Miller v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMR 55
•20 October 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Miller v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 55 |
| CLAIMANT: | Emily Miller |
| INSURER: | NRMA |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 20 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; section 3.1; whether injury resulted from motor accident; section 3.8; whether loss of earnings resulted from injury suffered as a result of motor accident; pre-existing condition; Held – the reviewable decision is affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 DETERMINATION 1. The reviewable decision is affirmed. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Emily Miller (the claimant) and the insurer about the amount of weekly payments of statutory benefits payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant was involved in a motor accident on 24 January 2021.
On 23 June 2023, the claimant sought weekly payments of statutory benefits for loss of earnings arising from hospital admission allegedly required as a result of the motor accident.
On 15 August 2023 the insurer declined to make weekly payments of statutory benefits for the claimant's loss of wages on the basis the loss was not a result of the motor accident.
On 25 August 2023 the claimant requested an internal review of the insurer’s decision of 15 August 2023.
On 29 August 2023 the insurer issued their internal review decision in which the insurer affirmed their original decision that weekly payments of statutory benefits are not payable because the loss is not a result of the motor accident.
The claimant has made an application for a merit review of the insurer’s internal review decision dated 29 August 2023 (the Application).
SUBMISSIONS
Other than broadly contending the hospital admission is a result of the motor accident (that is, that the claimant required hospitalisation for an injury resulting from the accident) the claimant does not make any specific submissions in their application for an internal review or in the Application. The claimant’s submissions are silent as to how the claimant says it should be determined that weekly payments are payable for loss of income whilst the claimant was in hospital.
The insurer submits:
(a) the claimant has a significant history of pre-existing psychological injury;
(b) the medical evidence establishes the subject admission to a mental health hospital was not a result of the motor accident, and
(c) accordingly, pursuant to s 3.1 of the MAI Act, statutory benefits, including weekly payments, are not payable in connection with any loss arising from the hospital admission.
REASONS
Issues
There does not appear to be any dispute that the claimant is an earner within the meaning in the MAI Act.
The issue in dispute is whether any loss of earnings suffered by the claimant whilst admitted to a mental health hospital is a result of the motor accident. This requires determination of whether the treatment the claimant sought through hospital admission was required as a result of the motor accident.
The legislation
Section 3.1(1) of the MAI Act provides:
“If the death of or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by this Part.”
(emphasis added)The claimant does not provide specific dates, but it is understood the period of hospital admission in question is 30 June 2023 to 4 August 2023, a period of approximately five weeks. This hospital admission is more than 78 weeks after the accident. Accordingly, s 3.8 of the MAI Act applies to payment of weekly payments of statutory benefits and relevantly provides in subclause 1:
“(1) A person who is injured as a result of a motor accident and suffers a total or partial loss of earning capacity as a result of the injury is entitled to weekly payments of statutory benefits under this section after the end of the second entitlement period, but only if the person--
(a) …”
(emphasis added)
Accordingly, for weekly payments to be payable under s 3.8 the loss of earning capacity suffered by the claimant said to result in a loss of earnings must be a result of an injury that is a result of the motor accident. The claimant contends she suffered a loss of earning capacity in the relevant period as a result of psychological injury resulting from the motor accident for which she alleges she required hospital treatment.
Accordingly, the question to be determined is whether the psychological injury that resulted from the motor accident was the reason why the claimant required hospitalisation from 30 June 2023 to 4 August 2023.
Medical evidence
The period of hospital admission is 30 June 2023 to 4 August 2023 which is approximately two years and five months after the motor accident occurred.
The medical evidence establishes there is a long history of significant pre-existing psychological conditions dating back around 10 years. Pre-existing diagnoses include depression, anxiety, and borderline personality disorder (BPD).
The medical evidence establishes on balance that although the claimant had been receiving treatment over the years the pre-existing psychological conditions:
(a) remained ongoing and symptomatic at the time of the motor accident, and
(b) have also remained ongoing and symptomatic since the motor accident, including at the time of hospitalisation on 30 June 2023.
On balance, the evidence establishes that the claimant’s pre-existing conditions had neither fully resolved, nor sufficiently stabilised before or after the motor accident.
The evidence establishes the claimant had several hospital admissions over the years in connection with pre-existing psychological conditions, including an admission approximately six months before the motor accident.
Ongoing symptoms of the pre-existing conditions include suicidal ideations and self-harm. The claimant reported that prior to/at the time of the motor accident they found it difficult to manage self-care due to their pre-existing psychological conditions, had attempted suicide and were struggling to remain in employment.
After the motor accident, on 31 March 2021 the claimant presented to Maitland Private Hospital and was admitted with depressive symptoms and worsening suicidal thoughts. This was said to be in the context of the then recent motor accident, which had occurred approximately two months prior. The hospital discharge report dated
20 July 2021 records other stressors, however, including being forced to move houses.Between 21 July 2021 and 29 June 2023, a period of almost two years, the claimant did not report any motor accident-related psychological symptoms to their treating psychiatrist.
Upon being admitted to hospital on 30 June 2023 the mental health triage form of that date and mental health assessment form dated 3 July 2023 records self-harm with a glue gun in the context of bad panic attacks, ongoing nightmares, anxiety all the time, low mood and “increased panic and distress in the last six months” due to the subject accident. However, this is inconsistent with reports by the claimant when they consulted with Dr Aaron Simpson, psychologist, in the lead up to the hospital admission. Dr Simpson recorded on 30 January 2023 and 24 April 2023 that the claimant had frequent thoughts and urges to self-harm (cutting and burning with a glue gun) related to stressors at work.
From 7 July 2023 to 1 August 2023, whilst in hospital, the claimant reported stressful dreams about their ex-husband and emotional struggles relating to their sister, family and work colleague.
On 11 July 2023, also while in hospital, the claimant reported self-harming as a means of legitimising their pain arising from feeling 'unseen' due to conflict with their parents.
The evidence establishes the claimant did not report any accident-related symptoms during the hospital stay other than upon admission and as part of the initial mental health assessment on 3 July 2023.
The hospital records in respect of the subject period of admission consistently record that the claimant’s pre-existing BPD is “in crisis”.
Distinct from the claimant’s pre-existing conditions the medical evidence establishes on balance that the claimant suffered post-traumatic stress disorder as a result of the motor accident, as diagnosed by Dr Yajuvendra Bisht, psychiatrist in a medico legal report dated 24 April 2023 following consultation with the claimant on 14 April 2023.
Dr Bisht, however concluded that this condition did not impact the claimant’s ability to continue working in their pre-accident employment and that the claimant was fit for work.
Consideration
The medical evidence, as outlined above, establishes on the balance of probabilities that the hospital admission on 30 June 2023 and ongoing stay until 4 August 2023 was as a result of the claimant’s pre-existing BPD and not as a result of the motor accident. The only evidence of a connection to the motor accident is the claimant’s self-attribution at the time of admission and initial mental health assessment that their need for hospital treatment was a result of the motor accident. However, the overwhelming evidence is that the medical experts providing treatment to the claimant during the period of hospitalisation considered the claimant’s admission and need for treatment to be as a result of the claimant’s pre-existing BPD being in crisis.
Even if it were established that the hospitalisation was in part as a result of psychological injury suffered as a result of the motor accident and not solely because of the claimant’s BPD being in crisis I do not consider statutory benefits payable. This is because the wording of ss 3.1 and 3.8 does not, in my view, leave room for statutory benefits to be paid because hospital treatment was in part required for an injury suffered as a result of the motor accident.
As set out above, s 3.1 requires the injury the subject of the treatment to be an injury resulting from the motor accident. Section 3.8 in turn requires that the loss of earnings must be as a result of an injury resulting from the motor accident. The words “as a result of” effectively require application of the “but for” test. In this case, the “but for” question is whether the claimant would have been admitted to hospital but for the motor accident (more specifically, but for the psychological injury resulting from the accident). The answer to that question is contained in the medical evidence. The medical evidence establishes on balance that regardless of the motor accident and any psychological injury resulting from same, the claimant would have been admitted to hospital from 30 June 2023 to 4 August 2023 in any event because of pre-existing BPD.
Accordingly, it cannot be said that but for the motor accident the claimant would not have suffered a loss of earnings during hospitalisation. Even if hospital admission and treatment was in part as a result of the motor accident the claimant likely would have been admitted to hospital and undergone treatment for the same period in any event because of their pre-existing condition, given the expert medical opinion of treatment providers regarding the pre-existing BPD being “in crisis”.
In other words, the claimant would have suffered a loss of earnings regardless of whether the accident occurred and/or regardless of whether she suffered psychological injury as a result of the accident. The test that the loss must be a result of injury suffered as a result of the motor accident that is required by ss 3.1 and 3.8 is therefore not met. Where the test under ss 3.1 and 3.8 is not met in respect of the loss of earnings, statutory benefits are not payable for that loss.
CONCLUSION
For the reasons set out above the claimant has not established their loss of earnings arising from hospitalisation from 30 June 2023 to 4 August 2023 was a result of injury suffered as a result of the motor accident. Accordingly, statutory benefits are not payable under s 3.8 in respect of any loss of earnings arising from hospitalisation and/or treatment from 30 June 2023 to 4 August 2023.
The reviewable decision is therefore affirmed.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;
· The Motor Accident Guidelines, and
· the Motor Accident Injuries Regulation 2017.
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