The medico-legal headache: 3 months and you’re out

16 June 2021

The effect of a recent Queensland Supreme Court decision that considered timing and delays in obtaining medico-legal evidence is resulting in personal injury claims being subjected to arbitrary conditions on the timing of medico-legal examinations. Among the most popular is a condition being imposed that examinations must be scheduled within 3 months of the medical panel nomination by the plaintiff.

The background

In Bona, the plaintiff sustained personal injuries in a motor vehicle accident on 24 November 2018. The matter progressed without resolution through the pre-court litigation procedures under the Motor Accident Insurance Act 1994 (MAIA).

A number of medico-legal reports were obtained during the pre-litigation phase. After the matter was litigated in April 2020, an occupational therapist’s report was served by the plaintiff in August 2020. The defendant was invited to submit its own panel of occupational therapists at that time, and whilst a nomination was made, the plaintiff’s attendance was conditional on the appointment occurring within 3 months. The parties exchanged correspondence on this issue for a number of weeks as the defendant’s specialists did not have availability during the nominated 3 month period. Ultimately, no alternative specialists were nominated.

On 21 December 2020, a request for trial date was served by the plaintiff and the plaintiff’s solicitor advised that they would not agree to an occupational therapist review due to the ‘unreasonable delay’ that had occurred. The defendant did not sign the request for trial date due to (among other things) the outstanding issue pertaining to the occupational therapist report which was the subject of further ongoing correspondence between the parties. On 5 March 2021, the plaintiff filed an application to dispense with the defendant’s signature on the request for trial date. In turn, the defendant brought an application to compel the plaintiff to undergo the examination with an occupational therapist pursuant to sections 46A and 50 of the MAIA.

It was the plaintiff’s contention that the defendant had unreasonably delayed the progression of the matter by failing to propose a medico-legal panel and schedule an examination within a timely period. The defendant’s submission was that there was no prejudice in having the plaintiff undergo the examination because trial dates would not likely be allocated until the end of 2021. Submissions were also made about the lack of available specialists in that area.

The decision

Byrne J found in favour of the plaintiff, dispensing with the defendant’s signature on the request for trial date, and dismissing the defendant’s application to have the plaintiff undergo medico-legal examination with an occupational therapist. The defendant was ordered to pay the plaintiff’s costs of both applications.

In the decision, criticisms were levelled at the defendant’s delay in scheduling a medico-legal examination. Byrne J observed that “although…. occupational therapists within the defendant’s preferred stable of experts are limited in number… there are many outside that stable who were able to assess the plaintiff within a relatively short period of time…”. Byrne J also went on to make a number of observations about the intention of the MAIA to deal with claims expeditiously and the analogous objectives under the UCPR.

It was otherwise noted by Byrne J on the issue of prejudice that the experts who had already provided reports to the defendant were qualified to “speak to” the plaintiff’s functional capacities.

The practical effect

The decision considered the Motor Accident Insurance Act 1994. However, it is being touted in other personal injury claims governed by both the Personal Injuries Proceedings Act 2002 and the Workers’ Compensation and Rehabilitation Act 2003 with analogous procedural obligations. Observations about the objectives under the UCPR are of course relevant to all litigated claims in Queensland.

A number of active claims have already been subjected to standardised responses relying on this authority and requesting medico-legal panels with appointment availability complying with the ‘3 month rule’. Of course, the true effect of the decision in setting a specific timeframe on what is ‘reasonable’ is subject to argument. Guidance on this point can be found in the judgment, with Byrne J observing that:

“…the plaintiff’s solicitors specified three months as a reasonable period of time but the defendants failed to submit a panel of occupational therapists who all had availability… within that period. No criticism of the plaintiff’s specification was made…nor could it have been given the unchallenged evidence… but whether such a period in another case may rightly be regarded as reasonable will depend on many of the factors I touched on in Behrens v Nguyen & Ors as well of course on the availability of the particular specialists who are needed to conduct the review…”.

In practice, the scheduling of medico-legal examinations has become particularly difficult due to limited appointment availability of specialists in many fields, in large part due to effects stemming from COVID19 restrictions. This has resulted in a fairly rapid shift in the approach to preferred medical panels and exploration of alternative panel options.

Implications for you

Parties need to be particularly mindful of the timeframes for both proposing medico-legal appointments, and scheduling appointments once a nomination has been made. Whilst arguments can certainly be made about the proper construction and application of the decision in Bona, it is important to take heed of the observations made about the timely and efficient progression of matters. On a practical level, flexibility will be required in situations where a preferred panel cannot deliver within a reasonable timeframe and opportunities will arise for new medico-legal experts to be tested.

Bona v Jeffries & Anor [2021] QSC 84

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