Insurance Australia Ltd v Fayed

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Fayed [2023] NSWPICMP 413
CLAIMANT:	Helen Fayad
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	25 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 14 November 2021 in a side swipe collision; the dispute related to proposed treatment and care including future surgery; Medical Assessor (MA) found signs of radiculopathy and found proposed treatment both reasonable and necessary and caused by motor accident; previous finding by insurer that claimant had minor (now threshold) injuries only; Panel advised that application was “lacking in substance” and should be dismissed pursuant to section 54 of the Personal Injury Commission Act 2020; matter referred to decision maker with power to determine that issue; dismissal application exercised sparingly and with exceptional caution; Perera v Genworth Financial Mortgage Insurance Pty Ltd applied; meaning of lacking in substance; The Owners Corporation of Strata Pan 4521 v Zouk applied; original MA had arguably found two signs of radiculopathy in the C6 distribution; finding in favour of claimant for treatment dispute would mean that she would need to be successful in establishing “recovery” or a non-threshold injury in other proceedings; present proceedings not lacking in substance merely because the claimant would need to take further proceedings to establish the liability of insurer to pay for treatment; Held – application to summarily dismiss review application rejected.
DETERMINATIONS MADE:	The application to dismiss the review of the medical assessment pursuant to s 54 of the Personal Injury Commission Act 2020 is rejected.

REASONS

BACKGROUND

There is presently an application for review of a medical assessment before a Medical Review Panel. That Panel has requested that the review be dismissed because they stated that the application was “lacking in substance”. The application for summary dismissal was referred to me.
For the following reasons I decline to summarily dismiss the review of the medical assessment.
Ms Helen Fayad (the claimant) alleges that she suffered injury in a motor accident on
14 November 2021. The claimant was travelling in the left lane when a vehicle in the adjacent lane changed lanes colliding with the right side of the claimant’s vehicle. The offending vehicle drove away.
The insurer is liable to pay to Ms Fayad any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
On 30 August 2022 the insurer advised the claimant that she had suffered a minor injury and it would not be paying benefits beyond 1 December 2022.
In September 2022 the claimant requested the insurer to pay for physiotherapy and the surgery recommended by Dr Rao which included a C5/6 anterior cervical discectomy and fusion.
The insurer declined these requests. The claimant then commenced proceedings in the Personal Injury Commission (Commission) seeking findings that the proposed treatment was reasonable and necessary in the circumstances or relates to the injuries caused by the motor accident. Pursuant to Schedule 2, cl 2 of the MAI Act these matters are declared to be 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 matter was referred to Medical Assessor Wijetunga who issued a Medical Assessment Certificate dated 17 November 2022 (the medical assessment). The neurological clinical findings of the Medical Assessor were reported as showing that the claimant exhibited normal tone, normal strength with the exception of triceps extension (C6 and C7) and reduced sensibility over the lateral aspect of the left forearm and left index finger (C6 and C7). The Medical Assessor concluded that the neurological examination showed “reduced strength and sensory changes of the left C6 nerve”.
Medical Assessor Wijetunga concluded that the proposed cervical spine surgery and need for physiotherapy was caused by the accident and was otherwise reasonable and necessary in the circumstances.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 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”.
Section 3.28(3) of the MAI Act extends the 26 week treatment period due to certain matters including where the treatment “will improve the recovery of the injured person”. The sub-section was repealed by the MAI Amendment Act[2] but is saved for motor accidents occurring before the date of the commencement (1 April 2023).[3]
[2] Sch 1, cl [23].
[3] See Application of amendments at Sch 1, cl [53] under “Provisions consequent on enactment of Motor Accident Injuries Amendment Act 2022”. See Kotb v AAI Ltd [2023] NSPICMP 312 at [128]-[137] as to the determination of a recovery dispute.

THE REVIEW

An application for referral of the 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.
On 1 February 2023 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.[4]
[4] Section 7.26(5) of the MAI Act.
The Panel met and issued a direction dated 14 April 2023 which requested submissions from the parties. The insurer responded to this direction. The claimant failed to provide any submissions.
On 2 May 2023 the Panel issued a document headed statement of reasons. The Panel noted that the insurer had made a decision that the claimant had only sustained minor injuries and that this had not been disputed by the claimant.
The Panel was of the view that the proceedings were “lacking in substance” within the meaning of s 54(b) of the Personal Injury Commission Act 2020 (the PIC Act). The Panel stated that the claimant had “no entitlement” to statutory benefits as the insurer had “no liability” to pay for the proposed treatment.
The Panel stated that it would be a waste of the Commission’s resources to determine the review noting there was no threshold dispute before the Commission and no dispute about whether the treatment will improve the recovery of the injured person.

FINDINGS

Section 54 of the PIC Act applies to panel review proceedings[5] and relevantly provides that that the 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 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.
Normally a “strike out” (dismissal) application is exercised sparingly and in circumstances where the applicant’s case is taken at its highest: General Steel Industries Inc v Commissioner for Railways (NSW).[6] General Steel was applied in Perera v Genworth Financial Mortgage Insurance Pty Ltd[7] when Leeming JA stated:[8]
“But for present purposes, two matters are clear. One is that common to all the various formulations is the need for “exceptional caution”, as was explained in Agar v Hyde(2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success”.
[6] [1964] HCA 69; (1964) 112 CLR 125 (‘General Steel’) at 129.
[7] [2017] NSWCA 19.
[8] (at [30], Macfarlan and Simpson JJA agreeing).
In The Owners Corporation of Strata Plan 4521 v Zouk[9] the Court of Appeal discussed the meaning of “lacking in substance” in the context of the power of the Consumer, Trader and Tenancy Tribunal to make an order for costs when dismissing an appeal. That power is exercisable by the Consumer, Trader and Tenancy Tribunal when an appeal is “frivolous, vexatious, misconceived or lacking in substance”. In discussing the width of this power, Ipp JA stated:[10]
“The powers of the Tribunal to dismiss an application by way of an informal investigation are far-reaching. It is in this context that the phrase “lacking in substance” must be understood. It would be inappropriate, given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than “not reasonably arguable”. That is, a meaning not dissimilar to ‘frivolous, vexatious, misconceived’, the words which precede the phrase.”
[9] [2007] NSWCA 23 (Zouk).
[10] (at [45], with whom Beazley and Bryson JJA agreed).
Whilst the words discussed in Zouk are almost identical with those under consideration in the present matter, s 54 of the PIC Act differs in context from the power exercisable by the Consumer, Trader and Tenancy Tribunal. That is because the power of the Tribunal to award costs if the appeal is “lacking in substance” is a matter affecting final rights. The exercise of the power of dismissal by the Commission under s 54 does not prevent a party from subsequently recommencing proceedings.
These principles were applied by the Workers Compensation Commission in Spears v Department of Ageing, Disability Homecare of NSW[11] in the context of the dismissal power contained in s 354 of the Workplace Injury Management and Workers Compensation Act 1998. The application of the summarily dismissal principles discussed in Zouk and Spears is consistent with, and I apply to s 54 of the PIC Act.
[11] [2010] NSWWCCPD 35 (Spears).
The insurer’s submissions dated 18 April 2023 relevantly provided:
(a)   the insurer had determined that the claimant had suffered a minor/threshold injury;
(b) should the minor/threshold injury change then the medical assessment certificate would be binding on the insurer (s 7.2392) of the MAI Act);
(c)   it would not be in line with the objects of the Act to vacate the current Review Panel until such time as it would only likely delay the resolution of the dispute;
(d) the insurer has an obligation under cl 4.43 of the Guidelines to review new information and how it impacts liability decision. Under section 6.19(6) of the MAI Act liability decision includes liability to pay benefits including treatment, and
(e)   the Review Panel’s Certificate would not necessarily be futile in its ongoing requirement to assess new information and its impact on previous treatment and care decisions.
The matter was listed for oral submissions. It was then raised with the parties that the Medical Assessor had arguably found two signs of radiculopathy within the meaning of cl 5.8 of the Guidelines, specifically muscle weakness and reproducible sensory loss in the C6 distribution.
The claimant then advised that it had now raised a medical dispute in relation to the threshold issue.
Previous Review Panel decisions have determined that radiculopathy can be present at any time.[12]
[12] David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 (David).
The claimant has arguably been found to have two clinical signs of radiculopathy, specifically muscle weakness and reproducible sensory loss in the C6 distribution. Those findings made by Medical Assessor Wijetunga are consistent with the MRI scan dated 17 November 2021 which showed bilateral nerve impingement on the exiting C6 nerve roots.
If the radiculopathy was caused or contributed to by the motor accident, the claimant has arguably established a non-threshold injury. A subsequent finding that radiculopathy was not present would not disprove the examination findings of the Medical Assessor.
The Panel suggested that the review application was “lacking in substance”.
It is unfortunate that the claimant had not taken a simultaneous step to either contest the insurer’s finding of minor/threshold injury and/or assert that the proposed treatment would improve her recovery. That means that if she succeeded in the present case, the claimant would not have a present statutory entitlement to payment of the future expenses until either of these other matters was established in her favour.
The present case is a step in requiring the insurer to pay, unfortunately one that should have been taken in combination with another medical dispute so that all relevant issues could be determined together. In that respect there has been an inefficient waste of resources because the claimant’s entitlement to receive payment for the treatment will require a further medical assessment. However, that inefficient use of Commission’s resources by the claimant does not mean that these proceedings are “lacking in substance”.
The claimant may still establish that she has suffered a non-threshold injury and/or that the treatment would improve her recovery. Indeed, given these observations and noting the insurer’s submissions that it is obliged to reconsider a decision based on further information, the insurer is probably obliged to reconsider its threshold decision considering the clinical findings made by the Medical Assessor.
The Panel otherwise stated that the claimant had “no entitlement” to statutory benefits as the insurer had “no liability” to pay for the proposed treatment. The Panel’s suggestion that there is “no liability” by the insurer to pay future treatment expenses is only accurate in that there is no present liability to pay for future treatment. That situation would change if the claimant was successful in establishing that she sustained a non-threshold injury and/or the treatment would improve her recovery. The statement by the Panel is incorrect if it was suggesting there can never be a liability by the insurer to pay for the future treatment.
The fact that the claimant has now raised a medical dispute on the threshold issue is a further reason why the review should proceed.
The present proceedings are not “lacking in substance”. Indeed, the claimant has a finding in her favour made by the Medical Assessor on the treatment dispute which the insurer challenges. Absent a determination of this review, the insurer is unfairly prejudiced because the determination is averse to its interests, and the insurer is otherwise being prevented from pursuing this application to revoke the medical assessment.
These matters all emphasise that, consistent with the authorities referenced earlier, there is no proper basis to summarily dismiss the review.
The request by the Panel to dismiss the review is rejected.

[2023] NSWPICMP 413

25 August 2023