D'Ament v Allianz Australia Insurance Ltd

[2018] NSWSC 1371

Supreme Court

New South Wales

Medium Neutral Citation:	D’Ament v Allianz Australia Insurance Ltd [2018] NSWSC 1371
Hearing dates:	29 August 2017; 6 April 2018
Date of orders:	02 October 2018
Decision date:	02 October 2018
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1)   The plaintiff’s summons is dismissed (2)   The plaintiff pay the first defendant’s costs of these proceedings.
Catchwords:	ADMINISTRATIVE LAW – appeal from decision of medical assessors review panel – whether panel fully considered material – whether panel should have conducted a clinical examination – whether panel applied guidelines
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) ss 44, 62-63, 65, 131-133 Supreme Court Act 1970 (NSW) s 69
Cases Cited:	Attorney General v Quin (1990) 170 CLR 1; [1990] HCA 21 McKee v Allianz (Australia) Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351 Pham v NRMA [2014] NSWCA 22; (2014) 66 MVR 152 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zahed v IAG Ltd t/as NRMA Insurance [2016] NSWCA 55
Category:	Principal judgment
Parties:	Genevieve D’Ament (Plaintiff) Allianz Australia Insurance Ltd (First Defendant)
Representation:	Counsel: R Sheldon SC (Plaintiff) K Rewell SC (First Defendant)   Solicitors: Brydens Lawyers Pty Limited (Plaintiff) Moray & Agnew (First Defendant)
File Number(s):	2017/104010
Publication restriction:	Nil

Judgment

Introduction

1. The plaintiff was injured in a motor vehicle accident on 18 November 2010. She seeks judicial review of the Review Panel’s assessment of her whole person impairment. The issue is whether or not the plaintiff suffered greater than 10% whole person impairment and whether the Review Panel (“the Panel”) incorrectly dealt with a causation issue associated with the plaintiff’s left shoulder restriction.

2. The plaintiff seeks a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the Review Panel Certificate and Reasons dated 9 January 2017 is contrary to law, void and of no effect and that it be set aside and the matter be returned for determination by a different review panel.

Background facts and procedural history

3. Pursuant to s 131 of the Motor Accidents Compensation Act 1999 (NSW), to have any entitlement for a sum for non-economic loss, the plaintiff needs to show that her whole person impairment is greater than 10%.

4. In her initial claim, the plaintiff said that she suffered injuries to her neck, mid and lower back and left shoulder.

5. There was no agreement as to the level of the plaintiff’s whole person impairment and the plaintiff was referred for assessment by Dr Rosenthal. On 8 May 2013 Dr Rosenthal certified that the claimant did not have a whole person impairment of greater than 10% caused by the subject accident. Relevantly he concluded that there was no injury to the thoracic spine or left shoulder caused by the accident.

6. Review of that assessment was sought on the basis that Dr Rosenthal had failed to properly to apply Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351. Nguyen is authority for the proposition that there is no requirement that an assessable impairment of the part of the claimant’s body in question must arise from direct injury to that part of the body sustained in an accident. Referred pain or radiculopathy can provide a proper basis for assessing and attributing impairment, despite no direct injury to that body part.

7. The Assessor determined that the principle in Nguyen did not apply on the facts to this case. There was no contest about that determination.

8. The proceedings were reactivated by way of an application made on 17 November 2014 for further assessment by the Medical Assessment Service on the basis that there was additional relevant information. That additional relevant information comprised MRI scans of the applicant’s neck and low back which could, it was submitted, alter the outcome of the previous assessment. There was also a report of Dr Teychenne, Neurologist, who had assessed that the plaintiff had a C5/6 radiculopathy based upon the findings on the MRI scan. Dr Teychenne assessed a 24% whole person impairment.

9. Dr Teychenne noted a history of “severe and constant neck pain for four weeks after the accident” and “constant pain into the back into the left shoulder for four weeks after the accident with pain down the back of the left arm”.

10. The Proper Officer formed the view that the additional material was capable of having a material effect. Pursuant to s 62 of the Motor Accidents Compensation Act, the plaintiff was referred to MAS Assessor Dr Assem.

11. On 3 June 2015, Dr Assem further assessed the plaintiff and determined there was a less than 10% whole person impairment resulting from neck and low back injury. He found that the plaintiff did not suffer an injury to the thoracic spine or to the left shoulder in the accident.

12. In 2016, the plaintiff applied for and was granted a second further assessment of her physical injuries pursuant to s 62 of the Motor Accidents Compensation Act.

13. The second further assessment was conducted by Dr Assem on 3 August 2016. His certificate of 8 August 2016 assessed 12% permanent impairment comprising 7% for the cervical spine and 5% for the lumbar spine. He concluded that the plaintiff did not suffer injuries to her thoracic spine or left shoulder in the motor accident, but accepted that the plaintiff had “a probable secondary limitation in left shoulder motion due to pain arising from the cervical spine”. This reasoning led him to increase his previous assessment of impairment of the cervical spine from 5% to 7%.

14. The first defendant applied for and was granted a review of Dr Assem’s further certificate of 8 August 2016 and the matter was then referred to the Panel.

15. In its certificate dated 9 January 2017, the Review Panel comprising Dr Nigel Marsh, Dr Kathleen McCarthy and Dr Shane Molony revoked the certificate of Dr Assem dated 8 August 2016 and issued a new certificate confirming that the injuries caused by the motor vehicle accident giving rise to a whole person impairment was in total not greater than 10% identifying cervical spine soft tissue injury and lumbar spine soft tissue injury and attributing 5% whole person impairment to each of those matters. The Panel found that the accident was not a cause of the other claimed injuries namely thoracic spine, soft tissue injury or left shoulder-soft tissue injury.

16. The plaintiff appeals from that decision.

This appeal

17. The plaintiff asserts that there were four substantive errors on the part of the Panel.

1. It did not consider, deal with or engage with the plaintiff’s substantive case and argument on causation as set out in the evidence. In particular did not consider or adequately consider Dr Assem’s report of 8 August 2016;

2. It failed to perform its statutory task by applying a test for the evaluation of the plaintiff’s permanent impairment which was contrary to law;

3. The Panel failed to apply the required guidelines to the assessment of the plaintiff’s permanent impairment;

4. It did not conduct a clinical examination of the plaintiff.

18. The plaintiff’s argument in respect of ground 1 was in summary that the Panel fell into error in failing to deal with the plaintiff’s substantive case and arguments on causation and the way Dr Assem had dealt with these in his 8 August 2016 report, in particular having regard to his finding that the plaintiff had referred pain from her cervical spine to her left shoulder.

19. In respect of ground 2 it was argued that the Panel proceeded on a mistaken quest to determine whether there had been an injury to the left shoulder in the motor vehicle accident without analysing whether there had been evidence of impairment and then proceeding to determine that the later state of left shoulder disability was not causally related to any injury sustained in the motor vehicle accident. This means that the Panel misconceived its task by looking for injury to the left shoulder rather than impairment.

20. In respect of ground 3, the argument was that the guidelines were not properly applied because relevant evidence regarding pain and loss of strength in the shoulder was ignored by the Panel altogether.

21. Ground 4 criticises the Panel’s failure to conduct a clinical examination of the plaintiff because this meant that she was denied the opportunity to outline the history of her symptoms for the assistance of the Panel.

Structure of legislation and relevant principles of judicial review

22. These proceedings are brought pursuant to s 69 of the Supreme Court Act 1970 (NSW) which enables the supervision of executive or administrative decision-making in New South Wales.

23. The Court’s role is to determine the legality of administrative decisions – not the merits. As Brennan J set out in Attorney General v Quin (1990) 170 CLR 1 at 63; [1990] HCA 21:

The duty and jurisdiction of the Court to review administrative action does not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from illegality, are for the repository of the relevant power and, subject to political control, for the repository alone.

24. Given the necessary deference to the authority of the administrative decision-maker, its reasons are to be read as a whole, fairly and beneficially, and without an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2; [1996] HCA 6.

25. Part 5.3 of the Motor Accidents Compensation Act provides for damages for non-economic loss. Section 131-133 provide as follows:

131   Impairment thresholds for award of damages for non-economic loss

No damages may be awarded for 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%.

132   Assessment of impairment required before award of damages for non-economic loss if dispute over impairment threshold

(1)   If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4 (Medical assessment).

Note.   The assessment of the medical assessor under Part 3.4 is conclusive in proceedings before the court—see section 61.

(2)   The court may, at any stage in proceedings for an award of damages for non-economic loss, refer the matter for assessment of the degree of permanent impairment under Part 3.4.

(3)   A medical assessor may decline to make an assessment under Part 3.4 of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent. Court proceedings with respect to any such matter may be adjourned until the assessment is made.

(4)   Nothing in this section prevents:

(a)   the degree of impairment being re-assessed under Part 3.4, or

(b)   a claim from being settled at any time.

133   Method of assessing degree of impairment

(1)   The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.

(2)   The assessment of the degree of permanent impairment is to be made in accordance with:

(a)   Motor Accidents Medical Guidelines issued for that purpose, or

(b)   if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.

(3)   In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

26. The structure of the Motor Accidents Compensation Act is such that claims assessors are empowered by and must have regard to guidelines made under the Act which establish procedures for assessing claims. The guidelines are generally binding. An assessor (or Panel) is bound by the common law to comply with the rules of natural justice or procedural fairness.

27. Any assessment, including any decision-making by the Panel, needs to show in a comprehensive and transparent way the actual path of reasons: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], [55] and [56]; Zahed v IAG Ltd t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 per Emmett JA (at 34), Meagher and Leeming JJA agreeing.

28. In Pham v NRMA [2014] NSWCA 22; (2014) 66 MVR 152, the Court of Appeal said at [16], in dealing with an argument that an assessor’s reasoning was not as clearly expressed as it could have been, identified the following approach as appropriate:

“…reasons of an administrative decision-maker are meant to inform and not 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 [1996] HCA 6; 185 CLR 259 at [31]

29. Also relevant to consideration of the issues that arise in this appeal is the decision of Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351. In that decision, Hall J concluded that given injury to one part of a person‘s body can affect or lead to impairment in both the part directly injured and in a related or connected part, application of common law causation principles would support the conclusion that impairment to one part of the body can occur consequent upon injury to another part and therefore wold be compensable as the natural and direct consequence of the initiating injury. He also concluded that there was no warrant for reading the words ”the degree of impairment of the injured person” as they occur in s 133 and s 58 as an impairment of and only of the particular part of a person’s body injured in an accident.

The review panel’s task

30. Section 63 of the Act defines the function of a review panel in these terms:

63   Review of medical assessment by review panel

(1)   A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2)   An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

(2A)   If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based.

(3)   The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is 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.

(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.

(4)   The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

(5)   If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review.

(6)   Section 61 applies to any new certificate or new combined certificate issued under this section.

(7)   The Motor Accidents Medical Guidelines may limit the time within which an application under this section may be made.

31. Giles JA elaborated upon the task of a review panel in McKee v Allianz (Australia) Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609 at [38] as follows:

“…The review panel has the one task, to review the medical assessment referred to it and either confirm the medical assessor’s certificate or revoke it and issue a new certificate. In the manner earlier explained, the members of the appeal panel bring their expertise to that task, and the confirmation or the new certificate embodies their professional opinion as to the matters referred for assessment in whole. In order to come to its decision to confirm the medical assessor’s certificate or revoke it and issue a new certificate the review panel must give consideration to the matters referred for assessment in whole. The consideration as to some aspects of the matters may be brief if there is a discrete particularised incorrectness in a material respect and no other incorrectness in a material respect is apparent to the professional gaze of the members of the review panel, and depending on perceived occasion to go further the review panel may then focus on the particularised incorrectness in a material respect. If that occurs, it is not failure in an obligation or the exercise of a discretion. It is the exercise of professional judgment.” (emphasis added)

32. There are medical assessment guidelines issued by the authority pursuant to s 44(1)(d) including relevantly:

16.21   The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to:

16.21.1   consider afresh all aspects of the assessment under review;

16.21.2   determine whether re-examination of the claimant is required, and if so set a timetable for that to occur;

16.21.3   determine whether additional information is required in order to make a decision;

16.21.4   determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked;

16.21.5   if revoked, determine what new certificates are to be issued;

…

33. In 2005, pursuant to s 65(2), the Authority issued a Practice Note 3/2005 which was applicable to the review panel at the relevant time and included guidance in these terms:

1 A review by a review panel of a medical assessment under s 63(4) of the Motor Accidents Compensation Act 1999 as amended is to be undertaken by reference to the following principles:

(a)   The review panel must stand in the shoes of the original medical assessor and remake each of the decisions made by the previous medical assessor.

…

(d)   The review panel can and should take into account any additional information provided to it, even if that information was not available to the original assessor.

(e)   The review panel may conduct the review in the manner they see fit, subject to the rules of procedural fairness.

…

(h)   Reviews are conducted in a manner that is impartial and procedurally fair.

34. In relation to whether re-examination is required, the following applies:

4a   General principles:

(i)   The review panel should generally include a re-examination of the claimant except in cases where there is no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessment.

(ii)   If the review panel is informed that a party has objected to the review being conducted on the papers, then the panel should generally conduct a re-examination.

(iii)   A re-examination should generally be conducted by more than one panel member unless all panel members are satisfied that having regard to the circumstances of the case, examination by a single panel member is appropriate.

(iv)   Generally, where the credit of the claimant is in issue, a re-examination by more than one panel member should be conducted.

Panel Certificate

35. The question for the Panel is expressed on the first page of the Panel certificate as: “Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.

36. The Certificate structure was divided into four sections. First was the “Review Details”, second was “The Assessment under Review,” third was the longer part of the report under the heading “Matters Considered and Decided by the Panel” and fourth was “The Panel Decision”.

37. Under the heading “Review Details”, after a short introduction, there was reference to a panel teleconference held on 2 November 2016 with Assessor Marsh as chairperson and Matthew Laidley, the Proper Officer of the Authority, acting as Secretary. There is then a list of documentation and other material reviewed included.

38. Under the heading “Assessment and Review” there is reference to past assessment details cross-referencing to Assessor Assem’s certificate, and then disputes identified by the parties, noting the “disputed assessment” as “Causation of the left shoulder injury”. This is followed by an outline of the arguments from both the applicant and the respondent on this issue. The applicant complained that the Assessor undertook an assessment of whole person impairment of the left shoulder arising out of the cervical spine complaints which were not based on any evidence before him and that he “took into account his own subjective opinion on an evidentiary issue”, (being the extent to which pain arising from the cervical spine may restrict left shoulder motion), when there is no such evidence before him.

39. The respondent’s argument was that the overwhelming preponderance of the contemporaneous treating and medico legal evidence summary objectively demonstrated that the respondent had complained of ongoing symptoms of radiating neck pain into her left shoulder and had suffered with the restriction of range movement in that shoulder since the subject accident which was exacerbated by subsequent events.

40. The Panel (correctly) identified the issue to be not that there was a subsequent aggravation of the left shoulder, but rather what impairment the claimant had prior to that time, which was caused by the subject accident.

41. The Panel noted the reason for referral to it was the Proper Officer’s analysis of Assessor Assem’s 8 August 2016 report which seemed to involve an interpolation by Assessor Assem into his clinical judgment that “it would be reasonable to accept a slight limitation in movement” but the Assessor was concerned that there was no evidence of impairment to support that decision.

42. Under the third category, “matters considered and decided by the Panel”, the analysis was conducted under headings “evidence considered”, “additional evidence” and “lengthy panel deliberations”. The latter part involved detailed consideration of the clinical material provided, as well as relevant investigations and analysis of each of the four areas of claimed impairment, cervical spine, soft tissue injury, lumbar spine soft tissue injury, thoracic spine soft tissue injury and left shoulder soft tissue injury. I will return to the analysis of this part of the report because it is in this area that the plaintiff submits the analysis shows that the panel misconceived its task.

43. The issue for review was identified as “causation of the left shoulder injury”, as “most germane to its deliberations”. The panel analysed Dr Assem’s August 2016 certificate and reflected back to ambulance and hospital records on the day of the motor vehicle accident. Analysis of physiotherapy records followed and the Panel’s interpretation of them was in contest in this appeal.

44. There was analysis of the GP Dr Todorovic’s records, as well as subsequent assessments with Dr Duffy, Dr Millons (an orthopaedic surgeon in June 2012) and Assessor Rosenthal, occupational physician, in May 2013. Dr Rosenthal concluded that the accident had not resulted in any injury to the plaintiff’s left shoulder and his view was that no symptoms in the plaintiff’s left shoulder were “initially recorded in any of the documentation”.

45. Dr Dalton’s records of his examinations in July 2014 and December 2015 were referred to with emphasis on Dr Dalton not finding any injury to the left shoulder, and noting some inconsistencies in shoulder movement. There is reference to the “development of impingement-like pain” related to muscle guarding, abnormal movement and posturing and unrelated to the motor vehicle accident” citing Dr Dalton’s opinion that the plaintiff has “recovered from the effects of the injuries she sustained in the motor vehicle accident”.

46. Analysis is then directed towards Dr Teychenne’s examination in September 2013. He is noted to have considered diagnoses ranging from left carpal tunnel syndrome, left cervical radiculopathy to possible left ulnar nerve compression. There is reference to Dr Bodel’s note in his report of 23 July 2015 that the plaintiff “is quite adamant that the left shoulder was abnormal at the time of the accident”, however the Panel again notes that they “could find no contemporaneous information to support this”.

47. The Panel then (p 15) makes reference to the situation with the left shoulder at the time Dr Assem undertook his further MAS examination on 3 June 2015. At that time, the plaintiff’s symptoms were assessed by Dr Assem to be “consistent with a constitutional condition and that radiological investigations undertaken about 12 months following the accident were not consistent with the alleged injury to the left shoulder”.

48. The Panel Certificate then goes on to analyse various x-rays, CTs and MRIs including, in respect of the left shoulder, an x-ray of 25 May 2011 and an MRI of the left shoulder dated 24 October 2011.

49. Under the heading “Cervical spine, soft tissue injury”, the panel concludes that the cervical soft tissue injury is causally related to the subject accident and goes on to state the following:

“The Panel accepted Assessor Assem’s examination findings. There was asymmetric range of motion but no wasting, spasm or guarding. There was no radiculopathy and no non-vertifiable radicular symptoms. This is consistent with DRE2.

The next issue is whether there is a component of left shoulder restriction due to radiating pain from the neck. The panel considered that the pain and restriction in the left shoulder did not present until March 2011. There was no radiation of cervical pain documented and left shoulder restriction was not evident in the documents until March 2011. Therefore there was no component of impairment based on the Nguyen judgment. The later left shoulder pain and restriction is explained adequately given the findings on MRI and ultrasound.”

50. There is then analysis of the lumbar spine soft tissue injury and a conclusion that the lumbar soft tissue injury is causally related to the subject accident but there is radiculopathy.

51. Under the heading “thoracic spine soft tissue injury”, the panel rejects that there was any contemporaneous information supporting such an injury, or any pain or restriction of movement associated with that part of the plaintiff’s body. (This finding is not contested in this appeal).

52. Under the heading “Left shoulder soft tissue injury” the following is said:

“Ms D’Ament is reported after March 2011 to have left shoulder pain. However there is no information about such pain prior to this. She is said to have indicated to her general practitioner that her neck symptoms were radiating to her left shoulder and that she mentioned it to her physiotherapist. However, the only information at that time indicated pain referred to her periscapular region rather than the shoulder joint. The left shoulder ultrasound dated 25 May 2011 reported by Janet McIntosh showed no evidence of a tendon tear, the humeral head is noted to sit high on plain film suggesting that in the absence of a tendon tear, there may be a weakness of the rotator cuff muscles allowing the humeral head to ride up. This produces narrow, subacromial space and is likely to be responsible for the subarcomial bursitis. There is no previous injury noted.

The Panel considered that Ms D’Ament appears to have later developed a primary condition involving her left shoulder in around March 2011. Dr Todorovic reviewed her then and arranged an ultrasound examination of her left shoulder without documenting any injury, symptoms or limitations involving her left shoulder arising from the subject motor vehicle accident.

The presence of fluid or possible haemorrhage within the left shoulder joint would indicate a recent traumatic episode rather than an injury that occurred about 12 months earlier. The pattern of restriction of movement demonstrated was consistent with adhesive capsulitis. The Panel considered that this was a constitutional condition that can sometimes be precipitated by recent trauma but considered that it is unlikely to be related to the injuries sustained almost 12 months earlier.

The Panel accepts that she may initially have developed referred symptoms to the periscapular area but there is no evidence of a shoulder injury and no relationship to the nature of the motor vehicle accident and the later identification of shoulder pathology on radiological imaging.”

53. The Panel certificate then goes on to consider under a separate heading “Apportionment for pre-existing or subsequent symptomatic impairment” and says the following:

There is no information of pre-existing injuries and therefore no apportionment.

The Panel found that the left shoulder was not injured in the subject accident. Therefore as the Panel considers that her left shoulder soft tissue injury is not causally related to the subject accident. Any impairment due to any subsequent injury of the left shoulder is not relevant to the assessment of accident related impairment.

Plaintiff’s submissions

54. Mr Sheldon SC’s argument hinged on the way in which the Panel identified and carried out its statutory task and necessary analyses pursuant to s 64(3) of the Act.

55. Mr Sheldon argued that procedural fairness failures fatally affected the Panel’s decision. Because there was a failure to conduct any clinical examination of the plaintiff, the Panel denied the plaintiff the opportunity to respond to propositions upon which the Panel may be deliberating.

56. The Panel also did not sufficiently identify in detail the “extensive clinical records providing adequate information to assess most of the issues in the request for review” or how they used this information. The qualified identification of the records by use of the term “most of the issues” raises an issue as to what else was used by the Panel to determine the issues or whether there was a lacuna in the information they had. It is not possible to know whether this lacuna affected the Panel’s reasoning and the way the Panel reached its conclusions.

57. Mr Sheldon argued that this amounted to a constructive failure to exercise jurisdiction because first, it is impossible to know on what questions arising in their consideration, the Panel felt they had inadequate information, second, the lacuna prevents one from knowing what questions they posed for themselves and third, the jurisdiction requires the panel to perform its function based on material and to state why, if it be the case, the information available is inadequate for the purpose and where that leaves its deliberations. Fourth, the effective dismissal of the plaintiff’s contemporaneous complaints was not raised with the plaintiff and her representatives so that she could have had an opportunity to respond.

58. The Panel appeared to have completely overlooked the use and meaning of the word “again” in the physiotherapy records when referring to “left shoulder pain again” in May 2011 and no reasonable panel could have concluded, as the Panel did, that there is "no record before May 2011 regarding left shoulder pain”.

59. It was argued that the Panel’s reasoning here is either illogical or its reasons not properly exposed, citing Zahed v IAG Ltd t/as NRMA Insurance [2016] NSWCA 55 at [42].

60. Mr Sheldon said that the Panel’s conclusion expressed near the end of its Certificate highlights how it misdirected itself to the wrong issue:

The panel found that the left shoulder was not injured in the subject accident. Therefore, the Panel considers that her left shoulder soft tissue injury is not causally related to the subject accident. Any impairment due to any subsequent injury to the left shoulder is not relevant to the assessment to the assessment of accident related impairment.

61. Mr Sheldon argued that in so doing, the Panel showed a lack of regard for Nguyen, and that is an error of law, because that paragraph illustrates that the Panel posed and determined the wrong question, and this infects the whole of its Determination.

Defendant’s submissions

62. It is apparent that the Panel has undertaken the necessary analysis as required by clause 16.21 of the Guidelines. Contrary to the plaintiff’s submissions, once the physiotherapy records were obtained, the Panel had all the information it required to fairly assess the plaintiff’s impairment. To do so did not require a contemporaneous assessment, given the clear position that the plaintiff was suffering a constitutional condition, not precipitated by the subject motor accident, and unrelated to injuries suffered in that accident by the time the Panel were undertaking their review.

63. The conclusion reached by the Panel was precisely the same conclusion reached by Dr Assem in his earlier report in June 2015 and it could not be said to be unreasonable.

64. Contrary to the approach adopted by Dr Assem in his subsequent assessment, the Review Panel understood it could not engage in some form of hypothetical assessment about left shoulder impairment, and thus did not do so. Had it done so, it would have fallen into jurisdictional and/or legal error. There was no denial of procedural fairness and no need to re-examine the plaintiff given her supervening shoulder condition and the years that had passed since the accident.

Decision

65. The plaintiff’s general approach to the first and second grounds of appeal is incomplete. In every application for review filed by the plaintiff within the evidence tendered on this appeal, four areas of injuries were claimed and one of those four was soft tissue injury to the left shoulder (emphasis added). Clearly, the Panel in undertaking the review that they were required to take, had to consider and deal with an assertion that there had been an injury to the left shoulder.

66. Equally clearly, as raised in the submissions filed by the insurer in support of the review application engaging the Panel’s role, issue was taken with Dr Assem’s interpretation of there having been, in the post-accident period, radiating symptoms into the left shoulder resulting from the cervical spine injury.

67. It is entirely within the purview of the Panel to determine, on its own assessment of the contemporaneous clinical records, that there was no such impairment arising from the cervical spine or indeed arising from any injury to the left shoulder, based on its interpretation of the available records.

68. The Panel has, as evidenced in its Certificate, undertaken its task in a proper fashion.

69. The fact that I or any other judicial officer may disagree with the Panel’s conclusions as to the presence and/or causation of any shoulder impairment is not the issue. Nor, as set out in the relevant case law, is there a requirement for the Panel’s decision to be perfectly expressed. There is sufficient in the Panel’s Certificate to explain the task it is undertaking, the documents reviewed and its reasoning path, including evaluating and rejecting the submission that an injury was sustained to the left shoulder in the accident and rejecting the presence of shoulder impairment in the same way as it considered and rejected that there was a thoracic spine injury sustained in the accident.

70. I accept the submissions of Mr Rewell SC on behalf of the defendant that the Panel acted responsibly in pursuit of the issues by seeking and obtaining the plaintiff’s physiotherapy records relating to her pre- and post-accident status so that they could carry out the necessary evaluations.

71. I do not accept the submission made by Mr Sheldon SC that the Panel did not have regard to the documentation provided to it. The Panel’s expertise was clearly directed to a clinical analysis of the documents and the Panel reached a reasoned view about what they showed.

72. I reject the plaintiff’s first ground of appeal that the Panel did not consider, deal with or engage with the plaintiff’s substantive case or her argument on causation as set out in the evidence. I also reject that aspect of the ground of appeal that the Panel did not adequately consider Dr Assem’s view. Clearly, the Panel did consider it and took a different view about the presence of shoulder impairment from its analysis of contemporaneous medical and paramedical records.

73. I reject the plaintiff’s second ground of appeal to the effect that it is asserted that the Panel failed to perform its statutory task because it applied a test for the evaluation of the plaintiff’s permanent impairment which was contrary to law. The context of the Panel’s review had to include an analysis as to whether the plaintiff had sustained an injury to her left shoulder because it was claimed as one of the four areas of specific injury, in addition and separate to the argument that there was shoulder impairment arising from radiating or referred pain and loss of function from the injury to the cervical spine.

74. The Panel applied the appropriate guidelines to the assessment of permanent impairment. There was no problem with the way the Panel reasoned through the Nguyen requirement, although perhaps not perfectly expressed. I am satisfied that the members of the Panel were well-acquainted with the task that they needed to pursue to comply with Nguyen, and formed the view, unfavourably to the plaintiff in terms of contemporaneous evidence, that there was no evidence supporting impairment to the left shoulder prior to March 2011. In March 2011 there was confirmation on examination that the plaintiff was having significant left shoulder problems which were found, not just by the Panel but by Dr Assem in his June 2015 assessment, to be related to shoulder capsulitis and unrelated to the motor vehicle accident.

75. There is no requirement for the Panel to undertake a clinical examination of the plaintiff if, in the view of the members of the Panel using their combined expertise, there is nothing to be learned and understood from such an examination. This conclusion in context is not surprising given the injuries were sustained almost 6 years prior, their progression and change over the following years, the historical assessments of the progression contained in contemporaneous medical reviews, investigations, films and reports, and in particular, what gas clearly been found to be a supervening left shoulder capsulitis unconnected with the accident which would tend to obviate the use of any clinical review of the left shoulder by the Panel.

76. To assess whether there was an injury or to assess the level of impairment prior to the supervening left shoulder condition, there seems to be nothing to be gained from a clinical examination undertaken in November 2016.

65. I am not convinced by the argument made by Mr Sheldon that it would have provided an opportunity for the plaintiff to further articulate the history of her symptoms. I do not consider that to be the purpose of the examination. It is clearly referred to in the legislation as a “clinical examination”.

Orders

1. The plaintiff’s summons is dismissed

2. The plaintiff pay the first defendant’s costs of these proceedings.

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Decision last updated: 12 October 2018