REFERRAL OF MATTER FOR TREATMENT DISPUTE AFTER DETERMINATION ON PERMANENT IMPAIRMENT DISPUTE

Motor Vehicle Directions

Sadr v Allianz Australia Insurance Ltd t/as Allianz Insurance & Anor [2017] NSWSC 1718

Facts

The case was an application by the plaintiff for judicial review of the decision of the Proper Officer of the State Insurance Regulatory Authority (SIRA) to refer an application for determination of a treatment dispute made by the defendant.

The plaintiff was involved in a motor vehicle accident on 26 April 2014 (the accident), in which she sustained injuries to her neck. The defendant was the relevant compulsory third party insurer. On 4 March 2015, the plaintiff requested the defendant pay for a C6/7 anterior cervical discectomy and fusion (the surgery). On 29 March 2015, the defendant declined to fund the surgery on the basis that the need was not caused by any injury suffered in the accident and therefore it was not reasonable and necessary in those circumstances. On 27 July 2015, the plaintiff referred the matter to the Medical Assessment Service (MAS) for assessment of a whole person impairment (WPI) dispute. That application was limited to a dispute between the parties as to whether or not the plaintiff suffered a greater than 10% WPI. Allocation of the assessment was then deferred due to the impending surgery.

In November 2015, the plaintiff underwent the surgery. If the need for the surgery was causally related to the accident, her degree of WPI would be greater than 10%. The defendant’s evidence disputed that causal relationship.

In the circumstances, the defendant lodged its first treatment dispute with respect to the surgery. In response, the plaintiff asserted she had not sought to challenge the defendant’s decision not to pay for the surgery. She argued ‘…that there is presently no dispute or disagreement as to the medical treatment and therefore the Medical Assessment Service has no jurisdiction to entertain the insurer’s application…’ On
24 February 2016, SIRA contacted the defendant and advised the treatment dispute would be referred at the same time as the WPI dispute. The plaintiff wrote to SIRA advising the plaintiff ‘at this time’ had no intention of asking the defendant to pay for the surgery and no treatment dispute currently existed. Given the plaintiff was not claiming the cost of the surgery, the treatment dispute was dismissed.

That resulted in only the WPI dispute being referred for assessment. Ultimately, the plaintiff was assessed by MAS Assessor Cameron as having 25% WPI in relation to the neck injury, given she had undergone a fusion.

Following the MAS certificate being issued, the plaintiff lodged an application for general assessment with SIRA’s Claims Assessment Resolution Service (CARS). In that application, the plaintiff sought the cost of the surgery as part of her damages. Consequently, the defendant lodged a second application for a treatment dispute, which was accepted by the Proper Officer and was the subject of the plaintiff’s application for judicial review.

Key issue

The question for determination by the Court was whether the Proper Officer erred in allowing the second treatment dispute, and in doing so, failed to have regard to the fact that the certificate of MAS Assessor Cameron was final and conclusive of the treatment dispute.

Argument and decision

The plaintiff asserted her application for assessment of a WPI dispute required consideration of the issue of whether the surgery was ‘reasonable and necessary’ and whether it was causally related to the accident. The plaintiff also argued that any further assessment may lead to an inconsistency on that issue between different Assessors.

The defendant submitted the only medical assessment matter referred in the initial assessment was a WPI dispute and the certificate issued by Assessor Cameron was conclusive only as to the degree of permanent impairment suffered by the plaintiff. She contended that unless a matter was specifically before an Assessor, then it could not be said to have been determined by that Assessor. Further, the defendant alleged there would have been no possibility for inconsistency if the plaintiff had not prevented the defendant’s initial treatment dispute from being determined simultaneously with the WPI dispute.

Ultimately, the Court was satisfied that there was a difference between assessment of a WPI dispute and of a treatment dispute. The Court accepted the defendant’s submissions that a WPI dispute could not be said to be binding with respect to a treatment dispute. The Court was also satisfied that the plaintiff had ‘blocked’ the referral of the matter for a treatment dispute prior to the assessment of the WPI dispute on the basis she did not request the defendant to fund the surgery. The plaintiff’s lawyer repeatedly informed SIRA that the plaintiff would not claim the cost of the surgery from the defendant, but after the defendant’s application regarding a dispute about that treatment had been dismissed, a claim for the cost of the surgery was made in the plaintiff’s CARS application.

The Court concluded that treatment and WPI disputes are conclusive of different matters. Simply because an Assessor may need to consider material relevant to the question of treatment in order to resolve a WPI dispute does not mean they have resolved any dispute relating to the treatment, unless it was specifically referred.

Comment

It may well be that the plaintiff’s conduct in frustrating an earlier assessment of the causation dispute in relation to the neck surgery influenced the Court in deciding the issues in this case the way it did, but nonetheless, the decision stands for a very important point of principle. It should also serve to discourage claimants from trying to avoid assessment of treatment disputes in the hope that they will not be pressed once an assessment of WPI has been made.

Authored by Loukia Nicolas, Senior Associate and Amanda Harb, Lawyer, Sydney

Scott Graham, Partner in our Sydney Office achieved this significant result for the insurer in this matter.

 


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