Matthew Darrell Bouveng v Lucas Bolton

[2009] NSWDC 19

CITATION:	Matthew Darrell Bouveng v Lucas Bolton [2009] NSWDC 19
HEARING DATE(S):	18/02/2009
JUDGMENT DATE:	26 February 2009
JUDGMENT OF:	Sidis DCJ
DECISION:	The medical dispute between the parties will be referred to the proper officer of the Authority for the purpose of referral for assessment by an orthopaedic specialist. The matter is stood in the list for the parties to agree on an appropriate timetable for the preparation of the materials to be forwarded to the proper officer of the Authority for the purpose of the referral. The defendant is to pay the plaintiff's costs of the application. The affidavit evidence is returned to the parties.
CATCHWORDS:	MVA - Further Referral for Medical Assessment - Powers the court to grant relief in the nature of further assessment
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
PARTIES:	Matthew Darrell Bouveng (Plaintiff) Lucas Bolton (Defendant)
FILE NUMBER(S):	58/07
COUNSEL:	Mr Hart (Plaintiff) Mr Cummings (Defendant)

JUDGMENT

1 The plaintiff, Matthew Bouveng, applied to the court for an order for further referral of a medical dispute for assessment. The application was made pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999.

2 The defendant opposed the application and argued that the proper and appropriate course for the plaintiff to adopt was to exercise his right under s 62(1)(a) to refer the matter for further medical assessment through the proper officer of the Authority.

3 The first question to be addressed was whether the court had the power to grant the relief sought in the application. The next question was whether the court should grant the relief sought, if it is within its power and after having regard to the material placed before it.

Power

4 The objects of the Act place clear emphasis upon limiting rights of recovery of compensation and maintaining affordable premiums for motor vehicle insurance. In pursuit of its objects, the Act established a procedure for the resolution of disputes between a claimant and the insurer relating to medical assessment matters. The procedure requires that parties refer their disputes to the Motor Accident Authority. The Authority refers those disputes to medical assessors for assessment. The medical assessor is required to produce a certificate concerning the matters referred for assessment. In subsequent proceedings concerning the claim, the certificate is conclusive evidence as to the matters certified.

5 Notwithstanding the conclusive nature of the certificate there are a number of provisions that permit the assessment to be reviewed. One of those provisions is found in s 62(1) as follows:

(1) A matter referred for assessment under this Part may be referred again on one or more 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.

6 S 62 appears in Part 3.4 of the Act. S 58(1) applies Part 3.4 to disagreements between the claimant and an insurer about medical assessment matters. S 58(2) provides:

This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.

7 The right conferred on the parties to refer a matter for further medical assessment is exercisable only if the preconditions set out in s 62(1)(a) are met. S 62(1A) imposes a further condition requiring that the deterioration of the injury or additional relevant information be capable of having a material effect on the outcome of the previous assessment. These conditions are not imposed in circumstances where the referral is made by a court or claims assessor.

8 In order to facilitate referrals by parties, the Authority has established a procedure for an application to be made by the party seeking further referral, a reply by the other party and a determination by the proper officer of the Authority of the question of whether the preconditions for further referral have been met.

9 The defendant sought to limit the application of s 62(1)(b) to circumstances where, in the course of the substantive hearing of a claim, a court considered that further referral was warranted. I do not think that restriction can be imposed since s 58(2) requires only that proceedings be before a court. In this case a statement of claim was filed and proceedings commenced on 5 March 2007. In my view the commencement of proceedings in that fashion was sufficient to bring the current application within Part 3.4.

10 It was accepted by the defendant that s 62(1)(b) conferred discretion on the court that was not fettered by the conditions imposed upon a party wishing to refer a matter for further medical assessment.

11 In those circumstances, I have concluded that the court has the power to grant the relief sought by the plaintiff.

Should the relief sought be granted?

12 In my view the objects of the Act and the context in which the provisions referred to appear in the Act indicate that, in addition to the requirement that there be proceedings before the court, the principles to be applied in determining whether the relief sought should be granted require that the court keep in mind that a certificate issued by a medical assessor is intended to be conclusive except to the extent that it is established that there is a real basis upon which the court should exercise its discretion to refer a matter for further assessment.

13 This principle necessarily involves a requirement to satisfy the court that further referral is likely to produce a different outcome of some substance. I do not consider that it would be sufficient for a party to rely, for instance, only upon an opinion of a medical expert that differed from that of a medical assessor.

14 The plaintiff claimed to have suffered the following injuries in a motor vehicle accident that occurred on 8 June 2005:

Shock

Concussion or loss of consciousness

Soft tissue injury to the left shoulder

Fracture of the greater tuberosity left humerus

Soft tissue injury to neck

Complete tear of the right anterior cruciate ligament and complete disruption of the collateral ligament

Injury to left leg, including laceration and bruising of patella

Displaced fracture of the floor of the left orbital bone with fracture fragment displaced in the left maxillary sinus

Cuts and abrasions, including lacerations to scalp left elbow, left eye

Brain injury, including petechial haemorrhage to left frontal lobe

Psychological/psychiatric injury including post traumatic disorder, anxiety, depression, cognitive and emotional changes.

15 The court was informed that the process established by the Authority prohibited the supply of further material for consideration by the assessor after the date on which the application is made.

16 The original application for assessment was made on 24 February 2006. In June 2006 the defendant requested that the Authority defer its consideration of the matter. It was not until April 2007 that the medical dispute was referred for assessment.

17 The plaintiff was examined by Assessor Haertsch, plastic surgeon and Assessor McLeod, neurologist, in June 2007 and in November 2007 was examined by Assessor McClure, psychiatrist. The assessments of the three assessors did not bring the plaintiff above the 10% Whole Person Impairment threshold required to permit him to recover damages for his non-economic loss.

18 The plaintiff lodged an application for further medical assessment with the Authority on 1 July 2008. The defendant replied on 22 July 2008. On 8 August 2008 the plaintiff withdrew the application stating that he intended to make a further application shortly. Rather than take this step, the plaintiff filed the current application with the court on 15 January 2009.

19 The bases for the plaintiff’s application were:

1 At the time the plaintiff was examined by the assessors he had available to him a substantial amount of further material that was produced on subpoena and that he was not able to place before the assessors.

2 Medical opinion expressed concerning the plaintiff’s condition subsequent to the original assessments indicated that his Whole Person Impairment exceeded 10%.

3 The Authority ought to have referred his dispute to an orthopaedic specialist for assessment.

The further materials

20 I was not persuaded that there were sufficient grounds for referral for further assessment to the specialists who have already examined the plaintiff for the following reasons.

21 The further materials referred to were those produced in June and July 2007 by the East Maitland Medical Centre, Hunter New England Mental Health Service, Hunter New England Health Service – Brain Injury Unit that included neuropsychological testing, Dr Gill, treating orthopaedic surgeon, Maitland Hospital and X-rays from John Hunter Hospital.

22 While Assessors Haertsch and McLeod did not have access to these materials, it was clear from the reasons provided by Assessor McClure that they were available to him. It appeared that the appropriate assessor was fully informed as at the date of his assessment of the plaintiff’s claims of brain damage and psychology injury.

23 The further materials were not in evidence on the application before me. I was not supplied with any expert evidence that analysed this material and explained the extent to which it indicated that further referral to assessors within the areas of the speciality of those who have already examined the plaintiff would result in a substantially different outcome.

24 The court was supplied with a number of reports obtained subsequently to the assessments undertaken by the Medical Assessment Service. These reports were provided without expert evidence that explained the extent to which they indicated that further referral to assessors, within the areas of the speciality of those who have already examined the plaintiff, would result in a substantially different outcome.

Orthopaedic examination

25 I was persuaded that there were grounds for referral to an orthopaedic surgeon for the following reasons.

26 The plaintiff claimed to have suffered significant orthopaedic injuries. Dr Gill treated him for those injuries. Dr McLeod, examining the plaintiff from the point of view of his speciality of neurology, took issue with some of the claims of injury made by the plaintiff at a time when he did not have access to the records of the plaintiff’s treatment immediately after his accident, including the treatment provided by Dr Gill.

27 The only evidence of an orthopaedic specialist before the court on this application was the report of Dr Ghabrial in which he assessed the plaintiff’s Whole Person Impairment in relation to his orthopaedic injuries at 27%, not taking into account the head injury. The defendant placed no reports of orthopaedic specialists before the court.

28 There were references in all the reports that were provided to the court of the plaintiff’s continuing complaints of considerable pain and discomfort arising out of the claimed orthopaedic injuries.

29 In the circumstances, and in the absence of contravening evidence relied on by the defendant, I am satisfied that assessment by an orthopaedic specialist could result in an outcome that is substantially different to the assessment of the plaintiff’s Whole Person Impairment. I am satisfied that it is appropriate that the medical dispute between the parties be referred for assessment by an orthopaedic specialist.

Orders

30 The medical dispute between the parties will be referred to the proper officer of the Authority for the purpose of referral for assessment by an orthopaedic specialist.

31 I stand the matter in the list for the parties to agree on an appropriate timetable for the preparation of the materials to be forwarded to the proper officer of the Authority for the purpose of the referral.

32 The defendant is to pay the plaintiff’s costs of the application.

33 The affidavit evidence is returned.

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