QBE Insurance (Australia) Limited v Smith
[2024] NSWPICMP 88
•30 January 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Smith [2024] NSWPICMP 88 |
| CLAIMANT: | Ashley Smith |
| INSURER: | QBE Insurance (Australia) Limited |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 30 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 31 October 2019; the medical dispute related to whether the claimant sustained non threshold physical injuries; a previous Medical Assessor found that the claimant suffered a non-threshold psychological injury; that medical assessment was not the subject of review and accepted by the insurer; insurer submitted questions of the nature of the cervical spine injury and the relationship to surgery for the purposes of the non-economic loss entitlement; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; present review application restricted to threshold dispute which was no longer in issue; any response by the Panel to the questions are not conclusive on the medical assessment matter pertaining to the entitlement to receive non-economic damages; the claimant’s entitlement to non-economic loss damages is a separately defined medical assessment matter; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis and Pham v Shui applied; considering the provisions of the MAI Act, particularly sub-sections 7.23(1) and (2)(b), any medical assessment certificate is only conclusive evidence of what is certified; Held – the application to review the medical assessment dismissed as frivolous and/or vexatious. |
| DETERMINATIONS MADE: | The application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act, 2020 as frivolous and/or vexatious. |
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 the review of the medical assessment is summarily dismissed.
Mr Ashley Smith (the claimant) alleges that he suffered a number of injuries including a cervical spine injury in a motor accident on 31 October 2019.
The insurer is liable to pay to Mr Smith any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant commenced proceedings in the Personal Injury Commission (Commission) seeking findings that he sustained non-minor injuries. Pursuant to Schedule 2, cl 2 of the MAI Act this is 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 of the physical injuries was referred to Medical Assessor Woo who issued a Medical Assessment Certificate dated 22 October 2022 (the medical assessment). The Medical Assessor found that the motor accident caused a non-minor injury, specifically a disc injury at C5/6 causing C6 radiculopathy of the right upper limb. The Medical Assessor determined that the claimant suffered non minor physical injuries.
The insurer sought a review of the medical assessment.
In a separate medical assessment certificate dated 22 September 2022 Medical Assessor Friend 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 dispute for the psychological injury.
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 determination of the review of the medical assessment was delayed. In the latter part of 2023, the Panel was reconstituted.
The reconstituted Panel met and subsequently issued a direction which requested submissions from the parties as to why the application should not be dismissed in light of the medical assessment certificate issued by Medical Assessor Friend.
The insurer provided submissions dated 8 December 2023. It accepted that the claimant had a non-threshold injury by reason of the assessment provided by Medical Assessor Friend.
The insurer submitted:
“Most notably, the insurer seeks determination as to whether a non-threshold injury has been sustained by the Claimant as a direct consequence of the subject accident. The finding on causation is relevant to the issue of non-economic loss and whether the Claimant has an entitlement to same.
The parties have agreed to put the following proposed questions before the Review Panel:(a)Did the Claimant suffer symptoms of C6 nerve root compression as a result of any injury sustained in the motor vehicle accident?
(b)What injuries did the Claimant sustain as a result of his involvement in the subject accident?
(c)Has the Claimant sustained a non-threshold cervical spine injury in accordance with the meaning of Section 1.6 of the Motor Accident Injuries Act 2017 (NSW)?
The Insurer submits that a finding by the Review Panel as to whether an accidentrelated non-threshold injury to the cervical spine (causing radiculopathy) has been sustained by the Claimant and whether such injury has resulted in a need for surgical intervention, has a significant impact on the ongoing management of the common law damages claim.
Should it be determined by the Review Panel that the Claimant has suffered an accident-related non-threshold injury to the cervical spine, such finding will have a direct impact as to whether the Claimant’s physical injuries will be assessed above the Section 4.11 threshold and therefore lead to an entitlement to non-economic loss damages having regard to the recent surgery.
Based on the reasons set out above, the Insurer respectfully requests the review proceeding with respect to the assessment of Medical Assessor Woo remain on foot.”
PANEL’S RECOMMENDATION
On 12 December 2023 the Panel issued a document headed “Certificate of Determination” when it requested that the matter be summarily dismissed. I do not intend to refer to these reasons as they are not binding on me.
The matter was then referred to me when the following direction was issued.
“The Review Panel (the Panel) has forwarded ‘an interim decision’ dated 12 December 2023. I accept that the ‘interim decision’ has no legal effect given the Panel has no power to summarily dismiss the proceedings. However, the issue of summary dismissal has now been raised with the parties.
I have a copy of the insurer’s submissions dated 8 December 2023 which confirm that the insurer has accepted that the claimant has a non-threshold psychiatric injury based on the findings of Medical Assessor Friend. In those submissions the insurer has articulated reasons why the Review Panel should proceed with the determination.
I note that 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; Allianz Australia Insurance Ltd v Girgis; Brown v Lewis and Pham v Shui.
The parties are on notice that I am considering dismissing the review application pursuant to s 54(b) of the Personal Injury Commission Act, 2020.” (footnotes omitted).The insurer did not file any submissions in response to the direction.
FINDINGS
Section 54 of the Personal Injury Commission Act, 2020 (PIC Act) applies to panel review proceedings[3] and relevantly provides that 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.”
[3] 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[4] 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.
[4] [2023] NSWPICMP 413.
The insurer has now accepted that the claimant has sustained a non-threshold psychological injury. The claimant need only establish a non-threshold injury of any type to obtain ongoing statutory benefits and pursue a claim for common law damages.[5]
[5] See s 3.11, 3.28 and 4.4 of the MAI Act.
Accordingly, there is no longer a medical dispute as to whether the claimant suffered an injury not defined as a threshold injury.
There was a medical dispute that the claimant only sustained threshold injuries when proceedings were commenced. When the Panel was reconstituted the medical assessment certificate for the psychological injury had been issued. The parties were subsequently requested to make submissions on whether there remained a medical dispute on whether the claimant had sustained only threshold injuries.
As is noted, the claimant was found by Medical Assessor Friend to have sustained a non-threshold psychological injury. That finding is accepted by the insurer.
The insurer has submitted that it is seeking answers from the Review Panel on issues pertaining to the nature of the physical injury caused by the motor accident including the precise nature of the cervical spine injury. It submitted that any finding would have a “direct impact” as to whether the claimant’s injuries will be assessed above the threshold for obtaining non-economic loss damages.
The findings of the Review Panel or Medical Assessor are not determinative of causation in any other dispute between the parties: Owen v Motor Accidents Authority;[6] Allianz Australia Insurance Ltd v Girgis;7 Brown v Lewis8 and Pham v Shui.[7] No response was received when these authorities were expressly brought to the insurer’s attention.
[6] [2012] NSWSC 650. 7 [2011] NSWSC 1424 8 [2006] NSWCA 587.
[7] [2006] NSWCA 373.
The above authorities concern the provisions of the Motor Accidents Compensation Act,
1999 (the MAC Act). Considering the provisions of the MAI Act, particularly sub-sections 7.23 (1) and (2)(b), any medical assessment certificate is only conclusive evidence of what is certified. In light of the consistent statutory provisions concerning the conclusiveness of medical assessments issued under the MAI Act and MAC Act, the authorities referenced above would apply to the MAI Act.
Contrary to the insurer’s submission, any response by the Panel to the questions are not conclusive on the medical assessment matter pertaining to the entitlement to receive noneconomic damages. Whether the claimant is entitled to non-economic loss damages is a separately defined medical assessment matter.[8] The insurer’s submission that the determination of the medical assessment matter for threshold purposes is relevant to the determination of a separate medical assessment matter is plainly incorrect.
[8] See Sch 2 cl 2 of the MAI Act.
Any reasons provided by the Panel have no utility as they are not binding in any other medical assessment matter. The present proceedings are now frivolous and vexatious and are being maintained for an improper purpose.
The improper purpose is to obtain answers to questions for purposes other than the current proceedings. The proceedings are also frivolous and vexatious as there is no dispute about a medical assessment matter pertaining to whether the claimant sustained a non-threshold injury.
The review proceedings are dismissed pursuant to s 54 of the PIC Act.
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