CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Zaringhabaei v Insurance Australia Ltd t/as NRMA [2024] NSWPIC 458	
		
Claimant:	Saeed Jafari Zaringhabaei	
		
insurer:	Insurance Australia Ltd t/as NRMA	
		
PRINCIPAL Member:	John Harris	
		
DATE OF DECISION:	20 August 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); entitlement to damages; assessment by Medical Assessor (MA) of greater than 10% impairment and finding of non-threshold injury; review application filed by insurer; assessment initially referred back to MA as incomplete pursuant to rule 112 of the Personal Injury Commission Rules 2021; no notification to insurer that Commission was considering that course; insurer filed submissions seeking to be heard on matter being referred back to MA; insurer’s submission that incomplete certificates referred back limited to matters of form only rejected; rule 112 of general ambit and applies to certificates that do not comply with section 7.23 of the MAI Act; rule 112 not limited by Procedural Direction PIC6 and applies to certificates that have not assessed a body part; Held – matter considered afresh; MA failed to address a properly articulated argument which raised credibility issues; practical difficulties in MA providing further reasons; previous decision revoked.

REASONS
1.	Saeed Zaringhabaei (the claimant) was involved in a motor accident on 22 April 2019. Insurance Australia Ltd t/as NRMA (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
2.	On 9 April 2024 Medical Assessor Baker issued a medical assessment certificate when he concluded that the claimant suffered an exacerbation of a major depressive disorder resulting in permanent impairment greater than 10% and that the psychological injury caused by the motor accident was not a threshold injury. 
3.	The insurer filed an application to review the medical assessment. In detailed submissions the insurer referred to a report of Dr Stewart dated 24 March 2022 and the various inconsistencies raised in that medical opinion with the conclusions expressed by the Medical Assessor. 
4.	The claimant filed submission in reply when it submitted that the matter should be referred back to the Medical Assessor pursuant to rule 112 of the Personal Injury Commission Rules because of the failure to refer to and address the credibility issues raised in the report of 
Dr Stewart.
5.	On 26 July 2024 I determined that the matter would be referred back to the Medical Assessor as an incomplete certificate.

6.	On 26 July 2024 the insurer filed an application which relevantly provided:
“The insurer has not requested this outcome. The insurer was not put on notice that the Personal Injury Commission was considering referring back the Certificate of Assessor Baker and as a result has not had the opportunity to provide submissions addressing the course of action proposed by Member [sic] Harris.” 
7.	The statement by the insurer that it was “not put on notice” that the matter may be referred back is incorrect because the claimant submitted this in his reply to the insurer’s application to review. 
8.	However, I accept that the insurer was entitled to provide a response to the claimant’s submission that the medical assessment be referred back. My previous decision should not have been made in the absence of providing the insurer with a right to be heard.
9.	I accept that the insurer was denied procedural fairness by the failure to provide it with an opportunity to respond to the claimant’s argument. In accordance with the principles discussed in Minister for Immigration and Multicultural Affairs v Bhardwaj, my decision is infected with jurisdictional error, and it is considered afresh.
STATUTORY CONSTRUCTION
10.	The insurer submitted that the assessment could not have been referred back to the Medical Assessor asserting that the scope of Rule 112 was limited to “form only” and the alleged errors were an error in the assessment of the dispute which went beyond the power provided by the rule.
11.	Rule 112 of the Personal Injury Commission Rules 2021 provides that the Commission may refer a matter back to a medical assessor or a panel if it is an “incomplete certificate”. An incomplete certificate is relevantly defined as a certificate that fails to comply with s 7.23 of the MAI Act. 
12.	Section 7.23(1) and (7) of the MAI Act provides:
“(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.
…
(7) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.”
13.	Clause 71 of Procedural Direction PIC 6 provides examples of what is an incomplete certificate, However, the Procedural Direction does not restrict the general discretion provided by Rule 112. Relevantly cl 71 of the PIC 6 provides:
“71.   Examples of incomplete certificates include, but are not limited to, where:
(a)    disputes and/or injuries are not referred to;
(b)    submitted documentation is not referred to;
(c)    a certificate is unsigned, or
(d)    a certificate or parts of the certificate are omitted.”
14.	The insurer submitted, focusing on the meaning of “referred” in cl 71, and the dictionary meaning of “refer”, that cl 71 somehow limited the operation of Rule 112 and the circumstances of this case fell outside of matters that could be referred back to a Medical Assessor. 
15.	There is no reason why a failure by the Medical Assessor to consider a medical report falls outside the scope of Rule 112. 
16.	I note that cl 68 of PIC 6 provides that a certificate is incomplete if it does not comply with s 7.23(7) of the MAI Act. However, rule 112 provides that the certificate is incomplete if it does not comply with s 7.23 and the operation of the rule is not limited to sub-section (7). 
17.	Section 7.23(1) provides that the certificate relates to the matters referred for assessment. Clearly, a certificate that does not assess a body part which has been referred is clearly incomplete as it does not comply with s 7.23(1). 
18.	I do not accept the insurer’s submissions that the Medical Assessor is only able to correct the face of the certificate rather than the assessment. That submission is inconsistent with the notion that a certificate is incomplete where there is a failure to refer to a body part. Otherwise, no authority was cited by the insurer in support of this submission.
19.	Clause 71 of the Procedural direction cannot limit the scope and operation of rule 112. The insurer’s submission of the meaning of “referred” is taken out of context with the statutory provision. The insurer’s submission seeks a definition of one word of a clause that cannot restrict the broad ambit of the rule. 
20.	There is no reason why rule 112 should be restricted to those categories of cases described by the insurer as “form only”. The words of the Rule must be construed in accordance with their proper meaning in the context of provision that requires the Medical Assessor to comply with s 7.23 and specifically to provide a certificate that addresses the medical dispute referred for assessment. This interpretation is consistent with established principles on statutory construction.
21.	I reject the insurer’s submission that a failure to consider material and potentially amend a medical assessment certificate is outside the scope of the power to refer back under rule 112. 
OTHER SUBMISSIONS 
22.	Having reviewed the insurer’s further submissions, I accept that the Medical Assessor has failed to address a properly articulated argument, specifically that the opinion of Dr Stewart raised credibility issues of the claimant and the insurer’s submission that the history provided by the claimant cannot be relied upon. 
23.	I agree with the insurer’s submission, that in the circumstance of this case, there are practical difficulties in the Medical Assessor now addressing the issues raised in the report of Dr Stewart. 
24.	I note and accept the claimant’s submission that there is no practical injustice to the insurer in referring the matter back to the Medical Assessor. However, I do not consider, given the absence of proper reasoning by the Medical Assessor on an essential issue which is inconsistent with his findings, that the matter should be referred back to the Medical Assessor.
CONCLUSION 
25.	I consider afresh and revoke my decision dated 26 July 2024. 
26.	I assume that the President’s delegate has dismissed the insurer’s application to review in light of my previous decision. It is a matter for the delegate how they wish to proceed in light of these reasons.