Peter Hunt
Principal
CTP Insurance, Insurance
The Mandoukos Principle in Practice – Injury excluded from Medical Dispute
27 May, 2024
In Brief
- A threshold psychiatric injury is defined by of s 1.6(1)(b) of the Motor Accident Injuries Act 2017 (MAIA) and cl 4(2)(b) of the Motor Accident Injuries Regulation 2017 (MAIR).
- PIC Medical Assessors are only empowered to assess the “medical dispute” referred to them by the parties.
- It is critical that the parties clearly articulate the issues in dispute because their submissions define the scope of the medical dispute which the Medical Assessor may assess.
Facts
The PIC published its decision in Elammar v AAI Limited t/as AAMI [2024] NSWPICMP 280 on 24 May 2024.
The Claimant’s injury was sustained in extraordinary circumstances.
The Claimant and the Insured driver were travelling in the same direction on the M5. They were initially involved in a relatively innocuous accident when the two vehicles swerved into each other.
Both drivers pulled into the emergency lane to exchange details. It was at this point that things appear to have gotten out of hand.
An altercation broke out between the parties which culminated with the Insured driving off whilst the Claimant was on the bonnet of the Insured vehicle. The Insured braked heavily, causing the Claimant to be propelled from the vehicle. He was left on the side of the carriageway after the Insured departed the scene.
The parties agreed that “the accident” started with the initial sideswipe and ended with the Claimant being thrown from the bonnet of the Insured vehicle.
The Insurer, however, denied liability to pay ongoing statutory benefits both on the grounds that the Claimant was most-at-fault for the accident and because he only sustained threshold injuries.
(A Commission Member determined that the Claimant was 10% responsible for the accident and was, therefore, not mostly at fault.)
The threshold injury dispute proceeded to a PIC Medical Assessor for assessment.
Importantly, the only psychiatric injuries alleged by the Claimant in his dispute application form were PTSD, severe shock and severe anxiety and depression. The Medical Assessor found that those psychiatric injuries were not caused by the accident and certified that the accident caused an adjustment disorder with mixed anxiety and depressed mood, which is a threshold injury within the combined meaning of s 1.6(1)(b) of MAIA and cl 4(2)(b) of MAIR.
The Claimant sought a review of the Medical Assessor’s Certificate.
The Review Panel’s Reasons
The Review Panel re-examined the Claimant and concluded that:
- The accident did not cause PTSD.
- The accident did cause both an adjustment disorder and an opioid use disorder in sustained remission.
Whilst the adjustment disorder is, pursuant to cl 4(2)(b) of MAIR, a threshold injury, the opioid use disorder was not.
As a recognised psychiatric disorder, not excluded by cl 4(2)(b) of MAIR, the opioid use disorder is an above-threshold psychiatric injury.
The Review Panel, however, applied the Court of Appeal’s decision in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 and declined to certify the opioid use disorder because that injury fell outside the terms of the referral to the Review Panel. It was not an injury alleged by the Claimant in his dispute application so it fell outside the “medical dispute” defined by the parties.
For these reasons, the Review Panel confirmed the Medical Assessor’s Certificate.
Key Learnings
The decision in Elammar provides an important lesson to the parties to a medical dispute before the Personal Injury Commission.
The Court of Appeal has made it clear in Mandoukos that the scope of a medical dispute is defined, not by the statute or by the bundle of documents provided to the Commission, but by the submissions made by the parties. A PIC Medical Assessor is only empowered to assess the medical dispute defined by the parties.
In this dispute, the Claimant did not allege that the accident caused him an opioid disorder. As such, the Review Panel decided it was not empowered to certify that the accident caused such an injury.
The decision underscores how important it is that the parties clearly articulate their full argument when making submissions to the Commission.
To learn more about the Court of Appeal’s decision in Mandoukos, our case note can be found here.
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.
