(c)     imaging report by Dr Niranjan Ganeshan dated 12 September 2019;
(d)     nerve conduction study results by Dr Daniel Chougassian dated 20 January 2020;
(e)    reports by Dr Matthew Giblin dated 9 September 2019, 16 September 2019 and 16 October 2019, and
(f)    clinical records produced by Dr K Y Wong, received on 1 February 2022.
Based on this file review, Dr Gothelf considered that left S1 nerve root pathology would be most likely responsible for an absent left ankle jerk and left ankle minor plantar flexion weakness. He considered this opinion to be confirmed by the 19 June 2018 MRI of the lumbar spine and the 12 September 2019 MRI of the lumbar spine. He also considered the report of Dr Giblin dated 16 September 2019, wherein the doctor recommended a left-sided L5/S1 epidural steroid, and a letter dated 16 October 2019, wherein Dr Giblin indicated that the claimant was much better after the injection supporting this level. While he agreed with Dr Bruce’s findings with respect to radiculopathy, he considered that it was only lumbar radiculopathy and that the finding of thoracolumbar radiculopathy affording the claimant 15% whole person impairment was incorrect. Rather, the Guides properly interpreted, saw the claimant assessed at 10% whole person impairment.
Whether the claimant conceded the Report gives rise to a “medical dispute” is not presently relevant. He does not consent to its late admission. As is apparent from the discussion of the Report’s findings above, and my reasons dated 19 May 2022, it does properly give rise to a “medical dispute” as it is understood in the statutory context.
The relevant question is whether I should formally permit its late admission on the reconsideration of the insurer’s application.
At the time of reconsidering this application, s 67(5) of the PIC Rules, upon which the insurer relies, has been repealed. Rather, s 67(4) of the PIC Rules, in its stead, provides:
(4) The appropriate decision-maker for the applicable proceedings may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would be prevented from introducing because of the operation of subrule (2) if—
(a) the party complies with subrule (3), or
(b) the appropriate decision-maker gives the party leave to lodge additional documents following an attempt by the party, whether or not successful, to obtain consent to the lodgment from all parties to the proceedings.
In this case, both rule 67 (4)(a) and (b) of the PIC Rules have been complied with. The relevant question then is whether it is “in the interests of justice” that the Report and submissions be lately admitted. The question is where the interests of justice lie on this application.
If the medical dispute were to proceed to an assessment pursuant to the resolution of a medical assessment matter, the insurer has an assumed advantage if the Report’s finding were to be mirrored in that assessment. Conversely, if it were not to proceed to a medical assessment, the scales may be inappropriately weighted in favour of the claimant in what may ultimately turn out to be a higher award of total damages than that to which the claimant may be properly entitled. In this way, the insurer’s and claimant’s competing assumed advantages are commensurate. This consideration therefore does not advance the matter much, and indeed, it would be incorrect to consider the matter in this way.
As I am not charged to adjudicate on the merits of the medical assessment dispute, the more appropriate course is for me to resist the temptation to consider the likely outcome of any medical assessment matter and consider the interests of justice by reference to more neutral factors pertinent to the statutory scheme in which I am exercising my discretion to grant or not grant an adjournment. This is not to say that the interests of justice properly considered are unrelated to the interest of one party or another or the findings in the Report. I have considered them.
Section 7.20 of the MAI Act permits either party to the dispute, the court, the Commission, or a merit reviewer to refer a medical dispute about a claim to the President for assessment under Division 7.5 of the MAI Act. It is only the referral under this provision by the claimant that is tethered by s 7.19(1) of the MAI Act, and the requirement of an internal review. The insurer is not so restrained, and indeed has not been since receipt of the Report.
As I am satisfied that the Report raises a “medical dispute”, the question is whether the interest of justice favour it being formally available to inform me of that fact, so as to permit me to consider whether to grant the adjournment sought to allow the insurer the opportunity to make the application for the determination of a medical assessment dispute.
Shortly stated, the interests of justice do favour me taking the report into account on this application.
The insurer, although belatedly, and arguably inconsistently with its duty under s 6.4 of the MAI Act, has raised a medical dispute amenable to determination under Division 7.5 of the Act. Section 4.12 requires 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. It cannot be the statutory intention that the interests of justice contemplated by s 67(4) of the PIC Act could properly operate to restrict me considering that application so as to stifle that right. I am satisfied that the interests of justice favour the late documents’ admission so that I might be formally apprised of this matter in my consideration of the insurer’s application. This is especially so given the history of this application as detailed in my 19 May and 31 May determinations.
In the absence of an assessment under Division 7.5, damages for non-economic loss cannot be awarded: s 4.12(1) of the MAI Act. Dr Bruce’s report does not fulfil that requirement as it was not a report arranged by the President in accordance with s 7.20 of the MAI Act. Apprised of the dispute, the matter must be determined in accordance with Division 7.5 of the MAI Act to proceed. The matter must be adjourned, and the medical assessment matter referred to the President under s 7.20 of the MAI Act.

CONCLUSION

Accordingly, the proceeding is stood over to 9 December 2022 at 9.30am for a preliminary teleconference to permit the insurer the opportunity to make an application for the determination of a medical assessment matter. This adjournment is (as with the case for all adjournments) subject to the approval of the Division Head.
The parties have liberty to apply to me on the Portal should the matter need to be restored to me sooner or later.

[2022] NSWPIC 582

25 August 2022