AAI Limited t/as GIO v Hawach (No 2)

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Hawach (No 2) [2024] NSWPICMP 565
CLAIMANT:	Abdallah Hawach
INSURER:	AAI Ltd t/as GIO
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Geoffrey Stubbs
DATE OF DECISION:	22 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Application to reopen matter; Minister for Immigration and Multicultural Affairs v Bhardwaj; procedural fairness; whether Medical Review Panel’s decision was infected by jurisdictional error; claimant claimed to have requested an interpreter for his medical assessment; where evidence for requesting an interpreter is unsubstantiated by claimant and denied by the assessing Medical Assessor; Held – jurisdictional error not found; matter not reopened.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% *THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017* IS AS FOLLOWS:** 1. The application by the claimant that the medical assessment certificate is invalid and should be set aside is refused.

REASONS

BACKGROUND

On 3 July 2019 Mr Abdallah Hawach (the claimant) was injured whilst driving his motor vehicle.
AAI Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Hawach any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant was originally assessed by Medical Assessor Herald who assessed permanent impairment greater than 10% based on impairments of the cervical and lumbar spines and both shoulders. The insurer filed an application to review the medical assessment.
The Review Panel was convened and determined that the claimant would be examined by Medical Assessor Stubbs who examined the claimant at the medical suites of the Personal Injury Commission (Commission) on 15 May 2024.
We delivered reasons on 30 May 2024 (the Medical Assessment Certificate).[1] These reasons are to be read with those reasons. The examination report is contained in our reasons.[2]
[1] AAI Ltd v Hawach [2024] NSWPICMP 348 (Hawach).
[2] Hawach at [95].
A brief summary of our reasons is provided for the purposes of this application. As noted, the claimant’s cervical and lumbar spines and bilateral shoulders were assessed.
During its reasons, we made the general observation that the assessment was based on the clinical findings of Medical Assessor Stubbs, the nature of the motor accident and the absence of pathology shown on various scans. We stated:[3]
“We do not consider the other issues raised by the insurer as relevant to an assessment of permanent impairment. Our conclusions on assessment of permanent impairment are based on the clinical findings by Medical Assessor Stubbs, the nature of the motor accident and the pathology shown on the scans.”
[3] Hawach at [103].
In respect of the assessment of the cervical and lumbar spines, we stated:[4]
“The claimant presented with gross restriction of movement in both the cervical and lumbar spine. This loss of range of movement is not assessable under DRE category II as it is not asymmetrical. The extent of the loss of range of movement is otherwise inexplicable based on the minor pathology shown in the spinal scans and probably reflects the pain syndrome/behaviour commented upon by some of the medical practitioners.”
[4] Hawach at [117].
The Review Panel doubted that the motor accident caused injuries to the right knee and left shoulder based on either an absence of contemporaneous reporting and/or the mechanism of the motor accident. There was otherwise no right knee crepitus when the claimant was examined by Medical Assessor Stubbs.
In respect of the assessment of the shoulders, we stated:[5]
“Given the inconsistent shoulder movements observed by the Medical Assessor, we do not accept that the range of motion of those body parts is a valid method of assessment.[6] The inconsistencies of shoulder movement observed by the Medical Assessor were brought to the claimant’s attention and we do not accept his response as plausible.
We are not satisfied that the motor accident caused any shoulder pathology. Based on the full range of movement shown by the claimant when removing the clothes, we do not accept that there is any assessable impairment of the shoulders either directly through shoulder injury caused by the motor accident or due to the principles set out in Nguyen v Motor Accidents Authority.[7]”

Application
[5] Hawach at [110]-[111].
[6] See cls 6.40. 6.41 and 6.50(d) of the Guidelines.
[7] [2011] NSWSC 351.

The claimant filed submissions dated 26 June 2024 asserting that the “Certificate of Medical Assessor Stubbs [sic] is invalid” and the Commission reconvene a further Medical Review Panel.
In its submissions, the claimant’s solicitor stated:[8]
“When the Claimant arrived at the assessment on 15 May 2024, we are instructed that he advised Assessor Stubbs that he required an interpreter and requested one to be present. We understand that Assessor Stubbs advised the Claimant that the PIC had not arranged an interpreter and continued with the assessment without one despite the Claimant’s request.
Although the Claimant was able to converse with limited English, he had very limited comprehension of the Assessor’s directions and questioning. This meant that he was unable to properly articulate himself to respond to the questions which resulted in a miscommunication of information and vague answers. This is particularly concerning given that Assessor Stubbs appears to call into question the Claimant’s credibility and reliability. All previous PIC assessments, the Claimant relied upon an Arabic interpreter.”
[8] Claimant’s submissions, [4]-[5].
The claimant, relying upon the principles discussed in Minister for Immigration and Multicultural Affairs v Bhardwaj,[9] submitted that Medical Assessor Stubbs [sic Panel] had failed to discharge the statutory function by failing “to provide the Claimant with an interpreter in circumstances where one was required and requested” which constituted a denial of procedural fairness and natural justice.
[9] [2002] HCA 11 (Bhardwaj).
The insurer filed submissions opposing this application.
The claimant filed a letter dated 17 July 2024 replying to the insurer’s submissions. We have considered this letter as part of the application.

Reasons

We note that the reasons were delivered by the Review Panel as opposed to the claimant’s assertion that the Medical Assessment Certificate was issued by Medical Assessor Stubbs. That is clear from our determination and the relevant legislation. However, we have assumed in this application that the claimant has requested that the Review Panel’s Medical Assessment Certificate be set aside.
The Review Panel has reconvened and discussed the application. As the decision maker, the assertion of a lack of procedural fairness and/or denial of natural justice provided by the Panel (and Medical Assessor Stubbs) is addressed by us rather than the Commission.
We are not satisfied that the decision is infected with jurisdictional error and that our statutory duty remains unperformed for the following reasons.
First, the assertion made by the claimant’s solicitor set out at paragraph 12 herein, unsupported by evidence, is denied by Medical Assessor Stubbs. The Review Panel adopts the denial by Medical Assessor Stubbs as part of these Reasons in circumstances where the claimant has not provided evidence to support the allegation.
The claimant in its further letter asserted that Medical Assessor Stubbs, despite his medical expertise, was not an expert in “the area of linguistics and language comprehension”. The Panel notes that the Medical Assessor was and is of the view that the claimant had a clear understanding of the questions asked during the examination. The detail within the medical examination report contained in the Reasons demonstrates this. Further, one does not have to have expertise in linguistics and language comprehension to appreciate whether another party to a conversation is understanding questions. This is a matter of common human experience. The Panel is in no doubt that the claimant understood the questions asked of him and clearly communicated responses to those questions.
Secondly, the claimant filed a Reply to the insurer’s application seeking leave to review the original medical assessment. In the Reply form, the claimant did not request an interpreter as part of the review proceedings despite the question of whether an interpreter was required being asked in that document.
Thirdly, the claimant’s assertion that the failure to have an interpreter present “resulted in a miscommunication of information and vague answers” is not supported by any submission addressing the detailed examination history and responses to questions taken by Medical Assessor Stubbs. The submission is self-evidently contrary to the detail recorded by Medical Assessor Stubbs. The submission did not otherwise state what information was miscommunicated and what answers were vague.
The only reference in the examination report to a “vague” answer related to the sale of the claimant’s vehicle and is not indicative of a lack of a response provided by reason of an inability to properly communicate.
The insurer’s submissions address the past use of interpreter services by the claimant including the observation by Dr Bodel that the claimant had “quite good command of the English language”. The Panel endorses that observation, that is the claimant had a “good command of the English language” based on Medical Assessor Stubb’s examination report.
Fourthly, the Review Panel’s reasons disclose that the findings were essentially based on clinical findings of Medical Assessor Stubbs, absence of complaint (right knee) and an analysis by the Panel of factors such as the mechanism of the motor accident and minimal if any relevant pathology. The claimant made no submissions on the issue of materiality from the absence of an interpreter.[10] In its supplementary submissions he noted:
“Without a transcript of the assessment with Assessor Stubbs it is impossible to know the extent to which the Claimant was prejudiced by the communication barrier.”
[10] See Hossain v Minister for Immigration and Border Protection [2018] HCA 34.
However, there was no attempt by the claimant to analyse the examination report and findings or any submissions suggestive of an unfairness that arose by the absence of an interpreter. The Medical Assessor noted greater movement by the claimant in an informal setting as opposed to the restricted range of movement in the formal movement. The examination findings provided the following which was essentially based on inconsistency in a clinical assessment.
“Upper limbs. The deltoids and the rest of the musculature were normal bilaterally. Sensory examination reveals non-dermatomal tingling opening involving all fingers of the left hand. Two-point discrimination is normal. Both shoulders show restricted range of motion. This is given in the table below and is the best-of-three goniometer measurements. The measurements are reasonably consistent between the sides but quite variable between the readings. The clinical impression is of active resistance to movement rather than painful restriction. This limitation of movement prevents comment on findings such as crepitus instability and impingement.
….
Movements of the elbows, wrists and fingers are normal. Comment – there is voluntary limitation of movement with obvious discrepancy between what is seen in formal physical examination and what it is noted in other circumstances such as dressing and undressing. Therefore, goniometer measurements cannot be used to assess impairment. There are no findings of radiculopathy. There are no supporting signs of mechanical injury.
….
Opinion – despite the lesser muscle bulk seen in the photograph taken in gym gear about nine months before the accident and the subsequent photograph taken at his sister-in-law’s engagement about the same time after the motor vehicle accident,
Mr Hawach has an athletic build for is 38 years. The examiner found no specific signs of injury, despite the complaints and restricted range of movement seen in the formal physical examination. There was much better movement seen in the informal examination, this was pointed out to Mr Hawach. In assessment the examiner needs to rely on the presence of observable clinical signs which include muscle wasting, reflex changes, consistent nerve root tension tests for presence of joint crepitus, stability and swelling. None of these is present in the present clinical examination. Range of motion restriction was noted in the neck, shoulders, back and the lower limb attributable to voluntary limitation of movement. Weakness was inconsistent. Examiner’s conclusion is that whatever injuries Mr Hawach suffered in the motor vehicle accident have resolved. His reports of impairment are not supported by the physical examination.”
As we previously noted,[11] the assessment was essentially based on the clinical examination, absence of any adverse pathology shown on the scans and the mechanism of the motor accident.
[11] See para 12 herein.
Fifthly, the claimant did not raise the allegation with the Review Panel after the examination and prior to the delivery of its Reasons. There was a two-week period for any complaint to be raised following the examination and before the medical assessment certificate was issued. The Review Panel’s reasons were issued on 30 May 2024 and the matter was only raised after the claimant was advised that he was unsuccessful.
The claimant in the further letter asserted that any delay in raising this matter has “no bearing” on the application. However, the Panel views the delay, as a factor weighing against the merits of the argument in circumstances where the issue was not raised until after the decision was issued and the claimant advised that he was unsuccessful.
If the matter is restricted to the face of the record, the reasons of the Panel do not support the bare assertion that the claimant was denied procedural fairness through the absence of an interpreter. The examination report and findings show a clear history provided by the claimant.
If the claimant is entitled to rely on matters outside the face of the record, then we do not accept the claimant’s bare submission that he requested and was denied an interpreter. The claimant’s submission, denied by Medical Assessor Stubbs, is not supported by the delay in filing the complaint and the absence of the request for an interpreter when the claimant submitted its response to the insurer’s review application.
We are not satisfied the decision is infected with jurisdictional error and there is no basis on which to reconsider the decision. The application is refused.

[2024] NSWPICMP 565

22 July 2024