Claimant Ordered to Undergo Medical Examination for TPD Benefits

The Court ordered the claimant to undergo a medical examination by a psychologist to assess her eligibility for Total Permanent Disability benefits under insurance policies. The Court held that the defendant was entitled to ensure that issues bearing on the determination of the proceedings were assessed by independent expert evidence.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v [COMPANY] [2019] NSWSC 28 Hearing dates: 2 November 2018 Date of orders: 20 February 2019 Decision date: 20 February 2019 Jurisdiction: Equity Before: Slattery J Decision: Plaintiff must attend medical examination. Directions made for the future conduct of the proceedings. Catchwords: PRACTICE AND PROCEDURE – plaintiff refuses to submit to further medical examination – plaintiff required to submit to a medical examination as a condition of further pursuing proceedings. Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58 Insurance Contracts Act 1984 (Cth), s13 Practice Note SC Gen 10 Uniform Civil Procedure Rules 2005, Part 23 Cases Cited: Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 [NAME] by her tutor [NAME] v Royal Alexandra Hospital for Children [2010] NSWSC 891 [NAME] v State of New South Wales (2009) 74 NSWLR 715 Category: Procedural and other rulings Parties: Applicant/[NAME] Defendant: [redacted] Respondent/Plaintiff: [redacted] First Defendant: [redacted] Counsel: [redacted] Defendant: [redacted]

Solicitors: [redacted] [NAME] Defendant: [redacted] Publication restriction: No

Judgment 1. The plaintiff, [NAME], joined the New South Wales police force in February 1996. She continued in the police service until July 2010. She was medically discharged from the service on 1 September 2011. She claims that she suffers from post-traumatic stress disorder ("PTSD") initiated by events during her police service.

2. Her Statement of Claim in these proceedings pleads against the first defendant, [NAME] ("[NAME]") and against the [NAME] defendant, [COMPANY] ("[NAME]"), that she qualifies as totally and permanently disabled under policies of insurance (known as a "Basic" policy and a "Blue Ribbon" policy) issued by [NAME] to [NAME] for the benefit of New South Wales police officers, such as the plaintiff.

3. The plaintiff discontinued these proceedings against [NAME]. She now pursues her case against [NAME]. She claims that [NAME] on 5 June 2013, 9 October 2014 and 23 June 2015 refused (via [NAME]) her claims for TPD benefits that she says are payable to her. She pleads that [NAME]'s failure to pay these benefits breached its duty to act with utmost good faith under the Insurance Contracts Act 1984 (Cth), s 13, and was a breach of its contractual policy obligations owed to [NAME] for the benefit of the plaintiff. [NAME] contests these allegations. 4. [NAME] now seeks by motion to require the plaintiff to be medically examined by a psychologist, [NAME]. The plaintiff resists this course on the various grounds elaborated in this judgment. [ADDRESS] concludes on the motion that the plaintiff should be examined by [NAME] and gives directions for the further conduct of these proceedings. 5. [NAME] of counsel, instructed by [COMPANY], appears for the plaintiff. [NAME] of counsel, instructed by [NAME], appears for the [NAME] defendant, [NAME].

6. Resolution of the motion requires a short further overview of the procedural history of the plaintiff's claim and of the proceedings.

[NAME], the New South Wales [NAME]

1. The plaintiff was born in [DATE] and was 47 at the time that the motion was heard. She attested as a constable in the New South Wales Police Force in February 1996, at the age of 25. But due to the stressful nature of her work, and a number of traumatic incidents in which she claims she was involved, she was unable to continue her duties with the police. Her last day of police duty was on 6 July 2010. She was then 39.

2. She was not medically discharged from the police until 1 September 2011. She lodged a claim for TPD benefits with [NAME] on 22 December 2011.

3. The plaintiff's claim has a complicated history. [NAME] forwarded the claim to [NAME] in April 2012. [NAME] first declined the claim on 5 June 2013. [NAME] asked [NAME] to review its first decision. But [NAME] declined the plaintiff's claim again on 9 October 2014. [NAME] was again asked to review its decision, but declined the plaintiff's claim for a third time on 23 June 2015.

4. Despite the plaintiff's claim being declined three times, she did not commence litigation immediately. Rather, on 17 August 2016, the plaintiff's solicitors requested the referral of the dispute to the Claims Review Committee ("CRC"), a three member body established as an arbitral mechanism under [NAME]'s policies. Following this CRC referral, [NAME] requested further information from the plaintiff on 4 October 2016.

5. But the plaintiff did not wait for the CRC's determination. On 25 October 2016, she filed her Statement of Claim commencing these proceedings. By then, [NAME] solicitors were engaged on behalf of [NAME]. [NAME]'s further request for information of 4 October 2016 was as yet unsatisfied. So on 12 October 2017, [NAME] reiterated [NAME]'s information request.

6. The proceedings came before the Court for directions on 20 April 2017, when consent orders were made for both parties to file evidence and for the matter to be re-listed for directions on 10 August 2017. On 17 August 2017, [NAME] filed a motion seeking a medical examination of the plaintiff by [NAME], a psychiatrist, and [NAME], a clinical psychologist.

7. The plaintiff also filed a motion on 15 September 2017, seeking to compel [NAME] to refer the claim to the CRC (under condition 9.1 of the Blue Ribbon Policy and condition 18.1 of the Basic Policy). The referral sought was of the dispute arising out of [NAME]'s declining of her claim on each of the occasions in 2013, 2014 and 2015.

8. Both contested motions came before Parker J on 26 September 2017. After discussions between counsel, the motions resolved by consent on 26 September 2017. The proceedings were settled on the following bases: (1) the plaintiff would attend a medical examination with [NAME]; (2) [NAME] would refer the plaintiff's claim to the CRC; and (3) the implied undertaking to use [NAME]'s report and other documents produced under subpoena in the proceedings only for the purposes of those proceedings, was waived so that the documents could be relied upon by the parties before the CRC. Parker J made consent orders to this effect.

9. But the resolution of the competing motions on 26 September 2017 did not expressly deal with the question of a further consultation with [NAME]. The resolution involved the plaintiff attending [NAME]'s arranged examination of a psychiatrist ([NAME], because [NAME] was unavailable) and [NAME] agreed to refer the plaintiff's dispute to the CRC. The motions were otherwise disposed of without any clear reference to what was to happen with the proposal for the plaintiff to see [NAME].

10. As will be seen, this outcome was interpreted in different ways by the plaintiff and by [NAME]. [NAME] interpreted the consent orders as leaving its options open, as to whether it would require the plaintiff later to attend upon [NAME]. [NAME] understood that its request for the plaintiff to be examined by [NAME] had been deliberately left in abeyance pending receipt of [NAME]'s report and the CRC decision; the logic apparently being that if the CRC decision was adverse to [NAME] then further expenditure on consulting [NAME] may not have been necessary.

11. But the plaintiff's lawyers' had quite a different interpretation of events. Their present submissions show that they regarded Parker J's orders as meaning that [NAME] had wholly abandoned attempts to have the plaintiff attend upon [NAME]. But this misunderstanding was concealed by events. It only became evident upon [NAME] filing the motion now before the Court.

12. On 19 October 2017, the plaintiff attended a medical examination with [NAME]. He reported on 15 February 2018 upon her. He provisionally diagnosed that she suffered from PTSD, a Major Depressive Disorder and Alcohol Use Disorder, all based upon her reported history and symptoms. But he did note that the diagnosis of PTSD was based almost entirely upon her subjective report of symptoms. [NAME] stated that the plaintiff appeared to be suffering from a general psychiatric disorder, but he did consider that objective measurements of her neuropsychological functioning were required in order to assess her cognitive function accurately and to exclude the possible exaggeration of reported symptoms. It is that recommendation that ultimately led to the filing of [NAME]'s present motion for examination by [NAME].

13. The CRC considered the plaintiff's claim on 12 July 2018. But the CRC was unable to act. It noted that [NAME] had not as yet reached a determination in response to the plaintiff's present request for reconsideration. It noted that the CRC's failure to reach a determination was because of the outstanding examination with [NAME] and a related vocational assessment. 14. [NAME]'s solicitors once again requested the plaintiff to attend an examination with [NAME] and it filed its present motion on 13 July 2018.

The Power to Order Medical Examinations 1. It is not in dispute on this motion that [NAME]'s request for the plaintiff to be ordered to attend a medical examination is within the Court's powers under the Uniform Civil Procedure Rules 2005 ("UCPR"), Part 23. The requirements of that rule are satisfied in this case. The plaintiff's physical and mental condition is in issue. [NAME] is a medical expert. Notice for a medical examination has been given. The real issue here is whether, in the circumstances, the Court should exercise its discretion pursuant to UCPR, r 23.4 to order an examination. UCPR, r 23.4 provides as follows: "23.4 Order for examination (1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place. (2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination."

1. The power granted to the Court under UCPR, r 23.4 is discretionary and is to be exercised judicially, having regard to the factors relevant to the exercise of the discretion in the particular case: [NAME] by her tutor [NAME] v Royal Alexandra Hospital for Children [2010] NSWSC 891 ("Royal Alexandra Hospital") at [21] and the discretion is to be exercised in accordance with Civil Procedure Act 2005 ("CPA"), ss 56, 57, and 58; [NAME] v State of New South Wales (2009) 74 NSWLY 715; [2009] NSWCA 136 ("[NAME]") at [10] per Hodgson JA. A defendant, such as [NAME], that has been sued in an action by a plaintiff, who claims some mental or physical impairment or medical condition, is entitled to take reasonable steps, including the use of the UCPR, r 23.4 powers to ensure that the issues that may bear upon the determination of the proceedings are assessed by independent expert evidence, so that the trial judge is in a position to determine the real issues in dispute: Royal Alexandra Hospital at [46]. Provided the examination is sought for a legitimate purpose and the evidence is likely to be material to an issue in dispute, the order should ordinarily be made: Boral Transport Pty Ltd v Gulic [2013] NSWCA 150.

The Parties' Submissions and Issues for Determination 1. The parties' submissions may be shortly summarised. [ADDRESS] has generally found [NAME]'s submissions are more persuasive. Therefore, for convenience, these reasons first set out the plaintiff's arguments and then [NAME]'s response.

2. First, the plaintiff contends that Parker J's orders lead to an estoppel. The plaintiff argues, having abandoned a motion in September 2017 for the plaintiff to attend upon [NAME], that [NAME] "should be estopped by its conduct in pursuing the order now sought".

3. Interlocutory determinations do not create estoppels. Parker J's consent orders made on 26 September 2017 do not found any estoppel preventing [NAME] from later pursuing a motion to have the plaintiff examined by [NAME]. Indeed, [NAME] of counsel, appearing for the plaintiff, recognised this in the course of oral submissions and ultimately did not press the estoppel argument.

4. But the point is well made to a more limited extent. A party would ordinarily have to abide the outcome of an interlocutory application, unless there is a change of circumstances. [NAME] of counsel representing [NAME], argued that [NAME]'s recommendation of further testing by [NAME] qualifies as such a change of circumstances. In my view, it does so qualify. The consent orders were made by Parker J on 26 September 2017. The plaintiff attended upon [NAME] pursuant to those orders on 19 October 2017 and [NAME] thereafter reported. [NAME] had insight into the likelihood that a report from [NAME] might be necessary, [NAME]'s report is a sufficient basis for [NAME] to be required to look at the matter afresh and qualifies, in my view, as a change of circumstances. This also answers the plaintiff's contention that [NAME]'s current motion is just a re-run of the previous motion before Parker J.

5. Secondly, the plaintiff was critical of the CRC's resolution of 12 July 2018. The plaintiff argues that the CRC did not deal with the plaintiff's requests of 17 August 2016 to refer the existing dispute about the payment of TPD benefits to the CRC. The actual text of the CRC's resolution of 12 July 2018 is as follows: "a. [NAME] has not determined [NAME]'s request, dated 21 June 2016, to reconsider her claims due to outstanding information which includes [NAME]'s request for her to attend a medical examination with [NAME] and an examination with a vocations assessor; and b. The policy should respond against the claim."

1. The plaintiff's submissions can be accepted that this resolution does not deal in terms with the plaintiff's request of 17 August 2016 for the matter to be referred to the CRC. The plaintiff's contention is that the settlement of the motion before Parker J involved [NAME] promising to agree for the plaintiff's claim to be referred to the CRC and abandoning the request for a medical examination by [NAME], provided the plaintiff submitted to examination by [NAME] (later [NAME]).

2. But the fact that the CRC did not fully deal with the plaintiff's claim on 12 July 2017 is somewhat beside the point. [NAME] is not responsible for what the CRC did. The CRC, an independent body, reacted not unreasonably to the apparent uncertainty of information available to it in the absence of [NAME]'s report. The plaintiff further argues that the CRC is to be criticised because [NAME] had already abandoned its request for [NAME] to examine the plaintiff. But the answer to that contention lies in the third point raised by the plaintiff.

3. Before dealing with the plaintiff's third contention, another aspect of the CRC deserves mention. The plaintiff incidentally complained about procedural unfairness in the CRC's decision. But even if such unfairness were established, it is not something that can be laid at [NAME]'s door, or which assists the plaintiff to stop [NAME] having her medically examined by [NAME]. CRC is an independent body.

4. Thirdly, the plaintiff contends that [NAME] abandoned its motion to have the plaintiff examined by [NAME], as part of an agreed settlement of those competing motions and that settlement is binding upon it.

5. This argument is not persuasive. The 26 September 2017 consent orders that Parker J made do not contain a promise that [NAME] no longer intends to pursue an examination by [NAME]. In the absence of such express agreement, what happened on 26 September 2017 can best be construed as a withdrawal for the time being of the request for examination by [NAME], but leaving open the possibility that if circumstances changed the request might be renewed. That is indeed what has since happened.

6. Fourthly, the plaintiff complains that if an order is made for her to be examined by [NAME], that will occasion delay in the proceedings being set down for hearing. The issue is not so much delay in obtaining an appointment to see [NAME]. The concern is rather that once [NAME] has administered his tests, a standard waiting period is required before another psychologist can reliably administer similar tests. This further period is necessary to prevent a test subject "learning" from the previous test. This additional delay period is said to be in the order of about six months.

7. This argument is not persuasive. In the overall timeframe of this case, a further delay of up to six months is unfortunate but not a decisive consideration. The plaintiff was medically discharged from the police service over seven years ago. But she did not commence these proceedings until over two years ago. She chose to have [NAME] review its decision three times rather than immediately commence proceedings after [NAME] declined on the first occasion. To some extent, the delay that has occurred already arises because of these tactical decisions on the plaintiff's part and was not caused by [NAME].

8. That being said, a further six months' delay is objectively undesirable. But it may well be possible to set these proceedings down for hearing well before the last reply medical examination takes place by a psychologist, who is seeking to provide an opinion potentially to answer [NAME]. That examination can then take place just before the hearing. And of course the possibility exists that an answer may not be needed to [NAME], so no delay will occur anyway.

9. Fifthly, the plaintiff says that the tests sought to be administered by [NAME] cannot be advanced in reply to any expert evidence being relied upon the plaintiff. But even if this is correct, it is not an answer to the motion for examination. [NAME] has said the examinations are necessary. Even if they are not in reply to existing evidence from the plaintiff, they may in turn generate a reply by the plaintiff. One way or another, the parties will be at issue at trial with respect to [NAME]'s examination.

10. Sixthly, the plaintiff says that, because the tests are likely to be used to assess the plaintiff's credibility, that is a collateral purpose for requiring medical examinations which are only permitted to be undertaken for matters in issue.

11. But a proper reading of [NAME] answers this point. Provided a medical examination is undertaken for a purpose relating to a matter in issue in the proceedings, there is no objection to the conduct of the examination that it may also incidentally be used to challenge a plaintiff's credibility. Medical reports are not uncommonly used in litigation as a basis for challenging a plaintiff's credibility. The critical question is whether they satisfy the test that they go directly to a matter in issue. In this case, [NAME] has sufficiently explained the relevance of [NAME]'s examination to the issues in the proceedings.

12. The plaintiff's seventh point is that [NAME] is not a neuropsychologist, but is a clinical psychologist. The plaintiff submits that [NAME]'s recommendation is that the plaintiff be seen by a neuropsychologist, and that therefore that [NAME] is not an expert who satisfies [NAME]'s recommendation.

13. But the evidence is sufficient to establish that a clinical psychologist, such as [NAME], can undertake the kind of tests that [NAME] recommended in his report of 1 February 2018. In his letter of 5 August 2016, [NAME] explains the differences between, and the overlap between, the expertise involved in neuro-psychological examinations and clinical psychological examinations. He acknowledges the different skill sets of the two. But he explains that, depending on the patient and the presenting problems, "the methods that [each] uses quite rightly overlap slightly." The proposed examination of the plaintiff lies in the area of overlap and [NAME] is willing to examine the plaintiff on that basis.

14. Finally, the plaintiff submits that the plaintiff's own treating psychiatrist says the proposed testing by [NAME] would be "highly destructive to her mental state" and unlikely to provide medical results. [ADDRESS] has not had the advantage of being able to test [NAME]'s opinion and it is not practicable, acting consistently with the dictates of Civil Procedure Act s 56, 57 and 58, for the Court to have a mini-trial of that issue on this motion. So the Court must decide this motion in the most efficient way possible on the available evidence. On the one side, the Court has [NAME]'s opinion that predicts deleterious consequences. On the other side, the Court has three matters that can be weighed in the balance the other way: (1) in the exercise of his professional medical expertise [NAME] recommends this examination; (2) [NAME] is prepared to undertake it within his own professional expertise as a psychologist; and (3) the examination technique that [NAME] proposes to use is not uncommonly used by psychologists. 15. [ADDRESS] must do the best it can on these materials without conducting a mini-trial of the issue. In my view, there is an insufficient basis in [NAME]'s evidence not to order examination on that ground. And of course it is to be expected that [NAME] will proceed carefully and be mindful of [NAME]'s opinion about the possible risks associated with such an examination.

16.

For these reasons, the Court will order that the plaintiff be medically examined by [NAME].

Other Directions 1. [ADDRESS] raised with the parties the issue of the numbers of medical reports that have been generated on both sides of these proceedings. The multiplicity of reports is an unfortunately common feature of litigation of this type, against insurance companies offering TPD benefits to superannuation insurers.

2. One does not have to go far to understand why such a multiplicity of reports arises in these cases. Whilst before proceedings are commenced, the generation of medical reports is an incident of the business processes of [NAME], only after the litigation is commenced do the provisions of the UCPR apply, limiting the number of medical reports that a party may adduce in their case: UCPR, rr 31.2(3) and 31.2(4) and Practice Note SC Gen 10.

3. Here, discussions took place with the parties at the hearing about the reduction in numbers of experts to be called on each side of the litigation. There was some dispute about which experts should be called. Directions were given and the parties advanced proposals as to which experts they would rely upon. But upon further reflection on the issue after the hearing of the motion, the Court considers that a narrowing of the numbers of experts to be relied upon at the hearing can really only take place once the full range of medical and psychologists evidence is available, which will now not occur until much closer to the hearing. The parties should draw this issue to the trial judge's attention, after the matter is set down for trial.

Conclusions and Orders 1. In the result, the Court will order that the plaintiff be required to be medically examined by [NAME]. [NAME] has been substantially successful on the motion in these proceedings. Costs would normally follow the event. Unless a special costs order is sought (and it must be applied for within seven days), the order of the Court will be that the plaintiff pay [NAME]'s costs of the motion.

2.

Accordingly, the Court's orders and directions are:

1. Order the plaintiff to attend for a medical examination before [NAME] at a time to be arranged.

2. Order the plaintiff to pay the [NAME] defendant's costs of the [NAME] defendant's motion of 13 July 2018.

3. Order 2 will be stayed if either party files a motion seeking a special costs order within seven days of these orders.

4. List the proceedings for further directions before the Registrar in Equity on 27 February 2019.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2019