Hasoon v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 230
•12 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Hasoon v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 230 |
| CLAIMANT: | Wameidh Hasoon |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 12 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 23 July 2022; the medical dispute related to whether the claimant sustained non threshold physical injuries; a previous Medical Assessor (MA) found that the claimant suffered a non-threshold psychological injury; that medical assessment was not the subject of review and accepted by the insurer; MA found that the claimant suffered threshold physical injuries; review filed by claimant against that assessment; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; present review application restricted to threshold dispute which was no longer in issue; claimant submitted that insurer may change its mind and bring a further application; any further application would need to establish that the claimant never had a non-threshold psychological injury; Lynch v AAI Ltd applied; claimant’s submissions speculative in circumstances where insurer had accepted the non-threshold medical assessment; insurer’s obligation to act in good faith; no medical dispute and no basis that this will change; Insurance Australia Ltd v Mangogna distinguished; observation that a subsequent application by the insurer for a further assessment would be a basis for the claimant to reconsider this decision; Held – the application to review the medical assessment dismissed as frivolous and/or vexatious. |
| DETERMINATIONS MADE: | 1. The application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act, 2020 as frivolous and/or vexatious. |
REASONS
BACKGROUND
There is presently an application for review of a medical assessment before a Medical Review Panel. That Review Panel has requested that the review be dismissed. The application for summary dismissal was referred to me.
For the following reasons the review of the medical assessment is summarily dismissed.
Mr Wameidh Hasoon (the claimant) alleges that he suffered physical and psychological injuries in a motor accident on 23 July 2022.
The insurer is liable to pay to Mr Hasoon any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant commenced proceedings in the Personal Injury Commission (Commission) seeking findings that he sustained non-threshold injuries. Pursuant to Schedule 2, cl 2 of the MAI Act this is a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The medical assessment of the physical injuries was referred to Medical Assessor Kenna who issued a Medical Assessment Certificate dated 15 November 2023 (the medical assessment). In respect of the physical injuries, the Medical Assessor found that the motor accident caused soft tissue injuries to the cervical, thoracic and lumbar spines and both shoulders which were threshold injuries.
The claimant sought a review of the medical assessment.
In a separate medical assessment certificate dated 3 October 2023, Medical Assessor Chew concluded that the motor accident caused a non-threshold psychological injury (the medical assessment for the psychological injury). Medical Assessor Chew found that the motor accident caused an exacerbation of a persistent depressive disorder.
The insurer did not seek a review of the medical assessment for the psychological injury. It has accepted that the claimant has suffered a non-threshold psychological injury caused by the motor accident and issued a notice dated 17 January 2024 accepting liability for the payments of statutory benefits after the 26-week period.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April
2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury. References to “minor injury” in these reasons can be interchanged with “threshold injury”.
THE REVIEW
An application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
The Panel met and subsequently issued a direction which requested submissions from the parties as to why the application should not be dismissed in light of the medical assessment certificate issued by Medical Assessor Chew.
The parties provided separate submissions dated 2 April 2024.
The insurer submitted that there was no medical dispute, and it has accepted liability for the payment of statutory benefits after the 26-week period.
The claimant maintained that the application should be reviewed by the Panel. It noted the decisions of David v Allianz Australia Insurance Ltd[3] and Lynch v AAI Ltd[4] but submitted:
“However, were the insurer to lodge an application for further assessment at some stage in future, it would be open to a medical assessor to disagree with the findings of Assessor Chew, including whether at any time the Claimant suffered from a non-threshold injury. The Claimant’s solicitor has seen this occur with this insurer in other matter s, to the detriment of the Claimant.”
[3] [2021] NSWPICMP 227
[4] [2022] NSWPICMP 6 (Lynch).
The claimant noted that its submissions may change if the insurer provided an irrevocable undertaking regarding an acceptance of liability for the Claimant’s injuries”.
PANEL’S RECOMMENDATION
The matter has been referred by the Panel to me for determination. On 4 April 2024 the parties were advised that the issue of summary dismissal had been referred to me. I then provided the parties with a further seven days to make any further submissions.
No submissions were received in response to this direction.
FINDINGS
Section 54 of the Personal Injury Commission Act, 2020 (PIC Act) applies to panel review proceedings[5] and relevantly provides that proceedings may be dismissed if:
“(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
[5] See Rule 127 (1)(d) of the PIC Rules.
Rule 77(b)(ii) and (iii) of the Personal Injury Commission Rules (the PIC Rules) provides that s 54(c) of the PIC Act applies to motor accidents legislation when:
“(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii) the applicant has failed to prosecute the proceedings with due dispatch.”
Rule 77 is not relevant to this determination.
Rule 127(3) of the PIC Rules provides that the function of the Commission under s 54 of the PIC Act is given to the President.
Table B of the delegated functions provides that the function under Rule 127(3) is delegated to various persons including a Principal Member.
The principles of summary dismissal are discussed in Insurance Australia Ltd v Fayed[6] and those principles are repeated in these reasons. It is sufficient to repeat that a “strike out” (dismissal) application is exercised sparingly and in circumstances where the claimant’s case is taken at its highest.
[6] [2023] NSWPICMP 413.
The insurer has now accepted that the claimant has sustained a non-threshold psychological injury. The claimant need only establish a non-threshold injury of any type to obtain ongoing statutory benefits and pursue a claim for common law damages.[7]
[7] See s 3.11, 3.28 and 4.4 of the MAI Act.
Accordingly, there is no longer a medical dispute as to whether the claimant suffered an injury not defined as a threshold injury.
As is noted, the claimant was found by Medical Assessor Chew to have sustained a non-threshold psychological injury. That finding is accepted by the insurer.
In Lynch the Panel noted:[8]
“The timing of when radiculopathy can occur was considered in the context of non-minor injury in David v Allianz Australia Insurance Ltd[9]. The Panel, for the reasons expressed therein, concluded that radiculopathy was satisfied if it was present at any time. We adopt those reasons insofar as they are relevant to the issue of when the psychiatric diagnosis is made.
The only difference in determining the relevant time for the diagnosis of psychiatric injury is that clauses 5.10 and 5.11 direct attention to the condition being ‘present’. However, clause 5.11 states that the diagnosis must be made under DSM-5. DSM-5 provides for a diagnosis of a major depressive disorder which can be described as either in partial remission or full remission depending on the circumstances of the improvement in the condition.[10] That diagnosis, made pursuant to DSM-5, describes a past condition which satisfied a diagnosable psychiatric condition. Further, for the reasons discussed in David, the diagnosis does not have to be made by a Medical Assessor and can be made by a treating doctor (clause 5.5).
That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed.”
[8] Lynch at [70]-[72].
[9] [2021] NSWPICMP 227 at [84]-[104] (David).
[10] DSM-5, p 188.
The claimant submitted that the insurer’s acceptance that he had sustained a non-threshold injury could be changed if it pursued an application for a further assessment.
The insurer may only file a further application pursuant to s 7.24(2) of the MAI Act if it is able to show “additional relevant information about the injury”.[11] That additional information would require the insurer to establish that the claimant never suffered from a non-threshold psychological injury.
[11] See cl 13 of the Motor Accidents Regulations 2017.
It is otherwise unclear and in what circumstances the claimant’s solicitor “has seen this occur with this insurer in other matters” and whether those unknown matters are analogous to the present matter where there has been a determination by a Medical Assessor.
The suggestion that the insurer could undertake that path in this matter is speculative in circumstances where the insurer has not indicated, and it has no basis to presently make a further application.
This is different from the situation identified in Insurance Australia Ltd v Mangogna[12] where the insurer indicated that it intended to seek a further application of previous Medical Assessor of non-threshold psychological injury in circumstances where that finding was dependent upon the issue of whether the motor accident caused physical injury and the insurer disputed physical injury caused by motor accident.
[12] [2023] NSWPICMP 509.
The insurer has a statutory obligation to act in good faith in connection with the claim.[13] Accordingly, I accept the insurer’s concession and the actions it has taken in accepting the claimant’s ongoing entitlements.
[13] Section 6.3 of the MAI Act.
If the insurer subsequently attempts to make an application for a further assessment, the parties can assume that this would be a basis for an application by the claimant for reconsideration of this decision pursuant to s 57 of the PIC Act.[14]
[14] These reasons are given as a Principal Member of the Commission under the delegated functions as opposed to reasons provided by a Review Panel.
There is presently no medical dispute that the claimant has suffered a non-threshold injury and there is no basis that this will change. The maintenance of these proceedings is frivolous and/or vexatious as they achieve no purpose.
Further, allowing the proceedings to continue is contrary to the objects in s 3 of the PIC Act which requires the Commission to “resolve the real issues in proceedings justly, quickly, cost effectively and with a s little formality as possible”. The ongoing maintenance of these proceedings where there is no dispute wastes costly and scarce resources where the Review Panel can otherwise be utilised in determining medical disputes which are the subject of a proper dispute.
The review proceedings are dismissed pursuant to s 54 of the PIC Act.
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