Brdjanovic v Darcy
[2011] NSWDC 45
•23 June 2011
District Court
New South Wales
Medium Neutral Citation: Brdjanovic v Darcy [2011] NSWDC 45 Hearing dates: 21 June 2011 Decision date: 23 June 2011 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 30
Catchwords: Discretion to order review of a MAS assessment Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 Category: Interlocutory applications Parties: Boro Brdjanovic (Plaintiff)
Chantelle Darcy (Defendant)Representation: B Nolan (Plaintiff)
J Catsanos (Defendant)
NSW Compensation Lawyers (Plaintiff)
Ferguson Lawyers (Defendant)
File Number(s): 2010/00099931
Judgment
The plaintiff, who is now aged 60, was injured in a motor vehicle accident on 13 December 2007. He alleges that the accident was caused by the negligence of the defendant and seeks damages arising from his injuries.
On the basis of the Statement of Particulars filed on 1 February 2010 the heads of damages which will be sought are non-economic loss, past and future economic loss and medical expenses. The dispute before me is in relation to non-economic loss.
The action is governed by the Motor Accidents Compensation Act 1999 ("the MACA"). Pursuant to Section 131 a claimant is not entitled to non-economic loss unless "the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%" .
The parties can agree whether or not the above threshold has been met. If they do not then, in the first instance, the injured person may seek an assessment of the degree of permanent impairment by a medical assessor. Part 3.4 of the Act is then applicable.
In general terms a claimant will be examined by a medical assessor in the relevant specialty. The assessor will also have regard to other material placed before him, or her, by the parties.
In this matter the medical assessor who examined the plaintiff is Dr Cameron. The assessment took place on 22 January 2010. On 6 February 2010 Dr Cameron issued a certificate stating that the injuries caused by the motor accident did not give rise to a permanent impairment that was greater than 10%. He listed the injuries as soft tissue injuries to the neck, lower back and right shoulder.
In the Reasons that accompanied Dr Cameron's Certificate he stated that there was a 2% Whole Person Impairment ("WPI") arising from the plaintiff's right shoulder injury. The injuries to the neck and lower back were both assessed as giving rise to a zero percentage WPI.
The plaintiff was dissatisfied with Dr Cameron's assessment and sought a review of the assessment pursuant to Section 63 of the MACA. The "proper officer of the Authority" who dealt with the application did not allow it to proceed to a further medical assessment because he was not "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" . (Section 63(3))
The plaintiff has not challenged the decision of the proper officer but rather taken a different approach, pursuant to Section 62(1)(b). Under this section a court may order that a matter be referred for further assessment.
The matter originally came on for hearing before Judge Letherbarrow. I was informed that the matter did not proceed because his Honour indicated that for the plaintiff's application to have any chance of success there ought be expert evidence concerning the adequacy of Dr Cameron's assessment.
This led to the production of a report by Professor Ryan, which came before me as Exhibit B. Professor Ryan concluded "that there are reasonable grounds for review by an MAA review panel" . The defendant submitted that Professor Ryan's opinion was not sufficient to justify the matter being returned for further assessment.
The following two matters were common ground between the parties:
(a) The court has a discretion whether or not to refer the matter for further assessment.
(b) The discretion should not be exercised unless there was a reasonable prospect that a reassessment would produce a different result, in particular a result that included a finding of a WPI in excess of 10%.
The nature of the discretion, as stated in the preceding paragraph, was agreed by the parties to be derived from the decision of the NSW Court of Appeal in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287.
While I entirely accept the parties' interpretation of the above judgment I note that in Trazivuk the court was concerned with an allegation of bias on the part of an assessor. No such allegation is made in the present case. The allegation here is that Dr Cameron's assessment is deficient to an extent that has materially affected a proper assessment of the plaintiff's WPI.
Professor Ryan's conclusion, which I have set out above, was based on two matters. He described them as follows:
"Having examined the MAS Certificate, I am satisfied that non-uniform loss of motion was excluded. The record of symptoms was insufficient to determine whether or not the patient had a history of non-verifiable radicular symptoms.
There was some deficiency in the record of physical examination of the lower limb and the record of measurement of limb circumference was deficient. There was no record of examination of upper or lower limb strength and there was no record of examination of lower limb muscle bulk, although it is evident from an incomplete fragment which suggests that Dr Cameron intended to do so."
The defendant submitted that there is notably absent from Professor Ryan's report any assertion that reassessment would produce a WPI in excess of 10%. Absent this assertion, said the defendant, the plaintiff's application was bound to fail. If all that could be said of Dr Ryan's opinion is that it showed some errors that would be of little significance if those errors, when corrected, did not raise the WPI over the threshold.
The plaintiff responded in this way: Professor Ryan carried out a critical assessment of Dr Cameron's Reasons behind the Certificate. Professor Ryan did not examine the plaintiff. Had he done so and reached a conclusion of a WPI in excess of 10%, his conclusion would simply have been another in the list of opinions about the plaintiff's degree of impairment. Besides Dr Cameron's view, there were already three other opinions: Dr Ellis found a 25% WPI in March 2009, Dr Menogue found 5% in April 2009 and Dr Dixon managed 21% in June 2009. In a later examination, in May 2010, Dr Menogue's assessment was reduced to 0% (Exhibit 1).
I agree with the plaintiff's submission that an assessment of the plaintiff by Professor Ryan would have been of little assistance no matter how high a percentage he found.
The critical questions, in my view, are the following:
(a) Whether Professor Ryan has identified valid deficiencies in Dr Cameron's assessment, and
(b) Whether, if any deficiencies were found and corrected, there was a reasonable prospect of a reassessment producing a finding of a WPI in excess of 10%.
In addressing the above questions I am firmly of the view that the exercise should not involve the court conducting any type of medical assessment. A judge should not, and in fact could not, conduct his or her own assessment of whether an injured person has a WPI in excess of 10%.
Turning to the first of the two questions I set out above, in my view Professor Ryan has accurately identified deficiencies in Dr Cameron's Reasons. Professor Ryan is not critical of the whole of Dr Cameron's assessment but he does identify, and highlight, what he considers to have been notable lapses. Having identified these lapses Professor Ryan then concluded that there were reasonable grounds for the review. Professor Ryan was not required for cross-examination and his step from the identified lapses to his conclusion was not tested. In my view, absent some obvious mistake in his approach (which has not been identified), there is no reason why I should not accept his reasoning. It certainly cannot be said that Professor Ryan is not qualified to express his opinion. He seems to be the best qualified, in the field of orthopaedic medicine, of all the doctors involved in the case.
The more difficult question I think is whether or not, based on Professor Ryan's opinion, there is a reasonable prospect that a reassessment would increase the WPI to a percentage in excess of the threshold. The plaintiff submitted that this possibility was open, if not probable, because Drs Ellis and Dixon had come to a percentage that was more than double the threshold. In addition, the plaintiff submitted that an examination of Table 4.1 of the MAA Permanent Impairment Guidelines, together with the Guides to the Evaluation of Permanent Impairment, would produce a finding well in excess of 10% in particular if the radiculopathy referred to by Professor Ryan was found to exist.
The defendant submitted that the findings of Drs Dixon and Ellis should be treated with caution, firstly because Dr Menogue had an ostensibly equally valid opinion and secondly because Dr Menogue's later opinion (of 0%) was more recent and therefore more likely to be reflective of any assessment conducted in a review. I note that Dr Menogue does not explain how his assessment dropped from 5% to 0% especially as the assessment of WPI is required to be performed having first reached a conclusion that the relevant condition had stabilised. There is, in fact, no explanation as to why there should be such a wide range of WPI assessments conducted over such a short range of time. This fluctuation I think reinforces the approach taken by the plaintiff in engaging Professor Ryan to not ask him to conduct his own WPI assessment.
Returning to the question of whether there is a reasonable prospect that a review could overcome the threshold I am of the view, contrary to the defendant's submission, that Professor Ryan does, by strong inference, reach this conclusion.
The letter of instructions to Professor Ryan is dated 4 April 2011 and is part of Exhibit B. These instructions, in my view, make it absolutely clear that the Professor's opinion is being sought because Dr Cameron had assessed the plaintiff's WPI below 10%. Medical practitioners, carrying out WPI assessments, no doubt know the importance of the threshold.
Professor Ryan's opinion that there are reasonable grounds for review carries with it the inference that a review has the purpose of achieving a greater than 10% WPI. That is the very purpose of the review. I therefore reject the defendant's submission that Professor Ryan does not conclude that a review would make a relevant difference.
I think I have answered the two questions I have set myself above in favour of the plaintiff. The defendant, however, made a further submission going to my general discretion. It was a submission that I think deserves serious consideration. Learned counsel for the defendant submitted that assessments could not be perfect. It could not be the intention of the Act that each time a plaintiff did not obtain a favourable certificate that a review could be obtained on the basis of a detailed inspection of the reasons behind the certificate identifying errors of detail or description.
There is no doubt that if the identification of mistakes could produce reviews then the system could not effectively operate. The identification of mistakes, however, is not of itself a reason for review. There must be more and that extra component is the link between the mistakes (or deficiencies) and the ultimate result. In this case Professor Ryan has identified the deficiencies and concluded, as I have found, that if corrected a different, and relevant, result might follow.
In other words, Professor Ryan goes further than simply saying Dr Cameron is wrong or has made some errors. Professor Ryan has taken the next step and concluded that there are reasonable grounds for the review as a result of his findings. It is this extra step that in my view dictates the exercise of the discretion in favour of the plaintiff.
Accordingly I make an order pursuant to Section 62(1)(b) of the MACA that the plaintiff be referred for further medical assessment.
I note from the file that certain costs orders have been reserved. I will hear the parties on costs.
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Decision last updated: 23 June 2011
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