Helen Huang
Special Counsel
CTP Insurance, Insurance
What should you give more weight to; expert evidence or school records?
20 May, 2024
In Brief
- An injured person can make a claim for damages for non-economic loss and economic loss arising from a motor vehicle accident under the Motor Accidents Injuries Act 2017 (MAIA).
- Under section 4.11 of the Act, an injured person is entitled to damages for non-economic loss if they have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
- In assessing WPI, Medical Assessors may afford more weight to contemporaneous records than to expert opinions based on incorrect histories.
Facts
On 17 May 2024, the Personal Injury Commission published its decision in Kemp v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 260.
The Claimant was involved a motor vehicle accident on 1 January 2018, when she was 13 years of age.
The Claimant alleged sustaining physical injuries which included 30 minutes of loss of vision and hearing, a sore right hip and developing a psychological response two months after the accident.
The Claimant alleges her school performance deteriorated after the accident and she could not work more than 20 hours per week at KFC due to tiredness.
The matter proceeded to the Commission for a whole person impairment dispute.
The Claimant was 18 years of age at the time of the assessment and had recently completed year 12.
The Claimant was examined in the presence of her father by the original Medical Assessor, who diagnosed the Claimant with Post-Traumatic Stress Disorder caused by the accident. The original Medical Assessor assessed whole person impairment at 7%.
The Claimant lodged a review application.
The President’s Delegate was satisfied there was reasonable cause to suspect the assessment was incorrect in a material respect and the matter was referred to the Review Panel.
The Review Panel
The Review Panel made the following findings:
- The Review Panel noted the Claimant relied on her expert psychiatrist report, but the expert was briefed with a limited number of documents of clinical records, the medical certificate which accompanied the claim form and a physiotherapist’s report. The Review Panel noted the Claimant’s expert was not provided with the Claimant’s school records, employment records, a full suite of her psychologist’s records or the pre-accident Headspace records. The Review Panel also noted the expert provided an opinion that the Claimant’s performance “dropped massively”, had “all E’s” as reported by the Claimant and was only able to work at KFC for a period of four weeks.
- The Review Panel found the Claimant’s history provided to her qualified expert was incorrect because the Claimant’s school records demonstrate the Claimant scored mainly C and D’s before the accident and, after the accident, there was no real change. Contrary to her history, she only had one E. Furthermore, she worked at KFC for eight months as identified by the KFC employment file rather than four weeks.
- The Review Panel gave the Claimant’s expert report little weight because the expert was not provided all the relevant evidence and there were various inconsistencies which did not marry up with the documented evidence.
- In respect to the inconsistent history provided by the Claimant, the Review Panel determined it was the clinical judgment of the medical assessors that psychological symptoms from a traumatic event such as an accident can and do vary over time and that this could account for the variation in the Claimant’s reports of her mental state.
- The Review Panel noted the inconsistencies and took the view the documentary school records are likely to be more accurate than the Claimant’s recollection of them and gave the school records more weight.
- Based on the evidence and the examination, the Review Panel arrived at the same conclusion as the original Medical Assessor.
The Review Panel confirmed the original Medical Assessor’s Certificate.
Key Learnings
This decision demonstrates where a Claimant provides an inconsistent history, their evidence should be carefully compared to the contemporaneous evidence. Medical Assessors may give more weight to the contemporaneous documents than an expert opinion which is based on an incorrect history. In this claim, more weight was given to school records, employment records and clinical records.
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.
