In Bona v
Chronology of steps relevant to the application
The following then ensued:
Mr Bona was reviewed by an occupational therapist (OT) at the request of his lawyer and the report was served onAllianz Australia Insurance Limited in lateAugust 2020 . At that time,Mr Bona requestedAllianz indicate whether it required any further medical evidence.- 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 informedMr Bona the following day that the next available appointment for the specialist selected was inMay 2021 and the other experts on the panel were available in March andApril 2021 . Mr Bona contemporaneously requested a fresh panel of OTs who had availability within three months. After no response fromAllianz ,Mr Bona reiterated his request two weeks later. On16 November 2020 ,Allianz confirmed it had made an appointment on8 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.- After receiving no response from
Allianz ,Mr Bona requested an update on8 December 2020 . On17 December 2020 , he informedAllianz 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. Mr Bona served an RFTD onAllianz on21 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, inmid-January 2021 , thatAllianz could include in the RFTD those matters that it considered remained outstanding.- 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 andMr Bona again suggested that the RFTD be signed with any outstanding matters noted on it. Mr Bona served a letter pursuant to rule 444 of the Uniform Civil Procedure Rules 1999 (UCPR) onAllianz on21 February 2021 , noting unreasonable delay onAllianz'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.Mr Bona maintained his previous refusal to attend an OT assessment and allowedAllianz until1 March 2021 to sign and return the RFTD. However,Allianz did not comply.Mr Bona filed an application on5 March 2021 pursuant to rule 469 of the UCPR to dispense withAllianz's signature on the RFTD. Five days later,Allianz provided a panel of seven OTs with the earliest appointment on13 May 2021 , but the majority in June, July andAugust 2021 .Allianz then filed an application for an order pursuant to sections 46A and 50 of the Motor Accident Insurance Act 1994 (Qld) (MAIA) thatMr Bona submit to an OT assessment.
Decision
In his decision,
His Honour did not accept
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
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.
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