Cic Allianz Insurance Limited v Pillay

[2017] NSWSC 1638

Supreme Court

New South Wales

Medium Neutral Citation:

CIC Allianz Insurance Limited v Pillay [2017] NSWSC 1638

Hearing dates:

16 November 2017

Date of orders:

04 December 2017

Decision date:

04 December 2017

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1)   The decision of the third defendant, the Medical Assessors Review Panel, of 25 February 2017 is set aside.

 

(2)   The matters which were the subject of the decision of the third defendant are remitted to the second defendant for re-allocation to a differently constituted Medical Assessors Review Panel for determination according to law.

 (3)   Absent agreement, the parties are to file with my Associate written submissions as to costs within 14 days, such submissions not to exceed two (2) pages in length.

Catchwords:

ADMINISTRATIVE LAW – Judicial Review – Decision of medical review panel – Whether panel reached a conclusion in the absence of evidence – Whether panel engaged in a proper exercise of clinical judgment – Error established – Matter remitted to a differently constituted panel

 

ADMINISTRATIVE LAW – Practice and procedure - Judicial Review – Decision of medical review panel – Whether panel’s reasons adequate

  ADMINISTRATIVE LAW – Judicial review – Practice and procedure – Whether court should refuse relief in the exercise of discretion – Whether the result of a further medical assessment following the remittal of the matter would inevitably be the same as that reached by the review panel – Where one of the errors found was that the panel failed to exercise its proper clinical judgment – Not possible to reach a conclusion that the result of a further assessment would be the same – Not an appropriate case in which to exercise the discretion to refuse to grant relief

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

AAI Limited v Fitzpatrick (2015) 72 MVR 97; [2015] NSWSC 1108
Allianz Insurance Limited v Francica (2012) 63 MVR 1; [2012] NSWSC 1577
Allianz Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWSC 39; (2014) 66 MVR 140
NRMA Insurance Limited v Mulcahy [2017] NSWSC 1499
Rutland v Allianz Australia Insurance Limited [2014] NSWSC 1583; (2014) 68 MVR 533
Sadsad v NRMA Insurance Limited (2014) 67 MVR 601
Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43
Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1

Category:

Principal judgment

Parties:

CIC Allianz Insurance Limited – Plaintiff
Sagaren Pillay – First defendant
State Insurance Regulatory Authority – Second defendant
The Medical Assessors Review Panel comprising Assessors Christopher Oates, Geoffrey Stubbs and Clive Kenna – Third defendant

Representation:

Counsel:
J Gumbert - Plaintiff
J Turnbull SC and H Ward – First defendant

  Solicitors:
McInnes Wilson Lawyers – Plaintiff
AM Legal – First defendant
Submitting appearance – Second defendant
Submitting appearance – Third defendant

File Number(s):

2017/155126

Publication restriction:

Nil

Judgment

INTRODUCTION

1. By a further amended summons filed on 6 November 2017, CIC Allianz Insurance Limited (“the plaintiff”) seeks orders in the following terms:

1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and certificate of the third defendant, the medical assessors review panel as was constituted by the State Insurance Regulatory Authority (“SIRA”), the second defendant, namely, the assessment dated 25 February 2017, made purportedly pursuant to sections 63 and 61 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) (“the review panel decision”).

2. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the Review Combined Certificate and Reasons dated 2 March 2017, issued by the medical assessors review panel (“The Review Combined Certificate”).

3. An order in the nature of mandamus remitting the matters the subject of the review panel decision and the Review Combined Certificate to the second defendant for reallocation of the matter to a differently constituted medical assessors review panel for determination of the matter according to law.

4. If necessary, an interim order or stay in the nature of prohibition or an interlocutory injunction preventing the defendants or any of them or their officers, servants or agents from acting on or taking any further step in reliance on the Review Combined Certificate or the review panel decision or either of them until the final determination of these proceedings or until further order.

5. Any such further or other order as the Honourable Court deems fit.

6. An order that the first defendant pay the plaintiff’s costs.

2. The further amended summons is supported by an affidavit of Katherine Elizabeth Toshack dated 23 May 2017 which was read without objection.

3. The first defendant tendered three documents which were admitted without objection, namely:

1. a report of Peter Baziotis, Osteopath, which was (erroneously) dated 21 November 2012 but which should have been dated 21 November 2013 (Exh. 1);

2. a further report of Mr Baziotis of 21 November 2014 (Exh. 2); and

3. the first defendant’s submissions made to the Panel Medical Review Panel (Exh. 3).

FACTUAL BACKGROUND

4. The factual background is essentially not in dispute and may be summarised as follows.

The first defendant’s accident and subsequent medical assessment

5. The first defendant was injured in a motor vehicle accident on 7 October 2014 (“the accident”). The plaintiff is the Compulsory Third Party insurer of the vehicle at fault. Following the accident, the first defendant lodged a claim for compensation with the plaintiff, pursuant to the provisions of the Motor Accidents Compensation Act 1999 (NSW) (“the MACA”). An application was then made to the State Insurance Regulatory Authority of NSW (“the Authority”) for a medical assessment of the first defendant’s injuries, pursuant to Part 3.4 of the MACA. That medical assessment was necessary in order to determine what, if any, entitlement the first defendant may have to damages for non-economic loss under the MACA.

6. By virtue of the operation of s. 133(2) of the MACA, the medical assessment was required to be made in accordance with the Guidelines for the Assessment of the Degree of Permanent Impairment (“the Guidelines”). The Guidelines are dated 1 October 2007 and have been published pursuant to s. 44(1)(c) of the MACA. They have the status of delegated legislation.

7. The first defendant was subsequently referred by the Authority to a medical assessor, Dr Geoffrey Boyce, for assessment of the following injuries:

1. cervical spine/neck disc bulges and protrusions, soft tissue injury;

2. left shoulder soft tissue injury/SLAP lesion, supraspinatus tendinitis and tears;

3. right shoulder soft tissue injury;

4. left arm soft tissue injury; and

5. thoracic spine soft tissue injury.

8. On 10 November 2015, Assessor Boyce issued a certificate and reasons in which he determined that the following injuries were caused by the accident:

1. cervical spine/neck disc bulges and protrusions, soft injury;

2. left shoulder soft tissue injury/SLAP lesion, supraspinatus tendinitis;

3. thoracic spine soft tissue injury.

9. Assessor Boyce concluded (inter alia) that:

1. the injury to the first defendant’s cervical spine gave rise to a 5% whole person impairment;

2. the injury to the first defendant’s thoracic spine gave rise to 0% whole person impairment; and

3. any injury to the first defendant’s left shoulder was not yet permanent.

10. In reaching these conclusions, Assessor Boyce said:

I have noted the correspondence from Mr Peter Baziotis dated 21.11.2013 ‘On 18.05.2013 Sagaren consulted me experiencing intermittent episodes of neck, bilateral shoulder, interscapular and low back pain associated with hip and thigh pain’.

11. Importantly, Assessor Boyce also said:

Mr Pillay has no symptoms in his right or left arms at the present time, and my examination of these is completely normal. He may have had soft tissue injuries there; however in my opinion they have entirely resolved.

12. The first defendant underwent a further assessment by Assessor Boyce on 20 September 2016. On that occasion, Assessor Boyce issued a further certificate and reasons in which he found that the first defendant had an injury to the left shoulder which was caused by the accident. He assessed the whole person impairment in respect of that injury at 5%. In reaching that conclusion, Assessor Boyce said (inter alia):

Mr Pillay was involved in a motor vehicle accident on 07.10.2014. He had a prior history of C6/7 radicular complaints which had resolved by this accident.

…

He has been found to have a significant lesion in his left shoulder. He is not having surgery for this and remains under osteopathic care. Mr Pillay has no other symptoms in his arms of a radicular type. His previous radiculopathy resolved, as confirmed by Dr Reddy Neurosurgeon.

13. On 29 September 2016 medical assessor Alison Fitzgerald issued a combined certificate, certifying that the first defendant’s total whole person impairment was 10%. This was constituted by a 5% impairment in respect of the injury to the cervical spine and a 5% impairment in respect of the injury to the left shoulder.

The application by the first defendant for a review of the medical assessment

14. Following the determination of Assessor Boyce, the first defendant sought, and was granted, a review pursuant to s. 63 of the MACA. Following this, the matter was referred to a Medical Assessment Review Panel comprising Assessors Christopher Oates, Geoffrey Stubbs and Clive Kenna (“the Panel”). It was common ground between the parties that Exhs. 1, 2 and 3 before me formed part of the evidence before the Panel.

15. In Exh. 1 Mr Baziotis reported to the first defendant’s general practitioner, Dr Wassif, in (inter alia) the following terms:

Thank you for your referral regarding Mr Sagaren Pillay.

On 18th May 2013, Sagaren consulted me experiencing intermittent episodes of neck, bilateral shoulder/interscapular and low back pain associated with hip and thigh pain.

In my opinion, his conditions are related to minor degenerative joint disease and increased loading from work and daily activities. His conditions demonstrate reduced ranges of movement in the cervical, thoracic and lumber, and in the shoulders and hips. These conditions are unstable and produce episodes of pain.

16. On 21 November 2014 Mr Baziotis further reported to Dr Wassif (Exh 2) in (inter alia) the following terms:

On 10th May 2014, Sagaren consulted me experiencing intermittent episodes of neck, bilateral shoulder/interscapular and low back pain associated with hip and thigh pain.

In my opinion, his conditions are related to minor degenerative joint disease and increased loading from work and daily activities. His conditions demonstrate reduced ranges of movement in the cervical, thoracic & lumber spines, and in the shoulders and hips. These conditions are unstable and produce episodes of pain.

17. The submissions made to the Panel on behalf of the first defendant (Exh 3) included the following (at para 1):

…Dr (sic) Boyce should have assessed the Claimant’s left shoulder whole person impairment at 8% instead of 5% as per the reasons set out in page 2 of Dr Conrad’s report.

It is noted that the permanent impairment rating of 8% made by Dr Conrad was done on 25/05/2015, some 16 months before Assessor Boyce’s examination on 20/09/2016.

The Insurer refers to point 1.23 of the Permanent Impairment Guidelines wherein is states (sic) “the evaluation should only consider the impairment as it is at the time of assessment”

Assessor Boyce has correctly assessed the claimant as at time of the examination and found 5% permanent impairment to the left shoulder and therefore no error is found on this point

the Insurer notes that Dr Conrad has incorrectly placed 3% whole person Impairment for “external rotation”. F44 has 40 degrees at 1%.

The determination of the Review Panel

18. The Panel issued a certificate and reasons on 25 February 2017 under the hand of Dr Christopher Oates, one of the Panel members. Under the heading “Panel Deliberations” the following was stated:

Injuries:

Left shoulder soft injury/slap lesion, supraspinatus tendinitis and tears – the Panel decided the accident was a cause of this injury because it is mentioned on the PICF, the medical certificate, the GP records from 28/10/2014. The Panel noted these records referred to chronic left shoulder pain pre-MVA, however it seems that this was more likely referred symptoms from a left cervical radiculopathy. There was no objective evidence of a symptomatic left shoulder condition present at the time of the subject MVA.

19. Under the heading “Permanent Impairment” the following was stated:

The Panel agreed with Assessor Boyce that the left shoulder remained symptomatic and there was evidence of assessable permanent impairment. The Assessor’s examination findings are commensurate with that expected from the pathology demonstrated on MR arthrography. 110° flexion gives 5% UEI (upper extremity impairment), abduction 110° gives 3% UEI, internal rotation of 65° gives 1% UEI and 40° external rotation gives 1% UEI. Adding these gives 10% UEI or 6% WPI.

As noted above, there was no objective evidence of a symptomatic left shoulder impairment existing immediately before the subject MVA which would form the basis for making a deduction.

The Panel noted that the right shoulder was a referred injury related to the MVA which the Assessor found had resolved in his previous Certificate of 10/11/2015. The Panel could not use the Assessor’s recorded right shoulder ROM as a baseline to subtract from the left shoulder impairment because it was not an ‘uninjured’ joint (Clause 2.5, p 9, PIG) (emphasis added).

For all reviews

The Panel agreed with the Assessor that the accident was a cause of the left shoulder injury; however it did not agree with the permanent impairment of 5% calculated by the Assessor based on his recorded examination findings.

20. Under the heading “Panel Decision” the Panel stated the following:

The Review Panel found that the accident WAS a cause of the following claimed injuries:

Left shoulder soft tissue injury / slap lesion, supraspinatus tendinitis and tears.

The Review Panel considered that the following injuries give rise to a permanent impairment:

Left shoulder soft tissue injury / slap lesion, supraspinatus tendinitis and tears.

The degree of whole person permanent impairment of the injuries caused by the accident was calculated as follows:

Body Part of System	AMA Guides / Guidelines References (chapter/page/table)	Permanent (YES/NO)	Current % WPI*	% WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1	Left shoulder	AMA 4, chapter 3, t3, p.20, figs 38, 41, 44, pp. 43-45	YES	6	0	6

*% WPI = percentage whole person impairment

Determination Regarding the Degree of Whole Person Impairment of the Injured Person as a Result of the Injuries Cause by the Motor Accident.

The total percentage whole person impairment for assessed injuries caused by the motor accident is 6%.

The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and the Impairment Assessment Guidelines.

Permanent impairment ratings take symptoms into account, however the percentage whole person permanent impairment is not a direct measure of disability. A finding of zero percent whole person impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides rate the associated impairment at zero %WPI.

Permanent Impairment

The Review Panel’s findings in relation to the degree of permanent impairment of the injuries caused by the accident are different to the findings as stated in the Permanent Impairment Certificate issued by Assessor Boyce. The Panel found a different Permanent Impairment from the left shoulder injury. Accordingly the Review Panel has determined that this Certificate is to be revoked and a new Permanent Impairment certificate has been issued by the Review Panel.

21. The effect of the Panel’s determination was that when combined with the earlier assessment of the first defendant’s whole impairment of 5% in respect of the cervical spine injury, his total whole person impairment was 11%. Pursuant to s. 131 of the Act, that assessment entitled the first defendant to damages for non-economic loss because his level of whole impairment exceeded 10%.

22. The certificate issued by the Panel incorporated its reasons. In this regard s. 61(9) of the MACA is in the following terms:

61 Status of Medical Assessments

…

(9) 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.

THE PRESENT PROCEEDINGS

23. The proceedings now brought by the plaintiff seek judicial review of the Panel’s determination on the grounds more fully set out below. The plaintiff invokes the court’s supervisory jurisdiction which is derived principally from s. 69 of the Supreme Court Act 1970 (NSW). The proceedings do not involve a review of the merits of the Panel’s decision. The court’s jurisdiction arises where there is an error of law on the face of the record, or jurisdictional error: NRMA Insurance Limited v Mulcahy [2017] NSWSC 1499 at [19] per Adamson J.

24. Whether error on the face of the record has been shown is confined to an examination of the record itself: Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 at 180-181. However, evidence may be given of what was before the decision-maker if it is germane to establishing jurisdictional error: Allianz Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [15].

25. The plaintiff takes no issue with the Panel’s determination that the first defendant’s left shoulder injury gives rise to a whole person impairment of 6% (as opposed to the 5% calculated by Assessor Boyce). The plaintiff accepted that in this respect there appeared to have been a mathematical error in Assessor Boyce’s calculations. However, it was the plaintiff’s position that in the event that error was found, the matter should nevertheless be remitted to a differently constituted Panel. I have addressed this submission further below.

THE GUIDELINES

26. Two particular provisions of the Guidelines are relevant in light of the grounds relied upon by the plaintiff.

27. Clause 1.3 of the Guidelines is in the following terms:

The convention in these MAA Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed.

28. Clause 2.5 of the Guidelines (which I note is printed in bold and is therefore to be regarded as a directive) is in the following terms:

2.5 If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation the injured joint would have had similar findings to the uninjured before injury. The rationale for this decision should be explained in the impairment evaluation report.

THE GROUNDS RELIED UPON BY THE PLAINTIFF

Ground 1 – The Review Panel reached a finding when there was no evidence to do so

Submissions of the plaintiff

29. The plaintiff submitted that in making its decision, the Panel in erred in reaching one or more findings in the absence of evidence. Specifically in this respect, the plaintiff challenged the Panel’s findings that:

1. the assessor had concluded that the first defendant’s right shoulder injury was a referred injury related to the accident which had resolved prior to the medical assessment; and

2. the first defendant’s right shoulder was not an “uninjured joint”.

30. As to the first of those matters, it was submitted that the Panel’s determination in the first part of the italicised passage of that part of its reasons set out at [19] above was incorrect, for the simple reason that on a proper construction of what he had said, Assessor Boyce had not found that any right shoulder injury had resolved. It was submitted that on this basis alone, error was established.

31. It was further submitted that there was no history of complaints of right shoulder symptoms recorded in Assessor Boyce’s decision of 10 November 2015, that he had found no evidence of any injury to the left arm or the right arm, and that although he had stated that the first defendant may have had soft injuries to the right or left arm, he did not list any right shoulder injury amongst those injuries that had resulted from the accident. It was submitted that the only reference to a right shoulder injury in the Certificate of Assessor Boyce was the fact that a right shoulder injury had been listed in the injuries to be assessed by him.

32. It was further submitted that the panel’s conclusion that the right shoulder was not an “uninjured” joint was factually erroneous, and unsupported by any evidence. In advancing that submission, counsel for the plaintiff accepted that the Panel’s conclusion was not couched in those precise terms. However, it was submitted that the Panel’s conclusion that it “could not use the Assessor’s recorded right shoulder ROM as a baseline to subtract from the left shoulder impairment because it was not a single uninjured joint” (in the second part of the italicised passage in [19] above) was tantamount to reaching a conclusion that the right shoulder was not an “uninjured” joint. That, it was submitted, was effectively another way of the Panel expressing a conclusion that the first defendant had, in fact, suffered a right shoulder injury, in circumstances where there was no evidence to support such conclusion.

33. The plaintiff submitted that at its highest, Assessor Boyce had found that the first defendant had no symptoms “in his right or left arms”. It was submitted that for that purpose, the “arm” was not to be equated with the “shoulder”. However, counsel submitted that even if an extended interpretation were adopted so as to include “shoulder” in the description of “arm”, it remained the case that the certificates of Assessor Boyce provided no basis for any such conclusion.

34. Finally, it was submitted that the reports of Mr Baziotis provided no support for a conclusion that the first defendant had suffered any injury to his right shoulder, either before or after the accident. Counsel submitted that a complaint of pain in the right shoulder (which was what Mr Baziotis had recorded) did not equate to an “injury” to the right shoulder for the purposes of assessment. In this regard, counsel cited the definition of injury as:

“wrongful action or treatment; violation or infringement of another’s rights; suffering or mischief wilfully and unjustly inflicted; a wrongful act; a wrong inflicted or suffered.”

Submissions of the first defendant

35. Senior counsel for the first defendant submitted that there was no doubt that the first defendant had suffered an injury to his right shoulder prior to the accident because “so much is noted by Assessor Boyce …. when he refers to Mr Baziotis’ recording as much and also recording the fact that the (first defendant) had had osteopathic treatment for both shoulders”. Senior counsel further submitted that it was clear that Assessor Boyce was aware that the first defendant “had problems” with his right shoulder prior to the motor vehicle accident.

36. Senior counsel accepted, as I understood it, that the certificates and reasons of Assessor Boyce did not include any express finding in respect of an injury to the first defendant’s right shoulder. In these circumstances, he accepted, as I understood it, that that part of the Panel’s conclusion which was the focus of this ground “might be incorrect”. However, senior counsel submitted that whether or not the first defendant’s right shoulder was injured in the motor vehicle accident was irrelevant because Mr Baziotis had found (as evident from Exhs 1 and 2) that the right shoulder had previously been injured. It was submitted that, as a consequence, the Panel had correctly concluded that the first defendant’s right shoulder was not an uninjured joint. It was submitted that in circumstances where the reports of Mr Baziotis were before the Panel, the Panel was cognisant of the fact that the right shoulder could not be used as a baseline because it was not uninjured.

Consideration

37. As set out at [19] above, in the third paragraph of its reasons under the heading “Permanent Impairment”, the Panel concluded (inter alia) that the first defendant’s right shoulder was a referred injury related to the accident which Assessor Boyce “found had resolved in his previous certificate of 10 November 2015”. That conclusion was demonstrably incorrect. Nowhere in Assessor Boyce’s certificates did he express any such finding, or any finding to that general effect. That conclusion was reached by the Panel in circumstances where there was no evidence to support it.

38. I am unable to accept the proposition advanced on behalf of the first defendant that Assessor Boyce had effectively noted that the first defendant had suffered an injury to the right shoulder. Read carefully, Assessor Boyce noted no such thing. In fact, what he did was make reference to parts of the reports of Mr Baziotis which disclosed that the first defendant had consulted Mr Baziotis for (inter alia) episodic shoulder pain. Obviously, pain may result from an injury. However, as the definition of the word “injury” (at [34] above) demonstrates, the two terms are not interchangeable.

39. I am similarly unable to accept the submission that what was effectively conceded to be an incorrect statement made by the Panel was, in effect, “saved” by the reports of Mr Baziotis. As I have set out, Mr Baziotis recorded complaints of pain. Pain may well be a consequence of injury, but the two are not the same.

40. I am also unable to accept the submission that the conclusion reached by the Panel which is the subject of this ground was irrelevant. The task of the Panel was to conduct an assessment of injury. The Panel reached a demonstrably incorrect conclusion which was germane to its task.

41. The Panel’s error constitutes an error of law. Error having been found, it is strictly speaking unnecessary for the remaining grounds to be considered. However, as they were fully argued, it is appropriate that I express my views in relation to them.

Ground 2 – The Review Panel failed to apply the Guidelines for the Assessment of the Degree of Permanent Impairment dated 1 October 2007.

Submissions of the plaintiff

42. Counsel for the plaintiff submitted that the Panel was under an obligation to apply the Guidelines. It was submitted that having reached an incorrect conclusion as to the findings made by Assessor Boyce, the Panel then found that it could not use Assessor Boyce’s recorded range of movement in the right shoulder as a baseline on which to assess the level of impairment in the left shoulder because the right shoulder was not an uninjured joint. It followed, in counsel’s submission, that the Panel had made no attempt to apply, or properly apply, Clause 2.5 of the Guidelines.

43. It was submitted that such failure was an error of law, or a constructive failure of the Panel to perform its duty, brought about by the Panel’s erroneous conclusion which is the subject of ground 1. It was submitted that had the Panel lawfully undertaken its task, it may have been open to it not to deduct the right shoulder impairment but that in failing to even consider whether the impairment ought be deducted, the Panel had fallen into error.

Submissions of the first defendant

44. To a large extent, senior counsel for the first defendant relied upon his submissions in respect of ground 1 in support of his position on this ground.

45. In particular, he submitted that the panel’s finding that the right shoulder joint was not an uninjured joint was, for the reasons previously advanced, the correct one.

Consideration

46. Ground 2 is inextricably linked to ground 1. For the reasons that I have already expressed, the Panel’s conclusion that Assessor Boyce had found that a previous right shoulder injury had resolved was incorrect.

47. It is apparent from the Panel’s reasons that this erroneous finding was used as the basis for the conclusion that the recorded right shoulder range of movement could not be used as a baseline because the right shoulder was not a “single uninjured joint”. That conclusion was based on a false premise and led to the panel failing to apply cl. 2.5 of the Guidelines.

48. It follows that this ground is made out.

Ground 3 – The Review Panel failed to provide lawful and/or adequate reasons for its determination

Submissions of the plaintiff

49. Counsel for the plaintiff submitted that in making its decision, the Panel was required to provide adequate reasons for its determination. It was submitted that the Panel’s failure to state its path of reasoning was a further error.

50. It was submitted that the Panel failed to explain the conclusions it reached, particularly its conclusion that the first defendant had suffered a right shoulder injury. It was further submitted that the Panel had failed to provide reasons for its conclusion that the first defendant’s right shoulder was not an “uninjured” joint for the purposes of clause 2.5 of the Guidelines. It was submitted that in this respect, the reasons of the Panel amounted to little more than a bald conclusory statement, which was made without explanation, and which fell substantially short of exposing the reasoning process which it had adopted.

Submissions of the first defendant

51. Senior counsel for the first defendant submitted that the Panel’s path of reasoning was exposed by its statement that:

1. that the right shoulder was not uninjured; and

2. it could therefore not be used as a baseline.

Consideration

52. I have previously set out the provisions of s. 61(9) of the MACA which impose obligations upon Assessors to provide reasons. Clause 16.24 of the Guidelines further provides:

…The Panel shall issue its determination and any certificates accompanied by written reasons for the determination, in the form approved by the Authority.

53. In Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 the High Court made the following relevant observations in relation to the duty to give reasons (at [55]):

[55] 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.

54. The statutory scheme under consideration in Wingfoot was substantially similar to that prescribed by the MACA: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39; (2014) 66 MVR 140 at [2]; [40]. As a result, the observations in Wingfoot have been applied to reasons given by medical assessors when performing their functions under the MACA: see for example Zahed v IAG Limited t/as NRMA Insurance (2016) 75 MVR 1 at [34]. Moreover, the provision of reasons is a requirement imposed upon a medical assessor by virtue of the Guidelines, which have the status of delegated legislation: AAI Limited v Fitzpatrick (2015) 72 MVR 97; [2015] NSWSC 1108 at 13]; Sadsad v NRMA Insurance Limited (2014) 67 MVR 601; Allianz Insurance Limited v Francica [2013] NSWSC 1577; (2012) 63 MVR 1; Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284.

55. It is important to bear in mind that in determining this ground, it is not appropriate to parse the language of the Panel in the way that an appellate court might review the judgment of a single judge, nor is it appropriate to examine the reasons with a critical eye attuned to error: Sadsad at [16] and the authorities cited therein. The ultimate question is whether the reasons given disclose the pathway of reasoning by which the Panel arrived at its conclusions: Wingfoot at [55].

56. Bearing in mind these principles, I am of the view that this ground is made out. In my view, the Panel’s certificate discloses no path of reasoning at all. Even accepting the two propositions advanced by senior counsel for the first defendant, the precise basis upon which the panel found that the right shoulder was “not uninjured” is not explained. If it is the case that such a finding was based upon the Panel’s interpretation of the conclusions reached by Assessor Boyce, such interpretation was erroneous for the reasons that I have already expressed.

57. It follows that this ground has been made out.

Ground 4 – The Review Panel failed to undertake its own assessment

Submissions of the plaintiff

58. The plaintiff submitted that in making its decision the Panel failed in its obligation to undertake its own assessment, and had done nothing more than (erroneously) make reference to, and adopt, a finding which was said to have been made by Assessor Boyce, but which was not in fact made. It was submitted that this fact alone demonstrated a failure on the part of the Panel to conduct its own assessment.

Submissions of the first defendant

59. Senior counsel accepted that it was the task of the Panel to carry out an assessment. However, it was submitted that properly understood, the Panel had regard to the findings of Assessor Boyce and concluded that those findings were sufficiently detailed to allow it to make an assessment of permanent impairment. It was submitted that it was open to the Panel to adopt the findings of other assessors, and at the same time still be undertaking its own assessment.

60. Senior counsel also emphasised that it was not necessary in every case that an injured person be re-examined by a Review Panel, and that it remained open to the Panel to assess the material before it, review it, and come to a conclusion. It was submitted that this did not involve anything more than the Panel’s use of its collective medical knowledge in order to make an assessment of the level of whole person impairment.

Consideration

61. Section 63(3A) of the MACA is in the following terms:

63 REVIEW OF MEDICAL ASSESSMENT BY REVIEW PANEL

(3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.

62. Medical assessors are obviously entitled to rely upon their own expertise in making their assessments. That extends to relying upon such expertise to determine whether re-examining an injured party is necessary for the purposes of carrying out their task: Boyce v Allianz Australia Insurance Limited [2017] NSWSC 780; (2017) 80 MVR 366 at [53]. The fact that the Panel chose not to re-examine the first defendant does not disclose error.

63. At the same time, the Panel was under an obligation to carry out an assessment of the nature and extent of the first defendant’s injuries sustained in the accident. In other words, the Panel was required to determine afresh the medical assessment issues which were referred to it: Frost at [39] per Leeming JA. That required the Panel to engage in a process of clinical judgment having regard to the material which was before it. In Rutland v Allianz Australia Insurance Limited [2014] NSWSC 1583; (2014) 68 MVR 533 Garling J explained the nature of the Panel’s task, in terms which I respectfully adopt (at [74]):

… [W]hat is required of the review panel by the Act is that it conducts its own assessment of the extent of the whole person impairment of the claimant. In order to do so, in accordance with the guidelines, it must engage in an exercise of clinical judgment. It does so on the basis of the claimant’s history as contained in all of the documents with which the review panel is provided.

64. In my view, the Panel failed to perform that task, and thus failed to properly engage in the process of assessment. That failure is evident from the Panel’s blanket adoption of an asserted conclusion reached by Assessor Boyce. For the reasons outlined, no such conclusion was ever actually reached.

65. That is not to say that it is not open to one medical assessor to consider and adopt the findings of a previous medical assessor. However in doing so, it remained incumbent upon the Panel to engage in its own exercise of clinical judgment. I accept the submission of counsel for the plaintiff that the Panel’s adoption of the asserted conclusion of Assessor Boyce is, of itself, indicative of a failure on the part of the Panel to engage in that exercise.

66. It follows that this ground is made out.

THE EXERCISE OF DISCRETION

67. It was submitted on behalf of the first defendant that even if error was made out, I should exercise my discretion to refuse the relief which was sought, in light of the concession made by the plaintiff (at [25] above) regarding the relevant mathematical calculations. It was submitted that in light of that concession, the result of any further medical assessment would inevitably be the same, such that remitting the matter for such an assessment would be futile.

68. I am not persuaded that this is the case for two principal reasons. Firstly, for the reasons set out at [63], if the matter were remitted to a differently constituted Review Panel, that Review Panel would be required to make a fresh determination of the issues referred to it. Secondly, one of the complaints made by the plaintiff, which I have found has been made out, is that the Panel erroneously adopted what was said to have been a conclusion reached by Assessor Boyce which was never in fact reached. Another complaint, which has also been made out, is that there was a failure on the part of the Panel to properly engage in an exercise of clinical judgment in making an assessment of the first defendant’s injuries. What conclusions might be reached when the matter is considered afresh, purported conclusions are not incorrectly taken into account, and clinical judgment is properly exercised, will be a matter for those who are appropriately qualified to reach those conclusions. In my view, it could not be said that those conclusions will inevitably be the same as those which were reached in the course of the adoption of a process which was infected by error.

69. For those reasons, this is not an appropriate case for the exercise of the court’s discretion not to grant the relief which has been sought.

ORDERS

70. I make the following orders:

1. The decision of the third defendant, the Medical Assessors Review Panel, of 25 February 2017 is set aside.

2. The matters which were the subject of the decision of the third defendant are remitted to the second defendant for re-allocation to a differently constituted Medical Assessors Review Panel for determination according to law.

1. Absent agreement, the parties are to file with my Associate written submissions as to costs within 14 days, such submissions not to exceed two (2) pages in length.

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Decision last updated: 04 December 2017