Many people are injured in motor vehicle accidents. A claim for damages for pain & suffering depends on whether the degree of Whole Person Impairment is more than 10%. When there are disputes with an insurance company about the % level of impairment, Dispute Applications are then filed with the Personal Injury Commission.
The Commission will arrange for the Claimant to be examined by an independent Medical Assessor. It is important that all relevant information is provided to the Assessor.
A recent example of where the independent Medical Assessor's assessment was overturned on review was addressed in the case of AAI Limited t/as GIO v Adnan [2024].
The NSW Personal Injury Commission Medical Review Panel has revoked a Medical Assessor's Certificate on the basis that the Claimant's reported symptoms to the Medical Assessor and the medical evidence obtained were inconsistent with the 13% Whole Person Impairment. The Review Panel is the next step after the independent Medical Assessor. The inconsistencies turned out to be fatal and the decision from the doctor was overturned.
Background
On 12 October 2016, the Claimant's brother was killed when two motor vehicles collided head-on in an accident on the New England Highway at Kentucky, New South Wales.
At the time of the motor vehicle accident the Claimant was 16 years old and living in Pakistan with her family. The injured person, when she arrived in Australia, commenced a claim for personal injury damages under the Motor Accidents Compensation Act 1999 (NSW) (MACA) arising from her brother's death. She had treating reports from a doctor and also a Consultant Psychiatrist.
The Claimant's psychological or psychiatric injury was assessed at 13% Whole Person Impairment by a Medical Assessor. The Medical Assessor diagnosed the Claimant with a persistent depressive disorder with a persistent major depressive episode.
The insurer (GIO) sought referral to the Medical Review Panel on the basis that the assessment was incorrect in a material respect.
The Claimant was thereafter examined by the Medical Assessors on the Review Panel.
The Review Panel's Determination
The Medical Assessor's Certificate was revoked by the Medical Review Panel because, following review of all the evidence obtained by both parties. This included her academic record, work history and also documents provided to the Foreign Affairs as an overseas student.
The Panel found, among other things:
- The Claimant was effectively working in a full-time capacity with her university studies and paid work 1.
- The Claimant worked significantly longer hours during the COVID-19 pandemic when the work restrictions for overseas students were relaxed 2.
- The Claimant's school and university results demonstrated high performance in her studies specifically that she was able to concentrate, adapt and cope with her academic requirements 3.
- The Claimant told the Medical Assessor she did not buy food and ate what was in her refrigerator in addition to not buying personal items, which was inconsistent with her bank account statements which showed regular payments at various fast-food restaurants and retail outlets 4.
- The Claimant's high level of functioning, ability to support herself and her ability to live independently were inconsistent with a psychiatric diagnosis 5.
The Claimant's reported symptoms to the independent doctor and the evidence produced did not meet the criteria for a DSM-V psychiatric diagnosis. The symptoms reported to the Medical Assessor were not consistent with the PIRS rating system for psychological injuries.
It was found that she did not sustain any psychological or psychiatric injury because of her brother's motor vehicle accident.
The findings confirm that the Panel took account of all available information, including the inconsistency between what the injured person reported to her doctors and the Commission, her demonstrated level of function and her ability to support herself, both in day-to-day and in her studies. All of this was not consistent with a psychiatric diagnosis.
The decision is an important case for Claimants to be aware of as it shows that, regardless of symptoms that are reported by the Claimant, all material obtained in support of a claim should be considered, carefully reviewed and compared with treating doctors' reports to ensure that the material obtained in support of the claim is objective and consistent with what an injured person has said.
It also highlights the importance of Claimants being legally represented in PIC disputes about whole person impairment and their entitlement to damages. Carroll & O'Dea Lawyers will assist you with preparing and presenting your medical evidence in a comprehensive manner.
In our experience with these applications, Claimants who present a consistent history to the Assessor are more likely to obtain a Certificate which correctly reflects their physical and/or psychological injuries. This may include relevant reports from treating doctors, GP records, consultant specialists' opinions and a detailed statement as to the cause of the injuries from the motor accident.
You can read the full Decision here.
Footnotes
1 AAI Limited t/as GIO v Adnan [2024]
NSWPICMP 89 (19 February 2024) at [251].
2 Ibid at [252].
3 Ibid at [253].
4 Ibid at [255].
5 Ibid at [257].
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