Timeliness in obtaining expert reports – delay IMEs at your peril

In Bona v Jeffries & Allianz Australia Insurance Limited [2021] QSC 84, the defendant insurer failed, on the basis of unreasonable delay, in its application to the Brisbane Supreme Court for an order that the plaintiff submit to an assessment by an occupational therapist over 12 months after the holding of the compulsory conference.

Chronology of steps relevant to the application

Mr Bona was injured in a motor vehicle accident on 24 November 2018. Before the compulsory conference on 11 March 2020, he underwent reviews by two neurosurgeons and an orthopaedic surgeon. Proceedings commenced on 9 April 2020.

The following then ensued:

1. Mr Bona was reviewed by an occupational therapist (OT) at the request of his lawyer and the report was served on Allianz Australia Insurance Limited in late August 2020. At that time, Mr Bona requested Allianz indicate whether it required any further medical evidence.
2. Two months later, in October 2020, Mr Bona reiterated the request and a panel of OTs was then put to him. He almost immediately made a selection from that panel on the proviso that the assessment take place within three months. Allianz informed Mr Bona the following day that the next available appointment for the specialist selected was in May 2021 and the other experts on the panel were available in March and April 2021.
3. Mr Bona contemporaneously requested a fresh panel of OTs who had availability within three months. After no response from Allianz, Mr Bona reiterated his request two weeks later. On 16 November 2020, Allianz confirmed it had made an appointment on 8 February 2021, but was in the process of ascertaining availability to collate a panel. Mr Bona again immediately requested a panel of OTs who had availability within three months, reiterating the request some three days later.
4. After receiving no response from Allianz, Mr Bona requested an update on 8 December 2020. On 17 December 2020, he informed Allianz that, if a panel was not submitted by Christmas, a request for trial date (RFTD) would be served. The following day, Allianz confirmed it would provide a panel early in 2021.
5. Mr Bona served an RFTD on Allianz on 21 December 2020 and confirmed that, given the unreasonable delay, an objection would be taken to any further medical reviews. After some negotiation, Mr Bona agreed, in mid-January 2021, that Allianz could include in the RFTD those matters that it considered remained outstanding.
6. On 16 February 2021, Mr Bona requested the return of the signed RFTD. Allianz indicated that it was awaiting receipt of documents in response to a notice of non-party disclosure and Mr Bona again suggested that the RFTD be signed with any outstanding matters noted on it.
7. Mr Bona served a letter pursuant to rule 444 of the Uniform Civil Procedure Rules 1999 (UCPR) on Allianz on 21 February 2021, noting unreasonable delay on Allianz’s part in signing and returning the RFTD. Allianz responded indicating that it was attempting to collate a panel of OTs with availability within three months and would agree to sign the RFTD on the basis that the OT assessment (and some non-party disclosure) was noted as outstanding and there would be no objection to amendment of the defence before trial.
8. Mr Bona maintained his previous refusal to attend an OT assessment and allowed Allianz until 1 March 2021 to sign and return the RFTD. However, Allianz did not comply.
9. Mr Bona filed an application on 5 March 2021 pursuant to rule 469 of the UCPR to dispense with Allianz’s signature on the RFTD. Five days later, Allianz provided a panel of seven OTs with the earliest appointment on 13 May 2021, but the majority in June, July and August 2021.
10. Allianz then filed an application for an order pursuant to sections 46A and 50 of the Motor Accident Insurance Act 1994 (Qld) (MAIA) that Mr Bona submit to an OT assessment.

Decision

In his decision, Justice Burns considered the objects of the MAIA and sections 45 to 47 inclusive. His Honour specifically noted that section 46A imposed an obligation on Mr Bona to comply with a request to undergo a medical review but was not open-ended. He noted that there had been a lengthy delay in what was a relatively straight-forward case.

His Honour did not accept Allianz’s submission that there was ‘a lack of appropriate specialists in this area’ given the unchallenged evidence that there were numerous OTs that could have reviewed Mr Bona within a short period. His Honour held that Allianz had simply not progressed the claim in an expeditious way and was not persuaded that the discretion in section 46A should be exercised in Allianz’s favour.

While not considered by either party, his Honour also noted that a medical review would be unreasonable pursuant to section 46A(3) if it did not take place within a reasonable period of time.

His Honour ordered that Allianz’s signature on the RFTD be dispensed with, its application be dismissed, and it pay Mr Bona’s standard costs of both applications.

Conclusion

It has been difficult to obtain timely appointments with specialists, particularly OTs, in the last 12 months due in part to a backlog caused by COVID-19. However, this decision makes it clear that parties must be submitting panels of specialists who have reasonable availability and in a timely way.