BARTONE v INSURANCE AUSTRALIA LTD ACN 000 016 722 TRADING AS NRMA

1. The respondent’s decision of 3 September 2024 to determine the applicant’s quality of life benefits at $0 is set aside and the matter is remitted to the respondent with the directions that: (a) Insofar as the applicant’s musculoskeletal and psychological injuries are concerned, the quality of life application is to recommence from the point just after which the applicant submitted his quality of life application under section 137 of the Motor Accident Injuries Act 2019 (MAI Act). (b) The respondent is therefore to refer the applicant afresh to an authorised IME provider in respect of his musculoskeletal and psychological injuries for a first WPI assessment in accordance with division 2.6.3 of the MAI Act. (c) The respondent is to include the previous WPI reports arranged by both parties in the fresh referral form. Such previous WPI reports are to form part of the medical evidence available to the IMEs and are not otherwise to be regarded as WPI reports for the purposes of the recommencement of the quality of life application and the associated fresh assessment process.The IME provider is to be asked to encourage those assessing the applicant to give brief reasons for their decisions on MMI and apportionment. (d) The IME provider is to be advised that the parties have a preference for assessment of the applicant’s musculo-skeletal injuries by an orthopaedic surgeon.

……………………………….. Senior Member M Hyman REASONS FOR DECISION Introduction 1. This decision is about whether quality of life benefits should be paid by an insurer to a person injured in a motor vehicle accident. The applicant, Mr Noel Bartone (the applicant or Mr Bartone), was involved in a motor vehicle accident on 3 March 2020. The insurer for the at-fault driver was the NRMA (the respondent or the insurer). On 18 March 2020 the applicant made a defined benefits application under the Motor Accident Injuries Act 2019 (the MAI Act) and the respondent accepted liability. On 4 April 2023 Mr Bartone made an application for quality of life benefits under the MAI Act, and on 17 October 2024 the insurer responded to that application effectively denying him quality of life benefits. The applicant applied to this tribunal on 11 November 2024 seeking review of the respondent’s decision.

2. On 2 January 2021 the applicant was involved in a second motor vehicle accident, and he has lodged separate applications under the MAI Act in respect of that accident, in which the at-fault driver was covered by a different insurer. None of the issues related to that accident and application are before me for decision in the present matter.

3. A question of jurisdiction to hear the application arises at the outset. The decision for which review is sought is the respondent’s decision to make an offer of $0 to the applicant in quality of life benefits under section 161 of the MAI Act. That decision is not itself a reviewable decision; Schedule 2, Part 1.2 of the MAI Act, listing decisions reviewable by the ACT Civil and Administrative Tribunal (the ACAT) lists as reviewable the decision under section 160(2) to make a final offer whole person impairment (WPI) – effectively the decision immediately preceding the making of a monetary offer of quality of life benefits to an applicant. It appears that the respondent has not made an explicit decision on the applicant’s WPI – or at least one has not come forward in the papers – so it is perhaps arguable that there is no decision under section 160(2) for which review can be sought. Indeed, it is one of the applicant’s contentions in this matter that the respondent made an error of law in that it failed to make a decision on the applicant’s WPI.

4. No submission has been put to me challenging my jurisdiction to hear this matter. It is clear that in making an offer of $0 to the applicant, the respondent was 1 proceeding on the basis that the applicant’s WPI was less than 5%; there is necessarily an implied determination of WPI so as to allow a monetary offer to be made. And I do not think that the legislature’s intention could have been that an insurer could escape review by failing to make critical decisions in the process set out in the MAI Act. My conclusion is that the respondent’s decision on the applicant’s quality of life application is an ACAT-reviewable decision. I am satisfied that I have jurisdiction to hear and decide this matter.

The hearing

5. The matter came before me on 26 June 2025. The applicant was represented by Mr A Jullienne of Counsel, instructed by Mr N Gabbedy of Gabbedy Milson Lee; the respondent by Mr B Wilson of Counsel, instructed by Mr A Chan of Sparke Helmore. The respondent filed the documents relating to the applicant’s claim (I-documents 1-30, totalling 517 pages).

6. On 23 April 2025 the applicant lodged an application to admit additional evidence under section 197(3) of the MAI Act, and the application came to be decided at the hearing. The evidence comprised a report by Dr Terry Lim, a psychiatrist, dated 26 March 2025; and three letters from Dr Asher Livingston, an orthopaedic surgeon dealing with the applicant’s knee. At the hearing, the respondent opposed admission of this material, especially Dr Lim’s report, on the basis that the applicant’s written submissions had sought relief only in the form of a remittal of the matter to the insurer for reconsideration, and that the entire focus of the submissions was on the applicant’s injured knee, not his psychological injury. After some discussion, the parties agreed to proceed on the basis that, should I decide to set aside the decision under review, the parties would press for remittal of the matter for reconsideration, and not for the Tribunal to make a decision in substitution. On that basis, I ruled that the documents should be admitted. Dr Lim’s report was assigned the identifier Exhibits A1 and the letters from Dr Livingston became Exhibit A2.

1 MAI Act, sections 132(1), 167(1)

7. At the hearing the applicant also sought admission of a letter to the respondent from Mr Gabbedy, dated 7 May 2024. It was admitted as Exhibit A3. The respondent sought agreement to admit documents subsequent to the hearing related to Mr Gabbedy’s letter. This was agreed to and on 27 June 2025 the respondent filed 35 pages of letters and emails of various dates between the parties and the IME provider This material is admitted as evidence that was available to the respondent at the time of the decision under review, but had been omitted from the I-documents. Although not strictly an exhibit at the hearing, it was identified as Exhibit R1.

The issues

8. The issues before the tribunal are: a) whether the respondent’s decision to make an offer of $0 to the applicant for whole person impairment/quality of life was affected by an error of fact or law; b) if so, what remedy the tribunal should order.

The legislative framework

9. The MAI Act establishes a scheme to simplify motor accident insurance in the 2 ACT and make it easier to navigate. A Motor Accident Injuries Commission is 3 established by the Act , its functions including the supervision of the scheme, the regulation of insurers and issuing, monitoring and reviewing MAI Guidelines 4 provided for in the Act.

10. The MAI Act includes some overarching provisions that govern the way in which the scheme established under the Act is to operate. Section 20 of the MAI Act requires that insurers, applicants for defined benefits and claimants act in good faith and do their best to help resolve issues between them and bring the matter to finality. Specific duties are imposed on each type of participant. Applicants, for example, have a duty to act honestly and with integrity and not to mislead, with

2 MAI Act s 6 3 MAI Act Part 1.3 4 MAI Act s 25 5 respect to their application. Insurers have a duty to provide extensive information 6 to applicants, including by providing written reasons with any decision having a 7 material effect on an applicant’s entitlement to defined benefits.

11. A person who suffers a personal injury in a motor accident in the ACT is entitled 8 to defined benefits, which include income replacement benefits, treatment and 9 care benefits, quality of life benefits, death benefits and funeral benefits.

12. Part 2.6 of the MAI Act provides for quality of life benefits to be paid to a person who is injured in a motor vehicle accident and is sufficiently impaired as a result. Impairment is assessed through determination of a WPI figure. A person whose 10 WPI is at least 5% is entitled to quality of life benefits (subject to certain exclusions not presently relevant). A person may apply for quality of life 11 benefits, and if the insurer reasonably thinks that the person’s injuries have stabilised, and that the person has a permanent impairment, the insurer must refer 12 the person to an independent medical examiner (IME) for a WPI assessment.

13. The MAI Act provides detailed guidance on the process by which an injured person’s WPI may be assessed and determined, and the Act is in turn supplemented by the Motor Accident Injuries (WPI Assessment) Guidelines (the 13 Assessment Guidelines), which must be issued by the MAI Commission. An IME is tasked by the insurer (through an IME provider) with preparing a report 14 evaluating the person’s injuries, in accordance with the Assessment Guidelines, and that report may, or in some cases must, form the basis of an offer made by 15 the insurer to the applicant. An applicant may, however, arrange for a private

5 Mai Act, s 20(3) 6 MAI Act, s 20(4) 7 MAI Act, s 20(4)(d) 8 MAI Act s 38 9 MAI Act s 33 10 MAI Act s 132(1) 11 MAI Act, ss 137 and 138 12 7 MAI Act s 138 13 MAI Act, s 146; the current Guidelines are the Motor Accident Injury (WPI Assessment) Guidelines 2023; the Guidelines that were current at the dates relevant for the present matter are the 2019 Guidelines, which are drawn on in this decision 14 MAI Act, ss 144, 147, 149, 152 15 MAI Act, ss 154, 155, 156, 157 doctor to prepare a second report (which must also follow the Assessment 16 Guidelines). That second report must be provided to the injured person, who 17 may forward it to the insurer, which may accept the second report or send the report to the IME, who may then provide a notice either affirming their original 18 conclusion, or increasing the WPI. On the basis of either having accepted the second report, or having a notice of affirmation or increase from the IME, the 19 insurer must decide a final WPI for the applicant, and proceed to make a final 20 offer WPI to the applicant. If the final offer WPI is less than 5%, no quality of life benefits are payable; if above 5% but less than 10%, quality of life benefits are payable, but the applicant is not entitled to lodge a claim for damages under the common law provisions in the MAI Act; if above 10%, quality of life benefits are payable and the applicant may be entitled to make a common law claim. In each case, regardless of the WPI offer, the insurer must advise the applicant of 21 their right of review by the ACAT, and, if there are both physical and 22 psychological injuries, must explain how the WPI offer was determined. The amount of quality of life benefits payable to an applicant increases with the WPI 23 determined by the insurer. 24

14. The MAI Act provides for certain decisions to be reviewed by ACAT. ACAT reviewable decisions are listed in Schedule 1, Part 1.2, and include, at Item 29, a decision under section 160(2) setting a WPI amount for a final offer WPI. An applicant for defined benefits may apply for ACAT review of such a decision on 25 a question of law or fact. In a decision on such an application, the ACAT must affirm, or amend, or set aside the decision, and if setting it aside, may either make a substitute decision or remit the matter to the insurer for reconsideration in

16 MAI Act, s 158 17 MAI Act, s 158 18 MAI Act, s 159 19 MAI Act, s 160 20 MAI Act, ss 161, 162, 163, 164 21 MAI Act, ss 161(1)(b)(ii), 162(1)(b)(ii), 163(2)(b)(ii), 164(2)(b) (ii) 22 MAI Act, ss 161(1)(b)(iii), 162(1)(b)(iii), 163(2)(b)(iii), 164(2)(b) (iii) 23 MAI Act, s 167 24 MAI Act, s 192 25 MAI Act s 193 26 accordance with any directions the ACAT may make. In its review, the ACAT is limited to the evidence available to the decision-maker at the time the decision 27 under review was taken; but the ACAT may admit additional evidence, on application by a party, where that evidence was not reasonably available to the 28 decision-maker at the time of the decision.

15. The Assessment Guidelines, made under section 146 of the MAI Act, set out how a person’s WPI is to be assessed, and the principles and procedures to be followed in the assessment, including the determination of an impairment as permanent. The Guidelines generally follow the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5), with 29 the Guidelines prevailing where there is inconsistency. The Guidelines require the assessor to determine whether the person has an impairment deriving from a compensable injury, whether that impairment is permanent, the degree of 30 impairment, and any contribution made by an earlier injury. The Guidelines provide detailed guidance for different parts of the body, including the legs (lower extremities) and the spine, and for psychological and psychiatric disorders.

The evidence

16. The essential details relating to the accident itself are not at issue. It occurred on 3 March 2020. The applicant gave way to another vehicle at a roundabout, and was hit from behind. He reported suffering a whiplash injury to his neck, and he 31 injured his knee when he stepped out of the vehicle into a pothole. He lodged an application under the MAI Act (for treatment and care benefits) on 18 March 2020, reporting his injuries as whiplash and injury to his left knee on exiting the 32 car.

17. Although the documentation is not before me, I understand that the applicant’s treatment and care application was accepted and his treatment and care expenses

26 MAI Act, s 197(1) 27 MAI Act, s 197(2) 28 MAI Act, s 197(3) 29 MAI (WPI Assessment) Guidelines 2019, clause 1.1 30 MAI (WPI Assessment) Guidelines 2019, clause 1.6(a) 31 I-1, pages 1-7 32 I-2, pages 8-13 met. Less than a year after the accident described above, he suffered a second accident, in which his car rolled several times. The at-fault driver in that second accident was insured by a different insurer; the scope of the present application is limited to the injuries sustained in the first, March 2020, accident (the first accident).

18. In his further application to the respondent in respect of the first accident, for 33 quality of life benefits, on 4 April 2023, the applicant gave his impairments as “Left Knee Pain requires knee replacement guided by specialist. Neck Pain going down the left arm and pins needles in left hand fingers also headaches, Brachialgia, requires surgery, chronic pain, depression and PTSD”. On 12 April 2022 the respondent referred the applicant for two separate assessments of his injuries. The first assessment was for physical injuries (upper extremity, 34 lower extremity, spine and hearing loss), the second for primary psychological 35 assessment (psychiatric and psychological disorders).

19. The referral for a physical assessment went to a consultant rheumatologist, Dr Loretta Reiter, who assessed the applicant on 21 June 2023. Her report, dated 26 June 2023, included a detailed assessment of the applicant’s history, symptoms and relevant imaging. She diagnosed “a whiplash injury that exacerbated his underlying, pre-existing, age-related degenerative cervical spine disease” and “a twisting injury to his left knee … and … an aggravation of his underlying pre-existing, age-related left knee osteoarthritis”. Dr Reiter stated that the applicant had reached maximum medical improvement, and applied the Assessment th Guidelines and the 5 Edition of the American Medical Association (AMA5) guide to permanent impairment (as required by the Guidelines) to arrive at a total whole person impairment (WPI) of 4%, made up of 2% for each of the cervical 36 spine and the left knee, reflecting a 30% apportionment from the first accident.

20. The referral to the IME provider included mention of the applicant’s claim to have suffered a hearing loss in the accident. It appears that a specialist, identified

33 I-3, pages 14-16 34 I-6, pages 27-31 35 I-5, pages 22-26 36 I-7, pages 32-42 only as “Professor Fagan” assessed the applicant and determined that no hearing 37 loss beyond that already having occurred had been sustained in the accident. Professor Fagan’s report is not included in the papers filed in the matter and the issue is not pressed by the applicant.

21. The psychiatric assessment was conducted by an independent medical examiner and consultant psychiatrist, Dr Shiva Gunapu. Dr Gunapu conducted his assessment on 29 September 2023, and his report is dated 26 October 2023. The report listed the applicant’s relevant medical and personal history, assessed his mental state at examination and diagnosed an exacerbation of existing PTSD and major depressive disorder. Dr Gunapu noted that exacerbation was “time limited”, with “mild worsening” of symptoms, and that the effects of the subject accident (of March 2020) were exceeded by the effects of the 2021 “more serious” accident. There is no express apportionment of symptoms to the subject and later accidents but Dr Gunapu referred to the apportionment of symptoms to the subject accident as “negligible”. Dr Gunapu stated that the applicant had reached maximum medical improvement and assigned a WPI of 0% using the 38 Assessment Guidelines and AMA5.

22. Under section 158 of the MAI Act, the applicant sought a second assessment for each of his physical and psychiatric injuries. For his physical injuries he was assessed by Dr Tim Anderson, an occupational physician. Dr Anderson conducted an examination on 6 March 2024 and produced a report on 11 April 2024. The report follows the pattern of those done by the two IMEs, except that there is no list of file material provided or schedule of documents, and Dr Anderson’s account of the applicant’s past medical history is a single sentence referring to mild high blood pressure (although he notes the outcome of several scans (X-ray and MRI), implying that some material was sent to him, even if no list is provided). Dr Anderson made an assessment of the combined effect of the two accidents and then apportioned the WPI. His diagnosis was that the applicant was “hurt to a moderate degree with his neck due to a musculo-ligamentous strain injury and also with a wrenching injury to his left knee, which occurred on

37 I-84, page 84 38 I-8, pages 43-60 03/03/20”. Following the second accident, “he continues to have dysfunction of his neck, lower back and considerably more so, to his left shoulder and to his left knee”. Dr Anderson assigned a 6% WPI to the applicant from the first accident. He noted that the WPI figure assumed no further knee surgery, but that “if he does have a knee joint replacement of the left knee, his whole person impairment 39 of the knee would substantially increase”.

23. The applicant engaged Dr Brian Potter, a psychiatrist, to prepare a second report on his psychological state. Dr Potter saw the applicant in person on 6 March 2024, with a second, supplementary session about a week later, done remotely, and prepared a report dated 31 March 2024. The report follows the usual pattern; Dr Potter diagnosed persistent major depressive disorder and complex post-traumatic stress disorder, and noted “a significant somatic component of chronic pain”. He also suggested a diagnosis of adjustment disorder with mixed anxiety and depression and chronic post-traumatic stress disorder; to some extent these competing diagnoses appeared to derive from the different diagnostic systems in some of the standard manuals. Dr Potter suggested that the applicant would benefit from extensive psychological treatment, and that any impairment 40 assessment was premature and should be deferred for six to twelve months.

24. The respondent sent the reports of Dr Anderson and Dr Potter to Drs Reiter and 41 Gunapu (respectively), asking for a notice of affirmation or increase from each. On 15 August 2024 Dr Reiter affirmed her WPI assessment, pointing out that she and Dr Anderson apportioned the effect on the left knee from the two accidents differently, and that he had included a value for a varus knee deformity, which she regarded as pre-existing and therefore not to be attributed to the accident of March 2020. When all this was taken into account Dr Anderson’s assessment and 42 hers were effectively the same.

25. On 9 September 2024 Dr Gunapu also affirmed his earlier WPI assessment of the applicant at 0%. In his view psychotherapeutic treatment of the applicant would

39 I-10, pages 75-83 40 I-9, pages 61-74 41 I-11, page 84; I-12, page 85 42 I-14, pages 87-9 not yield any clinical improvement in respect of the psychological impact of the 2020 accident, and he therefore saw no point in waiting for a longer period before 43 arriving at a WPI assessment.

26. On 17 October 2024 the respondent wrote to the applicant, attaching the notices provided by Dr Reiter and Dr Gunapu, and making a final WPI offer of $0 in 44 quality of life benefits. On 6 November 2024 Mr Bartone applied for review of 45 the respondent’s decision by ACAT, and on 29 November 2024 the respondent provided what purported to be a statement of reasons under rule 129 of the ACT 46 Civil and Administrative Tribunal Procedures Rules 2024 (the ACAT Rules).

27. The above paragraphs set out the procedures prescribed by the MAI Act to determine the applicant’s WPI. In parallel with those procedures, which involve IMEs and private medical examiners (PMEs), Mr Bartone was of course being treated by his own doctors, both for his physiological injuries and his psychological conditions.

28. For his knee, the applicant had a number of consultations with an orthopaedic surgeon, Dr Asher Livingston. The earliest of these consultations was on 25 May 2020; Dr Livingston provided a report on that consultation to the 47 respondent, , diagnosing “a complex tear of the postero-medial meniscus”. Dr Livingston recommended a left knee arthroscopy and meniscal debridement; he also foreshadowed that in the future a left knee replacement might be needed. 48

29. In a report to the applicant’s general practitioner dated 22 July 2021, Dr Livingston noted that the applicant had preferred conservative treatment, but reported significant deterioration in his knee. He sent him for imaging but noted that “he may be a candidate for a knee arthroscopy or potentially a total knee replacement”. When the imaging became available, Dr Livingston stated in a further report to the applicant’s GP dated 3 June 2021 that the knee had worsened,

43 I-15, pages 91-4 44 I-17, pages 101-2 45 I-18, pages 103-111 46 I-19, pages 112-3 47 I-26, page 485 48 I-26, page 486 and recommended a left knee arthroscopy and meniscal debridement (the same procedure he had recommended a year or so earlier), and again foreshadowed the 49 possibility of knee replacement at some future time.

30. Dr Livingston undertook the recommended surgery, and made further reports on 50 51 Mr Bartone’s knee condition afterwards, on 17 February 2022, 13 April 2022, 52 53 26 March 2024 and 25 September 2024. The surgery was successful, but Dr Livingston noted in the third of the above reports that there had been a successive decline, and the knee had progressed to “symptomatic arthritis as a sequelae of his initial car accident on 3rd March 2020” (original emphasis). Dr Livingston recommended total knee replacement of the left knee. Mr Bartone was scheduled to have the replacement on 15 November 2024, but it was postponed and took place in December 2024.

31. For his neck, cervical spine and left arm, Mr Bartone saw a neurologist, Dr Susan Tomlinson, and a neurosurgeon, Dr Kirsty Hamilton. The doctors gave perineural injections for pain alleviation, although without a great deal of success, 54 it appears. Dr Hamilton raised with the applicant the possibility of anterior 55 cervical discectomy and spinal fusion. On 25 March 2022 Dr Tomlinson 56 referred him to Dr Keith Chan, a pain specialist. Dr Chan was concerned that Mr Bartone was seeing so many different specialists, each of whom was treating 57 him separately, without close communication among them. Although the focus of this matter was very much on the applicant’s knee injury, both Dr Reiter and Dr Anderson assessed the applicant’s spine, neck and arm and those injuries made a contribution to their WPI determinations.

32. Dr Lim, seeing the applicant much later, included in his report a history for the applicant, and noted his pre-existing post-traumatic stress disorder. Dr Lim

49 I-26, page 492 50 I-26, page 495 51 I-26, page 496 52 I-26, page 497 53 I-26, page 498 54 I-28, page 503, I-29, pages 508-512 55 I-29, page 511, 514 56 I-28, page 507 57 I-25, pages 475-484 assessed the applicant at a WPI of 22% and deducted 2% for the pre-existing illness. The final WPI was given at 20% but there is no apportionment between 58 the two accidents.

Consideration

33. The MAI Act is still new legislation. The scheme it introduced is different from those operating in other jurisdictions. The parts of the scheme relating to longer term aspects – in particular quality of life benefits – are only now being tested and applied.

34. Some parts of the legislative scheme are well established. It is not controversial that the effect of section 193 of the Act, limiting the ACAT’s review to “a question of law or fact”, is to focus the review process on whether the decision under review is lawful rather than whether it is “the correct or preferable” decision in the circumstances of the case. It differs, therefore, from the familiar 59 merits review process of administrative review. The constraint imposed on the admission of evidence in the review process by section 197 is similarly well understood. But there is at present only one published case on quality of life 60 benefits – Hernandez v GIO (Hernandez) – published a few days before the hearing in the present matter. I arranged for the parties to be provided with the decision before the hearing, but it was published too late for it to be taken into account in written submissions. The case touches on some of the issues that arise in the present proceedings.

How the parties presented their case

35. The applicant filed three written submissions, dated 14 February, 21 April and 30 May 2025, the last identified as a submission in reply, The second submission is said to take the place of the first. Oral submissions at the hearing covered much the same ground.

58 Exhibit A1 59 Neish v NRMA [2022] ACAT 24, at [17]-[20]; Williams v GIO [2021] ACAT 100, at [94]; Montgomery v NRMA [2024] ACAT 60, at [18]-[21] 60 [2025] ACAT 45

36. The essence of the applicant’s argument is that the progressive decline in the applicant’s knee meant that the WPI assigned by the IME, Dr Reiter, in June 2023 was no longer a tenable assessment at the time of the respondent’s WPI decision in October 2024; that conclusion was reinforced by the impending knee replacement, of which the respondent was aware. The knee replacement was acknowledged as likely to lead to an increase in the WPI.

37. The applicant advanced a number of arguments in support of that thesis, or otherwise pointing to the need to set the insurer’s decision aside and remit the matter. First, the applicant noted that the insurer’s WPI decision did not in fact determine the applicant’s WPI, as required by section 160 of the MAI Act; rather it made an offer of $0.00, without stating a WPI figure from which the monetary offer had been derived. In failing to set forward a WPI figure, the applicant said, the insurer had failed to meet the requirements of the Act, and the decision was 61 therefore “a nullity”. It was also an error of fact because the quality of life offer (and the implied WPI leading to it) did not reflect the manifest decline in the 62 applicant’s medical condition. The applicant also pointed to the absence of written reasons for the respondent’s WPI decision, contrary to the requirement in section 20(4)(d) of the MAI Act that an insurer provide written reasons for any decision having a material effect on the applicant’s entitlement to defined benefits.

38. The applicant also advanced some more general arguments: that the respondent’s decision was legally unreasonable – that “no sensible decision-maker acting with due appreciation of its responsibilities would have so decided”, and that a particular aspect of that unreasonableness was the referral to a rheumatologist rather than an orthopaedic surgeon; that the applicant was denied procedural fairness, in that he was not given an opportunity to be heard on the WPI decision before it was made; and that the respondent failed to decide the matter “justly” 63 and “in good faith”, as required by the MAI Act.

61 Applicant’s submissions in reply, 30 May 2025, at [17] 62 Applicant’s submissions, 21 April 2025, at [37] 63 Applicant’s submissions, 21 April 2025, at [37]

39. The respondent’s argument is, essentially, that the “outsourcing” of medical assessments under the WPI provisions in the MAI Act means that an insurer’s freedom of action is constrained once the process has begun; and that the intent of the scheme of the Act is that it is for the medical specialists to make the medical judgments required, and not for the insurer. The process is prescriptive and its timeline demanding. Once the process has started the insurer has limited if any opportunity to slow or stop it, or to adjust it for changing circumstances. And the outcomes it delivers are in the gift of neither applicant nor insurer: the arms-length nature of the assessment process means that either party might find itself unable to escape from an assessment unsympathetic to its interests. The respondent said that, having followed the process set out in the MAI Act and the Assessment Guidelines, having done what was required of it, and having done nothing that it was not entitled to do, it has committed no legal error, and its decision should stand.

40. In response to the contentions put forward by the applicant, the respondent argued that the WPI decision itself was part of an extended interchange with the applicant; the applicant’s attention had been drawn to the notices of affirmation or increase of Drs Reiter and Gunapu; and that, taken as a whole, the exchange of information amounted to an explanation for the decision that met the test in section 20(4)(d) of the MAI Act to provide reasons to an applicant; and I should look at the decision and the communications accompanying it “beneficially”. Alternatively, I could follow the course of action apparently contemplated by section 20(5) of the MAI Act, and order that reasons be provided, without otherwise disturbing the decision under review.

41. The respondent rejected the suggestion that its decision was legally unreasonable, pointing to the care taken in following the legislatively prescribed course, and, in regard to the choice of a rheumatologist as IME, to the role of the IME provider in the WPI assessment process. Similarly, the respondent complied with the procedural fairness aspects of the process by following the steps that the MAI Act and Assessment guidelines prescribe. The applicant’s suggestion that the decision did not meet the requirement that decisions under the MAI Act be “just” misunderstands the WPI process; there was no error of law on the respondent’s part.

Decision-making under division 2.6.3 of the MAI Act

42. There are two different models of the WPI assessment process reflected in the submissions of the parties. The applicant sees the determination of the WPI as a determination of a question of fact, pointing to the requirement in section 160 of the MAI Act that the insurer decide an applicant’s WPI. That decision must then be arrived at by a logical process in which the evidence is weighed and a conclusion drawn that reflects the circumstances of the applicant, based on the medical assessments that have been made. The respondent, on the other hand, sees a process in which the essential fact-finding is outsourced to the specialist doctors, both IMEs and PMEs. They assess each applicant and come to their conclusions on the WPI, and the test for whether those conclusions are properly found is whether they have followed the MAI Act and the Assessment Guidelines. It is not for the insurer to second-guess that process; the insurer’s decision-making is limited to choosing from the WPI determined by the IME and that determined by the PME (where one has been engaged), guided where appropriate by a notice of affirmation or increase.

43. In my view the respondent is right to point to the outsourcing of the medical aspect of the WPI process. It is central to the scheme of the MAI Act that the medical assessment process for determining an applicant’s WPI is carried out independently of the parties. The choice of IME is not in the insurer’s hands. Sections 147, 148 and 149 of the MAI Act illustrate the way in which the integrity and independence of the assessment process is maintained, by the requirements in respect of both IME and PME (if one is engaged) but also through the IME provider, which acts as an intermediary and insulating layer between insurer and IME. That insulation process is illustrated by the additional papers tendered by 64 the respondent, which show the arms-length nature of the relationship very clearly. The applicant suggested that there were occasions in which insurers

64 Exhibit R1 interfered with this separation, and were able to bring pressure to bear on 65 assessors, but offered no evidence in support of that assertion.

44. The Assessment Guidelines reinforce the independence of the assessment process: clauses 1.41 and 1.50 illustrate the role of the IME and the intermediary nature of the IME provider.

45. I am satisfied, then, that the medical assessors are independent of the insurer and, to a degree, of the applicant (the applicant can select a PME, but the PME must be trained and accredited in doing assessments under the assessment guidelines – see sections 145 and 158). But it does not necessarily follow that the insurer’s role as decision maker under section 160 of the MAI Act, when making a final WPI offer to an applicant who has obtained a PME report, is simply to select one of the competing WPI values, regardless of the actual circumstances of the applicant in the matter. In the first place, the insurer’s decision under section 160 is a gateway decision to wider benefits under the Act: if the WPI is below 5%, no 66 quality of life benefits are payable; if between 5% and 9% quality of life benefits are payable but the applicant may not make a claim under the MAI Act’s common 67 law provisions; and if 10% or more, the applicant will be paid quality of life 68 benefits and may be able to make a common law claim. The decision on final WPI is therefore critical to the insurer’s continuing liability and to the applicant’s future entitlements.

46. As a decision that has a material effect on an applicant’s entitlement to defined benefits, a decision under section 160 determining an applicant’s WPI also attracts the insurer’s obligation under section 20(4)(d) to provide written reasons for the decision. The good faith obligations on applicants and insurers under section 20 are frequently rather general in nature, but that in section 20(4)(d) is worded with considerable specificity, and in my view a failure by an insurer to

65 Transcript of proceedings, 26 June 2025, page 50 66 MAI Act, s 161 67 MAI Act, s 162 68 MAI Act, ss 163, 164 provide reasons, where required, and to the relevant standard, would be 69 potentially an error of law.

47. There is another element to the decision under section 160. Section 153 deals with circumstances where there is both a physical and primary psychological injury, and each is assessed at a WPI of greater than 0%. Subsection 153(2) then provides that “The relevant insurer for the motor accident may take into account the WPI for each kind of injury to determine the amount of quality of life benefits the insurer may offer the injured person.” I note too that sections 161-164, dealing with the process to be followed after a final offer WPI has been decided, and setting out that process for each of the relevant circumstances, provide in each case a requirement that the notice to the applicant, where there are separate physical and psychological WPI assessments, include an explanation of how the 70 final offer WPI was arrived at. These provisions point to the discretionary element in the insurer’s decision under section 160; the discretion is limited, but it is by no means negligible.

48. The Explanatory Statement for the Motor Accident Injuries Bill 2019 (as presented) includes in the note to clause 158 (the clause that appears in the Act as section 160) the following statement: Clause [160] will allow the relevant insurer to negotiate between the first Whole Person Impairment report or if a review was requested by the insurer the notice of affirmation or increase from the IME provider, and the second Whole Person Impairment report. For example, if the notice states a Whole Person Impairment of six per cent and the second Whole Person Impairment report gives a score of eight per cent – the insurer could make an offer of seven per cent. The intent of this provision is to provide the necessary safety net for the injured person as to the minimum amount 71 they will be entitled to.

49. From the above it is clear that the insurer’s decision under section 160 is more than merely procedural: the insurer is obliged to decide the applicant’s WPI; that decision is critical to the applicant, as it determines the applicant’s entitlements to quality of life benefits; the insurer is obliged to provide written reasons for the

69 See for example Hernandez 70 MAI Act, ss 161(1)(b)(iii), 162(1)(b)(iii), 163(2)(b)(iii), 164(2)(b)(iii) 71 It is not clear why the cited text refers to “clause 160” when the heading for the notes identifies the relevant clause as 158. decision; and the insurer may be faced with the need to exercise discretion in resolving differences between the WPI as determined by an IME and PME, or between the physical WPI and the primary psychological WPI (or both).

50. How, then, is this discretion to be exercised – what are the considerations that govern it? The obligation to decide between or otherwise accommodate physical and psychological WPIs, and the idea that an insurer might compromise between competing WPIs from an IME and a PME, suggest that the expectation is that the insurer will arrive at a WPI that is a fair reflection of the state of the applicant’s impairment arising from the subject accident, taking into account all of the medical assessments.

Was the respondent’s decision under section 160 affected by an error of fact or law?

51. Turning then to the circumstances of the present matter, the applicant has identified what are said to be six errors of fact or law: first that the respondent did not tell the applicant what WPI had been determined (making an offer in dollar terms, without identifying the WPI that gave rise to the offer); that the respondent gave no reasons under section 20(4)(d) for a decision materially affecting the applicant’s entitlements to defined benefits; that the respondent’s decision was also affected by an error of fact in that the applicant’s knee condition had deteriorated significantly by the time of the decision, and the WPI assigned him by Dr Reiter no longer reflected his state of impairment; that the decision was legally unreasonable; that it was a failure of procedural fairness; and that it did not meet the obligation in section 20 that applications should be resolved justly.

52. Some of the applicant’s arguments can be put to one side. In Hernandez I addressed the question of procedural fairness now raised by the present applicant. I do not believe that an insurer is obliged to inform an applicant of the decision it is proposing to make under section 160 and allow the applicant to respond, as a means of providing procedural fairness. The equivalent of such a step is the provision in sections 154-158 of the MAI Act for an applicant who is dissatisfied with the WPI determined by the IME to notify the insurer of that dissatisfaction (under sections 154-157) and seek an alternative determination from a PME (under section 158). Subsequently, if the PME’s report is given to the insurer, a notice of affirmation or increase can be sought from the IME. These are ways in which an applicant’s interests are recognised and accommodated, without expecting an applicant to offer medical opinions on matters on which they are not likely to be expert.

53. I do not accept that the respondent’s decision was legally unreasonable. The respondent’s approach to the construction of the MAI Act is not one that I can accept in every respect, but it is surely arguable. And it is plain that the prescriptive and constrained process in the MAI Act might often make it difficult for an insurer to be at once procedurally correct and fair to an applicant. As the respondent has argued, the requirements of the MAI Act were closely followed, (with the limited exceptions noted in this decision). I do not see any legal unreasonableness.

54. Nor can I find the decision to be in error because it is not “just”. True it is that section 20 requires that applicants and insurers seek to resolve applications “justly and promptly”, but these are very general and subjective propositions; I cannot accept that they are intended to be criteria for resolving disputes between parties.

55. The applicant’s arguments about having been assessed by a rheumatologist rather than an orthopaedic surgeon I find to be misplaced. As the respondent noted, the WPI process does not allow an insurer to choose which kind of medical specialist will be selected as IME; that choice rests with the IME provider. In the present instance, after two motor vehicle accidents, the IME provider chose a rheumatologist, who could assess all musculo-skeletal impairments, and not only those for which surgery might be indicated or relevant. In any case, a rheumatologist, to my understanding, is simply the non-surgical equivalent of an orthopaedic surgeon. There is certainly no error of law in the respondent’s actions in referring the applicant for assessment.

56. Turning then to the other errors of law or fact identified by the applicant, I note that the respondent’s letter of offer to the applicant does not contain a figure for his WPI. Yet it is that figure that determines what he is entitled to. The respondent argues that the figure can be readily inferred from the reports of the IMEs and PMEs and, especially, from the notices of affirmation or increase from the two IMEs, pointing out that by this time the applicant had the advantage of being legally represented. I do not accept those arguments. Section 160 obliged the respondent to decide the applicant’s WPI, and section 161 to provide the notice of affirmation or increase to the applicant, along with the final offer WPI itself, and advice about review of the decision by this Tribunal. The respondent’s decision did some of those things (the notices of affirmation or increase, and advice about application to the ACAT), but did not convey the final offer WPI itself, despite the explicit requirement to do so. This was a failure to meet the terms of the MAI Act, and an error of law. These are matters central to the applicant’s interests, and he was entitled to the respondent’s careful attention to its legislated obligations regarding them. I note that the respondent – or at least the respondent’s solicitor - was aware of the obligation to explain how the WPI was determined, as that is acknowledged in one of the communications filed after 72 the hearing by the respondent; but that awareness was not reflected in how the decision was presented to the applicant.

57. In my view it was also an error of law that the respondent did not provide written reasons for its decision. The respondent has argued that there was a protracted exchange of information between the parties, that all the information could be readily gleaned or inferred from other material, and that I should take a “beneficial” approach to the question. I am unable to do that, given the centrality of the section 160 decision to the scheme of the Act. The respondent also suggested that I could leave the decision untouched but order that reasons are supplied, as seems to be contemplated by section 20(5) of the MAI Act, but given the error identified in the previous paragraph, I do not think that would be appropriate.

58. Whether the respondent’s decision involves the kind of error of fact identified by the applicant is difficult to determine, in that it is not clear that the respondent decided a final offer WPI, although given that the payment offer made was $0, I can assume that the WPI must have been less than 5%. The applicant argues that the advice made available to the respondent about the deterioration in the applicant’s knee, and the likelihood of a knee replacement should have prompted

72 Exhibit R1, letter from Sparke Helmore to Gabbedy Milson Lee, 12 July 2024 some different path – calling the WPI process to a halt or pausing it. But the respondent points, fairly, in my view, to the inexorability of the WPI process, where the steps are closely prescribed and each step is governed by time frames that do not seem to allow any leeway for unforeseen circumstances. To take the present WPI decision under section 160, for example, the respondent was obliged to make a final offer WPI to the applicant, with accompanying notice, within 73 14 days of receiving the second notice of affirmation or increase. Not to have made such an offer, recognising perhaps the instability of the applicant’s knee injury, would have put the respondent at odds with the process of the Act.

59. The scheme of the MAI Act places a good deal of emphasis on ensuring that a person injured in a motor vehicle accident can have their matter settled promptly, and the time frames in the Act are plainly intended to ensure that outcome. It seems unlikely, perhaps, that a failure to meet any particular time frame would have serious consequences for an insurer, at least in most cases. Nevertheless, it remains the case that there is little in the Act that allows an insurer to adjust the process for unexpected circumstances. There is a provision for an applicant to make a common law claim and apply to stay that claim while waiting for injuries to stabilise, but this course is only available where four years and six months has passed since the subject motor accident, and an IME assesses the applicant’s 74 injury or injuries (physical or psychological) at 5% or greater. Otherwise, so far as I can see, there is no provision for either insurer or applicant to apply the brakes to the WPI process.

Decisions on MMI

60. It is instructive to consider the provisions that deal with the permanence, rather than the severity, of an applicant’s injuries. Sections 138-142 of the MAI Act deal with the insurer’s decision-making process in respect of the stabilisation of an applicant’s injuries, with the paradigmatic procedure being that set by section 138. Under that section, if the insurer reasonably believes that an applicant’s injuries have stabilised, and that the applicant has sustained a permanent impairment, the insurer must refer the applicant for a WPI assessment by an IME.

73 MAI Act, s 161 74 MAI Act, ss 141, 142 The IME is also called on to make a determination of permanence, and the Assessment Guidelines require a judgment whether the applicant’s condition has reached maximum medical improvement (MMI) and whether any impairment is 75 permanent. The Guidelines go on to explain MMI as meaning that an injury “is well stabilised and is unlikely to change substantially in the next year with or 76 without medical treatment”. If the IME concludes that an injury is not stabilised, 77 and the applicant has not attained MMI, the assessment is to be deferred. As noted above, that appears to be the only way in which the process can be halted once the referral to an IME has taken place.

61. The MAI Act offers no real guidance on what should be done in a case like the present, where the IME for the physical injury assessed that the applicant had reached MMI, but subsequent events raised doubt about the accuracy of that judgment; and further, the psychological IME and PME differed over whether or not the applicant’s psychological injury had stabilised. I note too that the notice of affirmation or increase under section 159 of the MAI Act is focused on the severity of the applicant’s impairment, and does not invite comment on or reassessment of its permanence. And it is apparent that in stating that an applicant has attained MMI, an assessor is not only offering an opinion on an applicant’s present status, but also predicting their future status; such an opinion will inevitably have the limitations that accompany almost any form of prediction of future events.

62. At the hearing the applicant suggested that if the respondent had advised the applicant of the decision it was proposing to make under section 160, the 78 applicant could have withdrawn his application (presumably with the intention of lodging a new quality of life application once the knee replacement had been performed). That seems to me an ingenious solution to this problem, but there is no prompt in the MAI Act to encourage such a course of action by an insurer, and

75 Assessment Guidelines, cl 1.6 76 Assessment Guidelines, cl 1.15 77 Assessment Guidelines, cl 1.16 78 Transcript of proceedings, 26 June 2025, page 50 I cannot see that it is an error of law that the insurer in this matter failed to find it.

63. At the hearing the applicant suggested that Dr Reiter had not seen Dr Livingston’s reports raising the possibility of a knee replacement. The respondent was able to show that that was not the case. But although Dr Reiter acknowledged the 79 possibility of the operation, she nevertheless found the applicant to have reached MMI. There are no reasons offered to explain how that conclusion was reached, or was reconciled with the prospect of a knee replacement. The Assessment Guidelines call for an IME report to include an explanation of the 80 assessor’s conclusion on MMI. I am reminded, too, of the courts’ injunctions regarding the need for expert reports to include enough detailed explanation for other bodies (such as courts and tribunals) to understand how a conclusion was 81 reached. It is arguable that the absence of explanation in this instance might have encouraged an insurer to refer the matter back to the assessor for clarification, as envisaged by clause 1.51 of the Assessment Guidelines. But it is not perhaps unusual that the conclusion on MMI is unaccompanied by reasons, and I would expect most assessors to say that their reasons were to be gleaned from the whole of their report. No submission was put to me that Dr Reiter’s failure to provide reasons for her conclusion on MMI was an error of law that warranted setting the decision under review aside.

64. Mr Wilson (for the respondent) referred to the legislation in NSW equivalent to the ACT’s MAI Act, commenting that it recognised and allowed for a change in the condition of an applicant’s injury during the course of the assessment process. I note, indeed, that the NSW legislative scheme allows for further assessment where the injury deteriorates or additional relevant medical information becomes 82 available. In the ACT, there is no such provision.

79 I-7, page 38; in the same paragraph Dr Reiter noted that the applicant was looking at surgical options with regard to his spine, but again did not comment when asserting that he had reached MMI 80 Assessment Guidelines, clause 1.46 81 See Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 35; Dasreef Pty Ltd v Hawchar [2011] HCA 21; Lang v The Queen [2023] HCA 29 82 Motor Accident Injuries Act 2017 (NSW), section 7.24; Motor Accident Injuries Regulation 2017 (NSW), section 13

65. In drawing the conclusion that the respondent did not make a fatal error in finding the applicant’s WPI to be less than 5%, I have distinguished this matter from Hernandez. In that case I came to the opposite view, but the circumstances were different. There, the applicant had suffered a single injury; the IME was unable to assign a WPI, and refused to do so, despite the insurer’s urging; the PME obtained range of motion outcomes very different from those found by the IME, and assigned a WPI of 11%; the IME provided a notice affirming her original finding (namely, that she could not assign a WPI); finally, the insurer made a final offer WPI of 0%, aligning the IME’s refusal to determine a WPI with an outcome of 0%. There was a radical and substantial change in the applicant’s medical condition between the IME examination and that by the PME, to the point where in my view the IME’s assessment could no longer be regarded as a well-founded basis for the WPI offer (quite apart from her refusal to assign a WPI).

66. There are other ways in which Hernandez can be distinguished from the present matter. In Hernandez, once I had set aside the respondent’s decision I could turn to the PME’s report, which I found to be consistent with the Assessment Guidelines. That would not have been the case in the present matter. Dr Anderson’s report, for example, did not include a list of medical records or reports referred, and it is not clear how aware of the applicant’s prior medical history he might have been. I note, too that both Dr Reiter and Dr Gunapu gave reasons for their affirmation of their earlier WPI conclusions, unlike the IME in Hernandez.

The psychological assessments

67. The applicant’s case, in written submissions and at the hearing, was strongly focused on his knee injury and its decline over time, and few points about any psychological injury were pressed. The outline is plain enough: Dr Gunapu declared the applicant to have reached MMI, but considered that the symptoms he exhibited were essentially due to his pre-existing psychological condition, or to the second accident, and assigned a WPI of 0%. Dr Potter, the PME, considered that the applicant was not yet psychologically stable, and did not assign a WPI. Dr Gunapu issued a notice affirming his WPI outcome and dismissing Dr Potter’s suggestions for further treatment before completing an assessment as ill-founded. Dr Lim, conducting an assessment almost exactly a year after Dr Potter, and doing so because the latter was unavailable, found the applicant to have stabilised, and assigned a WPI of 20%, but without apportioning the injury over the two accidents. Drs Gunapu and Lim included in their reports a list of medical records provided; Dr Potter did not, although he did record some of the applicant’s traumatic incidents occurring before the two motor accidents.

68. As noted above, the Act allows a WPI assessment to be deferred if the IME concludes that the applicant’s injuries have not stabilised, but does not provide any guidance on how a difference of view between IME and PME on stabilisation is to be resolved. In the present instance, because Dr Gunapu’s notice of affirmation included some detailed comment taking issue with Dr Potter’s report, including the latter’s suggestions for further treatment before completing the assessment, I think it was reasonable for the insurer to regard that notice as an affirmation of the MMI judgment as well as of the assigned WPI, although that is not how section 159 of the Act is framed. But the issue is moot, as the parties agreed that if Dr Lim’s report were admitted into evidence the applicant would not press for the matter to be decided on the basis of that report, were the decision under review to be set aside.

69. I have found that for several reasons the decision under review is affected by errors of law: the respondent did not decide and give notice of the applicant’s WPI, as required by sections 160 and 161 of the MAI Act; and the respondent did not provide written reasons for the decision under section 20(4)(d). The decision is accordingly set aside.

Substitution or remittal?

70. Under section 197 of the MAI Act, where the Tribunal sets aside a decision under review, there are two choices: a decision in substitution or a remittal to the insurer for the decision to be reconsidered, with directions if the Tribunal so decides. In the present instance the parties agreed to press for remittal in the event the decision under review was set aside, and agreed on directions to accompany the remittal. In any event the limitations of the PME reports and the uncertainties about the stability of the applicant’s condition at the time of examination make remittal a preferable course of action.

71. The directions agreed by the parties in the event of remittal are as follows: 1. Insofar as the Applicant’s musculoskeletal and psychological injuries are concerned, the quality of life (‘QOL’) application is to recommence from the point just after which the Applicant submitted his QOL application under section 197 of the MAIA. 2. The Respondent is therefore to freshly refer the Applicant to an authorised IME provider in respect of the Applicant’s musculoskeletal and psychological injuries for a first WPI assessment in accordance with division 2.6.2 of the MAIA. 3. The Respondent is to include the previous WPI reports arranged by both parties in the fresh referral form. However, such previous WPI reports are simply to form part of the medical evidence available to the IMEs and are not otherwise to be regarded as WPI reports for the purposes of the recommencement of the QOL application and the associated fresh assessment process. 4. The IME be advised that the parties have a preference for review by an orthopaedic surgeon.

72. The MAI Act is silent about the choice that the Tribunal might make between substitution and remittal when setting aside an insurer’s decision, and equally silent on the scope of the directions the Tribunal might make to accompany a remittal. But the power to make directions is in broad terms, and there seems no reason why the Tribunal might not make any directions that are consistent with the purpose and scheme of the MAI Act. I have accepted the directions jointly agreed by the parties, with the following changes and additions: a) The reference to “section 197” of the MAI Act in the first paragraph is an error; the reference has been corrected to “section 137”; b) The reference to “Division 2.6.2” in the second paragraph has been corrected to “Division 2.6.3”; c) The reference to the “IME” in the fourth paragraph has been amended to “IME provider”; d) The IMEs (and PMEs if second reports are obtained) have been encouraged to give reasons for their conclusions on MMI and on apportionment. Apportionment is important in the present matter because of the potential impacts on both the applicant and the two insurers. A WPI for both accidents of, say, 8% would yield different outcomes if apportioned 50/50 and 25/75; encouraging the provision of reasons is intended to foster care in the decision-making process by the medical specialists. e) Editorial changes have been made to align the text with this decision.

73. In addition to the provisions considered above, the MAI Act also deals with the consequences of a motor accident that has caused an applicant significant occupational impact (SOI). Where four years and six months have passed since the accident, and the applicant has been assessed at less than 10% WPI, the 83 applicant may be assessed for SOI by a prescribed process similar in some 84 respects to the WPI process. If the applicant is found by the assessment to have sustained an SOI, the applicant’s WPI is taken to be 10% and the applicant may 85 make a common law claim. The determination whether an applicant has an SOI 86 is reviewable by the ACAT.

74. When, after the hearing, the parties forwarded to the Tribunal the draft orders agreed between them in the event I decided to set aside the decision under review (quoted above), they also advised that the applicant had lodged an application for SOI, and invited me to include an order pausing the SOI process under that application. I do not believe that it would be appropriate for me to proceed in that way, for several reasons: I have not seen the SOI application, which is not before me; the parties have not previously raised the application with me or any matter touching on the SOI provisions in the MAI Act; and, having considered those provisions, it is not clear to me that I have any power to pause it, especially in the absence of any detailed consideration of the issues it might raise. Further, I cannot see why, if the parties are agreed, they cannot see a way to manage the issue without the Tribunal’s assistance, for example by the applicant withdrawing (and subsequently resubmitting) the application. I have not included an order pausing the SOI application in my decision.

83 MAI Act, s 209 84 MAI Act, ss 210, 211, 212 85 MAI Act, s 213 86 MAI, Act, s 215 Order The Tribunal orders that:

1. The respondent’s decision of 3 September 2024 to determine the applicant’s quality of life benefits at $0 is set aside and the matter is remitted to the respondent with the directions that: (a) Insofar as the applicant’s musculoskeletal and psychological injuries are concerned, the quality of life application is to recommence from the point just after which the applicant submitted his quality of life application under section 137 of the Motor Accident Injuries Act 2019 (MAI Act). (b) The respondent is therefore to refer the applicant afresh to an authorised IME provider in respect of his musculoskeletal and psychological injuries for a first WPI assessment in accordance with division 2.6.3 of the MAI Act. (c) The respondent is to include the previous WPI reports arranged by both parties in the fresh referral form. Such previous WPI reports are to form part of the medical evidence available to the IMEs and are not otherwise to be regarded as WPI reports for the purposes of the recommencement of the quality of life application and the associated fresh assessment process. (d) The IME provider is to be asked to encourage those assessing the applicant to provide brief explanations for their decisions on MMI and apportionment. (e) The IME provider is to be advised that the parties have a preference for assessment of the applicant’s musculo-skeletal injuries by an orthopaedic surgeon.

……………………… Senior Member M Hyman Date(s) of hearing: 26 June 2025 Counsel for the Applicant: Mr A Jullienne Solicitors for the Applicant: Gabbedy Milson Lee Counsel for the Respondent: Mr B Wilson Solicitors for the Respondent: Sparke Helmore