RYAN v INSURANCE AUSTRALIA LTD T/AS NRMA INSURANCE [2025] ACAT 33 | Case summary

RYAN v INSURANCE AUSTRALIA LTD T/AS NRMA INSURANCE [2025] ACAT 33 | Case summary | Zoe

[28]

By application dated 24 February 2024, Mx Ryan applied for the matter to be determined on the papers instead of in person at the Tribunal. The reasons given by Mx Ryan included inability to concentrate for long periods of time, inability to think on the spot, memory problems and traumatic brain injury, scared of dealing with the insurer, unreasonable demands made by the insurer, combative nature of insurer, and fear of developing secondary trauma associated with the insurer's proceedings and processes.
In submissions dated 14 March 2025, the insurer responded that it opposed the application for a hearing on the papers. The insurer referred to rule 65 of the ACT Civil and Administrative Tribunal Procedural Rules 2024 to the effect that a hearing on the papers should be in the public interest and the tribunal has sufficient information to make an informed decision on the application. The insurer argued that a hearing would allow the tribunal to ask questions of the parties about their written submissions and give the parties a fair opportunity to respond to issues that may arise from the submissions or during the hearing. The insurer referred to the applicant's previous argument that their health conditions prejudice their ability to participate in an oral hearing. The insurer also rejects the applicant's submissions that the insurer did not attempt to address the applicants concerns and accommodate their needs in relation to the medical assessments.
On 8 April 2025, the Tribunal considered all the written submissions made by the parties. The Tribunal has taken into account rule 65 and decided that it was in the public interest and that it had sufficient documentary evidence, medical reports and written submissions to determine the matter before it on the papers. In reaching this view the Tribunal was also mindful of the procedural difficulties, delay, costs and complexity in having an oral hearing given Mx Ryan's reported difficulties in concentrating and answering questions.[2]
On 8 April 2025, the Tribunal decided to grant Mx Ryan's application determine the matter on the papers and directed that the parties file electronic copies of their most recent submissions.

[29]

Between February 2022 and October 2022, Mx Ryan attended over 14 doctors, psychiatrist, psychologists and allied health professionals to receive treatment and opinions about her medical conditions.[3]
On 3 March 2023, the insurer sent Mx Ryan a letter requiring them to attend a scheduled appointment with a clinical psychologist, Dr Fernando Roldan, for an assessment of Mx Ryan's needs for treatment and care. The decision to require Mx Ryan to attend that appointment was made under section 121(1) of the MAI Act and was affirmed on internal review on 24 March 2023.
On 26 May 2023, the insurer required Mx Ryan to undergo an assessment of their physical injuries by Dr Seamus Dalton, orthopaedic surgeon, pursuant to section 121(1) of the MAI Act. That decision was affirmed on internal review on 15 June 2023.
Mx Ryan did not attend the scheduled appointments with Dr Roldan or Dr Dalton.
In May, June and July 2023, Mx Ryan sent a number of emails to the insurer about the appointments questioning the need to attend those appointments and saying they were medically unable to attend them.
On 8 August 2023, the insurer decided to suspend Mx Ryan's defined benefits under sub-section 121(3) of the MAI Act because Mx Ryan had not complied with the insurer's request to attend the examinations arranged by the insurer. That decision was affirmed on internal review on 24 August 2023.
Mx Ryan applied for review of the three internal review decisions on 16 November 2023 and, as the applications for review were out of time, also applied for an extension of time to make those applications.
The matter came before the Tribunal for an interim hearing of Mx Ryan's extension of time applications on 9 February 2024.
On 31 July 2024 the Tribunal found it did have power to extend time to apply for review of the Suspension Decision.[4]
On 21 August 2024, the Tribunal dismissed Mx Ryan's applications for an extension of time to apply for review of the first two internal review decisions. It also decided that the Tribunal has power to extend time in respect of Mx Ryan's application to review the Suspension Decision and jurisdiction to review that decision if an extension of time is granted.[5]

[44]

On 3 March 2023, the insurer informed Mx Ryan that it had arranged for Mx Ryan to be assessed by Dr Roldan on 9 June 2023.
On 10 March 2023, Mx Ryan requested internal review of the decision for Mx Ryan to be assessed by Dr Roldan. Mx Ryan submitted that the treatment providers had provided sufficient medical evidence, and that an independent medical examination was unnecessary.
On 20 March 2023, the insurer affirmed its decision requiring Mx Ryan to attend the assessment by Dr Roldan on the basis that that requirement was reasonable.
On 4 May 2023, the insurer informed Mx Ryan that it had arranged for Mx Ryan to be assessed by Dr Dalton on 26 May 2023.
On 5 May 2023, Mx Ryan and insurer corresponded in relation to approval of treatment and care benefits following recommendations made by the Mx Ryan's general practitioner, Dr Dana Phang, in relation to support worker services. The insurer wrote to Mx Ryan that the assessments with Drs Roldan and Dalton "are to be conducted to assist us further in managing your entitlements, determining your injuries as a result of the accident and guide us with regards to your ongoing treatment, care and recovery requirements".
On 17 May 2023, Mx Ryan wrote to the insurer and requested an explanation as to why the assessment with Dr Dalton was justified. The insurer replied on 19 May 2023, saying that the assessment was required "in line with sections 121 and 131 of MAI 2019 and Section 3 of the Treatment and Care Guidelines". The insurer provided an extract of the Treatment and Care Guidelines to Mx Ryan.
On 19 May 2023, Mx Ryan wrote to the insurer that, "I regretfully advise that I am unable to attend at the appointment on 26 May due to a prior conflicting appointment". The insurer replied that it would attempt to reschedule the appointment to 16 June 2023 and asked Mx Ryan for the details of the conflicting appointment. Mx Ryan did not respond to that request.
On 20 May 2023, Mx Ryan emailed the insurer enclosing reports of Dr Phang (general practitioner) and Dr Flynn (psychiatrist), each dated 19 May 2023. Mx Ryan wrote that each report suggested that the medical assessment was "unnecessary".
The insurer replied to Mx Ryan on 22 May 2023 and wrote:

[65]

Mx Ryan did not reply to the insurer's suggestion about having additional support(s) to attend the assessment by Dr Roldan.
On 13 July 2023, Mx Ryan wrote to the insurer enclosing a letter of Dr Phang dated 11 July 2023 which stated that they were "medically unable to attend an IME appointment".
On 13 July 2023, the insurer replied that the decision requiring Mx Ryan to attend the assessment by Dr Roldan had been affirmed by internal review, and that, should Mx Ryan still disagree with the insurer's internal review decision, Mx Ryan "can further lodge a dispute with ACAT".
On 20 July and 27 July 2023, the insurer wrote to Mx Ryan and asked Mx Ryan to confirm their intention regarding attendance at the assessment by Dr Roldan. on 3 August 2023. Mx Ryan did not respond to those e-mails.
On 4 August 2023, Mx Ryan failed to attend the assessment by Dr Roldan.
On 8 August 2023, the insurer made a decision suspending the applicant's defined benefits. In that decision, the insurer reasoned that Mx Ryan had not complied with the obligation to attend a medical assessment, and that the failure was without reasonable excuse. The insurer referred to the applicant's failures to attend the assessments by Dr Roldan and Dr Dalton.
On 10 August 2023, Mx Ryan replied, "I am not able to attend the IME appointment as you have been informed. I request a review of decision."
On 11 August 2023, the insurer wrote to Mx Ryan and acknowledged the request for internal review. The insurer invited Mx Ryan to provide any further documents or information that Mx Ryan wished to be considered in the review of the decision.
On 18 August 2023, Mx Ryan wrote to the insurer and enclosed reports of Dr Phang, Dr Flynn, Dr Praet and Dr Gawarikar. Mx Ryan asserted that the reports "recommend against the medico-legal assessments". The reports provided by Mx Ryan noted that Mx Ryan was anxious about the medical examinations and would find it difficult to concentrate or be fully present or participate in the medical assessment interviews.[12]
On 18 August 2023, Mx Ryan wrote to the insurer and said, "a big reason why I am so terrified of the IME appointments is that NRMA have shown they do not care about my recovery and will do anything to minimise cost even if it hinders my recovery substantially".
On 24 August 2023, the insurer made the internal review decision affirming the decision to suspend the applicant's entitlements. A summary of the insurer's reasons follows:

[74]

Mx Ryan submits that the insurer has not fully considered or taken into account all the information in their case. The submissions note that they have been declared a vulnerable person by the Motor Accident Insurance Commissioner.
The decision to terminate all support payments was not the correct or preferable decision.
Mx Ryan has continually provided updates about their medical condition to the insurer.
Mx Ryan submitted that insurer knew about their psychological distress caused by its process and took no steps to communicate cooperatively you seem.
The decision dated 23 August 2023 by the insurer did not properly consider whether Ms Ryan had a reasonable excuse.
Mx Ryan submitted that insurer refused to break the IME appointments into small time slots and also refused having a support person attend with Mx Ryan those appointments.
Mx Ryan writes that they are eager to please but has a fear of authority.
Mx Ryan alleges that whilst attending a Sydney neuropsychologist he made homophobic insinuations or comments to their support person.
Mx Ryan submitted that the instructing letter to the Sydney neuropsychologist was selective and inaccurate. They were concerned that in any future medical assessment the pain they suffered would be repeated and would prevent their recovery.
Mx Ryan states that they have extreme terror on the insurer and their unfair processes. The insurance IME is not truly independent. They are filled with terror, anguish and depression at the thought of being undermined by non-independent medical professionals.
Mx Ryan writes that they are scared of the insurer and if the ACAT proceedings take place in person they are not sure whether they will be able to attend or just give up and withdraw the proceedings. The proceedings have provoked an unmitigated fight/flight/freeze/fawn trauma response in them.
Mx Ryan wrote that refusing to go to the IME appointments was a flight/freeze response. They physically could not go. The more the insurer tried to threaten and convince them to go the worst they got. The insurer retaliated with what they felt to be punitive and vindictive decisions which just kept escalating the tension between Mx Ryan and the insurer.
Writing these submissions is re traumatising for Mx Ryan.
Examples of the insurer's processes that took place which were unfair and led to Mx Ryan having a sense of terror included the insurer losing a document which caused Mx Ryan pain like their brain was pushing or bleeding out of their ears. Mx Ryan writes that this is relevant to their reasonable excuse because it shows their mental state during communication with the insurer where they had very little control over their emotional regulation and was completely terrified. They refer to a medical report from Dr Stephan Rudzki which refers to their "poor short memory, poor problem solving and poor emotional regulation."[13]
Dr Stephan Rudzki is a treating specialist sports and exercise physician. In his medical report he writes that:

[76]

Mx Ryan wrote that an external case manager appointed by the insurer told Mx Ryan that the insurer believed that Mx Ryan was faking or exaggerating the brain injury because they had their workers compensation claim settled a few days before the subject MVA.
Mx Ryan requested from the insurer a copy of the collision specialist report. The conclusions of this report furthered the belief of Mx Ryan that the insurer had an unconscious bias towards Mx Ryan disbelieving them and refusing various treatments. Mx Ryan's car was a write off and this information together with her statement about the MVA was not provided to the collision expert.
Mx Ryan submitted that the questionable methods of omission and inclusion used by the insurer had been used when instructing the Sydney neuropsychologist and the collision expert and that these methods previously used by the insurer would be used again when instructing the IME's. Mx Ryan wrote that they had some apprehension about how accurate or useful the report from Dr Dalton would be and that they had not read the report because they were too scared that it would dismiss or undermine their symptoms.
Mx Ryan described in considerable detail her interactions and difficulties with the insurer when trying to organise or seek approval for support workers in her home and how this led to more distrust of the insurer.
Another reason Mx Ryan submitted for their fear and mistrust of the insurer was the insurance failure to repay out of pocket expenses within the legislated timeframes sometimes resulting in a delay of months for unpaid reimbursements.
Another reason Mx Ryan gave for them being too terrified to attend the IME appointments what's the context in which the appointments come about. Mx Ryan gave a detailed explanation of her interactions with her occupational therapist. The OT report was dated 15 March 2023 and listed a number of recommendations that support be provided to Mx Ryan. The insurer do not reply to these requests which meant that Mx Ryan was stressed and emotionally reactive not knowing whether their support would continue and weather they would be unable to make plans.
Mx Ryan submits that it was in the context of all of the above reasons they did not trust the insurer and felt coerced and that the insurer was a barrier to their recovery.
Mx Ryan submits that the insurer was acting under unconscious bias and was thinking that Mx Ryan were falsifying their symptoms and did not believe Mx Ryan's OT and medical team about the true nature of how they were struggling. Mx Ryan did not trust the system and did not believe in the impartiality of the IME's who would just write a report undermining Mx Ryan because the insurer was paying for them. Mx Ryan questions the motivations for the IME's being appointed and strongly continues to believe that those motivations were not in good faith.

[81]

The insurer also referred to McKinnon v Commonwealth [1998] FCA 1456, Re Kermode and Military Rehabilitation and Compensation Commission [2009] AAT 904, Re WCNC and Comcare (Compensation) [2019] AATA 2777 at [64]- [65]. The insurer submitted that the later two cited cases found that the likelihood of an applicant experiencing psychological consequences did not produce a sufficient risk of harm to justify failure to attend an assessment.
The insurer submitted that the question as to whether the insurer's decision was the "correct and preferable" decision is not a matter properly before this Tribunal. The insurer pointed to the NSW Motor Accident Injuries Act 2017 which uses that phrase in relation to categories of merit review decisions. The insurance notes that the phrase 'correct and preferable' (or 'correct or preferable') is used by the legislature in other tribunals such as in NSW to express the objective of a review of the merits of a reviewable decision. The insurer argues that in the case of the MAI Act there is no corresponding language in the MAI Act to ascribe that objective of the present review in this case. Nor is there anything in the text, context or purpose of the MAI Act to suggest that the Tribunal conducts merits review for decisions made under Part 2.5 of the MAI Act. The insurer contends that the relevant question in this review is not whether the decision was the "correct and/or preferable" decision. The insurer argues that in this present case the Tribunal is empowered to consider only whether the decision was legally or factually open to the insurer or this Tribunal.
The Tribunal notes that under Prat 7 of the NSW Motor Accident Injuries Act 2017 there are three categories of reviewable decisions which are merit reviews, medical assessments and claims assessments (which include the assessment of damages). Only in the category of merit review decisions are decision makers at the Personal Injury Commission to make the "correct and preferable decision".
The insurer submits that it made no material error of fact or law in reaching its findings that the applicant did not have a reasonable excuse. First, the insurer was not obliged to find that the applicant's fear of attending the medical assessments did not amount to a reasonable excuse. Second, the applicant's medical evidence, supporting her argument that they could not attend the medical assessments, did not mean that the insurer had to conclude that there was a relevant or sufficient risk of harm to the applicant in attending the medical assessments. Third, it was open to the insurer to find that the risk of harm to the applicant was outweighed by the prejudice to the insurer if it was unable to obtain the medical assessment opinions of Dr Dalton and Dr Roldan.[16]
The insurer also refers to the applicants stated fear of the medical assessments which arose from the mistrust of the insurer's motivations. The insurer submits the applicants fear cannot amount to a reasonable excuse for failing to attend a medical assessment. Mx Ryan's fear or mistrust is a subjective psychological response and cannot amount to a reasonable excuse which must be measured objectively.
Regarding the insurers third argument, about it suffering prejudice, the insurer argues that it would suffer substantial prejudice in trying to manage the applicant's defined benefits payments in the absence of independent medical assessment of the applicant's care needs. The insurer refers to the report of Dr Dalton that the applicants functioning appears to have declined despite significant medical intervention and support. As Dr Dalton noted, the overall harm in not undertaking a medical assessment means a lack of clarity in diagnosing the applicant's condition and the most effective treatment plan in the applicant's case. Possible harm to the applicant's medical condition, cause by refusal to have medical assessments, outweighs any possible short-term harm potentially suffered by the applicant in attending the medical assessment.[17]
Finally the insurer submits that a review of all the material before the Tribunal in this case demonstrates that the internal review decision was "open and tenable". This Tribunal is unable to consider that a different, correct or preferable decision could or should be made.[18] The insurer made no material error of law. The insurer's internal review decision is not vitiated by any material error of law. The decision was within the internal review decision-maker's power to make, and the decision-maker appropriately directed itself to the relevant question of whether the applicant had a reasonable excuse for failure to attend the assessments. The applicant was given an opportunity to provide submissions and evidence in relation to the internal review decision. There was no failure by the insurer to afford procedural fairness or an opportunity to respond by the applicant. The applicant did not have a 'reasonable excuse' for failing to attend the assessments by Dr Dalton and Dr Roldan. Reaching a contrary conclusion would require this Tribunal to impermissibly engage in merits review. That is not a task with which the legislature has entrusted this Tribunal under the MAIA scheme.[19]

[88]

In Pascoe v Australian Postal Corporation [2004] FCAFC 4; (2004) 77 ALD 464, the Full Court reaffirmed what the Full Court had said in an earlier decision (Australian Postal Corporation v Forgie [2003] FCAFC 223; (2003) 130 FCR 279); ie, that the Act "requires that the person at least consider the circumstances surrounding the employee's failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances".[22]
In NRJT, the reasons the applicant gave for being unable to attend the medical examination with a psychiatrist was due to a psychiatric illness and the effects of sedation from medication. The applicant emailed a copy of a report from a Consultant Psychiatrist to the insurer's solicitors which stated that was unable to attend the scheduled appointment because of his symptoms burden (mistrust, anxiety, negative thinking as a result of his as yet untreated psychiatric illness); sedation from his hypnotic medication taken as prescribed causing him to oversleep and sedation from his medication affecting his capacity to drive.[23]
The Deputy President in NRJT decided that the applicants excuse for not attending was not reasonable despite his concerns about the medical assessment process causing him stress and anxiety. The Deputy President summarised his reasoning as follows:
1. The Tribunal notes that the Applicant did eventually attend a medical assessment with a psychiatrist in early 2015. The question this Tribunal must address is whether his refusal to attend an appointment on three previous dates was, in the circumstances, reasonable.
2. From the evidence before the Tribunal it is evident that the Applicant's primary reasons for not attending the scheduled psychiatric appointments on three separate occasions relate to cost and the stress associated with attending.
3. Given the medical issue central to the Applicant's claim against his former employer, it was not unreasonable for Offshore Solutions to seek to have the Applicant examined by a psychiatric specialist.
4. The Tribunal notes that in his email of 8 July 2014 at 5:53pm, the Applicant advised that he was "not well at the moment", and that these appointments caused him stress.
5. Further, in his email of 9 July 2014 at 11:29am, the Applicant writes that if he "is to attend at the offices of a company paid doctor's offices, he would make sure his doctor is there as well, and a witness, as he felt that he cannot trust them."
6. As noted in Re Twaddell and Comcare [2001] AATA 759; (2001) 65 ALD 794 "the context of a medico-legal examination organised by the opposing party is almost always going to be an uncomfortable and potentially unpleasant experience for an applicant."
7. This does not mean, however, that non-attendance is reasonable. There is no evidence to suggest that, had the Applicant requested that a friend or doctor attend with him at the offices of Dr Terace on 15 July 2014, Offshore Solutions would have refused such a request.
8. The evidence reveals a remarkable degree of flexibility on the part of Offshore Solutions and a considerable degree of obstruction and anger on the part of the Applicant. There is no evidence before the Tribunal to suggest that the Applicant's fear of or distrust of Dr Terace was well founded. In the circumstances, his refusal to attend at his offices were unreasonable.
9. In relation to the medical examinations scheduled for 5 August 2014 and 15 December 2014, the Applicant again raises anxiety and stress as factors preventing him from attending.
10. For the same reasons outlined above in relation to the medical examination scheduled for 15 July 2014, the Tribunal does not accept, on the evidence and circumstances of this case, that this is a reasonable excuse for non-attendance."[24]
In DVFW,[25] the Administrative Review Tribunal (ART) rejected the applicant's claim that she had a reasonable excuse not to undergo a medical examination in the absence of her support person and a refusal to allow her to record the assessment examination. In this case, the applicant refused to attend medical appointments made by the insurer stating that she had medical advice from her doctors that it would be unwise for her mental health to attend those further medical appointments.[26] In this case, the applicant's treating psychiatrist wrote that he had a phone call from the applicant where she sounded quite distressed and expressed her apprehension of being traumatised further if asked to attend any further IME assessments. Her psychiatrist concluded that there was a potential chance of further escalating the applicant's psychological distress, so he requested avoiding any further IME assessments at that stage.
In DVFW, the ART found the applicant did not want to participate in another examination by a psychiatrist and she anticipated it would be an unpleasant experience. The ART was not persuaded by the applicant's submission that participating in a further examination would cause or risked causing her further injury. In support of her argument that she not attend a re-examination, the applicant relied primarily on the letter from her psychiatrist. The ART was not prepared to give that letter significant weight. Her psychiatrist requested consideration be given to avoid any further IME assessments, "given the potential chance of further escalating [the applicant's] psychological distress."[27]
In DVFW, Senior Member McCarthy wrote:

[91]

The central issue before this Tribunal is the assessment of the reasonableness of Mx Ryan's excuse for failing to attend the medical assessments arranged by the insurer.
The insurer acknowledged that the attendance by Mx Ryan at the IME medical assessments would be difficult for Mx Ryan. It tried to mitigate some of the negative effects of the process identified by Mx Ryan by suggesting a number of shorter appointments and also agreeing to the assistance of a support person.
The Tribunal has carefully reviewed and considered all the evidence and submissions presented by both parties. The Tribunal finds that Mx Ryan's excuse for not attending the medical assessments with Dr Dalton and Dr Roldan was not reasonable despite their concerns.
Mx Ryan refers to a number of medical reports and has presented a number of submissions to the effect that the insurer's processes and motives are not to be trusted and that further medical assessments may worsen their medical condition.
Mx Ryan's concerns included a distrust of the insurer's assessment processes and motivation; a distrust of the independence of the IME's and a concern that the medical assessment process would causing them stress and anxiety or possibly worsen their medical and psychiatric conditions. Mx Ryan's reasons for not attending the medical assessments also include their distrust of the insurer's motivations or processes and their distrust of the Dr Dalton and Dr Roldan's independence or objectively.
In the Tribunals' view, the totality of the medical evidence presented by the parties is insufficient to show that further medical assessments are likely to cause harm to the medical condition of Mx Ryan. Nor does the Tribunal accept that there is evidence to support Mx Ryans' concerns distrusting the insurer's processes and the independence of the IME's.
There are some medical reports from Mx Ryan's treating providers that further medical appointments could affect her condition. As noted in Re Twaddell and Comcare, "the context of a medico-legal examination organised by the opposing party is almost always going to be an uncomfortable and potentially unpleasant experience for an applicant."[29] As was expressed in McKinnon v Commonwealth,[30] an applicant could not succeed in resisting an examination merely because he believed in good faith that the examination might be detrimental to him. A different view would follow if the examination was one which involved a real risk of injury to health and was seen as such by the plaintiff. The more severe the risk the greater it would overweigh the interests of the defendant. The less severe, the more difficult the balancing process.
No doubt the medical assessments for Mx Ryan would have been unpleasant and stressful for them. There is little reliable medical evidence that shows that further medical assessments are likely to cause harm to the medical condition of Mx Ryan. There is some evidence that Mx Ryan's conditions have improved since late 2023 and they do not feel fearful and are less pressured.[31] When Mx Ryans' submissions and evidence of possible harm is weighed against all the medical evidence and viewed in the context of the cases referred to above, Mx Ryan's reasons for not attending the medical assessments do not amount to a reasonable excuse.
In Mx Ryan's case, having reviewed all the available medical and other evidence, the Tribunal is not persuaded by the submissions from Mx Ryan's that participating in a further examination would cause or risk causing them further injury. Nor is it persuaded by Mx Ryan's contention that their other conditions including post-concussion syndrome, poor concentration and memory and other symptoms would make it difficult to properly engage in the medical assessment process. In this case, the balancing process favours the medical assessments proceeding. Any possible slight risk to Mx Ryan's medical condition or their limitations of concentration or memory can be ameliorated with appropriate safeguards such as support persons and shorter appointments. The reasons proffered by Mx Ryan do not amount to a reasonable excuse.

RYAN v INSURANCE AUSTRALIA LTD T/AS NRMA INSURANCE

At a glance

Court

Decision date

Source

Judgment (111 paragraphs)

RYAN v INSURANCE AUSTRALIA LTD T/AS NRMA INSURANCE (Motor Accident Injuries) [2025] ACAT 33 (13 May 2025)

Parties

Legislation Cited (7)

Cases Cited (2)