Medical Review Panel bound to conduct review: Insurance Australia Limited t/as NRMA Insurance v Mangogna [2023] NSWPICMP 509

In Brief

• A threshold injury is defined under section 1.6 of the Motor Accidents Injuries Act 2017 (MAIA).
• If a Claimant’s injuries are only threshold injuries, they are not entitled to claim either statutory benefits beyond 52 weeks, or common law damages.
• The Review Panel has no statutory power to recommend that a review application be dismissed under section 54 of the Personal Injury Commission Act (PIC Act).

Facts

The Claimant in Insurance Australia Limited t/as NRMA Insurance v Mangogna [2023] NSWPICMP 509 alleged that they had sustained injuries in a motor vehicle accident on 8 January 2021.

The Insurer alleged that the Claimant had only sustained threshold injuries, as the accident had been minor and there was no contemporaneous evidence to verify a physical injury.

The matter proceeded to the Commission for determination of whether the Claimant had sustained:

• a threshold psychological injury; and
• a threshold physical injury.

A Medical Assessor determined that the accident had caused a non-threshold psychological injury. The Insurer did not seek a review.

A Medical Assessor also determined that the Claimant had sustained non-threshold physical injuries. The Insurer sought a review. The President’s Delegate was satisfied that there had been reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect. The matter was referred to the Review Panel for assessment.

The Review Panel met and issued a Direction requesting submissions from the parties. The Review Panel specifically noted that the statutory question referred to the Panel was spent, because the Claimant already satisfied that she sustained a non-threshold psychological injury – and was therefore able to proceed with a claim under the MAIA.

The Review Panel invited the Insurer to consider whether it was still pursuing the review application and sought for a Notice of Discontinuance to be filed if the Insurer did not proceed.

The Insurer submitted that it had maintained its review application because it required a determination on causation of the physical injuries, which was fundamental to whether the accident caused an aggravation of the Claimant’s psychological injury. The Claimant’s alleged non-threshold psychological injury was linked to the physical injury.

The Review Panel determined that the proceedings were “lacking in substance” because there was an unchallenged finding that the Claimant had sustained a non-threshold psychological injury.

The Review Panel recommended that the Insurer’s review application be dismissed under section 54 of the PIC Act.

Principal Member’s Reasons

The Principal Member referred to the Insurer’s position that:

• Causation of the Claimant’s physical injury was fundamental to whether the accident caused an aggravation of her psychological condition.
• The Claimant’s psychological injury was alleged to have been triggered by her physical injuries.
• A finding of a non-threshold psychological injury would be challenged, because the Insurer disputed that the accident had caused a physical injury.

The Principal Member determined that:

• The Review Panel had no statutory power to recommend the Insurer’s review application be dismissed under section 54 of the PIC Act.
• The comment by the Review Panel of wasted resources was an irrelevant factor in determining whether the present review was lacking in substance.
• The Review Panel’s statement that the Insurer would suffer “no prejudice” if the review was dismissed, was inconsistent with the fact that the Insurer would be required to lodge a further application and satisfy the gateway provision for that application to proceed.
• The present review was not “lacking in substance” and had not been brought as an “improper purpose” because the Insurer was entitled to lodge a review application – and if the review application had been accepted, the Insurer would have been entitled to receive a determination by the Review Panel.

The Application to dismiss the review of the medical assessment was rejected by the Principal Member.

Key Learnings

The Personal Injury Commission’s 13 October decision in Insurance Australia Limited t/as NRMA Insurance v Mangogna [2023] NSWPICMP 509 reminds us that a party has a right to seek review of a certificate if there is reasonable cause to suspect that a Medical Assessor’s assessment is incorrect in a material respect.

If the President’s Delegate was satisfied that there had been reasonable cause to suspect the medical assessment of the Medical Assessor of being incorrect in a material respect, then the matter would need to proceed to a determination by the Review Panel.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.