The case of Elammar v AAI Limited t/as AAMI [2024] NSWPICMP 280 decided on 8 May 2024 highlights the necessity of parties to a dispute clearly articulating the injuries for assessment when referring a medical dispute to the Personal Injury Commission (PIC).
Background
On 10 July 2020 Mr Elammar (the claimant) was involved in a motor vehicle accident.
The claimant and the insured driver were travelling in the same direction on the M5 motorway. There was an initial accident when the two vehicles swerved into each other and both drivers then pulled into the emergency lane to exchange relevant details.
An altercation then ensued between the parties which resulted in the insured driving off while the claimant was on the bonnet of the insured's motor vehicle. The claimant was thrown from the vehicle when the insured braked heavily and he was left on the side of the roadway after the insured left the scene.
There was agreement between the parties that the motor vehicle accident started with the sideswipe and ended with the claimant being thrown from the bonnet of the insured's vehicle.
The insurer denied liability for payment of ongoing statutory benefits on the basis that the claimant was mostly at fault for the motor vehicle accident and because he only sustained threshold injuries. There was a fully contested hearing after which Member Boyd-Boland certified on 22 September 2021 that the motor vehicle accident was caused by the insured driver and that the claimant's statutory benefits should be reduced by 10% for contributory negligence.
The claimant alleged Post Traumatic Stress Disorder (PTSD) and sought compensation under the Motor Accident Injuries Act 2017 (NSW) (MAIA). He further alleged physical injuries to his cervical spine, lumbar spine, both shoulders and right foot. The issue for determination was whether the claimant suffered PTSD as a result of the motor vehicle accident.
The claim was initially assessed by Medical Assessor Mason as suffering only from a threshold injury (an adjustment disorder). The claimant was dissatisfied with the assessment and sought review which was referred to the Medical Review Panel. The Medical Review Panel was required to re-evaluate the medical evidence and determine whether the PTSD diagnosis was linked to the motor vehicle accident.
The only psychiatric injuries alleged by the claimant in his dispute application form were PTSD, severe shock and severe anxiety and depression.
Medical Review Panel's findings
The Medical Review Panel undertook comprehensive review of the available medical evidence, including medical reports, psychological material and evaluations and the claimant's account of his symptoms and ongoing impact of his condition.
In their assessment, the Panel found that, while the claimant did exhibit symptoms of psychological distress following the accident, the evidence did not sufficiently support a diagnosis of PTSD attributable to the motor vehicle accident. Importantly, the Panel noted discrepancies and a lack of conclusive medical evidence linking the severity of the claimant's symptoms to the motor vehicle accident.
The Medical Review Panel ultimately concluded that the claimant's current symptoms, did not meet the criteria for PTSD attributable to the motor vehicle accident.
The Review Panel concluded:
- That the motor vehicle accident did not cause PTSD. The accident did cause both an adjustment disorder and an opioid use disorder in sustained remission.
- That the adjustment disorder pursuant to clause 4(2)(b) of the Motor Accidents Injuries Regulation (2017) (MAIR) is a threshold injury and the opioid use disorder is not.
- That, as a recognised psychiatric disorder that is not excluded by clause 4(2)(b) of the MAIR, the opioid use disorder is an non-threshold psychiatric injury.
However, most importantly, the Review Panel applied the Court of Appeal decision in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 and declined to certify the opioid use disorder as a non-threshold injury because that injury fell outside the terms of the referral. It was not an injury alleged by the claimant in his threshold dispute application so fell outside the "medical dispute" defined by the parties. The Review Panel therefore confirmed the Medical Assessor's Certificate.
It is abundantly clear that the scope of a medical dispute is defined, not just by the legislation or the material provided to the PIC in support of a claim, but by the submissions made by the parties which define the injuries in dispute. A PIC Medical Assessor is only permitted to assess the medical dispute as defined by the parties. It is therefore critical that the parties clearly articulate the injuries in dispute because this will define the scope of the medical dispute that can be addressed by a Medical Assessor.
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