Ryan v Insurance Australia Ltd T/As NRMA Insurance (Motor Accident Injuries)
[2025] ACAT 33
•6 May 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
RYAN v INSURANCE AUSTRALIA LTD T/AS NRMA INSURANCE (Motor Accident Injuries) [2025] ACAT 33
MAI 8/2023
Catchwords: MOTOR ACCIDENT INJURIES – insurer request for medical examination – applicant refusal to attend – claim compensation suspended – whether refusal to attend reasonable – applicant has difficulty focusing for long periods of time, suffers from: post-concussion syndrome, post traumatic headaches and migraines, post-traumatic stress disorder, chronic pain and an exacerbation of depression anxiety and adjustment disorder – applicant fearful of insurer processes – whether applicant has provided a reasonable excuse for not attending medical assessments – applicant did not have a reasonable excuse for their failure to attend medical appointments.
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s7, 24, 25
Motor Accident Injuries Act (NSW) 2017
Motor Accident Injuries Act 2019 s 89 110,112, 113, 121, 192, 193
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2024 r 65
Cases cited:Australian Postal Corporation v Forgie (2003) 130 FCR 279
DVFW and Comcare (Compensation) [2025] ARTA 117
Fazlic v Milinginbi Community Inc (1980) 38 ALR 424
NRJT and Australian Offshore Solutions Pty Ltd (Compensation) [2015] AATA 588Ryan v NRMA Insurance [2024] ACAT 52
Ryan v Insurance Australia Ltd t/as NRMA Insurance [2024] ACAT 86McKinnon v Commonwealth [1999] FCA 717
McKinnon v Commonwealth [1998] FCA 1456
Prescott v Bulldog Tools Ltd [1981] 3 All ER 869
Pascoe v Australian Postal Corporation (2004) 77 ALD 464
Re Twaddell and Comcare (2001) 65 ALD 794
Re Kermode and Military Rehabilitation and Compensation Commission [2009] AAT 904
Re WCNC and Comcare (Compensation) [2019] AATA 2777
Taikato v The Queen [1996] HCA 28
Tribunal:Senior Member R Plibersek
Date of Orders: 6 May 2025
Date of Reasons for Decision: 6 May 2025
Date of Reasons for Decision: 13 May 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 8/2023
BETWEEN:
TAMARA RYAN
Applicant
AND:
INSURANCE AUSTRALIA LTD T/AS NRMA INSURANCE
Respondent
TRIBUNAL:Senior Member R Plibersek
DATE:6 May 2025
ORDER
The Tribunal orders that:
The respondent insurer’s decision, made under sub-section 121(3) of the Motor Accident Injuries Act 2019, to suspend the applicant’s treatment and care benefits and income replacement benefit payments until they comply with its request, is affirmed.
………………………………..
Senior Member R Plibersek
REASONS FOR DECISION
Introduction
On 28 January 2022 Mx Ryan was injured in a motor vehicle accident in a roundabout. Mx Ryan reported that they sustained various injuries including post-concussion syndrome, post traumatic headaches and migraines, post-traumatic stress disorder, chronic pain and an exacerbation of depression anxiety and adjustment disorder.
On 6 February 2022 Mx Ryan made an application for defined benefits under the Motor Accident Injuries Act 2019 (the MAI Act).
On 23 February 2022 the respondent (the insurer) accepted liability to pay defined benefits under the MAI Act.
There is a dispute between the parties about whether some of Mx Ryan’s injuries were caused by the motor accident.
The insurer arranged medical assessment appointments with medical practitioners to assess Mx Ryan’s injuries.
Mx Ryan did not attend those medical assessment appointments stating that they were unable to do so due to a number of medical issues.
In response, on 24 August 2023, the insurer decided to suspend payment of Mx Ryan’s treatment and care and income replacement benefits (the defined benefits). This decision was made under sub-section 121 (3) of the MAI Act.
The central issue for determination in this case is whether Mx Ryan had a reasonable excuse for failing to comply with the insurer’s requests that they attend for medical assessments.
Procedural Background
By an application dated 16 November 2023 Mx Ryan applied for a review of three decisions made by the insurer. Two of those decisions required Mx Ryan to attend a health assessment with Dr Roland and Dr Dalton. The third decision made by the insurer on 24 August 2023 was to suspend payment of Mx Ryan’s defined benefits, (the Suspension Decision).
Mx Ryan applied for an extension of time to apply for review of the insurer’s decisions.
By a decision dated 31 July 2024, the Tribunal decided to it had the power to extend the time for the applicant to make an application for external review.
By a decision dated 21 November 2024, the Tribunal decided to grant an extension of time to Mx Ryan to apply for a review of the insurer’s decision dated 24 August 2023 to suspend the defined benefits.[1]
[1] Ryan v NRMA Insurance [2024] ACAT 86 at [59]
On 11 December 2024, the Tribunal directed the parties to file any submissions, further information or evidence and make any application for the matter to be determined on the papers.
In response to the Tribunal’s directions dated 11 December 2024, the parties provided the following further documentation:
(a)applicant’s representations filed 24 January 2025;
(b)applicant’s application for determination on the papers filed on 24 February 2025;
(c)applicant’s application for determination on the papers filed on 7 March 2025;
(d)report from Dr Stephen Praet dated 26 February 2025;
(e)application to present additional information including respondent’s submissions filed on 11 March 2025;
(f)respondent’s submissions in reply filed on 14 March 2025;
(g)applicant’s submissions supporting application for review filed on 14 March 2025;
(h)respondent’s further documents available to decision maker filed 28 March 2025; and
(i)respondent’s submissions in relation to applicants application for review filed on 7 April 2025.
In its Directions made on 11 December 2024, the Tribunal noted that:
(a) the decisions to require the applicant to undergo an assessment of their injuries, made under s 121(1) of the Motor Accidents Injuries Act 2019, are not decisions subject to review;
(b) the decision under review is a decision to suspend the applicant’s defined benefits under s 123(3) of the Motor Accidents injuries Act 2019;
(c) an issue for the Tribunal to determine is whether the applicant had a reasonable excuse for failing to comply with the respondent’s requests that they attend health practioners for assessments;
(d) there may also be an issue as to whether, if the applicant did not have a reasonable excuse, the decision made by the respondent is the correct and preferable decision. (sic)
By application dated 24 February 2024, Mx Ryan applied for the matter to be determined on the papers instead of in person at the Tribunal. The reasons given by Mx Ryan included inability to concentrate for long periods of time, inability to think on the spot, memory problems and traumatic brain injury, scared of dealing with the insurer, unreasonable demands made by the insurer, combative nature of insurer, and fear of developing secondary trauma associated with the insurer’s proceedings and processes.
In submissions dated 14 March 2025, the insurer responded that it opposed the application for a hearing on the papers. The insurer referred to rule 65 of the ACT Civil and Administrative Tribunal Procedural Rules 2024 to the effect that a hearing on the papers should be in the public interest and the tribunal has sufficient information to make an informed decision on the application. The insurer argued that a hearing would allow the tribunal to ask questions of the parties about their written submissions and give the parties a fair opportunity to respond to issues that may arise from the submissions or during the hearing. The insurer referred to the applicant’s previous argument that their health conditions prejudice their ability to participate in an oral hearing. The insurer also rejects the applicant’s submissions that the insurer did not attempt to address the applicants concerns and accommodate their needs in relation to the medical assessments.
On 8 April 2025, the Tribunal considered all the written submissions made by the parties. The Tribunal has taken into account rule 65 and decided that it was in the public interest and that it had sufficient documentary evidence, medical reports and written submissions to determine the matter before it on the papers. In reaching this view the Tribunal was also mindful of the procedural difficulties, delay, costs and complexity in having an oral hearing given Mx Ryan’s reported difficulties in concentrating and answering questions.[2]
[2] Section 7, Motor Accident Injuries Act 2019
On 8 April 2025, the Tribunal decided to grant Mx Ryan’s application determine the matter on the papers and directed that the parties file electronic copies of their most recent submissions.
Factual Background
Between February 2022 and October 2022, Mx Ryan attended over 14 doctors, psychiatrist, psychologists and allied health professionals to receive treatment and opinions about her medical conditions.[3]
[3] Respondent’s submissions in relation to applicant’s application for review filed on 7 April 2025 at [27]
On 3 March 2023, the insurer sent Mx Ryan a letter requiring them to attend a scheduled appointment with a clinical psychologist, Dr Fernando Roldan, for an assessment of Mx Ryan’s needs for treatment and care. The decision to require Mx Ryan to attend that appointment was made under section 121(1) of the MAI Act and was affirmed on internal review on 24 March 2023.
On 26 May 2023, the insurer required Mx Ryan to undergo an assessment of their physical injuries by Dr Seamus Dalton, orthopaedic surgeon, pursuant to section 121(1) of the MAI Act. That decision was affirmed on internal review on 15 June 2023.
Mx Ryan did not attend the scheduled appointments with Dr Roldan or Dr Dalton.
In May, June and July 2023, Mx Ryan sent a number of emails to the insurer about the appointments questioning the need to attend those appointments and saying they were medically unable to attend them.
On 8 August 2023, the insurer decided to suspend Mx Ryan’s defined benefits under sub-section 121(3) of the MAI Act because Mx Ryan had not complied with the insurer’s request to attend the examinations arranged by the insurer. That decision was affirmed on internal review on 24 August 2023.
Mx Ryan applied for review of the three internal review decisions on 16 November 2023 and, as the applications for review were out of time, also applied for an extension of time to make those applications.
The matter came before the Tribunal for an interim hearing of Mx Ryan’s extension of time applications on 9 February 2024.
On 31 July 2024 the Tribunal found it did have power to extend time to apply for review of the Suspension Decision.[4]
[4] Ryan v NRMA Insurance [2024] ACAT 52. See also ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), ss 24, 25; ACT Civil and Administrative Tribunal Procedures Rules 2020 (repealed), r 38(4); and ACT Civil and Administrative Tribunal Procedures Rules 2024, r 38(4).
On 21 August 2024, the Tribunal dismissed Mx Ryan’s applications for an extension of time to apply for review of the first two internal review decisions. It also decided that the Tribunal has power to extend time in respect of Mx Ryan’s application to review the Suspension Decision and jurisdiction to review that decision if an extension of time is granted.[5]
Relevant legislation
[5] MAI Act ss 192, 193 and Schedule 1, Part 1.2, item 25 and see Ryan v NRMA Insurance [2024] ACAT 52 at [6] and Ryan v Insurance Australia Ltd t/as NRMA Insurance [2024] ACAT 86
Under the MAI Act, a person injured in a motor accident is entitled to treatment and care benefits for treatment and care expenses.[6]
[6] MAI Act s 112(1) and (2)
The phrase “treatment and care expenses”:
(a) means expenses incurred by the injured person in providing for the injured person’s treatment and care; but
(b) does not include expenses incurred for treatment and care—
(i)that was not reasonable and necessary; or
Note Section 120 deals with deciding whether treatment and care is reasonable and necessary.
(ii)that did not relate to a personal injury sustained in the motor accident; or
(iii) for which the injured person has not paid and is not liable to pay.[7]
[7] MAI Act s 113
The term “treatment and care” includes medical treatment.[8]
[8] MAI Act s 110(1)(a)
A person injured in a motor accident is also entitled to income replacement benefits in certain circumstances.[9]
[9] MAI Act s 89(1)
Subsections 121(1) to (3) of the MAI Act provide:
121 Assessment of injured person’s injuries
(1) The relevant insurer for a motor accident may require a person injured in the motor accident to attend a health practitioner for an assessment of the injured person’s needs for treatment and care, including a medical or other examination.
Note 1 An injured person must include an authority to disclose personal health information with the person’s application—see s 57.
Note 2 Authority to disclose personal health information—see s 54.
Note 3 Health practitioner—see the Legislation Act, dictionary, pt 1.
(2) The injured person must comply with any reasonable request made by the relevant insurer in relation to the assessment.
(3) If the injured person fails, without reasonable excuse, to comply with the relevant insurer’s request, the relevant insurer may suspend either or both of the following until the person complies with the request:
(a)the person’s treatment and care benefits;
(b)the person’s income replacement benefit payments.
Under subsection 193(1)(a) of the MAI Act, an applicant for defined benefits may apply to the ACAT for external review of an ACAT reviewable decision on a question of law or fact.
The Suspension Decision, made under sub-section 121(3) of the MAI Act, is an “ACAT reviewable decision.”[10]
Correspondence between Mx Ryan and the insurer about attendance at medical appointments[11]
[10] MAI Act s 192, Schedule 1, Part 1.2, item 25
[11] This section of the reasons is based on the documents and submissions filed by the insurer in : respondent’s submissions in relation to applicant’s application for review filed on 7 April 2025 at [3.1] to [3.37] and Respondent’s Further Documents Available to Decision Maker filed on 28 March 2025
On 3 March 2023, the insurer informed Mx Ryan that it had arranged for Mx Ryan to be assessed by Dr Roldan on 9 June 2023.
On 10 March 2023, Mx Ryan requested internal review of the decision for Mx Ryan to be assessed by Dr Roldan. Mx Ryan submitted that the treatment providers had provided sufficient medical evidence, and that an independent medical examination was unnecessary.
On 20 March 2023, the insurer affirmed its decision requiring Mx Ryan to attend the assessment by Dr Roldan on the basis that that requirement was reasonable.
On 4 May 2023, the insurer informed Mx Ryan that it had arranged for Mx Ryan to be assessed by Dr Dalton on 26 May 2023.
On 5 May 2023, Mx Ryan and insurer corresponded in relation to approval of treatment and care benefits following recommendations made by the Mx Ryan’s general practitioner, Dr Dana Phang, in relation to support worker services. The insurer wrote to Mx Ryan that the assessments with Drs Roldan and Dalton “are to be conducted to assist us further in managing your entitlements, determining your injuries as a result of the accident and guide us with regards to your ongoing treatment, care and recovery requirements”.
On 17 May 2023, Mx Ryan wrote to the insurer and requested an explanation as to why the assessment with Dr Dalton was justified. The insurer replied on 19 May 2023, saying that the assessment was required “in line with sections 121 and 131 of MAI 2019 and Section 3 of the Treatment and Care Guidelines”. The insurer provided an extract of the Treatment and Care Guidelines to Mx Ryan.
On 19 May 2023, Mx Ryan wrote to the insurer that, “I regretfully advise that I am unable to attend at the appointment on 26 May due to a prior conflicting appointment”. The insurer replied that it would attempt to reschedule the appointment to 16 June 2023 and asked Mx Ryan for the details of the conflicting appointment. Mx Ryan did not respond to that request.
On 20 May 2023, Mx Ryan emailed the insurer enclosing reports of Dr Phang (general practitioner) and Dr Flynn (psychiatrist), each dated 19 May 2023. Mx Ryan wrote that each report suggested that the medical assessment was “unnecessary”.
The insurer replied to Mx Ryan on 22 May 2023 and wrote:
The Insurer required the applicant's attendance at the assessments to ‘assist us in reviewing and considering the ongoing need for treatment and care, assist us in making ongoing decisions relating to your treatment and care, resolve any disputes with regards to your treatment and care needs and determine whether, or the extent that, the injuries resulted from the motor accident’.
The insurer confirmed that there had been no prior assessment arranged by the insurer to that date.
On 26 May 2023, Mx Ryan wrote to the insurer referring to the reports of Dr Flynn dated 19 May 2023 and 24 May 2023. Mx Ryan wrote:
(a)“Please let me know if you decide the IME appointments on 09.06.23 and 16.06.23 are still reasonable and necessary to attend, given the detrimental effect the additional assessments are likely to have on me”.
(b)Mx Ryan asked why the information available was insufficient.
(c)Mx Ryan referred to alleged issues of transparency and delays in approving requested treatment and care and said that “[t]he current situation raises doubts about the intentions behind the repeated requests to involve additional external medical experts, seemingly in an attempt to avoid covering the ongoing recovery support that has been deemed necessary”.
On 26 May 2023, the insurer wrote to Mx Ryan and confirmed that the appointment with Dr Dalton was rescheduled to 16 June 2023.
On 26 May 2023, Dr Flynn corresponded with the insurer and wrote:
Will NRMA Claims be compiling a file of past medical reports for Dr Dalton, rather than relying on Tamara to collect all the records? (Generic letter just sent).
It would be useful to be transparent which records you will be providing to Dr Dalton for his assessment, and if any gaps, which records you then need on the day.
Ideally, given you have all the reports on file, NRMA Claims take charge of this administration and list the reports provided to Dr Dalton.
On 31 May 2023, the insurer wrote to Dr Flynn and Mx Ryan in reply to Dr Flynn’s email of 26 May 2023 stating that “as these are assessments arranged by the insurer, NRMA will ensure that the referrals to the assessor are completed and copies of reports and records will be made available to the assessors prior to the appointments. Tamara does not need to provide any records and reports ahead of the assessment”.
On 1 June 2023, Mx Ryan wrote to the insurer to advise that Mx Ryan had Covid-19, and that Mx Ryan did not know if Mx Ryan would be capable of attending the appointment on 9 June 2023.
On 4 June 2023, Mx Ryan requested review of the insurer’s decision in relation to the requirement to attend the assessment by Dr Dalton. Mx Ryan cited a number of documents and noted the following “as suggested by DBIS”:
(a)section 3.1.3 of the Guidelines, to “minimise the frequency of medical appointments, an insurer should, if appropriate, first request additional information from a treating practitioner prior to asking for an assessment of a person’s treatment and care needs.”
(b)I have asked why the information NRMA currently have from reports is insufficient for their purposes. I have not had a response to this query.
(c)I have asked what information NRMA is requesting that is not reasonably available from existing reports or existing practitioners. I have not had a response to this query.
(d)the documented detrimental effect the additional assessment … is likely to have on me and the detrimental effect the delays are already having on me.
On 5 June 2023, the insurer wrote to Mx Ryan advising that the assessment with Dr Roldan had been rescheduled to 4 August 2023. On 7 June 2023, Mx Ryan sought review of that decision. The insurer replied that the decision had already been the subject of an internal review and that it could not be further reviewed.
On 8 and 9 June 2023, the insurer and Mx Ryan emailed about the decision to require Mx Ryan to attend the assessment with Dr Dalton. Mx Ryan requested confirmation that the insurer would consider the points raised on 4 June 2023.
On 15 June 2023, the insurer’s internal review decision-maker provided a summary of the documents being considered in the internal review of the decision requiring Mx Ryan to attend an assessment with Dr Dalton. The internal review decision-maker asked whether the applicant wished to provide “any further medical reports or opinions” for him to consider.
Mx Ryan replied that:
I am not able to cross check if you have the full list of reports.
I am not able to attend the medical appointments.
Does this mean NRMA will now cease all medical services? Can I ask for this decision to be reviewed anywhere?
On 15 June 2023, the insurer affirmed its decision requiring Mx Ryan to attend the Dr Dalton assessment. A summary of the insurer’s reasons are:
(a)After recording a summary of the medical evidence, the insurer’s internal review decision-maker said that he believed that the “treatment carried out to date has not resulted in significant improvements in [the applicant’s] functional capacity both in ... ability to independently carry out … activities of daily living and return to some form of employment and university studies”.
(b)Ultimately, the respondent found that it would be reasonable for Mx Ryan to undergo an assessment with Dr Dalton “to assist the Insurer with completing of future recovery plans, reviewing any future treatment and care requests which may be required and determining the nature of [the applicant's] injuries sustained from the effects of the motor accident”.
In an e-mail on 15 June 2023, the insurer notified Mx Ryan of their review rights in the ACAT.
On 16 June 2023, Mx Ryan did not attend the appointment with Dr Dalton.
On 26 June 2023, Mx Ryan wrote to the insurer that:
I am also confused about where we are up to with the IME appointments. Are there some scheduled or not? I cannot go. Does this mean all my medical support ends?
On 27 June 2023, the insurer replied:
Your next scheduled appointment is with Dr Roldan on 04/08/23. Please refer to attached IME appointment confirmation letter that was sent to you of even date via email. Please confirm the reasons you are unable to attend. Please do not hesitate to contact me for any questions or concerns.
On 4 July 2023, Mx Ryan replied to the insurer stating that Mx Ryan was, “too terrified. I physically cannot attend”.
On 6 July 2023, the insurer replied to the applicant. A summary of that reply follows:
(a)The insurer “fully recommended” a support person accompany Mx Ryan to the assessment with Dr Roldan, and the insurer advised that it was happy to assist Mx Ryan with any costs associated with that support.
(b)The insurer asked Mx Ryan whether there was “any additional support you may require in order to attend the appointment”.
(c)The insurer encouraged Mx Ryan to “use the exercises in place with your psychologist and psychiatrist and all treatment providers that have been working with you so far in your recovery”.
Mx Ryan did not reply to the insurer’s suggestion about having additional support(s) to attend the assessment by Dr Roldan.
On 13 July 2023, Mx Ryan wrote to the insurer enclosing a letter of Dr Phang dated 11 July 2023 which stated that they were “medically unable to attend an IME appointment”.
On 13 July 2023, the insurer replied that the decision requiring Mx Ryan to attend the assessment by Dr Roldan had been affirmed by internal review, and that, should Mx Ryan still disagree with the insurer’s internal review decision, Mx Ryan “can further lodge a dispute with ACAT”.
On 20 July and 27 July 2023, the insurer wrote to Mx Ryan and asked Mx Ryan to confirm their intention regarding attendance at the assessment by Dr Roldan. on 3 August 2023. Mx Ryan did not respond to those e-mails.
On 4 August 2023, Mx Ryan failed to attend the assessment by Dr Roldan.
On 8 August 2023, the insurer made a decision suspending the applicant’s defined benefits. In that decision, the insurer reasoned that Mx Ryan had not complied with the obligation to attend a medical assessment, and that the failure was without reasonable excuse. The insurer referred to the applicant’s failures to attend the assessments by Dr Roldan and Dr Dalton.
On 10 August 2023, Mx Ryan replied, “I am not able to attend the IME appointment as you have been informed. I request a review of decision.”
On 11 August 2023, the insurer wrote to Mx Ryan and acknowledged the request for internal review. The insurer invited Mx Ryan to provide any further documents or information that Mx Ryan wished to be considered in the review of the decision.
On 18 August 2023, Mx Ryan wrote to the insurer and enclosed reports of Dr Phang, Dr Flynn, Dr Praet and Dr Gawarikar. Mx Ryan asserted that the reports “recommend against the medico-legal assessments”. The reports provided by Mx Ryan noted that Mx Ryan was anxious about the medical examinations and would find it difficult to concentrate or be fully present or participate in the medical assessment interviews.[12]
[12] Respondent’s submissions in relation to applicant’s application for review filed on 7 April 2025 at [4.1] to [4.7]
On 18 August 2023, Mx Ryan wrote to the insurer and said, “a big reason why I am so terrified of the IME appointments is that NRMA have shown they do not care about my recovery and will do anything to minimise cost even if it hinders my recovery substantially”.
On 24 August 2023, the insurer made the internal review decision affirming the decision to suspend the applicant’s entitlements. A summary of the insurer’s reasons follows:
(a)The insurer summarised the history and noted the applicant's failure to attend the assessments.
(b)The insurer wrote that the failure “without a reasonable excuse constitutes non-compliance”. The insurer observed that an insurer may suspend payments until compliance “is met”, and said, accordingly, that the applicant’s entitlements remain suspended from 23 August 2023.
On 3 September 2023, Dr Dalton provided a medical assessment report based on the papers without meeting Mx Ryan.
On 7 September 2023, Mx Ryan wrote to the insurer and advised that they would agree to see Dr Roldan if the insurer:
(a)stopped “pushing” for them to see Dr Dalton;
(b)advised what the scope was that Dr Roldan had been instructed to investigate; and
(c)back-paid treatment and care benefits and income replacement payments to the date of the suspension notice.
On 13 September 2023, the insurer replied:
(a)Dr Roldan would assess Mx Ryan’s accident-related injuries and provide guidance on treatment, care and return to work/activities of daily living;
(b)the assessment with Dr Dalton could be reviewed following receipt of Dr Roldan’s report; and
(c)the suspension would be reviewed if Mx Ryan agreed to attend the assessment with Dr Roldan.
In a report dated 22 December 2023, Dr Stephen Praet, a treating specialist sports and exercise physician, reported about Mx Ryan that:
She reports that her mental health has improved and although the insurer cut off all services since 23 August 2023, they are not fearful and doesn’t feel the pressure from her insurer as much…. Tamara makes a more balanced and less distressed impression in comparison with the last consultation 2 months ago.
Mx Ryan’s submissions
Mx Ryan’s written submissions were filed with the Tribunal on 14 March 2025.
In their written submissions Mx Ryan applied for:
[T]he internal review to be set aside, the benefits reinstated, back paid from when they were terminated to date and an order that the Insurer cease trying to make Mx Ryan attend on appointments that they are unable to for the reasons contained in the written submissions.
Mx Ryan submits that the insurer has not fully considered or taken into account all the information in their case. The submissions note that they have been declared a vulnerable person by the Motor Accident Insurance Commissioner.
The decision to terminate all support payments was not the correct or preferable decision.
Mx Ryan has continually provided updates about their medical condition to the insurer.
Mx Ryan submitted that insurer knew about their psychological distress caused by its process and took no steps to communicate cooperatively you seem.
The decision dated 23 August 2023 by the insurer did not properly consider whether Ms Ryan had a reasonable excuse.
Mx Ryan submitted that insurer refused to break the IME appointments into small time slots and also refused having a support person attend with Mx Ryan those appointments.
Mx Ryan writes that they are eager to please but has a fear of authority.
Mx Ryan alleges that whilst attending a Sydney neuropsychologist he made homophobic insinuations or comments to their support person.
Mx Ryan submitted that the instructing letter to the Sydney neuropsychologist was selective and inaccurate. They were concerned that in any future medical assessment the pain they suffered would be repeated and would prevent their recovery.
Mx Ryan states that they have extreme terror on the insurer and their unfair processes. The insurance IME is not truly independent. They are filled with terror, anguish and depression at the thought of being undermined by non-independent medical professionals.
Mx Ryan writes that they are scared of the insurer and if the ACAT proceedings take place in person they are not sure whether they will be able to attend or just give up and withdraw the proceedings. The proceedings have provoked an unmitigated fight/flight/freeze/fawn trauma response in them.
Mx Ryan wrote that refusing to go to the IME appointments was a flight/freeze response. They physically could not go. The more the insurer tried to threaten and convince them to go the worst they got. The insurer retaliated with what they felt to be punitive and vindictive decisions which just kept escalating the tension between Mx Ryan and the insurer.
Writing these submissions is re traumatising for Mx Ryan.
Examples of the insurer’s processes that took place which were unfair and led to Mx Ryan having a sense of terror included the insurer losing a document which caused Mx Ryan pain like their brain was pushing or bleeding out of their ears. Mx Ryan writes that this is relevant to their reasonable excuse because it shows their mental state during communication with the insurer where they had very little control over their emotional regulation and was completely terrified. They refer to a medical report from Dr Stephan Rudzki which refers to their “poor short memory, poor problem solving and poor emotional regulation.”[13]
[13] See medical report of Dr Stephan Rudzki , Canberra sports medicine, dated 19April 2023
Dr Stephan Rudzki is a treating specialist sports and exercise physician. In his medical report he writes that:
Tamara still has all three major symptom groups of post-concussion syndrome. She has somatic symptoms of headache, dizziness, nausea, photophobia and severe fatigue. She has the cognitive symptoms of poor short term memory, poor decision making poor problem solving and poor emotional regulation. She has the neuropsychiatric symptoms of PTSD and depression against a background of premorbid ADHD. Of all of her symptoms, fatigue is the most debilitating followed by her loss of cognitive function. She also complained of ongoing neck pain which she felt contributed to her headaches.[14]
[14] Medical report of Dr Stephan Rudzki , Canberra sports medicine, dated 19April 2023
Mx Ryan wrote that an external case manager appointed by the insurer told Mx Ryan that the insurer believed that Mx Ryan was faking or exaggerating the brain injury because they had their workers compensation claim settled a few days before the subject MVA.
Mx Ryan requested from the insurer a copy of the collision specialist report. The conclusions of this report furthered the belief of Mx Ryan that the insurer had an unconscious bias towards Mx Ryan disbelieving them and refusing various treatments. Mx Ryan’s car was a write off and this information together with her statement about the MVA was not provided to the collision expert.
Mx Ryan submitted that the questionable methods of omission and inclusion used by the insurer had been used when instructing the Sydney neuropsychologist and the collision expert and that these methods previously used by the insurer would be used again when instructing the IME’s. Mx Ryan wrote that they had some apprehension about how accurate or useful the report from Dr Dalton would be and that they had not read the report because they were too scared that it would dismiss or undermine their symptoms.
Mx Ryan described in considerable detail her interactions and difficulties with the insurer when trying to organise or seek approval for support workers in her home and how this led to more distrust of the insurer.
Another reason Mx Ryan submitted for their fear and mistrust of the insurer was the insurance failure to repay out of pocket expenses within the legislated timeframes sometimes resulting in a delay of months for unpaid reimbursements.
Another reason Mx Ryan gave for them being too terrified to attend the IME appointments what’s the context in which the appointments come about. Mx Ryan gave a detailed explanation of her interactions with her occupational therapist. The OT report was dated 15 March 2023 and listed a number of recommendations that support be provided to Mx Ryan. The insurer do not reply to these requests which meant that Mx Ryan was stressed and emotionally reactive not knowing whether their support would continue and weather they would be unable to make plans.
Mx Ryan submits that it was in the context of all of the above reasons they did not trust the insurer and felt coerced and that the insurer was a barrier to their recovery.
Mx Ryan submits that the insurer was acting under unconscious bias and was thinking that Mx Ryan were falsifying their symptoms and did not believe Mx Ryan’s OT and medical team about the true nature of how they were struggling. Mx Ryan did not trust the system and did not believe in the impartiality of the IME’s who would just write a report undermining Mx Ryan because the insurer was paying for them. Mx Ryan questions the motivations for the IME’s being appointed and strongly continues to believe that those motivations were not in good faith.
Insurer’s submissions
In its written submissions dated 7 April 2025, the insurer stated the questions for the Tribunals determination can be expressed as:
(a)whether it was open or available to the respondent to find on the available evidence and facts that the applicant had failed, without reasonable excuse, to attend the assessments; and
(b)in the interests of completeness, whether the respondent’s decision was otherwise affected by a material error of law.
In its submissions the insurer referred to and relied upon a number of court decisions as to what constituted a reasonable excuse not to attend a medical assessment.[15]
[15] Respondent’s submissions in relation to applicants application for review filed on 7 April 2025 at [6.7] to [6.13]
The insurer referred to Prescott v Bulldog Tools Ltd [1981] 3 All ER 869, Webster J made the following comments as to whether an excuse to not attend an assessment was reasonable (at 875).
…the court should examine objectively the weight of the reasonableness of the defendant's request as seen by the defendant and the weight of the reasonableness of the plaintiff's objections as seen by him, and balance the one against the other in order to ensure a just determination of the cause in the way most just to the parties, taking into account their reasonable requirements and objections at the time of the exercising of the discretion.
The insurer also referred to McKinnon v Commonwealth [1998] FCA 1456, Re Kermode and Military Rehabilitation and Compensation Commission [2009] AAT 904, Re WCNC and Comcare (Compensation) [2019] AATA 2777 at [64]-[65]. The insurer submitted that the later two cited cases found that the likelihood of an applicant experiencing psychological consequences did not produce a sufficient risk of harm to justify failure to attend an assessment.
The insurer submitted that the question as to whether the insurer’s decision was the “correct and preferable” decision is not a matter properly before this Tribunal. The insurer pointed to the NSW Motor Accident Injuries Act 2017 which uses that phrase in relation to categories of merit review decisions. The insurance notes that the phrase ‘correct and preferable’ (or ‘correct or preferable’) is used by the legislature in other tribunals such as in NSW to express the objective of a review of the merits of a reviewable decision. The insurer argues that in the case of the MAI Act there is no corresponding language in the MAI Act to ascribe that objective of the present review in this case. Nor is there anything in the text, context or purpose of the MAI Act to suggest that the Tribunal conducts merits review for decisions made under Part 2.5 of the MAI Act. The insurer contends that the relevant question in this review is not whether the decision was the “correct and/or preferable” decision. The insurer argues that in this present case the Tribunal is empowered to consider only whether the decision was legally or factually open to the insurer or this Tribunal.
The Tribunal notes that under Prat 7 of the NSW Motor Accident Injuries Act 2017 there are three categories of reviewable decisions which are merit reviews, medical assessments and claims assessments (which include the assessment of damages). Only in the category of merit review decisions are decision makers at the Personal Injury Commission to make the “correct and preferable decision”.
The insurer submits that it made no material error of fact or law in reaching its findings that the applicant did not have a reasonable excuse. First, the insurer was not obliged to find that the applicant’s fear of attending the medical assessments did not amount to a reasonable excuse. Second, the applicant’s medical evidence, supporting her argument that they could not attend the medical assessments, did not mean that the insurer had to conclude that there was a relevant or sufficient risk of harm to the applicant in attending the medical assessments. Third, it was open to the insurer to find that the risk of harm to the applicant was outweighed by the prejudice to the insurer if it was unable to obtain the medical assessment opinions of Dr Dalton and Dr Roldan.[16]
[16] Respondent’s submissions in relation to applicant’s application for review filed on 7 April 2025 at [7.1] to [7.24]
The insurer also refers to the applicants stated fear of the medical assessments which arose from the mistrust of the insurer’s motivations. The insurer submits the applicants fear cannot amount to a reasonable excuse for failing to attend a medical assessment. Mx Ryan’s fear or mistrust is a subjective psychological response and cannot amount to a reasonable excuse which must be measured objectively.
Regarding the insurers third argument, about it suffering prejudice, the insurer argues that it would suffer substantial prejudice in trying to manage the applicant’s defined benefits payments in the absence of independent medical assessment of the applicant’s care needs. The insurer refers to the report of Dr Dalton that the applicants functioning appears to have declined despite significant medical intervention and support. As Dr Dalton noted, the overall harm in not undertaking a medical assessment means a lack of clarity in diagnosing the applicant's condition and the most effective treatment plan in the applicant’s case. Possible harm to the applicant’s medical condition, cause by refusal to have medical assessments, outweighs any possible short-term harm potentially suffered by the applicant in attending the medical assessment.[17]
[17] Respondent’s submissions in relation to applicant’s application for review filed on 7 April 2025 at [7.18] to [7.23]
Finally the insurer submits that a review of all the material before the Tribunal in this case demonstrates that the internal review decision was “open and tenable”. This Tribunal is unable to consider that a different, correct or preferable decision could or should be made.[18] The insurer made no material error of law. The insurer’s internal review decision is not vitiated by any material error of law. The decision was within the internal review decision-maker’s power to make, and the decision-maker appropriately directed itself to the relevant question of whether the applicant had a reasonable excuse for failure to attend the assessments. The applicant was given an opportunity to provide submissions and evidence in relation to the internal review decision. There was no failure by the insurer to afford procedural fairness or an opportunity to respond by the applicant. The applicant did not have a ‘reasonable excuse’ for failing to attend the assessments by Dr Dalton and Dr Roldan. Reaching a contrary conclusion would require this Tribunal to impermissibly engage in merits review. That is not a task with which the legislature has entrusted this Tribunal under the MAIA scheme.[19]
“Reasonable Excuse” – Relevant Cases
[18] See DVFW at [121] to [122] about correct or preferable decision.
[19] Respondent’s submissions in relation to applicant’s application for review filed on 7 April 2025 at [7.25] to [8.1]
The term ‘reasonable excuse’ is not defined in the MAI Act.
In attempting to understand and apply the term “reasonable excuse”, the Tribunal has had regard to the decisions referred to by the insurer in its written submissions and also a number of cases which are discussed below.
A discussion of the meaning of the term “reasonable excuse” is contained in NRJT and Australian Offshore Solutions Pty Ltd (Compensation) [2015] AATA 588 (NRJT) was recently applied and followed in DVFW and Comcare (Compensation) [2025] ARTA 117 (DVFW).[20]
[20] DVFW at [126]
In NRJT, Deputy President Kendall summarised the relevant decisions as follows:
In Fazlic v Milinginbi Community Inc 38 ALR 424 the High Court considered whether an applicant’s refusal to have a recommended operation to his injured back should have resulted in his losing his entitlement to further compensation payments as had been held by the Supreme Court of the Northern Territory and the Federal Court. The High Court allowed the applicant’s appeal on the basis that the reasonableness of the applicant’s refusal, judged in the light of his knowledge at the time, is the criterion to determine whether that refusal was reasonable. The court held that the applicant had been given minimum information and in the light of that minimum information about the operation his refusal to undergo the operation was a reasonable refusal.
In Taikato v The Queen,[21] the High Court held the question of whether there is a “reasonable excuse” depends upon the circumstances of the individual case and also upon the purpose of the provision which has a defence of reasonable excuse:
[18] A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person. It is different from a lawful excuse but, as has already been noted, it is difficult to conceive of an unlawful purpose which would constitute a reasonable excuse. Reasonableness provides a test which is well-known in both criminal and civil law and, though it may involve a judgment of degree, has a ready application in widely differing circumstances. The fact that the test of reasonableness frequently involves a question of degree so that minds may differ upon the answer does not relieve a tribunal of the duty to apply the test where that is the test laid down and does not justify confining its scope for the sake of greater precision or certainty.
[21] [1996] HCA 28 at [186]
Whether the refusal or failure to attend a medical examination may be excused because the refusal or failure was reasonable is to be assessed on an objective basis. In McKinnon v Commonwealth [1999] FCA 717, the Federal Court stated:
There is nothing in the judgment, nor would I expect there to be, which would support a proposition that a plaintiff could succeed in resisting an examination merely because he believed in good faith that the examination might be detrimental to him. A different view would necessarily follow if the examination was one which involved a real risk of injury to health and was seen as such by the plaintiff. The more severe the risk, no doubt, the greater it would overweigh the interests of the defendant. The less severe, the more difficult the balancing process. If the risk is such that it is so very slight as not to constitute a real risk, an applicant's fears about the suggested risk would not outweigh the interests of justice that a defendant be entitled to defend his case as he thinks fit. However, I would accept the proposition that once the risk is a real one, then the Court would be slow indeed to impose it upon a plaintiff, if ever.
In Pascoe v Australian Postal Corporation (2004) 77 ALD 464, the Full Court reaffirmed what the Full Court had said in an earlier decision (Australian Postal Corporation v Forgie (2003) 130 FCR 279); ie, that the Act “requires that the person at least consider the circumstances surrounding the employee’s failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances”.[22]
[22] NRJT at [20] to [23]
In NRJT, the reasons the applicant gave for being unable to attend the medical examination with a psychiatrist was due to a psychiatric illness and the effects of sedation from medication. The applicant emailed a copy of a report from a Consultant Psychiatrist to the insurer’s solicitors which stated that was unable to attend the scheduled appointment because of his symptoms burden (mistrust, anxiety, negative thinking as a result of his as yet untreated psychiatric illness); sedation from his hypnotic medication taken as prescribed causing him to oversleep and sedation from his medication affecting his capacity to drive.[23]
[23] NRJT at [52]
The Deputy President in NRJT decided that the applicants excuse for not attending was not reasonable despite his concerns about the medical assessment process causing him stress and anxiety. The Deputy President summarised his reasoning as follows:
61. The Tribunal notes that the Applicant did eventually attend a medical assessment with a psychiatrist in early 2015. The question this Tribunal must address is whether his refusal to attend an appointment on three previous dates was, in the circumstances, reasonable.
62. From the evidence before the Tribunal it is evident that the Applicant’s primary reasons for not attending the scheduled psychiatric appointments on three separate occasions relate to cost and the stress associated with attending.
63. Given the medical issue central to the Applicant’s claim against his former employer, it was not unreasonable for Offshore Solutions to seek to have the Applicant examined by a psychiatric specialist.
64. The Tribunal notes that in his email of 8 July 2014 at 5:53pm, the Applicant advised that he was “not well at the moment”, and that these appointments caused him stress.
65. Further, in his email of 9 July 2014 at 11:29am, the Applicant writes that if he “is to attend at the offices of a company paid doctor’s offices, he would make sure his doctor is there as well, and a witness, as he felt that he cannot trust them.”
66. As noted in Re Twaddell and Comcare (2001) 65 ALD 794 “the context of a medico-legal examination organised by the opposing party is almost always going to be an uncomfortable and potentially unpleasant experience for an applicant.”
67. This does not mean, however, that non-attendance is reasonable. There is no evidence to suggest that, had the Applicant requested that a friend or doctor attend with him at the offices of Dr Terace on 15 July 2014, Offshore Solutions would have refused such a request.
68. The evidence reveals a remarkable degree of flexibility on the part of Offshore Solutions and a considerable degree of obstruction and anger on the part of the Applicant. There is no evidence before the Tribunal to suggest that the Applicant’s fear of or distrust of Dr Terace was well founded. In the circumstances, his refusal to attend at his offices were unreasonable.
69. In relation to the medical examinations scheduled for 5 August 2014 and 15 December 2014, the Applicant again raises anxiety and stress as factors preventing him from attending.
70. For the same reasons outlined above in relation to the medical examination scheduled for 15 July 2014, the Tribunal does not accept, on the evidence and circumstances of this case, that this is a reasonable excuse for non-attendance.”[24]
[24] NRJT at [61] to [70]
In DVFW,[25] the Administrative Review Tribunal (ART) rejected the applicant’s claim that she had a reasonable excuse not to undergo a medical examination in the absence of her support person and a refusal to allow her to record the assessment examination. In this case, the applicant refused to attend medical appointments made by the insurer stating that she had medical advice from her doctors that it would be unwise for her mental health to attend those further medical appointments.[26] In this case, the applicant’s treating psychiatrist wrote that he had a phone call from the applicant where she sounded quite distressed and expressed her apprehension of being traumatised further if asked to attend any further IME assessments. Her psychiatrist concluded that there was a potential chance of further escalating the applicant’s psychological distress, so he requested avoiding any further IME assessments at that stage.
[25] DVFW at [126]
[26] DVFW at [14]
In DVFW, the ART found the applicant did not want to participate in another examination by a psychiatrist and she anticipated it would be an unpleasant experience. The ART was not persuaded by the applicant’s submission that participating in a further examination would cause or risked causing her further injury. In support of her argument that she not attend a re-examination, the applicant relied primarily on the letter from her psychiatrist. The ART was not prepared to give that letter significant weight. Her psychiatrist requested consideration be given to avoid any further IME assessments, “given the potential chance of further escalating [the applicant’s] psychological distress.”[27]
[27] DVFW at [146]
In DVFW, Senior Member McCarthy wrote:
The Applicant’s position misunderstands the statutory scheme, which contemplates that in return for payment of compensation and/or a right to institute or continue a proceeding under the SRC Act she must not refuse or fail, without reasonable excuse, to undergo an examination, or in any way obstruct an examination. The Respondent is not blocking the Applicant from undergoing an examination. Rather, it is not agreeing to her demands about the timing and conduct of the examination.[28]
Consideration
Mx Ryan’s “excuse”
[28] DVFW at [167]
Mx Ryan referred to numerous medical reports, medical certificates and detailed submissions giving reasons as to why they were unable or unwilling to attend the medical assessments arranged by the insurer.
This material has been summarised earlier in these reasons.
Mx Ryan’s explanation was that they were suffering from a range of injuries, symptoms and conditions which made it difficult to attend and concentrate at these appointments. These included extreme fatigue, word-finding problems, chronic pain, dizziness, mood shifts, noise and light sensitivity, hyperacusis, post-concussion syndrome, PTSD and impacted memory and limited executive functioning.
Mx Ryan also gave detailed submissions which gave reasons including a distrust of the insurer’s motivations; the insurer did not believe Mx Ryan’s reported injuries; a refusal from the insurer to break up the proposed medical assessments into shorter more manageable appointments; the insurer’s refusal to allow Mx Ryan to take a support person to the proposed medical assessments; and Mx Ryan distrust of the insurer’s proposed IMEs who they thought were biassed and not properly instructed by the insurer.
In its written submissions and some of its messages to Mx Ryan, the insurer states that it offered to allow and arrange for a support person to attend the proposed medical assessments.
The insurer has argued that Mx Ryan corresponded with the insurer at relevant times in respect of their defined benefits application and that they also attended some appointments with their own health practitioners. In the insurer’s view, Mx Ryan was sometimes capable of dealing with and attending to their insurance and health affairs.
Was Mx Ryan’s “excuse” reasonable?
The central issue before this Tribunal is the assessment of the reasonableness of Mx Ryan’s excuse for failing to attend the medical assessments arranged by the insurer.
The insurer acknowledged that the attendance by Mx Ryan at the IME medical assessments would be difficult for Mx Ryan. It tried to mitigate some of the negative effects of the process identified by Mx Ryan by suggesting a number of shorter appointments and also agreeing to the assistance of a support person.
The Tribunal has carefully reviewed and considered all the evidence and submissions presented by both parties. The Tribunal finds that Mx Ryan’s excuse for not attending the medical assessments with Dr Dalton and Dr Roldan was not reasonable despite their concerns.
Mx Ryan refers to a number of medical reports and has presented a number of submissions to the effect that the insurer’s processes and motives are not to be trusted and that further medical assessments may worsen their medical condition.
Mx Ryan’s concerns included a distrust of the insurer’s assessment processes and motivation; a distrust of the independence of the IME’s and a concern that the medical assessment process would causing them stress and anxiety or possibly worsen their medical and psychiatric conditions. Mx Ryan’s reasons for not attending the medical assessments also include their distrust of the insurer’s motivations or processes and their distrust of the Dr Dalton and Dr Roldan’s independence or objectively.
In the Tribunals’ view, the totality of the medical evidence presented by the parties is insufficient to show that further medical assessments are likely to cause harm to the medical condition of Mx Ryan. Nor does the Tribunal accept that there is evidence to support Mx Ryans’ concerns distrusting the insurer’s processes and the independence of the IME’s.
There are some medical reports from Mx Ryan’s treating providers that further medical appointments could affect her condition. As noted in Re Twaddell and Comcare, “the context of a medico-legal examination organised by the opposing party is almost always going to be an uncomfortable and potentially unpleasant experience for an applicant.”[29] As was expressed in McKinnon v Commonwealth,[30] an applicant could not succeed in resisting an examination merely because he believed in good faith that the examination might be detrimental to him. A different view would follow if the examination was one which involved a real risk of injury to health and was seen as such by the plaintiff. The more severe the risk the greater it would overweigh the interests of the defendant. The less severe, the more difficult the balancing process.
[29] Re Twaddell and Comcare (2001) 65 ALD 794
[30] McKinnon v Commonwealth [1999] FCA 717
No doubt the medical assessments for Mx Ryan would have been unpleasant and stressful for them. There is little reliable medical evidence that shows that further medical assessments are likely to cause harm to the medical condition of Mx Ryan. There is some evidence that Mx Ryan’s conditions have improved since late 2023 and they do not feel fearful and are less pressured.[31] When Mx Ryans’ submissions and evidence of possible harm is weighed against all the medical evidence and viewed in the context of the cases referred to above, Mx Ryan’s reasons for not attending the medical assessments do not amount to a reasonable excuse.
[31] Report of Dr Stephen Praet dated 22 December 2023
In Mx Ryan’s case, having reviewed all the available medical and other evidence, the Tribunal is not persuaded by the submissions from Mx Ryan’s that participating in a further examination would cause or risk causing them further injury. Nor is it persuaded by Mx Ryan’s contention that their other conditions including post-concussion syndrome, poor concentration and memory and other symptoms would make it difficult to properly engage in the medical assessment process. In this case, the balancing process favours the medical assessments proceeding. Any possible slight risk to Mx Ryan’s medical condition or their limitations of concentration or memory can be ameliorated with appropriate safeguards such as support persons and shorter appointments. The reasons proffered by Mx Ryan do not amount to a reasonable excuse.
Conclusion
For these reasons, this Tribunal concludes that Mx Ryan has failed, without reasonable excuse, to comply with the insurer’s request that they attend a health practitioner for assessment or examination.
………………………………..
Senior Member R Plibersek
| Date(s) of hearing: | On the papers |
| Applicant: | In person |
| Solicitors for the Respondent: | HWL Ebsworth Lawyers |
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