Concessions in medical disputes: Shaw v Insurance Australia Group Limited t/as NRMA Insurance [2023] NSWSC 1273

In Brief

• Where a party to a whole person impairment dispute concedes the severity of any injury, the medical assessor does not necessarily fall into error by not applying the permanent impairment guidelines.
• A medical assessment may still be referred to the medical review panel where a dispute no longer exists.

Facts

In the matter of Shaw v Insurance Australia Group Limited t/as NRMA Insurance [2023] NSWSC 1273, the claimant alleged that a motor accident on 6 September 2018 caused whole person impairment greater than 10%. The insurer accepted that the plaintiff had sustained a compression fracture at L2, which corresponded to a DRE III lumbosacral category rating and 10% whole person impairment, but not greater.

The plaintiff lodged an application for resolution of a medical dispute with the Personal Injury Commission.  The insurer’s response included the concession regarding the DRE III rating.

The Commission medical assessor concluded that there was a total of 12% whole person impairment – made up of 10% for the L2 compression fracture and a further 2% for a right hip injury. The scan of the plaintiff’s spine at L2 was not available, but the medical assessor did have two radiology reports.

The insurer sought a review and asserted that the decision was flawed because the medical assessor failed to adhere to the Motor Accident Guidelines (the Guidelines) when assessing the L2 fracture, which required him to undertake his own measurements of the percentage of compression of the vertebrae based on a CT or an X-ray scan, and not rely on percentages in radiological reports.

The Commission found that there was reasonable cause to suspect that the medical assessment was incorrect in a material way and ordered that the assessment be referred to a review panel.

The claimant sought judicial review of the Commission’s decision on three grounds:

1. As the insurer had conceded the existence and extent of the L2 compression fracture, there was no “medical dispute” on that issue between the parties for the medical assessor to assess.

Consequently, the assessment of the lumbar spine was not a medical assessment capable of being referred for review.

2. The decision of the Commission was so unreasonable that no reasonable decisionmaker could have come to the same conclusion.
3. As the insurer had conceded the existence and extent of the L2 compression fracture, it was estopped from asserting that the medical assessment of that injury was incorrect in a material respect.

Rothman J’s Reasons

Rothman J accepted ground 2, but rejected the other two grounds.

Reasons for rejecting Ground 1

The Motor Accidents Injuries Act 2017 (NSW) (The Act) requires a medical dispute to exist at the time that the matter is referred to the medical assessor.

There is no requirement for the existence of a dispute or its continuation for a medical assessment to be referred to the review panel.

Further, the jurisdiction of the review panel and the President’s delegate is not confined to the difference between the parties as to a particular issue, or to the issues raised by the parties.

Reasons for accepting Ground 2

Considering the Act’s overriding purpose of a just, expeditious and cost-effective process, the Guidelines could not have required the medical assessor to defer an assessment until the production of a CT or an X-ray scan where there was agreement of the injury being in the DRE III category.

In requesting a review, the insurer could have provided evidence showing some doubt as to the level of compression – for example, by way of a CT scan or an X-ray scan or a medical report inconsistent with the medical reports relied on by the medical assessor. However, the insurer did not provide any evidence.

Given the prior concession and the lack of evidence, no reasonable decision maker would find reasonable cause to suspect that the medical assessment was materially incorrect.

Rothman J commented, in passing, that the President’s delegate may take the view that a medical assessor ought never to have assessed the spinal injury in the absence of a CT or an X-ray scan, but that was not the decision of the delegate.

Reasons for rejecting Ground 3

Conduct estoppel prevents an unconscientious departure by one party from an assumption adopted by the other as the basis of a relationship to the other’s detriment. The party who has adopted the assumption must have acted upon that assumption in a way that would be detrimental to it, should the assumption not be made good.

The plaintiff did not address this in evidence or submission.

Key Learnings

• There is no requirement for the existence of a dispute or its continuation for a medical assessment to be referred to the review panel.
• Subject to the President’s (or a delegate’s) view of how the medical assessment ought to be conducted, a concession of the existence and severity of an injury could remove the need for strict compliance with the Motor Accident Guidelines.
• Such a concession is not final and can be withdrawn by providing evidence to the contrary.

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 Senior Associate Qiming Zhou today.