Allianz Australia Insurance Limited v Susak

[2024] NSWSC 1359

Supreme Court

New South Wales

Medium Neutral Citation:

Allianz Australia Insurance Limited v Susak [2024] NSWSC 1359

Hearing dates:

18 October 2024

Date of orders:

29 October 2024

Decision date:

29 October 2024

Jurisdiction:

Common Law

Before:

Griffiths AJA

Decision:

(1) The summons filed on 30 April 2024 is dismissed.

(2) The plaintiff is to pay the first defendant’s costs.

Catchwords:

ADMINISTRATIVE LAW — judicial review — summons seeking judicial review for error of law on the face of the record or a constructive failure to exercise jurisdiction — whether a review panel of the Personal Injury Commission constituted under the Motor Accident Injuries Act 2017 (NSW) fell into jurisdictional error, failed to exercise its statutory powers or failed to give adequate reasons

TRAFFIC LAW AND TRANSPORT — traffic law — Motor Accident Injuries Act 2017 (NSW) — meaning of “threshold injury” under s 1.6 — whether claimant’s radiculopathy caused by motor accident — where Medical Assessor found radiculopathy present after motor vehicle accident

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5D, 5E

Motor Accident Guidelines (version 9.2), Pts 5, 6

Motor Accident Injuries Act 2017 (NSW), s 1.6; Pt 7, Div 7.5; Sch 2, cl 2(e)

Motor Accident Injuries Regulation 2017 (NSW), reg 4(1)

Cases Cited:

AAI Limited v Fitzpatrick [2015] NSWSC 1108

Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329

Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245

Allianz Australia Insurance Ltd v Salucci [2023] NSWSC 1593

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177

Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148

David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227

Dranichnikovv Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088

Frostv Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39

Insurance Australia Group Ltdt/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765

Jarvis v Allianz Australia Insurance Limited [2022] NSWCA 232

Lederer v Insurance Australia Limited trading as NRMA Insurance [2022] NSWSC 322

Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22

Rodger v De Gelder [2015] NSWCA 211

Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031

Western NSW Local Health District v Roberts [2023] NSWSC 452

WingfootAustralia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55

Texts Cited:

American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed, 1995)

Category:

Principal judgment

Parties:

Allianz Australia Insurance Limited (Plaintiff)
Zoran Susak (First Defendant)
Cameron Thompson, Ian Cameron and Mohammed Assem as a Review Panel constituted under s7.26 of the Motor Accident Injuries Act 2017 (Second Defendant) (Submitting appearance)
President of the Personal Injury Commission of New South Wales (Third Defendant) (Submitting appearance)

Representation:

Counsel:
J Gumbert (Plaintiff)
M Robinson SC / J Isackson (First Defendant)

Solicitors:
Moray & Agnew (Plaintiff)
NSW Compensation Lawyers (First Defendant)
Crown Solicitor for New South Wales (Second and Third Defendants)

File Number(s):

2024/159155

Publication restriction:

Nil

 Decision under review 

Court or tribunal:

New South Wales Personal Injury Commission

Jurisdiction:

Appeal Panel

Date of Decision:

7 February 2024

Before:

Member Cameron Thompson
Medical Assessor Ian Cameron
Medical Assessor Mohammed Assem

File Number(s):

R-M10498296/22

JUDGMENT

1. The plaintiff (the insurer) seeks judicial review of a decision dated 7 February 2024 by a review panel (Review Panel) of the Personal Injury Commission (PIC). The Review Panel was constituted by a member and two medical assessors. The primary issue in dispute is whether an injury suffered by the first defendant (whom I shall refer to as the claimant) in a motor vehicle accident on 12 June 2020 was a “threshold” injury for the purposes of s 1.6 of the Motor Accident Injuries Act 2017 (NSW) (MAI Act). This issue involves a question of causation relating to radiculopathy which is at the heart of the insurer’s judicial review complaints. The definition of “threshold injury” and other related issues were recently considered in Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245.

2. In brief, the insurer contends that there are several jurisdictional errors and/or errors of law on the face of the record which vitiate the Review Panel’s decision. Alternatively, it contends that there was a constructive failure to exercise jurisdiction.

Background facts summarised

3. The claimant claimed that he had sustained several injuries as a result of the accident which occurred when the car in which he was a backseat passenger was hit from behind by another motor vehicle. In his application for personal injury benefits, the claimant said that as a result of the accident he sustained injuries to his neck, middle and lower back and left and right shoulders, and psychological injury.

4. The insurer disputed that any of the claimed injuries were non-threshold injuries caused by the motor accident.

5. The following injuries were referred for assessment (it is the second matter which is directly relevant):

• Cervical spine – disc lesion at C4/5 and C5/6;

• Lumbar Spine – disc lesion at L4/5 in particular L5/S1 where there is a right paracentral disc protrusion with a right lateral component compressing the S1 nerve root;

• Thoracic spine – disc lesion;

• Left shoulder – rotator cuff tear; and

• Right shoulder – rotator cuff tear.

6. The initial medical examination was conducted by Dr Herald on 9 February 2022. On 2 March 2022, he issued a Certificate and published a statement of reasons. He certified that the soft tissue injury to the claimant’s cervical and thoracic spine was caused by the motor accident but was a “minor injury” (ie, employing the terminology in place at that time, which was subsequently replaced by the term “threshold injury”). He also determined that the remaining physical injuries were not caused by the accident, with the single exception of the claimed injury “Lumbar spine – L5/S1 disc prolapse and right S1 radiculop[a]thy”. That latter injury was certified to be a non-minor injury caused by the motor accident. In reaching this determination, Dr Herald had been provided with a record of the claimant’s medical history, which indicated that he had not had any problems with his back previously.

7. It is appropriate to say something more about Dr Herald’s statement of reasons because, as will emerge, the Review Panel said that it had taken into consideration his findings, particularly his identification of two clinical signs of radiculopathy during his examination of the claimant in February 2022, after the claimant had injured his lumbar spine in the accident on 12 June 2020.

8. In the statement of reasons which accompanied the Certificate, Dr Herald summarised the circumstances of the motor accident. He referred to the claimant’s back pain persisting for a period of time and that the claimant initially had “radiculopathic symptoms to his right leg” and that as time passed his back pain became “associated with further and further radiculopathy”. He also described treatment which the claimant received from Dr Giblin (who is an orthopaedic surgeon) and noted that, despite cortisone injections, the radiculopathy had “increased in severity”, to a point where the claimant had trouble walking and experienced severe burning pain in his foot.

9. In a part of his statement describing the history of the claimant’s symptoms and treatment following the accident, Dr Herald reiterated that the claimant has had “ongoing back pain with increasing radiculopathy in his right lower limb”, a comment which was repeated shortly after under the heading “Current symptoms”. Reference was also made to proposed treatment including “surgery on his lumbar spine … but he has not had approval for this yet”.

10. Dr Herald then described the clinical examination he had conducted of the claimant.

11. Under the heading “Lumbar spine (lumbosacral)”, Dr Herald said:

On examination of his lumbar spine he has stiffness of his lumbar spine with paravertebral muscle spasm. He has tenderness in the mid spinal region. He has lateral flexion of about 25% of range to just below his hips and forward flexion to about 25% of range to mid thigh level. He has limited if any extension. He has a positive straight leg raise. He walks with an unsteady and somewhat high stepping gait. He is unable to walk on his toes but can walk on his heels. Neurological examination reveals features of an S1 radiculopathy with decreased or absent ankle jerks and altered sensation over the sole of his foot to light touch and deep pressure. The rest of his neurology appears intact.

12. Dr Herald described the claimant’s condition as being “consistent”, that there was no evidence of any exaggeration and that the claimant “fulfills the criteria for S1 Radiculopathy as outlined in the Motor Accident Guidelines Page 33 Section 1.138”.

13. Dr Herald also described the radiological and medical imaging which he had reviewed. This included an MRI scan of the lumbar spine on 29 September 2020 which resulted in the following assessment:

L5/S1 demonstrates right paracentral disc protrusion with right lateral component. There is compression of the S1 nerve root of the spinal canal with impingement on the exiting L5 nerve roots to the right.

14. On the final page of his statement of reasons, Dr Herald noted the definition of a “minor injury” in s 1.6 of the MAI Act, and then added that “given the clinical examination features of S1 radiculopathy as well as MRI scan findings of an L5/S1 disc prolapse caused by the subject accident, [the claimant’s] injury to his lumbar spine is a non-minor injury” (emphasis added). This statement amounts to a finding by Dr Herald of causation, including in relation to the radiculopathy.

15. The insurer sought a review of Dr Herald’s decision under s 7.26 of the MAI Act. It contended that he had failed to provide adequate reasons for his determination that the lumbar spine injury was caused by the accident. In its submissions to the PIC seeking a review the insurer referred to Dr Herald’s conclusion that: “[t]he clinical examination features of S1 radiculopathy as well as MRI scan findings of an L5/S1 disc prolapse [were] caused by the subject accident”. The insurer submitted that there was a lack of clarity in the reasons which was “particularly problematic in circumstances where the claimant’s condition was recorded in imaging to be pre-existing degenerative disc disease where the assessor concluded the pathology at L4/L5 was not causally related to the subject accident”.

16. The insurer also contended that there had been a failure adequately to consider relevant material, particularly all the treating evidence apart from the radiological investigations. Finally, it contended that Dr Herald had failed to consider or address its submissions regarding causation.

17. By a determination dated 28 April 2022, a PIC delegate found that there was reasonable cause to suspect that Dr Herald’s medical assessment was incorrect in a material respect. The insurer’s review application was accepted and referred to a review panel.

18. On 7 June 2022, directions were made for the parties to provide and serve a bundle of all documents (including any submissions) relied upon in the review and in the original assessment.

19. On 15 June 2022, the insurer provided the material upon which it relied. In an accompanying memorandum, the insurer submitted that in the light of Dr Herald’s Certificate, particular attention should be given to both the clinical records of Dr Giblin and an accompanying chronology “to support the assertion that the claimant’s lumbar pathology is degenerative in nature, and has no causal nexus to the subject accident”.

20. Dr Giblin’s clinical records included a report by him dated 31 August 2020 concerning the claimant. The report made reference to the claimant complaining of “low back pain”, but “there is no evidence of radiculopathy”. A separate report dated 30 September 2020 by Dr Giblin referred to an MRI of the claimant’s lumbar spine showing “some disc desiccation” at the L5/S1 level with a right sided L5/S1 disc, but there were no symptoms of radiculopathy.

21. In another report dated 1 February 2021, Dr Giblin noted that an MRI now showed “a large right sided L5/S1 disc protrusion with impingement” and he added:

It would appear that his left lower back pain was occurring from probably intra-discal, but over a period of time the right sided disc protrusion has become more of an issue to him and is now causing right sided radiculopathy, which is non responsive to conservative treatment.

I have given him some Endone to see if that will help him and in the meantime, I will write to the Insurance Company requesting permission for a right sided L5/S 1 microdiscectomy as an urgent procedure.

22. In a letter dated 1 March 2021, Dr Giblin noted that the insurer had delayed the claimant’s surgery “for various reasons”. Dr Giblin was concerned with the delay because of a risk of “further damage to the nerve root and potential discogenic low back pain”, which was not to say that the claimant “may not already have discogenic low back pain, or the nerve root may not be compromised”.

23. Additional reports from Dr Giblin concerning the claimant were also provided to the Review Panel.

24. By a letter dated 26 February 2021, the insurer notified the claimant that his request for a right sided L5/S1 microdiscectomy had not been accepted because the surgery was not considered to be reasonable and necessary treatment and care.

25. The Review Panel also obtained documents relating to the claimant’s medical history from a medical centre. The records included the following entry regarding the claimant’s consultation with his general practitioner (GP), Dr El Ayoubi, on 3 September 2019 (ie, prior to the motor accident):

lifting boxes at home last week

felt some pain

pain slowly imporved [sic] but exaerbated [sic] after a sneeze

pain in lumbar spine

right > left

nil radicular pian [sic] or weakness

Examination:

Neurological:

No leg weakness. No leg numbness. No foot drop.

lumbar spine

restirted [sic] ROM

tenderness right lower facet joint L5

nad otherwise

Diagnosis:

Mechanical back pain

Reason for visit:

Mechanical back pain

Actions:

Prescription printed: Naprosyn 500mg Tablet 1 Twice a day with meals for 1 week

Prescription printed: Panadeine Forte 500mg:30mg Tablet 2

Medical Certificate given.

26. There is also a record of a subsequent consultation on 18 September 2019, where Dr El Ayoubi stated the following:

Surgery consultation

Recorded by: Dr Ahmed El Ayoubi Visit date: 18/09/2019

Recorded on: 18/09/2019

review ongoing lower back

left sided pain with walking and sitting

has seen chripracter. [sic]

seems to have ? scoliosis.

twist in the spine/ pelvis

nil neurological symptoms.

Actions:

Imaging request printed: Xray thoracic/ lumbosacral spine./ pelvis (ongoing lumbar pain ??scoliosis)

Review Interval:

Review in 2 days. with xray

27. The claimant had a further consultation with Dr El Ayoubi on 20 September 2019, in relation to which Dr El Ayoubi made the following notes (emphasis added):

Surgery consultation

Recorded by: Dr Ahmed El Ayoubi Visit date: 20/09/2019

Recorded on: 20/09/2019

review

lumbosacral

symptoms oimproving [sic] slowly

Xray shows very mild scoliosis likley [sic] seocadrty [sic] to muscle spasm

Xray otherwise nad

Reason for visit:

Mechanical back pain

Actions:

Results of X-RAY SPINE THORACIC & LUMBAR REGIONS, X-RAY PELVIS given to patient.

Panedeine Forte 500mg:30mg Tablet ceased.

Review interval:

Review if problem persists.

another course of napryson for 7 daysReview p.r.n.

Review if problem worsens.

28. The materials before the Review Panel also included an unsigned medical certificate by Dr El Ayoubi which stated that he had seen the claimant on 3 September 2019 and that the claimant was unavailable for work for two weeks because “he is suffering from a mechancial [sic] back strain”.

29. The medical centre records record the claimant’s next consultation there as occurring on 16 June 2020, ie, four days after the accident. A colleague of Dr El Ayoubi (Dr Abi-Hanna) noted that the claimant had been injured in a motor vehicle accident the previous Friday and that he was experiencing “stiffness to left neck” since Saturday and was “also having slight discomfort to left lower back”. The GP noted, upon examination, the claimant had “mild pain with left lumbar extension”. The GP’s diagnosis, presumably in relation to all the claimant’s injuries (neck and back), was “whiplash injury”.

30. The documents produced also included results of imaging, including of the claimant’s lumbar spine, during the period 29 September 2020 to 11 October 2021.

31. By a direction dated 1 July 2022, the claimant was directed by the Review Panel to attend for a medical re-examination on 12 September 2022.

32. On 12 September 2022, the claimant was re-examined by Dr Ian Cameron, one of the two medical assessors constituting the Review Panel.

The Review Panel’s Certificate of Determination

33. On 7 February 2024, the Review Panel issued its Certificate of Determination under s 7.23(1) of the MAI Act, together with accompanying reasons. Relevantly, it certified that the injury “lumbar spine – soft tissue injury” was not a threshold injury.

34. The Review Panel also certified that the injury “cervical spine – soft tissue injury” was a threshold injury and that the following injuries were not caused by the accident:

(a)   thoracic spine – disc lesion;

(b)   left shoulder – rotator cuff tear, and

(c)   right shoulder – rotator cuff tear.

The Review Panel’s reasons summarised

35. The statement of reasons totals 24 pages and comprises 113 separate paragraphs (fundamentally, however, an assessment of the adequacy in law of the reasons is a qualitative and not a quantitative exercise). Dr Cameron’s re-examination report dated 12 September 2022 is set out in full in the statement of reasons.

36. In contrast with the more limited medical evidence before Dr Herald, the Review Panel was provided with the claimant’s medical centre records which indicated that the claimant had lower back complaints prior to the motor accident. Dr Cameron’s re-examination report, which was adopted in full by the Review Panel (see at [102]), noted that the claimant specifically denied having pre-existing problems with his lumbar spine, but it was then noted that the medical records showed that he had had three consultations in September 2019 with his GP concerning “mechanical low back pain”; the GP’s notes stated that on 20 September 2019 (which is prior to the motor accident) the claimant’s back pain was “improving slowly”; and the claimant next saw a GP on 16 June 2020 following the motor accident.

37. Dr Cameron’s re-examination report also recorded that the claimant said that he “was always in pain”, and that he had pain in the right leg (meaning the posterior aspect of the right leg down to the right heel) and that there was low back pain.

38. In its statement of reasons, the Review Panel made reference to version 9.2 of the Motor Accident Guidelines (Guidelines) and noted that cll 5.3 to 5.6 pertained to the medical assessment of whether an injury is a threshold injury. Reference was also made to cll 5.7 to 5.9 of the Guidelines and it was noted that they related to whether an injury to a spinal nerve route in the context of neurological symptoms is classified as a threshold injury. The Review Panel stated at [21] that an injury resulting in radiculopathy will not be classified as a threshold injury. The definition of radiculopathy in cl 5.8 of the Guidelines was expressly noted at [23].

35. The Review Panel stated at [24] that neurological symptoms that do not meet the assessment criteria for radiculopathy “means that the injury will be assessed as a threshold injury”. Reference was also made to ss 5D and 5E of the Civil Liability Act 2002 (NSW) (CL Act), revealing an awareness on the part of the Review Panel of the relevance of s 5D to the issue of causation in the sense that there needed to be findings of what is described in s 5D(1) as “factual causation”.

36. The Review Panel summarised the claimant’s clinical records, including Dr El Ayoubi’s notes of the three consultations in September 2019, as well as the MRI scan on 29 September 2020 which revealed that at L5/S1 “there was a right paracentral disc protrusion compressing [the] S1 nerve root in lateral recess and impinging the exiting L5 nerve root on the right” (at [48]).

37. Significantly, at [51], the Review Panel set out the following passage from Dr Giblin’s report dated 1 March 2021 in relation to the mechanism of injury in the motor accident (emphasis added):

It is irrelevant as to what position he was sitting in the car. As you are aware, because cars are made of such low impact material, photos really don’t confirm the force of impact. Considering this gentleman had no pain prior to the accident and he has only had pain since the accident, I think it is fair to assume the accident has caused his pain and it is unrelated to the seating or any photos you may have. The pain, which relates to the accident, is the need for his surgery.

42. It is notable that this passage contains Dr Giblin’s conclusion that it was fair to assume that the accident had caused the claimant’s pain. The insurer emphasises, however, that Dr Giblin mistakenly believed that the claimant had no pain “prior” to the accident. (I interpolate that whether there was in fact any such mistake may turn on knowing the precise point in time which Dr Giblin had in mind when he used the word “prior”).

43. The Review Panel summarised at some length the insurer’s various written submissions (from [52]-[83]). The summary included the insurer’s submissions with respect to each of the injuries referred for assessment, not merely the lumbar spine. Focussing on the lumbar spine injury itself, however, the Review Panel summarised the insurer’s “preliminary” submissions on that topic as follows (noting in particular the Review Panel’s clear acknowledgement of the insurer’s position concerning causation):

[61] With regards to the lower back, the insurer notes that the claimant has been referred for MRI of the lumbar spine which showed degenerative change in the form of disc desiccation and submits that pathology revealed on the imagining [sic] is secondary to age related changes in the lumbar spine.

[62] The insurer again refers to the bone scan conducted on 2 October 2020 by Dr Brittain, which supports the submission that the changes revealed on the MRI are degenerative in nature and in this regard notes a finding of mild discovertebral degenerative arthritis at L5/S1 level of the lumbar spine.

[63] The insurer further notes that Dr Giblin noted that there were no symptoms of radiculopathy, and accordingly submits that the claimant does not meet the criteria for radiculopathy under cl 5.8 of the Guidelines, and that in the absence of radiculopathy or a complete or partial rupture of tendons, ligaments, menisci or cartilage, the claimant sustained a soft tissue injury to the lumbar spine which would result in a minor injury finding.

44. The Review Panel also summarised, at some length, the insurer’s subsequent submissions and the schedule of documents provided by it in support of its application for review. Explicit reference was made at [73] and [74] to the insurer’s submissions relating to causation.

45. The Review Panel noted the insurer’s submission that Dr Herald’s reasons were inadequate and that, consequently, the parties were left to fill in the gaps and assume what view Dr Herald took on the issue of causation. It was further noted that the insurer claimed that Dr Herald had ignored the claimant’s degenerative pathology, and determined that his current condition, which had deteriorated substantially, was causally related to the subject accident merely because there was evidence of degenerative pathology some months later (at [75]).

46. At [70]-[83], the Review Panel provided a detailed and accurate summary of those submissions, including the insurer’s claim that there was a lack of clarity in Dr Herald’s conclusion that the clinical examination features of S1 radiculopathy as well as MRI scan findings of an L5/S1 disc prolapse were caused by the subject accident.

47. At [84]-[96], the Review Panel summarised the claimant’s submissions in reply to those of the insurer concerning the review application.

48. At [97], in a section of the reasons which sets out Dr Cameron’s re-examination report in full, Dr Cameron is recorded as making the following statement:

The interpretation at the time of re-examination was that [the claimant] has continuing low back pain with radicular symptoms but there are no current clinical signs consistent with radiculopathy.

49. In a separate section of the reasons, under the heading “Diagnosis and causation”, the Review Panel said as follows (emphasis added):

[103] The Panel is satisfied that the claimant sustained soft tissue injuries to his cervical and lumbar spine in the motor accident on 12 June 2020. He had symptoms related to these body regions soon after the accident as documented in the treating records of his general practitioner and continues to have symptoms in these body regions.

…

[105] The Panel has determined that the following injuries were caused by the accident:

(a)   cervical spine – soft tissue injury, and

(b)   lumbar spine – soft tissue injury.

[106] The Panel has determined that the following injuries were not caused by the accident:

(a)   thoracic spine – disc lesion;

(b)   right shoulder – rotator cuff tear, and

(c)   left shoulder – rotator cuff tear.

50. One of the insurer’s grounds of judicial review seizes upon the nomenclature used in [105(b)] and the absence of an express reference to radiculopathy.

51. The Review Panel then turned its attention to the issue of whether either of the two identified injuries which it found were caused by the accident was a “threshold injury”. Focussing only on the lumbar spine injury, the Review Panel explained at [108] and [109] why, applying the principle in David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227, it concluded that this injury was not a threshold injury because radiculopathy was present at the time of Dr Herald’s examination.

52. It is important to note that, at [109], the Review Panel made express reference to the fact that, although radiculopathy had not been detected during the re-examination of the claimant’s lumbar spine, the Review Panel had taken into consideration Dr Herald’s findings on this topic.

Lumbar spine

[108] Neurological examination of the claimant by Medical Assessor Herald on 9 February 2022 revealed “features of an S1 radiculopathy with decreased or absent ankle jerks and altered sensation over the sole of his foot to light touch and deep pressure”. This constitutes radiculopathy because two of the clinical signs specified in cl 5.8 were found on examination:

(a)   loss or asymmetry of reflexes, and

(b)   reproducible sensory loss that is anatomically localised to an appropriate nerve root distribution.

[109] Although the Panel did not detect radiculopathy during its examination of the claimant’s lumbar spine, the Panel has taken into consideration the findings of Medical Assessor Herald, who identified two clinical signs of radiculopathy during his examination of the lumbar spine in February 2022, and after the claimant injured his lumbar spine in the accident on 12 June 2020, and has concluded that the claimant’s lumbar spine injury does not meet the classification for a threshold injury. Applying the principle in David, the injury to the claimant’s lumbar spine is not a threshold injury because radiculopathy was present at the time of Medical Assessor Herald’s examination following that injury. (Emphasis added, footnote omitted.)

Consideration and determination

53. Before addressing the insurer’s grounds of review (which overlap to some extent), it is desirable to say something more about the regulatory framework within which the issues arise and to describe the nature and scope of the review in this Court. As explained in Abawi, the issue whether or not a claimant suffered only “threshold” injuries is relevant to the claimant’s ongoing entitlement to receive statutory benefits and to be awarded damages.

54. A threshold injury is defined in s 1.6 of the MAI Act as including a soft tissue injury. “Soft tissue injury” is defined in s 1.6(2) as follows:

A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.

55. Regulation 4(1) of the Motor Accident Injuries Regulation 2017 (NSW) provides:

An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.

56. Sub-section 1.6(5) provides that the Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of the Act. It is common ground that version 9.2 of the Guidelines which commenced on 9 November 2023 are the relevant Guidelines.

57. Part 5 of the Guidelines deals with the expression “threshold injury”. Clause 5.6 provides:

5.6   The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

(a)   a comprehensive accurate history, including pre-accident history and pre-existing conditions

(b)   a review of all relevant records available at the assessment

(c)   a comprehensive description of the injured person’s current symptoms

(d)   a careful and thorough physical and/or psychological examination

(e)   diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.

58. Clauses 5.7 to 5.9 deal with soft tissue assessment and injury to a spinal nerve root and set out the criteria for assessing whether radiculopathy is present. They state:

Soft tissue assessment – injury to a spinal nerve root

5.7   In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.

5.8   Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.

(a)   loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)

(b)   positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)

(c)   muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)

(d)   muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

(e)   reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

5.9   Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.

59. Part 6 of the Guidelines deal with assessing the degree of permanent impairment arising from an injury caused by a motor accident. Under the heading “Causation of injury”, cll 6.5 to 6.7 state:

6.5   An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 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 the Personal Injury Commission) in considering such issues.

6.6   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.

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.

60. Although these clauses appear in Pt 6 of the Guidelines (which concerns assessment of permanent impairment), it is common ground that they apply to an assessment of the causation of threshold injuries (see Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372).

61. Clause 6.5 of the Guidelines requires medical assessors to be aware of the relevant provisions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4^th ed, 1995), as well as common law principles. Regarding a similar requirement in par 1.5 of the 2018 Guidelines, in Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031, Wright J said at [80]-[81] (footnote omitted):

[80] In the context of determining questions of causation in relation to motor accidents in accordance with “the … principles that would be applied by a court (or claims assessor) in considering such issues”, the reference in par 1.5 to “common law principles” is to be understood as referring to the legal principles that courts or claims assessors are required to apply in determining causation. This includes not only common law principles, in the strict sense, but also such principles as modified or explained by statutory provisions, such as s 5D of the Civil Liability Act 2002 (NSW) (CL Act), where applicable. This approach is consistent with Windeyer J’s observation in Gammage v The Queen (1969) 122 CLR 444 at 462; [1969] HCA 68 that:

“for the present purposes [of that case concerning the law of homicide], it is misleading to speak glibly of the common law in order to compare and contrast it with a statute. In any consideration of common-law rules it is necessary to take one’s stand at some point of time. It is necessary too to be clear whether what is being spoken of as the common law at that point of time comprehends all statutory modifications of it then in force or only its pristine form”.

[81] The approach is also consistent with the remarks of Campbell J in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [27] where it was held that:

“the question to be assessed [under the previous Motor Accidents Medical Guidelines which were relevantly in substantially the same terms as the 2018 Guidelines] is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s.5 D. (See s.3B(2))”.

62. If there is a dispute as to whether or not a claimant’s injuries are threshold injuries for the purposes of the MAI Act, this is declared to be a “medical assessment matter” for the purposes of Pt 7 (see MAI Act, Sch 2, cl 2(e)).

63. Under Pt 7 of the MAI Act, a “medical dispute” about a “medical assessment matter” can be referred to the PIC for assessment (see Div 7.5 of the MAI Act). These provisions were recently analysed in depth in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71. Whether or not an injury caused by a motor accident is a threshold injury for the purposes of the Act is one of a number of matters which are declared to be “medical assessment matters” for the purposes of Pt 7 (see Sch 2, cl 2(e)). In the present case, Dr Herald was appointed to assess the medical dispute and issue a certificate under s 7.23(1) of the MAI Act.

64. Section 7.23(7) of the MAI Act provides:

A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.

65. A claimant or an insurer may apply under s 7.26 of the MAI Act for the President of the PIC to refer a medical assessment by a single medical assessor to a Review Panel for review. An application for referral may be made only on the grounds that the assessment was incorrect in a material respect (s 7.26(2)). Moreover, the President (or a delegate) may only arrange for a medical assessment to be referred to a Review Panel if satisfied that there is “reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application” (s 7.26(5)).

66. The Review Panel is to be constituted by three persons chosen by the President, comprising two medical assessors and one member who is a member assigned to the Motor Accidents Division of the PIC.

67. In the present proceeding, Ms Gumbert (who appeared for the insurer) described a Review Panel hearing as a “de novo review”. Although styled a “review”, the Review Panel is determining afresh the medical assessment matters referred to it (see s 7.26(6) and Frostv Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [9] per Leeming JA, with Beazley P and Basten JA agreeing).

68. A Review Panel may either confirm the certificate of assessment of the single medical assessor or revoke that certificate and issue a new certificate as to the matters concerned (s 7.26(7)).

69. Turning now to the nature and scope of the judicial review proceeding in this Court, it is sufficient to refer to what Basten AJA said in Jarvis v Allianz Australia Insurance Limited [2022] NSWCA 232 at [41]:

There is no appeal from the decision of the review panel, but judicial review is available in the Supreme Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). Such a review is limited to jurisdictional error and error of law on the face of the record. The record, it may be accepted, includes the reasons given by the review panel for its ultimate determination, in accordance with s 69(4). The Supreme Court has no power to intervene on any other basis; its views of the merits of the claim are irrelevant.

70. With all these background matters in mind I shall now address each of the four grounds of judicial review.

(a) Failure to determine the question of causation in accordance with law (ground 1)

71. The insurer contends that the Review Panel was obliged to determine the question of causation in accordance with cll 6.5 to 6.7 of the Guidelines, relevant provisions of the CL Act and common law principles. It claims that the Review Panel failed to assess causation according to law and fell into jurisdictional error because:

1. it failed to approach the determination of causation as required by the materials and principles outlined above; and

2. it failed to make necessary findings as to causation of the lumbar spine injury, particularly the cause of the radiculopathy.

72. The insurer submits that the Review Panel simply reasoned that because radiculopathy was diagnosed by Dr Herald after the date of the accident, it was caused by the accident. This is said to constitute a failure to consider whether causation is established in relation to radiculopathy in the sense of “factual causation” as referred to in s 5D(1)(a) of the CL Act and also amounts to a failure to apply the two-step test of causation set out in cl 6.6 of the Guidelines.

73. This ground overlaps with the insurer’s complaint that the Review Panel failed to provide adequate reasons for its decision in relation to the issue of causation.

74. The insurer’s complaints concerning causation are reasonably arguable and were well presented by Ms Gumbert, but I am not persuaded that the Review Panel failed to make appropriate findings of “factual causation” in relation to the causal link between the claimant’s radiculopathy and the motor accident or fell into jurisdictional error.

75. Fairly read, the Review Panel did make findings concerning the causation of the radiculopathy based upon the following matters:

1. As is evident from the summary above of the Review Panel’s statement of reasons, the Review Panel was well aware that there was a dispute arising from Dr Herald’s Certificate and reasons concerning the causation of the radiculopathy. That awareness is reflected, for example, in the Review Panel’s statement of reasons at [61]-[63] and [75]ff.

2. The Review Panel adopted all of Dr Cameron’s re-examination report, which included Dr Cameron’s acknowledgment that the claimant had pre-existing back pain and that his GP’s notes concerning a consultation with the claimant on 20 September 2019 state that the back pain was “improving slowly”.

3. Although not explicitly stated, it may reasonably be inferred that the Review Panel considered that the pre-existing back complaints had essentially resolved by the time of the accident and did not affect the injuries he sustained in the accident.

4. This inference has some support from the fact that the claimant’s medical records indicate that there was a nine month gap from when Dr El Ayoubi noted that the back pain was “improving slowly” and the claimant’s next consultation at that practice with Dr Abi-Hanna which occurred a few days after the motor accident. The medical record of that consultation records the claimant’s neck stiffness and lower back pain and the GP described his injuries as “whiplash injury”.

5. As to the claimant’s lumbar spine, Dr Cameron recorded that “there was moderately and symmetrically reduced range of motion (to 70% normal in all planes with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints present)”. He noted that the claimant was “slow to move due to pain”; and that he said there was an area of numbness in the sole in his right heel. Dr Cameron stated that his interpretation at the time of his re-examination of the claimant was that the claimant “has continuing low back pain with radicular symptoms but there are no current clinical signs consistent with radiculopathy”.

6. However, at [100], the Review Panel applied the reasoning in David (which the insurer does not dispute) that radiculopathy which is identified at any time post the accident can establish a non-threshold injury. The Review Panel considered and implicitly accepted Dr Herald’s finding that the radiculopathy was caused by the subject accident (see the terms of the Certificate dated 2 March 2022 where Dr Herald certified that the “Lumbar spine – L5/S1 disc prolapse and right S1 radiculopathy” was caused by the motor accident and to similar effect see also page 7 of Dr Herald’s reasons). Thus no fewer than three medical assessors consider that the radiculopathy was caused by the motor accident, a view which was also shared by the third member of the Review Panel.

7. As is made clear at [102], the Review Panel not only adopted Dr Cameron’s re-examination report but also identified several further reasons in support of its findings.

8. On a fair reading, [103] forms part of the Review Panel’s findings on causation concerning radiculopathy. The references at [103] to:

1. the claimant having “sustained” soft tissue injuries to his lumbar spine in the motor accident; and

2. the medical centre records document that he had symptoms of these injuries soon after the accident,

are directed to causation, a view which is reinforced by the fact that, in the very next paragraph of the statement of reasons, the Review Panel said that it was not satisfied that the accident had caused other injuries of the claimant. Paragraph 103 also needs to be read in conjunction with [105], [108] and [109], which confirm that the Review Panel’s findings on causation extended to the radiculopathy.

9. There is an express reference at [105] to the accident causing the “lumbar spine – soft tissue injury”. Ideally, there ought to have been some express reference in that paragraph to the presence of radiculopathy which necessarily removed the lumbar spine injury from the category of “threshold injury”. I do not consider, however, that this omission is fatal or determinative. Read as a whole, the parties should reasonably have understood that this finding of causation referred to the radiculopathy. So much is made clearer by the contents of [108] and [109] of the Review Panel’s reasons which are set out at [52] above.

10. The Review Panel explicitly stated at [109] that, although radiculopathy was not detected during Dr Cameron’s re-examination of the claimant’s lumbar spine, it had taken into consideration Dr Herald’s findings, particularly the two clinical signs of radiculopathy he identified during his examination of the claimant’s lumbar spine in February 2022, which post-dated the accident.

11. In the particular circumstances of this case, where radiculopathy was discerned not on the medical re-examination but rather at an earlier examination by Dr Herald, who also found that it was caused by the motor accident, it was open to the Review Panel (consistently with David) to act upon those earlier findings without extensive explanation by the Review Panel regarding causation of the radiculopathy. The position may be different were a review panel acts upon its own finding of radiculopathy based upon a re-examination.

76. In oral address, Ms Gumbert candidly acknowledged that ground 1 primarily related to the need to apply relevant principles concerning causation as set out in s 5D of the CL Act. She submitted that it was strictly unnecessary for the Court to determine whether the Review Panel had followed the two-step test in the Guidelines. In making that acknowledgment, she may well have had in mind what Basten AJA (Bell CJ agreeing) said in Jarvis at [76] (noting for completeness that cll 1.6 and 1.7 of the 2018 Guidelines considered by the Court in Jarvis were identical to cll 6.6 and 6.7 of the version of the Guidelines relevant to the current proceeding):

The usefulness, if not the accuracy, of the definition of causation relied on in cl 1.6 might be questioned. It seems likely that in most cases the two-stage approach would be unnecessary and sometimes inappropriate. Nothing turns on the operation of cl 1.6 for present purposes. Clause 1.7 commences with the qualification that “[t]here is no simple common test of causation that is applicable to all cases”. That statement is sufficient to remove any obligation to follow a particular approach which may be inferred from the language of cl 1.6.

77. It is well to bear in mind that the task of both Dr Herald and the Review Panel was to make findings on issues of fact, including those relating to the question of causation. Their function was to form and give their own opinion on that question, applying the medical assessors’ medical experience and expertise. As Leeming JA said in Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765 at [44] (Basten JA and Simpson AJA agreeing), the question of causation is a question of fact “and quintessentially so”. His Honour went so far as to say that once a finding of fact is made, “no further explanation of the reasoning is required”.

78. Leeming JA acknowledged that there would be an error of law if there was no evidence to support a finding of fact on causation, but no such submission was made by the insurer there (nor here). His Honour also noted that there was a body of evidence capable of sustaining the medical opinions there. The supporting evidence here, apart from Dr Herald’s clinical examination itself which led to his finding of radiculopathy and its causation, may not be as strong or extensive as that to which Leeming JA referred in Keen. But the question concerning the no evidence ground is whether there is some material to support the relevant finding (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33 and Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177 at [100]ff). In adopting and applying Dr Herald’s finding, the Review Panel also had the benefit of the GP’s records which stated that the claimant’s back pain was improving slowly at a point in time nine months preceding the motor accident. The records indicate that the next time the claimant saw a GP was immediately after the accident, when his back pain symptoms were noted and there was a diagnosis of “whiplash injury” (see at [29]).

79. These points were given further emphasis in Keen at [51], which resonate in the present proceeding, despite the different circumstances here (emphasis added in bold):

The reasons given by the medical assessor were brief. However, as the proper officer observed, and contrary to submissions made in writing and orally on behalf of the insurer, the reasons did address the insurer’s complaint that the current impairment of Mr Keen was causally connected to the motor vehicle accident. The medical assessor expressly stated that there had been an increase in symptoms “as a result of the current motor vehicle accident”. The assessor had also expressly stated Dr Dalton’s opinion that the motor vehicle accident had no causal relationship with any permanent impairment, and accepted the identicality of the radiology both before and after the accident. The conclusion that symptoms had increased as a result of the motor vehicle accident is a rejection of Dr Dalton’s opinions and a finding which accorded with some of the other medical evidence before the assessor. But it was not necessary for Dr Meakin to analyse in any detail the reasons given by Dr Dalton for that opinion because Dr Meakin’s role was simply to make the factual finding as to whether or not the relatively relaxed common law approach to causation, which was satisfied if the motor vehicle accident was a contributing cause, was made out.

80. I consider that all the matters set out at [75] above indicate that the Review Panel did determine the question of causation of the radiculopathy and did so in accordance with relevant legal principles.

(b) Failure to provide adequate reasons (ground 2)

81. The insurer contends that the Review Panel failed to provide adequate reasons, which constitutes non-compliance with s 7.23(7) of the MAI Act. It claims that the Review Panel failed to expose its actual path of reasoning in respect of the following matters:

(i) why the first defendant’s post-accident lower back symptoms and/or pathology were caused by the motor accident, noting the history of pre-existing lower back complaints;

(ii) how a “soft tissue injury” to the lumbar spine can constitute a non-threshold injury in accordance with the s 1.6 of the MAI Act; and

(iii) how the first defendant’s soft tissue injury to the lumbar spine in conjunction with the finding that the radiculopathy previously found on examination was caused by the motor accident.

82. These deficiencies in the Review Panel’s reasons are said to constitute an error of law on the face of the record.

83. There is considerable case law on what constitutes an adequate statutory statement of reasons. Due allowance must be made, of course, for differently worded provisions, but general guidance was provided by the High Court in WingfootAustralia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55] concerning the standard required of a written statement of reasons by a medical panel, there constituted under the Accident Compensation Act 1985 (Vic) (emphasis added):

The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. 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.

84. Other matters may affect the required standard. They include the issues under consideration as well as the way in which the case has been conducted. Hence, in Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329, Sackville AJA (Campbell JA and Bergin CJ in Eq agreeing) stated:

[52] The principles relating to the obligation of a trial judge to give adequate reasons for making findings of fact, including findings said to be demeanour based, were summarised by McColl JA (with whom Ipp JA and Bryson AJA agreed) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110. Her Honour’s statement of the principles was accompanied by detailed citation of authority. The following is a summary, with reference only to some of the leading authorities:

…

(iii) The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties…: see Soulemezis v Dudley, at 259, per Kirby P; at 280, per McHugh JA. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute…:Beale v GIO, at 443, per Meagher JA.

85. There was also no dispute that the Review Panel’s reasons need to be read fairly, as a whole and not with an eye keenly attuned to the perception of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; [1996] HCA 6; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77] per Bell P, Ward JA agreeing and Western NSW Local Health District v Roberts [2023] NSWSC 452 at [73]-[76] per Griffiths AJ). It has also been observed that a Review Panel is not required to give elaborate reasons, nor to address every aspect of the evidence (see Jarvis at [23] per Brereton JA). That does not mean, however, that any ambiguity in the reasons should be resolved in the Review Panel’s favour (see, eg, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]).

86. Finally, in determining whether or not the Review Panel’s reasons are adequate, the mere fact that a statement of reasons leaves important matters to inference does not necessarily mean that the statutory obligation has been breached. As Leeming JA observed in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6], the “question is whether the reasoning process can be discerned, reading the reasons as a whole and applying a ‘beneficial construction’…At least where a gap may be filled as a matter of necessary inference on a fair reading of the reasons, I would consider that the obligation to set out the reasons has been discharged”.

87. The position may be different where no reasoning is disclosed on a significant issue raised in a medical dispute. But that is not the case here. For the reasons I have given above (see at [75]), I consider that the Review Panel did explain, albeit concisely, why it considered that the radiculopathy was caused by the accident. The Review Panel’s path of reasoning on this matter is succinct, but adequately revealed.

88. Each case necessarily turns on its own facts but I respectfully agree with Leeming JA’s observation in Zahed at [9] that reasons need not be long and that there “will be many cases … where a single sentence would suffice”.

89. This case is distinguishable from a case such as Allianz Australia Insurance Ltd v Salucci [2023] NSWSC 1593, where the Review Panel entirely failed to address the issue of causation because of its misunderstanding of the effect of two earlier legal authorities.

(c) Certification of “lumbar spine – soft tissue injury” as a “non-threshold” injury (ground 3)

90. The insurer contends that, by operation of s 1.6 of the MAI Act, a soft tissue injury is a threshold injury, yet the Review Panel certified the “lumbar spine – soft tissue injury” as a non-threshold injury. It contends that this contradiction reveals an error of law on the face of the record.

91. For the following reasons, I reject ground 3. The Certificate and reasons of the Review Panel need to be read together and as a whole. The Review Panel’s certification that “lumbar spine – soft tissue injury” is an injury caused by the accident and is not a threshold injury needs to be read in the context of the Review Panel’s analysis of the relationship between radiculopathy and non-threshold injuries. Where post-accident radiculopathy arising from the lumbar spine injury has been diagnosed and accepted by the Review Panel, as is the case here, the injury is not a threshold injury.

92. The terminology used by the Review Panel in the Certificate should not be read in isolation from the Review Panel’s statement of reasons and the significance it attached to the fact that Dr Herald had previously identified two clinical signs of radiculopathy during his examination of the claimant’s lumbar spine in February 2022 (see the reasons at [109]).

93. Ideally there should have been an express reference to radiculopathy in par 3(a) of the Certificate and in [105(b)] of the statement of reasons, but when the Certificate and reasons are read together it is plain that Dr Herald’s findings of radiculopathy were adopted by the Review Panel so as to remove the lumbar spine – soft tissue injury from the definition of “threshold injury”.

(d) Failure to respond to a substantial and clearly articulated argument (ground 4)

94. The insurer contends that the Review Panel failed to respond to its substantial and clearly articulated submissions regarding the cause of the claimant’s claimed lower back injury. It contends that this failure amounts to a constructive failure to exercise jurisdiction and/or a denial of procedural fairness.

95. The insurer complains that although the Review Panel noted various submissions made by it, the following submissions were not addressed:

(a)   The scans conducted post-accident show degenerative arthritis in the L5/S1 level of the lumbar spine, which are age related changes (Review Panel’s reasons at [61] – [62]).

(b)   Assessor Herald did not explain why he found that the L5/S1 disc prolapse and S1 radiculopathy were causally related to the accident, on the background of imaging that showed that the pathology was degenerative (at [72] – [75]).

(c)   Assessor Herald had not considered the insurer’s substantial and clearly articulated argument (at [80] – [81]).

96. It is well settled that a decision-maker’s failure to respond to a substantially articulated argument relying upon established facts may amount to either procedural unfairness (see Dranichnikovv Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ) or a constructive failure to exercise jurisdiction (see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81] per Gaudron J and Rodger v De Gelder [2015] NSWCA 211 at [109] per Gleeson JA (Macfarlan and Leeming JJA agreeing)). That is not to say, however, that there is an obligation to consider every piece of evidence presented by the parties (see Lederer v Insurance Australia Limited trading as NRMA Insurance [2022] NSWSC 322 at [34] per Brereton JA).

97. Turning to the way in which the case was conducted below, it is clear from the insurer’s written submissions dated 24 March 2022 in support of the review that it challenged the adequacy of Dr Herald’s finding that the L5/S1 disc prolapse and S1 radiculopathy were caused by the subject accident. It submitted that there was a lack of clarity in Dr Herald’s finding of causation, particularly where there was imaging of a pre-existing degenerative disc disease and where Dr Herald had concluded that the pathology at L4/L5 was not causally related to the subject accident. It submitted that, absent any elaboration, it should be inferred that the medical assessor had ignored the pre-existing degenerative pathology and determined that the claimant’s current condition was causally related to the subject accident. The insurer relied on AAI Limited v Fitzpatrick [2015] NSWSC 1108 in support of its contention that, where there is a medical controversy over a particular issue, there needs to be a more expansive explanation and express consideration of relevant material.

98. This ground overlaps with the earlier grounds of review. While I accept the insurer’s claim that the issue of causation was clearly raised in its written submissions, I consider that the issue and the insurer’s submissions on it were adequately addressed by the Review Panel for the reasons I have given above.

Conclusion

99. For these reasons, the summons will be dismissed, with costs.

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Decision last updated: 29 October 2024