Insurance Australia Ltd v Mangogna
[2023] NSWPICMP 509
•13 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Mangogna [2023] NSWPICMP 508 |
| CLAIMANT: | Sophia Mangogna |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 13 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 8 January 2021; the dispute related to whether she 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; current review by insurer of finding that claimant sustained non-threshold physical injury; Panel raised that current review lacking in substance and/or constituted an abuse of process as non-threshold finding for psychological injury not challenged; insurer submitted that it intended to seek a further application of previous MA of non-threshold psychological injury; that finding was dependent upon motor accident caused physical injury; insurer relied on additional evidence disputing physical injury caused by motor accident; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; present review application not an abuse of process or lacking in substance; insurer entitled to pursue review and had explained why it was proceeding; dismissal of review would deprive insurer of existing right; insurer’s submission raised issues of causation of physical injuries; that conclusion may undercut the finding of the previous MA that the psychological injury was caused by the back injury caused by the motor accident; Held – application to dismiss the review of the medical assessment 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. 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 Sophia Mangogna (the claimant) alleges that she suffered injury in a motor accident on
8 January 2021. The claimant was a rear seat passenger in a stationary vehicle when the insured vehicle reversed and collided with the claimant’s vehicle.The insurer is liable to pay to Ms Mangogna any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The claimant commenced proceedings in the Personal Injury Commission (Commission) seeking findings that she sustained non-minor injuries. 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.
In a certificate dated 9 September 2022 Medical Assessor Hong concluded that the motor accident caused a non-minor psychological injury (the medical assessment for the psychological injury). The insurer did not seek a review of the medical assessment for the psychological injury.
The medical assessment of the physical injuries was referred to Medical Assessor Woo who issued a Medical Assessment Certificate dated 23 October 2022 (the medical assessment). The Medical Assessor determined that the claimant suffered non minor physical injuries.
The insurer sought a review of the medical assessment.
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 insurer 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 dated 17 August 2023 which requested submissions from the parties. The Panel noted that the time for seeking a review of the medical assessment for the psychological injury was “spent” and requested submissions on the following:
“21. The Panel notes there is a practical utility to the insurer in the Panel making a finding on whether the accident was capable of causing the lumbar spine injury, but the statutory question referred to this Panel of whether the claimant has a non–threshold injury is now spent.
22. The Panel invites the insurer consider whether it wishes to continue this Review.
23. If it wishes to continue then the insurer is directed to make submissions addressing why the threshold injury issue has not been spent given Medical Assessor Hong’s certificate dated 9 September 2022.
24. If the insurer does not wish to continue then it is directed to file a notice of discontinuance.”
PANEL’S RECOMMENDATION
On 29 August 2023 the Panel issued a document headed “Certificate of Determination” when it made the following conclusions:
“1. Was appointed by the President of the Personal Injury Commission (Commission) to review Medical Assessor Woo’s certificate and medical assessment dated 23 October 2022 on whether the claimant’s injuries were threshold injuries as defined under s 1.6 of the Motor Accidents Injuries Act 2017 (MAI Act).
2. The Commission had already decided this issue on 9 September 2022, and this decision was not challenged.
3. The Review Panel recommends that the President of the Personal Injury Commission or his delegates dismiss the insurer’s application for review under s 54 of the Personal Injury Commission Act 2020 (the PIC Act) and rule 77(b)(v) of the Personal Injury Commission Rules.
4. This Review Panel’s reasons for its recommendations are attached.”
The Panel noted that the insurer disputed injury because “of the insured driver’s version that the motor accident was of low impact and the claimant could not have been injured”.
The Panel referred to the insurer’s submissions (set out later) and stated:
“The insurer did not address the question of whether there was a dispute to resolve.”
The Panel noted that if a claimant suffered one threshold injury, then they were entitled to ongoing statutory benefits and entitlement to recover common law damages. It stated:[3]
“Therefore, a finding that an injury is not a threshold injury can also be considered as a gateway provision and the key that unlocks the door to continuing statutory benefits under Part 3 of the MAI Act and the gateway that allows the recovery of damages under Part 4.”
[3] Certificate of Determination, [35].
The Panel then provided the following reasons:
“Is the insurer’s application now lacking in substance?
36. The insurer’s applied on 11 November 2022 for the review of Medical Assessor Woo’s assessment.
37. However, following Medical Assessor Hong’s certificate on 9 September 2022 and due to the time lapsing for any review of that decision the Commission had already decided the claimant had a non-threshold injury, which satisfied the MAI Act’s definition.
38. The Commission exists to make decisions and determine extant disputes. The insurer does not address the question of whether this Panel’s function was spent. It does not argue circumstances exist, which could set aside the general principle that once the decision was made that function was spent, rather it hopes that this Panel will make a causation decision that could support its application for a further assessment.
39. Medical Assessors and Review Panels need only assess matters that are disputed. As the threshold injury was already decided when the insurer applied for review of Medical Assessor Woo’s decision there was no dispute to determine under that heading.
40. It is this Panel’s view that its proceedings lack substance because the statutory question referred to it was already resolved. Is the insurer’s application for an improper purpose?
41. The insurer submits that the Panel should continue the proceedings and determine whether the claimant’s alleged lumbar spine injury with radiculopathy is not a threshold injury because the insurer may seek to use this Panel’s causation finding to seek a further threshold injury assessment of the psychological condition.
42. There are already five other medical disputes lodged with the Commission on permanent impairment and treatment, which will deal with causation. It is not a proper purpose for the insurer to seek to have this Panel constituted to decide an already decided issue.
43. If an extant and relevant medical dispute produces a causation outcome or the insurer obtains evidence that supports the insurer’s position that the accident could not have caused the claimant’s history then it is a matter for the insurer to seek a further threshold injury assessment rather than a review.”
The Panel was of the view that the proceedings were “lacking in substance” as there was an unchallenged finding that the claimant suffered a non threshold injury. It also noted that the Commission’s resources had been “wasted” by the insurer pursuing this Review and the guiding principles under s 42 of the PIC Act did not justify the review proceeding. The Panel otherwise noted that there was “no prejudice to the insurer because it can still make its case to have the matter reassessed by a Medical Assessor under s 7.24 of the MAI Act based on causation findings from the extant medical disputes on permanent impairment and treatment.”[4]
[4] Certificiate of Determination, [51].
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.
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 applicant’s (in this case the insurer’s) case is taken at its highest.
[6] [2023] NSWPICMP 413.
The insurer’s submissions in response to the Panel’s direction relevantly provided:
“The insurer refers to the Directions issued to the parties on 18 August 2023.
The insurer notes that Decision Maker Hong issued a certificate assessing that the psychological injury was more than a minor injury in September 2022 based on a history from the Claimant that:
‘After the accident, particularly around 3 months after the subject accident, she described a significant psychological decline, in the context of severe pain and major physical restriction and impact on her self-esteem. She suffered an aggravation of pre-existing GAD and social anxiety disorder.’
The issue as to causation of the claimant's physical injury is therefore fundamental to whether the accident caused an aggravation of her psychological condition.
In view of the report of Dr McIntosh, the insurer intends to lodge an application for further assessment of the claimant's psychological injury based on additional relevant information.
However, as this Review Panel had already been convened to assess the physical injuries it was decided that an application should be delayed until the certificate was available in relation to this dispute, given that it may or may not be appropriate to lodge an application for further assessment, once the certificate is available from the Panel.
The outcome of the dispute in relation to the claimant's physical injuries will also be of assistance to the Decision Maker assessing the claimant's psychological injury as onset of her psychological condition is alleged to have been triggered by her physical injuries.
The insurer therefore presses for a decision from the Review Panel.”
The claimant was provided with an opportunity and did not make any submissions.
This not an appeal or a review from the opinion provided by the Panel and it otherwise had no statutory power to make its recommendation.
The statement by the Panel that there is no dispute is incorrect. Left unchallenged, the insurer is deprived of its entitlement to review the medical assessment in circumstances where the President’s delegate has determined that there is an arguable basis for the review.
The Panel’s statement that the insurer would suffer “no prejudice” if the review is dismissed, is inconsistent with the fact that the insurer would be required to lodge a further application of the medical assessment and satisfy a gateway provision for that application to proceed. The insurer currently has a present right to have the medical assessment reviewed because it has satisfied the gateway provision. The suggestion by the Panel that there is an absence of prejudice is rejected.
The insurer has stated that it intends to make a further application in respect of the medical assessment for the psychological injury. The insurer’s right to make that application is pursuant to s 7.24 of the MAI Act which relevantly provides:
“(1) A medical dispute referred for assessment under this Division may be referred again for assessment under this Division at any time by a court, a merit reviewer or the Commission.
(2) A medical dispute referred for assessment under this Division may be referred again for assessment under this Division by the claimant or the insurer, but only on the grounds prescribed by the regulations (if any) in relation to the medical assessment matter to which the dispute relates.”The test provided by the Motor Accident Injuries Regulation, 2017 for referral for a further medical assessment is relevantly that there is additional relevant information about the injury such as to be capable of having a material effect on the outcome of the previous assessment.[7]
[7] Reg 13.
The Panel did not address the insurer’s submission. The Panel’s statement that the dispute is “spent”, a term that does not appear in the legislation, is inconsistent with the insurer’s right to make a further application pursuant to s 7.24 of the MAI Act.
The insurer has indicated that the finding of a non-threshold psychological injury will be challenged because it disputes that there was physical injury caused by the motor accident. The insurer’s statement is based on the opinion of Dr McIntosh dated 23 March 2023. That opinion raised the minor nature of the motor accident and the absence of recorded complaint in the subsequent clinical notes that the motor accident caused a back injury.
The parties have a statutory obligation to act in good faith towards each other in connection with the claim.[8] Accordingly, the insurer’s statement that it intends to pursue a further application of the medical assessment for the psychological injury is accepted at face value particularly when it has explained why it is pursuing this course. Accordingly, the insurer’s position that there was no underlying basis for Medical Assessor Hong’s conclusion that there was an aggravation of psychological condition caused by the physical injury is arguable.
[8] Section 6.3 of the MAI Act.
These matters raise real issues of causation requiring a decision. Self-evidently a possible finding by the current Panel that there was no back injury would undercut the premise by Medical Assessor Hong that the back injury caused by the motor accident aggravated the psychological condition.
The Panel otherwise noted that there are five other medical disputes lodged with the Commission on the issues of the extent of permanent impairment and treatment “which will deal with causation” and that “it is not a proper purpose for the insurer to seek to have this Panel constituted to decide an already decided issue.”
That observation assumes that the issue has been finally decided when the insurer has indicated that it is contesting the medical assessment of non-threshold for the psychological injury. The findings of the Review Panel or Medical Assessor are otherwise not determinative of causation in any other dispute between these parties: Owen v Motor Accidents Authority;[9] Allianz Australia Insurance Ltd v Girgis;[10] Brown v Lewis[11] and Pham v Shui.[12] It is unclear how the reference by the Panel to five other medical disputes between the parties is relevant to whether the present review should be summarily dismissed.
[9] [2012] NSWSC 650.
[10] [2011] NSWSC 1424
[11] [2006] NSWCA 587.
[12] [2006] NSWCA 373.
The Panel otherwise referred to “wasted resources” in determining this dispute. The fact that there are two decisions on the threshold issue is a result of the legislation. The comment by the Panel of wasted resources is an irrelevant factor in determining whether the present review is lacking in substance.
The present proceedings are not “lacking in substance” or brought as an “improper purpose”. The claimant has a finding in her favour made by the Medical Assessor on the threshold dispute for the physical injuries 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 prevented from pursuing this application to revoke the medical assessment.
There may have been no utility in the insurer’s review if it was not challenging the medical assessment for the psychological injury. In that situation, it could be open to find that the present review application constituted an abuse of process.
There is no basis to summarily dismiss the insurer’s review. The request by the Panel to dismiss the review is rejected.
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