DETERMINATION OF REVIEW PANEL	
	
CITATION:	Moji v QBE Insurance (Australia) Limited [2023] NSWPICMP 412

CLAIMANT:	Joseph Moji	
		
INSURER:	QBE Insurance (Australia) Ltd	
		
REVIEW Panel	 	
		
PRINCIPAL MEMBER:	John Harris	

DATE OF DECISION:	25 August 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant was a pedestrian who suffered injury on 24 September 2021; the dispute related to whether he sustained threshold injuries; prior history of chronic back pain and surgery; principle issue whether claimant had radiculopathy within meaning of clause 5.8 of the Motor Accident Guidelines; complaints of pain not radiculopathy; Panel required to re-examine to determine issue; claimant failed to attend two medical examinations; failed to explain his non-attendance and did not respond to direction from Panel; dismissal application exercised sparingly and with exceptional caution; Perera v Genworth Financial Mortgage Insurance Pty Ltd applied; Held – application for review of the medical assessment dismissed pursuant to section 54 of the Personal Injury Commission Act 2020.    

DETERMINATIONS MADE:  	The claimant’s application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act, 2020.

REASONS
BACKGROUND 
1.	Mr Joseph Moji (the claimant) alleged that he suffered injury in a motor accident on 24 September 2021. The claimant was walking across the road when the insured vehicle struck him, knocking him to the ground. 
2.	The insurer is liable to pay to Mr Moji any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident. 
3.	Prior to the motor accident Mr Moji had a history of back pain since 2002 following a fall from a third storey of a residual complex. The claimant then underwent a laminectomy and fusion of the lumbar spine. A CT scan of the lumbar spine dated 7 June 2018 showed the L2 to L4 laminectomy with posterior fusion by pedicular screws and rods. Minor bulging was noted in the lower discs with mild degenerative facet arthropathy at L5/S1.
4.	A medical certificate for Centrelink dated 7 June 2018 noted chronic back pain. Further certificates were to the same effect.
5.	The emergency hospital discharge note dated 11 June 2019 referred to worsening low back pain and sensation of numbness in the perineal regions over the past year. 
6.	The general practitioner (GP) noted chronic low back pain in 2019 and prescribed Endep. 
7.	On 23 February 2021 the GP noted a flare up of back pain and prescribed Panadeine forte. There was no leg weakness, no paraesthesia, and normal bladder function. Power and sensation in the legs was normal.
THE MEDICAL DISPUTE
8.	The issue in dispute is whether Mr Moji’s physical injury is classified as a threshold injury within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
9.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the MAI Act, on review by a review panel.

THE MEDICAL ASSESSMENT 
10.	The medical assessment matter was referred to Medical Assessor Home who issued a Medical Assessment Certificate dated 27 November 2022 (the medical assessment). 
11.	Medical Assessor Home concluded that Mr Moji suffered soft tissue injuries to the spine and other body parts including the right knee, shoulder, elbow and hip. The Medical Assessor found that the injuries to the right knee, elbow and hip had resolved and that the motor accident caused no injury to the left knee. He found that the injuries were minor (now threshold) injuries as defined in the MAI Act.
THE REVIEW
12.	An application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
13.	The President’s delegate then referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
14.	The Panel met and determined that the claimant was to be examined by Medical Assessor Moloney on 26 July 2023. Notices were sent to the parties advising of the examination date. Mr Moji failed to attend that appointment.
15.	The claimant was advised of a further examination on 9 August 2023. Mr Moji also failed to attend that examination. 
16.	The following direction was issued on 10 August 2023. 
“It is understood that the claimant has failed to attend a medical assessment as part of the Review process organised before Medical Assessor Moloney on 27 July 2023 and 9 August 2023.
In these circumstances, I am considering whether to dismiss the review of the medical assessment due to Mr Moji’s failure to attend the assessment and pursue the Review.
The parties are referred to s 54(a) and (c) of the Personal Injury Commission Act, 2020 (PIC Act) and rule 77(b)(ii) and (iii) of the Personal Injury Commission Rules, 2021 (PIC Rules). Specifically rule 77(b)(ii) and (iii) provides that s 54(c) of the PIC Act applies to motor accidents legislation when:
‘(ii) 	the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or 
(iii) 	the applicant has failed to prosecute the proceedings with due dispatch'”.
Section 54(a) of the PIC Act refers to the dismissal of proceedings where proceedings have been abandoned.
Rule 127(3) of the PIC Rules provides that the function of the Commission under s 54 of the PIC Act is given to the President. Table B of the Delegated functions provides that the function under Rule 127(3) is delegated to various persons including a Principal Member. 
The claimant can file any submissions on or before 24 August 2023 explaining his non-attendance, whether he will attend a further medical examination and/or why the review proceedings should not be dismissed.”
17.	The claimant did not respond to this direction. 
FINDINGS
18.	Section 54 of the Personal Injury Commission Act, 2020 (the PIC Act) applies to panel review proceedings and relevantly provides that that the proceedings may be dismissed if:
“(a) 	if it is satisfied that the proceedings have been abandoned, or
(b) 	if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) 	for any other ground of dismissal specified in the Commission rules.”
19.	Rule 77(b)(ii) and (iii) of the Personal Injury Commission Rules (the PIC Rules) provides that s 54(c) of the PIC Act applies to motor accidents legislation when:
“(ii) 	the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or 
(iii) 	the applicant has failed to prosecute the proceedings with due dispatch”.
20.	Rule 127(3) of the PIC Rules provides that the function of the Commission under s 54 of the PIC Act is given to the President. 
21.	Table B of the Delegated functions provides that the function under Rule 127(3) is delegated to various persons including a Principal Member. 
22.	The claimant’s submissions seeking leave to review the medical assessment included the ground that the Medical Assessor observed two signs of radiculopathy. It is unclear from the submissions what the observed signs were although the claimant highlighted “reduced sensibility in the anterior aspect of both thighs”, muscle spasm, restricted movement and reduced straight leg raising. On my reading of the Medical Assessment Certificate the Medical Assessor did not find two signs of radiculopathy. 
23.	In the submissions seeking leave to review, the claimant otherwise referred to the decision of David v Allianz Australia Insurance Ltd and noted that radiculopathy can be present at any time. He asserted that the histories contained in the medical reports of complaints of pain in the neck and back, radiating pain in the right arm down the shoulder and radiating pain down the legs demonstrated radiculopathy.
24.	Radiating pain is not a sign of radiculopathy as defined in cl 5.8 of the Motor Accident Guidelines (the Guidelines). Pain may be a non-verifiable sign if it occurs in the “distribution of a specific nerve root”. The various signs of radiculopathy as defined in cl 5.8 are clear and require precise findings such as sensory loss in a specific dermatome.
25.	It was unclear from the claimant’s submissions what were the recorded signs of radiculopathy. They are not clearly set out in his submissions other than general references to pain, which, as I have noted, is a not a sign of radiculopathy.
26.	A review is a new assessment of all matters with which the medical assessment is concerned. Given both the nature of the submissions and the dispute between the parties as to the claimant’s symptoms, it was necessary for the Panel to conduct a re-examination: Sydney Trains v Batshon. 
27.	The claimant otherwise bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act: Lynch v AAI Ltd.
28.	I am conscious that a “strike out” (dismissal) application is exercised sparingly and in circumstances where the applicant’s case is taken at its highest: General Steel Industries Inc v Commissioner for Railways (NSW). General Steel was applied in Perera v Genworth Financial Mortgage Insurance Pty Ltd when Leeming JA stated:
“But for present purposes, two matters are clear. One is that common to all the various formulations is the need for ‘exceptional caution’, as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success”.
29.	Those comments were in part directed to dismissal where the claim lacked substance. However, I accept that similar caution should be applied in dismissing an application for failing to prosecute.
30.	Mr Moji has failed, without any explanation, to attend two medical examinations organised as part of the review. He has failed to respond to the direction and explain his non-attendance and otherwise advise whether he will attend a further medical examination.
31.	Given the claimant’s submissions, the medical examination is a critical aspect of the determination of the review of the medical assessment as the Medical Assessor was required to look for any signs of radiculopathy.
32.	I am satisfied that Mr Moji has failed to comply with directions to attend the medical examinations and has accordingly failed to prosecute the review proceedings. Mr Moji has not responded to the direction and advised that he will attend a further appointment. 
33.	I am satisfied that the application for review of the medical assessment cannot proceed given the claimant’s failure to attend a medical examination. The application to review the medical assessment is dismissed due to Mr Moji’s failure to comply with directions to attend medical examinations and his failure to prosecute the review.