Heart

A key battleground in the progress of a personal injury claim is for both sides to get their medical expert reports arranged.  As the picture heading cheekily hints, sadly, there is not much love in this battleground, as so much of the claim depends on the opinions of these experts.

Let’s Take a Typical Example

Joe is injured in a motor vehicle accident, suffering a fractured arm, and develops chronic pain with a psychiatric disorder of depression on top.

Due to needing extensive treatment his condition does not stabilise until 12 months post-accident.

His legal team advise the insurer of their intention to get medical expert reports from an upper limb specialist and a psychiatrist.  They enquire if a joint report is possible, which is refused.  They enquire if the insurer will want their own expert reports.  The insurer response is we will decide once we see yours.

So, the reports come in around the 13 months stage, following which the insurer decides unsurprisingly they do want their own medical reports, and eventually sends two panels, and appointments are finally booked 15 months post-accident.  The insurer is a bit slow paying for the reports and they finally are available 17 months post-accident.  Then the settlement conference is ready to be booked, and it is convened about 19 months post-accident.

If the insurer got their reports when the injured person did, the settlement conference could have been booked around 14 – 15 months post-accident, being some 4 – 5 months earlier.  This sort of delay is what the legislation governing injury claims in Queensland was designed to avoid, but still goes on every day.

Discussion on Reasons Used For Delay

Before looking at the legislation and case law, here are some arguments we see about this issue.

For the insurer:

  • We may not need our own medical reports, so waiting to see your medical reports could save your client having to attend more doctors, as well as cost in the system
  • We may not need both experts, so could just book one and reduce issues in dispute
  • If we have to obtain medicals on every claim it will clog up the system and cost insurers more, raising premiums

In our experience, it is fairly uncommon for insurers to be happy with a medical report arranged by an injured person’s legal team.  In most large claims, each side will want their own expert.  In smaller claims, there should be scope for negotiations without any expert report (eg where the injured person has made a good recovery), or a joint report from a more middle ground expert (some exist!).

However, as most cases involve each side requiring their own expert before convening the settlement conference, the excuses above just don’t sit well when 4-5 months of extra delay could be avoided.

Legislation and Case Law

In the motor vehicle accident scenario, the governing legislation is the Motor Accidents Insurance Act 1994 which in its objects section 3(e) says:

“to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents”

If the parties cannot agree on a joint expert, then section 46A enables the insurer to compel the injured person to see a medical expert.  Further, section 41 requires the insurer to take all reasonable steps to inform itself of circumstances for the accident and to (in section 41(2)(a)):

“make a fair and reasonable estimate of the damages to which the claimant would be entitled in an action against the insurer

The 2 leading examples of case law on this obligation and power are:

  • Gitsham & Ors v Suncorp Metway Insurance Ltd [2002] QCA 310; and
  • Paterson v Leigh & Anor [2008] QSC 277

Gitsham

His Honour Justice McMeekin summarised the relevant effect of Gitsham where Her Honour Justice White (as she then was) discussed these sections as follows:

“[22] As White J (as she then was) observed in Gitsham & Ors v Suncorp Metway

Insurance Ltd, the effect of these provisions is that ‘an insurer is not permitted … to

stand by and merely be reactive to a claim. The section imposes a positive

obligation to gather information, address it and make an offer’. To that end the

legislation arms the insurer with the power to “force the pace” by requiring

claimants to co-operate with the insurer and to undergo medical examinations.”  (footnotes removed)

The Gitsham decision is also instructive that co-operation is a 2 way street, and overly enthusiastic lawyers for injured persons who seek to push an insurer to conference without having first ensured their own house is in order can pay a heavy price, as all 3 appeals of the insurer heard jointly in Gitsham were allowed and costs considered against their lawyers directly.

Paterson

The injured person in Paterson had themselves been guilty of delay, and then needed a Court order to extend time as a 3 year limitation which was approaching.  In defending the application, the insurer tried to prevent the extension of time being given, but found itself being critically examined for its own part in the delay.

It was said about this at paragraph 25:

“[25] As to its obligation to make a fair and reasonable estimate of the damages it would

seem that the insurer did precisely nothing. No medical examination has ever been

requested. No indication has ever been given by the insurer of its estimate of the

probably damages. No offer has ever been made.”

 On the issue of arranging its own medical examination, the failure by the injured person to have an ultrasound was the excuse made, but this was not accepted by the Court, at paragraph 39 as follows:

[39] Further, the second respondent seems to have taken not one step towards assessing

the damages. In my view it is not good enough to say that they were awaiting an

ultrasound being carried out. As I read Dr Foote’s report the ultrasound went only

to the issue of whether there was a tear of the rotator cuff. If such a tear was

demonstrated then that might bear on the issue of whether an operation would be

required. But there is nothing in the Act to suggest that the obligation to obtain

necessary medical information lies only on the applicant. One could only assume

that the second respondent’s reluctance to take any step is motivated by some

financial consideration. Perhaps it wished to avoid the expense of the ultrasound

and perhaps the expense of an independent medical examination. If so that provides

no justification for its conduct at all. One need only compare the resources of the

second respondent to that of a working mother running a small business to

appreciate the irrelevancy of such a consideration.

In the end the extension of time was granted, with no costs order, given delay by both sides was evident.

Conclusion

Delays in litigation cause stress, fatigue and delayed justice.  An insurance company which does not comply with its obligations as discussed above can be forced along.  It is up to diligent lawyers to hold them to account.

If you feel your case is taking too long, contact us for no obligation discussion of your circumstances.

 

Peter Matus | Special Counsel, Compensation Claims