Kammoun v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 524
•20 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kammoun v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 524 |
| CLAIMANT: | Humze Kammoun |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 20 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment regarding suspension of weekly payments of statutory benefits due to refusal to attend examination for purposes of neuropsychometric testing; whether testing for the predominate and/or collateral purpose of checking credibility of the claimant; testing requested in accordance with recommendation of insurer’s psychiatric expert; Held – the testing is for the predominate purpose of symptom validation and credibility checking; the basis upon which the recommendation is made is not valid on the evidence and therefore the recommendation is unreliable and therefore unreasonable; claimant’s weekly payments to be reinstated and the claimant is not required to attend psychometric testing; exceptional costs awarded to both insurer and claimant. |
| DETERMINATIONS MADE: | REPLACEMENT CERTIFICATE OF DETERMINATION 1. In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: (a) payments of weekly statutory benefits to the claimant are to be reinstated; (b) the insurer to reimburse the claimant for any payments of weekly statutory benefits not paid since 9 September 2024; (c) the claimant is not required to attend an appointment with Dr Roldan for the purpose of psychometric testing, and (d) both the claimant and the insurer are entitled to costs on an exceptional basis pursuant to s8.10(4) of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
Humza Kammoun (the claimant) suffered injury as a result of a motor vehicle accident occurring on 31 July 2024. The motor accident can be fairly described as serious with the claimant driving a vehicle that was “T-boned” on the right side by a vehicle running a red light.
A claim was lodged with the third party insurer of the vehicle considered at fault – Insurance Australia Limited t/as NRMA (the insurer) for statutory benefits. I understand that a claim for damages has also been made.
The insurer has admitted liability.
The insurer is liable for payments of statutory benefits and/or damages to the claimant pursuant to the provisions of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant had been in receipt of statutory weekly benefits, however, the insurer, in a notice dated 27 August 2024 advised that such payments would be suspended from 9 September 2024 due to the claimant’s refusal to submit to an examination with Dr Fernando Roldan for the purposes of administering psychometric testing.
This suspension of benefits has precipitated a dispute between the parties, which forms the basis of these proceedings.
The applicant claimant submits that he is entitled to refuse to submit to the medical examination. On the other hand, the insurer essentially submits that failing to attend the appointment amounts to a breach of s 6.27 of the MAI Act, and that failure to comply with such obligation authorises the insurer to suspend payments of weekly compensation.
The application lodged with the Personal Injury Commission (Commission) by the claimant was accompanied by a request for expedition, noting the claimant’s adverse financial situation when he is not in receipt weekly payments of statutory benefits.
The application has been lodged as a miscellaneous claims dispute pursuant to cl 3(n) of Schedule 2 of the MAI Act that provides that a miscellaneous claims dispute that can be referred to the Commission for assessment includes: “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule.”
The directions that are sought by the claimant are as follows:
(a) the claimant’s weekly payments are re-instated immediately together with back-pay for any weekly payments missed;
(b) the claimant is not required to undergo neuropsychometric testing organised by the insurer, and
(c) the claimant’s costs are payable by the insurer together with an order for exceptional legal costs.
The insurer seeks the following directions:
(a) the claimant’s application is dismissed;
(b) insofar as the Commission has the requisite power, the claimant is required to undergo an assessment with Dr Roldan (including psychometric testing), and
(c) Costs.
A teleconference was scheduled to occur on 16 September 2024, however, effectively proceeded as an assessment conference.
At the outset, I wish to thank the parties for dealing with the issues and providing clearly expressed and comprehensive written and oral submissions in a timely manner.
RELEVANT BACKGROUND
The claimant alleges both physical and psychologist injury as a result of the accident which are listed as follows:
(a) cervical spine;
(b) left shoulder (rotator cuff tendon strain, with associated labral pathology and an acute traumatic left AC joint dislocation);
(c) right shoulder;
(d) thoracic spine;
(e) left knee (or both knees);
(f) left wrist;
(g) scarring, and
(h) psychiatric injury in the nature of posttraumatic stress disorder and major depressive disorder.
At the time of the accident the claimant was working as a podiatrist, and I am informed was also studying for two further university qualifications to obtain specialisations.
At the time of the accident the claimant was married with his wife pregnant with the couple’s first child.
In the course of management of the both the claim for statutory benefits and damages claim, the insurer arranged for the claimant to be examined by Dr George, psychiatrist, who provided a report dated 27 July 2023. Dr George recommends the claimant undergo psychometric evaluation. The reasons for this recommendation is discussed in more detail below.
This recommendation by Dr George precipitated the insurer arranging for an appointment with Dr Roldan. The first appointment arranged was scheduled for 21 November 2023. On the same day that notice of the appointment was given, the claimant’s representatives responded stating that the claimant would not attend the appointment and would not undergo any psychometric testing.
A further appointment was made on 13 February 2024 and the insurer responded to the objections for a refusal to attend the earlier appointment.
The claimant’s representatives again indicated that the proposed appointment was objected to, therefore the appointment was cancelled.
At around the same time, a separate dispute emerged between the parties relating to an unserved report of Dr Rimmer obtained by the insurer. Both parties have included submissions surrounding this dispute, however, I do not consider it to be directly relevant to the issue for my determination. Suffice to say, a complaint was lodged with the State Insurance Regulatory Authority (SIRA) in respect of the non-service of the report, and I understand that SIRA did not uphold the claimant’s complaint.
In a letter dated 16 April 2024, the insurer’s representatives sent a letter detailing a further proposed appointment with Dr Raldon to occur on 29 April 2024. The correspondence, inter alia, noted that the assessment was required to finalise an assessment of whole person impairment. The letter further stated that the claimant’s refusal to co-operate with the “insurer’s reasonable request” was causing unnecessary delay. Further, if the claimant is unwilling to attend the insurer will formally advise of its intention to suspend payments of statutory benefits pursuant to s 3.19 of the MAI Act due to failure to comply with obligations set out in s 6.27.
By way of email dated 19 April 2024 the claimant’s representatives objected to the psychometric testing with Dr Roldan.
On 27 August 2024 the insurer issued a notice suspending payments of statutory benefits from 9 September 2024.
RELEVANT STATUTORY PROVISIONS
Section 6.27 of the MAI Act provides, relevantly, as follows:
“(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
…
(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.
…”
DOCUMENTATION
The parties have provided copies of a large amount of medical evidence and claim correspondence. I do not propose to refer to all the documentation in this determination. However, by not expressly referring to a particular document, it should not be thought that all evidence has not been considered. In this regard, a large proportion of the material has assisted me in putting the crucial evidence into context, but is not directly relevant to my determination. All material provided by the parties has been carefully considered.
Report of Dr George dated 27 July 2023
The dispute largely centres on the opinion of Dr George and it is therefore appropriate that his report is summarised.
The report is addressed to the legal representatives of the insurer.
The examination was conducted via videolink and Dr George describes the claimant as cooperative.
Dr George took a history of the claimant coming to surgery to his left shoulder due to an apparent unstable dislocation of same. The claimant was advised by his surgeon in November 2022 that he had a “frozen shoulder” which might spontaneously resolve within a two year period. The claimant advised Dr George that he continues to have pain in the shoulder with limited mobility and a decrease in activity.
I note that the surgery took place on 18 January 2022, performed by Dr Murrell and funded by the insurer.
After mental state examination, Dr George states “the diagnosis appears to be one of chronic adjustment disorder with mixed anxiety and depressed mood in relation to an ongoing physical injury, which he indicates causes pain, limited mobility and a general decrease in activity level.”
Dr George noted the lack of complaint recorded in the claimant’s treating practitioner files. Noting one instance of the general practitioner noting the claimant to be “feeling psychologically down” on 21 December 2022.
In answer to a question about the extent Dr George considered treatment to be reasonable and necessary, he notes the claimant has been on an antidepressant medication since late 2022. He noted the claimant does not have major depression and had not seen a psychologist or psychiatrist.
Dr George then refers to a report of Dr Matthew Masterson dated 28 September 2021. Specifically, Dr George notes the opinion of Dr Masterson that the recovery prognosis at that stage was “excellent” and he indicated that the recovery expectation was “full” at that stage. Dr George also noted Dr Masterson’s prognosis for an eventual return to pre-injury duties.
Following summary of the opinion of Dr Masterson, Dr George states from page 9 of his report as follows:
“As of July 2023, Mr Kammoun has not met those expectations as were set down in Dr Masterson’s report. I was interested to read a report set out by Ms Gabriel Lajara (exercise physiologist) dated 9 September 2022, stating that Mr Kammoun presented ‘as highly pain focussed and fear avoidant’. Given the dissonance between the expectations of Dr Masterson and how Mr Kammoun presents at this point in time, one would state, from a psychiatric view point, that no further psychiatric/psychological input should take place until a psychometric evaluation occurs to test the validity and reliability of Mr Kammoun’s presentation and alleged psychopathology.”
Dr George, essentially repeats his opinion in answer to a question of whether there were any inconsistencies in the claimant’s presentation. He states:
“Given Dr Masterson’s conclusions in 2021 and the lack of improvement over time, inconsistency in presentation is emphasised. In a case like this, I believe that a psychometric evaluation needs to take place, as this will provide validated, objective evidence of Mr Kammoun’s presentation and alleged psychopathology as set out above.”
Dr George re-emphasises his opinion as set out above when asked about whether the claimant has suffered a recognisable psychological injury as a result of the accident. In respect of stabilisation, Dr George again mentioned that because the claimant’s presentation does not accord to Dr Masterson’s expectations he did not believe that a valid comment as to stabilisation could be made.
In respect of the issue of causation, Dr George states: “I cannot do this due to my conclusions”. In respect of further treatment Dr George states that he would not be recommending any treatment given the fact that the claimant had not seen a psychologist or psychiatrist since his injury and he could not comment more fully until after psychometric testing has taken place.
In respect of the issue of earning capacity Dr George responds: “due to my clinical conclusions at this stage, I cannot comment on earning capacity”, and as to the assessment of whole person impairment, Dr George responds: “due to my conclusions on his presentation, I cannot provide whole person impairment.”
It is worth noting that the claimant has sought and received psychological treatment after the assessment of Dr George. In fact, it appears that there was a threat to suspend payments of statutory benefits on the basis that the claimant had not complied with his obligation to undertake treatment/rehabilitation under s 3.1 and s 6.5 of the MAI Act. This intention to suspend payments was withdrawn on 23 October 2023 following the claimant confirming that he was consulting a psychologist and physiotherapist.
SUBMISSIONS
Claimant’s written submissions dated 6 September 2024
It is submitted that Dr George relies on the report of Dr Masterson, a doctor in general practice with an interest in musculoskeletal and occupational medicine. It is noted that the doctor was engaged by the insurer within two months of the accident to telephone the claimant’s general practitioner and review medical records for the purposes of reporting to the insurer. It is noted that Dr Masterson provided his opinion without speaking with or examining the claimant. The submissions state:
“…it is illogical to rely on a report from a doctor with no expertise in psychiatry, who has never met the plaintiff, who formed an opinion within 2 months of the accident before scans/surgery and development of the claimant’s condition over reports and information available from the claimant’s treating psychiatrist/psychologist”
It is submitted that despite Dr George being a psychiatrist, he considered orthopaedic matters outside his area of expertise to conclude the claimant’s condition is inconsistent and neuropsychometric testing is required. This is described as an illogical and flawed approach.
The submissions note that since the report of Dr George, the claimant has been under the care of psychologist and psychiatrist and has recently been undergoing an intensive 12 week psychiatric program for posttraumatic stress disorder at St John of God Hospital. This treatment has been funded by the insurer.
The submissions refer to cl 4.1555 of the Motor Accident Guidelines (Guidelines) regarding enquiries with treating practitioners before seeking further information about a claimant’s condition. I do not consider this clause to be determinative in respect of the issues for my determination and therefore I have not engaged with submissions from either party in this regard.
The claimant relies on the case of Jafari v Khoury & McDonalds Australia Ltd [2019] NSWDC 394 (Jafari), where Levy DCJ was not prepared to order the claimant to undergo psychometric testing for validity/credit checking purposes. He found at [39]: “the compelling conclusion that emerges from the evidence is that the first defendant proposed to seek psychometric testing to challenge the plaintiff’s veracity and her credit, not just the validity of her presenting complaints.”
The claimant submits that the opinion of Dr George about the inconsistency of presentation is contrary to all over evidence and contrary to the insurer’s own findings in respect of the statutory benefits claim with the insurer having most recently determined on 3 September 2024 that the claimant has no current capacity for work.
It is submitted that the insurer’s behaviour with repeated requests to undergo testing with Dr Roldan and to cut off payments is dangerous to the claimant’s mental health. It is noted that the medical evidence includes notes of the claimant having suicidal thoughts (call to the claimant’s general practitioner by Sarah from Benchmark).
Insurer’s written submissions dated 16 September 2024
The insurer acknowledges that s 6.27(1) of the MAI Act, s 86(1) of the former Motor Accidents Compensation Act 1999 (MAC Act) and cl 4.156 of the Guidelines that a request for medical examination must be reasonable in the circumstances.
The submissions state:
“Application of section 6.27 of the MAIA requires consideration of fairness and applied common sense. Reasonableness of the request is a pre-requisite of the obligation to comply. The parties plainly have very different views about what is ‘reasonable’ in the circumstances.
It is submitted that a balancing act is required when applying s 6.27(1) which is similar to that required by Rule 23.4 of the Uniform Civil Procedure Rules 2005 and accordingly, the line of authorities therefrom is informative to my determination.
In this regard, the insurer refers to a number of authorities, in particular Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 (Stapleton), in submitting that I must assess whether the request is reasonable in all the circumstances, including the information and advice received by the insurer from its experts, and whether the refusal to attend is similarly reasonable. I must weigh up all the facts and circumstances to ensure the issue is determined justly.
The insurer also refers me to the Court of Appeal decision of Rowlands v New South Wales (2009) 74 NSWLR 715. Tobias JA in that case found, inter alia, that the Rule 23.4 of the Uniform Civil Procedure Rules UCPR cannot be used for a collateral purpose such as testing a party’s credibility.
In respect of the issue of “unreasonable” the insurer submits that the proposed testing is not unreasonable in the circumstances. In this regard, it is asserted that it is recommended by Dr George “on medical/clinical grounds so that a concluded opinion on diagnosis, prognosis, stabilisation, causation, treatment, earning capacity, and whole person impairment can be expressed – this is quite different to testing the claimant’s credibility as a collateral purpose.”
The insurer notes that the report of Dr George remains incomplete where he could not state his opinion on a number of issues and cannot be sufficiently relied upon by the insurer until psychometric evaluation has occurred. And that he insurer “…seeks to do no more than arrange for the psychometric evaluation that has been recommended by Dr George on medical grounds so that the insurer can reasonably and fairly respond to the claimant’s psychological/psychiatric case.”
The insurer notes that Dr George properly considered the material before him as required by the Guidelines and that “it is difficult to understand how the provision of additional updated treating medical evidence (which does not contain any psychometric evaluation) is relevant Dr George’s recommendation for psychometric evaluation.”
In response to the claimant’s submissions that Dr George’s opinion is contrary to the claimant’s treating medical practitioners, the insurer submits that that is the very point why the testing is appropriate and reasonable. It is submitted that there is nothing to suggest that the insurer must also accept the claimant’s subjective complaints without question, which his treating practitioners are ethically obliged to do.
In respect of the issue of dangerous, dealing with notes of suicidal thoughts the insurer notes that since such mention the clinical evidence suggests an improvement in the claimant’s presentation. The insurer submits that service of any additional material and provision to Dr George would not alleviate the need for psychometric testing.
Claimant’s further written submissions dated 16 September 2024
The claimant agrees with the submission that authorities in respect of Rule 23.4 of the UCPR are relevant.
The submissions refer to the comments of Dr George in respect of the alleged need for psychometric testing and state “it is hard to imagine a plainer confirmation that the purpose of the psychometric testing is the very purpose that the Court has repeatedly said is improper and impermissible.”
The submissions refer to recent Supreme Court authorities which is asserted are “relatively indistinguishable” from the present case and that arguments akin to those made by the insurer were rejected.
The first case referred to is Haggerty v HAL Maritime Ltd [2024] NSWSC 889 (Haggerty). The claimant refers to the statement of Sweeney J at [59]:
“Counsel for the defendant, in reliance on Rowlands, sought to distinguish between testing the plaintiff’s veracity generally and testing the veracity of the plaintiff’s contentions insofar as they affect the reliability of examinations that have been performed by medicolegal experts. However, in the circumstances of this case, the only matters about which the veracity of the plaintiff’s account is an issue are the very matters the subject of this claim, that is, that he incurred a psychological injury in the course of his employment, and the extent to which the condition, which he says continues, impacts on his capacity to obtain employment at a level which he could have obtained if he had not incurred the injury. There is, in this case, no distinction between the plaintiff’s veracity or reliability in respect of his account of his injury, condition and symptoms and his veracity or reliability generally.”
The second case referred to is Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Centre [2024] NSWSC 1019 (Corke). The submissions refer to the similarities between that case and the subject one as “stark”. It is noted that it involved Dr George (the same Dr George relevant to this case) recommending psychometric testing to assess “validity of his presentation and alleged psychopathology” [7]. Campbell J said at [17]:
“However, I accept the plaintiff’s submission that the real, or ‘overriding’, purpose of the second defendant’s application is to determine whether the plaintiff might be malingering, that is to say whether he should be believed as to his history and symptoms. This is not a proper purpose for a medical examination under r23.4 and is impermissible.”
The claimant further draws my attention to Campbell J’s findings at [24]-[25]:
“Thirdly, there are few objective signs available to confirm a diagnosis of PTSD. So much depends on the plaintiff’s account. It is for this reason that Dr George and Dr Samuell recommended the plaintiff be subjected to symptoms validity testing. That is to say, the experts wanted to obtain statistically based outcomes to call into question – on a quasi – objective basis – the reliability of the plaintiff’s account. In this regard, I am of the view that the second defendant’s application is tantamount to an attempt to reach a firm conclusion on the medical issues the subject of a substantive proceedings in advance of the trial, which is precisely the type of impermissible application referred to in Chopra.
Fourthly, it goes without saying that in a matter where psychiatric injury is the only injury alleged, such as in the case at hand, the outcome of the quantum issues will depend almost wholly upon whether the plaintiff’s account of his history, his symptoms and their impact upon the activities of his daily life can be accepted on the balance of probabilities. All these things ultimately depend upon the plaintiff’s credit as a witness. The plaintiff’s credibility falls to be determined by the tribunal of fact after the hearing, and not by experts in advance of it. This engages the principle expressed in Rowlands (at [49]). In my judgment this is not merely collateral purposes in the way explained by Basten JA in Gulic (at [12]) on this occasion but the overriding purpose of the proposed further examination by Dr Roldan.”
The claimant submits that the above puts paid the insurer’s submission that there is a distinction between the testing recommended and the testing the claimant’s credibility as a collateral purpose. “There can be no such distinction between testing the claimant’s veracity or reliability in respect of his account of his injury, condition and symptoms and his veracity or reliability generally.”
The claimant submits, essentially, that the insurer’s request for testing is not done for the collateral purpose of testing credibility but it is rather for the overriding purpose.
Oral submissions
Mr Wilson, counsel for the insurer, was careful to express the fact that the insurer did not take the step of suspending the claimant’s statutory benefits lightly. It is submitted that the step was taken due to the very limited levers the insurer has at its disposal to have the claimant attend the scheduled examination. Ms Gumbert, counsel for the claimant, noted that it was open to the insurer to lodge a dispute application with the Commission utilising the very provision in Schedule 2 of the MAI Act that the claimant has utilised. I agree with this submission. Nonetheless, if it is found that the refusal to attend the examination is unreasonable, the insurer is within its right under s 6.27(4) of the MAI Act to suspend payments.
Ms Gumbert noted that the present case is essentially indistinguishable from the Supreme Court cases referred to above. Ms Gumbert reiterated the submission that the purpose of the proposed psychometric testing is not a collateral one but it is instead the express purpose given the wording used by Dr George.
Mr Wilson noted that whilst the dispute has been referred to the Commission for determination in the context of the statutory benefits claim, the determination also is influential to the claim for damages.
It was submitted on behalf of the insurer that there is no evidence from the claimant’s doctors that directly addresses the allegation that the testing would be “dangerous”.
In respect of the report of Dr George, it is submitted that his report is effectively meaningless without the proposed testing.
In respect of the Supreme Court cases relied upon by the claimant, Mr Wilson noted that the case of Rowlands should be preferred noting it is a Court of Appeal case, and is still valid and should be applied. Mr Wilson distinguished the case on the basis that the case expressly refers to testing credibility as a collateral purpose. Mr Wilson submits that there is plainly a forensic purpose to the recommendation for testing and noted that Dr George is unable to provide his opinion on crucial issues in dispute without the testing being completed.
Mr Wilson repeated the insurer’s point that Dr George’s recommendation is made on medical grounds rather than for the collateral purpose of testing the claimant’s credibility. Mr Wilson referred to the case of Price v Clearview Life Nominees Pty Ltd [2023] NSWSC 597 (Price) where Slattery J found that neuropsychological testing in the context of a psychiatric Total Permanent Disability (TPD) claim was permissible and the request for the testing was for a legitimate purpose, in that it had been requested for the purposes of determining the plaintiff’s future earning capacity, which was a critical issue in dispute.
Mr Wilson also referred me to the case of Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security [2021] NSWSC 1425 (Hill), where Wright J ordered a plaintiff making a claim for psychiatric injury, to attend psychometric testing and applied a number of restrictions to the testing process including support person and avoiding oral history of the alleged incident.
In response, Ms Gumbert noted that psychometric testing for the purpose of cognitive incapacity is a more traditional purpose for testing and noted that same seemed to be a purpose of the proposed testing in Price, and was therefore distinguishable to the subject case. Ms Gumbert submitted that the only basis Dr George recommends the testing is one of symptom validity and reliability.
FINDINGS
The claimant submits that the issue at the heart of the matter is whether the testing recommended is for the purpose of checking the credibility of the claimant, which in line with authorities is not permissible. From what I understand, the insurer submits that the testing cannot be utilised for the collateral purpose of credibility checking.
I agree with the submissions of Ms Gumbert that whether the purpose of the psychometric testing for credibility purpose is the predominant reason for the testing or if it is for a collateral purpose matters not.
Having closely considered the report of Dr George, I can see no credible basis to suggest that his recommendation for the psychometric testing is made on any basis other than the predominant purpose of symptom validity and credibility. Whilst Dr George states in the concluding paragraphs of his report and in response to direct questions that he is unable to provide his opinion as to the crucial issues involved in the assessment of the claimant until the testing is undertaken, these statements all link back to his statements made earlier in his report when making a recommendation for the testing, being: “… to test the validity and reliability of Mr Kammoun’s presentation and alleged psychopathology.”
To my mind, there can be no mistake that the predominate, if not sole, basis upon which Dr George makes the recommendation for psychometric testing is to check the credibility of the claimant. Accordingly, I find that it is unreasonable to have the claimant submit to the proposed psychometric testing with Dr Roldan in line with the authorities of Rowlands, Haggerty and Corke.
Furthermore, I find the request for the claimant to undergo the testing with Dr Roldan to be unreasonable on a further basis. In this regard, Dr George in coming to the recommendation relies heavily on the apparent inconsistency between the claimant’s presentation and/or complaints in respect of his physical injuries and the opinion of Dr Masterson as expressed in his report dated 28 September 2021. In fact, other than a reference to Ms Lajara making comment that the claimant was fear avoidant and highly pain focussed, the disparity between the presentation and Dr Masterson’s opinion appears to be the sole (or at least predominant) basis upon which Dr George comes to the conclusion that psychometric testing is required for him to finalise his opinion.
I find that this is a dubious hook for one to hang their hat on. Firstly, I acknowledge and agree with the claimant’s submission that the report is provided within two months after the accident and is provided at the request of the insurer without Dr Masterson having seen or even spoken to the claimant. The opinion is provided without the course of the claimant’s recovery having been played out.
Dr George does not grapple with the fact that the report of Dr Masterson predates the claimant undergoing surgery with Dr Murrell and him being diagnosed with a frozen shoulder. It is my view, that the opinion of Dr Masterson is effectively voided by the real life facts (not the least of which includes shoulder surgery) involving the claimant’s injury and recovery that played out over the passage of time since the report of Dr Masterson was prepared.
Effectively, therefore, the basis upon which Dr George makes his recommendation is invalid and therefore it follows that his recommendation is unreasonable. Put another way, the assumption upon which Dr George reaches his opinion in respect of the need for psychometric testing is not made out on the evidence and therefore his conclusion in respect of the need for psychometric testing is not reliable. Such situation involving expert evidence involves a long line of authority beginning with the case of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
Accordingly, I consider the request for the claimant to undergo psychometric testing by Dr Roldan to be unreasonable for the purposes of s 6.27.
I acknowledge the unfortunate position that the insurer now finds itself, with the report of Dr George being, as expressed on behalf of the insurer, “effectively meaningless”. However, the inadequacies of such report are not something that the claimant need make up for by attending an unreasonable examination for the purposes of psychometric testing. The predominate cause of which is to test his credibility. As stated by Campbell J in Corke, this is a matter for the tribunal that ultimately decides the claimant’s claim.
COSTS
Both parties have provided written submissions that seek an order for exceptional costs, presumably pursuant to s 8.10(4) of the MAI Act. At the assessment conference/preliminary conference I confirmed that the parties consented to each party being awarded exceptional costs regardless of my ultimate determination as to the dispute before me. It was agreed that it appropriate that I make an order that exceptional costs be awarded and the parties to come to an agreement to the amount recoverable. If the parties cannot agree a separate application can be lodged with the Commission for assessment of the costs pursuant to Schedule 2 cl(1)(aa) of the MAI Act.
I am satisfied that exceptional costs are justified in this matter given the complexity of the issues ventilated including extensive case law. I consider it reasonable that counsel were briefed for both parties, noting that the submissions made by counsel were of significant assistance to me coming to my determination.
CONCLUSION
For the reasons expressed above, I make the following directions:
(a) payments of weekly statutory benefits to the claimant are to be reinstated;
(b) the insurer to reimburse the claimant for any payments of weekly statutory benefits not paid since 9 September 2024;
(c) the claimant is not required to attend an appointment with Dr Roldan for the purpose of psychometric testing; and
(d) both the claimant and the insurer are entitled to costs on an exceptional basis pursuant to s8.10(4) of the MAI Act.
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