Jovica Trazivuk v Motor Accidents Authority of NSW

[2009] NSWSC 1074

CITATION:	Jovica Trazivuk v Motor Accidents Authority of NSW & Ors [2009] NSWSC 1074
HEARING DATE(S):	7 September 2009
JUDGMENT DATE :	9 October 2009
JUDGMENT OF:	Patten AJ
DECISION:	See paragraph 45
LEGISLATION CITED:	Supreme Court Act; 1970; Motor Accidents Compensation Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Darke v L Debal [2006] NSWCA 86; Craig v South Australia (1985) 184 CLR 163
PARTIES:	Jovica Trazivuk - Plaintiff Motor Accidents Authority of NSW - First Defendant Peter Hunt in his capacity as a CARS Assessor- Second Defendant Zurich Australian Insurance Limited - Third Defendant
FILE NUMBER(S):	SC 30143 of 2008
COUNSEL:	Ms B Nolan - Plaintiff Mr J Gracie - Third Defendant
SOLICITORS:	NSW Compensation Lawyers - Plaintiff Rankin Nathan Lawyers - Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

9 October 2009

No: 30143 of 2008

Jovica Trazivuk
v
Motor Accidents Authority of NSW & Ors

JUDGMENT

1 The Plaintiff by summons seeks relief under s69 of the Supreme Court Act in respect of the decisions of an assessor, Mr Peter Hunt, (the CARS Assessor) purportedly made under the Motor Accidents Compensation Act (the Act) respectively on 15 April 2008 and 24 September 2008. The summons asserts that the decisions were “vitiated by jurisdictional error and of no effect”.

2 Before me, Ms B Nolan appeared for the Plaintiff and Mr J Gracie for Zurich Australia Insurance Ltd (Zurich), the third defendant. The first and second defendants (respectively Motor Accident Authority of NSW (the Authority) and the, now former assessor, Mr Hunt) filed submitting appearances except as to costs and took no part in the hearing.

3 Ms Nolan moved on the affidavit of the Plaintiff’s solicitor, Mr Vic Petrovich, sworn 19 May 2009. From the documents exhibited to that affidavit, and exhibited to the affidavit of Ms Elizabeth Medland, solicitor for Zurich, it appears that the Plaintiff was injured on 31 May 2001 when, in the course of his employment, the van he was driving was struck in the rear by another vehicle. As a result of the impact, the van toppled over a fence and overturned twice before coming to rest in an upright position.

4 On 30 July 2003, the Plaintiff applied to the Authority under section 58 (1) of the Act, a disagreement having arisen as to whether the injuries caused by the accident had stabilized and the degree of permanent impairment caused.

5 He provided details of the dispute:

“Zurich has been served with a report by Dr James Bodel, orthopaedic surgeon, dated 16 May 2002 concluding Mr Trazivuk has a permanent impairment of the back 12% as a result of the motor vehicle accident. Mr Trazivuk also has a 5% overall permanent impairment of neck; and 5% overall permanent loss of efficient use of the left arm at or below the elbow as well as efficient use of left arm. Dr Bodel concludes that Mr Trazivuk ‘s condition is now stable and permanent.
Zurich did not offer settlement and agreed that a MAS report should be obtained.
The applicant seeks the assessment of whole person impairment.”

6 The Authority referred the dispute to Medical Assessor, Dr Margaret Gibson, who examined the Plaintiff on 12 December 2003. She concluded that the three disabilities had stabilized and that whole person impairment caused by the accident “is not greater than 10%”. Indeed, her report certified whole person impairment as zero in respect of each of the three disabilities.

7 On 13 October 2006, the Plaintiff applied for a further assessment of a medical dispute by the Medical Assessment Service pursuant to s62 of the Act, which is in the following terms:

“62 Referral of matter for further medical assessment

(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:
(a) by any party to the medical dispute , but only on the grounds of the deterioration of the injury or additional relevant information about the injury , or


(b) by a court or claims assessor .

(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.

(1B) Referral of a matter under this section is to be by referral to the officer of the Authority designated by the Authority for the purpose (in this Part referred to as the "proper officer of the Authority").

(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency. “

8 It is clear that the application was made by the Plaintiff pursuant to s62(1)(a). In due course a proper officer in accordance with s62(1B) found that the injuries had deteriorated and/or there was additional relevant information about them and referred the matter for further medical assessment

9 Such assessment was carried out by Medical Assessor, Dr Nigel Menogue, whose clinical specialty is musculosketal medicine. Again, the matters referred concerned injury to the Plaintiff’s neck, back and left arm.

10 Dr Menogue examined the Plaintiff on 6 March 2007. A statement of reasons of the same date included these passages:

I note in Dr Margaret Gibson’s MAS Assessment of December 2003 under impairment section where she states, “The cervical injury has resolved”. She then goes on to say the other injuries (back injury and left arm strain) are well stabilised and are unlikely to change dramatically in the near future.
Dr Gibson then assessed all three injuries as 0% of whole person impairment.
Since the assessment of December 2003, I inquired from Mr Trazivuk as to whether he had had ongoing medical management for his problems. He stated that he had been referred to specialists and I refer to those specialist reports and note that each of these reports are addressed to the claimant’s solicitor and that the follow-up letter from his treating GP dated 20 September 2006 does not make reference to an alteration in management plan beyond that assessed by Dr Gibson in her assessment of December 2003.
In other words, the assessments by Dr Manohar and Professor Murrell were generated by a solicitor with no expectation of management to follow.
I refer to the Dr Manohar report of 1 August 2005; Dr Manohar assessed Mr Trazivuk but did not identify any reason why he would be experiencing increasing pain in his left shoulder, neck and low back.
He confirmed that the imaging performed (MRI cervical spine and MRI lumbo-sacral spine) were unremarkable and that the MR arthrogram of the left shoulder showed a constitutional disorder (Neer Type 1 acromion) and felt there was a supraspinatus tendinopathy and a partial tear of the supraspinatus tendon. Dr Manohar suggested that Mr Trazivuk discuss these issues with the family physician if he wanted to undertake further treatment.
I note in a follow-up assessment in December 2005, Dr Manohar noted that neck and left shoulder pain had not resolved and Dr Manohar recommended that he consult Professor George Murrell at St George Hospital and Professor James Van Gelder regarding his neck pain.
I note a report by the treating general practitioner, Dr Tomasevic dated 3 April 2006 but apart from rehashing the old story, which was present in previous reports compiled by the treating general practitioner, there was no reference to a variation of the management plan.
……………………………………….
Current symptoms
Neck – pain – he describes a left-sided constant ache. This is increased by turning her (sic) head to the left; he experiences nocturnal pain which is relieved by massage and Mobic. This pain radiates to the left shoulder.
Left upper limb – pain – he describes a constant discomfort in the anterior aspect of the left shoulder which he states is a pain that radiates from the neck. It is constant and is increased by moving his arms out in front of him. It does not transmit into the left upper limb.
Back pain – he describes a low lumbar central localised ache; occasionally this will radiate to the left buttock and he states intermittently he will experience pins and needles down the posterior aspect of the left thigh and the left calf. It is relieved by stretching exercises, heat and anti-inflammatory agents.
Capabilities
He is able to drive a car. He performs some home duties in combination with his wife, however, she performs external home duties in the form of mowing the lawn and taking out the garbage.
He used to play basketball and soccer but cannot do so now. He has attempted to swim but states he can no longer do this because of the pain in his left shoulder.”

11 In relation to his clinical examination of the Plaintiff, Dr Menogue recorded:

Clinical Examination
On examination he was of tall stature and muscular build. He walked with a normal gait. It was noted as he walked into the consulting room and on the way out, he carried all his x-rays in his left arm. He appeared to swing his left arm freely whilst walking from the consulting room talking with the Serbian interpreter.
Following the assessment, he walked normally across the road to his van, turned his head initially to the right presumably to farewell the interpreter and then turned his head freely to the left to see if there was oncoming traffic. He opened the van door and threw the x-rays into the passenger seat without any expression of discomfort.
In the consulting room he rose steadily using both hands to push himself off the chair. He dressed and undressed holding his left arm by his side. He was cautious with all movements and tended to hold his left arm by his side for protection.
He was not wearing a cervical collar, shoulder brace or lumbar corset. He had a normal posture; there was no evidence of pelvic tilt or limb shortening.
Examination of the lumbo-sacral spine did not reveal any skeletal deformity or abnormality. There was no scoliosis, lumbar tilt or rotational deformity. The kyphotic and lordotic curves were normal.
He had specific pin-point tenderness over the L5/S1 region, however there was no evidence of muscle spasm and this region was not acting as a trigger area.
He got up on the couch slowly with his legs outstretched before him. Straight leg raising was restricted to 60 degrees right and 10 degrees left. Passive flexion extension movement of the left knee was not possible and there was significant voluntary resistance to any left knee flexion extension movement.
Power in the quadriceps, hamstrings, extensor and flexor hallucis longus muscles was equivalent.
There was not any measured muscle wasting in the thigh or calf. Sensation to the lower limbs was undisturbed throughout and reflexes were present at the knee and ankle.
He sat up on the couch bending forward and the fingertips reached the mid shin area. He was able to sit on the couch and fully extend both knees at the same time. I was able to achieve bilateral hip flexion of 100 degrees with both legs extended at the one time whilst sitting on the couch. This action was not associated with a complaint of pain.
Examination of the cervical spine showed the neck to be long and thick; the attitude was neutral and normal. There was not torticollis. He had specific pinpoint tenderness centrally in the C5/6 area but no tenderness on the left side of his neck which was where he had stated he experienced pain.
There was guarding or spasm on palpating the strap muscles of the neck and the trapezii were normal. There was no region acting as a trigger area.
……………………………..
Examination of the shoulders showed the bony and soft tissue contours to be equivalent.
There was no rotator cuff or spinate muscle wasting; the acromioclavicular and sternoclavicular joints were normal.
…………………………………
The upper arms were symmetric in dimension and there was no evidence of loss of tone, wasting or tenderness about the triceps or biceps muscles. An apprehension test was impossible to perform but there was no evidence of a sulcus sign on assessing left shoulder stability.
The grip of the hands was strong and equivalent; there was no evidence of small muscle wasting. Sensation to the upper limbs was undisturbed throughout and reflexes were present and equal at the wrist and elbow.”

12 In his conclusions, Dr Menogue determined that injuries to the Plaintiff’s neck, left shoulder and low back were caused by the motor accident; that they have stabilized; and that they are unlikely to change for better or worse in the foreseeable future.

13 He proceeded to determine that the Plaintiff does not have a left shoulder instability but does have “a Neer Type 1 acromion” which is congenital in origin and does not relate to the accident. He determined that injuries to the Plaintiff’s neck and lower back are permanent but constitute 0% whole person impairment in accordance with the Authority’s impairment assessment guidelines.

14 On 20 December 2007, the Plaintiff applied to the Authority for “General Assessment by the Claims Assessment Resolution Service” pursuant to Part 4.4 of the Act. A submission by the Plaintiff’s solicitor in support of this application criticized Dr Menogue’s reasons in these terms:

“The assessment of Dr Nigel Menogue is strongly disputed on the following grounds:
(1) The assessment contradicts the preponderance of medical evidence which supports injury and impairment to the cervical spine, lumbar spine and left shoulder.
(2) The doctor ignored the contemporaneous evidence of injury to the left shoulder and does not consider important factual matters following the injury and which are contained in the claimant’s statement concerning his left shoulder injury. Dr Menogue has determined that the left shoulder injury does not exist but it is referred pain from the cervical spine. The doctor brings into issue medical causation yet this cannot be substantiated on any of the evidence. This represents a clear attempt by Dr Menogue to deny an assessable impairment to the claimant.
(3) Dr Menogue’s assessment contains a statement that the assessments of Dr Manohar and Professor Murrell were generated by a solicitor. Such statement is false and misleading and prejudicial to the claimant.
(4) Page 7 of his report, the doctor states “he appeared to swing his left arm freely whilst walking from the consultation room”. The doctor has not provided details of his definition of “freely” or the degree of movement of such swinging despite the fact that he draws an adverse finding from this observation. This constitutes a breach of procedural fairness because the claimant cannot respond and does not know the nature of the allegation of inconsistency being made against him.
(5) On page 8 of his report the doctor makes a statement tha the claimant “turned his head initially to the right presumably to farewell the interpreter and then turned his head freely to the left to see if there was oncoming traffic. He threw his x-rays into the passenger seat without any expression of discomfort”. Again, the doctor does not indicate the degree of movement he observed, how far away the claimant was from him and whether in fact the doctor was able to determine at such a distance lack of pain, muscle guarding and asymmetry of movement, in accordance with the guides. The doctor draws extremely adverse inference against the claimant without providing appropriate particulars and uses this to find inconsistency and determine 0% whole person impairment. Again this is a clear breach of procedural fairness and constitutes improper behaviour on behalf of the MAS assessor.
(6) The Claimant relies upon his statement and in particular paragraph 7.23, 7.24 and 7.25 dealing with his assessment with Dr Menogue.
(7) Taking into account the claimants statement and the nature of the report provided by Dr Menogue, in its totality, it is submitted that the report cannot be relied upon and that the report does not represent a fair and transparent assessment of the claimants injuries and disabilities. The claimant is entitled to a fair assessment by a doctor that is charged with the very high duty to act in a fair and proper manner, without prejudice and bias. The report of Dr Menogue clearly breaches this duty to act as a fair assessor.
(8) Section 62 of the Motor Accidents Compensation Act 1999 provides a wide discretion to the claims assessor to refer this matter to MAS for further assessment.
It is submitted that this is one such case that should be referred for further assessment and an application for a further referral for assessment shall be made at the first preliminary conference or CARS General Assessment.”

15 The application for general assessment became the subject of a teleconference with the CARS Assessor on 20 March 2008. At that conference an application was made that the CARS Assessor refer the matter for a further medical assessment under s62(1)(b) of the Act.

16 The CARS Assessor reserved his decision upon the application, which was dismissed on 15 April 2008. In reasons then given he said:

“I observe that whilst a party may only apply for further assessment where there is evidence of deterioration or there is additional relevant information about the injury; a Court or a Claims Assessor appears to have an unfettered power to refer a matter for further assessment.
However, the discretion contained in s 62(1) must, in my view, be exercised with caution and in accordance with principle.
Exercise of Discretion
At the outset, I am concerned that the Claimant has applied for an order under s 62(1)(b) – that I exercise my discretion to refer the medical dispute for further assessment – in circumstances where the Claimant has not applied either for a review under s63 or a further assessment under s 62(1) (a) himself.

Whilst not a determining factor, in my view, the Claimant’s failure to take advantage of the statutory remedies available to him is one factor I may take into account in exercising my discretion.
However, my primary reason for refusing the application is that I am not satisfied that a further assessment would result in the Claimant being assessed above 10% WPI.”
I come to this conclusion for the following reasons”
In respect of the “preponderance of medical evidence ground” it is trite to state that a Medical Assessor is not required to make an assessment in accordance with the opinions expressed by other doctors who have examined the Claimant. A Medical Assessor is required to exercise his or her own clinical judgment in assessing the Claimant’s permanent impairment. The fact that Dr Menogue may, or may not, have agreed with other doctors is irrelevant.
In respect of the “causation ground”, the Claimant has failed to satisfy me that he would be assessed over 10% WPI, if a separate injury to the left shoulder were found. I note, in particular, that Professor Murrell opined on 31 July 2006 that the Claimant’s left shoulder impairment should be assessed at 7% WPI. Similarly, Dr Matalani suggested 9% WPI. Even if the left shoulder injury were assessed by Dr Menogue, there is no evidence before me that the inclusion of the left shoulder impairment would have placed the Claimant over 10% WPI, noting that Dr Menogue found 0% for both the neck and back.
In respect of the “solicitor generated reports ground”, I am not satisfied that Dr Menogue’s comments were unfair or prejudicial to the Claimant. I have examined Dr Menogue’s Statement of Reasons. Looking at the context, Dr Menogue was merely stating that the Claimant’s GP had not referred the Claimant to any specialists for treatment since the assessment by Dr Gibson in December 2003. Even if he were wrong, I am not satisfied that any such mistake would have resulted in a change in Dr Menogue’s assessment of WPI particularly given that Dr Menogue accepted that a deterioration had, in fact, taken place (see page 12).

In respect of the “independent observation ground”, I am not satisfied that satisfaction of this ground would change the result of the assessment. Dr Menogue assessed the Claimant at 0% WPI in respect of the neck and back because – on clinical examination – he found no evidence of radiculopathy.
I also note the general allegation of bias which has been advanced by the Claimant
I am not satisfied that I have the power to set aside a MAS certificate on the grounds of procedural unfairness. Pursuant to s61(4) only a court may make such an order:”

17 Following the decision of the CARS Assessor, the Plaintiff on 24 April 2008, himself made an application under s62(1)(a) of the Act for a further medical assessment. As he was required to do, he based his application upon the deterioration of his injuries and the availability of additional relevant information. It was put in these terms:

“The claimant was assessed by Dr Nigel Menogue on 6 March 2007. The doctor was required to assess the neck, back and left arm (shoulder). It is noted that the accident occurred on 31 May 2001. The doctor determines on page 12 of his report that the following injuries were caused by the motor accident.
Neck
Left shoulder
Lower back
Despite having made the finding on page 12 that the left shoulder injury was causally related to the accident the doctor then states that the left shoulder pain is coming from the neck and therefore there is no shoulder injury (page 14). This is completely irreconcilable and contradictory. Having made a finding that the left shoulder injury is causally related to the accident the doctor then cannot say that it isn’t. The doctor has assessed the left shoulder injury at 9% WPI according to the Table on page 10 of his report.
There is significant evidence to controvert the findings of Dr Menogue, which the claimant asserts are incorrect, misleading and based upon a failure to consider all relevant material. It is noted that the hospital records indicate that a left shoulder injury was sustained and this is a contemporaneous note made on the same day of the accident. The claimant then visits Dr Tomasevic on 1 June 2001 being the date subsequent to the accident. Dr Tomasevic’s clinical records clearly indicate that on 1 June 2001 when the claimant visited him, he complained of pain in the left shoulder, neck and lower back. The claimant in his statement dated 3 September 2007 (being a statement of the evidence that the claimant will give under oath at CARS) clearly states that the claimant sustained a left shoulder injury (paragraph7.1). The claimant’s statement and medical evidence from Dr Manohar, Dr Tomasevic, Dr Murrell and Dr Matalani all state that the claimant sustained a left shoulder injury and his symptoms are located in the left shoulder and are not radiating from the neck as suggested by Dr Menogue. Dr Menogue’s conclusion that the claimant did not sustain a left shoulder injury but in fact has a neck injury with radiation of pain into the left shoulder is far fetched and fanciful and completely misleading.
On 20 September 2007 the claimant was examined by Dr Elias Matalani (MAA Accredited Impairment Assessor) and this examination is subsequent to the MAS assessment of Dr Menogue. In relation to the examination of the cervical spine Dr Matalani reports the following on page 3:
‘He reported tenderness on palpation of the lower cervical vertebrae and paracervical muscles particularly on the left side. The active range of motion of the neck was possible to approximately 80% of normal. There was asymmetrical loss of range of motion.’
Dr Matalani’s examination comes 6 months following Dr Menogue’s examination and there are significant differences in their findings on clinical examination. Dr Matalani clearly appoints two reasons (page 7) as to why the claimant should fall into DRE Category II for the cervicothoraicic spin. Dr Matalani states: ‘The above assessment is based on the history of injury and complaints. There is non-uniform loss of range of motion. There is no documentable neurological impairment. There is no evidence of radiculopathy as defined by the MAA guidelines. There are none of the differentiators of DRE II’.
Dr Menogue’s assessment in relation to the cervical spine cannot be relied upon because of a number of factors:
1. In the claimant’s statement he alleges that Dr Menogue tried to convince him that the accident did not happen in the way that it occurred.
2. Dr Menogue has made adverse findings against the claimant which are in breach of procedural fairness (watching him as he walked outside and commenting upon his behaviour when he walked into the consultation room which he implies are inconsistent but does not give the claimant the opportunity to respond).
3. Further the claimant disputes many of the facts and comments relied upon in Dr Menogue’s report (paragraph 7.23 of the claimant’s statement). It is clear that the doctor has omitted to put things in his report.
It is noted that Dr Menogue is not compellable to give evidence and therefore his report cannot be tested through cross-examination at CARS or in a court of law. Accordingly it is appropriate for the matter to be referred back for further assessment in order to cure these deficiencies and ensure that facts are recorded appropriately and that there are no breaches of procedural fairness and that the doctor does not display any apparent or actual bias.
Based upon the report of Dr Matalani and the clinical records from the hospital and the clinical records from Dr Tomasevic, it is clear that the claimant’s sustained a separate injury to the left shoulder. An assessment based upon the current evidence which would suggest a 9% WPI of the left shoulder. If the matter is referred for further assessment then it is referred for further assessment on all grounds such that the cervical spine and lumbar spine will need to be reassessed. The claimant does have evidence in the form of reports which suggest that the cervical spine should be assessed at 5%. There is a high probability that the claimant’s assessment on the cervical spine will be assessed at 5% such that he exceeds the 10% Whole Person Impairment threshold.”

18 The detailed report of Dr Elias Matalani dated 20 September 2007 accompanied the application. He assessed the whole person impairment in relation to the Plaintiff’s neck (cervicothoracic spine) at 5%, the whole person impairment resulting from injury to his back (lumbosacral spine) at 0% and the whole person impairment of his left shoulder at 9%. He said that these finding resulted in a total whole person impairment of 14%.

19 Also accompanying the application was a statement by the Plaintiff which, inter alia, addressed Dr Menogue’s comments as to his movements after he left Dr Menogue’s surgery:

“When I left the medical assessment on 6 March 2007 after seeing Dr Menogue I had the x rays in my left hand but my arm was down by my side. I placed the x rays between the seats in the front without lifting my left arm to shoulder level. I am able to turn my head to the right but I cannot turn my head full to the left. My head movements were the same when I was being assessed by Dr Menogue and when I left his office. In fact I saw him standing at the window and watching me, however I did not try to affect any type of restriction for his benefit.
………………………………….
I am equally surprised that Dr Menogue spied on me as I was leaving his office. I have never behaved in the manner which was different to that during the course of my examination with Dr Menogue. I had in fact parked my vehicle directly across the road from Dr Menogue’s surgery. I actually looked up to see the surgery and saw Dr Menogue looking at me. I thought this peculiar. Despite this, at no time did I behave in a manner that would have indicated to Dr Menogue that I was uninjured and moving my head freely as indicated by him in his report to my solicitor.”

20 The Insurer’s reply to the application for a further medical assessment contained these paragraphs:

“The claimant has indicated in his application for further Assessment of a medical dispute by the Medical Assessment Service that there has been no deterioration of injury. Therefore the only matter relevant to the determination of Claimant’s Application is whether there is any additional relevant information about the injury.
The Insurer submits that the entirety of the Claimant’s submissions contained at Section 4a of his application is irrelevant to the question of additional relevant information. The submissions sole focus is on criticizing the findings of Assessor Menogue. This is entirely irrelevant to the application. The Claimant had an opportunity to lodge an Application for Review following Dr Menogue’s determination but chose not to. In addition (sic) an application pursuant to Section 62(1) (b) of the Act.
The Insurer therefore submits that the Claimant has failed to demonstrate that there is additional relevant information about the injury and consequently the Application should be rejected.
…………………………………….
In relation to the clinical records of Dr Tomasevic, the Insurer notes that the following reports of Dr Tomasevic, which summarise the Claimant’s attendances on his practice have previously been considered by MAS.
a. Report of Dr Tomasevic dated 10 March 2002
b. Report of Dr Tomasevic dated 20 June 2003.
c. Report of Dr Tomasevic dated 3 April 2006.
d. Report of Dr Tomasevic dated 20 September 2006.
Therefore the Insurer submits that the clinical records of Dr Tomasevic do not contain any new relevant information that has not already been considered by MAS.
In relation to the medical report of Dr Matalani, the Insurer submits that the report does not include any additional information. The examination with Dr Matalani was only approximately 6 months following the examination with Assessor Menogue. The reports of Dr Matalani and Assessor Menogue demonstrate that both doctors performed examinations on the Claimant’s back, left upper limb and neck. The doctors expressed different opinions as to the Claimant’s alleged injuries following their respective examinations. It is submitted that the difference of opinion expressed by Dr Matalani does not in itself demonstrate relevant new information for the purposes of Section 62(1) of the Act. It is simply a different expert opinion.
In conclusion, the Insurer submits that the Claimant’s Application does not include any new information relevant to the Claimant’s alleged injuries and therefore the Application should be rejected.

21 The Proper Officer of the Authority rejected the application for a further medical assessment in a letter to the Plaintiff’s solicitors dated 20 June 2008 which, apart from formal matters, reads:

“I am not satisfied that the application discloses that there has been either a deterioration of the injury and/or that there is additional relevant information about the injury in accordance with section 62 (1)(a) of the Motor Accidents compensation Act 1999 (the act).
In accordance with clause 8.4 of the Medical Assessment Guidelines, this matter is not suitable for further assessment for the following reasons:
The application is made on the basis that you do not agree with Assessor Menogue’s determination dated 6 March 2007 and submit that it is incorrect in material aspect, that factor is no grounds for a further assessment.
The Act provides that it is the opinion of the medical assessor that determines that issue in dispute. The opinion of other doctors may not be preferred over the opinion of the appointed medical assessor.
The report of Dr Elias Matalani dated 20 September 2008 does not constitute as additional relevant information in accordance with section 62 of the Act it simply provides a different opinion to that of Assessor Menogue.
The application is dismissed in accordance with clause 8.3 of the guidelines.”

22 The reference to the Medical Assessment Guidelines is a reference to guidelines issued pursuant to s44 of the Act. Such guidelines, by virtue of s65, have the status of law and regulate the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment under the Act. Clause 8.3 requires the proper officer to dismiss the application if it does not satisfy at least one of the criteria set out in 8.2.3. It is no part of the proper officers function to consider such a matter as procedural fairness.

23 On 15 July 2008, the solicitor for the Plaintiff made another application to the CARS assessor that he refer the matter for further medical assessment pursuant to s62 (1)(b) of the Act. The actual application is not in evidence before me but the submissions, which apparently accompanied the application, are. For the most part, they, in some detail, encompass criticism of the proper officer’s decision to refuse the application for further medical assessment under s62(1)(a) and a review of the medical assessment of Dr Menogue and the report of Dr Matalani. They also argue procedural unfairness constituted by the observations by Dr Menogue of the Plaintiff outside his surgery and the attempt by Dr Menogue to convince the Plaintiff that the accident occurred somewhat differently from his version of events.

24 By an instrument dated 24 September 2008, the CARS Assessor declined to direct a further medical assessment. He pointed out that the discretion given to a claims assessor by s62(1)(b) is unfettered and is not for instance constrained by such requirements as those contained in s62(1)(a). He pointed out that the Plaintiff had not sought a further assessment under that section nor review by a review panel under s63. He observed that a further assessment should only be ordered under s62(1)(b) where it would be unjust not to do so and suggested that this criterion may be satisfied by “further relevant” information, evidence of deterioration, evidence of material error in the assessment, or procedural unfairness.

25 The proper officer restated and enlarged upon the matters which would inform the exercise of his discretion:

“As I observed in my April 2007 Reasons, s 62(1)(b) appears to provide a Claims Assessor with an unfettered power to refer a matter for further assessment.
I indicated in my prior Reasons that the discretion conveyed by s62(1)(b) must be exercised with caution and in accordance with principle. In my view, whilst the discretion in s62(1)(b) is unfettered, it must only be exercised where there are good reasons so to do.
I am not aware of any court decision which would provide me with guidance as to the scope of the discretion given to me by s62(1)9b) and neither of the parties have directed my attention to any such court decision.
However, in my view, a further assessment should only be ordered under s62(1) (b) where it would be unjust not to do so. In other words, a further assessment should be ordered only where I am satisfied that there is a risk that an injustice will be visited upon one of the parties if the existing MAS assessment goes unchallenged.
Given that s62(1)(b) place no limits on the scope of my discretion, the kind of injustice which may warrant an order for further assessment may include further relevant information, evidence of deterioration, evidence of material error in the assessment or procedural unfairness.
However, in my view, injustice only arises where there is a reasonable prospect that the further assessment will result in a change in outcome vis-à-vis the Claimant’s entitlement to non-economic loss.”

26 After confirming the opinion expressed in his April 2005 (sic 2008) reasons where he declined to order a further assessment under s62(1)(b), he continued:

“The only remaining issue is Dr Matalini’s report. I am not satisfied that there is any risk of injustice to the Claimant arising from the fact that Dr Matalani made different clinical findings to Dr Menogue and came to a different conclusion.
On my reading of Dr Matalani’s report, there is no significant difference between his examination findings in respect of the neck and Dr Menogue’s examination findings. The real difference between their reports appears to be their application of the Medical Assessment Guidelines. The fact that Dr Matalani came to a different conclusion than Dr Menogue is not sufficient reason, in my view, to justify a further assessment under s62(1)(b).”

27 The Summons seeks to challenge the decisions of the CARS Assessor given respectively on 15 April 2008 and 24 September 2008, both of which refused to refer the matter for further assessment under s62 (1)(b). It was asserted in relation to the former that the assessor “misdirected himself and/or asked himself the wrong question and/or applied the wrong principle”, alternatively by “failing to construe the Act correctly the CARS Assessor, so misdirected, formed an opinion not reasonably open to him.”

28 As to the decision of 24 September 2008, it was contended that the assessor:

“ …. failed to consider a material claim raised in support of the application:
i. By failing to consider the claimant’s allegation of a breach of procedural fairness and apprehended and or actual bias by and on the part of Medical Assessor Menogue, the Cars Assessor failed to consider the application for further assessment in light of the information, evidence and arguments which were relevant to the application and which were provided to him.”

29 The scheme of the Act generally is to give considerable force to a medical assessment certificate. S61(2) makes it conclusive as to the matters certified and although s61(4) enables a court in court proceedings to set aside a certificate, it may do so only in the limited circumstance that there has been a denial of procedural fairness and that the admission of the certificate would cause substantial injustice.

30 Section 61 must, however, be read in light of sections 62 and 63. The latter enables a party to a medical dispute to apply to the proper officer of the Authority to refer a medical assessment to a review panel comprising at least 3 medical assessors. However, for this to occur, the proper officer must first be satisfied that the assessment was “incorrect in a material respect”.

31 Consistently, as it seems to me, with s61 and s63, s62(1)(a) authorises the reference of a matter for medical assessment on one or more further occasions upon the application of a party but subject to stringent conditions, namely that there has been a deterioration of the injury or there is additional relevant information about the injury and the deterioration or additional information, are capable of having a material effect on the outcome of the previous assessment These criteria, as amplified by the guidelines, are to be adjudged by the proper officer of the Authority who is not to direct a further reference unless they are met.

32 Section 62(1)(b) may appear anomalous, in that it confers upon a court or a claims assessor the unfettered right to refer a matter for further medical assessment. Although s62(1B), which requires the intervention of a proper officer, on its face applies to all referrals under the section, it does not seem to me, as a matter of construction, that it applies to a referral by a court or claims assessor under s62(1)(b). However, the guidelines give the Proper Officer a limited role (irrelevant for present purposes) to such referrals.

33 Section 62(1)(b) gives nobody the express right to apply to a court or assessor to refer a matter for further medical assessment and it may be (although this was not argued before me) that parliament intended that a reference under s62(1)(b) should be of the court or assessor’s own motion. Otherwise there may be the avenue for a party to obtain a further medical assessment without first establishing deterioration of the injury or additional relevant information. However, Chapter 9 of the guidelines does seem to contemplate that a formal application to a court or assessor may be made, as occurred in this case.

34 As the parties before me do not dispute that the applications were properly made to the CARS Assessor and that his reasons for declining them may be scrutinized for errors of law appearing on their face, it is necessary for me to turn to the submissions of counsel.

35 Assuming that he was required to give reasons which, in my view, under the particular subsection was certainly not beyond argument, his obligation was as stated in Craig v South Australia (1985) 184 CLR 163 at 179:

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

36 In my opinion, the statement by the assessor in both his reasons of 15 April 2008 and 24 September 2008 as to the matters which would inform the exercise of his discretion were relevant and unexceptionable.

37 Much was made by Ms Nolan as to what she asserted was the assessor’s error of law in the April reasons when he stated that only a court has power “to set aside a MAS certificate on the ground of procedural unfairness”. As it seems to me the question of “setting aside” such a certificate does not arise in this case and probably rarely, if ever, arises. The only relevant express power is conferred upon a court in court proceedings to “reject” a certificate by s61(4) of the Act in the limited circumstances set forth in the subsection. In my opinion, this particular power may only be exercised by a court, applying the principle of expressio unius est exclusio alterus. The reference to “court” in s61(4) is to be contrasted, for instance, with s62(1)(b).

38 However, nobody was suggesting that the CARS Assessor should “set aside” or “reject” Dr Menogue’s certificate. He was merely being asked to refer the matter for further medical assessment. In my view, he quite properly took into account, as a factor in exercising his discretion, his view that there had been no procedural unfairness.

39 In relation to perceived bias, Ms Nolan, as I understand it, relied upon the failure of the CARS Assessor to address specifically in either set of reasons, Dr Menogue’s apparent refusal to accept the Plaintiff’s version of the mechanics of the accident and his reference to medical reports “generated by solicitors”. It is plain from the April reasons that the assessor was aware of the submission as to the perceived bias of Dr Menogue put to him by the Plaintiff’s solicitors, because he expressly referred to it. In my opinion, it was entirely a matter for him whether the CARS Assessor regarded the question of bias as a matter which he should consider in exercising a discretion under s62(1)(b) and his failure to advert to it does not constitute an error of law. In any event, Dr Menogue was not exercising judicial or quasi judicial functions, he was a specialist medical practitioner assessing the Plaintiff’s level of impairment. On the face of it, he did just that basing his conclusions on his physical examination of the Plaintiff, his observations, and the other material provided to him. In my view, no suggestion of perceived bias could arise from either his expressed scepticism of the Plaintiff’s version of the accident or his reference to assessment by Dr Manohar and Professor Murrell as, “generated by a solicitor with no expectation of management to follow”. As to the former, it was well within the scope of his functions to test the reliability of the Plaintiff as a historian

40 The CARS Assessor did comment in both sets of reasons upon the claim of unfairness arising from Dr Menogue’s use of observations made of the Plaintiff outside his surgery. Again, in my opinion, he was, as a matter of discretion, entitled but not bound to have regard to this. He obviously regarded it as of little moment and I would respectfully agree. In my view, it is quite unexceptional for an expert medical practitioner to make observations as to the movements of an examinee after he has left the surgery in the same way that he observes the examinee in such acts as dressing and undressing while within the surgery. It is, in my opinion, unreal to assert that there is a denial of procedural fairness if the medical practitioner fails to detail his observations to the examinee and proffer an opportunity to respond.

41 In exercising his discretion, the CARS Assessor, in my opinion, was again entitled but not bound to consider Dr Menogue’s report in light of other medical reports. He chose to do so and concluded that another medical assessment would not be likely to result in the Plaintiff being assessed as having a whole person impairment exceeding 10%. This was entirely a matter within his discretion and does not evidence an error of law. This court certainly does not have the power to conduct a merits review of all the medical evidence.

42 It is apposite to refer to the observations of Mason P in Darke v L Debal [2006] NSWCA 86:

“Mr Robertson correctly pointed out that a person with authority to decide a matter does not deny procedural fairness simply because he or she rejects the propositions advanced by those who seek the decision. Those parties are entitled to have the opportunity to place relevant information and arguments before the decision-maker, which is very different from saying they have a right to a favourable decision. Procedural fairness is concerned with process, not outcomes. ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] HCA 72 at 222 411 [16]). Senior Counsel is also correct in submitting that there is a huge gap between the self-diagnosis of a lay patient interested in an outcome and the complex medical inquiry required for the purpose of a whole person impairment assessment in accordance with the statutory guidelines. The Act does not permit merits review of a certificate by the court and it precludes judicial review on grounds other than denial of procedural fairness. A party seeking review on the merits should invoke ss 62 and/or 63.”

43 In my opinion, neither the reasons given by the CARS Assessor on 15 April 2008 nor the reasons given by him on 24 September 2008 disclose error which attracts the jurisdiction of this court.

44 The Summons is dismissed with costs.