Tran v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 485
•8 November 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Tran v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 485 |
| CLAIMANT: | Hue Thi Anh Tran |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Tai Tak Wan |
| MEDICAL ASSESSOR: | David Gorman |
| DATE OF DECISION: | 8 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (1999 Act); medical assessment of whole person impairment and claimant’s review under section 63 of the 1999 Act; interim decision regarding Panel’s power to issue directions to the claimant requiring claimant to sign 15 authorities and power to issue directions to 15 third parties for documents relevant to the assessment; Held – power in section 49(1)(c) of the Personal Injury Commission Act 2020 (2020 Act) to direct a party to provide consents or authorities lies with the Personal Injury Commission (Commission); the Commission is constituted by its Members under section 31(1) of the 2020 Act; Panels have no power under section 49(1)(c) of the 2020 Act, however the Division Head or Principal Registrar appears to have that power; rule 46 of the Personal Injury Commission Rules 2021 permits a non-presidential member to issue a direction to a person who is not a party to produce documents; while there is a non-presidential member on the Panel, the proceedings have been referred to the Panel as a whole and that body does not have power to issue the requested directions; the Division Head or the Principal Registrar appears to have that power. |
DETERMINATIONS MADE: | INTERIM DECISION - CLAIMANT AND THIRD PARTY DIRECTIONS |
INTRODUCTION
The Review Panel (the Panel) has been constituted by the President of the Personal Injury Commission (the Commission) to conduct the Review of Medical Assessor Rosenthal’s assessment of whole person impairment (WPI) dated 4 May 2022 (the Review).
The motor accident, the subject of the proceedings before the Commission occurred on 6 August 2013. Ms Tran was the driver of her own car when another vehicle lost control and collided with Ms Tran’s car.
On 27 August 2013 Ms Tran made a claim for damages against NRMA the third-party insurer of the alleged at-fault vehicle.
Ms Tran’s claim is governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Ms Tran is in dispute with NRMA concerning her entitlement to non-economic loss.
Ms Tran referred this dispute to the Commission for assessment. The Commission referred the assessment of the claimant’s physical injuries to Assessor Rosenthal and the assessment of the claimant’s psychiatric injuries to Assessor Young.
On 25 July 2022, Assessor Rosenthal determined that the claimant had a whole person impairment of 2% for his physical injuries. The claimant’s application for review of that decision under s 63 of the MAC Act is the subject of the Panel’s proceedings.
On 29 August 2022 Assessor Young determined that the claimant had a whole person impairment for his psychological injuries of 24%. The insurer has lodged an application for review of that decision under s 63 of the MAC Act but that application has not yet been determined by the President’s delegate.
For the reasons set out below, the Panel has decided to defer its consideration of the review of Assessor Rosenthal’s assessment until after the President’s delegate has determined the application for review of Assessor Young’s determination.
INSURER’S REQUEST FOR CLAIMANT AND THIRD-PARTY DIRECTIONS
Request dated 14 September 2022
On 14 September 2022, the same day the certificate of Assessor Young was issued to the parties, the insurer sent a message to the Panel requesting certain directions be made by the Panel.
The insurer said:
(a) the claimant has “intentionally obstructed the insurer’s attempts to properly investigate the claim”;
(b) the insurer has requested signed authorities from the claimant which would enable it to obtain documents from 15 listed entities;
(c) the insurer first requested these authorities on 1 July 2021 and has followed this up on six occasions thereafter;
(d) no response has been received;
(e) this might be a breach of cl 37(d) and (e) and 38(b) and (g) of Procedural Direction PIC 1;
(f) the claimant has in the interim pursued the application for medical assessment and the current review;
(g) once the documents are produced it is likely a further assessment will be required, and
(h) the insurer seeks directions for the claimant to provide the 15 requested signed authorities and that the Panel issue directions for production in relation to those 15 entities.
The insurer suggests that if the Panel proceeds in the absence of the outstanding material this would be an “untenable misuse of the Review Panel’s valuable time and [the] resources of the Commission”.
The 15 entities that are the subject of the authorities and third-party directions are:
(a) Fairfield Hospital;
(b) Liverpool Hospital;
(c) Mr Thinh Le;
(d) Ms Xinh Pham;
(e) Dr Raymond Tint;
(f) Dr Paul Teychenne;
(g) Dr Thanhtam Nguyen;
(h) Bonnyrigg Family Medical Centre;
(i) Dr Clive Sun;
(j) A/Prof Mark Sheridan;
(k) Dr Ray Chin;
(l) Woodville Alliance;
(m) Medicare Australia;
(n) NSW Police, and
(o) Corrective Services NSW.
The Panel’s response
Decision to defer
On 10 October 2022, the Panel responded to the insurer’s request with a series of questions and requested a response from both parties by 21 October 2022. The insurer responded on 14 October 202. The claimant has not responded.
The Panel had requested advice from the insurer as to whether a review was sought of Assessor Young’s decision and whether the claimant intended to proceed with the review of Assessor Rosenthal’s assessment. The insurer has now lodged the application for review of Assessor Young’s decision and so the Panel assumes the claimant intends to pursue her review until such time as the insurer’s application is dealt with.
The Panel also asked whether the insurer sought judicial review of the President’s delegate’s decision which had been foreshadowed in an earlier application seeking the reconsideration of the delegate’s decision in accordance with the principles laid out in Minister for Immigration and Ethnic Affairs v Bhardwaj [2002] HCA 11. The insurer’s response was “not at this stage”.
The above information has assisted the Panel in determining the action it has taken (to defer) in respect of the current proceedings.
On the basis of Assessor Young’s decision, the claimant has an entitlement to non-economic loss. If the President’s delegate determines that there is no reasonable cause to suspect a material error in that assessment, then the Panel’s Review may not need to proceed. It is therefore the Panel’s view that the review of Assessor Rosenthal’s assessment should be deferred until the President’s delegate’s decision in respect of Assessor Young’s assessment is known and the parties have had time to consider their respective positions.
Claims assessment proceedings
As Ms Tran’s accident occurred over 10 years ago the Panel was interested in whether Ms Tran’s claim had been referred for assessment or exemption from assessment and whether there were current proceedings before the Commission or the Court. If proceedings had been commenced, then the Member of the Commission to whom the proceedings had been allocated may have been able to issue directions to the claimant or the third parties in those proceedings. If Court proceedings had been commenced, the insurer would have access to the subpoena process.
The Panel was advised there are no Court of Commission proceedings.
Noting that s 90 of the MAC Act permits the insurer to refer a claim for assessment, the Panel queried whether the insurer had taken steps to commence proceedings at the Claims Assessment and Resolution Service (CARS) or the Commission at any stage in order seek the assessment or exemption of the claim. The insurer responded on the basis that it had not commenced proceedings in the Commission because it would not risk the prospect of not being allowed to rely on additional late documents under Rule 67. It would appear the insurer seeks to gather all the required information before taking steps to progress the assessment of the claim. While that may explain why proceedings have not been commenced on or after 1 March 2021, it does not explain why proceedings were not commenced at CARS before then where there was no late document process.
Authorities from the claimant
The Panel asked the parties whether it has power to direct the claimant to sign the 15 authorities sought by the insurer. The insurer said the Panel has that power under s 49 of the Personal Commission Act 2020 (the PIC Act) in particular s 49(1)(c), (2) and (5).
Section 49(1) (c) provides as follows:
“(1) The Commission may give a direction in writing to any person (whether or not a party to proceedings before the Commission) requiring the person—
…
(c) to give within a time specified in the direction any specified consent, authority or direction that the Commission considers necessary or desirable for the purpose of facilitating the provision by another person of documents or information pursuant to a direction under subsection (2).”
The Panel notes that s 49(2) relates to the production of documents or information not consents, authorities or directions as provided in s 49(1)(c). Section 49(5) provides the Commission may exercise its power to direct at the request of one of the parties to the proceedings or of the Commissions own motion.
Section 31(1) of the PIC Act provides that the Commission is constituted by one or more members of the Division to which the function of dealing with the proceedings is allocated. Members of the Commission are listed in s 8(1) and while the list includes general members, such as Member Cassidy, it does not include Medical Assessors or Medical Review Panel members.
Medical Assessors including Medical Assessors who are members of a Review Panel are decision-makers in accordance with s 33. Decision-makers including Medical Assessors may have functions conferred on them under the Act (s 34).
Decision-makers in particular Medical Assessors do not have conferred upon them under the PIC Act or the Rules, the function of issuing a direction under s 49. A Review Panel does not have conferred upon it the function of issuing a direction under s 49.
It is the Panels’ preliminary view that in accordance with s 49(6), the “Division Head [of the Motor Accidents Division] or the principal registrar” has the power to issue any necessary direction under s 49(1)(c).
The insurer in this matter requests that the Review Panel ask the President to make the required direction in accordance with Rule 7 of the Commission’s Rules.
With respect to the insurer and its solicitors, there is an avenue for the insurer to take steps to obtain the requisite and necessary authorities provided for in the PIC Act and that is by making an application to the Division Head or the principal registrar in accordance with s 49(6) and the Panel encourages the insurer to do so.
Directions to third parties
The Panel asked the parties whether it had the power to issue the 15 directions to the various entities identified by the insurer. The insurer said the Panel had that power under rules 46 and 47 of the Commission’s rules on the basis that the Member “as a constituent of the Review Panel” has the power to issue directions in proceedings.
Rule 46 provides as follows:
“A party to proceedings may request that the non-presidential member to whom proceedings are referred order the issue of a direction under section 49 of the PIC Act for the production of documents by a person who is not a party to the proceedings.”
Rule 47 provides the mechanics and details as to how directions for production are issued.
NRMA is a party to the proceedings before this Panel. Member Cassidy is a non-presidential Member of the three-person Review Panel which will determine, by majority, the current proceedings. It is the Panel’s view that the review proceedings have been referred to the Panel as constituted by two decision-makers (Medical assessors) and one non-presidential Member. The Panel is not of the view that the review proceedings have been referred to Member Cassidy to be determined.
It is the Panel as a whole that will conduct the Review and determine the proceedings. As a member of the Panel, it is the Panel’s view that Member Cassidy should have no more and no less powers than the other members of the Panel without express provision in the Act, the Rules, procedural directions or an instrument of delegation.
The Panel is of the view that Member Cassidy should not be the sole determiner of whether to issue a direction to the claimant to execute any or all of the 15 signed authorities. Similarly, Member Cassidy should not be the only member of the Panel to decide whether third party directions are issued to one or 15 third parties. The decisions made by the Panel are group decisions and it should be the Panel’s collective decision-making that determines what authorities if any are signed and what if any directions are issued.
The Panel is of the view that it is inappropriate for Member Cassidy to effectively step outside the body that is the Panel to make a decision that affects the Panel.
In the absence of any specific power conferred upon the Panel as a whole, the Panel is of the view that it does not have power to issue the directions as requested by the insurer.
Again, there is an avenue for the insurer to obtain the required documents from third parties. The insurer would appear to be able, under s 49(1)(a) and s 49(5) to apply to the Division Head or the Principal Registrar for directions to produce addressed to the 15 entities identified.
CONCLUSION AND NEXT STEPS
The Panel has deferred its consideration of the review in this matter and will peruse the file and in particular the decision in the related (Assessor Young) proceedings on or about 9 December 2022 with a view to deciding whether the review should proceed or should be further deferred.
The Panel is of the view it has no power to take the steps and issue the directions as proposed by the insurer in its message of 14 September and letter of 14 October 2022.
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