Elliott v Insurance Australia t/as NRMA Insurance
[2014] NSWSC 1848
•28 November 2014
Supreme Court
New South Wales
Medium Neutral Citation: Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848 Hearing dates: 28/11/2014 Decision date: 28 November 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1)Set aside the decision of the Acting Proper Officer of the Motor Accidents Authority made on 7 May 2014 declining to refer the application for review to a review panel.
(2)Remit the matter to the Motor Accidents Authority, Medical Assessment Service, for reconsideration of the decision required by s 63(3) of the Motor Accidents Compensation Act 1999 in accordance with the law, and
(3)The first defendant is to pay the plaintiff's costs of and incidental to the proceedings on the usual basis forthwith after they have been agreed or assessed.
Catchwords: ADMINISTRATIVE LAW - application for judicial review - whether decision of the proper officer of the Motor Accidents Authority infected by jurisdictional error - whether proper officer asked himself an incorrect question when deciding whether to refer a dispute to a medical appeal panel - whether proper officer went beyond gatekeeper function Legislation Cited: Accident Compensation Act 1985 (Vic)
Motor Accidents Compensation Act 1999 (NSW), ss 63
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 145
Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16; 240 CLR 611
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 88 ALJR 52Category: Principal judgment Parties: Grant Andrew Elliott (Plaintiff)
Insurance Australia Limited t/as NRMA Insurance (First Defendant)
Motor Accidents Authority of New South Wales (Second Defendant)
John Ashwell in his capacity as a medical assessor of the Motor Accidents Authority (Third Defendant)Representation: Counsel:
M J Perry (Plaintiff)
J Catsanos (Defendant)
Solicitors:
Fishburn Watson O'Brien (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2014/00192778
EX TEMPORE Judgment (rEVISED)
By application for judicial review under s 69 Supreme Court Act 1970 (NSW) the plaintiff, Mr Elliott, challenges the legality of a decision of the proper officer of the Motor Accidents Authority refusing his application to refer a Medical Assessment Certificate to a Medical Appeal Panel.
I should say that in terms the summons also impugns the medical assessment certificate. However during the course of oral argument, Mr Perry of counsel who appears for Mr Elliott made it clear that the case was maintained in relation to the proper officer's decision only. The medical assessor , Dr Ashwell has been made party to the proceedings. It seems in the light of the manner in which the case has been presented that was unnecessary. Nothing turns on this and I refer to those matters by way of completeness and to explain why it is that my decision will focus upon the question of the legality of the proper officer's decision.
The function performed by the proper officer arises under s 63(3) of the MotorAccidentsCompensationAct1999 (NSW) (The Act). So far as is relevant s 63 is in the following terms:
(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.
Factual Background
The background to the dispute is that Mr Elliott suffered injury in a motor vehicle accident which occurred on 21 December 2012. He was riding his bicycle when a vehicle turned right across his path leading to the collision.
He suffered a number of injuries. The principal injury which is the subject of the present dispute is an injury to his neck and a significant question for the medical assessor was whether that injury to the neck resulted in radiculopathy affecting Mr Elliott's left arm; that matter was of particular significance in the assessment of the degree of permanent whole person impairment caused by the injuries Mr Elliott suffered in the motor vehicle accident.
The significance of the present dispute in practical terms is that s 131 of the Act provides 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 vehicle accident is greater than 10 per cent. In the case of a dispute that question must be resolved by medical assessment under s 61 of the Act. Section 61(2) provides in terms that the medical assessor's certificate as to a matter referred for assessment is conclusive evidence in any court proceedings or claims assessment under the Act.
The assessment made by the medical assessor in the present case was nine per cent disentitling Mr Elliott from making a claim in damages for non-economic loss.
Legal Context
In determining whether the plaintiff has shown that the decision of the proper officer is vitiated by a jurisdictional error, it is important to remember the somewhat limited proper role of the court. These questions have been considered in a number of cases by Judges of the Common Law Division and by the Court of Appeal.
Specifically the provisions of s 63(3) were considered by the Court of Appeal in MeeuwissenvBoden [2010] NSWCA 253; 78 NSWLR 145. The leading judgment in that case was given by Basten JA (with whom Beazley JA, as her Honour then was, and Sackville AJA agreed). At [19] to [24] his Honour set out the salient principles which inform judicial review of the proper officer's function. His Honour pointed out the following matters of particular relevance for this case: first, that the question of correctness relates not to the certificate which results from the medical assessment, but to the medical assessment itself; and secondly that the phrase "in a material respect" in s 63(3) is not as precise as the statutory test fixed by s 62(1A) concerning referrals for further assessment.
It may be taken that his Honour considered that "in a material respect" means "the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different." : Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353.
It may also be that his Honour considered the question of materiality connoted by that phrase as extending to errors that could not be dismissed "as trivial, insignificant or immaterial": at 149[25].
Thirdly, his Honour said that the power conferred on the proper officer is not discretionary once the requisite state of satisfaction is achieved. If that occurs, the matter has to be referred for review.
Fourthly, it is not for the proper officer to decide whether the medical assessment is incorrect in a material respect but only that there is reasonable cause to suspect that it is. At [22] His Honour said this:
This language is inconsistent with the proper officer being expected (let alone required) to carry out an assessment or calculation, as opposed to identifying possible error.
His Honour's fifth point which followed from that point is that the power conferred on the proper officer:
...is that of a gatekeeper, not a decision-maker. Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed toproceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts
His Honour also considered it important to bear in mind that it is for the review panel to reconsider all of the matters in dispute. Its powers are not limited to any matter the subject of the opinion of the proper officer formed in accordance with s 63(3).
I have made reference to the provisions of s 62(1A) relating to referrals for further assessments by a single medical assessor and in passing I have recorded that the language of that provision as discussed by Basten JA is more precise than the language of s 63(3).
Jurisdictional error
A number of the decisions of the court dealing with s 63(1A) have pointed out that the question of jurisdictional error is to be approached in a particular way.
In QBE Insurance (Australia) LtdvMiller [2013] NSWCA 442 at [36] to [37] Basten JA said:
Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law
His Honour cited BuckvBavone (1976) 135 CLR 110 at 118-119 as authority for this proposition. It is worth considering the passage cited in full. Gibbs J, as his Honour then was, said this:
It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.
...
Where the authority is required to be satisfied of the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the
material facts existed but that an authority acting in accordance
with its duty could have reached no other conclusion than that
they existed.
The approach that has been taken in relation to s 62(1A) puts this case I think into that category where it is necessary for the plaintiff to show that the proper officer has misdirected himself or has failed to consider matters that he was required to consider or has taken irrelevant matters into account or his decision appears so unreasonable that no reasonable authority could properly arrive at it.
That is to say it is not for the court to decide for itself whether the statutory condition which enlivens the power of the proper officer to arrange referral to the panel for review has been satisfied.
On the other hand in MinisterforImmigrationandCitizenshipvSZMDS&Anor [2010] HCA 16; 240 CLR 611 Gummow ACJ and Keifel J at [38] to [40] pointed out that in such cases the law's apprehension against merits review, does not require "the same degree of caution as to the scope of judicial review...when the issue is whether the jurisdictional threshold has been crossed." Moreover the consideration of manifest unreasonableness needs to be borne in mind. About that, their Honours said at [39]:
Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.
I take that to mean that in determining whether jurisdictional error has occurred in a case like the present, the proper concern of the court is to avoid the appearance of merits review as more attenuated than in other cases. After all the decision here depends upon a consideration of the reasons of the medical assessor viewed through the lens of the reasons given in turn by the proper officer.
It must also be borne in mind that the purpose of s 63(3) is to provide a filter so that only proper cases can be referred for review by a panel of three assessors.
One may take it that the legislature is concerned that were it otherwise, every case in which a party is disappointed in the result of the medical assessment will be taken on review as though the review is just another step on the administrative process for the assessment of claims for motor accident damages.
At the same time I think it important to emphasise, as Basten JA did in Meeuwissen, the limited role of the proper officer in this process and in that regard I found it somewhat surprising that his decision runs to six pages. It seems to me that the language of s 63(3) really contemplates a process which is more summary in nature. I raised this question with counsel and I was assured that the procedures adopted in this case are typical of the procedures followed in all cases and that a detailed decision like that produced by the proper officer here is not uncommon.
The real issue in the case
As I have said, the essential dispute between the parties is about the assessment of the impairment suffered by Mr Elliott by reference to his neck injury.
It is necessary to refer to some of the provisions of the Permanent Impairment Guidelines issued by the authority, the current edition of which was issued on 1 October 2007.
The guidelines are taken to be delegated legislation to the extent to which they are valid and there is no question about their validity before me. The assessor is required to conduct the assessment in accordance with them.
It is important to bear in mind in this case that by guideline 4.3 the assessment of final impairment has to be made at the time the person is examined by the medical examiner, provided the medical examiner is convinced that the condition is stable and permanent.
Moreover the approach taken to assess impairment of the spine is what is referred to as a diagnosis related assessment and there are three DRE categories, as it is put.
It is common ground between the parties for Mr Elliott's impairment to fall into the highest category, or DRE III, the assessor had to find that there were consequential problems with his left arm which satisfied the description of radiculopathy.
By guideline 4.28 the assessor may only find radiculopathy which is defined as the impairment caused by dysfunction of a spinal nerve root or nerve roots if two or more clinical signs were present at the time of the examination. The relevant clinical signs are:
(a) Loss or impairment of reflexes.
(b) Positive sciatic nerve retention signs (not applicable here).
(c) Muscle atrophy and/or reduction in degree of limb circumference.
(d) Muscle weakness which is anatomically localised to an appropriate nerve root distribution.
(e) Reproducible sensory loss which is anatomically localised to an appropriate spinal nerve root distribution.
So far as atrophy is concerned, the guides provide the following definition. Atrophy is measured with a tape measure at identical levels of both limbs:
For reasons of reproducibility the difference in circumference should be two centimetres or greater in the thigh and one centimetre or greater in the arm, forearm or calf.
The assessor can address asymmetry due to extremity dominance in the report. Measurements should be recorded to the nearest 0.5 centimetre. The atrophy should be clinically explicable in terms of the relevant nerve root affected.
The medical assessment
The medical assessor in this case found left arm sensory disturbance in the left index and thumb presumably related to nerve root but no other neurological abnormalities.
I take it as being common ground between the parties that this finding satisfies one of the requirements of guideline 4.28 and in particular the fifth sign, but the statement about no other neurological abnormalities is taken as an exclusion of any of the others.
In applying to have the matter referred to a review panel, the plaintiff criticised, if I may put it that way, these findings. Effectively the argument was, and is, that the reasons provided by the assessor in fact disclosed at least two and perhaps more of the clinical signs referred to in guideline 4.28.
There is some argument about aspects of the assessor's reasons which on their face may seem inconsistent and I interpolate that the proper officer was satisfied about at least one of those inconsistencies, a topic to which I shall return.
In recording his findings on clinical examination of the neck the assessor, at p 6 of his report stated that there was some diminished sensation in the left thumb and index finger which did not extend up the forearm. He did not regard this as dermatomal. Reflexes and power were equal in both upper limbs on repeated testing. There was some generalised reduced power in the whole of the left arm but, again, the assessor did not consider this was relevant as it was non-dermatomal and power was in a "good range at grade 5".
On examination of the upper extremity he recorded so far as is relevant for present purposes "the right forearm and the upper forearm are one centimetre larger in circumference than the left side consistent with hand dominance but possibly indicating some mild lack of use of the left arm."(P 6.)
During his review of the medical reports he had been provided with by the parties the medical assessor recorded that other independent specialists had found more than one clinical sign of radiculopathy. They were Dr Licina and Dr J Bodel. Each of those doctors recorded a diminish left biceps reflex and Dr Bodel, although the assessor did not refer to this, also found an altered sensation in the C6 distribution in the left upper limb particularly along the radial border of the index finger and ulnar border of the thumb.
The assessor said there was "no clinical evidence of radiculopathy present on examination today"(p9). But having made that statement he also said at p 9:
The altered sensation in the left index and thumb were non-dermatomal. It did not fit specifically into a peripheral nerve. It could be part of an area supplied by C6 nerve root and there was indeed neuroforaminal narrowing at that level at C5/6 on the MRI study. However there was no other neurological finding to satisfy the criteria of radiculopathy. I therefore disagree with DRE III as an assessment of the cervical spine and it should be DRE II.
On reading of the assessor's reasons, and reading them as a whole and not with an eye keenly attuned to the detection of error, there is, I think, a clear inconsistency between the statement that there is no clinical evidence of radiculopathy and the statement that there were no other neurological findings to satisfy the criteria of radiculopathy.
At the top of p 11 the assessor said the altered sensation in the left hand, which was consistent with the C6 nerve root distribution (p9), was "presumably related to the nerve root". These matters are inconsistent with the specific finding of no clinical evidence of radiculopathy I have already referred to, recorded at p6.
The sense of inconsistency is somewhat enhanced when one considers that at p 10 when giving his reasons for his assessment of the degree of impairment, the assessor said "he has DRE category II with asymmetrical loss of movement but no clinical evidence of ongoing true radiculopathy." (My emphasis.) Here there is no mention of his finding of sensory disturbance.
It seems to me that the assessor found some clinical evidence of true ongoing radiculopathy, being the alteration in sensation. That is the only way one can understand the finding he made.
Another aspect relied on by the plaintiff relates to the question of atrophy. As I have quoted the medical assessor posited two possible causes. One was that the difference was consistent with right hand dominance but the other, which he described as a "possibility" is lack of the use of the left arm. I note further from the context of that statement that the second possibility is capable of being a clinical sign of radiculopathy.
I emphasise that one clinical sign called for by cl 4.28 of the guidelines is "muscle atrophy and/or decreased limb circumference." In express language the doctor found decreased limb circumference. The only question then, in accordance with the definition of atrophy, is which explanation was correct, at least so far as the doctor's opinion was concerned. If the difference was explicable by reference to "extremity dominance" then it was not a clinical sign of radiculopathy. On the other hand if that explanation was excluded, as it may well have been at least having regard to the terms of the guidelines as I have set them out, decreased limb circumference as found may well have been the second necessary clinical sign for DRE III
I think in the end, reading the assessor's report as a whole, there is much to be said for Mr Catsanos' argument that it is tolerably clear that the assessor opted for extremity dominance as the relevant explanation although he does not resolve the issue expressly anywhere in his report. This lack of clarity is not helped by the other inconsistencies in relation to what might be called the doctor's vacillation about the significance of the altered sensation in the left hand.
I point out in passing that Mr Perry relied upon what was said about the adequacy of reasons provided by the experts in the position of the medical assessor in CampbelltownCityCouncilvVegan [2006] NSWCA 284; 67 NSWLR 372 at 397. As the validity of the assessment certificate is not in question it is unnecessary for me to make any decision about that in terms.
Mr Perry also relied upon the question of the doctor's finding about reflexes in the upper arms. The doctor said that he checked them more than once and they were not diminished, notwithstanding the earlier findings of other doctors.
The decision of the proper officer
The matters that were put to the proper officer related to the findings by Dr Bodel, the failure to give weight to the history of incapacity affecting the left arm, the failure to resolve the issue about muscle atrophy expressly, the question of muscle weakness and finally the reproducibility of the sensory loss. In his careful decision the proper officer treated each of those topics individually and in respect of each separate issue asked himself the question posed by the statute, whether he was satisfied that the individual matter constituted reasonable cause to suspect that the medical assessment was incorrect in a material respect.
True enough in considering the statutory question the proper officer is bound to have regard to the particulars set out in the application and in making the decision it can be seen that he considered each argument that had been advanced on behalf of the plaintiff. However it seems to me that, in some respects, dealing with these issues separately, as he did, might have lead him to overlook the consideration that effectively he is required to answer a single question and it may be that considering all matters together could lead to a different result or different decision from considering them separately.
In the end he rejected each argument except the argument about the inconsistent findings in relation to the sensory loss affecting the left hand. He accepted specifically "the assessor's reasoning in this regard does appear to be inconsistent"(p4 [20]). He observed however that this did not necessarily mean that he should be satisfied a review was warranted.
He then referred to Meeuwissen and in particular [25] of the judgment of Basten JA. He directed himself in the following terms at [22] to [24]:
In other words even if the proper officer is of the view that the alleged error is not capable of crossing the 10% threshold, they should nevertheless be satisfied that there is reasonable cause to suspect that the error is 'incorrect in a material respect', if the alleged error would result in a change in the level of impairment being assessed.
Conversely if the proper officer is satisfied that there is reasonable cause to suspect an error in the assessment, but correction of that error could not alter the level of impairment assessed, then that error could not be considered material and the application for review should be dismissed.
While I am satisfied that there is reasonable cause to suspect the assessor has erred in his reasoning regarding sensory loss, I am not satisfied that this should be considered 'material' as it would appear that the assessor has correctly ruled out the presence of every clinical sign listed in Clause 4.28. Accordingly, even if the assessor should have found that the claimant suffered from reproducible sensory loss he would have been unable to make a diagnosis of Radiculopathy and as such the Assessment of WPI related to the cervical spine was correctly assessed at five per cent."
Consideration
What was said at [23] must be taken as a direction of law. That is to say the proper officer is directing himself that in the context of s 63(3) "incorrect in a material respect" means in a way that may be capable of altering the degree of impairment found. I am not satisfied that this is correct in law.
That portion of [25] of Meeuwissen picked up by the proper officer was not a statement of legal principle but rather a statement of conclusion based upon the principles that Basten JA had set out at [19] to [24]. Indeed the paragraph has the heading "Application of Principles". Putting the question that way in my judgment overstates the proper officer's correct role as explained by Basten JA in Meeuwissen, as it overlooks that what is the subject of the review is the assessment and not the certificate of whole person impairment, a fine but important distinction. It gives the phrase "in a material respect" a degree of precision that the statutory language does not bear.
It is not helpful to break the question posed by the statute down into its constituent grammatical parts. Really a single question is being posed: is the proper officer satisfied that there is reasonable cause to suspect the medical assessment is incorrect in a material respect? When considering that question the proper officer is bound to have regard to the particulars set out in the application of the party moving for the review.
It is likely that a state of satisfaction that there is reasonable cause to suspect that the assessment was incorrect need not rise above anything other than a state of unease on the part of the proper officer about the correctness of the assessment reading the assessor's reasons and considering the applicant's criticisms of them. It may be, as I have said already, that taking the accumulation of various complaints together might produce that state of uneasiness in a way which is not apparent when one considers each particular individuality. The weight of the whole argument may be greater than the sum of its parts.
Moreover I am of the view that the proper officer, with respect, has overstated his role if one has regard to what Basten JA said at [23] of Meeuwissen. It is not for the proper officer to decide the correctness of the assessment. That decision is made in appropriate cases by the review panel and in making that decision the review panel is not restricted to the particulars set out in the application for a review. Rather the review panel is bound to carry out a new assessment of all the matters with which the medical assessment was concerned. Given that there are valuable rights at stake it is worth repeating what Basten JA said at [23] that "Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed." The reason for that is that "the injured person is entitled to a decision reached in accordance with a proper understanding of the statutory scheme and the facts". It seems to me that the proper officer has sought to impute the phrase "in a material respect" with too high a degree of precision.
Really the emphasis is on whether there is a reasonable ground for the relevant suspicion, and given the significant inconsistency which the proper officer identified, as I have said, it was a misconception of his proper role for him to then decide in fact whether or not the correction of that error would make a difference.
I am satisfied that the plaintiff has demonstrated jurisdictional error in the exercise of the proper officer's function particularly by him posing the wrong question for determination.
Some observations on the medical assessment process
I have already referred to the desirability of considering the particulars provided by the application as a whole. I certainly accept that it is correct to say that the medical assessor's obligation is to perform his or function on the basis of the examination he or she carries out on the day of the assessment; the guidelines indicate that.
However from the proper officer's point of view, where it is shown that there is a respectable body of material which the assessment is out of step with, that is a factor which I think is capable of constituting the requisite reasonable grounds; not must, but capable of, constituting the requisite reasonable grounds.
Moreover when one also considers that the assessor did not give any reason for the choice he made in relation to the explanation for the difference in circumference of the left and right arms, that was a factor which also may have given rise to what I have referred to as the sense of unease about the correctness of the medical assessment. This was a critical point after all, because it might have been the second relevant clinical sign which would have taken the plaintiff into DRE III; it was a matter which required some further explanation.
The proper officer thought that nothing else could be said over and above what was said. However it seems to me, the impression that the assessor preferred the extremity dominance explanation is at best implied. It is certainly not expressed anywhere and given that it may have been a critical factor, it was at least desirable that some short explanation in accordance with the principle discussed by Basten JA in Vegan should have been given.
It seems to me that the question of muscle weakness was explained by the assessor in terms reasonably understandable as being "non-dermatomal." However I have explained that the body of respectable opinion still might have been relevant to the proper officer's determination. It is correct to say that the assessor was not bound as it were by the findings made by other medical referees on other occasions. Having said that, again given the mandatory approach for the determination of radiculopathy, it may be the fact that two respectable doctors found clinical signs supporting radiculopathy on prior occasions, which the assessor did not find, might have been a reason for the assessor to consider very carefully whether the diminution in circumference of the left arm was referrable to nerve root irritation. As I have said at [64], this consideration may properly inform the proper officer's decision.
Having made that observation I need to say that I am conscious of what the High Court said in WingfootAustraliaPartnersPtyLimitedvKocak [2013] HCA 43; 88 ALJR 52 at [47] about the proper role of a medical panel established under the AccidentCompensationAct1985 (Vic) and the functions it is required to perform by s 68 of that Act.
At [47] the High Court said:
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
It is perhaps worth bearing in mind under the MotorAccidentsCompensationAct medical assessors do perform a dispute resolution function. "Medical assessment matters" are defined by s 58. Further s 57 defines the phrase "medical dispute" as "a disagreement or issue to which this Part applies". Medical disputes may be referred to the Authority for medical assessment "by either party to the dispute" (amongst others).
By s 61 the medical assessor to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment. Once again the certificate is as I have said conclusive evidence as to the matter certified.
That is quite a different statutory context for the work of the Medical Assessment Services from that provided by s 68 of the Victorian legislation. No doubt medical assessment is a form of dispute resolution by expert evaluation, as it has been put. But given that it is a form of dispute resolution perhaps medical assessors have an obligation not shared by their Victorian counterparts, at times, to choose between competing arguments and opine on the correctness of other opinions on medical questions, always bearing in mind, at the end of the day, the requirement for the assessor to make his or her own decision by forming his or her own opinion based on the assessment carried out.
Requirements of time
Given that only the question of the legality of the proper officer's decision is ventilated before me, no question arises about whether the summons was filed within the time limited to that purpose by r 59.10 of the UniformCivilProcedureRules 2005.
The proper officer's decision was made on 7 May 2014 and the summons was filed on 30 June 2014 well within the requisite three month period.
Orders
My orders are:
(1) Set aside the decision of the Acting Proper Officer of the Motor Accidents Authority made on 7 May 2014 declining to refer the application for review to a review panel.
(2) Remit the matter to the Motor Accidents Authority, Medical Assessment Service, for reconsideration of the decision required by s 63(3) of the Motor Accidents Compensation Act 1999 in accordance with the law, and
(3) The first defendant is to pay the plaintiff's costs of and incidental to the proceedings on the usual basis forthwith after they have been agreed or assessed.
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Decision last updated: 22 December 2014
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