Kuljanin v Allianz Australia Insurance Limited
[2023] NSWPICMR 50
•28 September 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Kuljanin v Allianz Australia Insurance Limited [2023] NSWPICMR 50 |
| CLAIMANT: | Danijela Kuljanin |
| INSURER: | Allianz |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 28 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; whether the degree of permanent impairment as a result of the injury is greater than 10%; section 3.12; cessation of weekly payments; pending claim for damages; whether weekly payments continue if there is a medical dispute under division 7.5; Held – the reviewable decision is affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 The reviewable decision is about the amount of statutory benefits that are payable under Division 3.3 of the MotorAccident Injuries Act2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. The determination is as follows: (a) the reviewable decision is affirmed, and the insurer is to reconsider whether the claimant’s degree of permanent impairment resulting from the injury is greater than 10% for the purpose of whether s 3.12(2)(c) applies upon receipt of the Medical Review Panel’s certificate and reasons. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between (the claimant) and the insurer about the amount of weekly benefits payable under Division 3.3 of the MotorAccident Injuries Act2017 (the MAI Act).
The claimant was involved in a motor accident on 22 January 2019.
The claimant made a claim for statutory benefits, including weekly payments.
The claimant has a pending claim for damages in relation to the motor accident.
On 16 April 2023 Medical Assessor Menogue issued a certificate in which the claimant’s degree of permanent impairment as a result of the motor accident was assessed as being not greater than 10%.
On 14 August 2023 the insurer issued an internal review certificate in which the insurer determined that pursuant to s 3.12(2)(b) of the MAI Act weekly payments would cease from 29 August 2023 because the claimant’s injuries had been assessed as being not greater than 10% permanent impairment.
The claimant has applied for a review of Medical Assessor Menogue’s certificate dated 16 April 2023. A medical review panel will be convening on 7 November 2023. In the meantime, the claimant seeks a merit review of the insurer’s internal review decision dated 14 August 2023.
SUBMISSIONS
The claimant submits that where there is a pending claim for damages and a medical dispute that is the subject of an application for review by a medical review panel the claimant’s impairment has not yet been “finally determined” and as such, weekly payments should continue. The claimant submits Dr Drew Dixon is the only expert to assess all relevant injuries and therefore on the balance of probabilities, the opinion of Dr Dixon as to whole person impairment (15%) should be accepted.
The insurer submits that whether weekly payments should be reinstated is to be determined following the outcome of the medical dispute and that s 3.12(2)(b) requires that payments cease in the meantime in circumstances where the current determination is that the claimant’s injuries are not greater than 10% impairment. The insurer relies on the decision of Mudge v Allianz Australia Insurance Limited [2022] NSWPICMR 52 (8 September 2022) (Mudge).
REASONS
Section 3.12 of the MAI Act provides that:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than the maximum weekly payment period after the motor accident concerned.
(2) The maximum weekly payment period is as follows--
(a) 104 weeks, unless the person's injury is the subject of a pending claim for damages (whether or not the insurer has accepted liability),
(b) 156 weeks if the person's injury is the subject of such a pending claim and the degree of any permanent impairment of the injured person as a result of the injury is not greater than 10%,
(c) 260 weeks if the person's injury is the subject of such a pending claim and the degree of permanent impairment of the injured person as a result of the injury is greater than 10%.
(3) The maximum weekly payment period ends if any such pending claim for damages is withdrawn, settled or finally determined after the period of 104 weeks after the motor accident concerned.”
The insurer determined the claimant’s injuries as a result of the motor accident are not greater than 10% permanent impairment and therefore ceased payment of weekly benefits under s 3.12(2)(b) of the MAI Act.
The available expert medical opinion as to the degree of whole person impairment (WPI) resulting from the subject accident is as follows:
Date Doctor Opinion 30 December 2021 Dr Grant Walker, neurologist 5% WPI 9 February 2022 Dr Robert Brait, orthopaedic surgeon Unable to comment as questions arise about the reasonableness of complaints of pain, the extent of longstanding complaints and apportionment between two motor accidents. 15 August 2022 Dr Drew Dixon, consultant orthopaedic surgeon 15% WPI 16 April 2023 Medical Assessor Menogue 1% WPI
The claimant contends Dr Dixon is the only expert that considered all relevant injuries. However, this is not correct. Medical Assessor Menogue for example considered the same injuries said by Dr Dixon to be attributable to the subject motor accident – cervical spine, right shoulder, lumbar spine and scarring. Medical Assessor Menogue also had before him and considered the reports of Dr Dixon.
Further, the certificate of Medical Assessor Menogue is the more recent assessment with that assessment taking place on 30 March 2023. Dr Dixon assessed the claimant eight and a half months earlier on 12 July 2022. Notably, Dr Dixon assessed the claimant “via Zoom”. Dr Dixon does not adequately explain how, in the circumstances of assessment via Zoom, he conducted his examination or reached his conclusions under the heading “Examination” on page 3 of his report regarding, among other things, stiffness, abduction, flexion, extension, rotation and impingement. Much of
Dr Dixon’s conclusions appear to be based on self-reported symptoms by the claimant.On the other hand, it is understood the claimant attended the medical assessment conducted by Dr Menogue in person. I consider more weight is to be given to an in person and more recent assessment, noting Dr Dixon does not rule out the prospect of some improvement occurring in the months following his assessment albeit that he does not expect any such improvement to be significant.
In any event, Dr Menogue’s assessment is in the form of a certificate issued by the Personal Injury Commission (Commission) resolving a medical dispute. Whilst the claimant does not accept the certificate and it is currently in dispute it remains the presiding opinion as to the degree of permanent impairment that is, it takes precedence over the opinions of Dr Dixon, Dr Walker and Dr Brait unless and until it is set aside by the medical review panel. On this basis, the current determination of permanent impairment is that the claimant’s injuries resulting from the motor accident are not greater than 10% permanent impairment, as per the certificate of Medical Assessor Menogue issued on 16 April 2023. Accordingly, s 3.12(2)(b) presently applies.
The fact that Medical Assessor Menogue’s certificate is the subject of a pending medical review does not give rise to an entitlement under s 3.12(2)(c) to have weekly payments continue beyond 156 weeks until the medical review decision is issued.
Nothing in the wording of s 3.12 permits payments to be made on any kind of interim basis, pending an ongoing medical dispute (or as the claimant puts it, pending “final determination”).
It is clear from the wording of s 3.12(2)(c) that the only basis upon which weekly payments can continue beyond 156 weeks where there is a pending claim for damages is if “the degree of permanent impairment of the injured person as a result of the injury is greater than 10%” (emphasis added). As stated in Mudge:
“To be able to say the claimant’s impairment “is” greater than 10% the expert medical evidence must establish on the balance of probabilities that the claimant’s permanent impairment is in fact greater than 10%. The wording is that the impairment ‘is” greater. In other words, the permanent impairment “must be” greater than 10% as distinct from “might be”, “may be” or “could be” greater than 10% or is “yet to be determined” or is “in dispute”. None of these alternatives to the position that the impairment must be greater than 10% can be inferred from the wording of s 3.12(2)(c). Section 3.12(2)(c) is not a contingent provision, depending on the outcome of a medical despite. Nothing in the wording suggests the provision can operate based on a contingency that the claimant might be assessed as greater than 10% in the medical dispute. Instead, the wording of s 3.12(2)(c) requires a positive position to be established at 156 weeks that is, that the degree of permanent impairment “is” greater than 10%.”
This matter differs slightly from Mudge in that there was not yet a certificate of determination from a single Medical Assessor in Mudge but here we have the certificate of Medical Assessor Menogue. I have concluded above that in this circumstance, the certificate of Medical Assessor Menogue effectively stands as the present impairment determination unless and until it is set aside by the medical review panel. For completeness, however, I will address below the matter in the alternative, being whether the claimant, who has the onus of proof, has proved on balance he is greater than 10% impairment.
On the alternative basis the claimant must establish on balance that their impairment is greater than 10% meaning he must establish it is at least 51% more probable that he is greater than 10% impairment. If the probabilities are equal that is, there is a 50% probability he is greater than 10% and a 50% probability he is less than 10% the claimant has failed to prove their case.
In weighing up the evidence I note Dr Dixon’s opinion is the lone opinion that the claimant’s impairment is greater than 10%. It is based on assessment via Zoom eight and a half months prior to assessment by Medical Assessor Menogue. It is in stark contrast to Medical Assessor Menogue’s opinion there is only 1% impairment. Having regard to these matters and other medical evidence indicating a degree of impairment not greater than 10% I cannot be satisfied on the balance of probabilities that the claimant’s injuries resulting from the subject accident are greater than 10% permanent impairment. The position is, at best for the claimant, one where the probabilities are equal in which case the claimant has failed to prove their case.
Accordingly, regardless of whether Medical Assessor Menogue’s certificate takes precedence in circumstances where it is not yet overturned, I conclude the claimant has not proved on the balance of probabilities that their impairment is greater than 10%. Accordingly, s 3.12(2)(b) applies regardless and, unless and until the claimant’s permanent impairment “is” assessed as being greater than 10% the claimant is not entitled to weekly payments under s 3.12(2)(b). Section 3.12(2)(c), which permits payments beyond 156 weeks will only be triggered if the medical review panel sets aside the certificate of Medical Assessor Menogue and in its place issues a certificate to the effect the claimant’s impairment is greater than 10%.
I remain of the view the position under the MAI Act is as set out in paragraphs 20 to 26 in Mudge. Those paragraphs should be read as part of the reasons in this decision.
If the medical review panel determines the claimant’s permanent impairment is greater than 10% the insurer can reinstate weekly payments, including make-up payments in respect of any past period. Unlike the insurer at risk of being unable to claw back payments from the claimant should they become repayable, the claimant is not at risk of the insurer being unable to pay should the medical assessment be determined in their favour.
In the meantime, the language of s 3.12(2)(b) is that weekly payments cease at 156 weeks if the permanent impairment “is” not greater than 10%. The requirement of s 3.12(2)(c) that the claimant “is” greater than 10% is a present requirement which is presently not satisfied. The insurer is therefore entitled to cease weekly payments after 156 weeks.
Section 3.12(2)(c) will only be triggered, if the medical review panel determines that the claimant’s degree of permanent impairment is greater than 10%.
The insurer suggests this merit review should be deferred pending the outcome of the medical review panel. However, I do not consider a deferral would be in keeping with the objects of the MAI Act in s 1.3(2) for "the early resolution of motor accident claims and the quick, cost-effective and just resolution of disputes” or the guiding principle in s 42 of the Personal Injury Commission Act2020 (PIC Act), which requires the Commission to facilitate “the just, quick and cost-effective resolution of the real issues in the proceedings”.
It seems likely that the insurer will resume payment of weekly benefits under
s 3.12(2)(c) if the medical review panel determines the claimant’s impairment is greater than 10% or that the claimant will concede weekly benefits are not payable if the medical review panel does not set aside the certificate of Medical Assessor Menogue (or otherwise determines the claimant’s impairment is not greater than 10%). As such, it is unlikely the dispute about payment of weekly benefits that gave rise to this merit review will continue beyond the outcome of the medical review panel. There is no utility in the circumstances from delaying the outcome of this merit review (for example, weekly payments could not be reinstated in the interim for the reasons set out above). Deferring the matter will likely involve some ongoing costs for the parties with little to no benefit in circumstances where the merit review may ultimately become redundant, which is not consistent with the objects of the MAI Act or the guiding principle in the PIC Act.It is clear from the use of the present tense language “is” in s 3.12 of the MAI Act that the section requires a “present” assessment as to whether the claimant is greater than 10% permanent impairment. The medical review panel decision is not presently available and accordingly, I am required to determine the matter on the “present” evidence. Given there is no utility in deferring the matter I consider this to be consistent with the objects of the MAI Act and the PIC Act as the real issue in this matter is whether weekly benefits should be reinstated pending the outcome of the medical review panel. This issue has been determined in this decision, which is consistent with the guiding principle in the PIC Act.
CONCLUSION
Pursuant to s 3.12(2)(b) of the MAI Act weekly payments cease after 156 weeks if the claimant’s degree of permanent impairment as a result of the injury is not greater than 10%.
Pursuant to s 3.12(2)(c) weekly payments may only continue beyond 156 weeks if the degree of permanent impairment is greater than 10%.
I consider that until and unless it is set aside the certificate of Medical Assessor Menogue takes precedence and remains the present determination (for the purpose of s 3.12) that the claimant’s impairment is not greater than 10%. In the alternative, I am not satisfied on the balance of probabilities that the claimant’s degree of permanent impairment is greater than 10%.
Accordingly, s 3.12(2)(c) is not presently triggered (regardless of whether Medical Assessor Menogue’s certificate is to be taken as the current determination) and
s 3.12(2)(b) applies. Whilst there is a pending medical panel dispute, nothing in the language of the MAI Act permits payments to continue beyond 156 weeks on a contingent basis in case the medical panel dispute is determined in the claimant’s favour.The insurer’s decision to cease payments after 156 weeks under s 3.12(2)(b) therefore remains the correct decision, pending determination of the medical review panel.
Accordingly:
(a) the reviewable decision is affirmed, and
(b) the insurer is to reconsider whether the claimant’s degree of permanent impairment resulting from the injury is greater than 10% for the purpose of whether s 3.12(2)(c) applies upon receipt of the Medical Review Panel’s certificate and reasons.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines;
· Motor Accident Injuries Regulation, and
· PIC Act.
0
1
0