Medical examinations: unreasonable and unnecessarily repetitious?

Behrens v Nguyen & Anor [2017] QSC 14

Burns J

The application concerned s 46A of the Motor Accident Insurance Act 1994 (Qld) which relevantly provides:

(2) The claimant must comply with a request by the insurer to undergo, at the insurer’s expense—

(a) a medical examination by a doctor to be selected by the claimant from a panel of at least 3 doctors nominated in the request; or

(b)  an assessment of cognitive, functional or vocational capacity by an expert to be selected by the claimant from a panel of at least 3 experts with appropriate qualifications and experience nominated by the insurer in the request.

(3) However, a claimant is not obliged to undergo an examination under this section if it is unreasonable or unnecessarily repetitious.

The plaintiff, a 25 year old German national, was involved in a motor vehicle accident in 2012 resulting in, inter alia, incomplete tetraplegia below the C5 vertebral level. A month later, the plaintiff returned to Germany. In 2016, an order was made by Daubney J that the parties participate in a conference to be conducted by way of mediation.

After an examination of the plaintiff by an orthopaedic surgeon revealed the need for multiple future joint replacements, the solicitor for the insurer sent a letter to Dr Wiesner, orthopaedic and trauma surgeon located in Germany, to organise for the plaintiff to be examined by a panel of medical specialists and to comment on future medical needs and costs. Dr Wiesner took upon himself to examine the plaintiff in relation to his orthopaedic injuries but failed to produce a comprehensive report.

The solicitor for the insurer wrote to the plaintiff’s solicitors asking for the plaintiff to be examined by another orthopaedic surgeon willing to travel to Germany. The plaintiff’s solicitor rejected the request because the further examination would be “unreasonable and unnecessarily repetitious”.

A second request was sent in 2016 asking for the plaintiff to be examined by a specialist but was also rejected, prompting the application.

Finding that the plaintiff must submit to the request to undergo further medical examination, Burns J held:

[23] Importantly, the insurer must satisfy the court that what is sought by way of examination is neither unreasonable nor unnecessarily repetitious. In determining whether that is so, the objects of the Act, including the object of encouraging the speedy resolution of personal injury claims resulting from motor vehicle accidents, are not to be overlooked. As Applegarth J observed in RACQ Insurance Ltd v Wilkins, the speedy resolution of such claims is facilitated by the timely completion of pre-proceeding steps and these “include the making of an offer of settlement based upon a fair and reasonable estimate of the damages to which the claimant would be entitled”. It follows that the exception to the insurer’s right to obtain a medical assessment of a claimant expressed in s 46A(3) of the Act should not be construed in an unduly restrictive way because, to do so, might have the effect of stifling that objective … Depending on the circumstances of the case at hand, a claimant may need to be examined by a number of different specialists or even a number of specialists within the same area of specialty. There is no rule against an insurer seeking to have a claimant examined on more than one occasion by a particular specialist or by more than one specialist within that area of specialty.

[26] … I do think that the insurer is entitled to a greater consideration of the case for multiple surgeries advanced by Dr Brocks than is revealed by that report, particularly when regard is had to the potential size of the future care component of the plaintiff’s claim. The proper assessment of that component requires, in my view, a careful consideration of the chance that the mooted surgeries will be required during the plaintiff’s lifetime. That, in turn, may very well enhance the prospects that the claim can be resolved short of a trial

[27] … it is to be noticed that there is no evidence from the plaintiff – whether directly or on information and belief – to the effect that he apprehends particular inconvenience or distress if required to submit to another medical examination. It should be appreciated that this is not a case where an insurer has received an unfavourable medical opinion and seeks to overcome it with another opinion

Although issues as to costs were not addressed by either party, Burns J found against the insurer, although successful, because the insurer sought an indulgence from court and as such the plaintiff should not be burdened by it.

David Cormack – Brisbane Barrister & Mediator

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