The art of persuasion: How to secure a further MAS assessment – Insurance Australia Limited t/as NRMA Insurance v Melkonyants [2016] NSWSC 503
Originally Published by Elana Chandran on Monday, May 2, 2016 12:00:00 AM
Author: Elana Chandran
Judgment Date: 26th April, 2016
Citation: Insurance Australia Limited t/as NRMA Insurance v Melkonyants [2016] NSWSC 503
Jurisdiction: Supreme Court of New South Wales1
Principles
Evidence relied upon in support of an application for a further medical assessment pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) (MACA) must be of such a compelling nature that the claims assessor is persuaded to allow a further medical assessment.
Background
The insurer sought judicial review in the Supreme Court of New South Wales (Supreme Court) of three separate decisions, namely:
The insurer's application for a further medical assessment under both s 62(1)(a) and s 62(1)(b) was supported by a urological report of Dr Korbel.
At the hearing of the proceedings, the insurer’s challenge to the second decision was abandoned, leaving the first and third decisions open for review.
In relation to the first decision, the insurer alleged the medical assessor failed to consider the causation of the claimant’s injuries, and in doing so the medical assessor failed to comply with the Motor Accidents Authority's Permanent Impairment Guidelines. The insurer further contended the reasoning provided by the medical assessor was insufficient and ultimately unlawful.
Turning to the third decision, the insurer alleged the claims assessor took irrelevant considerations into account. Specifically, the claims assessor took into consideration the fact that Dr Korbel did not seek to examine the claimant and he failed to take a comprehensive history of her urology symptoms before and after the accident. By denying the parties an opportunity to be heard on these issues, the insurer submitted the claims assessor denied it procedural fairness.
- The medical assessor’s determination that the claimant’s urological injuries gave rise to a whole person impairment (WPI) of 15% (the first decision)
- The Proper Officer’s refusal to refer the medical dispute for a further medical assessment pursuant to s 62(1)(a) of MACA (the second decision)
- The claims assessor’s refusal to refer the medical dispute for a further medical assessment pursuant to s 62(1)(b) of MACA (the third decision).
The insurer's application for a further medical assessment under both s 62(1)(a) and s 62(1)(b) was supported by a urological report of Dr Korbel.
At the hearing of the proceedings, the insurer’s challenge to the second decision was abandoned, leaving the first and third decisions open for review.
In relation to the first decision, the insurer alleged the medical assessor failed to consider the causation of the claimant’s injuries, and in doing so the medical assessor failed to comply with the Motor Accidents Authority's Permanent Impairment Guidelines. The insurer further contended the reasoning provided by the medical assessor was insufficient and ultimately unlawful.
Turning to the third decision, the insurer alleged the claims assessor took irrelevant considerations into account. Specifically, the claims assessor took into consideration the fact that Dr Korbel did not seek to examine the claimant and he failed to take a comprehensive history of her urology symptoms before and after the accident. By denying the parties an opportunity to be heard on these issues, the insurer submitted the claims assessor denied it procedural fairness.
Decision
Rothman J concisely arrived to a conclusion that the first decision was sufficient. His Honour found that the medical assessor took a comprehensive history from the claimant, including her symptoms leading up to the accident and after the accident. The medical assessor was armed with substantial clinical records of the claimant dating back to 2009. Most importantly, given the medical assessor’s expertise, he was not required to provide a detailed explanation regarding his decision. He was only required to express a professional judgment. The medical assessor provided sound reasoning for his determination and adequately addressed the causation of the claimant’s injuries. The insurer’s challenge to the first decision failed.
When reviewing the third decision, his Honour examined the objects of the MACA and the procedural scope of the Claims Assessment and Resolution Service. His Honour noted that, largely, parties are encouraged to resolve issues, such as disputes about WPI, by agreement. When an agreement cannot be reached then there are procedures in place, such as referring a case to the Medical Assessment Service (MAS), which enable decisions to be made expeditiously by experts. A key objective of the MACA is therefore expedition. The Supreme Court reviewed the third decision in this context.
With the knowledge that a further medical assessment would have involved a delay, the claims assessor considered the persuasiveness of Dr Korbel’s report. His Honour referred to a number of the claims assessor’s comments when determining the persuasiveness of Dr Korbel’s report and the justification for a further medical assessment, including:
Dr Korbel’s failure to examine the claimant, and his failure to take a comprehensive pre-accident history, were therefore relevant considerations in the claims assessor’s decision.
Turning to the denial of procedural fairness alleged by the insurer, his Honour considered the definition in Re Building Workers’ Industrial Union of Australia; Ex parte Gallagher [1988] HCA 4. This case determined that procedural fairness requires that a party reasonably apprehended that the point might become a live issue.
His Honour noted that given the insurer’s reliance on the report of Dr Korbel, it should have anticipated that the value or the persuasiveness of the report would be considered by the claims assessor. In essence, the insurer should have anticipated the claims assessor would have given weight to the fact that Dr Korbel did not examine the claimant, nor did he take a comprehensive history from her. His Honour ultimately found there was no failure to accord procedural fairness to the insurer.
When reviewing the third decision, his Honour examined the objects of the MACA and the procedural scope of the Claims Assessment and Resolution Service. His Honour noted that, largely, parties are encouraged to resolve issues, such as disputes about WPI, by agreement. When an agreement cannot be reached then there are procedures in place, such as referring a case to the Medical Assessment Service (MAS), which enable decisions to be made expeditiously by experts. A key objective of the MACA is therefore expedition. The Supreme Court reviewed the third decision in this context.
With the knowledge that a further medical assessment would have involved a delay, the claims assessor considered the persuasiveness of Dr Korbel’s report. His Honour referred to a number of the claims assessor’s comments when determining the persuasiveness of Dr Korbel’s report and the justification for a further medical assessment, including:
- That the medical assessor had a comprehensive clinical history of the claimant, whereas Dr Korbel did not
- That the medical assessor examined the claimant, whereas Dr Korbel did not
- That both the medical assessor and Dr Korbel were experts in the field of urology
- That Dr Korbel did not reach a firm conclusion in relation to the claimant’s injuries. Rather, he noted the possibility that the claimant’s symptoms may have arisen after childbirth as opposed to them being solely caused by the accident.
Dr Korbel’s failure to examine the claimant, and his failure to take a comprehensive pre-accident history, were therefore relevant considerations in the claims assessor’s decision.
Turning to the denial of procedural fairness alleged by the insurer, his Honour considered the definition in Re Building Workers’ Industrial Union of Australia; Ex parte Gallagher [1988] HCA 4. This case determined that procedural fairness requires that a party reasonably apprehended that the point might become a live issue.
His Honour noted that given the insurer’s reliance on the report of Dr Korbel, it should have anticipated that the value or the persuasiveness of the report would be considered by the claims assessor. In essence, the insurer should have anticipated the claims assessor would have given weight to the fact that Dr Korbel did not examine the claimant, nor did he take a comprehensive history from her. His Honour ultimately found there was no failure to accord procedural fairness to the insurer.
Why this Case Note is important
Insurers must be mindful that when they seek to rely on additional relevant information pursuant to s 62(1)(a) of MACA, the new evidence may be critically evaluated by a claims assessor acting within the authority prescribed to them in s 62(1)(b). The claims assessor presiding over the above proceedings noted that there is no limit on his power to refer the matter back to MAS under s 62(1)(b) at any time. He was entitled to take into consideration the decision of the Proper Officer.
The probative value or persuasiveness of the evidence will be considered. The evidence will be compared to the MAS certificate in determining its persuasiveness. Given the fast-paced environment in which claims assessors are required to act they will make decisions based on the evidence at hand and they may not be at liberty to request further information from the parties.
The judgment serves as an important lesson to insurers that additional relevant information should be comprehensive and it should not leave any lingering questions in the claims assessor’s mind. Any information that could persuade the claims assessor that a further medical assessment is required ought to be included in the initial application for further medical assessment.
The probative value or persuasiveness of the evidence will be considered. The evidence will be compared to the MAS certificate in determining its persuasiveness. Given the fast-paced environment in which claims assessors are required to act they will make decisions based on the evidence at hand and they may not be at liberty to request further information from the parties.
The judgment serves as an important lesson to insurers that additional relevant information should be comprehensive and it should not leave any lingering questions in the claims assessor’s mind. Any information that could persuade the claims assessor that a further medical assessment is required ought to be included in the initial application for further medical assessment.
- Rothman J.