AAI Limited v Fraser

[2021] NSWSC 938

Supreme Court

New South Wales

Medium Neutral Citation:

AAI Limited v Fraser [2021] NSWSC 938

Hearing dates:

16 July 2021

Date of orders:

30 July 2021

Decision date:

30 July 2021

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court makes:

(1) An order in the nature of certiorari quashing the decision and certificate of the second Medical Review Panel dated 12 December 2020.

(2) An order in the nature of mandamus remitting the matter to the President of the Personal Injury Commission of New South Wales for referral to a differently constituted Medical Review Panel for determination of the impairment dispute according to law.

(3) No order as to costs.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Jurisdictional error – Error of law on the face of the record – Remedies – Certiorari – Mandamus

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), ss 44, 63, 106, 131, 133

Cases Cited:

Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356

Rodger vDe Gelder [2015] NSWCA 211

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 143; 252 CLR 480

Category:

Principal judgment

Parties:

AAI Limited (Plaintiff)
David Fraser (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
A Medical Review Panel comprising of Dr Cameron, Dr Kenna and Dr Stubbs appointed by SIRA (Third Defendant)

Representation:

Counsel:
K Rewell SC (Plaintiff)

Solicitors:
Nilsson Lawyers (Plaintiff)
Submitting Appearance (First Defendant)
Crown Solicitor – Submitting Appearances (Second & Third Defendants)

File Number(s):

2021/63775

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a judicial review of a Medical Review Panel of the President of the Personal Injury Commission of New South Wales.

2. By amended summons filed 16 March 2021, the plaintiff seeks:

1. An order in the nature of certiorari, or alternatively a declaration, setting aside or declaring invalid the decision of the third defendant, a Medical Review Panel appointed by the second defendant, namely the certificate of the third defendant dated 12 December 2020 assessing the impairment dispute between the parties; and

2. An order that the matter be remitted to the second defendant for allocation to a different Medical Review Panel for determination of the impairment dispute according to law.

   3. The plaintiff is AAI Limited (“the insurer”). The first defendant is David Fraser (“Mr Fraser). The second defendant is the President of the Personal Injury Commission of New South Wales (“the Commission”). The third defendant is a Medical Review Panel comprising of Dr Cameron, Dr Kenna and Dr Stubbs appointed by SIRA (“the second Medical Review Panel”). Mr Keith Rewell SC appeared for the insurer. All defendants have filed submitting appearances. Hence, there is no real contradictor.

   4. The Medical Assessor and the first Medical Review Panel assessed Mr Fraser’s injuries at 10% WPI. The second Medical Review Panel assessed Mr Fraser’s injuries above the 10% threshold thus entitling him to an award for non economic loss.

   5. The significance of 10% is due to s 131 of the Motor Accidents Compensation Act 1999 (NSW). It reads

   “Part 5.3 Damages for non-economic loss

   131 Impairment thresholds for award of damages for non-economic loss

   No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

   …”

Background

6. On 9 January 2017, Mr Fraser alleges that he suffered physical injuries, including injuries to his right shoulder and left hip, in a motor accident. He seeks damages from the insurer under the Motor Accidents Compensation Act. The insurer is the third party insurer of the vehicle at fault.

7. The insurer disputes that Mr Fraser suffers greater than 10% whole person impairment (“WPI”) arising from the injuries caused by the accident, being the threshold for damages for non economic loss (“the impairment dispute”).

8. The impairment dispute has been assessed three times by the Medical Assessment Service (“MAS”). This current judicial review involves Mr Fraser’s injuries to his right shoulder and left hip. It is the third assessment by the second Medical Review Panel that is the subject of this judicial review.

The first assessment by the Medical Assessor

9. On 24 July 2019, Mr Fraser was first assessed by Dr Assem (“{the MedicalAssessor”). The Medical Assessor recorded the active range of motion of both the right and left shoulders. They were identical. The Medical Assessor put to Mr Fraser that there was no medical record of any complaint of right shoulder symptoms until two months after the accident. Mr Fraser could not explain the absence of contemporaneous evidence of right shoulder pain.

10. Mr Fraser complained of pain over his left hip. The Medical Assessor measured the range of motion of both hips. Internal rotation of the left hip was slightly restricted compared to the right. Other movements were identical.

11. The Medical Assessor noted that there was no clinical record of any complaint of right shoulder pain for two months after the accident on 9 January 2017, and no clinical record of any complaint concerning the left hip until five months after the accident.

12. The Medical Assessor accepted that Mr Fraser suffered injuries to his right wrist, left knee and left ankle caused by the accident, which he assessed as giving rise to 10% whole person impairment (“WPI”). The Medical Assessor determined that Mr Fraser did not suffer any injury to his right shoulder or left hip caused by the accident. The Medical Assessor’s assessment of impairment was insufficient to entitle Mr Fraser to damages for non economic loss.

The second assessment by the first Medical Review Panel

13. Mr Fraser was granted a review of the Medical Assessor’s assessment by a medical review panel under s 63 of the Motor Accidents Compensation Act.

14. On 16 December 2019, a Medical Review Panel comprising Drs McGrath, Moloney and Crane (“the first Medical Review Panel”) assessed the impairment dispute on 16 December 2019.

15. The first Medical Review Panel agreed with the Medical Assessor that Mr Fraser did not suffer any injury to his right shoulder or left hip caused by the accident.

16. The first Medical Review Panel assessed total impairment of 7% arising from injuries to the right wrist, left patella, left knee, left ankle and left hind foot. Again, this was insufficient to entitle Mr Fraser to damages for non economic loss.

17. On 17 March 2020, Mr Fraser filed a summons in the Supreme Court, seeking a judicial review and orders setting aside the certificate of the first Medical Review Panel.

18. Mr Fraser was successful in those proceedings: see Fraser v AAl Limited t/as GIO as agent for the Nominal Defendant [2020] NSWSC 1333. The matter was remitted to SIRA for allocation to a different review panel for determination of the impairment dispute.

The third assessment by the second Medical Review Panel

19. The impairment dispute was next assessed by a medical review panel comprising Drs Cameron, Kenna and Stubbs (“the second Medical Review Panel”). On 12 December 2020 the second Medical Review Panel issued its certificate assessing Mr Fraser’s WPI at 12%. That means Mr Fraser exceeds the threshold of a 10% WPI and is entitled to economic loss.

20. I shall set out the reasons in relation to the right shoulder and then the grounds of judicial review, followed by the left hip reasons and the grounds of judicial review. The grounds of judicial review in relation to the right shoulder and left hip are similar.

The decision of the second Medical Review Panel

21. Unlike the Medical Assessor and the first Medical Review Panel, the second Medical Review Panel found that Mr Fraser did suffer injuries to his right shoulder and left hip caused by the accident on 9 January 2017, as well as injuries to his right wrist, left knee and left ankle.

22. On 10 November 2020, Drs Cameron and Kenna, examined Mr Fraser via Skype. Mr Fraser informed Drs Cameron and Kenna that he had right shoulder and left hip pain from the day of the accident onwards. This recollection differs from what he had told the Medical Assessor.

23. There is no contemporaneous medical record of any right shoulder pain until two months after the accident, as recorded by the Medical Assessor and by the first Medical Review Panel.

24. Mr Fraser told Drs Cameron and Kenna that he had no symptoms in his left hip initially, because he was not physically active for three months after the accident.

25. There is no contemporaneous medical record of any symptoms in the left hip for five months after the accident, as recorded by the Medical Assessor and the first Medical Review Panel.

26. When Drs Cameron and Kenna asked Mr Fraser to move his shoulders, there were significant inconsistencies, and movements were not reproduced on repeat testing. Mr Fraser considered that the range of movement as measured could not be used as a reliable indicator of impairment.

27. Drs Cameron and Kenna measured the range of movement of Mr Fraser’s hips. Movements of the left hip were different from the right, but each hip had a greater range of movement than the other in some planes.

28. In determining causation of the symptoms in the right shoulder, Mr Fraser said that based on his memory (from approximately 3 years and 9 months ago) he had also suffered an injury to his right shoulder.

29. As to the left hip, Mr Fraser said that he believed he injured his left hip. He said the mechanism of injury meant that there were also injuries to other parts of his body.

30. While questioning the accuracy of Mr Fraser’s recollection from such a long time ago, particularly when compared with the contemporaneous clinical records (or lack thereof), the second Medical Review Panel accepted albeit with some hesitancy, Mr Fraser’s recollection that he suffered symptoms in his right shoulder and left hip at or soon after the time of the accident, despite the absence of any contemporaneous medical record of either.

31. Under the heading “Panel Deliberations”, the second Medical Review Panel stated:

“The Panel reviewed the results of the reassessment, including the history provided by Mr Fraser at a subsequent teleconference.

Causation: The Panel confirmed that causation is established with reference to:

•   the right wrist, left knee and left ankle

•   Based on Mr Fraser’s memory from approximately 3 years and 9 months ago he said he also has an injury to his right shoulder.

•   He said that be believes he injured his left hip. He said the mechanism of injury meant that there were also injuries to other parts of his body.

The Panel accepted Mr Fraser's statements although it did question the accuracy of Mr Fraser's recall from a long time ago when compared with the contemporaneous clinical records.”

Right shoulder

32. Under the heading “Examination” the second Medical Review Panel set out its findings in relation to the right shoulder and left hip. They are as follows.

“SHOULDERS

With regards to the shoulders, there was complaint over the right shoulder anteriorly but no joint crepitation noted. The right shoulder was examined simultaneously with the left and as noted above, the range of movements were also identical. Initial ranges of movement are as listed.

Right Shoulder

Measurement   Reference (4th ed.)   Normal

Flexion	140°	Figure 38 (43)	180°
Extension	20°	Figure 38 (43)	50°
Adduction	20°	Figure 41 (44)	50°
Abduction	120°	Figure 41 (44)	180°
Internal Rotation	40°	Figure 44 (45)	90°
External Rotation	60°	Figure 44 (45)	90°
Total

Goniometer measured

Left Shoulder

Measurement	Reference (4th ed.)	Normal
Flexion	140°	Figure 38 (43)	180°
Extension	25°	Figure 38 (43)	50°
Adduction	35°	Figure 41 (44)	50°
Abduction	120°	Figure 41 (44)	180°
Internal Rotation	50°	Figure 44 (45)	90°
External Rotation	70°	Figure 44 (45)	90°
Total

Goniometer measured

If these movements produced considerable fatigue but because of initial inconsistencies, there was an attempt at repeating them. However, as noted subsequent to this for the right shoulder forward flexion was only 100° (as opposed to 140° previously). Abduction was also 110". On the left, forward flexion again was limited to 110° and abduction to 110°. External rotation was reduced on the right upon repetition to 45° and to 45° on the left.

When asked about such, he stated he had increasing pain and inability to perform those maneuvers.

It was considered, therefore, that range of movement could not be used as a reliable indicator, but it is to be noted that the ranges of movement initially were symmetrical between the right and left shoulders.”

33. Under the heading “Panel Deliberations”, the second Medical Review Panel stated:

“Right shoulder - soft tissue injury

Due to pain, movements of this shoulder were inconsistent. In this regard the Motor Accident Permanent Impairment Guidelines, section 1.40, page 12 are noted: "Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of claimants' efforts. The Assessor must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the Assessor should modify the impairment estimate accordingly, describing the modification and outline the reasons in the impairment evaluation report". It is, in the judgment of the assessor, not appropriate to rely on the measured range of motion in this case.

The clinical information does not show that there are major significant pathological changes present in this shoulder. Therefore the assessment of permanent impairment is made by analogy and it is determined that the impairment would be equivalent to mild crepitation (Section 6.24, page 96 of the Motor Accidents Permanent Impairment Guidelines) and see Table 19 page 59 AMA4 Guides) at the acromioclavicular joints (see Table 18, page 58 AMA4 Guides) and therefore would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation.”

The current grounds of judicial review

34. The grounds of judicial review are that the second Medical Review Panel:

1. Erred in determining causation of the alleged right shoulder injury;

2. Failed to provide adequate reasons for its decision on causation of the alleged right shoulder injury;

3. Erred in determining causation of the alleged left hip injury; and

4. Failed to provide adequate reasons for its decision on causation of the alleged left hip injury.

35. Judicial grounds of review (1) and (2) related to the right shoulder injury. Judicial grounds of review (3) and (4) raise similar arguments as (1) and (2) but in relation to the left hip injury.

36. This is the third assessment by the second Medical Review Panel that is the subject of this judicial review.

Ground (1) – causation – right shoulder

37. Section 133 of the Motor Accidents Compensation Act reads:

“133 Method of assessing degree of impairment

(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.

(2) The assessment of the degree of permanent impairment is to be made in accordance with:

(a) Motor Accidents Medical Guidelines issued for that purpose, or

(b) if there are no such guidelines in force--the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.

(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.”

The relevant Guidelines

38. The SIRA Motor Accident Permanent Impairment Guidelines (“the Permanent Impairment Guidelines”), as at 1 June 2018, made pursuant to s 44(1)(c) of the Motor Accidents Compensation Act, apply to the assessment of permanent impairment disputes by virtue of ss 133 and 106(1) of the Motor Accidents Compensation Act. The Court of Appeal has held that a failure to comply with these guidelines may constitute a constructive failure to perform a statutory duty: see Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356 at [9], [16-22], [44], [49], [51], [56], [108].

39. The SIRA Medical Assessment Guidelines (“the Medical Assessment Guidelines”), as at 1 October 2008, made pursuant to ss 44(1)(d) and 65(1) of the Motor Accidents Compensation Act, apply to medical assessments conducted pursuant to the Act.

40. Clauses 1.5, 1.6 and 1.7 of the Permanent Impairment Guidelines refer to causation. They read:

“Causation of injury

1.5   An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

1.6   Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1.   The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

2.   The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’

This, therefore, involves a medical decision and a non-medical informed judgement.

1.7   There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

41. In Rodger vDe Gelder [2015] NSWCA 211 (“De Gelder”), the Court of Appeal stated at [18] and [91]:

“18 Before the primary judge little attention was given by the parties, at least in their written submissions, to the status of the Permanent Impairment Guidelines for the purpose of Mr De Gelder’s application for judicial review. Mr Rodger contended that the Panel did apply each section of cl 1.8 of the Permanent Impairment Guidelines “as required by law”. The reference to “each section of cl 1.8” may be taken to be a reference to the medical determination and the non-medical determination with respect to causation. Counsel for Mr Rodger accepted that the non-medical determination referred to in cl 1.8(b) is essentially a non-medical factual question (tcpt CA at 7, lines 23 – 25).

…

91 As cl 1.8 of the Permanent Impairment Guidelines makes clear, the causation issue involves both a medical determination and a non-medical determination. Here, what is in issue is the non-medical determination by the Panel that Mr De Gelder’s thoracic spine injury was not caused by the motor accident.”

42. The non medical determination is in the nature of a factual enquiry, and a medical practitioner's specialised knowledge is not determinative of this factual enquiry.

The insurer’s submissions

43. The insurer submitted that the second Medical Review Panel resolved the factual enquiry by simply accepting Mr Fraser’s statement that he had an immediate onset of right shoulder pain after the accident on 9 January 2017, despite there being no contemporaneous medical record of any such complaint.

44. Having determined the factual enquiry in that manner, the second Medical Review Panel did not proceed with, or alternatively did not complete, the medical enquiry.

45. The second Medical Review Panel noted that the ranges of movement of Mr Fraser’s shoulders on examination were so inconsistent (as can be seen from the measurements reproduced earlier in this judgment) that they could not be relied upon as a measure of impairment of the right shoulder. It noted that there was no evidence of any pathology in the right shoulder to explain any limitation of the range of movement of that shoulder.

46. The second Medical Review Panel did not have any radiological evidence establishing any pathology in the right shoulder or supporting any complaints of pain or limitation of movement of that shoulder.

47. The insurer submitted that the second Medical Review Panel did not explain, or attempt to explain, how or why it could accept any accident-related impairment of the right shoulder for which there is no pathological basis and no reliable clinical signs. Instead, simply stating, “Therefore the assessment of permanent impairment is made by analogy, and it is determined that the impairment would be equivalent to mild crepitation ... There is no other available method of measurement by analogy applicable in this situation.”

48. In this way, the second Medical Review Panel assessed 2% impairment of the right shoulder caused by the accident.

49. According to the insurer, before the second Medical Review Panel could proceed to assess the degree of impairment by analogy, it had to identify the medical basis on which it determined that any impairment was caused by injury suffered in the accident. The second Medical Review Panel omitted this step entirely. Put another way, the second Medical Review Panel did not complete the medical enquiry it was required to complete.

50. By not doing so, the insurer submitted that the second Medical Review Panel therefore failed to determine causation of a right shoulder injury as it was required to do under the Permanent Impairment Guidelines issued by SIRA. That was an error of law, or alternatively a jurisdictional error in failing to complete its statutory task, and the decision of the second Medical Review Panel should be set aside.

Consideration

51. The Medical Review Panel reluctantly accepted the history provided by Mr Fraser that, based on his memory from approximately 3 years and 9 months ago, he had said that he also had an injury to his right shoulder. The second Medical Review Panel accepted Mr Fraser’s statements although it did question the accuracy of Mr Fraser’s recollection from a long time ago when compared with the contemporaneous clinical records. The second Medical Review Panel addressed the factual determination component of its decision.

52. Turning to the medical determination, the second Medical Review Panel found that the results on examination of the right shoulder were unreliable and inconsistent. There was not any radiological evidence of injury to the right shoulder. The clinical information did not show that there was major significant pathological changes present in the shoulder. The second Medical Review Panel therefore decided that the assessment of permanent impairment was to be made “by analogy”. It determined that the impairment would be equivalent to mild crepitation at the acromioclavicular joints and therefore would be 10% of 25 % upper extremity impairment (“UEI”), which rounded to 3% UEI and converted to 2% WPI. There was no other available method of measurement by analogy applicable.

53. While the second Medical Review Panel found that Mr Fraser suffered a soft tissue injury to his right shoulder it did not articulate how that led to any impairment. The second Medical Review Panel did not identify any medical abnormality of the right shoulder that was related to the accident. It did not articulate how the right shoulder injury was caused or materially contributed to by the motor accident In these circumstances it is my view that the second Medical Review Panel fell into jurisdictional error in failing to carry out its statutory duty.

Ground (2) – failure to provide adequate reasons – right shoulder injury

54. In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 143; 252 CLR 480 (“Wingfoot”), the High Court considered the obligation of a Medical Panel (or the Medical Assessor) and said at [47] and [55]:

“47 The function [of a medical panel] is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

…

55 The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”

The insurer’s submissions

55. The insurer submitted that the second Medical Review Panel in its reasons simply accepted the assertion by Mr Fraser that he suffered right shoulder pain from the day of the accident (despite the absence of any contemporaneous medical record of such complaint), and then proceeded to quantify impairment of the right shoulder by analogy.

Consideration

56. An essential element of a path of reasoning is absent; the second Medical Review Panel did not identify how or why any accident related impairment of the right shoulder exists in the absence of any reliable clinical finding, radiological finding or identifiable pathology that would support any complaint of pain in the right shoulder, or any limitation of the range of motion of the right shoulder in any plane.

57. The actual path of reasoning has not been identified. This is an error of law on the face of the record and on this basis the decision of the second Medical Review Panel in relation to the right shoulder should be set aside.

Left Hip

58. Under the heading “Hips” the Medical Review Panel on examination made the following findings:

“Right Hip

Gait was unaffected. The patient was able to walk on toes and heels.

MOVEMENT	RETAINED
Flexion	90º
Backward Extension	0º
Abduction	40 º
Adduction	60º
Internal rotation	0º
External rotation	40º

•   No short leg

•   Normal gait

•   No atrophy of right lower extremity as compared to left

•   No evidence of muscle weakness right hip/thigh

•   Restricted range of movement of right hip (see chart)

•   No evidence of arthritis or degenerative joint disease

•   Amputation - there was amputation of the right great toe

•   Diagnosis based assessment - not relevant

•   No evidence of neurological disability right lower extremity or right hip

•   No evidence of reflex sympathetic dystrophy right hip, right lower extremity

Chapter 3, Page 75-89, 3.2a to 3.2m

Left Hip

Gait was unaffected. The patient was able to walk on toes and heels.

MOVEMENT	RETAINED
Flexion	100°
Backward Extension	0°
Abduction	30°
Adduction	30°
Internal rotation	20°
External rotation	30°

•   No short leg

•   Normal gait

•   No atrophy of left lower extremity as compared to right

•   No evidence of muscle weakness left hip/thigh

•   Restricted range of movement of left hip (see chart)

•   No evidence of arthritis or degenerative joint disease

•   Amputation - not relevant

•   Diagnosis based assessment - not relevant

•   No evidence of neurological disability left lower extremity or left hip

•   No evidence of reflex sympathetic dystrophy left hip, left lower extremity

•   No evidence of peripheral vascular condition left lower extremity

With regards to any muscle wasting, measured 10cm above the superior pole of the patella, left thigh was 48cm, right thigh was 47cm. Measured 10cm below the inferior police of the patella, both calves were 38cm bilaterally.”

Left hip - soft tissue injury

At the left hip range of motion was flexion 100 degrees, extension 0 degrees, internal rotation 20 degrees, external rotation 20 degrees, adduction 30 degrees and abduction 30 degrees. With reference to Table 40, page 78 AMA4, there is a "mild" hip impairment that is evaluated at 2% WPI.”

Ground (3) – causation - left hip

59. The second Medical Review Panel resolved the factual enquiry it was required to make in relation to the left hip by accepting Mr Fraser’s statement that he suffered pain in his left hip once he resumed physical activity after the accident, despite the fact that there is no medical record of any complaint of any left hip pain for five months after the accident.

60. When the second Medical Review Panel examined Mr Fraser’s hips, it found some limitation of movement of each hip, but nothing of clinical significance. The ranges of movement of the left hip and right hip were different, but each hip was better and worse than the other in different planes.

The insurer’s submissions

61. The second Medical Review Panel did not attempt or did not complete the medical enquiry it was required to make. It produced a range of measurements of a range of movements and then a number 2%. That is not an explanation especially when the range of movement is plainly equivocal at best, meaningless at worst. It is meaningless in the left hip because the range of movement in the right hip is the same or better than the left hip (T8.24-31).

62. The insurer submitted that the second Medical Review Panel did not identify any accident-related radiology or pathology in relation to Mr Fraser’s left hip.

63. Having accepted Mr Fraser’s history, the second Medical Review Panel simply proceeded to assess a “mild” impairment of the left hip of 2%. It did not comment on the similar restriction of movement in different planes of the uninjured right hip.

64. By failing to complete, or even attempt, the medical enquiry as to causation second Medical Review Panel was required to make, it fell into legal error, or alternatively, fell into jurisdictional error by failing to complete its statutory task, and its decision should be set aside.

Conclusion

65. In so far as the medical examination is concerned, the second Medical Review Panel did not identify an accident related radiology or pathology in relation to Mr Fraser’s left hip. The second Medical Review Panel proceeded to diagnose a soft tissue injury and assessed a 2% WPI. It did not explain how it could do so when the range of movement in the right hip is the same or better than the left hip or articulate how the left hip injury was caused or materially contributed to by the motor vehicle accident. In failing to do so it is my view that the second Medical Review Panel fell into jurisdictional error by failing to complete its statutory task.

Ground 4 – failure to provide adequate reasons – left hip injury

The insurer’s submissions

66. The insurer submitted that once again the second Medical Review Panel simply proceeded from its acceptance of Mr Fraser’s history to an assessment of impairment of the left hip.

67. This is not a path of reasoning on the question of causation.

Conclusion

68. The second Medical Review Panel did not articulate how the accident on 9 January 2017 caused any injury to the left hip, nor did it identify any radiology or pathology that could have been caused by the accident, nor did it attempt to do so.

69. The second Medical Review Panel did not attempt to explain how or why the symptoms of which Mr Fraser complained affecting the left hip, or the limitation of movement of the left hip in some planes, was or could have been caused by an injury in the motor accident. The second Medical Review Panel did not explain the limitation of movement in some planes of the uninjured right hip, and how those findings could be differentiated from the findings in the left hip.

70. The second Medical Review Panel’s path of reasoning in relation to causation of the left hip injury was left unexplained. This is an error of law on the face of the record, and its decision should be set aside.

Result

71. The result is that I have identified errors that have been made by the second Medical Review Panel in all judicial review grounds. The decision and the certificate of assessment of the second Medical Review Panel issued on 12 December 2020 is quashed.

Differently constituted Medical Review Panel

72. For these reasons I am satisfied that each of the grounds of judicial review have been made out. It is necessary to quash the second Medical Review Panel’s certificate and to remit the matter for determination according to law. Although this Court is always reluctant to interfere with matters of internal management of the Medical Assessment Service, given the second Medical Review Panel’s formulated views, I am of the view that the interests of justice require the further determination of the questions raised by a differently constituted Review Panel.

73. The matter is remitted to the President of the Personal Injury Commission of New South Wales for referral to a differently constituted Medical Revew Panel for determination of the impairment dispute according to law.

Costs

74. The parties do not seek costs. In these circumstances, the appropriate order is that there be no order for costs.

The Court makes:

1. An order in the nature of certiorari quashing the decision and certificate of the second Medical Review Panel dated 12 December 2020.

2. An order in the nature of mandamus remitting the matter to the President of the Personal Injury Commission of New South Wales for referral to a differently constituted Medical Review Panel for determination of the impairment dispute according to law.

3. No order as to costs.

**********

Decision last updated: 30 July 2021