Super member must submit to examination

by Lucy Aylward and Stanley Drummond*

NSW Supreme Court Justice Michael Slattery has exercised his discretion to order a superannuation fund member claiming an insured total and permanent disablement (TPD) benefit be required to be medically examined.

Jenny-Lee Harrod had been a member of the NSW Police Force. She claimed she suffered from post-traumatic stress disorder (PTSD) initiated by events during her police service. Her super fund’s insurer, MetLife, rejected the claim three times between 2013 and 2015.

In 2016, Ms Harrod started proceedings against the trustee and MetLife in the NSW Supreme Court. She later discontinued proceedings against the trustee and pursued her claim against MetLife.

Ms Harrod attended MetLife’s arranged medical examination by psychiatrist Dr Kneebone, whose report recommended further testing “to assess her cognitive function accurately and exclude the possible exaggeration of reported symptoms”.

The insurer also requested Ms Harrod attend an examination with clinical psychologist Professor Mattick. She refused to do so.

MetLife applied to the court for an order Ms Harrod be required to be medically examined by Professor Mattick.

The question was whether, in the circumstances, the court should exercise its discretion under the Uniform Civil Procedure Rules 2005 (UCPR) r23.4 to order an examination.

The court’s decision

The court ordered Ms Harrod be required to be medically examined by Professor Mattick.

Justice Slattery said a defendant, such as MetLife, sued in an action by a plaintiff who claims some mental or physical impairment or medical condition, is entitled to take reasonable steps, including use of the UCPR, r 23.4 powers to ensure  issues that may bear upon the determination of the proceedings are assessed by independent expert evidence, so the trial judge can determine the real issues in dispute. “Provided the examination is sought for a legitimate purpose and the evidence likely to be material to an issue in dispute, the order should ordinarily be made,” he said.

Ms Harrod’s submissions included that an order for her to be examined by Professor Mattick would delay the proceedings.

Justice Slattery said the delay was “unfortunate but not a decisive consideration”. To some extent, the delay that had occurred already arose because of Ms Harrod’s “tactical decisions”.

Ms Harrod argued Professor Mattick was a clinical psychologist, not a neuropsychologist as recommended in Dr Kneebone’s report. But Justice Slattery said there was sufficient evidence  to establish that a clinical psychologist could conduct the kind of tests Dr Kneebone recommended.

Ms Harrod also argued her treating psychiatrist’s opinion was the proposed testing by Professor Mattick would be “highly destructive to her mental state” and unlikely to provide medical results. The court weighed the balance of the evidence and found there was insufficient evidence not to order the examination.

Harrod v MetLife Insurance Ltd [2019] NSWSC 28

*Lucy Aylward is a law graduate with Thomson Geer and Stanley Drummond is a Partner.