Insurance Australia Ltd v Edward
[2021] NSWPICMP 207
•2 November 2021
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Ltd v Edward [2021] NSWPICMP 207 |
| CLAIMANT: | Anthony Edward |
| INSURER: | Insurance Australia Ltd |
| REVIEW PANEL: | Principal Member John Harris Dr Shane Moloney |
| DATE OF DECISION: | 2 November 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- The Claimant was assessed by a medical assessor (MA) in March 2021 at greater than 10% permanent impairment under the Motor Accidents Compensation Act 1999 (MAC Act); the President’s delegate referred the medical assessment to a Review Panel; a preliminary issue arose concerning the admission of material on the Review that was not before the original MA; the documentation included surveillance material that had been served immediately prior to the medical examination and was then rejected; the matter was referred to the Review Panel in October 2021 when the Claimant objected to the material being admitted on the review; Held – the interests of justice favoured the admission of the material; despite the insurer’s delay in providing the material, the evidence was relevant and had been in the Claimant’s possession for eight months; discussion concerning the differences between reviews under the motor accidents legislation and medical appeals in the workers compensation legislation; Sleiman v Gadalla Pty Ltd applied; claimant’s submission that material be rejected because the insurer could file a further review considered to be inconsistent with the objects of the Commission and an inefficient waste of resources; the Claimant’s prejudice by the admission could be cured by allowing time to file evidence in reply. |
| ORDERS MADE: | 1. The documentation referred to in the insurer’s letter dated 22 October 2021 is admitted in the Review. 2. The Claimant is to file and serve its bundle of documents relied upon in the Review, by close of business, 17 January 2022. 3. Either party has liberty to immediately raise with the Panel whether there is objection to the proposed timetable which is limited to the admission of further evidence by the Claimant only. 4. The Review Panel will reconvene on 4 February 2022 in the absence of the parties. Further directions as to the progress of the matter will be made at that time including notification to the Claimant of any further examination. |
STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT
Background
Mr Edward suffered injury in a motor accident on 5 March 2017.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Edward any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the Act.
Mr Edward was assessed by Medical Assessor Wallace on 9 March 2021 and provided a medical assessment dated 29 March 2021. Medical Assessor Wallace assessed
Mr Edward’s permanent impairment caused by the motor accident as greater than 10%.
The present application is a review of a medical assessment pursuant to s 63 the MAC Act.
This procedural decision involves material and surveillance that was served by the insurer in a letter dated 2 March 2021. That material was not provided to Medical Assessor Wallace.
On 27 April 2021 the Proper Officer of the Personal Injury Commission (the Commission) stated that there was no authority to provide the further materials to the Medical Assessor as the decision “has been communicated”.
The Proper Officer provided further comments by letter dated 3 May 2021. It was then noted that the late provision of the further materials meant that the Claimant was not provided an opportunity to respond, and the Medical Assessor did not have sufficient time to view the further materials.
The application for referral of a medical assessment to a Review Panel was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 63(7) of the Act.
On 23 July 2021, the delegate of the President 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.[3]
[3] Section 63(2B) of the Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, clause 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two medical assessors and a member of the Motor Accidents Division of the Commission.
CONDUCT OF THE REVIEW
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a merit reviewer or a medical assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
On 19 October 2021 the Panel issued a Direction to the parties which required respective bundles of documents to be filed.
The purpose of what has become a standard direction is to avoid problems of procedural fairness and error by a review panel not considering the entire documents. It otherwise enables the parties to know exactly what a review panel is examining.
On 22 October 2021 the insurer’s legal practitioners advised the Claimant’s legal practitioner’s that it will “submit the further submissions dated 2 March 2021, surveillance footage and clinical records for consideration by the Review panel, in the interests of justice”.
On that day the insurer’s legal representatives filed its bundle of documents in the Commissions’ portal. Incorrectly addressing the letter to the State Insurance Regulatory Authority and for the attention of the “SIRA Review Panel”, the insurer stated:
“The Insurer respectfully submits that the Review Panel consider the following evidence, which had not been forwarded to Assessor Wallace (for procedural reasons) at the time of the of the original medical assessment.”
The letter referred to eight discrete categories of documents and material, two of which relate to surveillance footage over periods in July and December 2020. The letter noted that the documents and footage should be considered in the interests of justice and that it “provides an accurate description of the Claimants capabilities”. It concluded that the Claimant was provided with the documents and the surveillance in March 2021.
By letter dated 26 October 2021 the Claimant adopted the same inaccuracy as the insurer by addressing the correspondence to the “SIRA Review Panel”. The Claimant opposed the inclusion of the eight discrete categories of documents and surveillance and stated:
“The Insurer has provided a copy of the Direction of the Proper Officer dated 3 May 2021 disallowing the inclusion of this material before the Medical Assessor.
The Claimant was not aware that the insurer would be relying on this material in its Review application. It was assumed by the Claimant that the insurer would not seek to admit new evidence in its Review application, particularly in circumstances where the insurer did not reference this material in its Review submissions. The Claimant was first notified of this intention on 22 October 2021 at 3.04 pm, or two business days ago. The Claimant is taken by surprise, especially [in] light of the decision of the Proper Officer of 3 May 2021.
The Claimant maintains that this new evidence ought not to be admitted. The insurer can lodge an application for further assessment, if necessary, when the Review process has run its course.
The Claimant humbly submits that the function of the Review Panel is to determine whether the Medical Assessor erred on the evidence before him. Respectfully, it is not an opportunity for the insurer to have an assessment conducted on the basis of new evidence it failed to put before the Medical Assessor. To allow this material in will deprive both the Medical Assessor and the Claimant of procedural fairness.
The Claimant otherwise relies on the submissions already provided to his Reply.”
The Panel convened on 29 October 2021 and determined to admit the further material on Review subject to Mr Edward having a reasonable period to provide evidence in response. These are our reasons for admitting the material.
We accept that the further evidence was served in March 2021 and was not forwarded to the Medical Assessor. A brief perusal of the further material shows that it is relevant to the matters in dispute.
A Review Panel does not determine “error” by the original medical assessor. Once the matter is referred to a Review Panel, it is a new assessment on all matters of which the medical assessment is concerned: s 63(3A) of the MAC Act.[6] The Claimant’s submissions confuse reviews under the motor accident legislation with appeals against medical panels under the workers compensation legislation. The concept of establishing error in the workers compensation scheme is set out in s 327(3) and (d) of the Workplace Injury Management and Workers Compensation Act 1998. There is no similar provision in the motor accidents legislation when the matter is before a review panel.
[6] See Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 (Rutland) at [18].
Some of the differences between the two schemes were discussed by the Court of Appeal in Sleiman v Gadalla Pty Ltd[7].
[7] [2021] NSWCA 236 at [34] per Leeming JA, Gleeson and Payne JJA agreeing.
There is no requirement, as the Claimant submitted, that the Panel afford the original medical assessor “procedural fairness”. That submission is irrelevant to this determination.
We accept that the Claimant must be accorded procedural fairness. As the Panel is required to conduct a new assessment, there is often the need for a further examination, or the claimant given an opportunity to respond to the insurer’s submissions: Rutland.[8]
[8] At [45].
We observe that the insurer’s conduct in submitting the further material immediately prior to the original medical assessment and then complaining because the Commission did not immediately address the issue, shows the unsatisfactory practice that has developed in medical assessment matters. The late admission of evidence inevitably leads to objections, delays and inherent inefficiencies caused by subsequent applications. The present case is an example of the problems caused by the late tender of materials.
The Panel accepts that it is required to provide procedural fairness to Mr Edward. We also agree that a review is not a means for the parties to prepare their cases. However, the present application involves evidence which was served in March 2021. The Claimant is hardly taken by surprise that the insurer would seek to rely on this evidence in the review.
It is unfortunate that the legal practitioners were advised in late July 2021 that the review was proceeding to a Review Panel and did not discuss the present issue until late October 2021. There is nothing before us indicating any communications between the legal practitioners as to the material that should be before the Panel until after the Direction was issued in October.
The Claimant submitted that the “insurer can lodge an application for further assessment, if necessary, when the Review process has run its course”. That submission is rejected. That process would involve an inefficient waste of resources in convening a panel whose decision would then be subject to further review. The submission is contrary to the objects of the Commission set out in the PIC Act which require the Commission “to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[9]
[9] Section 3 of the PIC Act.
The submission does not appreciate that Review Panels are an expensive process in determining disputes under the MAC Act and the Motor Accident Injuries Act 2017. The suggestion that another panel be subsequently convened represents a lack of appreciation as to the time and cost involved by the Commission in implementing these procedures.
It is likely that Mr Edward will be examined in person by at least one, and possibly both medical assessors of the Panel because the dispute includes disagreement on
Mr Edward’s range of motion. Fairness would require that Mr Edward be given an opportunity to respond to the insurer’s submission that he displays range of movement “without any restrictions”.[10]
[10] Insurer’s submissions, 2 March 2021, [23].
The Panel will allow Mr Edwards over two months to prepare his evidence in response to the insurer’s further evidence. We believe that this is ample time to cure any suggestions of a denial of procedural fairness. If this time is not sufficient, then the Claimant will require clear evidence why he requires further time to prepare a case in response.
The admission of further evidence in response is not intended to allow the insurer time to undertake further investigations. The matter is presently before the Panel. The legal profession is on notice that Review Panels cannot efficiently undertake their function of assessing medical disputes if the legal profession believe that these procedures are an opportunity to adduce further evidence. In that respect, we agree with that part of the Claimant’s submission that a review “is not an opportunity for the insurer to have an assessment conducted on the basis of new evidence”.
If the insurer thinks otherwise and asserts that it has the right to file further evidence, then it should immediately exercise the liberty we have afforded to the parties as set out in the orders. The present delay is at least partly attributable to the insurer’s previous delay in filing material immediately prior to the original medical assessment.
Despite our criticisms of the insurer’s original delay, this is an example where the interests of justice require that the further evidence be admitted. The Claimant’s legal practitioners have been in possession of this material for a period of approximately eight months. The evidence is relevant and there is no reason why allowing further time can cure any prejudice.
Conclusions
Either party has liberty to apply and immediately raise with the Panel why the timetable or the proposed orders are unfair and cure any prejudice to the Claimant in the circumstance of this dispute.
The orders are set out in the Certificate attached to the Reasons.
John Harris
Principal Member
Dr Shane Moloney
Assessor
Dr Rhys Gray
Assessor
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