Insurance Australia Group Limited t/as NRMA Insurance v Keen

[2021] NSWSC 113

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Insurance Australia Group Limited t/as NRMA Insurance v Keen [2021] NSWSC 113

Hearing dates:

24 July 2020

Decision date:

19 February 2021

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   The time for the filing of the Summons challenging the decision of the third defendant be extended to allow the summons, in that respect, to proceed;

(2)   Judgment for the first defendant;

(3)   Summons dismissed;

(4)   The plaintiff, Insurance Australia Group Limited t/as NRMA Insurance, shall pay the first defendant’s costs of and incidental to the proceedings.

Catchwords:

ADMINISTRATIVE LAW – Grounds of review other than procedural fairness – Motor Accidents Medical Assessment and application for review – jurisdictional error and error of law – failure to deal with causation and apportionment to pre-existing injury – failure to provide adequate reasons – failure to exercise jurisdiction and apply correct test – jurisdictional pre-condition for review – capacity to challenge original decision after internal refusal to refer for review – summons dismissed.

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Supreme Court Act1970 (NSW)

Workers Compensation Act1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443

Allianz Australia Insurance Limited v MacKenzie & Ors [2014] NSWSC 67

Ballas v Department of Education (State of NSW) [2020] NSWCA 86

Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848

Frost v Kourouche (2014) 86 NSWLR 214

Meeuwissen v Boden (2010) 78 NSWLR 143

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Parisienne Basket Shoes Pty ltd v Whyte (1938) 59 CLR 369

R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407

Rodger v De Gelder (2011) 80 NSWLR 594

Rodger v De Gelder & Anor (No 2) [2011] NSWCA 235

Vitaz v Westform (NSW) Pty Limited and Ors [2011] NSWCA 254

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

Wishart v Fraser (1941) 64 CLR 470

Category:

Principal judgment

Parties:

Insurance Australia Group Limited t/as NRMA Insurance (Plaintiff)
Timothy Keen (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
Ian Meakin in his capacity as Authorised Officer of the NSW Food Authority (Third Defendant)

Representation:

Counsel:
M Robinson SC / J Gumbert (Plaintiff)
D Hooke SC / K Andrews (First Defendant)
Submitting Appearance (Second/Third Defendant)

Solicitors:
Hall & Wilcox Lawyers (Plaintiff)
Turner Freeman Lawyers (First Defendant)
Crown Solicitor’s Office (Second/Third Defendant)

File Number(s):

2019/400688

Judgment

1. HIS HONOUR: By Summons filed 20 December 2019 the plaintiff, Insurance Australia Group Limited t/as NRMA Insurance (hereinafter “IAG” or “the plaintiff”) sought judicial review involving the quashing of administrative decisions made pursuant to terms of the Motor Accidents Compensation Act1999 (NSW) (hereinafter “the Act”). At the hearing of the proceedings, IAG sought and obtained leave to file and rely upon an Amended Summons, dated 3 July 2020.

2. The Summons seeks orders quashing the decision of a medical assessor (hereinafter “the Assessor”) and a decision of the Proper Officer (hereinafter “the Proper Officer”) of the State Insurance Regulatory Authority (hereinafter “SIRA”), the second defendant, purportedly made pursuant to the terms of ss 61 and 63 of the Act, respectively. The second and third defendants submit to any order of the Court, save as to an order for costs.

Background

3. On 17 January 2014, Timothy Keen, the first defendant (hereinafter “the claimant” or “the defendant”), was involved in a motor vehicle accident (hereinafter “the accident”). IAG is the CTP insurer of the vehicle at fault.

4. Prior to the accident, the claimant had suffered a significant work-related lower back injury. That injury occurred in or about September 2012. The claimant was still receiving treatment and experiencing ongoing pain due to this injury at the time of the accident, but was continuing to work relatively uninterruptedly.

5. On 5 July 2017, the claimant underwent surgery for disc replacement and nerve root decompression at the L5/S1 level. The claimant did not, at that stage, make a CTP claim in relation to the accident. Such a claim was made in January 2018.

6. Following the making of the claim in January 2018, the claimant was assessed by the Assessor, Mr Meakin, with regard to a permanent impairment dispute pursuant to the terms of s 58(1)(d) of the Act, in order to determine his entitlement for non-economic loss pursuant to the terms of s 131 of the Act.

7. On 11 June 2019, the assessment concluded that the claimant was subject to 15% whole person impairment (hereinafter “WPI”), as a result of a soft tissue injury to the lumbar spine, thereby exceeding the “greater than 10%” WPI threshold required by the Act for the purposes of proceeding for non-economic damages.

8. An application pursuant to the terms of s 63 of the Act was made to the Proper Officer for a review of the Assessor’s decision. On 20 September 2019, the Proper Officer refused the application on the basis that he was not satisfied that there was a reasonable cause to suspect material error in the Assessor’s decision. The Insurer, IAG, seeks relief from the whole of the Assessor’s decision and the decision of the Proper Officer.

Evidence

9. For obvious reasons given the nature of the proceedings, the evidence in the proceedings is relatively formal. The plaintiff relies upon the Affidavit of Catherine Anne Freeman, sworn 17 April 2020 or 16 April 2020. [1]

   1. There is a difference in the date on the coversheet of the Affidavit and in the body of the Affidavit.

10. Ms Freeman is the solicitor for IAG and the Affidavit annexes the material upon which it relies or which is subject to challenge. It includes material that was before the Assessor in the proceedings giving rise to his decision. No objection was taken to the tender of the material, although, for the purpose of s 69 of the Supreme Court Act1970 (NSW), only the decision and the reasons for the decision form part of the record.

11. Nevertheless, one of the grounds upon which IAG seeks to proceed requires the Court to determine whether there was a failure by the decision-makers to deal with a substantially and clearly articulated argument based on established facts. As a consequence, some, at least, of the primary material may be relevant and admissible.

Statutory Scheme

12. The scheme of the Act has been the subject of analysis on a number of occasions. A brief and uncontentious summary of the statutory framework is provided in the Plaintiff’s Written Submissions, starting at [14]. The Court, as presently constituted, has dealt with the structure of the statute on a number of occasions.

13. It is sufficient for present purposes to clarify that a medical dispute, being a term defined by the Act to mean a disagreement or issue to which Part 3.4 of the Act applies, may be referred to the Authority (in this judgment referred to as SIRA) for the purpose of providing a certificate as to the matters referred to in the assessment. [2] Once the medical dispute has been referred to SIRA, its task is to arrange for the dispute to be referred to one or more medical assessors.

    2. The Act ss 60-61.

14. For that purpose, in these proceedings, the medical dispute was uncontentiously referred to the Assessor, Mr Meakin. As is the custom in appointments under the Act, the Assessor, where the dispute is of the relevant kind, is an Orthopaedic Surgeon, and a specialist medical Assessor for the purposes of the Act. Generally, but I assume not mandated, the appointed assessor will be a specialist in the medical area in dispute.

15. Once the Assessor assesses the claimant, pursuant to s 61 of the Act, the Assessor is required to give a certificate as to the matters referred for assessment. That assessment and certificate is conclusive evidence as to the matters certified therein. [3]

    3. Ibid s 61(2).

16. Notwithstanding the foregoing statement of conclusiveness, there are bases upon which a court may reject a certificate, none of which are relevant in the current circumstances.

17. One of the issues that may form a medical dispute is “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%.” [4] Further, a medical dispute may relate to whether treatment, which has been provided to a claimant, relates to the injury caused by the motor accident, or whether the treatment was reasonable and necessary in the circumstances. [5]

    4. Ibid s 58(1)(d).

    5. Ibid ss 58(1)(a)-(b).

18. As has been made clear, the WPI assessment certified by the Assessor was 15% and, as a result, it exceeded the WPI threshold of 10%. The Act provides a party to a medical dispute with the right to apply to a Proper Officer of the Authority (SIRA) to refer a medical assessment for a further assessment, [6] but no application for a further assessment is relevant to the proceedings now before the Court.

    6. Ibid s 62.

19. Rather, IAG applied, pursuant to the terms of s 63 of the Act, for referral of the medical assessment by the Assessor to a review panel of medical assessors. Such an application for referral to a review panel may be made only on grounds that the initial assessment was incorrect in a material respect.

20. The function of the Proper Officer is to arrange for the application to be referred to a panel, but only in circumstances where 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”. [7] A review panel may confirm the certificate of assessment or revoke the certificate of assessment and issue a new certificate.

    7. Ibid s 63(3).

21. The certificate is required to certify the matters referred for assessment, however it is the certificate, as to those matters referred for assessment, which is conclusive of the matters contained therein..

22. Notwithstanding the requirement to issue a certificate, it is the medical assessment that is referred tounder s 63 of the Act that is required to be incorrect in a material respect in an appeal, or for there to be a reasonable cause to suspect the medical assessment was incorrect when the Proper Officer determines to refer an application for an appeal. The Court of Appeal dealt briefly with this aspect in Meeuwissen v Boden and said:

1. First, what must be incorrect in a material respect is ‘the medical assessment’ and not the certificate which results from the assessment. The subject matter of a medical assessment is a ‘medical dispute’: s 63(1). A ‘medical dispute’ is defined to mean ‘a disagreement or issue to which this Part applies’: s 57. The Part applies to a disagreement about one of the matters (referred to as ‘medical assessment matters’) set out in s 58(1). These include whether the degree of permanent impairment is greater than 10%: s 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error.”[8]

   8. Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 at [19] (Basten JA, with whom Beazley JA and Sackville AJA agreed).

   23. While dealing with the judgment of the Court of Appeal, it is apposite to refer to the comments on the role of the Proper Officer as gatekeeper. In Meeuwissen, supra, the Court of Appeal said:

2. Fifthly, and following from the last point, where there is doubt as to the extent of the power of an administrative officer, the nature of the power itself must be taken into account. The power under s 63 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 to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts: where an important fact has been ignored, the assessment has not been properly undertaken and the statutory right subverted. Where a construction is available which would allow a full and proper assessment to occur, in place of a flawed assessment, that construction should be preferred.”[9]

   9. Ibid at [23].

   24. While the provisions of the Act are not identical to the provisions of a similar nature dealing with medical assessment in the Workers Compensation Act1987 (NSW), the issue of the role of a “gatekeeper” was recently confirmed by the Court of Appeal in Ballas, where it said:

3. The fallacy with this submission is that it reasons backwards from the non-expert conclusion that the Delegate was not authorised (or qualified) to reach. An assessment of arguability, to adopt and adapt the language of Gleeson JA in Vannini, is a very different exercise, as the Registrar or his or her Delegate is required to make that assessment ‘on the face of the application, and in any submissions made to the Registrar’: at [19]. It involves an assessment and satisfaction that an argument to support the nominated grounds is manifest in those two documents. If it is, that argument passes the gatekeeper and goes to the expert Appeal Panel. This process does not involve the Delegate in assessing the correctness of the argument but simply that what has been put forward is arguable.”[10]

   10. Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [72] (Bell P and Payne JA, with whom Emmett AJA agreed).

   25. As earlier stated, although the test under the Workers Compensation Act is different from the test under the Act, it may have an insignificant difference in effect. Nevertheless, the Court should not depart from the terms of the legislation or put a gloss on the words used.

   26. The passage from Ballas, supra, is not relevant, for present purposes, on the test relating to whether the Proper Officer should refer the matter to an Appeal Panel, but it does stress the “gatekeeper” nature of the task. It is not the task of the Proper Officer under the Act to determine the correctness of any ground of appeal.

   27. The role of the Proper Officer is to determine whether there is “reasonable cause to suspect” that the medical assessment was incorrect in a material respect. [11] There may be reasonable cause to suspect incorrectness, even though the Proper Officer may have a view, even a strong view, that the medical assessment was correct. It is the Review Panel that determines the correctness of the ground of appeal.

Submissions

Plaintiff’s Submissions

11. The Act s 63(3).

28. The essence of the plaintiff’s case is that each of the decision-makers, the Assessor and Proper Officer, committed errors of law or fell into error, jurisdictional or legal, in that the each of them constructively failed to exercise the jurisdiction conferred on each. As a consequence, the plaintiff submits that the decisions under review are invalid and should be set aside.

29. Each error that it is alleged to have been committed is slightly different but, at its heart, involves the failure to account properly for the pre-existing injury from which the claimant suffered. The grounds of judicial review are, necessarily, not expressed in that way but each alleged error is said to give rise to that failure.

30. On the question of causation, the plaintiff submits that the Assessor identified a significant prior injury, which is uncontroversial, and which had not resolved at the time of the subject accident. The prior injury had and was causing ongoing pain and required treatment.

31. The plaintiff asserts that the Assessor did not address the issue of causation of the lumbar spine injury as he was required to do pursuant to the Act. The plaintiff relies on the provisions of s 58(1)(d) of the Act and cl 1.5 - 1.7 of the State Insurance Regulatory Authority, Motor Accident Permanent Impairment Guidelines (1 June 2018) (hereinafter “the Guidelines”). [12]

    12. SIRA Motor Accident Permanent Impairment Guidelines, as at 1 June 2018. This document applies to the assessment of permanent impairment disputes pursuant to s 106(1) and 133 of the Act.

32. The plaintiff submits that the Assessor moved directly from the finding that there was soft tissue injury to the lumbar spine to a conclusion that the disc replacement surgery and related impairment was attributable to the accident. This, it is submitted, is error of the kind identified by Hoeben CJ at CL in Allianz Australia Insurance Limited v MacKenzie. [13]

    13. Allianz Australia Insurance Limited v MacKenzie & Ors (2014) 66 MVR 124; [2014] NSWSC 67 at [36]-[37].

33. Further to the foregoing and consistently with the foregoing, IAG submits that the Assessor failed to apply or to have regard to the Guidelines, particularly cll 1.114 and 1.34 thereof. Clause 1.114 of the Permanent Impairment Guidelines provides:

“1.114    Medical assessors must consider whether any pre-existing spinal condition or surgery is related to the motor accident, is symptomatic and whether this would result in any or total apportionment. Where a pre-existing spinal condition, or spinal surgery, is unrelated to the injury from the relevant motor accident, the medical Assessor should rely on clause 1.33.”

34. It is unnecessary for present purposes to deal with clause 1.33 of the Guidelines. Nevertheless, it is important to understand that cl 1.34 of the Guidelines requires the Assessor to calculate the contribution of the pre-existing injury to the WPI. [14] IAG submits that the failure to apply the guidelines was at least a constructive failure to exercise jurisdiction. [15]

    14. Clause 1.34 of Guidelines deals with the apportionment of WPI to subsequent injury, but the principle and approach are the same.

    15. Rodger v De Gelder & Anor (No 2) [2011] NSWCA 235.

35. Further to the foregoing, and, if necessary, in the alternative, IAG submits that the Assessor did not provide lawful reasons as was required by the Act in performing his functions. The Assessor, on IAG’s submissions, was obliged to set out lawful reasons for his determination, pursuant to the provisions of s 61(9) of the Act and cll 13.2 and 16.24 of the State Insurance Regulatory Authority, Medical Assessment Guidelines (1 October 2008) (hereinafter “Medical Assessment Guidelines”). [16]

    16. Issued under s 44(1)(d) with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessments and Review Panel assessments under pt 3.4 of the Act.

36. IAG submits that the statement of reasons of the Assessor must explain the actual path of reasoning by which the Assessor arrived at the opinion that was certified and which formed the medical assessment. [17]

    17. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [55]. See also Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [2] and [40].

37. The submission of IAG is that, while there is an extensive historical review, the Assessor simply concluded that the impairment related to the lumbar spine surgery was attributable to the subject accident without any explanation as to the reason for that conclusion. This, according to the submission, was an unexplained leap in the reasoning process, which amounts, on the submission, to error of law.

38. Over and above the foregoing, IAG submits that the Assessor is required to respond to a substantial and clearly articulated argument based on established facts. [18] IAG had made detailed submissions and adduced evidence to the effect that any impairment in the lower back was not causally related to the subject accident. Part of the argument submitted to the Assessor by IAG was that the insurer had noted all formal scans indicated that there was, in fact, no change to the claimant’s lumbar spine post-accident. [19] As a consequence it was required of the Assessor to respond to that submission, which he did not.

    18. Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 at [19]-[22] (Basten JA).

    19. See Affidavit, Catherine Anne Freeman, 17 April 2020, at Court Book, Annexure A, p 46-48.

34. In relation to the decision of the Proper Officer, IAG submits that the function of the Proper Officer was to determine whether there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. This does not need, according to the submission, to rise above a “state of unease” about the decision of the Assessor. [20]

    20. Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848.

35. For the same reasons adumbrated in relation to the issues of error about causation and the lack of reasons, the Proper Officer’s decision amounts to an “erroneous finding” and “mistaken conclusion”. [21] That erroneous finding or mistaken conclusion amounts to error of law and vitiates the legitimacy of the conclusions and, therefore, the whole decision.

    21. Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [14].

36. Alternatively, the Proper Officer has misunderstood the nature of the decision-making parameters and has committed jurisdictional error. In either circumstance, according to IAG’s submission, the Proper Officer’s decision is afflicted with sufficient error that the decision should be set aside.

37. Unrelated to the foregoing arguments and submissions, there is a need for an extension of time in relation to the proceedings taken against the decision of the Assessor. The material before the Court explains that delay on the basis of the plaintiff exhausting its remedies below in terms of the internal appeal and/or review of the decision pursuant to s 63 of the Act. [22]

    22. Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [91]-[92]; .

Defendant’s Submissions

43. At the kernel of the defendant’s opposition to the making of orders sought by the plaintiff is that the plaintiff is impermissibly asking the Court to undertake a merit review, disguised in the language of judicial review. The defendant relies upon the fact that the plaintiff has invoked the appellate process under s 63 of the Act, which resulted in the decision of the Proper Officer.

44. That decision of the Proper Officer is the operative decision, according to that submission, and, according to the defendant, the decision of the Assessor is no longer amenable to judicial review. [23] The defendant submits that, in order to succeed, the plaintiff must establish reviewable error on the part of the Proper Officer.

    23. Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [20]; Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8.

45. As to the merits of the grounds of appeal, notwithstanding the foregoing primary submission as to the availability of a remedy against the Assessor, the defendant submits that the Assessor had before him significant documentation addressing the September 2012 incident. The Assessor carefully and thoroughly considered those documents, as is manifest from the terms of the medical assessment, and, within those reasons, recited a detailed history addressing the prior incident and the subsequent impact of those injuries upon the defendant. [24]

    24. Court Book, p 11 (Certificate and Reasons for Decision of Assessor Ian Meakin, p 3).

46. The Assessor, according to the defendant’s submission, then set out a history of the accident and specifically noted that the defendant sustained a further soft tissue injury to his lumbar region, with increased discomfort in his lower back and pain radiating towards the thoracic region. The term “soft tissue injury” is, to anyone familiar with this area, a description that would include a discal injury.

47. The Assessor noted that the burning discomfort in both legs became worse and the claimant, for the first time, became unfit for work, following the motor vehicle injury. [25] The defendant submits that the Assessor was entitled to, and, in fact, did, find that the subject accident caused aggravation of the defendant’s lumbar condition, which materially contributed to the need for the disc replacement surgery.

    25. Court Book, p 12 (Certificate and Reasons for Decision of Assessor Ian Meakin, p 4).

48. As to the reasons of the Assessor, the defendant submits that the requirement to give reasons does not involve a requirement to refer to all of the evidence. All that is necessary is that the path of reasoning is reasonably identified. The Assessor made specific findings including an increase of pain and discomfort as a result of the accident. The Assessor set out in detail the nature of the first defendant’s pre-existing condition and made appropriate deductions in relation to that condition as noted inhis reasons for decision. [26]

    26. Court Book, p 20 (Certificate and Reasons for Decision of Assessor Ian Meakin, p 12).

49. The next submission of the plaintiff relies upon error said to have been caused by a failure to respond to an articulated argument. The argument upon which the plaintiff relies was that set out in the Reports of Dr Dalton [27] and Dr Korber. [28] In addressing those submissions, the Assessor referred to the detailed history of the plaintiff’s pre-existing condition, contained in all the documentary evidence, analysed Dr Korber’s Report, and reviewed Dr Dalton’s Report and opinion. [29]

    27. Court Book, p 50-52 (Affidavit of Catherine Anne Freeman). )

    28. Court Book, p 48 (Affidavit of Catherine Anne Freeman)

    29. Court Book, p 17 (Certificate and Reasons for Decision of Assessor Ian Meakin, p 9)..

50. According to the plaintiff’s submission the findings of the Assessor were that there had been an increase in symptoms and discomfort of the various kinds he recorded. This was inconsistent with Dr Dalton’s opinion, but, clearly, Dr Dalton’s opinion had been considered by the Assessor and the argument addressed had been noted. Both, according to the defendant, were clearly rejected.

51. The defendant submits that the Assessor’s findingsare not inconsistent with Dr Korber’s Report, which the Assessor had considered. Furthermore, the Assessor’s duty to give reasons did not extend to explaining why he did not find that causation was not established, nor to adjudicate on the differences of opinion of the various medical experts or why it was the Assessor did not agree with Dr Dalton’s opinion in that regard. Rather, the Assessor was required only to set out the reasons for his findings.

52. As to the argument as to the failure to apply the Guidelines, the defendant submits that the Assessor considered the Guidelines and made an appropriate deduction for the lumbar spine pre-existing condition. [30] The Assessor, according to the defendant’s submission, noted the need to address the Guidelines, [31] and then set out his determinations. [32]

    30. Court Book, p 19-20 (Certificate and Reasons for Decision of Assessor Ian Meakin, p 11-12)..

    31. Court Book, p 19(Certificate and Reasons for Decision of Assessor Ian Meakin, p 11).

    32. Ibid.

53. Lastly, the defendant submits that the plaintiff is required to show that the decision of the Proper Officer was not open to him, as a matter of law, in order to succeed in the proceedings before the Court. The defendant submits that the Assessor’s reasons do not form part of the record of the Proper Officer’s decision. Further, the defendant submits it is insufficient for the Court to come to a different view from the Proper Officer in order for the decision of the Proper Officer to be invalidated or the subject of appropriate orders of the Court. The defendant submits that the Proper Officer’s decision is the operative one.

Submissions in reply

54. First, the plaintiff distinguishes the decision and authority relating to the standing of an initial decision, compared to an appeal decision, from a situation where there has been a refusal of leave to appeal. That distinction has much merit.

55. Next, the plaintiff seeks to distinguish the Assessor’s findings of increased symptoms following the motor vehicle accident with a finding that the disc replacement surgery was causally related to the accident. Lastly, in reply, the plaintiff makes clear that it does not seek an explanation of conclusions not found but it submits that the Assessor was required to give reasons for a preference for one position over another. [33]

Consideration

33. Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121] (Basten JA).

Status of Assessor’s certificate

56. It is convenient to deal initially with the difference between the parties as to the status of the Assessor’s certificate and the reasons for the assessment. The defendant submits, effectively, once the Proper Officer’s decision issues, the Assessor’s decision is no longer operative.

57. Essentially, the defendant submits that the Assessor’s reasons and/or decision do not form part of the record in relation to the Proper Officer’s decision and are, therefore, irrelevant. Further, on the alleged authority of the Court of Appeal in Vitaz v Westform (NSW) (“Vitaz”) [34] the operative decision is that of the Proper Officer. As a consequence, it is necessary, so the submission argues, for error to be shown in the decision of the Proper Officer, independently of any error in the assessment of the Assessor.

    34. Vitaz v Westform (NSW) Pty Limited and Ors [2011] NSWCA 254.

58. For reasons already given and on the basis of authority already provided, the decision of the Proper Officer, in these proceedings, was one which denied the referral of an appeal to a Review Panel. The Proper Officer did not deal with the substance of the assessment, other than to the extent necessary for the purpose of determining whether the threshold required for referral to the Review Panel had been met.

59. In any proceedings in any court, the certificate that would be conclusive and the medical assessment that would be conclusive (subject to the statutory exceptions) is that medical assessment certified by the Assessor. The decision of the Proper Officer is akin to a denial of leave to appeal and acts as an administrative aid in reducing the workload of Review Panels to those matters that are arguably appropriate, namely, pursuant to s 63(3) of the Act for which the Proper Officer is required to be satisfied that there is “reasonable cause to suspect that the medical assessment was incorrect in a material respect”.

60. In other words, the decision of the Proper Officer has no effect other than to deny, to an applicant for a review, that right. The order, decision or certificate that has continuing effect is, in circumstances where the Proper Officer has refused to arrange a review, the initial medical assessment.

61. For the foregoing reasons, the decision of the Assessor is the decision that must be subject to challenge, if there be a challenge. On one view, at least, the decision of the Proper Officer is irrelevant to this process.

62. Moreover, if the decision of the Proper Officer were impugned, but the initial medical assessment was not, the only remedy would be to refer the matter to the Proper Officer to deal with the matter in accordance with law. Such a remedy may not result in a referral to a Review Panel, depending upon the grounds that the decision of the Proper Officer was impugned.

63. In short, the judicial review application runs, subject to the extension of time to which reference has already been made, against the Assessor’s decision. It may also run against the decision of the Proper Officer, but the impugning of that latter decision is of significantly less effect.

64. Reliance upon the judgment of the Court of Appeal in Vitaz, supra, does not assist the defendant on this issue. The reasoning of the Court of Appeal there depends, as was made clear by Basten JA,[35] on a situation where an appeal to the Appeal Panel had been heard and determined and the Appeal Panel had confirmed the certificate under appeal.

    35. Ibid at [20].

65. As a consequence of that hearing and determination, the result of which would either be to confirm or to revoke the initial assessment, it is the Appeal Panel decision that is effective. In that regard, the judgment in Vitaz, supra, is consistent with the authorities in relation to appeals generally and the effect of an appeal on the capacity to challenge the decision that was appealed. [36]

    36. Wishart v Fraser, supra.

66. However, in the current circumstances, no appeal has been heard. Rather, the gateway to an appeal has not been passed. The determination by the Proper Officer is akin to a determination to refuse leave and has no effect on the standing of the decision sought to be appealed.

Causation

67. The Assessor is a specialist orthopaedic surgeon. The task on which he was engaged was essentially a diagnosis of the claimant and a determination of the cause of the claimant’s injury.

68. The Assessor spent a significant part of his reasons for decision discussing the prior injury from which the claimant suffered. That prior injury occurred on or about 5 September 2012. In order to diagnose that injury the claimant underwent an MRI of the lumbar spine in October 2012.

69. By 15 January 2014, the claimant complained of burning pain down both legs and on 17 January 2014 the claimant suffered from the motor vehicle accident. The material before the Assessor, and the material before the Court, discloses that the claimant worked, uninterruptedly, following the work accident in September 2012.

70. The material before the Assessor, which remains unchanged, was that the claimant suffered pain, of the kind described in the complaint of 15 January 2014, from the time of the work-related injury in September 2012. Nevertheless, that pain did not require surgery. Nor did the pain incapacitate or impair the claimant in relation to his work.

71. However, as noted by the Assessor, from the time of the motor vehicle accident, the claimant’s capacity to work was significantly impaired and the pain was worse. The term soft tissue injury is, as already noted, a term that includes a discal injury.

72. While these reasons for judgment seek to separate out the grounds of appeal, there is much support for the proposition that each of the grounds of appeal is a different way of expressing the same issue. The complaint as to causation is that the Assessor did not address the proposition that the surgery was caused by the pre-existing work injury as distinct from the motor vehicle accident. That, too, is the basis upon which it is said there is insufficient reasons for the Assessor’s decision; and the basis upon which it is said a clearly articulated argument was not addressed. Each ground, however, is nuanced in its approach to the issue.

73. It is necessary, first, to deal with the recitation in the material presented by IAG of the doctor’s notes of 15 January 2014. IAG refers to Court Book 58, which is part of the chronology of medical evidence that formed an annexure to the submissions of the claimant to the Assessor and was, probably, akin to part of the pleadings in the material.

74. The full terms of the clinical note made on 15 January 2014 are as follows:

“Burning pain down both legs following back injury nearly 2 years ago; workers comp; ok when moving about; has pain when sitting in chair at work; ok when on holidays; saw Dr Kuru; happy to try Lyrica, side effects discussed; will return for review in 1 - 2 weeks and then we will consider referral to pain specialist (? Dr Ross); can play sport and work at the gym fine but has difficulty sitting at work; discussed the usefulness of Lyrica to settle down nerves; plan to trial it a few months then wean off.” [37]

37. Court Book, p. 58.

75. To summarise the note as the plaintiff has sought to summarise it in these proceedings, as being confined to pain down both legs, is, frankly, misleading. It is plain from the notation that, apart from sitting at work, the pre-existing back injury provided no constraints for the claimant playing sport or working at the gym; when on holidays; when walking about et cetera.

76. The clinical note for 17 January 2014 [38] is in the following terms:

“Struggling with back pain today had a car accident which has aggravated it;-Prescribed Celebrex”

38. Court Book, p 59 (Affidavit of Catherine Anne Freeman).

77. Two further entries in the medical evidence chronology provided with the application for assessment were also noted for 17 January 2014. They were respectively in the following terms:

“WorkCover Medical Certificate – Dr Anne Buchanan

• Originally back rest at work collapsed but the injury has been further aggravated today by a road traffic accident while on work duties;

• Treatment/medication type end duration - rest initially and anti-inflammatories then review;

• Claimant unfit to work up to 22 January 2014.”

“Comcare Workplace Hazard and Incident Report Form

• Stationed at the traffic lights and another vehicle hit the rear end of my vehicle;

• Jerking of the neck and lower back – mild pain in both areas and shaken up from the accident;

• No loss of time from work noted”

78. The Assessor dealt with these issues at some length. It is inconvenient to recite significant extracts of the decision of the Assessor, which is before the Court. There are two aspects which are important to stress.

79. First, the pre-existing work injury concerned injury to the claimant’s lumbar spine. The motor vehicle accident also caused injury to the lumbar spine.

80. The motor vehicle accident also caused injury to the thoracic spine, i.e. higher on the spine than the lumbar and sacral nerves and running essentially from the cervical nerves through to the lumbar nerve area. L5 is the lowest of the lumbar nerves and L5/S1 is the lowest lumbar nerve and highest sacral nerve.

81. The Assessor listed the injuries to be assessed [39] as: Lower back – chronic pain – exacerbation of prior condition; upper back – soft tissue injury; neck – soft tissue injury; right leg - radicular symptoms; left leg – radicular symptoms. The apportionment issue was clearly foremost in the Assessor’s thinking and the statement of his purpose.

    39. Court Book, p 10 (Certificate and Reasons for Decision of Assessor, p 2).

82. It is obvious that the Assessor had at the outset made clear that the lower back issues, (which can be assumed to be the lumbar and sacral injuries) were an exacerbation of a prior condition.

83. The Assessor then referred to the applicant’s history including his employment and then earlier complaint related to his upper lumbar back, which has received little or no attention during the course of the proceedings before the Court.

84. Nevertheless, the Assessor referred to the pre-existing work injury as “a significant accident” which resulted “in significant pain in the low lumbar back”. An MRI at about that time revealed “evidence of reduced height at the L5/S1 disc space associated with annular bulging of the disc and a small central, posterior protrusion and associated annular tear but the pathology at that time was not causing significant spinal or neural foraminal compromise and other intervertebral disc spaces appeared normal”. This caused absence from work for one week after which there was conservative treatment, including massage, joint mobilisation and the utilisation of a right heel shoe lift.

85. The applicant was examined by the Assessor. The Assessor noted that the applicant acknowledged the issues referred to in the chronology of medical evidence immediately prior to the motor vehicle accident on 17 January 2014.

86. The Assessor described the motor vehicle accident in general terms and recited the stated result of the accident from the information provided by the claimant as that “he sustained a further soft tissue injury to his lumbar back with increased discomfort in his low back and some pain radiating towards the thoracic region and as far as the cervical region. The burning discomfort in both legs became worse and he was unfit for work.” [40]

    40. Court Book, p. 12 (Certificate and Reasons for Decision of Assessor Ian Meakin, p. 4)

87. It is not suggested that the words of the Assessor are the words used by the claimant, but, rather, they seem to be the description of the injury provided by the claimant in the Assessor’s language.

78. There is a reference to treatment and treating surgeons, including: anterior epidural injections to both left and right sided L5/S1; references to orthopaedic surgeons; a discogram at which the L5/S1 disc was said to be at the offending level and showing significant annular tear; treating neurosurgeon; further surgical opinions relating to the utility of surgical intervention; the continuation of medication; reference to and examination by a treating psychologist; further CT-guided L5/S1 facet joint injection (which I assume, like the first such injections was for an anti-inflammatory steroid such as Cortizone); and the disc replacement at L5/S1 on 5 July 2017, which, it seems, had no post-operative complications, but there has been a continuation of symptoms.

79. Any person who has experience with litigation relating to back operations (or medical practitioners with such a specialty) would be aware that often the clinical evidence, even when successfully corrected, will be shown not necessarily to be the cause of the major symptoms. [41]

    41. See decision of Proper Officer at p 2 of 3, Court book p 23 and the reference to the Guidelines at Clause 1.121.

80. The Assessor’s decision reports on the findings he made on the clinical examination. [42] That report referred to the cervical and thoracic spine and there was no description of discomfort or palpable paravertebral muscle spasm or guarding, with symmetrical range of motion.

    42. Court Book, p 16 (Certificate and Reasons for Decision of Assessor Ian Meakin, p. 8).

81. As to the lumbar spine, the Assessor noted that there is an “asymmetrical loss of range of motion in the lumbar spine with flexion and extension to two-thirds of anticipated normal range and lateral flexion and rotation to the right and left to normal anticipated range.” [43] There was no evidence of muscle spasm with guarding, but there was a negative straight leg raising test on the right and left sides in both the supine and sitting position with significant description of discomfort. The report continues:

“On formal examination, however, of the lower extremities, the [claimant] demonstrates a shaking phenomenon of his left leg when attempting to examine the lower extremity, which, in my opinion, is not clonus, nor does it have a neurological basis. I note reference to this feature in other medical reports.” [44]

43. Court Book, p 14 (Certificate and Reasons for Decision of Assessor Ian Meakin, p. 6).

44. Ibid.

92. The Assessor noted the claimant’s helpfulness during the physical examination and during the history taking. There was clearly no issue associated with reliability, candour or truthfulness.

93. The Assessor then reviews the medical documentation, including relevant imaging studies and other investigations. These included the MRI scans on 3 November 2015, 8 October 2012, and 16 June 2014 along with the plain x-rays on 13 June 2018. There were also plain x-rays on 6 July 2017.

94. The Assessor noted the report of degeneration at the L5 disc as at 9 October 2012, with a small broad-based, central posterior protrusion with associated annular tear which does not cause spinal canal foraminal stenosis – no other abnormalities noted.

95. The Assessor also noted, again, the L5/S1 anterior epidural injections of 28 February 2014 and of 7 March 2014, together with the MRI scan of the thoracic and lumbar spine of 16 June 2014. The 16 June 2014 scan shows an unchanged appearance from the study of 9 October 2012. All the other lumbar discs appear normal and the stenosis is unchanged from 9 October 2012.

96. The Assessor then notes the lumbar spine MRI scan of 25 November 2017, i.e. three years after the motor vehicle accident and remarks that there is minor disc degeneration at the L5/S1 level with mild disc thinning, no annular fissure or disc space bulging and no evidence of canal or foraminal stenosis.

97. The Assessor also notes that from about T11-T12 to about L4/5 there is no evidence of disc disease, canal or foraminal stenosis. The x-rays taken on 5 July 2017, one day after the operation for the disc replacement at L5/S1, reveal alignment as normal and no complications. There is a slight scoliosis to the right, reflecting muscle spasm.

98. The Assessor notes that he has read the reports of Dr Ian Smith and Dr Martin White and Dr John Korber. [45]

    45. Court Book, p 15 (Certificate and Reasons for Decision of Assessor Ian Meakin, p. 7).

99. The report of the Tamworth Aboriginal Medical Service was noted, with the description that the claimant was suffering a history of back pain and burning sensation in both legs, but that it significantly worsened following the motor vehicle accident.

100. The Assessor notes the report of the pain specialist, Dr Russo and notes that, while the initial report of 26 February 2014 was five days after the motor vehicle accident, there is no mention of the motor vehicle accident. Dr Russo acknowledged that the applicant was struggling with the back pain and leg symptoms and actually proceeded to a medical branch block bilaterally at L4 to S1 with no lasting effect. Other reports of other doctors were noted.

101. In particular he summarised and noted the reports of Dr M Hansen, neurosurgeon and spine surgeon, in August 2016, suggesting a disc replacement; Dr C Oates, occupational physician of, 21 March 2017 which referred to both injuries in 2012 and 2014 and noted that prior to the motor vehicle accident the applicant had reported that he had been approximately “30% improved” following the work accident in 2012; Dr K Nadanachandran, neurosurgeon, of 8 February 2017, noting the symptoms were not improving (Dr Nadanachandran was an independent medical specialist); Dr GDoig, neurosurgeon, of 8 July 2014, who suggested that the applicant was not a surgical candidate at that time; and the report of Dr A Hopcroft, consultant orthopaedic surgeon, of 30 June 2014.

102. Dr Hopcroft’s report and consultation was done some five months after the motor vehicle accident but he was asked to comment on the 2012 injury, not the motor vehicle accident. Dr Hopcroft makes no mention of the motor vehicle accident.

103. He does mention the work by Dr Russo. While Dr Hopcroft’s report, as earlier mentioned, makes no mention of the motor vehicle accident in the history taken from the patient, Dr Hopcroft does refer to the motor vehicle accident and to the mid-thoracic spinal pain and MRI scan, reasoning that the motor vehicle accident aggravated the pre-existing degenerative changes.

104. The Assessor then refers to the reports of Dr P Giblin, Orthopaedic Surgeon, of 5 December 2018 and 26 February 2019, which refers to the Motor Accident Guidelines of June 2017 and the definition of causation. Dr Giblin also noted that the motor vehicle accident had an aggravating effect on the current clinical status.

105. Importantly, from the aspect of some of the matters raised by the plaintiff, the Assessor then refers to the report of Dr S Dalton of 3 January 2019. Dr Dalton’s report noted the stiffening of the applicant’s left leg, a matter also noticed by the Assessor. Dr Dalton concluded, according to the Assessor, however, “that this was not consistent with spasticity with which I would agree.” Dr Dalton opined, according to the Assessor, “that the effect of the 2012 work injury had been under-stated noting considerable symptoms reported prior to the current motor vehicle accident. Dr Dalton concluded that in his opinion there was no permanent impairment relating to the current motor vehicle accident and any need for surgery did not arise from that event, but rather previous clinical issues.” [46]

     46. Court Book, p 17 (Certificate and Reasons for Decision of Assessor Ian Meakin, p. 9).

106. Next the Assessor dealt with the report of the orthopaedic and spinal surgeon, Dr B Singh, of 5 November 2018 and 17 April 2019. The Assessor agreed with Dr Singh’s assessment that the symptoms, while improving for 2 to 3 months after surgery, significantly returned and remained until the current time. The Assessor also referred to the photographs and information provided relating to the motor vehicle accident. The Assessor took the view that the accident was not in a major category.

107. The Assessor then made, under the heading “Conclusions” and the subheading “Diagnosis and Causation”, the following remarks:

“The applicant injured his low back in a workplace accident on 5 September 2012 with resulting low back pain and pain radiating into the posterior aspect of both legs. These symptoms persisted, despite conservative treatment up to and just before the current motor vehicle accident. There was a radiological scan of the lumbar spine which confirmed a pre-existing degenerative change at the L5/S1 disc in a scan performed on 19 October 2012, one month after the work accident suggesting an asymptomatic but pre-existing, clinical condition. [47]

As a result of the current motor vehicle accident there has been an increase in the symptoms along with discomfort radiating towards the thoracic and lumbar spine with intermittent discomfort continuing in the thoracic spine and a much lesser extent in the lumbar spine.

The discomfort associated with the cervical spine has not been present for some months and therefore, appears to have resolved. The radicular symptoms radiating into the right and left leg emanate from the lumbar back and are not indicative of direct injury to the right or left leg.

There have been continued neurological examination and radiological assessment of the lumbar spine with consistent pathology at the L5/S1 level culminating in a positive discogram.

There has been a surgical intervention in the form of a disc replacement and nerve root decompression at the L5/S1 level on 5 July 2017 but unfortunately, symptoms persist. There continues to be discomfort in the lower lumbar back with symptoms radiating into the lower extremities. Despite the symptoms radiating into the lower extremities, however, there is no clinical evidence to support the definition of radiculopathy with the symptoms fulfilling the definition of a non-verifiable radicular complaint. There is definite evidence that prior to the current motor vehicle accident there is at least discomfort in the low lumbar back with symptoms radiating into both the right and, left lower leg.”

47. I understand this comment as to asymptomatic to be a reference to the scan of 19 December 2012.

108. The Assessor cites the definition of permanent impairment defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment and notes that the motor vehicle accident was five and a half years ago and that the claimant remains symptomatic and any assessment of impairment can be considered permanent. The injuries were summarised as earlier outlined: cervical spine – soft tissue injury; thoracic spine – soft tissue injury; lumbar spine – soft tissue injury. The Assessor noted that the radicular symptoms referencing the right and left leg are included in the assessment of impairment of the lumbar spine.

109. In dealing with the degree of permanent impairment, the Assessor determines that the cervical neck difficulties have resolved and determined that the thoracic spine injuries, while there be intermittent discomfort, show a symmetrical range of movement and assesses the WPI for the thoracic spine at nil.

110. As to the lumbar spine, the Assessor notes the technically successful L5/S1 disc replacement, but with continued discomfort. He then refers to the absence of a loss of asymmetry of reflexes or evidence of muscle atrophy. He also refers to right and left lower extremity symptoms which, in the view of the Assessor, are more consistent with an S2 nerve root distribution and are not related to the L5/S1 surgery. The Assessor then says:

“It is my opinion today, at the time of assessment that the definition of radiculopathy as set out under Item 1.138 of the Guides is not met with this Guideline requiring two or more of a list of five clinical signs to be present.

There has been a disc replacement at the L5/S1. Item 1.145 of the Guides states that a spinal fusion or intervertebral disc replacement is included in the definition of multilevel structural compromise with reference to Item 1.143 which refers to DRE Categories IV and V and because of the lack of clinical evidence of radiculopathy, a Category IV impairment is noted 20% Whole-person impairment.

I am historically convinced that prior to the current motor vehicle accident on 17 January 2014 there was evidence of low back pain with symptoms radiating into the lower extremities that would have fulfilled the definition of a non-verifiable radicular complaint.

Therefore, with reference to Table 72, AMAIV and Table 7 of the current Guidelines, in my opinion, a DRE Lumbosacral Spine Impairment Category II would have existed - 5% Whole-person impairment.”

111. The Assessor then sets out a table which includes the injury to the thoracic spine, assessed at 0% WPI and the lumbar spine currently assessed at 20% WPIwith a 5% reduction for the pre-existing work injury. The net effect of that table and the calculation is that the Assessor arrives at a 15% WPI.

112. The later statement by the Assessor about non-apportionment related to other motor vehicle accidents and not to the pre-existing injury which was the cause of the reduction of the 5%.

113. Further, the Assessor goes on to repeat that there was documented evidence of symptoms of discomfort in the claimant’s low back and subjective symptoms radiating to both lower extremities along with the pre-existing known L5/S1 disc lesion. This is a repeat of the information earlier contained in the Assessor’s decision for which the 5% reduction for the pre-existing injury had been calculated.

Failure to provide lawful reasons

114. It is uncontentious that the Assessor was obliged to set out lawful reasons for his determination. This may be advisable at common law, given that there may be an appeal from the Assessor’s decision.

115. It is a requirement of s 61(9) of the Act and cl 13.2 of the Medical Assessment Guidelines. There is a requirement, should there be a review, for the Panel also to issue reasons for decision. [48] Further, the Proper Officer is required to issue brief written reasons for the decision made as to whether to refer to a Panel or for further review. [49]

     48. SIRA Medical Assessment Guidelines, as at 1 October 2008, cl 16.24.

     49. Medical Assessment Guidelines, as at 1 October 2008, cll 14.8 and 16.15.

116. As has been made clear, despite the benefit associated with reasons in circumstances where an appeal lies, there is no overriding requirement of the common law for the Assessor to give reasons. The duty imposed upon the Assessor is one that is imposed by the terms of the Act and the terms of the reasons that must be supplied, as a consequence, are to be determined by implications from the Act itself.

117. The High Court[50] made the following observations in relation to the schemes that operated in Victoria, albeit in relation to the determination of an Appeal Panel. There are no significant differences for present purposes. The Court [51] said:

     50. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.

     51. French CJ, Crennan, Bell, Gageler and Keane JJ.

1. 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.

…

1. The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.

2. The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.

3. The Court of Appeal considered that a higher standard was required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act. On the premise that Brown held that the opinion of a Medical Panel must be adopted and applied for the purposes of determining all questions or matters arising under or for the purposes of the Act, the Court of Appeal analogised the function of a Medical Panel forming its opinion on a medical question to the function of a judge deciding the same medical question. Accordingly, it then equated the standard of reasons required of a Medical Panel with the standard of reasons that would be required of a judge giving reasons for a final judgment after a trial of an action in a court. The application of that judicial standard in circumstances where an affected party had provided to the Medical Panel opinions of other medical practitioners and had sought in submissions to rely on those opinions, and where the opinion formed by the Medical Panel itself did not accord with those opinions, meant that ‘it was incumbent on the [P]anel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them’. Rejection of the premise and the analogy, for reasons already stated, entails rejection of the conclusion that the higher standard is required. A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.” (Citations omitted.)

   118. The requirement on the Assessor is to provide the path of reasoning by which the Assessor arrived at the determination. The requirement for reasons is not the same as the requirement that may be imposed upon judicial officers.

   119. Even judicial officers have imposed upon them different requirements depending upon the context in which reasons for judgment are to be provided, including; the urgency of the issues; the place in the judicial hierarchy; and a range of other matters. Emphasis should be placed upon that passage in [47] of the above extract of Wingfoot Australia Partners Pty Ltd v Kocak that it is not the function of the Medical Panel, nor of an Assessor, to adjudicate or arbitrate between competing opinions of other medical experts. The Assessor, and, in turn, on review, the Panel, forms its own judgment bearing in mind the opinion of other medical practitioners.

   120. It is timely to remind the parties that which was stated by the High Court as to the review of tribunal determinations. The High Court[52] said, initially citing a judgment of the Full Court of the Federal Court of Australia,[53] that the reasons for a decision under review should not be construed minutely and finally with an eye keenly attuned to the perception of error. The High Court said:

        52. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6.

        53. Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456.

“These propositions are well settled. They recognise the reality that 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. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

‘The duty and jurisdiction of the court to review administrative action do 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 legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’” (Citations omitted.)[54]

54. Wu Shan Liang, (n 51)at [31].

121. The foregoing discussion deals with the principles that underpin both grounds relied upon by IAG, namely, the adequacy of the reasons and the failure to respond to an articulated argument. Each ground deals with the same issue, namely, the alleged failure of the Assessor to provide reasons as to why he preferred his own opinion and dismissed the opinion of Dr Dalton.

122. In fact, Dr Dalton’s opinion was expressly considered, but, as the High Court said in the passage recited above,[55] the Assessor’s function is not to arbitrate, mediate or adjudicate between different opinions. It is to form his own opinion, bearing in mind the documentation and opinions that have been provided.

     55. Kocak (n 49) at [47].

123. In doing so, the Assessor has applied the correct test; has determined the overall WPI of the claimant; has assessed the contribution of the pre-existing work injury; and concluded that, arising from the motor vehicle accident, there was a 15% WPI. IAG may disagree with that determination, but the process does not: fail to come to grips with the submission put by IAG below; fail to provide the reasons, bearing in mind that the Assessor was providing a medical diagnosis and assessment within expertise; and does not fail to deal with causation.

124. As to the issues associated with the allegation that the Assessor failed to determine the issue in accordance with the Guidelines, it is necessary to extract or summarise the relevant guidelines. Under the heading, “Causation of injury”, the Guidelines state that the assessment of the degree of permanent impairment is a Medical Assessment under the Act and the Assessor is required to determine the degree of permanent impairment of the injured person as a result of the injury that is the subject of the determination.

125. That process requires the Assessor to have regard to the causation of injury, which is a term defined, more or less accurately, in the Guidelines. First, the Guidelines set out the definition of causation that is contained in the Glossary of the AMA4 Guides in the following terms:

“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1.    The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

2.    The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.” [56]

56. The Guidelines, cl 1.6.

126. The Guidelines then state the obvious: that determining causation involves a medical and a non-medical decision and/or informed judgement. It proceeds to state:

“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.” [57]

57. Ibid cl 1.7.

127. The Guidelines then proceed to deal with issues associated with pre-existing impairment. The Permanent Impairment Guidelines state:

“[1.31]    The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.

[1.32]    The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): ‘For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.’ Refer to clause 1.218 for the approach to a pre-existing psychiatric impairment.

[1.33]    Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.” [58]

58. The Guidelines, cll 1.31-1.33.

128. The provisions of cl 1.34 of the Guidelines deal with impairment that arises from an injury that occurred after the injury or impairment arising from the motor vehicle accident and requiring assessment. It is irrelevant for present purposes.

129. Given the process undertaken by the Assessor in his decision, [59] it is difficult to give the submission that the Assessor has failed to apply the Guidelines any credence whatsoever. In almost textbook terms, the Assessor has assessed the thoracic spine injury, with nil WPI; assessed the lumbar spine injury as it currently exists, at 20% WPI; and then, on the basis of the clinical information at his disposal, assessed the impairment arising from the pre-existing work injury at 5%.

     59. Court Book, p 11-12 (Certificate and Reasons for Decision of Assessor Ian Meakin, p 11-12).

130. This resulted in a WPI, in accordance with the application of the Guidelines, of 15% for the motor vehicle accident. This ground is unarguable.

Conclusion as to Assessor’s Decision

131. From the foregoing, it is clear that the Assessor has reached his own independent diagnosis and assessment utilising the Guidelines, by assessing the impairment as it existed at the time of the assessment and deducting from that WPI the assessment made by the Assessor for the contribution of the pre-existing work injury. That assessment of the pre-existing work injury was consistent with the clinical information available to the Assessor.

132. Fundamentally, IAG seeks to impugn the assessment on the basis that the Assessor has reached a wrong conclusion. However, the Assessor has applied the correct test; disclosed his path of reasoning; applied the appropriate Guidelines; and determined the relative causation of the impairment suffered by the claimant.

133. There is no controversy that the claimant suffers an impairment that affects his whole person. The controversy is as to that which is properly attributable to the motor accident, which is the subject of the Assessor’s Determination, and that which was attributable to the pre-existing workplace injury, which was also assessed.

134. It must be remembered that the Assessor is measuring “impairment”, which may not always be the same as injury. An aggravation of a pre-existing injury may be represented clinically in the same manner, but the effect of that aggravation may be to increase the impairment suffered by a claimant and/or injured party significantly. This is the reason the legislature has chosen to have these matters assessed by medical specialists, independent of the parties.

135. Given the need and desirability of exhausting internal and/or statutory remedies of review, I would grant the necessary extension of time to challenge the Assessor’s decision, notwithstanding the view I take as to the merits of the challenge.

The Decision of the Proper Officer

136. As already stated, the Proper Officer was to determine whether he was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. It has been said that this does not need to arise above a “state of unease” about the decision of the Assessor. [60]

     60. Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848.

137. As already explained, the submission of IAG is that, because the Assessor’s determination is legally in error, the Proper Officer’s decision amounts to an “erroneous finding” and “mistaken conclusion”. [61] According to the IAG submission, this amounts to error of law and vitiates the legitimacy of the Proper Officer’s conclusions and, therefore, the whole decision.

     61. Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [15].

138. In the alternative, IAG submits that the Proper Officer has misunderstood the nature of the decision-making parameters and has committed jurisdictional error, for which judicial review will flow. It is necessary to revert to the legislation itself.

139. Previously in these reasons, I have referred to comments, without distinction, dealing with the function of the Proper Officer under each of the Act and the scheme arising under the Workers Compensation Act. However the test is expressed, by the legislature, differently. Whether that difference in wording is intended to effect a different test is irrelevant. It is impermissible to impose a gloss on the test imposed by the legislature.

140. The Act allows a party to a medical dispute to apply to the Proper Officer for a referral of an assessor’s medical assessment to a Review Panel. [62] The purpose of the Review Panel is to “review”.

     62. The Act s 63(1).

141. The only ground or grounds upon which an application for referral may be pursued is that the initial medical assessment was “incorrect in a material respect”. While that phrase tends to suggest that it is the outcome of the medical assessment which must be shown to be incorrect, error of law or procedure, which may or may not ultimately affect the outcome, would be sufficient to give rise to a ground upon which a dissatisfied party to a medical dispute could seek a referral.

142. The primary function of the Proper Officer is to arrange for such an application to be referred to the Review Panel. However, the Proper Officer must, before that can occur, be 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”. [63] Once an application for referral has been arranged to be referred, assuming the foregoing test has been satisfied, the review is de novo, i.e. a new assessment, on all matters with which the medical assessment is concerned and is not confined only to those aspects of the assessment that are alleged to be incorrect. [64]

     63. Motor Accidents Compensation Act, s 63(3).

     64. Ibid s 63(3A).

143. As stated, the legislative scheme establishes the Proper Officer as a gateway to the Review Panel. It is not the task of the Proper Officer to determine, conclusively or otherwise, the correctness of the medical assessment.

144. The Proper Officer is not, under the legislative scheme, an assessor. Nor is the Proper Officer a medical specialist, under the legislative scheme. It may be, although I do not understand it to be the situation at the time of this decision, that a Proper Officer is, by coincidence, a medical specialist; but that is certainly not an aspect of the legislation.

145. The comparison with the operation of the scheme under the Workers Compensation Act and the Workplace Injury Management and Workers Compensation Act is significantly different in some respects. First, the grounds of appeal are different and include objective circumstances such as the deterioration of the worker’s condition; availability of additional relevant information; an assessment based upon incorrect criteria; and demonstrable error. [65] None of those are specified in the Act, but each could give rise to the unease necessary to satisfy the Proper Officer.

     65. Workplace Injury Management and Workers Compensation Act, s 327(3).

146. The application under the Workers Compensation Scheme is then made to the Registrar who must be satisfied, in order for the appeal to proceed, that, on the face of the application and submissions made with relation to it, at least one of the grounds for appeal “has been made out”.

147. As stated, that is a different test from that which is required in order for the Proper Officer to refer the matter to a Review Panel under the Act. The fact that the review is a de novo review of the entire assessment informs the process undertaken by the Proper Officer, but it is still necessary that the Proper Officer be satisfied that there is “reasonable cause to suspect” that the assessment was incorrect in a material respect.

148. The mere fact, assuming it be the fact, that there is a medical opinion that assesses the contribution of a pre-existing injury differently from that assessed by the Assessor may or may not give the Proper Officer “reasonable cause to suspect” that the assessment was incorrect in a material respect.

149. In part, the “incorrectness” of which there must be suspicion is to be informed by the function of the Assessor to which earlier reference has been made. It is not the objective fact of “incorrectness”, nor the objective existence of a “reasonable cause to suspect incorrectness” that preconditions the arrangement by the Proper Officer of a referral to the Review Panel.

150. The precondition for referral to a Review Panel is the satisfaction of the Proper Officer that there is reasonable cause to suspect that the medical assessment was incorrect. It is the Proper Officer’s satisfaction that is the jurisdictional gateway and the only basis upon which a Proper Officer is entitled to arrange an application to be referred to a Review Panel. [66]

     66. Motor Accidents Compensation Act, s 63(3).

151. In the words of the High Court:[67]

     67. Parisienne Basket Shoes Pty ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7.

“It cannot be denied that, if the legislature see fit to do it. any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. In the past a tendency may have appeared in the superior courts of common law to adopt constructions of statutes conferring powers on magistrates and others which would result in the withdrawal from their exclusive or conclusive determination matters which we should now think were intended for their decision. But, even then, it must not be forgotten that this tendency was manifested in proceedings by certiorari and not in prohibition. When prohibition is based upon want of jurisdiction it means that the proceedings are coram non judice that a judgment or order, when given or made, would be void. But certiorari is a proceeding for quashing orders that are voidable only.”[68]

68. Ibid 391-392 (Dixon J).

152. While the foregoing was a comment on the jurisdiction of a magistrate, it is applicable to the jurisdiction that is granted to the Proper Officer. The jurisdictional precondition for a referral to a Review Panel is the Proper Officer’s state of mind as to the satisfaction that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. [69]

     69. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21.

153. The opinion or satisfaction that is required is an opinion or satisfaction that conditions the exercise of the power to refer and will, ordinarily, require that the satisfaction (or lack of it) be formed by a reasonable person correctly understanding the meaning of the law under which the person acts. [70]

     70. Eshetu, supra, at 130-137 (Gummow J); R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 and 432; [1944] HCA 42.

154. Nevertheless, the Court does not substitute its opinion for the opinion of the Proper Officer. The satisfaction of the Proper Officer is not conditioned on different opinions having been reasonably formed as to the proportionate contribution of a pre-existing injury.

155. Nor is it conditioned on the proposition that other reasonable persons may have arrived at a different conclusion as to the relevant and relative apportionment. It is conditioned on the formation by the Proper Officer of a reasonable view, correctly understanding the test to be applied, that the Proper Officer is satisfied there is “reasonable cause to suspect that the Medical Assessment is incorrect”.

156. On 20 September 2019, the Proper Officer issued his statement of reasons for decision on the application for review. There can be no disagreement with the comments in the introduction or in the statement of the issues in dispute.

157. Essentially, reading the reasons for decision as a whole, the Proper Officer refers to the difference of opinion between the Assessor and the opinion of Dr Dalton as one which is expressly and/or implicitly the subject of comment by the Assessor. The Proper Officer recites that the Assessor summarised the documentation including the competing view of Dr Dalton with whom he found some commonality but not total agreement.

158. Most importantly, the Proper Officer notes that the Assessor did not disregard the pre-existing complaints. The Assessor, on the opinion expressed by the Proper Officer “squarely addressed the pre-existing complaints which continued up until the subject motor accident and made a deduction using the appropriate methodology under the Guidelines”. [71]

     71. Court Book, p. 23 (Decision of the MAS Proper Officer, p 2).

159. As a consequence of that recitation, albeit brief, the Proper Officer expresses the view that he is “not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect”. This is the test to be applied and the test that was applied.

152. The opinion and determination was reasonably open to the Proper Officer. It is not for the Court, for reasons already stated in relation to the Assessor’s decision, to deal with the merits of the application for review.

153. Stripped to its essential element, the IAG submission amounts to the proposition that the Proper Officer applied the wrong test by not upholding the proposition that, given the different specialist opinions on apportionment of the impairment, the Proper Officer should have had “unease” or “reason to suspect error”. The Proper Officer’s unease is not confined to error of law, error of jurisdiction or error of principle or procedure. Rather, the Proper Officer’s attention is broadly focused on any error or incorrectness.

154. Where a relevant medical specialist expresses a different opinion on the apportionment issue, that opinion, as earlier stated, may give rise to the kind of unease that would satisfy the “gateway” test imposed on the Proper Officer. Dr Dalton expressed a different view to the Assessor. The Proper Officer is not in the position of a medical specialist able to assess, on some independent expertise, which opinion is correct. For present purposes, I accept that Dr Dalton, a sports medicine specialist, is a relevant medical specialist.

155. Objectively, the facts are relatively uncontroversial. A workplace accident occurred in 2012. A motor vehicle accident (the accident) occurred in 2014. By 2014, the claimant suffered symptoms that included lower-back pain and, seemingly referred, pain in the legs.

156. But apart from the initial period in 2012, when the claimant was off work for a week, the 2012 symptoms were managed conservatively and did not impair the claimant’s work capacity. As stated, it is “impairment”, not injury, that is to be assessed.

157. After the motor accident, the claimant’s symptoms were significantly worse; he lost capacity to work; he underwent an operation (avoided as unnecessary between 2012 and 2014); and was significantly impaired. Those foregoing circumstances are uncontroversial.

158. Yet, Dr Dalton, on the submission of IAG, opined that “the claimant’s condition is not related to the subject accident”. In other words, IAG submits that there is, on Dr Dalton’s opinion, no causation or aggravation associated with the motor vehicle accident.

159. Given the objective facts as to symptoms and impairment, it is unsurprising that this opinion was rejected by the Assessor and not thought to give rise to “unease” by the Proper Officer. Unless the Court were to take the view that any and every opinion expressed by a relevant specialist that differs from the assessment of an assessor must give rise to “unease” or “reasonable cause to suspect” incorrectness, there is no reason for the Proper Officer to be required, as a matter of law or jurisdiction, to be “uneasy”.

160. For the Court to come to the view that any contrary diagnosis or apportionment would require “unease” would be to subvert the whole scheme of the Act and render the “gateway” meaningless.

161. Notwithstanding those last comments, the task for the Court is not to determine whether it would have been “uneasy”. The Court must examine whether the Proper Officer dealt with the application for referral on the proper basis. The Proper Officerdealt expressly with the difference of opinion between Dr Dalton and the Assessor and with the manner in which the Assessor dealt with that difference. [72]

     72. Court Book, p 23 (Decision of the MAS Proper Officer, p 2).

162. The Proper Officer then cites the Guidelines to stress that the clinical features are only relevant when consistent with symptoms and referred to the increased impairment and symptoms. The Proper Officer was not satisfied that there was reasonable cause to suspect the Assessor’s medical assessment was incorrect. He expressly stated the lack of satisfaction and correctly stated the test. It should be emphasised that the formulaic recitation of the test is not the measure of correctness in this Court, but, in this case, the express words reflect the Proper Officer’s approach.

163. As a consequence of that failure to be satisfied, the Proper Officer dismissed the application for review. There is no error of law and no error of jurisdiction. If there were, then the decision of the Proper Officer would need to be quashed and a new determination of the Proper Officer performed in accordance with law. Such an order would not quash the Assessor’s decision, nor refer the application for review.

Conclusion

172. For the foregoing reasons, IAG has failed to make out error of law or error of jurisdiction in relation to the Assessor’s decision and has failed to make out error of law or error of jurisdiction in relation to the decision of the Proper Officer. The summons is dismissed.

173. The Court makes the following orders:

1. The time for the filing of the Summons challenging the decision of the third defendant be extended to allow the summons, in that respect, to proceed;

2. Judgment for the first defendant;

3. Summons dismissed;

4. The plaintiff, Insurance Australia Group Limited t/as NRMA Insurance, shall pay the first defendant’s costs of and incidental to the proceedings.

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Endnotes

Decision last updated: 19 February 2021