GIO v Meneses
[2022] NSWPICMR 37
•23 June 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | GIO v Meneses [2022] NSWPICMR 37 |
| CLAIMANT: | Felipe Meneses |
| INSURER: | GIO |
| MERIT REVIEWER: | Maurice Castagnet |
| DATE OF DECISION: | 23 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Merit review; application made by insurer under schedule 2, clause 1(x) of the Motor Accident Injuries Act 2017 (2017 Act); whether for the purpose of section 6.24 of the 2017 Act a request made of the claimant is reasonable or whether the claimant has a reasonable excuse for failing to comply; the request was for the claimant to attend a medical examination; psychometric evaluation; application misconceived; Held – the Personal Injury Commission has no jurisdiction to determine the application. |
| DETERMINATIONS MADE: | Certificate Issued under section 7.13(4) of the Motor Accident Injuries Act 2017 This merit review application was made by the insurer under Schedule 2, cl (1)(x) of the Motor Accidents Injuries Act 2017 seeking a determination of whether, for the purpose of s 6.24 of the Act, a request made of the claimant is reasonable or whether the claimant has a reasonable excuse for failing to comply. 1. Pursuant to sub-s 54 (b) and (c) of the Personal Injury Commission Act2020 and rule 77(b)(iv) of the Personal Injury Commission Rules 2021, the application is dismissed. 2. Legal costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation is $1,881 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
In this merit review application, the insurer seeks a determination under Schedule 2, cl (1)(x) of the Motor Accident Injuries Act2017 (the MAI Act), of whether, for the purpose of s 6.24 of the MAI Act, a request made of Felipe Meneses (the claimant) is reasonable or whether the claimant has a reasonable excuse for failing to comply.
The request made of the claimant by the insurer was to submit himself to a psychometric evaluation. The purpose of the request was to enable the insurer to determine whether an assessment of the degree of permanent impairment of 18%, made by its own expert psychiatrist, Dr Graham George can either be validated or discredited.
For reasons that follow, the application must be dismissed.
BACKGROUND
The claimant is a 38-year-old man who suffered injuries in a motor accident on 19 June 2018 when his stationary vehicle was rear-ended by the insured vehicle.
The claimant claims to have suffered a head injury and injuries to his neck, shoulders, and lower back in the motor accident. The claimant claims that he has, since the accident, developed a psychological injury.
The claimant made a claim for common law damages.[1] On 20 August 2020, the insurer accepted liability for the claim. The issues that remain in dispute between the parties is the extent of the claimant’s damages for non-economic loss and whether the claimant’s degree of permanent impairment is greater than 10% for the purpose of damages for non-economic loss.
[1] The Personal Injury Commission (the Commission) is unaware of the date of the claim as neither party has provided the Commission with this information.
On 14 April 2021, the claimant was assessed by Dr George on behalf of the insurer for his psychological injury. This included an assessment of the claimant’s whole person impairment for the purpose of ascertaining whether the degree of permanent impairment is greater than 10%.
On 27 April 2021, the insurer received the report of Dr George dated 26 April 2021. In that report, Dr George expressed the opinion that the claimant’s permanent impairment gave rise to a whole person impairment of 18%.
On 11 May 2021, the insurer wrote to Dr George requesting a supplementary report. The insurer provided Dr George with the reports of orthopaedic surgeon, Dr John Bentivoglio dated 27 April 2021 and the report of occupational physician, Dr Andrew Keller dated 25 April 2021.
In that letter, Dr George was asked to confirm whether the contents of the reports of Dr Bentivoglio and Dr Keller altered his opinion. Dr George was also asked to re-confirm his opinion in regard to the contents of Mr Alexander’s clinical notes (the claimant’s treating psychologist) previously provided to him and prior to the issue of his report of 26 April 2021.
In a further report of 16 May 2021, Dr George made the following comments:
“It is noted that the general conclusion in the reports [2] submitted was that his musculoskeletal disorder should have settled within a 3–6 month period.
You have then indicated, “In our letter of instruction, we have drawn your attention to an entry in the records of Christopher Alexander, treating psychologist, who noted on 5 December, a disclosure that he had come from a family where domestic violence was prevalent and that the possibility that he was raped at age 16, commenting that there may have been more extensive trauma and history of mental health than first thought. In your supplementary report, would you also kindly confirm whether you also obtained a similar history and/or whether that history alters your opinion.”
I do not believe that these matters were volunteered on the day of my assessment. History of this kind suggests pre-existing trauma and probable post-traumatic stress disorder.
The level of impairment from a psychiatric viewpoint given the nature of the musculoskeletal injuries as set down by both Dr Bentivoglio and also, Dr Keller suggest that in this case a psychometric evaluation should take place…
I believe that if a psychometric evaluation took place… my conclusions would either be validated or discredited. Beyond making these comments, I cannot add anything further.”
[2] The reports of Dr Keller and Dr Bentivoglio.
On 19 May 2021, the claimant served the report of psychiatrist, Dr Peter Anderson, dated 22 April 2021. Dr Anderson’s assessment of the claimant’s whole person impairment was 16%. In reliance on the report of Dr Anderson, the claimant requested the insurer to concede that he is entitled to damages for non-economic loss.
On 31 May 2021, the claimant lodged an application with the Personal Injury Commission (the Commission) pursuant to s 7.32(1) of the MAI Act, referring his claim for damages for assessment. This application had to be lodged by 19 June 2021, that is, within three years of the date of the accident, in order to conform with the requirements of section 7.33 of the MAI Act.
On 2 June 2021, the insurer replied to the claimant’s request for the insurer to concede the permanent impairment threshold, stating the following:
“In order to make a decision, we require further information. Dr George has recommended psychometric evaluation and we are in the process of making those arrangements. Once we are in receipt of that evaluation, we will seek a supplementary report from Dr George and respond to your request to concede that your client’s degree of impairment is greater than 10%.”
Subsequently, the insurer advised the claimant that a psychometric evaluation had been arranged with Dr Vanitha Moodley on 6 September 2021.
On 7 June 2021, the claimant advised the insurer of his preliminary view that there was no basis for him to be subjected to a psychometric evaluation.
On 22 July 2021, noting the objection to the psychometric evaluation, the insurer advised the claimant that it did not concede the permanent impairment threshold. With this letter, the insurer “disclosed” the two reports of Dr Graham George dated 26 April 2021 and 16 May 2021 respectively.
On 10 August 2021, the claimant requested an internal review of the insurer’s decision.
On 16 September 2021, the insurer wrote to the claimant drawing his attention to the provisions of s 6.27 of the MAI Act. The insurer advised the claimant that as a result of his unreasonable refusal to undergo the requested evaluation, it is unable to progress the matter and that consequently, it will rely upon s 6.27(4) of the MAI Act to assert that the claim cannot be referred for assessment under Division 7.6 and any such assessment cannot be continued while the failure continued.
On 27 September 2021, the claimant lodged an application with the Commission for a medical assessment of his degree of permanent impairment of his psychological injury. The insurer lodged its reply on 21 October 2021. The claimant’s application was accepted by the Commission and was referred to an assessment which is due to take place in July 2022.
The claimant’s application for assessment of damages is currently in the stood over list with the Commission pursuant to cl 10(a) of Procedural Direction MAI 1, pending the conclusion of the medical assessment dispute.
DOCUMENTS CONSIDERED
In making my determination, I have considered the documents and submissions provided to the Commission by the insurer in its application and by the claimant in his reply, the late documents lodged by the insurer on 29 November 2021 and the insurer’s further submissions dated 14 January 2022.
THE INSURER’S SUBMISSIONS
The insurer says as a consequence of Dr George’s report of 16 May 2021, it requested the claimant to undergo a psychometric evaluation so that it can make a decision whether it would concede the threshold for the degree of permanent impairment.
The insurer submits that Dr George’s comments[3] in his report, after having read the reports of Dr Bentivoglio and Dr Keller, raise doubts about the extent of the claimant’s psychiatric impairment.
[3] As quoted in paragraph 16 in these reasons.
The insurer submits that it was entirely reasonable for the reports of Dr Bentivoglio and Dr Keller to be provided to Dr George with a request for a supplementary report because their reports came to hand after Dr George issued his initial report. The request was not suggestive or coercive of a particular outcome.
The insurer submits that in circumstances where the claimant’s degree of permanent impairment was assessed by Dr George as being greater than a 10% whole person impairment, before conceding such position, it was appropriate that the insurer first ensure that the basis upon which Dr George had made that assessment was in fact sound.
The insurer submits the request made of the claimant to undergo a psychometric evaluation fall within s 6.24 (1) of the MAI Act in so far as the insurer requires the claimant to co-operate fully in respect of the claim, for the purpose of giving the insurer sufficient information to be satisfied as to the validity of the claim (that is, for psychiatric impairment) and to be able to make an informed offer of settlement in a claim for damages.
Having regard to s 6.24 (3), the insurer submits that the request was reasonable.
The insurer submits that the requirements of s 6.27 (1) of the MAI Act also provides that a claimant must comply with a request, among other things, to undergo a medical or other health related examination by one or more health practitioners nominated by the insurer, not being an examination that is unreasonable, unnecessarily repetitious, or dangerous.
The insurer submits that the proposed psychometric evaluation is clearly not unnecessarily repetitious or dangerous.
THE CLAIMANT’S SUBMISSIONS
Section 6.24 of the MAI Act sets out a claimant's duty to co-operate with the insurer.
Section 6.24(1) focuses on the claimant supplying "sufficient information" or "specified information" to the insurer.
Section 6.24(2) refers to "specified information" or "specified documents or records” as well as a photograph and evidence as to the identity of the claimant.
Section 6.24(3) provides a set of criteria against which to judge the reasonableness of the request (for information) that includes whether the "information" sought is "sufficiently specified".
The only penalty provided in s 6.24(4) for a failure to comply with the duty to co-operate is that in the event of a failure to comply, court proceedings cannot be commenced in respect of the claim while the failure continues.
As the insurer has fully admitted liability, the determination of a Member of the Commission as to damages would be binding on the insurer. The only circumstances in which there could be court proceedings would be if the insurer could somehow secure a discretionary exemption or if the claimant sought to rehear the member’s assessment of damages.
The claimant has not, does not seek to, and will most likely never seek to commence court proceedings.
The words "medical examination" appear nowhere within s 6.24. The insurer has not sought any "specified information" from the claimant. Rather, the insurer seeks to have the claimant attend a psychologist for psychometric testing.
Turning to s 6.27, that section addresses "medical and other examination of the claimant". Sub-s 1 provides that a claimant must comply with a request by an insurer to undergo a medical or other health related examination provided the examination or assessment is not "unreasonable, unnecessarily repetitious or dangerous".
Sub-s 4 provides the penalty for failure to comply with the obligation to undergo a medical or other health related examination. If the claimant fails without reasonable excuse to comply, there are three stipulated penalties applicable, being:
a) The claim cannot be referred for assessment under Division 7.6 and any such assessment cannot be continued while the failure continues, and
b) Weekly payments of statutory benefits under Division 3.3 are suspended for any period during which the failure continues, and
c) Court proceedings cannot be commenced or continued in respect of the claim while the failure continues.
None of the foregoing penalty provisions of s 6.27(4) are of immediate application to the claimant.
The claimant has lodged an application for assessment of damages under Division 7.6. However, the claimant has asked that this application be placed on hold pending determination of his medical assessment dispute. When the claimant does ask the Commission to refer the claim for assessment, it will be a decision firstly for the Registry and then for any Member allocated to assess the damages claim to determine whether the matter should be referred for assessment and whether the assessment can continue if the insurer asserts a breach of s 6.27 by the claimant.
There is no power within Schedule 2(1) for a merit reviewer to determine whether a claimant is in breach of any obligations under s 6.27 in relation to an insurer's requests that a claimant undergo medical examination. The claimant submits that this merit review application by the insurer is entirely misguided. The claimant submits that the request that he undergo psychometric testing is not a request for "information" within the scope of s 6.24.
LEGISLATION
In making my decision, I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017 (the Regulation), and
· Motor Accident Guidelines 2022 (Version 8.2) (the Guidelines).
It is appropriate to set out in full the legislative provisions to which the application refers.
Section 6.24 provides:
“6.24 Duty of claimant to co-operate with other party
(1) A claimant must co-operate fully in respect of the claim with the other party to the claim (being the insurer on the claim or, if there is no insurer, the person against whom the claim is made) for the purpose of giving the other party sufficient information--
(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim, may be fraudulent, and
(b) to be able to make an early assessment of liability, and
(c) to be able to make an informed offer of settlement in the case of a claim for damages.
(2) In particular, the claimant must comply with any reasonable request by the other party--
(a) to furnish specified information (in addition to the information furnished in the claim) or to produce specified documents or records, or
(b) to provide a photograph of and evidence as to the identity of the claimant.
(3) The reasonableness of a request may be assessed having regard to criteria including the following--
(a) the amount of time the claimant needs to comply with the request,
(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,
(c) the amount of information which has already been supplied to or is available to an insurer to enable liability and quantum of loss to be assessed and an offer of settlement made,
(d) how onerous it will be for the claimant to comply with the request,
(e) whether the information is privileged,
(f) whether the information sought is sufficiently specified,
(g) the time of the request and whether the claimant will be delayed in commencing proceedings for damages by complying with the request.
(4) A duty under this section in respect of a claim for damages applies only until court proceedings are commenced in respect of the claim but if the claimant fails without reasonable excuse to comply with this section, court proceedings cannot be commenced in respect of the claim while the failure continues.”
Section 6.27 provides:
6.27 Medical and other examination of claimant (cf s 86 MACA)
(1) A claimant must comply with any request by the insurer—
(a)to undergo a medical or other health related examination by one or more health practitioners nominated by the insurer, or
(b) to undergo a rehabilitation assessment or an assessment to determine attendant care needs by a qualified person nominated by the insurer, or
(c)to undergo an assessment to determine functional and vocational capacity (including pre-accident or post-accident earning capacity) by a qualified person nominated by the insurer, or
(d)to undergo an assessment in accordance with the Motor Accident Guidelines, not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.
(2) Any such examination or assessment is at the cost of the insurer. The claimant may decline to undergo the examination or assessment unless the insurer pays
the claimant a reasonable sum to meet the reasonable and necessary costs and expenses incurred by the claimant in connection with the examination or assessment.
(3) A claimant must comply with any request by the Commission to undergo a medical or other health related examination or an assessment by a medical assessor for the purposes of Division 7.5.
(4) If the claimant fails without reasonable excuse to comply with a request under this section—
(a)the claim cannot be referred for assessment under Division 7.6 and any such assessment cannot be continued while the failure continues, and
(b)weekly payments of statutory benefits under Division 3.3 are suspended for any period during which the failure continues, and
(c)court proceedings cannot be commenced or continued in respect of the claim while the failure continues.
(5) …
(6) …
DISCUSSION
Under Schedule 2(i)(x) of Schedule 2 of the MAI Act, the Commission has jurisdiction to determine whether for the purpose of s 6.24, the request made of the claimant is reasonable or whether the claimant has a reasonable excuse for failing to comply.
The insurer contends that the request falls within the ambit of s 6.24(1) because the claimant has a duty to co-operate with the insurer in respect of his claim for damages. The purpose of the medical examination is to provide the insurer with sufficient information to determine the validity of the claimant’s psychiatric impairment and to be able to make an informed offer of settlement in a claim for damages.
For the reasons that follow, I do not accept this submission.
According to s 6.24(1) the claimant’s duty is to co-operate with the insurer in respect of his claim by giving the insurer sufficient information to:
(a) be satisfied as to the validity of the claim and, in particular to assess whether the claim or any part of the claim may be fraudulent.
(b) Be able to make an early assessment of liability.
(c) Be able to make an informed offer of settlement for the claim for damages.
In my view, it is apparent from sub-ss 6.24(2) and 6.24(3) that “sufficient information” means the provision of particulars, documents or records.
In my view, s 6.24 is not concerned with whether or not it is reasonable for the claimant to comply with a request by the insurer to attend a medical examination. A request to attend a medical examination is not a request to provide information, documents or records.
However, s 6.27 of the MAI Act deals specifically with the insurer’s request which is in issue in this application. It provides, amongst other things, that a claimant must comply with any request by the insurer to undergo a medical or other health related examination by one or more health practitioners by the insurer.
Section 6.27(4) provides for the consequences if the claimant fails to comply with such request without a reasonable excuse. None of these consequences permit the insurer to seek a determination from a merit reviewer of the Commission under Schedule 2 of the MAI Act.
As indeed acknowledged by the insurer in a letter to the claimant on 16 September 2021, it would rely on s 6.27(4) of the MAI Act to assert that the claim cannot be referred for assessment under Division 7.6 and any such assessment cannot be continued while the failure continued. That challenge can only be determined by the member of the Commission who is assigned to conduct the assessment.
I note that the claimant has complied with the insurer’s requests to attend the insurer’s medical examinations with Dr George, Dr Bentivoglio and Dr Keller.
The insurer’s request which is in issue in this application, was for the claimant to submit himself to a psychometric evaluation by Dr Woodley for the purpose of Dr George to either “validate or discredit” his assessment of permanent impairment of 18%.
The claimant declined to attend the examination. The insurer has subsequently confirmed that it does not concede the permanent impairment threshold.
The claimant has since referred the matter as a medical dispute to the Commission. The referral of the dispute for assessment has been accepted by the Commission.
Ultimately, the medical assessor of the Commission may decide whether the claimant should undergo a psychometric evaluation as part of the medical assessment process.
In the circumstances, I find that the application is misconceived. The Commission does not have jurisdiction under Schedule 2(1)(x) of the MAI Act to determine the application. The application must be dismissed.
COSTS
According to Schedule 1, Part 1, cl 1 of the Regulation, the claimant is entitled to his legal costs for this merit review matter to the maximum of 16 monetary units. This currently equates to $1,710 plus GST.
The claimant made an application for exceptional costs, but that application was withdrawn during the course of the proceedings.
There is no reason why the claimant should not be allowed the maximum regulated costs.
CONCLUSION
Pursuant to sub-ss 54 (b) and (c) of the Personal Injury Commission Act 2020 and rule 77(b)(iv) of the Personal Injury Commission Rules 2021, the application is dismissed.
Legal costs: The amount of the claimant’s costs assessed in accordance with the Regulation is $1,881 inclusive of GST.
0
0
0