Medical Assessment Review Panels must not play “blind freddie” to a person’s medical condition!

PUBLISHED 17 Mar 2016

Claps v Insurance Australia Limited t/as NRMA Insurance [2015] NSWSC 1881

Background

Mr Michael Claps (the plaintiff) sustained injuries as a result of a motor vehicle accident on 22 December 2007. The plaintiff contended that he developed further psychiatric disorders and symptoms following the onset of pain or well over a year post accident. In response, the insurer, NRMA maintained and disputed that the plaintiff’s deteriorating psychiatric condition bore a causal connection with the accident.

The dispute was referred to the Medical Assessment Review Panel who concluded that “there was no evidence of psychiatric disorder until over a year after the motor accident and he functioned well during that time, continuing to work as a bus driver.”

The Panel reached this conclusion on the basis that there was no evidence that the plaintiff had suffered a head injury and in the event the plantiff had suffered a traumatic brain injury, it would generally be expected that there would be some improvement over the next two years and not a deterioration after two years.

This conclusion was nevertheless determined, despite the plaintiff’ adducing comprehensive submissions and medical evidence that suggested that the development of the plaintiff’s mental condition was most likely caused by a reaction and response to his injuries sustained in the motor vehicle accident on 22 December, as opposed of being caused by the presence of a brain or head injury.

The plaintiff submitted that was no evidence of significant head injury, nor evidence of organic brain injury that explained the plaintiff’s deteriorating mental condition. Rather the presentation of the plaintiff’s impaired cognitive state was originating from the plaintiff’s difficulty and response to deal with the onset of pain. The plaintiff sought to redress the Panel’s decision by way of judicial review in the Supreme Court of New South Wales.

The Supreme Court Decision

The Court held that the decision of the Review Panel was in error. Although, the Review Panel considered three alternatives that might have suggested the cause of the plaintiff’s psychiatric deterioration, being a psychotic illness such as schizophrenia, a possible head injury suffered in the motor accident or a degenerative brain condition, the review panel failed to consider the fourth alternative, i.e the plaintiff’s psychiatric response to pain caused by physical injury.

The Court went on further to state that the Review Panel did not provide reasons on why it rejected the plaintiff’s case, which argued that his deteriorating psychiatric condition was in relation to his response to the onset of pain. The Court in arriving to its decision, made reference to the decision of Rodger v De Gelder, that there remains an additional obligation to deal with substantial arguments put forward by a party, and the Panel in this case failed to exercise this function. As a result, the Court ordered the decision of the Panel to be set aside and remitted the matter for assessment before a difference Review Panel.

At Gerard Malouf and Partners, we leave no stone unturned as far as your injuries are concerned. Contact us on 1800 004 878 and we will arrange a free consultation appointment for you at an office convenient to you in Sydney & NSW.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts or email your enquiry.