Allianz Australia Insurance Limited v Gray

[2024] NSWPICMP 639

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Limited v Gray [2024] NSWPICMP 639

CLAIMANT:

Desiree Gray

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

MEMBER:

Terence O’Riain

MEDICAL ASSESSOR:

Michael Couch

MEDICAL ASSESSOR:

Shane Moloney

DATE OF DECISION:

11 September 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; treatment dispute; review of Medical Assessment Certificate (MAC); relevant dispute related to right shoulder consequential condition and left hip; claimant re-examined; discussion of causation and benefits of treatment; appropriate treatment; meaning of “reasonable and necessary in the circumstances” under section 3.24; Held – accident caused left hip injury but not right shoulder injury; both requiring treatment; MAC revoked. 

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

ASSESSMENT OF TREATMENT and CARE - CAUSATION

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

1.     The Panel revokes Medical Assessor Home’s certificate dated 7 November 2023.

2.     The Panel has made a different findings to Medical Assessor Home’s certificate dated
7 November 2023, only in respect to the following treatment and care:

·        ultrasound scans of the right shoulder received from Queensland X-ray on
20 January 2023, and

·        ultrasound of the right shoulder and HCLA injection requested in the referral dated 22 February 2023,

DO NOT RELATE TO THE INJURY caused by the motor accident on 22 July 2022.

3.     The following treatment and care:

·        ultrasound scans of the left hip received from Queensland X-ray on
20 January 2023,

RELATES TO THE INJURY caused by the motor accident.

ASSESSMENT OF TREATMENT AND CARE – REASONABLE AND NECESSARY

4.     The following treatment and care:

·        ultrasound scans the right shoulder received from Queensland X-ray on
20 January 2023, and

·        ultrasound of the right shoulder and HCLA injection requested in the referral dated 22 February 2023,

are not REASONABLE AND NECESSARY in the circumstances

5.     The following treatment and care:

·     left hip ultrasound scans requested by Queensland X-ray on 20 January 2023;

is REASONABLE AND NECESSARY in the circumstances.

6.     The Panel confirms Medical Assessor Home’s findings in his certificate dated
7 November 2023, in respect to the following treatment and care:

·        five further acupuncture sessions requested in Allied Health Recovery request dated 22 June 2023;

·        hydrotherapy requested on a referral dated 20 June 2023, and

·        10 physiotherapy sessions requested in Allied Health Recovery request dated
14 August 2023,

RELATES TO THE INJURY caused by the motor accident.

7.     The following treatment and care:

·        hydrotherapy requested on a referral dated 20 June 2023,

IS REASONABLE AND NECESSARY in the circumstances.

8.     The following treatment and care:

·        five further acupuncture sessions requested in Allied Health Recovery request dated 22 June 2023;

·        hydrotherapy requested on a referral dated 20 June 2023, and

·        10 physiotherapy sessions requested in Allied Health Recovery request dated 14 August 2023,

IS NOT REASONABLE AND NECESSARY in the circumstances

REASONS

Background

1. The claimant was injured in a motor accident on 22 July 2022. There are disputes about the claimant’s treatment.

2. The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages/statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).

3. On 20 January 2023, the claimant via her treatment providers requested the insurer’s approval to fund an ultrasound of her right shoulder and hip from the insurer. The insurer denied that treatment.

4. The claimant still undertook the treatment and incurred the cost.

5. The claimant requested an internal review of the insurer’s decision on 3 February 2023.

6. On 16 February 2023, the insurer affirmed the decision.

7. There was a dispute between the claimant and the insurer about:

   (a)whether any treatment and care relates to an injury caused by the accident under Schedule 2, s 2(b) of the MAI Act, and

   (b)whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the MAI Act.

8. Medical Assessor Home examined the claimant and produced a certificate dated
   

   [1] Section 7.26(10) of the MAI Act.

   7 November 2023. The insurer applied to refer the medical assessment to a Review Panel within 28 days after the parties were issued with the original certificate.[1]

9. Responding to the insurer’s application, the President of the Personal Injury Commission (Commission) constituted this Review Panel (the Panel) to review Medical Assessor Home’s assessment certificate (the Review) regarding treatment in respect of the right shoulder injury for certificates M10560610/23 and M10567650/23.

10. The Panel met initially on 28 March 2024 to confer on the procedure for conducting this review. The Panel noted that the parties had provided bundles of documents relevant to the assessment of the treatment disputes in respect of the right shoulder and left hip.

11. In the directions dated 27 February 2024 the Panel noted that the insurer submitted the Medical Assessor’s findings that the subject accident caused the right shoulder injury, was incorrect and disputed. The Panel had noted the other findings, which are included in the Reviews, were not disputed.

12. It was the Panel’s intention that its certificate would simply confirm the undisputed findings. The parties have not made any submissions that it should do otherwise.

13. The Panel considered re-examining the claimant could be accomplished via video to question the claimant on the history.

14. The Panel required the claimant’s treating general practitioner’s (GP) notes for two years before the accident in order to ascertain whether the claimant’s condition was symptomatic before the accident.

15. There were several attempts to arrange a Teams appointment with Ms Gray, and eventually Medical Assessors Couch and Moloney interviewed Ms Gray on 22 July 2024.

Review conduct

General

1. The MAI Act governs Ms Gray’s claims and entitlements to benefits and compensation. The legislation provides a scheme of statutory benefits (under part 3).

Treatment and care benefits

1. The mechanism for the claimant’s recovering treatment and care costs caused by the accident is through the statutory benefits claim.[2]

   [2] See s 3.42 of the MAI Act as well as ss 4.3 and 4.5.

2. Section 3.24 of the MAI Act provides as follows:

   “(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -

   (a) the reasonable cost of treatment and care, …

   (2)  No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.

Assessment under review

Treatment and care

1. Relevant to this review, Medical Assessor Home decided in his certificate of 7 November 2023 that the causation aspects of the following treatment and care disputes were as follows:

   ·        right shoulder ultrasound scans requested by Queensland X-ray on 20 January 2023;

   ·        five further acupuncture sessions requested in Allied Health Recovery request dated 22 June 2023;

   ·        hydrotherapy requested on a referral dated 20 June 2023;

   ·        right shoulder ultrasound and HCLA injection requested in referral dated 22 February 2023, and

   ·        10 physiotherapy sessions requested in Allied Health Recovery request dated 14 August 2023,

   as relating to the injury caused by the motor accident.

2. He decided the left hip ultrasound scans requested by Queensland X-ray on 20 January 2023 did not relate to injuries caused by the motor accident.

3. Medical Assessor Home in the same certificate also decided the following treatment and care:

   ·        right shoulder ultrasound scans requested by Queensland X-ray on
   20 January 2023;

   ·        hydrotherapy requested on a referral dated 20 June 2023, and

   ·        right shoulder ultrasound and HCLA injection requested in referral dated
   22 February 2023,

   were reasonable and necessary in the circumstances

4. However, he decided the following treatment and care being:

   ·        left hip ultrasound scans requested by Queensland X-ray on 20 January 2023;

   ·        five further acupuncture sessions requested in Allied Health Recovery request dated 22 June 2023;

   ·        hydrotherapy requested on a referral dated 20 June 2023, and

   ·        physiotherapy sessions requested in Allied Health Recovery request dated
   14 August 2023,

   were not reasonable and necessary in the circumstances.

5. Medical Assessor Home found the right shoulder condition was a consequential condition due to Ms Gray’s left shoulder injury. He based this on the undisputed left shoulder injury making a material contribution to the claimant developing right shoulder pain, noting her activities such as driving, and childcare work.

6. Medical Assessor Home found the right shoulder condition was a consequential condition due to her left shoulder injury. He based this on the left shoulder injury making a material contribution to the claimant developing right shoulder pain, noting her activities such as driving, and childcare work.

7. He did not express any reasons for finding the left hip treatment was not reasonable and necessary, but for the lack of a nexus with the subject accident.

Disputes and issues identified by the parties

Claimant’s submissions

1. The claimant submitted that the insurer did not take the following factors into account when it denied treatment:

   ·        the medical documentation shows a history of complaint of pain to the right shoulder and left hip region after the subject accident;

   ·        the disputed referral of Dr Ganter dated 20 January 2023 notes that the claimant has previously suffered from bursitis in her right shoulder but since the “MVA 6 months ago” is now suffering from “ongoing pain with impingement” in her right shoulder indicating that the subject accident caused a right shoulder injury;

   ·        the insurer did not make contact to clarify the necessity of the requested radiological investigations with the claimant’s treating doctor. Accordingly, initially the insurer has assessed the claimant’s injuries, without medical evidence;

   ·        clinical note entries of Redland Bay Physiotherapy support the claim that the claimant has suffered from right shoulder complaint after the accident;

   ·        on 4 October 2022, the claimant had “pain R sh” which “has been sore on and off”;

   ·        on 20 December 2022, the claimant was “c/o pain R sh” and on examination it was detected “tx rot R sl loss”;

   ·        on 9 January 2023, the claimant continued to report “R sh pain cont, pain worse”, and

   ·        the right shoulder ultrasound dated 25 January 2023 indicates that the claimant is suffering from “mild subacromial bursitis impingement on shoulder abduction”.

2. The claimant submits that the findings of the requested scans indicate that they were appropriate in the circumstances and the insurer’s decision ought to be overturned and the claimant reimbursed for her out-of-pocket expenses to undertake same.

Insurer’s submissions

1. The insurer submits the accident did not cause a left hip injury, and a left hip ultrasound could not be related to the subject accident, nor reasonable and necessary in the circumstances.

2. The insurer submitted the left hip injury was first mentioned in the Allied Health Recovery Request dated 31 January 2023, approximately five months after the accident, when the acupuncturist diagnosed “chronic reactive tension in erector spinae on LHS, referring pain to LHS hip/glute” (A1pg35).

3. The claimant did not complain of any hip pain until two months after the accident.

4. When orthopaedic surgeon Dr Adam Parr assessed the claimant on 28 February 2023, he did not mention any left hip symptoms.

5. The insurer submits the accident did not cause a right shoulder injury, and the need for a right shoulder ultrasound is related to a 2008 accident and 2015 surgery, which was aggravated by painting. Accordingly, treatment could not be reasonable and necessary in the circumstances.

6. The right shoulder was not mentioned in any certificates of capacity or other documents until October 2022, which was five months after the accident.

Documentation

1. The Review Panel considered the following documentation:

   ·        Medical Assessor Home’s certificate dated 7 November 2023;

   ·        Application for review and attached documents;

   ·        Reply and attached documents;

   ·        Presidential delegate’s reasons issued on 9 February 2024 referring this matter to a Review Panel, and

   ·        all the documents provided to Medical Assessor Home before the assessment under review.

2. There was no additional evidence.

REVIEW PANEL FINDINGS

1. Medical Assessors Couch and Moloney interviewed Ms Gray on 29 July 2024 on Microsoft Teams.

Pre-accident history

1. Ms Gray stated that there had been a previous motor vehicle accident in 2018 in Ireland. This caused an injury to the right shoulder and cervical spine. In 2015 due to continued right shoulder pain, there was an arthroscopic decompression surgery. She states that she had a good recovery after this procedure.

2. Since March 2016, Ms Gray had been working full-time in a long day childcare centre. She states that she had been physically active and a regular attender at the gym.

3. In December 2021, Ms Gray states that her right shoulder pain re-occurred after a COVID-19 vaccination. Her GP, on 22 March 2022, recorded ongoing right shoulder pain for three months and on examination there was a painful arc on testing range of movement of the right shoulder with a positive impingement. An ultrasound was organised which diagnosed bursitis and a cortisone injection was administered to the right shoulder joint. This was four months before the subject accident. Ms Gray states that she had a good recovery before the subject accident.

History of motor accident

1. On 22 July 2022 Ms Gray was a front seat passenger in a Volkswagen Polo car which was driven by a learner driver (her 16-year-old daughter). Another car failed to give way to their car resulting into T-bone collision on the left passenger front door. Left and front airbags were deployed with the impact. The car was pushed into a residential wall on the other side of the road where it stopped. Ms Gray states that at the time of the impact she reached across to pull the handbrake on. She was able to get out of the car but felt very shocked at that time with immediate pain in the left shoulder region and jaw (due to the impact of the airbag).

2. Her husband collected them and drove her home.

Subsequent history and treatment

1. A few days after the accident, Ms Gray developed neck and low back pain which radiated into the left hip/gluteal region. She first consulted her GP on 7 August 2022, and on another GP on the following day. At that time there was continued neck pain, left trapezius muscle, and left shoulder region pain but initially there was no right shoulder pain. Her GP referred her to see her physiotherapist, Mr Mifsud to treat left shoulder and low back discomfort radiating into the left gluteal region.

2. Ms Gray states that the right shoulder pain started after the accident and had been a gradual onset. She says it was precipitated by being unable to sleep on the left shoulder and so she started sleeping on the right shoulder. It was further aggravated by the drive from Sydney to Brisbane in September 2022 when she developed pain in both shoulders after this drive.

3. Her treating GP recorded on 4 October 2022 that Ms Gray had woken with right shoulder pain which had been on and off over the previous two weeks, and it was aggravated by painting and fitting curtains.

4. Her GP referred her to an orthopaedic specialist, Dr Parr who wrote on 28 February 2023 that Ms Gray had pain in the left arm and left trapezius muscle and left index finger. This was associated with low back pain, thoracic spine pain and cervical spine pain. Dr Parr recorded that the shoulders were normal on examination.

5. An MRI of the right shoulder was undertaken on 4 December 2023 which reported tendinosis, bursitis, and a small slap tear of the glenohumeral joint.

6. Her GP also referred to a shoulder specialist, Dr Dalton who examined her on 28 May 2024. He apparently diagnosed injuries to both shoulders, but no follow-up has been undertaken. Ms Gray says she does not tolerate lactose and recently was prescribed Naprosyn, which was tolerated, and this gave her general relief to both shoulders.

Further injuries

1. There was another motor vehicle accident on 19 March 2024. Her husband was driving at the time and she was a front seat passenger when a car failed to give way resulting in a T-bone collision on the driver side. She states that this was hit-and-run. Since that accident, her cervical pain has increased with tingling and numbness down the left arm as well as increasing left-sided low back pain which radiates to the top of the left leg. She said her treating specialist is arranging for an epidural injection and possible radiofrequency nerve ablation.

2. Before this accident, Ms Gray had not returned to work but recently had returned to childcare three days per week and she avoids any heavy lifting.

Current treatment

1. She takes more analgesia since the accident in March 2024 and at present she is taking Panadeine Forte three per day and occasionally MS Contin as well as Naprosyn. Physiotherapy has been restarted since the second accident.

2. Ms Gray states that she has been attending Pilates classes four to five times a week.

3. Dr Parr had recently organised cortisone injections at the C5/6/7 level which resulted in a 60% decrease of her cervical pain.

4. Ms Gray added that since the subject accident in 2022 she has suffered from post-traumatic stress disorder and becomes tense when driving. However, deep tissue massage helps her relax and enables her to return to work. She also stated that the initial low back pain on the left was in fact a gluteal muscle tear which has become chronic.

Panel deliberations

1. The Panel adopted Medical Assessors Moloney’s and Couch’s report as evidence in this review. This was discussed in a further Teams conferences on 30 August 2024.

2. The Panel had previously considered that the right shoulder was not injured in the subject accident. After interviewing the claimant that opinion is confirmed.

3. There was an obvious right shoulder bursitis which was diagnosed four months before the subject accident.

4. None of the treating doctors documented a right shoulder condition after the subject accident and the only referral of pain from the cervical spine was a radiation into the left trapezius muscle and shoulder region.

5. The claimant’s submissions are that the accident caused the right shoulder condition simpliciter. The claimant’s submissions do not specify whether it is a traumatic injury, or an overuse injury caused by relying on the right shoulder to perform tasks that the claimant could not perform with her left shoulder, which was directly injured. The submissions do not address whether the subject accident caused a material aggravation of the undoubted existing right shoulder condition.

6. The claimant speaks obliquely of pain in the right shoulder after she had hung curtains and painted a wall. She does not indicate whether she would normally use her left hand to perform those tasks.

7. Medical Assessor Home found the left shoulder injury, which was detected immediately after the accident created a consequential right shoulder injury.

8. The legal Member referred the Medical Assessors to the principles of causation set out in the Guidelines, at cl 6.7, in particular that the subject accident does not have to be the sole cause of a condition, but it can be a contributing cause, as long as the impact is not negligible. The authorities on causation summarised in Appendix A of this decision refer to medical review panels deciding whether it is medically possible for the condition to occur consequentially, and if it is, then the panel must weigh the evidence to see if it satisfies the balance of probabilities.

1. In workers compensation claims for overuse injuries in respect of an initially uninjured shoulder becoming symptomatic due to shifting reliance from the traumatic injured shoulder are regularly accepted.

2. Members in that jurisdiction frequently apply the dicta of Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang). In Kooragang Kirby P said at [462]:

   “It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”

3. The lack of complaints to healthcare providers until four months after the subject accident about the right shoulder indicates that it was not a traumatic injury.

4. The evidence is that the insurer accepts the claimant injured her left shoulder in the subject accident, and the claimant told this panel’s Medical Assessors that she had been forced to sleep on her right side because the left side was too painful, but the Medical Assessors did not record that she related that to the subject accident, unless the Panel can infer a complaint about the left shoulder is a complaint about the subject accident.

5. The claimant referred to other aggravating incidents, but the Panel must consider whether on the balance of probabilities, and not scientific certainty, there is a more than negligible contribution from the subject accident in causing problems for the right shoulder.

6. The Panel notes the history given by Ms Gray that her right shoulder pain started after painting about 10 weeks after the accident which was recorded by her treating physiotherapist. Due to the previous evidence of bursitis with an ultrasound in January 2022 and prior arthroscopic decompression, the Panel has determined that there was pre-existing bursitis with an unchanged ultrasound of the right shoulder on 25 January 2023.

7. A treating orthopaedic surgeon Dr Parr on 28 February 2023 observed pain in the left trapezius muscle and left arm radiating from the neck and recorded the shoulders were normal on examination. He recorded no pain or movement limitation in the right shoulder or right arm six months after the accident. The Medical Assessors of the Panel considered that there is an ongoing chronic bursitis in the right shoulder which started years before the accident and is liable to flareup with overuse but not related to the subject accident.

8. In respect of causation in the left hip the Panel considered the mechanism of the accident was sufficient to injure that body part. The force of the collision was on that side of the claimant’s body.

9. The collision on the left side of the vehicle was severe. It triggered the left airbags deploying and resulted in immediate complaints about the lower back and left side of the pelvis.

10. Further, in respect of the delayed reports about the left hip, it was common experience for the Panel’s Medical Assessors that they saw in their patients that hips could be “grumbly” and become painful intermittently. Accordingly, the treatment for the left hip was causally related to the subject accident. The treating GP, Dr Rasa recorded left buttock pain on 8 August 2022 which is two weeks after the accident. The subsequent ultrasound recorded tendinitis in the left gluteus medius muscle.

11. In respect of treatment being reasonable and necessary, the Panel considered the workers compensation case of Diab v NRMA Ltd[3] at [88] where the late learned Deputy President Bill Roche set out the following factors which are relevant to assessing whether treatment is appropriate:

    (a)the appropriateness of the treatment in dispute;

    (b)the availability of alternative treatment;

    (c)the cost effectiveness of the treatment;

    (d)the actual or potential effectiveness of the treatment, and

    (e)the acceptance by medical experts of the appropriateness of the treatment.

    [3] [2014] NSWWCCPD 72.

12. Although, the decision deals with the workers compensation legislation, it provides a framework which panels can apply to this jurisdiction.

13. The s 3.24 MAI Act words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant in the proceedings before the Panel.

14. Although, the Panel found that the right shoulder condition was not related to the subject accident it noted the proposed treatment would have been appropriate in the circumstances to treat the right shoulder bursitis condition. It would be reasonable and necessary for the purposes of the MAI Act if the accident had caused or made a material contribution to the aggravation of that condition.

15. The left hip condition is causally related to the subject accident and the treatment sought is reasonable and necessary in the circumstances to diagnose the claimant's injury.

16. The Panel notes the early onset of left buttock pain recorded by the treating GP and no pre-existing injury in this region. The ultrasound was beneficial in determining the tendinosis of the gluteus medius muscle and no clinical trochanteric bursitis or hip joint effusion. The ultrasound of the left hip is more diagnostic of the supporting muscles of the joint rather than the actual hip joint itself.

Treatment – causation

1. The Review Panel’s findings differ from Medical Assessor Home’s related treatment certificate in relation to whether the 2022 accident caused an injury to the right shoulder and left hip requiring the treatment provided, or to be provided.

2. The Review Panel will issue a new treatment and care certificate, which will affirm Medical Assessor Home’s findings on the balance of the treatments he addressed as being causally related to the subject accident.

Treatment and care – reasonable and necessary

1. The Review Panel’s findings differ from Medical Assessor Home’s related treatment in relation to whether the treatment provided, or to be provided is reasonable and necessary.

2. The Review Panel will issue a new certificate in respect of whether the proposed treatment for the right shoulder and left hip is reasonable and necessary.

3. The Review Panel will affirm Medical Assessor Home’s findings on the balance of the treatments as to whether they are reasonable and necessary.

Review Panel certification

1. Member O’Riain, Medical Assessor Maloney and Medical Assessor Couch have viewed these certificates and confirmed that they agree with the outcome.
   

APPENDIX A

Statutory Provisions and authorities

Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 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.

6.7 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.”

Although these do not relate directly to assessing causation in treatment disputes, they carry weight as indicating relevant considerations. Further, ss 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.

The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.

Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation.”

The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:

“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:

“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’

71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’

Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.

Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.

Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.