Please explain: Review Panel decisions regarding eligibility for the Lifetime Care and Support Scheme – Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156

On 5 March 2011, the claimant was severely injured in a motor vehicle accident. Prior to the accident, he competed professionally as a snowboarder. In the accident, he sustained a traumatic brain injury, a severe injury to the right lower leg resulting in a right-sided trans-tibial amputation, fractures of the right radius and ulna and a right radial nerve injury.

After the accident, the claimant was successful in earning a place in the Australian Paralympic team at the Winter Olympic Games in Sochi in 2014 as a Para-snowboarder.
For two years following the accident, the claimant received care and treatment as an interim participant in a scheme created by the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (the Scheme).

After the two year interim period expired, the Authority held that the claimant was not eligible for lifetime participation in the Scheme. That decision was disputed by the insurer. The decision was confirmed by an Assessment Panel and again by a Review Panel. The insurer sought judicial review of the Review Panel's decision in the Supreme Court of New South Wales, which was rejected. The insurer appealed the decision to the New South Wales Court of Appeal (Court of Appeal).

In order to qualify as a participant in the Scheme, the claimant needed to satisfy certain eligibility criteria. There was no dispute that the injury was sustained in a motor vehicle accident and that the claimant's brain injury was of such severity to qualify for the Scheme.

The area of dispute by the insurer was the outcome of the Functional Independence Measure Assessment (FIM Assessment), which concluded that the claimant did not score five or less in any of the areas for assessment and therefore, was not eligible for lifetime participation in the Scheme.

The insurer challenged the FIM Assessment outcome on the basis that the rehabilitation physician noted different histories as to the claimant's bowel and bladder management and had expressed uncertainty as to the appropriate scores.

The insurer also contended that the claimant's evidence should not be relied upon, noting that the assessment of his bladder and bowel management depended entirely on the history he provided and hence his reliability and credibility. This particular issue was of concern to the insurer because the claimant had expressed a strong wish to exit the Scheme, had researched the FIM Assessment tool and had an understanding of the critical significance of a score of five or less to the outcome of the assessment. As the Review Panel expressed, "[The claimant] strongly maintained to us that he was living an independent life. It was clear that he understood the information we needed to hear, to enable him to exit the Scheme".

The Court of Appeal noted that the insurer's propositions were broadly as follows:

• The assessment of the claimant's bladder and bowel management depended on the history he provided and hence upon his reliability and credibility

• The claimant was vehemently opposed to participation in the Scheme, based on his assessments of his own self-interest

• The claimant had made a careful study of the Lifetime Care and Support Guidelines and the FIM Assessment process for the purpose of manipulating the assessment

• The panel failed to assess his credibility and reliability adequately or perhaps at all, and record its findings in its reasons.²

The above grounds were synthesised into two main grounds of appeal, being:

1. The alleged failure of the Review Panel to assess credibility and reliability
   
   
2. The alleged failure of the Review Panel to provide adequate reasons.

The Court of Appeal unanimously dismissed the insurer's appeal.

His Honour Basten JA, with whom Leeming and Simpson JJA agreed, held that the inconsistencies in the accounts given by the claimant to different medical practitioners were factors to be considered by the assessors, but that the Review Panel was not required to set out in its reasons the findings as to the claimant's credibility or reliability. Rather, the function of the Review Panel was to use its professional judgment to evaluate the claimant's level of functioning. His Honour noted that the Review Panel had expressly stated that it "examined and took note of circumstances and performance other than the claimant's verbal report" and therefore had adequately assessed the issue of inconsistencies.

As to the insurer's second ground of appeal, his Honour indicated that the Review Panel paid careful attention to the issues raised by the insurer and provided detailed, comprehensive and clearly expressed reasoning over some 12.5 pages.

The obligation of the Review Panel was to give reasons for its own findings and it was not required to explain why it did not accept findings made by others. Indeed, in this circumstance, the Review Panel accepted that there had been fluctuations in the claimant's levels of functioning and independence and the Review Panel therefore had undertaken its own FIM Assessment.

The Court held that the Review Panel recognised that the claimant may have "tailored his responses in order to achieve an impression of independence" and they took into account the objective facts as well as his verbal self-report. His Honour held that the Review Panel therefore adequately explained the claimant's own self-reporting of his independence.
Although not forming a part of the decision, his Honour Basten JA noted as obiter dicta that the Review Panel did not need to carry out a fresh assessment covering all aspects of the Assessment Panel's decision. Rather, he said that arguably, the Review Panel only needed to consider the specified grounds of dispute.

This decision serves as an important reminder to compulsory third party insurers that claimants are more regularly resisting lifetime participation in the Scheme. It is important to remember that a person who is assessed as eligible for lifetime participation cannot opt out of the Scheme. In this instance, the claimant was well researched in the assessment tools used to determine his ongoing eligibility. The Review Panel was alive to the fact that the claimant understood the information they needed to hear in order to enable him to exit the Scheme and may have tailored his responses to indicate a higher level of independence than was the reality.

In this instance, the insurer was unsuccessful in seeking judicial review of the decision of the Review Panel because the reasoning of the Review Panel was detailed, comprehensive and well-founded. The Review Panel sought to rely on evidence other than the claimant's self-reporting of his level of function.

Insurers seeking to assess the eligibility of claimants as participants in the Scheme should thoroughly review the decisions of the Authority's FIM Assessment and Review Panels in order to consider whether the reasoning process is adequate. However, they should bear in mind that there is no obligation to assess a claimant's reliability or credibility, rather, the panel is to use its professional judgment to evaluate the level of functioning against the eligibility criteria.