Latash v Motor Accidents Authority of New South Wales - [2006] NSWSC 66

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CITATION: Latash v Motor Accidents Authority of New South Wales and ors [2006] NSWSC 66

HEARING DATE(S): 24/08/2005

JUDGMENT DATE :
21 February 2006

JUDGMENT OF: Hislop J

DECISION: 1. The further amended summons is dismissed; 2. Costs reserved.

CATCHWORDS: Administrative law - s 63(3) Motor Accidents Compensation Act 1999 - non referral to review panel - no reviewable error established.

LEGISLATION CITED: Motor Accidents Compensation Act 1999 - ss 44, 60, 63, 133, Pt 3.4

PARTIES: Plaintiff - Ms Sandra Latash
First Defendant - Motor Accidents Authority of New South Wales
Second Defendant - Australian Associated Motor Insurers Limited
Third Defendant - The Proper Officer of the Motor Accidents Authority of New South Wales

FILE NUMBER(S): SC 30064/04

COUNSEL: Plaintiff - Dr J Azzi
First Defendant - Mr M Robinson
Second Defendant - Mr N Perram with Ms L Csillag
Third Defendant - Mr M Robinson

SOLICITORS: Plaintiff - Haylen McKenzie Solicitors
First Defendant - Motor Accidents Authority of New South Wales
Second Defendant - McLachlan Chilton Solicitors and Attorneys
Third Defendant - Motor Accidents Authority of New South Wales

LOWER COURT JURISDICTION: Motor Accidents Authority of New South Wales

LOWER COURT JUDICIAL OFFICER : Acting Proper Officer

- 1 -

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

HISLOP J

21 February 2006

30064/04 Latash v Motor Accidents Authority of New South Wales and ors

JUDGMENT

Introduction

1 The plaintiff allegedly sustained injury to her right ear, neck, shoulders, right arm and back in a motor accident on 7 November 1999. She made a claim for damages pursuant to the Motor Accidents Compensation Act 1999 (“the Act”) in respect of her injuries. The second defendant, the insurer under the Act, conceded liability and made two unsuccessful offers of settlement.

2 Medical disputes arose, inter alia, as to whether the injuries had stabilised, the degree of permanent impairment and the degree of impairment of earning capacity. These disputes were referred under s 60 of the Act to Dr Burns, a medical assessor appointed under s 59 of the Act.

3 Dr Burns examined the plaintiff on 27 August 2003 and furnished a lengthy report of the same date. He issued certificates dated 3 September 2003 in respect of each of the three medical disputes.

4 In respect of the dispute as to permanent impairment Dr Burns certified:

The following impairments are permanent and are assessed as giving rise to whole person impairment which, in total, is not greater than 10%

Soft tissue injury to the cervical spine with referred pain to both shoulders.

Soft tissue injury to the lumbar spine.

5 In his report dated 27 August 2003 Dr Burns found there was permanent impairment to the cervical spine but no radiculoupathy; pain in the shoulders referred from the neck but no significant shoulder injury in its own right; and a soft tissue injury to the lumbar spine but not such as to give rise to whole person impairment (“WPI”). He noted in his report he had examined the plaintiff on the day of the report and had reviewed the MAS application and reply forms and supporting material. The MAS reply form stated that it attached, inter alia, the reports of Dr Sanki dated 24 August 2000 and 13 September 2002, the report of Ms Spring dated 28 April 2000 and the reports of Drs Adler and Nemeth dated respectively 31 March 2000 and 7 November 2000.

6 The plaintiff made an application to the proper officer dated 15 December 2003, to refer Dr Burns’ medical assessments to a review panel pursuant to s 63 of the Act. The plaintiff in her application for referral and in a subsequent response dated 26 February 2004 to the second defendant’s reply to the application (‘the response’) submitted the medical assessment was incorrect in a material respect in regard to each of Dr Burns’s findings as to permanent impairment.

7 On 27 July 2004 the application was rejected by the Acting Proper Officer (APO). The APO published a written statement of her reasons.

8 The plaintiff has sought judicial review of the APO’s decision. The relief sought in the plaintiff’s further amended summons is relevantly:

1. An order in the nature of certiorari quashing the decision dated 27 July 2004 of Acting Proper Officer… of the Motor Accidents Authority.

2. An order declaring invalid the decision of the APO.
3. An order remitting the plaintiff’s review application to the MAA to reach a decision in accordance with judgment of the Court…

The relevant statutory provision

9 Section 63 of the Act provides:

(5) Section 61 applies to any such new certificate.

The Medical Guidelines

10 The Motor Accidents Authority (‘MAA’) has issued medical guidelines pursuant to s 44(1)(c) of the Act entitled “NSWMAA Guidelines for the Assessment of Permanent Impairment” (“MAA Guidelines”). It has also issued medical guidelines pursuant to s 44(1)(d) of the Act entitled “Medical Assessment Guidelines”.

11 The MAA Guidelines distinguish “impairment” (which is defined as “an alteration to a person’s health status”) from “disability” which is “a consequence of impairment” (MAA Guidelines 1.5, 1.6, 1.8).

12 A medical assessment pursuant to Part 3.4 of the Act (ss 57 – 65 of the Act) is “subject to relevant provisions of the MAA Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment” (s 65(1) of the Act). The assessment of the degree of permanent impairment is to be made in accordance with such guidelines (s 133(2)(a) of the Act) or if there are no such guidelines in force – the American Medical Association’s guides to the Evaluation of Permanent Impairment, Fourth Edition (s 133(2)(b) of the Act).

13 The MAA Guidelines relevantly provide:

Introduction

… These MAA Guidelines are definitive with regard to the matters they address …

Evaluation of impairment

1.13 Using these MAA Guidelines and the AMA 4 Guides to determine a permanent impairment percentage requires three stages:

(i) a review of medical and hospital records, including

- all treating and medico-legal doctor notes and reports (GP and specialist), both prior to and post the accident, and

- diagnostic findings from all relevant investigations.

(ii) An interview and a clinical examination to obtain the information specified in the Guidelines/Guides necessary to determine the percentage impairment, and

(iii) the preparation of a report using the methods specified in these Guidelines which determines the percentage impairment together with the evidence and reasons on which the determination is based.

Permanent Impairment

1.14 Before an impairment evaluation is undertaken, it must be shown that the problem has been present for a period of time, is static, well stabilised, and is unlikely to change in future months regardless of treatment. This will often be about twelve to eighteen months after the date of injury. If necessary, the treating doctor should be asked to certify that the condition is stable before an impairment assessment is undertaken.

The evaluation should only consider the impairment as it is at the time of the assessment

not

Spinal impairment

Introduction

The spine

Evaluation of impairment for the spine is to be done using diagnosis-related estimates (DRE’s) wherever possible.

4.2 The “Injury Model” relies especially on evidence of neurological deficits and uncommon, adverse structural changes, such as fractures and dislocations. Under this model DRE’s are differentiated according to clinical findings that are verifiable using standard medical procedures.

4.3 The assessment of spinal impairment is made at the time that a person is examined. If surgery has been performed then the outcome of the surgery as well as the structural inclusions must be taken into consideration when making the assessment of impairment.

The Approach to Assessment of the Spine

The use of the Range of Movement model (ROM) is not to be used for spinal impairment evaluation.

The assessor should start with Table 70

as amended in this document as a guide to the appropriate category for the spine impairment.

Radiculopathy

In general, in order to conclude that a radiculopathy is present two or more of the following signs should be found:

§ loss or asymmetry of reflexes (Table 71, p 109 AMA 4 Guides)

§ muscle atrophy and/or decreased limb circumference (Table 71, p 109 AMA 4 Guides)

§ muscle weakness which is anatomically localised to an appropriate spinal nerve root distribution

§ reproducible sensory loss which is anatomically localised to an appropriate spinal nerve root distribution

not

does not constitute

4.28 Electrodiagnostic tests are rarely necessary investigations and a decision about the presence of radiculopathy can generally be made on clinical grounds if a competent examination is performed.

4.29 Exceptional cases of radiculopathy may have pain of a radicular nature and only sensory changes, confined to an anatomical distribution of a specific spinal nerve root.

4.30 Imaging studies must support clinical findings of radicular malfunction. That is to say that the anatomical features reported to be abnormal on the imaging studies must be consistent with the distribution of the radicular malfunction. If more than one modality of imaging has been performed there should be anatomical consistency in the findings of abnormality.

14 Provision is made in chapter 10 of the Medical Assessment Guidelines as to the form and content of the assessors report and certificate.

15 Chapter 11 of the Medical Assessment Guidelines provides guidelines for review pursuant to s 63 of the Act and, in particular, provides:

11.9 In determining whether the Proper Officer is satisfied that there is reasonable cause to suspect an assessment is incorrect in a material respect the Proper Officer shall have regard to:-

11.9.1 The matters set out in section 63(3) of the Act and

11.9.2 The objects of the Act.

11.10 Having considered the application the Proper Officer is to advise the parties of the decision supported by a brief statement of reasons.

Discussion

16 The Proper Officer’s duty is to arrange for the referral of an application under s 63(3) of the Act only if he or she “… 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.” The Proper Officer is not required to have any medical training or qualifications and it is no part of the Proper Officer’s function under s 63(3) to determine if an error has in fact been made.

17 Plaintiff’s counsel summarised his submissions as follows:

… what the Proper Officer did not do in this instance is conduct a proper review of the matter. She did not give reasons and she failed to conduct the review properly, the review process, by failing to consider our submissions of February 2004.

18 The APO correctly identified the duty imposed upon her by s 63(3) of the Act. She noted that in considering the application she had taken the application form, response and associated documents into account. There does not appear to be any reason to doubt the veracity of the APO in this regard. Accordingly, I would conclude, prima facie, that the APO had considered the plaintiff’s submissions of February 2004. However it is submitted that an examination of the APO’s reasons proves otherwise.

19 It is convenient to deal separately with each of Dr Burns’ findings which was challenged by the plaintiff in her application and response.

The Cervical Spine

20 In his report dated 27 August 2003, Dr Burns concluded:

(the plaintiff) sustained a soft tissue injury to the cervical spine with a radiation of pain into both shoulder girdles but worse on the right side….there is no evidence of radiculopathy… She has been classified as DRE category II. This would give her a 5 percent whole person impairment.

21 The plaintiff, in her application for review, contended Dr Burns’ assessment was incorrect:

“… in finding that there is no evidence of radiculopathy when the claimant continuously complains of pain radiation to both shoulders”: and asserted … “In view of the continuing radiating pain to both shoulders there is evidence of radiculopathy and for Dr Burns to come to a different conclusion in our respectful submission would mean that Dr Burns would need to rely on investigation reports conclusively showing no disease of spinal nerves.”

22 In the response the plaintiff contended the earlier reports were relevant as Dr Sanki gave a medicolegal opinion on 13 September 2002, confirming earlier findings and indicating a WPI of 19%.

23 The APO held she was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect in relation to the cervical spine for the following reasons:

a) In making his assessment the medical assessor has taken into account the claimant’s reported symptoms, radiological evidence, treating doctors reports and his own clinical findings on examination. He has recorded his findings in detail and has provided reasons for his decisions …

b) The medical assessor is not required to base his assessment upon the findings of other doctors.

c) The reports of Dr Sanki dated 24 August 2000 and the report of Ms Spring dated 28 April 2000 were available to the medical assessor at the time of the assessment. Both of these reports were compiled some 3 years prior to the assessment and I refer to clause 1.15 of the Impairment Assessment Guidelines which states that, “The valuation should only consider the impairment as it is at the time of the assessment.” Therefore, the clinical findings by Joanne Spring and by Dr Sanki were not relevant to the assessment of the medical assessor as he must rely on his own clinical findings.

d) The medical assessor has clearly stated that there is no evidence of radiculopathy … There is no evidence that the claimant had any of these signs [ie those referred to in MAA Guidelines 4.25] at the time of the assessment.

24 In my opinion, no reviewable error has been demonstrated in this regard for the following reasons:

a) A medical assessor is required to review and consider medical and hospital records (MAA Guidelines 1.13(i), Medical Assessment Guidelines 10.2). The reports of Dr Sanki dated 24 August 2000 and 13 September 2002 and the report of Ms Spring dated 28 April 2000 were among the materials which Dr Burns expressly stated he had reviewed.

b) Part 3.4 of the Act, s 133(2) of the Act and MAA Guidelines 1.13-1.15 require an assessor, after reviewing and considering the medical and hospital records, to reach his or her own independent conclusion as to the percentage permanent impairment as it is at the time of the assessment based upon his or her interview and clinical examination of the plaintiff and in accordance with the requirements of the Act and Medical Guidelines. The assessor’s role, as I understand it, is that of an unbiased independent expert who is to determine the dispute between the parties by the provision of an independent assessment and not by seeking to adjudicate between conflicting assessments advanced by parties to the dispute. The fact the assessor’s assessment differs from that of other doctors does not mandate a finding of error by the medical assessor. The medical assessor is not required to base his assessment upon the findings of another doctor or doctors though he should review and consider those findings and any opinions expressed therein.

c) The evaluation should only consider the impairment as it is at the time of the assessment (MAA Guideline 1.15). The evaluation is to be made at the time the person is examined (MAA Guidelines 4.3, 1.13(ii)). The report of Dr Sanki dated 24 August 2000 and the report of Ms Spring dated 28 April 2000 provide evidence that the plaintiff had complained in 2000 in respect of the shoulders. However the assessor accepted the existence of ongoing symptoms in the shoulders. The reports were prepared more than three years previously, before the plaintiff’s condition had stabilised and did not seek to assess permanent impairment. As the APO observed, the reports provided no clinical evidence as to the degree of permanent impairment at the time of Dr Burns’ examination. The position is not relevantly advanced by Dr Sanki’s report dated 13 September 2002.

d) The essence of the plaintiff’s complaint was that the continuing complaint of pain radiation to both shoulders was evidence of radiculopathy and that conclusion could only be denied by investigation reports conclusively showing no disease of the spinal nerves. The plaintiff’s particulars in the application and response did not refer the APO to any medical evidence which, in terms, supported this submission. The APO rejected the submission. She accepted the assessor’s clear and express finding that there was no evidence of radiculopathy on his examination of the plaintiff. This conclusion was further confirmed by the terms of MAA Guideline 4.25 which the APO quoted and the express findings of Dr Burns as to the absence of the criteria there outlined, see also MAA Guideline 4.28.

The Shoulders

25 In his report dated 27 August 2003 Dr Burns concluded:

(The plaintiff) has a decreased range of motion present in both of her shoulders, but this is associated with pain in the right side of her neck. There is no evidence that she has any significant shoulder injury in its own right. Both shoulders are essentially the same on examination… Internal and external rotation were actually normal in both shoulders. I believe that her shoulder symptoms are referred pain from the base of her neck and are not assessable separately. There was no neurological deficit in either upper limb. Power, tone, sensation and reflexes were normal. Her shoulder symptoms have been assessed as part of the cervical spine injury.

26 In the response the plaintiff contended Dr Burns’ report did not account for WPI with regards to the claimant’s left and right shoulders. No specific argument was advanced in the response to support this contention.

27 The plaintiff initially complained of hurting her right shoulder in the accident but not of injury to the left shoulder. The plaintiff’s claim is in respect of pain in both shoulders. The history records that on occasions her left shoulder has been more painful than the right and vice versa. Indeed the plaintiff’s application asserted that at the time of the reports of Ms Spring and Dr Sanki the plaintiff was complaining more of left shoulder problems.

28 The APO expressly referred to the assessment of the plaintiff’s shoulders. She quoted the assessor’s findings with approval. She also referred to the Permanent Impairment Assessment Newsletter which confirmed the appropriateness of the course taken by the assessor. No reviewable error on the part of the APO has been demonstrated in regard to the shoulders.

The Lumbar Spine

29 In his report dated 27 August 2003 Dr Burns concluded:

She sustained a soft tissue injury to the lumbar spine. Examination of the lumbar spine revealed a slight decrease in range of motion in flexion. She does report some residual pain in her lower back. There is no evidence of muscle guarding or radiculopathy. From Table 72 of the 4th Edition of the AMA Guides, she has been assessed as DRE Category 1. This will give her no whole person impairment.

30 In the response the plaintiff contended Dr Sanki assessed the claimant’s lumbo-sacral spine WPI at 5% (without reference to AMA Guides 4th Edition). On the other hand, Dr Burns assessed WPI of 0% and classified the injury DRE category 1.

The plaintiff also referred to clinical findings in reports of Dr Adler dated 31 March 2000 and Dr Nemeth dated 7 November 2000 and concluded:

… therefore, it is difficult to accept Dr Burns’ assessment of DRE category 1 when two doctors accept that there is observable injury related impairment to the claimant’s lumbar (spine).

31 The plaintiff’s submissions as to the lumbar spine, in essence, were that the assessment of Dr Sanki should have been accepted However, as the APO correctly observed, “The medical assessor is not required to base his assessment on the findings or opinions of other doctors.” Dr Adler’s report was in respect of an MRI scan and contained no opinion as to causation. Assessment of permanent impairment by Dr Nemeth was based upon the use of the range of movement model contrary to MAA Guideline 4.4 and was made prior to the stabilisation of the plaintiff’s condition.

32 The APO concluded:

In making his assessment, the medical assessor has taken into account the claimant’s reported symptoms, radiological evidence, treating doctors reports and his own clinical findings on examination. He has recorded his findings in detail and has provided reasons for his decisions.

These comments are apposite in respect of the lower back as to which the plaintiff’s current symptoms at the time of examination were “occasionally she also has some residual pain in her lower back.” No reviewable error has been demonstrated.

Reasons

33 There is an obligation upon the APO to advise the parties of the decision supported by a brief statement of reasons (medical assessment guidelines 11.10). The plaintiff has submitted the APO “did not give reasons”. I am unable to accept this submission. The APO gave specific reasons for rejecting the plaintiff’s submissions as to the shoulders and radiculopathy and the effect of the reports of Dr Sanki and Ms Spring dated 24 August 2000 and 28 April 2000 respectively. Reasons for the rejection of the submissions as to Dr Sanki’s report dated 13 September 2002, the submissions as to the lumbar spine and the need for an investigation report showing no disease of spinal nerves were stated generally. These reasons adequately comply with the guideline requirement of a brief statement of the APO’s reasons.

Conclusion

34 In my opinion, the plaintiff has not established the APO failed to properly consider her submissions or to give adequate reasons for rejecting them. The plaintiff has not established reviewable error on the part of the APO. Accordingly, the plaintiff’s further amended summons should be dismissed.

35 At the hearing, the first defendant indicated no order would be sought for the costs of the first and third defendant in the event the amended summons was dismissed. The second defendant submitted the plaintiff should pay its costs as the plaintiff had joined it as a party from the outset, it had a relevant interest in the proceedings and had adopted the role of contradictor. However each of the defendants has a commercial interest in the construction and application of provisions of the Act such as those under consideration here. The plaintiff has no such interest, her interest being confined to the present case. In the circumstances it appears to me arguable that the appropriate costs order is that each party pay her or its own costs of these proceedings. However as the issue was not fully argued at the hearing I grant leave to the second defendant and the plaintiff to make such submissions in writing as to costs as they consider appropriate within the next ten days.

Orders

36 The orders of the Court are:

1. The further amended summons is dismissed.

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Latash v Motor Accidents Authority of New South Wales [2006] NSWSC 66

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CITATION:	Latash v Motor Accidents Authority of New South Wales and ors [2006] NSWSC 66
HEARING DATE(S):	24/08/2005
JUDGMENT DATE :	21 February 2006
JUDGMENT OF:	Hislop J
DECISION:	1. The further amended summons is dismissed; 2. Costs reserved.
CATCHWORDS:	Administrative law - s 63(3) Motor Accidents Compensation Act 1999 - non referral to review panel - no reviewable error established.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 - ss 44, 60, 63, 133, Pt 3.4
PARTIES:	Plaintiff - Ms Sandra Latash First Defendant - Motor Accidents Authority of New South Wales Second Defendant - Australian Associated Motor Insurers Limited Third Defendant - The Proper Officer of the Motor Accidents Authority of New South Wales
FILE NUMBER(S):	SC 30064/04
COUNSEL:	Plaintiff - Dr J Azzi First Defendant - Mr M Robinson Second Defendant - Mr N Perram with Ms L Csillag Third Defendant - Mr M Robinson
SOLICITORS:	Plaintiff - Haylen McKenzie Solicitors First Defendant - Motor Accidents Authority of New South Wales Second Defendant - McLachlan Chilton Solicitors and Attorneys Third Defendant - Motor Accidents Authority of New South Wales
LOWER COURT JURISDICTION:	Motor Accidents Authority of New South Wales
LOWER COURT JUDICIAL OFFICER :	Acting Proper Officer