Event and Time
Event Description
On 29 August 2019, the first defendant was involved in a motor vehicle accident in New South Wales, resulting in injuries for which he sought compensation. Following an assessment of his degree of permanent impairment (WPI) due to various injuries, including psychological conditions, the insurer challenged the assessment, leading to a review by a medical review panel.
Application and Claims
The first defendant applied to the Medical Assessment Service (MAS) under section 58(1)(d) of the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act") for an assessment due to a dispute about his entitlement to damages for non-economic loss. Initially, the medical assessor rated his WPI at 13% due to PTSD and Major Depressive Disorder. The insurer contested this assessment, claiming that the review panel improperly assessed the causal relationship between the accident and the first defendant's dementia, which arose after the accident.
Judicial Decisions
The court found that the review panel committed a jurisdictional error by failing to apply clause 1.34 of the Permanent Impairment Guidelines properly. The decisions made by the review panel on 9 September 2019 were declared invalid, and the matter was remitted to the State Insurance Regulatory Authority for lawful determination. The insurer was ordered to pay the plaintiff’s costs.
Dispute Points and Legal Basis
Dispute Points
- Insurer's Claims:
- The review panel failed to follow the Permanent Impairment Guidelines correctly. - There was an obligation under clause 1.34 to separately assess the impairment caused by the unrelated dementia condition. - The review panel did not respond adequately to the insurer’s arguments regarding the impact of dementia on causation and impairment calculation.
- First Defendant's Claims:
- The first defendant argued that dementia should be regarded as a physical injury, not psychological, and thus clause 1.34 does not apply to his case. - His position was supported by references to the DSM-5, arguing that cognitive decline did not categorize dementia as a psychiatric condition.