Cupac v Motor Accidents Authority - [2010] NSWSC 631

No judgment structure available for this case.

CITATION: Cupac v Motor Accidents Authority [2010] NSWSC 631

HEARING DATE(S): 12 April 2010

JUDGMENT DATE :
28 June 2010

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The plaintiff's application for judicial review fails.
(2) The summons filed 5 November 2009 is dismissed.
(3) The plaintiff is to pay the fourth defendant's costs as agreed or assessed.

CATCHWORDS: ADMINISTRATIVE REVIEW - Judicial Review - ERROR OF LAW - Medical assessment under Motor Accidents Compensation Act 1999 - APPEAL against decision of MAS Assessor and Proper Officer of Motor Accidents Authority - Whether error on the face of the record or jurisdictional error

LEGISLATION CITED: Motor Accidents Compensation Act 1999
Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: Abede v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Attorney-General for New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1
Bruce v Cole (1998) 45 NSWLR 163
Buck v Bavone (1976) 135 CLR 110
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Craig v State of South Australia [19995] HCA 58; (1995) 184 CLR 163
Cross v McHugh [1974] 1 NSWLR 500
Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531
Martin v Kelly [2008] NSWSC 577
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; [2007] 235 ALR 609
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Vitaz v Westform (NSW) Pty Limited [2010] NSWSC 667
Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; (2005) 139 LGERA 296

TEXTS CITED: American Medical Association Guides to the Evaluation of Permanent Impairment (1995) 4th ed
MAA Permanent Impairment Guidelines (1 October 2007)

PARTIES: Bore Cupac (Plaintiff)
Motor Accidents Authority of New South Wales ( First Defendant)
MAS Assessor (Second Defendant)
Proper Officer, Motor Accidents Authority of New South Wales (Third Defendant)
Allianz Australia Insurance Limited (Fourth Defendant)

FILE NUMBER(S): SC 2009/298141

COUNSEL: B K Nolan (Plaintiff)
Submitting Appearance (First, Second & Third Defendants)
K P Rewell SC (Fourth Defendant)

SOLICITORS: NSW Compensation Lawyers (Plaintiff)
Crown Solicitor's Office (First, Second & Third Defendants)
Moray & Agnew (Fourth Defendant)

LOWER COURT JURISDICTION: Motor Accidents Authority of New South Wales

LOWER COURT FILE NUMBER(S): 2009/04/0684

LOWER COURT DATE OF DECISION: 24 June 2009, 22 July 2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

MONDAY, 28 JUNE 2010
2009/298141 BORE CUPAC v MOTOR ACCIDENTS

AUTHORITY & 3 ORS

JUDGMENT (Judicial review – Motor Accidents

Authority – MAC Act)

1 HER HONOUR: By summons filed 5 November 2009, the plaintiff seeks firstly, an order in the nature of certiorari setting aside the decision of the second defendant in MAS matter No. 2009/04/0684 dated 24 June 2009 on the basis that the decision was vitiated by jurisdictional error and/or error on the face of the record and was of no effect; secondly, an order in the nature of certiorari setting aside the decision of the third defendant in MAS matter No. 2009/04/0684 dated 22 July 2009 on the basis that the decision was vitiated by jurisdictional error and/or error on the face of the record and was of no effect; and thirdly, an order in the nature of mandamus that the second defendant exercise his power according to law. The plaintiff relied on the affidavit of Vic Petrovich dated 29 October 2009.

2 The plaintiff is Bore Cupac (“Mr Cupac”). The first defendant is the Motor Accidents Authority of New South Wales (“the MAA”). The second defendant is the medical assessor, Dr David Maxwell (“the MAS Assessor”). The third defendant is Ellen Wood, Proper Officer of the Motor Accidents Authority (“the Proper Officer”). The fourth defendant is Allianz Australia Insurance Limited (”Allianz”). The first, second and third defendants have filed submitting appearances.

Judicial review generally

3 This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970.

4 In Martin v Kelly [2008] NSWSC 577, Johnson J at [13]-[23], made some helpful remarks on the confines of judicial review. I respectfully adopt and repeat them here. They are:

Attorney-General for New South Wales v Quin

14 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44].

15 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41.

16 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

Relief in the Nature of Certiorari

17 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.

18 …

Craig v South Australia

‘If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’

Minister for Immigration and Multicultural Affairs v Yusuf

Craig v South Australia

21 Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].

22 In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41.

Buck v Bavone

Bruce v Cole

5 Recently, in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, the High Court discussed jurisdictional error in Australia and considered Craig v South Australia (1995) 184 CLR 163 at [66] – [68].

These proceedings

6 Mr Cupac seeks judicial review of a medical assessment by the MAS Assessor under the MAS system in respect of orthopaedic injuries allegedly suffered by him in a motor vehicle accident on 13 February 2007. On 21 May 2009, the MAS Assessor conducted his assessment. On 24 June 2009, a certificate in respect of the assessment was issued. On 7 July 2009, the MAS Assessor provided written reasons for his determination.

7 Mr Cupac submitted that the Proper Officer, had she exercised her discretion under s 63(3) of the Act in accordance with law, for reasons which particularise the error alleged against the MAS Assessor, would have properly been satisfied that there was reasonable cause to suspect that the decision of the MAS Assessor was incorrect in a material respect; and the Proper Officer’s exercise of discretion was therefore a purported exercise of discretion which had the effect of affirming the MAS Assessor’s decision which was no decision at all and the Proper Officer’s decision was thereby no decision at all.

8 Mr Cupac applied to the Proper Officer for a review of the assessment of the MAS Assessor. On 14 August 2009, the Proper Officer refused the plaintiff’s application. The application for judicial review of the decision of the Proper Officer will succeed or fail on the basis of the outcome of the judicial review concerning the MAS Assessor.

Grounds of review

9 Mr Cupac seeks a review on the following grounds. Firstly, that the decision of the MAS Assessor is infected by a breach of procedural fairness, for the failure to give adequate reasons and the failure of the MAS Assessor when exercising judicial functions to give adequate reasons for his decision constitutes an error of law which appears on the face of the record; second, the decision of the MAS Assessor demonstrates that he failed to make objective clinical findings necessary to establish the requisite facts to appropriate Mr Cupac a Diagnosis Related Estimate (“DRE”) Category I for the lumbar spine; third, the MAS Assessor failed constructively to complete his statutory task by reasons of misdirection as to the proper construction and effect of the MAA Permanent Impairment Guidelines (1 October 2007) (“the Guidelines”) and the American Medical Association Guides to the Evaluation of Permanent Impairment, (1995) 4^th ed, (“AMA 4”) and in so doing the MAS Assessor applied the wrong test and therefore, could not properly be satisfied of the requisite matters to have appropriated Mr Cupac with a DRE Category I for the lumbar spine; and fourth, the MAS Assessor failed to constructively consider the considerations made mandatory by the Motor Accidents Compensation Act 1999 (“the Act”) and thereby constructively failed to exercise his power under s 61 of the Act.

10 The alleged errors submitted by Mr Cupac can be shortly summarised as follows. Firstly, that Dr Maxwell misunderstood or misapplied the diagnostic criteria for DRE Category II for the cervical spine; second, that Dr Maxwell misunderstood or misapplied the diagnostic criteria for “non-verifiable radicular complaints” for both the cervical spine and the lumbar spine; third, that Dr Maxwell failed to make the objective clinical findings required by the DRE method for evaluation of impairment of the lumbar spine as set out in the Guidelines; and finally, that Dr Maxwell failed to give adequate reasons for his assessment.

The Motor Accidents Act and Chapter 4 of the Guidelines

11 Under the Act, common law rights to damages for non-economic loss were significantly modified from that which previously applied under the common law. Section 131 of the Act prohibits the awarding of damages for non-economic loss, unless the degree of permanent impairment of the injured person as a result of the injury for which the Act compensates is greater than 10 per cent. The Act also requires any dispute about whether the permanent impairment of the injured person is more or less than the 10 per cent threshold to be resolved by an assessment by a medical assessor under Part 3.4 of the Act.

12 Section 61 of the Act provides that a medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. 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.

13 The Guidelines are issued pursuant to s 44(1)(c) of Act and apply in respect of a motor accident occurring on or after 5 October 1999. Section 65(1) of the Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the Guidelines issued for that purpose. The Guidelines use AMA 4 as their basis. The Guidelines make changes to the AMA 4 to align them with Australian clinical practice and to better suit them to the purposes of the Act. The convention used in the Guidelines is that if the test is in bold it is a directive as to how the assessment should be performed. I shall adopt this convention in my judgment where referring to the Guidelines.

14 Chapter 4 of the Guidelines deals with spinal impairment and the assessment. There are specific guidelines provided for the cervicothoracic and thoracolumbar regions. Section 4.1 of the Guidelines provides that only the DRE category method, as modified by the Guidelines, is to be used for evaluation of impairment of the spine. The range of motion (“ROM”) model is not to be used.

15 Section 4.6 deals with the approach to be taken to the assessment of the spine and provides:

4.6 The assessor should start with Table 4.1 of these MAA Guidelines to establish the appropriate category for the spinal impairment. Its principal difference from Table 70 (p 108, AMA 4 Guides) is the removal of the term ‘motion segment integrity’ wherever it appears (see section 4.13 below).”

16 Sections 4.15 to 4.17 of the Guidelines states:

4.15 To determine the correct DRE category, the assessor should start with Table 4.1 (MAA Guidelines), and use this Table in conjunction with the DRE descriptors (pp 102-107 AMA 4 Guides), as clarified by the definitions in the box above with the following amendments to pp 102-107 of the AMA 4 Guides

...

4.16 If an assessor is unable to distinguish between two DRE categories, then the higher of those two categories should apply. The inability to differentiate should be noted in the assessor’s report and explained .

17 Table 4.1 of the Guidelines provides relevantly that low back pain, neck pain [back pain (lumbago), WAD* I] complaints or symptoms would afford a claimant a DRE Category I; and low back pain or neck pain with guarding or non-verifiable radicular complaints or nonuniform range of motion (dysmetria) would afford a DRE Category II.

18 Sections 4.18 to 4.22 of the Guidelines set out what DRE category method should be applied. Relevantly section 4.19 provides that DRE Category I applies when the injured person complains about symptoms but there are no objective clinical findings by the assessor. DRE Category II applies when there are clinical findings made by the assessor, as described in the sections “description and verification”, (pp 102-107 AMA 4).

The MAS Assessor’s reasons for determination

19 The MAS Assessor’s task was to assess permanent impairment to Mr Cupac’s cervical spine, lumbar spine and right shoulder. The injuries that were caused by the motor accident were soft tissue injuries to both the cervical spine and lumbar spine, and subacromial bursitis to the right shoulder. The assessment of the impairment to the right shoulder is not the subject of this judicial review. I shall deal with the cervical spine and lumbar spine in turn.

20 Relevantly, in his reasons dated 7 July 2009 the MAS Assessor noted Mr Cupac’s current symptoms and that upon clinical examination of Mr Cupac reported that:

“He states he experiences discomfort in the back of his neck, lower back and right shoulder. He states the pain in his back radiates into the right hip from time to time. He occasionally feels some pain in his left foot. He also feels pain in the back of his head. He also feels numbness in all the fingers of his right hand which has been present for 1 year. This occurs intermittently.

…

He is unaware of any neck stiffness.

...

He was a thick set man at 92kgs. He was 172cms tall. He moved freely and did not appear to be in any distress. He used his right arm to hold his jacket and to lift his x-rays. He moved his neck freely during gesticulation and while moving about the room.

21 The MAS Assessor commented that there did appear to be some inconsistencies regarding Mr Cupac’s presentation. There was a paradoxical straight leg raising sign and the sensory abnormalities of Mr Cupac’s left foot fitted no dermatomal pattern.

22 In relation to these injuries the MAS Assessor examined various x-rays and CT scans of both the cervical and lumbar spine and summarised these results.

“ CERVICAL SPINE

Active ROM Measure
Flexion	30°
Extension	20°
Rotation to the right	45°
Rotation to the left	45°
Lateral flexion to the right	15°
Lateral flexion to the left	15°

There was no muscle spasm nor guarding during the performance of these manoeuvres.

He complained of decreased sensation in the fingers of the right hand. There was no evidence of muscle wasting. He had a negative Phalan’s test for carpal tunnel syndrome.

23 On examination the MAS Assessor continued:

“In relation to his cervical spine there was some general restriction of movement which was symmetrical. There was no spasm nor guarding and no evidence of radiculopathy.”

24 And then the MAS Assessor concluded:

“Mr Cupac gives a history of neck and back symptoms commencing from the time of the motor vehicle accident …

In relation to his cervical spine there was some general restriction of movement which was symmetrical. There was nor evidence of radiculopathy.”

25 Under the heading “Determination” the MAS Assessor determined:

“Cervical Spine – he has symmetrically reduced range of movement. There was no asymmetry of movement. There was no radicular symptoms and no radicular signs.

26 The arguments raised by Mr Cupac is that the MAS Assessor erred because he should have classified the injuries to his cervical spine as falling within DRE Category II not DRE Category I. Counsel for Allianz asserted that the MAS Assessor correctly classified the injuries to Mr Cupac’s spine as DRE Category I because Mr Cupac satisfied none of the diagnostic criteria for DRE Category II. To afford Mr Cupac a DRE Category II, there needed to be a finding of low back or neck pain with guarding, or non-verifiable radicular complaints, or nonuniform range of motion (dysmetria). This is to be coupled with there being no objective sign of radiculopathy and no loss of structural integrity. The MAS Assessor has a duty to award the higher of the two categories in circumstances where he or she is unable to differentiate between the two categories.

27 Relevant to the cervical spine, pages 103-104 of AMA 4, relevantly read (as modified by the Guidelines):

“ DRE Cervicothoracic Category I: Complaints or Symptoms

Description and Verification: The patient has no significant clinical findings, no muscle guarding..., no documentable neurologic impairment, no significant loss of integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness.

...

DRE Cervicothoracic Category II: Minor Impairment

28 Section 4.14 of the Guidelines provides definitions of the clinical findings used to place an individual in a DRE category “the Glossary”.

29 There are two definitions are relevant to the present application, namely, “Nonuniform loss of spinal motion” (dysmetria) and “Non-verifiable radicular complaints”. I shall refer to non-verifiable radicular complaints later in this judgment.

30 The definition for “Nonuniform loss of spinal motion (dysmetria)” in the Glossary is:

“Nonuniform loss of motion of the spine in one of the three principle planes is sometimes caused by muscle spasm or guarding. To qualify as true nonuniform loss of motion, the finding must be reproducible and consistent and the assessor must be convinced that the individual is cooperative and giving full effort.”

31 According to Mr Cupac’s counsel DRE Category II indicates that a finding of dysmetria along any of the three planes of movement (sagittal, frontal/coronal, or transversal planes) when coupled with neck pain and no objective signs of radiculopathy and no loss of structural integrity gives rise to a categorisation of DRE Category II.

(i) Whether the Assessor misunderstood or misapplied the diagnostic criteria in relation to the injuries to the cervical spine

32 According to counsel for Mr Cupac, all of these factors in DRE Category II were present in the clinical findings of the MAS Assessor going to the cervical spine, nevertheless a DRE Category I was awarded. Counsel for Mr Cupac submitted that the decision of the MAS Assessor demonstrated that he had applied the wrong test and/or misdirected himself as to the relevant differentiators for DRE Category II for the cervical spine.

33 The MAS Assessor made findings that there was no muscle guarding, no evidence of radiculopathy and no radicular signs. Mr Cupac’s counsel sought to make much of findings that the MAS Assessor made under the tabular form [reproduced earlier in this judgment] namely that Mr Cupac had 30° flexion of the neck as compared with 20° on extension of the neck. From that counsel extrapolated that the movement is asymmetrical and therefore there was dysmetria present. Had dysmetria been present, the injuries to Mr Cupac’s neck would have been classified at DRE Category II.

34 To make a finding of nonuniform loss of spinal motion (dysmetria) involves clinical judgment. Nonuniform loss of motion of the spine means a loss of movement in the relevant spinal plane which is not symmetrical [my emphasis added]. Symmetrical loss or limitation of movement of the cervical or lumbar spines is not “nonuniform loss of spinal motion” or “dysmetria”.

35 In making overall findings in relation to injury to the cervical spine, the MAS Assessor also took into account both the results of the testing and the MAS Assessor’s observation of the free movement of Mr Cupac’s neck during gesticulation and while he was moving around the room. The MAS Assessor, after conducting an examination, determined that the limitation of movement was symmetrical, there was no nonuniform range of motion (dysmetria).

36 To fall within DRE Category II the MAS Assessor would have to have made a positive finding that the decreased sensation in the right hand was a radicular symptom or sign, verifiable or non-verifiable. He did not do so. If the radicular signs were not present, he was not obliged to make a negative finding. In Vitaz v Westform (NSW) Pty Limited [2010] NSWSC 667 Johnson J expressed this more eloquently. His Honour at [73] stated that he did not think it was necessary for an Approved Medical Specialist to systematically deal with each and every criterion he or she did not consider to be indicated in a particular case, simply so he or she can expressly say they did not apply. I respectfully agree. In my view the MAS Assessor correctly determined that, in respect of the cervical spine, Mr Cupac satisfied none of the diagnostic criteria for DRE Category II. Mr Cupac was correctly placed in DRE Category I for the cervical spine.

Lumbar spine

37 On examination the MAS Assessor recorded:

“THORACOLUMBAR SPINE – LUMBAR SPINE

He was able to flex and reach to just below the knees. Extension was 75% of normal with a complaint of discomfort at the extreme of movement. Lateral flexion to the right. He was able to reach to his knee level and to the left was to the knee level. There was no restriction of the thoracolumbar rotation.

Both calves measured 40.5cms. He had decreased right ankle jerk. He had a normal left ankle jerk. He complained of a numb sensation in his left foot.

The knee jerks were present and equal.

Straight leg raising was 20° bilaterally. He was able to sit upright on the couch with both legs fully extended. There was no muscle guarding or spasm during the performance of the above manoeuvres.

His right thigh measured 53cms and the left 53cms.

Consistency of Presentation

38 The MAS Assessor concluded:

“In relation to the lumbar spine he again had a symmetrical range of movement. He had a reduced right ankle jerk but I did not consider there was any other evidence of significant S1 radiculopathy. The straight leg raising sign was inconsistent. There was no muscle weakness and the numbness he described in his foot involved the left foot. I therefore did not consider that his symptoms were radicular and that he did not have more than two abnormal radicular signs.”

39 Under the heading “Determinations” the MAS Assessor determined:

“Lumbar spine – he has a symmetrically reduced range of movement. There was no asymmetry of movement. There was no spasm or guarding. He complains of some referred pain into his right hip which is intermittent and numbness in his left foot. He has no consistent limitation of straight leg raising and therefore no sciatica tension. The MRI scan does not show significant nerve root impingement and in my opinion does not show an acute disc protrusion.

Therefore, according to AMA IV Guides, specifically Chapter III, Page 102 he can be classified as DRE Category I. He has no muscle guarding nor spasm. There are no true radicular symptoms in his right leg. He complains of some referred pain.

(ii) Whether the Assessor failed to make objective findings in relation to the lumbar spine

40 Mr Cupac’s counsel submitted that the MAS Assessor failed to make objective clinical findings necessary to establish the requisite facts to appropriate Mr Cupac a DRE I for the lumbar spine and in so doing failed constructively to complete his statutory task by reason of misdirection as to the proper construction and effect of the Guidelines. Mr Cupac’s submissions on this issue are that there is a stipulation in the Guidelines that findings must be reproducible and consistent and this requires the MAS Assessor to make findings in a manner that are measurable in order to be able to support a conclusion that the finding is reproducible and consistent.

41 Further according to Mr Cupac’s counsel the clinical findings must be objective and the use of the word “objective” would suggest that the findings need to be those which can be appreciated objectively. In essence, Mr Cupac’s counsel is saying that the MAS Assessor had no discretion but to follow the legislation and Guidelines. But that approach ignores the clinical skill and judgment that a medical practitioner brings to the determination. The medical practitioner uses his or her skill and judgment to evaluate how the clinical findings fit with the applicant’s presentation and so on.

42 Counsel for Allianz submitted that Dr Maxwell undertook the task required of him the clinical examination and in accordance with the Guidelines and that there is no substance in Mr Cupac’s claim that Dr Maxwell failed to undertake the task required of him. Allianz submitted that the clinical findings do not have to be objective in the way that counsel for Mr Cupac suggests.

43 Relevant to the lumbar spine, page 102 of the AMA 4 reads (as modified by the Guidelines):

“ DRE Lumbosacral Category I: Complaints or Symptoms

Description and Verification: The patient has no significant clinical findings, no muscle guarding..., no documentable neurologic impairment, no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness.

...

DRE Lumbosacral Category II: Minor Impairment

44 As referred to earlier, the MAS Assessor made adverse comments as to the Mr Cupac’s consistency of presentation on clinical examination:

“ Consistency of Presentation
There did appear to be some inconsistencies regarding his presentation. There was a paradoxical straight leg raising sign, and the sensory abnormalities of his left foot fitted no dermatomal pattern …”

45 The MAS Assessor’s findings on clinical examination are set out under the heading “Findings on Clinical Examination”. The MAS Assessor made findings that there was no guarding of movement of the lumbar spine, the loss or limitation of movement of the lumbar spine was symmetrical in lateral flexion to the right and to the left, and in straight leg raising (although Mr Cupac’s presentation of bilateral straight leg raising of only 20° was contradicted by another aspect of the clinical examination). Because Mr Cupac’s claimed loss or limitation of movement in the lumbar spine is symmetrical, there is no nonuniform range of motion and no dysmetria in the lumbar spine.

46 The MAS Assessor set out his clinical measurement of the range of movement of the cervical spine and lumbar spine in each relevant plane. He also measures the circumference of the upper arms, forearms, thighs and calves to exclude muscle atrophy or wasting. In my view, findings on clinical examination may be objective or subjective. To some extent, it is the task of the clinician to discern between the two. Objective clinical signs are obviously more compelling evidence of pathology because they cannot be affected by the patient. But subjective signs may also be significant, particularly if they follow defined anatomical pathways of which the patient is unlikely to be aware.

47 The assessor is using his or her clinical skill and judgment to evaluate if the applicant’s presentation of his or her injuries is consistent with the results of testing and examination.

48 The MAS Assessor correctly sets out in his findings on clinical examination, the subjective presentation of Mr Cupac, for example, in performing straight leg raising, and the complaint of a numb sensation in the left foot as well as objective clinical findings for example, the decreased right ankle jerk; or the lack of objective clinical findings, for example, the lack of muscle guarding or spasm, and the symmetrical range of spinal movements excluding dysmetria. During his clinical examination, the MAS Assessor observed Mr Cupac for signs of consistency or inconsistency, and observed inconsistencies, to which he expressly referred.

49 So far as radicular signs are concerned, the MAS Assessor found that Mr Cupac had one radicular sign as defined in s 4.28, namely “a decreased right ankle jerk”. The claimed “numb sensation in his left foot” was disregarded by the MAS Assessor as a radicular sign, because it “fitted no dermatomal pattern” and therefore was not a “reproducible sensory loss which is anatomically localised to an appropriate spinal nerve root distribution”, as required by s 4.28(v). The MAS Assessor’s clinical findings, demonstrates that the MAS Assessor did expressly consider in his clinical findings each or the absence of each, radicular sign. As Mr Cupac’s complaint of a numb sensation in his left foot did not follow an anatomical pathway, it cannot be described as a non-verifiable radicular complaint as set out in s 4.29.

50 The MAS Assessor found only one clinical sign of radiculopathy. Section 4.28 requires that two or more clinical signs of radiculopathy must be found before the diagnosis is made. The MAS Assessor concluded that the clinical criteria for radiculopathy, whether radiculopathy per se or non-verifiable radicular complaints had not been made out.

51 In my view, the MAS Assessor undertook the task required of him in clinical examination in accordance with the Guidelines. The MAS Assessor made objective clinical findings to establish the requisite facts to make a DRE Category I diagnosis. The MAS Assessor correctly found that none of the diagnostic criteria for DRE Category II were established in respect of the lumbar spine. Therefore the MAS Assessor placed Mr Cupac in DRE Category I in respect of the lumbar spine.

(iii) Whether the AMS misunderstood or misapplied diagnostic criteria for non-verifiable radicular complaints for both cervical and lumbar spine

52 Mr Cupac’s counsel submitted that the MAS Assessor applied the wrong test for non-verifiable radiculopathy for both the cervical and lumbar spine, and therefore could not properly be satisfied of the requisite matters to appropriate Mr Cupac with a DRE Category I for the lumbar and cervical spine, and in so doing failed constructively to consider the considerations made mandatory by the Act and thereby constructively failed to exercise his power under s 61 of the Act.

53 Counsel for Allianz submitted that Dr Maxwell correctly found that none of the diagnostic criteria for DRE Category II were established in respect of the lumbar spine and that Dr Maxwell has correctly placed Mr Cupac in DRE Category I in respect of the lumbar spine. Allianz submitted that Dr Maxwell had not misunderstood or misapplied the criteria for DRE II.

54 The definition for non-verifiable radicular complaints in the Glossary is:

“Non-verifiable radicular complaints are symptoms (eg shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (eg loss or diminished sensation, loss or diminished power, loss or diminished reflexes).”

55 Non-verifiable radicular complaints are defined as symptoms that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root, for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes. In respect of the both the lumbar and cervical spine the MAS Assessor found non-verifiable radicular complaints.

56 The definition for “radiculopathy” found in the Guidelines at 4.28 reads:

To conclude that a radiculopathy is present two or more of the following signs should be found:

(i) loss or asymmetry of reflexes;

(ii) positive sciatic nerve root tension signs;

(iii) muscle atrophy and/or decreased limb circumference;

(iv) muscle weakness which is anatomically localised to an appropriate spinal nerve root distribution;

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

57 Section 4.29 notes that complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings do not by themselves constitute radiculopathy. They are described as non-verifiable radicular complaints in the definitions of clinical findings.

58 The MAS Assessor found on relation to the cervical spine, decreased sensation in the fingers of the right hand; in respect of the lumbar spine, he found a decreased right ankle jerk and a numb sensation in the left foot. It is noted that in respect of the lumbar spine the MAS Assessor noted that the abnormalities in his left foot followed no dermatomal pattern.

59 Counsel for Mr Cupac submitted that both decreased sensation in the hands and diminished jerk responses constitutes non-verifiable radicular complaints. According to Mr Cupac’s counsel, the MAS Assessor’s reasons reveal that in his conclusions no consideration is given to the presence of this differentiator, rather the MAS Assessor focuses on the absence of radiculopathy. Counsel for Allianz submitted that the MAS Assessor correctly found that Mr Cupac did not make a non-verifiable radicular complaint in either the cervical spine or the lumbar spine.

60 In his determination, according to counsel for Mr Cupac, the MAS Assessor nonetheless makes the paradoxical conclusion with regard to the cervical spine that there were “no radicular symptoms and no radicular signs”, despite having found the presence of finger numbness in his clinical findings and not making any inconsistency finding to found a basis to reject this particular finding.

61 Similarly, counsel submitted with respect to the lumbar spine, the MAS Assessor after stating that Mr Cupac had reduced right ankle jerk, recorded that he did not consider there was “any other evidence of significant S1 radiculopathy”. The MAS Assessor found that there were no “true radicular signs” although there was a complaint of referred pain. The MAS Assessor acknowledged the L5/S1 disc protrusion but found that it was not “acute” nor did it reveal “any significant nerve root impingement.” Mr Cupac contends that if these findings were read together, the diminished ankle jerk and the MRI results showing a disc protrusion would, nevertheless, suggest the presence of non-verifiable radicular pain. The presence of which when coupled with pain and no objective sign of radiculopathy and no loss of structural integrity would properly place Mr Cupac in DRE Category II.

62 According to Mr Cupac’s counsel, the MAS Assessor, by failing to consider whether the clinical symptoms as found gave rise to non-verifiable radiculopathy, has failed to take into account a consideration made mandatory by the Act. In my view, this approach suggested by Mr Cupac misunderstands both the diagnostic criteria for radiculopathy in section 4.28 of the Guidelines, and the definition of non-verifiable radicular complaints in s 4.29 and in the Guidelines. As Mr Cupac complained of numbness in all fingers of the right hand, and of a numb sensation in his left foot, they cannot (in the case of the fingers) and do not (in the case of the foot) follow a defined anatomical pathway. The MAS Assessor correctly disregarded those symptoms when considering the existence or absence of radicular signs and correctly placed Mr Cupac in DRE Category I for both injuries to his cervical spine and lumbar spine.

(iv) Procedural fairness – Whether the MAS Assessor provided adequate reasons for his assessment

63 Mr Cupac’s counsel submitted that the MAS Assessor erred by failing to give adequate reasons for his determination and this constitutes a failure to afford procedural fairness. Unlike s 325 of the Workplace Injury Management and Workers Compensation Act 1998, the Motor Accidents Act does not stipulate what the reasons for determination should contain.

64 In McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609, Giles JA spoke of the importance of medical assessments in the scheme for compensation provided by the Act. Giles JA (at [20]-[22] and [29]) stated:

“20 While s 60(1) provides that a medical dispute “may” be referred for assessment, referral is commonplace. Proceedings in respect of a motor accident claim may not be commenced unless the claim has been assessed by a claims assessor pursuant to Pt 4.4 of the Act or a certificate of exemption has been issued (s 108). A claims assessor can refer a medical dispute for assessment (s 60(1)), and there is often referral by the parties to a medical dispute or by a claims assessor. Further, there is a threshold degree of permanent impairment before damages for non-economic loss may be awarded (s 131), and if there is dispute about whether the degree of permanent impairment is sufficient for an award the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Pt 3.4 (s 132). There is often a practical necessity for medical assessment.

21 Medical assessments are thus an important part of arriving at the claimant’s entitlement to damages. Their importance is magnified by their status as conclusive evidence in some respects, including whether the degree of permanent impairment exceeds the threshold, (s 61(2)) and as evidence in other respects (s 61(3)). The court or a claims assessor may refer a matter for further assessment (s 62), but that prospect does not detract from the significance in the ordinary case of a medical assessment.

…

29 I have described the significance of medical assessments. A medical assessment can have a profound effect on a claimant’s recovery, to the perceived detriment of the claimant or the insurer. The legislature has provided for review by a review panel so that a dissatisfied party to a medical dispute can seek redress, as is appropriate given the significance. The dissatisfied party may have particularised the grounds for incorrectness in a material respect, but it would be harsh if the review panel did not have power to entertain altered, added or substituted grounds. (The Guidelines, to which medical assessments are procedurally subject (s 65), provide that application under s 63(1) must be made within thirty days of receipt of the medical assessor’s certificate (para 10.1), without ability to extend time (para 10.3)). Ignorance or mistake should not be penalised, and there can be second thoughts; the significance of a medical assessment is such that restrictions on getting it right should not readily be found to have been intended by the legislature.”

65 Once the diagnostic criteria are properly understood, it is my view that the MAS Assessor has provided adequate reasons for his determination that the injuries to the cervical spine and the lumbar spine fell within DRE Category I. I would also add that as this Court does not possess the clinical skill and expertise of a medically qualified assessor, it should only intervene if there are clear cases of jurisdictional error. This is not such a case. This application for judicial review fails.

The decision of the Proper Officer dated 14 August 2009

66 As there was no error on the face of the record, nor was there a jurisdictional error made by the MAS Assessor it, follows that the registrar was correct in her refusal of the application for review of that assessment by a review panel. This application for judicial review also fails.

67 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the fourth defendant’s costs as agreed or assessed.

The Court orders:

(1) The plaintiff’s application for judicial review fails.

(2) The summons filed 5 November 2009 is dismissed.
(3) The plaintiff is to pay the fourth defendant’s costs as agreed or assessed.

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Citations

Cupac v Motor Accidents Authority [2010] NSWSC 631

Cases Citing This Decision

0

Cases Cited

20

Statutory Material Cited

2

Martin v Kelly [2008] NSWSC 577

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

Kioa v West [1985] HCA 81

CITATION:	Cupac v Motor Accidents Authority [2010] NSWSC 631
HEARING DATE(S):	12 April 2010
JUDGMENT DATE :	28 June 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) The plaintiff's application for judicial review fails. (2) The summons filed 5 November 2009 is dismissed. (3) The plaintiff is to pay the fourth defendant's costs as agreed or assessed.
CATCHWORDS:	ADMINISTRATIVE REVIEW - Judicial Review - ERROR OF LAW - Medical assessment under Motor Accidents Compensation Act 1999 - APPEAL against decision of MAS Assessor and Proper Officer of Motor Accidents Authority - Whether error on the face of the record or jurisdictional error
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Supreme Court Act 1970
CATEGORY:	Principal judgment
CASES CITED:	Abede v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Attorney-General for New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 Bruce v Cole (1998) 45 NSWLR 163 Buck v Bavone (1976) 135 CLR 110 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Craig v State of South Australia [19995] HCA 58; (1995) 184 CLR 163 Cross v McHugh [1974] 1 NSWLR 500 Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Martin v Kelly [2008] NSWSC 577 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; [2007] 235 ALR 609 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Vitaz v Westform (NSW) Pty Limited [2010] NSWSC 667 Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; (2005) 139 LGERA 296
TEXTS CITED:	American Medical Association Guides to the Evaluation of Permanent Impairment (1995) 4th ed MAA Permanent Impairment Guidelines (1 October 2007)
PARTIES:	Bore Cupac (Plaintiff) Motor Accidents Authority of New South Wales ( First Defendant) MAS Assessor (Second Defendant) Proper Officer, Motor Accidents Authority of New South Wales (Third Defendant) Allianz Australia Insurance Limited (Fourth Defendant)
FILE NUMBER(S):	SC 2009/298141
COUNSEL:	B K Nolan (Plaintiff) Submitting Appearance (First, Second & Third Defendants) K P Rewell SC (Fourth Defendant)
SOLICITORS:	NSW Compensation Lawyers (Plaintiff) Crown Solicitor's Office (First, Second & Third Defendants) Moray & Agnew (Fourth Defendant)
LOWER COURT JURISDICTION:	Motor Accidents Authority of New South Wales
LOWER COURT FILE NUMBER(S):	2009/04/0684
LOWER COURT DATE OF DECISION:	24 June 2009, 22 July 2009