Clear and significant injustice in threshold injury disputes

Momand v Allianz Australia Insurance Limited (2023) NSWSC 1014

This recent decision of the Supreme Court of New South Wales provides guidance on how a personal injury panel chair delegate (representative) is to determine whether the request for review of the medical evaluation certificate has been submitted within the appropriate time and how threshold injury disputes can be considered absent from radiculopathy. In this article, we discuss the issue and its implications.

background

Yama Momand (My mother and) was involved in a car accident on January 19, 2018 and filed a claim under Motor Vehicle Accident Injury Act 2017 (New South Wales) (May’s law). allianz (believer) admitted breach of duty of care but determined that Momand had sustained serious injuries⁽¹⁾ Just (He disputes). The implication of this decision was that Momand was not entitled to weekly benefits after 26 weeks⁽²⁾ Common law damages were not payable.⁽³⁾ The dispute was referred to the Personal Injuries Committee (picture) to select.

PIC decisions are under review

The PIC referred the dispute to Professor Ian Cameron (estimated) and their decision was dated and issued on July 24, 2023. In short, the evaluator evaluated a soft tissue injury to the cervical spine only which, under the MAI law, is a threshold injury. In arriving at this decision, the assessor found that Momand did not suffer from radiculopathy by referring to the definition in List of car accident injuries 2017 (New South Wales) (MAI regulation):’Spinal nerve root injury that presents with neurological signs (other than radiculopathy) is included as a soft tissue injury.

Momand requested a review of the assessor’s testimony under section 7.26 of the MAI Act, on the basis that the assessor’s decision was materially incorrect (to request). The application was due to be submitted by August 23, 2022. Due to issues arising with the PIC Portal, Momand was unable to formally submit an application and instead posted applications on the PIC Portal on the due date, with notification of issues arising with the PIC Portal knowingly. Further attempts were made to formally submit the application on 24 August 2022, but the application was successfully submitted on 26 August 2022.

A representative was sent to consider Momand’s request. The issues to be considered were whether:

• Whether the review application has been filed within a time period and, if not, whether the time for filing under Rule 133 of the Act should be extended. Personal Injury Commission Rules 2021 (New South Wales) (pic rules); And
• The evaluator failed to provide sufficient reasons or reasons for determining that the injury was a threshold injury, failed to consider the definition of a threshold injury as it relates to the spinal discs, and
• The assessor’s application of section 5.9 of the Medical Assessment Guidelines exceeds his authority.

He found the delegate against Momand. In their decision, the delegate accepted the technical difficulties Momand faced when attempting to submit the application on 23 August 2023 and did everything possible to comply. Despite this, the delegate decided that the time should not be extended as scheduled “The application does not have a reasonable prospect of success.” any “It mitigates any bias arising from missing the opportunity to apply.”

Moreover, the delegate found that the assessee had done so “Adequate reasons have been provided as to why the injuries meet the definition of a minor injury for the purpose of medical evaluation…” Despite submissions that the assessor, in limiting the assessment to whether radiculopathy was present, failed to properly consider the material before him, including ‘Wide-based disc protrusion at C5/C6 (any) Indentation of the ventral thecal sac. The lumbar spine showed a broad-based subtle bulge of the ventral disc in the ventral sac. Furthermore, Momand asserted that the delegate failed to provide a clear path of thought in arriving at their decision.

problems

Momand sought judicial review on the following grounds:

1. The assessor failed to provide sufficient reasons or reasons for determining that the injury to Momand’s neck and lower back were minimal injuries;
2. The evaluator failed to consider the definition of a threshold injury as it relates to the spinal discs; And
3. The assessor applied section 5.9 of the Medical Evaluation Guidelines which is super strong (exceeded the strength of power).

There was nothing to contradict the summons as the insurance company, the representative and the PIC president made the appearance.

resolution

Her Honor Associate Justice Harrison heard the matter and delivered judgment on 24 August 2023, awarding the compensation sought by Momand. Specifically, the Delegate’s decision was annulled and the matter was referred to the PIC Committee to be dealt with in accordance with the law.

Deposit the application

Momand was successful on this point.

The delegate ‘The application must have been submitted within time’⁽⁴⁾ The usual review process should have been accepted, given the following: The PIC rules mandated that a document be submitted to the PIC when it was entered into the PIC information system, when submissions were posted to the PIC portal on August 23, 2023 ;⁽⁵⁾ Momand can’t do anything else.⁽⁶⁾

If the request for review is filed late, the only question for the delegate to consider is whether there will be an extension of time under Rule 133A of the PIC, which “I asked (the delegate) to take a broader view of the issue of injustice than she did because she was not the one deciding on the substantive application…”⁽⁷⁾

As for the test to be applied, Associate Justice Harrison stated the following:

(56) The proper test is that, if there was any possibility that the superior might have been satisfied that there was an error in the testimony, the delay caused a great injustice because the effect of the testimony was to terminate the claimant’s rights to benefits of all kinds.

…

(59) In practice the delegate was required to ask whether the failure to extend the time for the application would have suffered the plaintiff a manifest and substantial injustice, and the test for this was whether it could be believed that the superior might have reasonable cause to suspect the material in error…’

Threshold injury – failure to give reasons

Momand was also successful on this point.

Her Excellency Associate Justice Harrison referred to the well-established case law on the need for written reasons showing the actual course of reasoning for the resident in arriving at the decision⁽⁸⁾ and that when more than one conclusion is available to the rater (or review panel), an explanation must be given for their preference for one conclusion over the other.⁽⁹⁾

When the evaluator found that Momand did not have radiculopathy and therefore had only a threshold injury, he should have considered the alternative conclusion and explained why findings in imaging reports should not be considered outside the scope of the definition of threshold injury. Failure to do so constitutes a prima facie legal error.

Apply the guidelines

Associate Justice Harrison also found in favor of Momand on this point, affirming that “Guidelines cannot override the specific legal provision defining a tear or partial tear of cartilage as a non-minor injury.” (And therefore) The extent to which you seek to do this is an overreach of authority.⁽¹⁰⁾ The momand injuries reported on imaging were non-threshold injuries as discussed above, and the definition of threshold injury within the guidelines could not override the definition in Section 1.6 of the MAI Code.

Implications for CTP insurers

Both claimants and insurers can find relief from this decision, in that if they experience difficulties with the PIC Portal, their claims will be submitted as long as all steps have been taken to do so, including a copy of the applications submitted to the PIC whether By posting a message on the initial application or sending it to the pic via email. Furthermore, the application time should be extended if a demonstrably significant injustice could have occurred, such as denial of all benefits and harms.

Where medical assessors fail to provide an actual course of reasoning in reaching their decision – including failure to provide an explanation as to why one conclusion is preferable to another – the medical assessor will not comply with his or her legal duty and request for review and if submitted must be accepted and referred to the review committee.

This article was written with the assistance of Nick Zarayka, a graduate student in the School of Law.