Helen Huang
Special Counsel
CTP Insurance, Insurance
Medical Examinations and the Suspension of Weekly Benefits
8 October, 2024
In Brief
- Under section 6.27(4)(b) of the Motor Accident Injuries Act 2017 (the Act), the Insurer can suspend the payment of weekly statutory benefits if the Claimant fails without a reasonable excuse to comply with the Insurer’s request to undergo a medical or health related examination.
- Under section 3.19 of the Act, an Insurer is required to put the Claimant on notice before discontinuing or reducing the Claimant’s statutory benefits.
Facts
On 4 October 2024, the Personal Injury Commission published its decision in Kammoun v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 524.
The Claimant sustained physical and a psychological injuries from a motor vehicle accident on 31 July 2024.
The Insurer accepted liability for the statutory benefits claim.
The Insurer obtained an expert report from a psychiatrist who recommended the Claimant to undergo psychometric evaluation.
The Insurer arranged an appointment with another expert who could administer psychometric testing.
However, the Claimant refused to attend such an appointment on multiple occasions.
The Insurer suspended the Claimant’s weekly benefits under section 6.27 of the Act.
The Member’s Reasons
The Member determined the Claimant is not required to undergo psychometric testing for the following reasons:
- The Insurer’s expert’s recommendation is not reliable because that expert relied upon a report prepared on the papers for the Insurer within two months of the accident, who is not qualified in psychiatry, had not interviewed the Claimant and did not include any real life facts regarding the Claimant’s injury and recovery.
- There is no credible basis for the Insurer’s request for the Claimant to undergo psychometric testing other than for the predominant purpose of symptom validity and credibility, which is unreasonable in line with the authorities of Rowlands v New South Wales (2009) 74 NSWLR 715, Haggerty v HAL Maritime Ltd [2024] NSWSC 889 and Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Centre [2024] NSWSC 1019.
- The Insurer’s request is therefore unreasonable under section 6.27 of the Act.
As a result, the Member order that the Claimant’s payment of weekly benefits be reinstated and the Insurer reimburse the Claimant any weekly benefits from the date of cessation.
Key Learnings
This decision reminds us an Insurer can cease or reduce the Claimant’s payment of weekly benefits under section 6.27 of the Act, if the Insurer’s request for the Claimant to attend a medical appointment is reasonable.
What is determined as “reasonable” will turn on the facts of each matter.
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.
