Katie Roberts v NRMA

Claimant — Katie Roberts
Applicant — the insurer PRC Matter Number WM 10541033/22
Medical assessment conducted by Philip Truskett
Date of original certificate 13 September 2022 President’s delegate — Rachel Bittliff
Date of decision 13 December 2022

In this matter, Dr Katie Roberts suffered serious injuries to her left knee on 1 July 2015.

On 13 September 2022, Assessor Philip Truskett found her left knee bone graft, as recommended by Dr Berton, related to the injury caused by the accident and was reasonable and necessary considering the circumstances. The insurer, NRMA, sought to have Assessor Truskett’s assessment reviewed on the basis that it was incorrect in material respect. Greg Walsh represented the Claimant and did not agree that a review was warranted in the matter and addresses the issues raised by the applicant. Section 63 of the Motor Accidents Act 1988 provides that if the president is satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect in material respect, the review application will be referred to a Review Panel. The insurer lodged an application under s 133A of the Personal Injury Commission Rules 2021.

Assessor Trsukett’s certificate was issued to the parties on 22 September 2022. In accordance with s 63(7) of the Act, the parties had 28 days from 22 September 2022 to make an application for a Panel Review of Assessor Truskett’s assessment. The final date to make the application was therefore, 20 October 2022. The insurer made its application on 21 October 2022.

The President’s delegate, Rachel Bittliff, determined that the loss of the right to make the application, does not work demonstrable and a substantial injustice. The delegate referred to Rae v Nominal Defendant [2020] NSWSC 1612 which at [80], the court observed the medical assessor was not obligated under the Motor Accidents Compensation Act 1999 or Medical Assessment (Guidelines) to refer to every report before him. Rather, he was obligated to explain his path of reasoning in sufficient detail to determine whether he fell into error.

The delegate made a finding that Assessor Truskett was not obligated to discuss each document, but was required to consider them. As such the delegate was not satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect and the material respect on the basis that Assessor Truskett did not have regard to relevant material at the time of the assessment.