Peter Hunt
Principal
CTP Insurance, Insurance
Twin Peaks – David and Lynch Affirmed
18 September, 2024
In Brief
- A Claimant demonstrates a non-threshold injury if there is evidence of such an injury, caused by the accident, at some point between the motor accident and the date of the medical assessment.
- An accident causes a non-threshold injury even if the injury has healed or if the condition is in remission at the time of the medical assessment.
- A Claimant sustains a non-threshold injury if the accident aggravates a pre-existing non-threshold injury.
Facts
The Personal Injury Commission published its decision in QBE Insurance (Australia) Limited v Chebat [2024] NSWPICMP 611 on 13 September 2024.
The Claimant was involved in a motor accident on 28 February 2022 whilst working as a traffic controller holding a road closed sign.
A PIC Medical Assessor subsequently certified that the accident caused the Claimant a post-traumatic stress disorder, which is a non-threshold injury.
The Insurer successfully applied for the threshold injury dispute to be referred to the Medical Review Panel.
The Review Panel’s Reasons
In assessing the threshold injury dispute, the Review Panel considered whether the Claimant was required to demonstrate whether she suffered from a non-threshold psychiatric injury at the time of the PIC assessment or whether it was sufficient that she demonstrate a non-threshold injury at some point between the date of the accident and the date of the assessment.
In other words, does a Claimant proceed through the “threshold injury” gateway even if they have recovered from their injury by the time they attend a PIC medical assessment?
This required the Review Panel to consider which of three prior Review Panel decisions was correctly decided.
- David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 – the Medical Review Panel decided that a Claimant demonstrated a non-threshold injury if the medical evidence demonstrated the presence of such an injury, caused by the motor accident, at some time between the accident and the medical assessment, even if the Claimant had recovered by the time of their medical assessment.
- Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6 – the Medical Review Panel came to a similar conclusion as the Review Panel in David by holding that a psychological condition, caused by the accident, can be present at any time to establish that the accident caused a non-threshold psychological injury.
- Merhi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 316 – the Medical Review Panel doubted whether David was correctly decided. The Review Panel in Merhi found that the Review Panel stood in the shoes of the insurer and that the Claimant was required to demonstrate a non-threshold injury on the day of their PIC medical assessment.
The Review Panel decided that Merhi was wrongly decided for the following reasons:
- The Review Panel in Merhimisconstrued the concept of “assessment” with an “examination“.
- Pursuant to clause 5.6 of the Motor Accident Guidelines, a Medical Assessor is required to undertake an assessment and consider relevant clinical records.
- A Medical Assessor does not abrogate its function by relying on prior records when assessing whether there is evidence that an accident has caused a threshold injury or not.
- For example, there might be evidence in the clinical records that an accident caused a broken bone (which is clearly non-threshold) but the fracture may have healed by the time the medical assessment is conducted.
The Review Panel rejected the reasoning in Merhi and, instead, followed the prior decisions in David and Lynch.
On this basis, the Review Panel concluded that a Medical Assessor must certify a non-threshold injury where there is evidence that the accident caused a non-threshold injury at any time post-accident even if the injury has healed or if the condition is in remission at the time of the medical assessment.
In this particular dispute, the Review Panel found that the accident aggravated the Claimant’s pre-existing Generalised Anxiety Disorder and concluded that the aggravation constituted a non-threshold injury.
Key Learnings
The decision Chebat adds to the debate on whether a Medical Assessor is required to find a non-threshold injury on the day of their assessment.
As canvassed above, the Review Panels in David and Lynch both concluded a Claimant demonstrates a non-threshold injury if there is evidence of such an injury, caused by the accident, at any time post-accident. A Claimant demonstrates a non-threshold injury even if they have recovered by the day of their PIC Medical Assessment.
Whilst the Review Panel in Merhi came to a different conclusion, there are now three decisions supporting the view a Claimant demonstrates a non-threshold injury even if they have recovered by the day of their Medical Assessment or if their condition is in remission.
The Review Panel’s decision in Chebat is also important because it confirms that an accident causes a non-threshold injury even if the accident merely aggravated a pre-existing non-threshold injury. In this regard, see the prior decision of QBE Insurance (Australia) Limited v Hoblos [2023] NSWPICMP 209..
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 Principal, Peter Hunt, today.
