Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099
Introduction
In Bucca v QBE Insurance (Australia) Ltd, Acting Justice Basten of the NSW Supreme Court considers whether an extensive delay between a medical assessment and the issuance of the Assessor’s findings, amounts to an error at law. His Honour was also tasked with considering whether pain related sleep disruptions may attract any rateable permanent impairment.
Principles
- There is no strict temporal limit imposed on issuing Personal Injury Commission medical certificates. Assessors determining disputes engaging the Medical Assessment Guidelines should endeavour to issue their findings in accordance with the 90-day time frame. However, this is an aspirational target rather than a strict limitation.
- Sleep complaints arising out of pain alone do not attract any rateable permanent impairment under the AMA4 Guides. The indirect effect of pain may be incorporated into the assessment of the body part or system which is the source of the pain, to the extent, if any, that the pain contributes to impairment.
Background
On 17 April 2017, the plaintiff was injured in a motor vehicle accident when she was struck by a motorised buggy at the Royal Easter Show. She commenced a personal injury claim under the Motor Accidents Compensation Act 1999 (NSW), alleging musculoskeletal injuries and a sleep disorder.
QBE Insurance (Australia) Ltd, the defendant, admitted liability. However, a dispute arose regarding the plaintiff’s degree of permanent impairment, resulting in the plaintiff lodging an application for assessment of whole person impairment (WPI) with the Medical Assessment Service (MAS).[1]
The plaintiff was examined by Medical Assessor Alan Home for musculoskeletal injuries, and Medical Assessor Christopher Grainge for a respiratory/sleep disorder. Separate certificates were issued on 7 July 2021 (12%) and 12 November 2021 (8%) respectively. A combined certificate was then issued on 8 December 2021 certifying that the plaintiff’s WPI exceeded the 10% threshold.
The insurer lodged applications for review of the individual MAS certificates. The plaintiff was re-examined by a Medical Review Panel on 17 August 2022 and again on 4 November 2022. The Review Panel certificates were not issued until 9 January 2024 and 12 January 2024, assessing the plaintiff’s physical impairment at 7% and respiratory impairment at 0% respectively.
The plaintiff then commenced judicial review proceedings in the NSW Supreme Court challenging the validity of both Review Panel certificates.
Issues
The plaintiff alleged the following:
- The delays, 14 and 17 months respectively, between re-examination of the plaintiff and issuing the certificates constituted a breach of clause 1.21 of the Motor Accident Permanent Impairment Guidelines, as the Review Panel failed to assess the WPI “as it is at the time of the assessment”.
- The delays were excessive and gave rise to a failure to afford procedural fairness to the plaintiff.
- The Review Panel erred in law, as it was precluded from identifying a sleep disorder as a secondary injury in accordance with clause 1.38 of the Motor Accident Permanent Impairment Guidelines.
The plaintiff was granted leave to rely upon an amended summons after the commencement of the hearing. The amended summons added two grounds alleging the Review Panel had failed to provide adequate reasons for each individual certificate. These grounds were later abandoned.
Decision
Grounds 1 & 2 – Temporal Limits
The nature of the first two grounds are based on the allegation that the Motor Accident Permanent Impairment Guidelines and Medical Assessment Guidelines applied to the Review Panel assessments.
Notably, the Medical Assessment Guidelines effectively set out a 90-day timeline in which Review Panels should issue their certificates. This timeframe is absent from the superseding scheme under the Personal Injury Commission Act 2020 (PIC Act) and Personal Injury Commission Rules 2021 (NSW).
While the first WPI dispute was lodged with the MAS before the commencement of the Personal Injury Commission on 1 March 2021, Basten AJ found that the initial medical dispute was considered completed, for the purposes of Clause 14B, Schedule 1 of the PIC Act.
The Review Panel assessments, lodged in December 2021, were therefore subject to the Personal Injury Commission Rules 2021 and the 90-day timeline was not engaged. Nevertheless, had the Medical Assessment Guidelines applied, the Court described the 90-day timeline as ‘aspirational’ and not a strict statutory time limit.
His Honour stated “there can be no doubt that the delay was unacceptable”. However, the question was whether the delay presented as an error at law which invalidated the certificates. The Court concluded that there was no statutory, or otherwise prescribed, temporal limit imposed on the functions of the Review Panel. As a result, the Review Panel had not erred at law because its certificates were published more than 90 days after examining the plaintiff.
Grounds 1 & 2 – Determination at Time of Assessment
The plaintiff argued that the delays between examination and issuing the Review Panel certificates constituted a breach of a temporal limit implied by clause 1.21 of the Motor Accident Permanent Impairment Guidelines.
Clause 1.21 imposes a requirement upon Medical Assessors to assess impairment “as it is at the time of the assessment”. Although the Court found the Motor Accident Permanent Impairment Guidelines were not applicable, Basten AJ rejected the plaintiff’s argument that the clause imposed any temporal limit. Rather, the Court found that the purpose of clause 1.21 was to remind Assessors to focus their findings on the plaintiff’s current presentation, rather than past impairment implied from medical records or anticipated future impairment.
Ground 3
The plaintiff argued that the Review Panel had fallen into error in finding no rateable impairment arising out disrupted sleep. The Review Panel had determined the plaintiff’s sleep was disrupted by chronic pain, rather than a separate sleep, respiratory, or neurological condition (such as sleep apnoea).
Clause 1.38 of the Motor Accident Permanent Impairment Guidelines prevents Medical Assessors from making separate allowances for permanent impairment due to pain.
The plaintiff submitted that clause 1.38 merely provided that pain itself cannot attract a separate impairment allowance, but that it does not prevent an assessment of permanent impairment where pain causes impairment of another body part or system.
The Court accepted the plaintiff’s submission that permanent impairment may be assessed where pain is causing impairment of that body part (eg. pain that prevents full shoulder range of motion). However, His Honour also agreed with the Review Panel’s reasoning that “the body part or system which gives rise to the pain is the body part or system which is to be assessed”, and that the body part referred for assessment was listed as the respiratory system. Sleep, itself, was not listed as a system or body part to be assessed. As a result, the Review Panel was limited to assessing the respiratory system alone.
As the Review Panel was satisfied there was no degree of assessable impairment arising out of the respiratory system, the Court stated, “such indirect effects must be incorporated into the assessment of the body part or system which is the source of the pain”.
Final Result
The Court dismissed the plaintiff’s application for judicial review on all grounds.
The issue of costs was raised, particularly whether the insurer intended to seek an order for costs against the Personal Injury Commission in the event the plaintiff was successful in this action. At [80] Baston AJ stated:
Such an order would turn on the responsibility of the Commission for the delay of the Review Panel in issuing certificates which delay formed the basis of the application for judicial review by the plaintiff.
If the plaintiff were successful, the insurer would be liable not only for its own costs, but also for the costs of the plaintiff. If the insurer were successful, it would be entitled to an order for costs against the plaintiff, but with a real possibility that, as a practical matter, costs would not be recoverable.
If the insurer were to seek costs against the Commission, the Commission would need to be given an opportunity to be heard, as the President’s submitting appearance did not extend to an adverse cost order.
The insurer was given 14 days to make an application for costs.
Why this decision is important
Although not applicable in this decision, as no application was made under s 7.26 of MAI Act, r 130 of the Personal Injury Commission Rules 2021 requires Review Panel certificates to be issued as soon as practicable after conducting a review. This poses as a somewhat flexible timeframe.
In the event it can be established that an extensive delay impacted the outcome or quality of a medical assessment, it may still be possible to establish an error at law, although successfully doing so is likely to be a difficult endeavour. In that case, the President of the Personal Injury Commission should be afforded an opportunity to explain such a delay.
Both insurers and claimants should ensure that all medico-legal experts identify the appropriate authority (i.e. the AMA4 Guides and Motor Accident Guidelines) upon which they have based their assessments. In addition, parties should be mindful of ensuring the appropriate body parts and/or systems are listed when making an application for medical assessment with the Personal Injury Commission.
[1] Medical assessments of this nature are now operated by the Personal Injury Commission Motor Accidents Division.
This article was written by Principal Andrew Gorman with the assistance of Solicitor Allisa Hollier. For further information or advice on any related matters please contact Andrew.
Disclaimer: This information is current as of September 2024. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.
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