Qiming Zhou
Senior Associate
CTP Insurance, Insurance
When is WPI in Dispute?
3 September, 2024
In Brief
- Pursuant to s 4.12 of the Motor Accident Injuries Act 2017 (MAIA), if there is a dispute about whether the Claimant’s degree of permanent impairment is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5 of MAIA.
- The existence of the dispute is not conditioned on a referral under s 7.20 of MAIA or the President’s acceptance of that referral.
- A party is not bound by its own medical evidence about the degree of permanent impairment if that evidence is flawed in some identified way.
Facts
The Personal Injury Commission published its decision in Atwal v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 440 on 30 August 2024.
The Claimant sought damages for non-economic loss on the basis that the expert psychiatrists engaged by both himself and the insurer each assessed his degree of permanent impairment above 10% WPI.
The Insurer did not accept the WPI assessment conducted by its expert psychiatrist and provided reasons to the Claimant explaining why it did not accept the assessment.
Neither party had yet made an application for assessment of a medical dispute about permanent impairment.
The Claimant sought for his matter to be listed for damages assessment in respect of both non-economic loss and economic loss.
The Claimant argued that a medical assessment is not a precondition to eligibility for non-economic loss, and that s 4.12 is only a limitation on the circumstances in which a party to a medical dispute can seek to claim non-economic loss.
The Member’s Reasons
The Member determined that the dispute required in s 4.12 is a dispute between a claimant and an insurer, not a dispute between doctors.
The Member accepted the Insurer’s submission that the existence of a dispute does not necessarily require evidence from an approved health practitioner of permanent impairment below the threshold. Instead, a party may dispute the degree of permanent impairment on the basis that the medical evidence is in some identified ways flawed and does not support the level of impairment alleged.
The Member rejected the Claimant’s argument that s 4.12 does not limit the Commission’s power to determine non-economic loss but is instead only a limitation on the circumstances in which a party to a medical dispute can seek to claim non-economic loss.
The Member stated that s 4.12 is found in Part 4 of MAIA, which deals with the award of damages and that the text of s 4.12 clearly states that, if there is a dispute, damages may not be awarded unless there has been an assessment by a medical assessor under Division 7.5.
The Member also rejected the Claimant’s argument that, for there to be a medical dispute to which s 4.12 applies, there must first be a referral under s 7.20 and a determination by the President that there is a bona fide dispute which can be referred for medical assessment.
The Member observed that s 4.12 places a restriction on the award of damages for non-economic loss where there is a dispute about permanent impairment and that s 7.20 provides a mechanism for this dispute to be determined. Although s 7.20(3) contains a power to reject a referral from a party, that power cannot be exercised by the Member (in determining the award of damages). In addition, a referral under s 7.20 or the President’s acceptance of that referral are not conditions precedent to s 4.12 being engaged.
The Member therefore determined that there was a dispute about the Claimant’s degree of permanent impairment and that if the matter proceeded to assessment, the Member could not make an allowance for non-economic loss.
Key Learnings
The decision in Atwal confirms that, where a dispute regarding permanent impairment exists, s 4.12 restricts the Commission’s power to determine non-economic loss. The existence of the dispute is not conditioned on a referral under s 7.20 or the President’s acceptance of that referral.
The decision is also instructive in finding that an insurer is not bound by its own IME assessing a Claimant over 10% WPI if the insurer can explain why it does not accept the assessment.
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.
