QBE Insurance (Australia) Limited v Alawia

[2016] NSWSC 1875

Supreme Court

New South Wales

Medium Neutral Citation:	QBE Insurance (Australia) Limited v Alawia [2016] NSWSC 1875
Hearing dates:	26 October 2016
Decision date:	22 December 2016
Before:	R A Hulme J
Decision:	1. Extend time for the filing of initiating summons pursuant to UCPR r 59.10(2) to 15 March 2016. 2. Amended summons filed on 26 October 2016 dismissed. 3. The plaintiff is to pay the costs of the first defendant.
Catchwords:	ADMINISTRATIVE LAW – Motor Accidents Compensation Act - judicial review of medical assessment and application for review – whether pre-existing mental condition – whether failure to assess pre-existing impairment – whether compliance with Permanent Impairment Guidelines – adequacy of reasons – whether legal unreasonableness – no reviewable error established
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 Mason v Demasi [2009] NSWCA 227 Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480
Category:	Principal judgment
Parties:	QBE Insurance (Australia) Limited (Plaintiff) Nivine Alawia (First defendant) State Insurance Regulatory Authority (SIRA) (Second defendant) Assessor Michael C Prior in his capacity as a medical assessor of SIRA (Third defendant)
Representation:	Counsel: M Robinson SC with A Naylor (Plaintiff) E Romaniuk SC with T L Hickey (First defendant)   Solicitors: QBE In House Legal Ayoub Lawyers
File Number(s):	2016/80950

Judgment

1. HIS HONOUR: Ms Nivine Alawia (the first defendant) was injured in a motor vehicle accident on 26 June 2013. Her claim for compensation saw her assessed by a medical assessor pursuant to the Motor Accidents Compensation Act 1999 (NSW) ("the Act") on 28 September 2015. Dr Michael Prior (the third defendant) issued a certificate as to the matters referred for assessment pursuant to s 61 of the Act.

2. QBE Insurance (Australia) Limited (the plaintiff) lodged an application seeking referral of the medical assessment to a panel of medical assessors pursuant to s 63 of the Act. The "proper officer" of the State Insurance Regulatory Authority (the second defendant) ("SIRA") dismissed the application and provided reasons for the dismissal on 16 December 2015.

3. QBE assert that there are a number of jurisdictional errors and/or errors of law on the face of the record in respect of both decisions.

4. An extension of time pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 is necessary in relation to the challenge to the decision of the medical assessor. It was not opposed and should be granted.

Grounds of error by the medical assessor

5. QBE contends in its Grounds of Judicial Review in the Amended Summons filed in court on 26 October 2016 that the following errors were made by the medical assessor:

(a) The medical assessor failed to provide reasons for making the assessment decision as required by s 61(9) of the Act and cl 13.2 of the Medical Assessment Guidelines (1 October 2008). This was particular in regard to:

(i)   causation;

(ii)   Ms Alawia's pre-existing psychological impairment and symptomology; and

(iii)   why Ms Alawia's evidence was accepted over the medical evidence.

(b)   The medical assessor failed to take into account certain relevant considerations and denied QBE natural justice by failing to take into account and respond to a substantial argument as to:

(i)   the medical evidence of Dr Apler, Dr Nigro and Dr Makary as to Ms Alawia's pre-existing psychiatric symptomology and impairment; and

(ii)   the evidence of Dr Apler that Ms Alawia had "significant impairment before the accident".

(c)   There was an error of law or a constructive failure of the medical assessor to do his duty in that he failed to consider and apply cl 1.33 and 7.18 of the SIRA's Guidelines for the Assessment of the Degree of Permanent Impairment (1 October 2007) ("the Permanent Impairment Guidelines")

(d)   There was an error of law and/or error on the face of the record whereby the medical assessor erred by misconstruing the meaning and effect of cl 1.33 and cl 7.18 of the Permanent Impairment Guidelines and, in so doing, decided, contrary to law, that he was entitled to not assess Ms Alawia's pre-existing impairment in accordance with Chapter 7 of the Permanent Impairment Guidelines. As a consequence, there was also a constructive failure to exercise jurisdiction and/or a failure to give proper, genuine or realistic consideration to the evidence of pre-existing impairment.

(e)    There was legal unreasonableness in that:

(i)   the medical assessor failed to give adequate weight to relevant factors of great importance;

(ii)   the medical assessor gave excessive weight to irrelevant factors of no importance;

(iii)   the medical assessor reasoned illogically or irrationally; and

(vi)   the decision lacks evident and intelligible justification.

Grounds of error by the proper officer

6. QBE contends in the Grounds of Judicial Review in the Amended Summons that the following errors were made by the proper officer in respect of the referral decision:

(a)   The referral decision was based or founded on medical assessment that was invalid or ultra vires and so it was not lawful and thereby invalid.

(b)   The proper officer's power to make a decision was not performed in that he failed to understand or appreciate, engage with and determine QBE's application. This was because the review decision was not an answer to QBE's application; it was an extended and partial explanation and/or justification of the medical assessor's assessment decision.

(c)   There was an error of law in that the proper officer failed to see, or accept, that the medical assessor failed to lawfully or correctly determine the assessment. Alternatively, there was a constructive failure to exercise jurisdiction rendering the referral decision invalid.

(d)   There was an error of law and/or an error on the face of the record in that the proper officer misconstrued the meaning and effect of cl 1.33 and cl 7.18 of the Permanent Impairment Guidelines and, in so doing, decided, contrary to law, that the medical assessor was entitled to not assess Ms Alawia's pre-existing impairment in accordance with Chapter 7 of the Permanent Impairment Guidelines.

Relief sought

7. QBE seeks relief having the effect that either or both of the medical assessment and the referral decision be set aside or declared invalid. It seeks that the matters the subject of either or both decisions be remitted for determination according to law by a different medical assessor or by a review panel of medical assessors.

Summary of issues

8. QBE's case has as its foundation the contention that Dr Prior, the medical assessor, failed to estimate the overall pre-existing mental impairment of Ms Alawia; that is her mental impairment prior to the motor vehicle accident on 26 June 2013. The proper officer then erred by finding that the medical assessment was not incorrect in a material respect.

Statutory provisions

Guidelines

9. Section 44 provides that the SIRA may issue guidelines, including as to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident and as to the procedure for assessment and review of assessments under Pt 3.4.

10. Section 65 provides (in sub-s (1)) that medical assessments under Pt 3.4 are subject to relevant provisions of guidelines issued under s 44 as to the procedures for the referral of disputes for assessment or review of the assessments and the procedure for assessments.

11. Similarly, s 133(2) (in Part 5 which is concerned with the assessment of damages) provides that the assessment of the degree of permanent impairment for the purposes of non-economic loss is to be made in accordance with such guidelines. The relevant guidelines are those which I refer to as the "Permanent Impairment Guidelines".

Medical assessments

12. The provisions relating to medical assessments are in Pt 3.4 of Ch 3 of the Act (ss 57 to 65). It applies to disagreements between a claimant and an insurer about certain matters including whether the degree of impairment of the injured person as a result of the injury caused by a motor accident is greater than 10% (s 58(1)(d)).

13. A party to such a medical dispute may refer it to the SIRA for assessment under Pt 3.4. The SIRA is then to arrange for it to be referred to one or more medical assessors (s 60).

14. Following assessment, the assessor(s) are to provide a certificate as to the matters referred for assessment which then becomes conclusive evidence as to the matters certified (s 61).

15. Provision as to the content of a certificate is made in s 61(9):

"A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence."

16. Section 63 allows for a party to a medical dispute to apply to the proper officer of the SIRA to refer a medical assessment by a single medical assessor to a review panel of medical assessors for review (s 63(1)). An application can only be made on the grounds that the assessment was incorrect in a material respect (s 63(2)). Sub-section (3) provides:

"The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application."

17. The role of the proper officer in relation to applications for referral to a review panel has been described as that of a "gatekeeper, not a decision-maker": Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 at [23].

The Permanent Impairment Guidelines

18. QBE referred to the following provisions in Chapter 1 of the Permanent Impairment Guidelines:

"1.3   The convention used in these MAA Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed."

"1.33   The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed prior to 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 should be calculated and subtracted from the current whole person impairment value. If there is no objective evidence of pre-existing symptomatic permanent impairment, then its possible presence should be ignored.

1.34   The capacity of an assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 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 7.18 for the approach to a pre-existing psychiatric impairment.

1.35   Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor vehicle accident." (Emphasis in QBE's submissions)

19. QBE also referred to the provisions in cl 1.7 to cl 1.9 which deal with "Causation of injury". Clause 1.8 requires two aspects to be addressed: a medical determination as to whether the relevant condition could have been caused by or contributed to by the "alleged factor" (the motor accident) and a non-medical determination as to whether it was so caused by or contributed to by the alleged factor.

20. Chapter 7 in the Permanent Impairment Guidelines is concerned with "Mental and Behavioural Disorders Impairment". It includes a number of clauses (cl 7.13 - cl 7.18) under the heading "Approach to assessment of mental and behavioural disorders" which commences:

"7.13   The impairment must be attributable to a recognised psychiatric diagnosis in accordance with the Diagnostic Statistics Manual of Mental Disorders (4th Edition) [DSM IV], Internal Classification of Diseases (10th Edition) [ICD 10] or a substantial body of peer review research literature. The impairment evaluation report must specify the diagnostic criteria upon which the diagnosis is based." (Emphasis in original)

21. Clause 7.18 refers to a pre-existing psychiatric diagnosis or condition in the following terms:

"7.18   In order to measure impairment caused by a specific event, the assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or condition, estimate the overall pre-existing impairment using precisely the method set out in this Chapter, and subtract this value from the current impairment rating. (Emphasis in original)

Evidence and submissions for QBE

22. QBE filed an affidavit of its solicitor to which was annexed 469 pages of documents. At the hearing, it chose not to read it but relied instead on a smaller number of documents from which the court was taken to the following.

Dr Makary

23. There are medical records of Dr Emad Makary, general practitioner. Clinical notes concerning a consultation with Ms Alawia on 8 April 2011 include reference to "panic attacks", "feels fear, recurrent attacks over the last 10 days". Serepax was prescribed.

24. On 7 June 2011 Dr Makary provided a certificate stating that Ms Alawia "is suffering from depression and on treatment for the last 3 years".

25. On 11 September 2012 another certificate states "she is suffering from depression and on medication for the last few years".

Dr Nigro

26. A medical certificate on a Centrelink form dated 15 April 2013 by Dr Anthony Nigro, general practitioner, states that Ms Alawia "is unfit for work/study from Monday 15 April 2013 to Monday 15 July 2013 inclusive". Her symptoms are said to be "anxiety, panic attacks"; the condition is "temporary"; and the prognosis says the "symptoms are likely to persist". Senior counsel for QBE was unable to reconcile the latter two items. (T10.11)

27. On 21 June 2013, Dr Nigro provided a medical certificate stating that Ms Alawia "is/was unfit for normal work for many years". The certificate includes: "DIAGNOSIS: Major depression, chronic since 2007". The doctor did not elect between two options offered by the pro forma certificate: that it was issued on the basis of his own observations of symptoms and examination, or on the basis of information provided by the patient which he considered to be true.

28. It is convenient to note here that the motor accident occurred on 26 June 2013.

29. On 11 July 2013, Dr Nigro provided another medical certificate (addressed to Ms Deborah Martin-Smith, a psychologist) which includes:

"Thank you for seeing Miss Nivine Alawia 30 yrs for an opinion and management. She has logstanding depression treated with aropax 20mg from her previous GP. Now she has had a severe care accident is is worse, with flashbacks, insomnia and anxiety. I have commenced a MHCP." (As stated)

Dr Apler

30. Dr Alex Apler is a psychiatrist who was retained by QBE to carry out an evaluation of Ms Alawia. He saw her in his rooms on 4 March 2015. His report of 1 April 2015 sets out Ms Alawia's background and the history of the motor accident. There is reference to her initial symptoms and her current symptoms, functioning and mental state. The report then turns to a review of documentation under headings of "Before the accident" (the records of Drs Makary and Nigro referred to above) and "After the accident". It concludes with a lengthy discussion of Dr Apler's opinion.

31. Senior counsel for QBE invited specific attention to the following passages in the "Opinion" section of the report:

"The chronicity of her depression and anxiety requiring treatment, and its association with inability to work indicates that she was affected by psychiatric disorder with significant impairment before the car accident."

"I consider her affected by pre-existing chronic depression and anxiety. Further records concerning her past treatment would help to clarify the nature of her chronic emotional difficulties that existed before the car accident.

She does not have a psychiatric injury or disability related to the accident.

The accident may have produced a transient exacerbation in her emotional symptoms but this resolved and she does not have a psychiatric disorder related to the accident."

The medical assessment

32. The medical assessor certified:

"The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%:

●    Chronic Posttraumatic Stress Disorder

●    Chronic Major Depressive Disorder (Recurrent Subtype) with secondary panic, obsessive-compulsive and psychotic symptomatology."

33. At page 1 of the reasons accompanying the certificate it is stated:

"The following injuries, as listed in the referral letter from MAS, were assessed:

'Post traumatic stress disorder; major depression, adjustment disorder'."

34. On pages 3 to 6 of the reasons there is set out at some length Ms Alawia's "Past Psychiatric History". It includes:

"She described an episode of postnatal depression in 2006. She reported that the symptoms of this persisted for two to three years until their full remission by around September 2010. She reports at the time she was treated with Cymbalta and then Aropax. She reported that she saw a psychologist at the time. She reported that episode of postnatal depression was not associated with panic phenomena, obsessive-compulsive phenomena or psychotic phenomena.

Other than the above, she denied a prior history through childhood, adolescence or adulthood of significant psychiatric symptomatology, contact diagnosis, hospitalisation, treatment, investigation or referral to psychiatrists, psychologists or counsellors.

Other than the above, she denied other episodes of Major Depression, anxiety syndromes including panic attacks, obsessive-compulsive phenomena or psychotic phenomena.

Other than the above, she denied a prior history of the same or similar symptomatology to her indexed symptomatology.

…

Subjective premorbid personality description reveals that she saw herself in terms of being "bubbly, active and sociable". She denied trait anxiety, trait depression or trait irritability. When asked how she coped with pressure, stress or problems in the past, she stated, "I would say, this day will pass and tomorrow will be a better day".

35. Under a heading, "Psychiatric Injuries or Psychiatric Conditions that Predated the Motor Vehicle Accident" it is repeated that Ms Alawia denied "active psychiatric symptomatology or active psychiatric diagnosis immediately predating the motor vehicle accident." It was also repeated that the episode of postnatal depression had fully remitted in around September 2010.

36. In the next section of the reasons, under the heading "Objective Evidence that these Pre-existing Injuries or Disabilities were Symptomatic at the Time of the Motor Vehicle Accident", Dr Apler was quoted as having mentioned in his report of 1 April 2015 a "history of long-standing depression and anxiety … significant improvement before the accident". (There is an error in this quotation; "improvement" should be "impairment". The assessor repeated this quotation, but correctly, later in the report.) (CB 65)

37. The assessor next quoted from a report of an MAA head injury assessor, Dr I Cameron dated 12 June 2015. Under a heading "Pre-Accident Medical History" the doctor is quoted as having stated, "significant psychological illness … variously diagnosed as depressive illness or bipolar disorder".

35. The assessor quoted from notes and certificates of Dr Nigro and Dr Makary, some of which I have earlier mentioned. He concluded this section of the reasons (p 5) as follows:

"In summary, Ms Alawia denied suffering from any psychiatric symptomatology or being on any form of psychiatric, psychological or psychopharmacological treatment following September 2010. However, the contemporaneous clinical notes by current treating general practitioner, Dr A Nigro, and the clinical notes by previous treating general practitioner, Dr E Makary, all dated post September 2010, do, in fact, mention active psychiatric symptomatology and active psychopharmacological and psychological treatment variously."

39. QBE submitted that this demonstrated that the medical assessor had not only the clinical history but an "objective history" ascertainable from the documentary material.

40. Counsel then took the court to the reasons under the heading "Comment on Medical Reports that Differ From Your Findings" which I will set out in full (pp 17-18 of the reasons):

"Medicolegal psychiatrist, Dr A Apler, in a report dated 1 April 2015 mentions 'a history of long-standing depression and anxiety … significant impairment before the accident … may have been a transient exacerbation … any transient exacerbation … including symptoms of posttraumatic stress, would have resolved over time … remains affected by her depression and anxiety that she had before the motor vehicle accident.'

Rather than Posttraumatic Stress Disorder symptoms remitting, Ms Alawia currently has persistent symptoms sufficient to fulfil the criteria of Posttraumatic Stress Disorder.

Rather than having a transient exacerbation of pre-existing depressive conditions, I consider that she has had a relapse of depression rather than an exacerbation of a pre-existing depression.

She does not describe any significant impairment immediately before the accident and I found no evidence of this in the documentation. I note that Dr Apler mentioned 'significant impairment before the accident'.

There is a significant inconsistency between the medical documentation provided and the history she related. She related a history of a previous postnatal depressive episode persisting for two to three years but fully remitting by September 2010. She reports that after September 2010, she did not suffer any active affective and anxiety symptoms and was not receiving any form of psychiatric, psychological or psychopharmacological treatment. She reports that after September 2010, she was not suffering from panic attacks or other anxiety symptomatology together with significant depressive symptomatology.

However, this is not consistent with the contemporaneous reports of her treating general practitioner, Dr A Nigro, and her previous treating general practitioner, Dr E Makary, who both comment on psychiatric symptomatology and psychiatric treatment postdating the date of September 2010, after which she reported having not suffered any form of psychiatric symptomatology or having undertaken any form of psychiatric, psychological or psychopharmacological treatment. For details of this, please see the latter part of Section 3(a)(ii) above, under the heading 'Past Psychiatric History', where I list letters, certificates and clinical notes by both her treating general practitioner, Dr A Nigro, and previous treating general practitioner, Dr E Makary, detailing the prescription of antidepressant/antianxiety medication and psychiatric symptomatology postdating the date of September 2010.

Dr Nigro, her current treating general practitioner, mentions significant psychiatric symptomatology five days and two months prior to the motor vehicle accident. This history contradicts the history she reported of having no pre-existing psychiatric symptomatology or receiving any form of psychiatric, psychological or psychopharmacological treatment.

However, the documentation by treating general practitioner, Dr Nigro, does not mention or describe impairments associated with that symptomatology."

41. I pause here to note that Dr Prior, evident from this passage and elsewhere, seems to have drawn a distinction between evidence of a pre-existing mental condition and evidence pre-existing impairment from same. He seems to be accepting the existence of the former but not the latter, at least in the sense of actual impairment, not just bald statements of impairment without the basis being stated.

42. Counsel submitted that the second and third paragraphs in the above passage were inadequate to explain why the medical assessor departed from the assessment of Dr Apler's other doctors' opinions. The fourth paragraph lacked any explanation when the medical assessor had quoted or referred to various aspects of the documentation that indicated the contrary. It was submitted, "that's a plain error of law on the face of the record". It was also described as "manifestly illogical and irrational and it does come within the ground of review that we've pleaded of legal unreasonableness". (T14-5)

43. The reasons of the medical assessor then moved to a section headed "Conclusions". As to the issue of causation he wrote at p 19 of the reasons:

"The cause of her chronic Posttraumatic Stress Disorder was the motor vehicle accident itself.

The cause of her comorbid Major Depressive Disorder is that Major Depressive Disorder is a common complicating and comorbid condition to underlying and associated Posttraumatic Stress Disorder. It is likely that her chronic pain perception and physical limitations due to the accident also contribute to her Major Depressive Episode. She has an inherent vulnerability towards developing Major Depression in that she has had a previous Major Depressive Disorder occurring in the postnatal context."

44. The first paragraph in this passage was described as "wholly insufficient"; "it doesn't show any reasoning let alone any path of reasoning". It was submitted, "This is a significant, serious problem on a contentious issue". (T15.30)

45. The medical assessor's reasons concluded with a statement of various determinations. Under the heading "Apportionment" and the sub-heading "Pre-existing Psychiatric Impairment" there is the following at p 23 of the reasons:

"Mr Alawia denies the presence of any pre-existing psychiatric condition and any pre-existing psychiatric impairment. However, the absence of pre-existing psychiatric symptomatology is not consistent with contemporaneous notes of her treating general practitioner, Dr A Nigro. However, it is impossible to determine whether or not there was any degree of pre-existing impairment, as Dr Nigro makes no comment on impairment. Therefore, pre-existing psychiatric impairment is rated as 0%."

46. This passage was criticised in a number of ways. First, there is only mention of Dr Nigro, not of any of the other doctors. Secondly, it was submitted that rather than pre-existing impairment being "impossible to determine", there was in fact objective evidence and so the medical assessor was required to make an assessment. It was submitted that it was "utterly irrelevant" whether there was a "permanent impairment assessment by any medical practitioner before the date of the accident". It is not something that doctors normally do unless there has been a motor accident and there is a requirement to use the relevant guidelines to make such an assessment. Senior counsel characterised what the assessor has said in the above passage as being to the effect that "no one's done it so I won't, it's impossible". This was said to amount to legal unreasonableness, not rational, and a failure to perform the statutory duty. (T16)

47. Having established error, in QBE's submission, it was put that it amounted to error of law on the statutory guidelines basis. Alternatively, there was unreasonableness and an illogicality and irrationality.

48. As an example of objective evidence of actual impairment prior to the motor accident, senior counsel again referred to the certificate of Dr Nigro of 21 June 2013 in which he stated that Ms Alawia "is/was unfit for normal work for many years".

The application for review

49. The court was taken to the application by QBE for review. The document headed "Insurer's Submissions and Schedule of Damages" signed by the solicitor for QBE was said to comprise "a fair summary of both the application to the MAA for a review panel to be established and our case in these proceedings". (T11.33)

50. Within those submissions it was contended that the decision of the medical assessor was incorrect in a material particular. Reference was made to cl 7.18 of the Permanent Impairment Guidelines and it was submitted that the medical assessor "has failed to estimate the claimant's pre-existing impairment and subtract this value from the current impairment rating".

51. The submissions referred to the assessor having obtained a detailed history which he set out in his reasons under the heading "Past Psychiatric History" but noted that the history was "significant and well documented". In that regard, reference was made to the records of Dr Nigro and Dr Makary and the report by Dr Apler.

52. After setting out the terms of cl 7.18 of the Permanent Impairment Guidelines, the submission continued:

"The assessor, on this occasion, has declined and/or refused to carry out an assessment of a claimant's well documented pre-existing psychiatric condition. The insurer notes that Clause 7.18 imposes a mandatory obligation on an assessor undertaking an assessment where pre-existing conditions exist. The language of the clause is clear in that the word 'must' is used as opposed to 'may'. It appears the assessor has refused to assess the claimant's pre-existing impairment on the basis that the claimant's general practitioner, Dr Nigro, 'makes no comment on impairment'. The fact [that] Dr Nigro has not made any comment on impairment does not release the assessor from his statutory obligation pursuant to Clause 7.18. It is for these reasons that the insurer submits that the assessor has fallen into error and the matter needs to be re-assessed."

53. The submission concludes with an assertion that "a proper assessment of the claimant's pre-existing psychiatric impairment is material to the outcome of the assessment because, once subtracted from the impairment assessment with respect to the subject accident it may result in a whole person impairment of less than 10%".

54. The proper officer dismissed the review application. His reasons are encapsulated in the following:

"6   [QBE's submission is quoted.]

7   As noted by the Applicant it is apparent the Assessor was satisfied the claimant suffered from a psychiatric condition around the time of the motor vehicle accident. However, as noted by the respondent, the presence of a psychiatric condition does not automatically mean there was pre-existing impairment. The Assessor at various stages throughout his reasons makes it clear that there is no objective evidence of impairment that pre-dated the accident.

8   [clause 1.33 of the Permanent Impairment Guidelines is quoted.]

9   The Assessor has clearly indicated that there was no objective evidence which he could have relied upon to calculate pre-existing impairment. While Clause 7.18 provides that the Assessor is required to calculate pre-existing impairment using the PIRS if he is satisfied that a pre-existing psychiatric condition existed, it is apparent that this was not possible based on the lack of any evidence on which to rely on for the PIRS categories. Accordingly, the Assessor has had to ignore the possible presence of pre-existing impairment, in accordance with Clause 1.33. I am not satisfied there is reasonable cause to suspect he has erred in this regard." (CB 75)

55. QBE submitted that the proper officer misconstrued the meaning and effect of the Permanent Impairment Guidelines in the same or a similar way to the error made by the medical assessor in applying cl 1.33. This was said to be capable of being characterised as an error in the proper construction of the Permanent Impairment Guidelines which was an error law on the face of the record justifying the proper officer's determination being set aside.

Determination

56. I will address each of the grounds in the amended summons but it was clear from the argument presented at the hearing that the "nub of the case" was the asserted failure of the medical assessor to make a finding of pre-existing impairment. There were five grounds referrable to the task of the medical assessor.

(a) failure to provide reasons as required by s 61(9)

57. It has been said that the task such as that which befell the medical assessor was not to arbitrate or adjudicate upon competing medical opinions (to which I would add in this case the claimant's history), nor to opine on the correctness of other opinions on the instant medical question. The task for the medical assessor was to form his own opinion by applying his own medical experience and expertise and to provide a statement of reasons which is the actual path of reasoning by which the opinion was formed: a paraphrase from Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [47]-[48].

58. The reasons of the medical assessor are not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which they are expressed: Minister for Immigration and Ethnic affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.

59. I am satisfied that the medical assessor provided adequate reasons for the decision he arrived at. Submissions to the effect that he did not address material considerations cannot be sustained; the complaint really amounts to a disagreement as to the weight he gave to various matters. Where the complaints are concerned with statements of conclusion, it seems clear to me that such statements are based upon the earlier discussion of the oral and documentary material throughout a very detailed statement of reasons.

60. The criticism of what the medical assessor wrote under the heading "Causation" (p 19 of reasons) is a particular example of the latter. It appears in a segment of the reasons under the heading "Conclusions" and it is based upon what precedes it. It was unnecessary for him to provide a lengthy explanation for a diagnosis of Posttraumatic Stress Disorder as the fact that Ms Alawia suffered from such symptoms was accepted by Dr Apler; the only controversial aspect being their extent and persistence which was earlier discussed by the medical assessor (p 17 of reasons).

(b) failure to take into account certain relevant considerations and denial of natural justice by failing to take into account and respond to a substantial argument

61. A failure to take into account a relevant consideration in the judicial review context is a reference a failure to take into account a consideration that the decision-maker is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39. How the matter is taken into account is a matter for the decision-maker. It may be dismissed, given little weight, or decisive weight. The burden for QBE in the present case is to establish that the subject matter was not taken into account by the medical assessor at all: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [16]-[17] (Basten JA).

62. The contention stated within this ground is that the medical assessor erred in his regard (or lack thereof) to the medical evidence of the three doctors as to Ms Alawia's pre-existing psychiatric symptomology and impairment and the evidence of Dr Apler that she had "significant impairment before the accident".

63. The complaint here, in reality, is a disagreement with the conclusions reached by the medical assessor. The suggestion that he "failed to take into account" such material cannot be sustained. It was discussed within the statement of reasons; for example at p 17 where reference was made to the report of Dr Apler and his various opinions, including that Ms Alawia had "significant impairment before the accident". (Reasons at p 17)

64. It was not controversial that the Permanent Impairment Guidelines are obligatory in character; they were required to be applied by the medical assessor in their terms. At issue in this case was whether the medical assessor complied with the requirements of cl 1.33 and cl 7.18 to make an assessment of pre-existing impairment. Clause 1.33 mandates this "if there is objective evidence of pre-existing symptomatic permanent impairment". Clause 7.18 requires that this assessment be carried out using the Psychiatric Impairment Rating Scale (PIRS) set out in Chapter 7. Clause 7.17 provides that "clinical judgment will be the most important tool in the application of the scale".

65. The PIRS provides for evaluation of functional impairment in six areas:

Self-care and personal hygiene

Social and recreational activities

Travel

Social functioning (relationships)

Concentration, persistence and pace

Adaptation

66. A particularly valid point made in the submissions for Ms Alawia is that pre-existing symptomatology and pre-existing psychiatric conditions do not necessarily equate to pre-existing impairment. There was reference in the medical records to the former but hardly any to the latter (as to which see below at [74]-[77]).

67. The submissions for QBE stressed, repeatedly, that with evidence of a "pre-existing psychiatric diagnosis or condition" it was incumbent for the medical assessor to estimate "pre-existing impairment" (cl 7.18). That is what he did but he was limited to the evidence that he had - the documents and the history. He addressed that issue and provided a determination.

68. It was submitted in the first version of written submissions for QBE (at [36]) that the medical assessor failed to take into account and engage with relevant medical documentation and the plaintiff's substantial argument in making his decision, in particular the medical evidence of Dr Apler, Dr Nigro and De E Makary and the plaintiff's submissions as to the first defendant's pre-existing psychiatric condition. It emerged at the end of the hearing that there were in fact no submissions made by QBE to the medical assessor. (T33.45)

69. It is clear that the medical assessor was aware that he had documentary material from the three doctors mentioned; he discussed it at various points in his reasons (see above). If the issue is whether they represented a "substantial, clearly articulated argument" (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ); [86]-[88] (Kirby J)) then QBE's claim in this respect must fail. There was nothing that could amount to a clear articulation of an argument. As was put succinctly in oral submissions by senior counsel for Ms Alawia:

"It is a bit rich to hand to a medical assessor a bundle of material with no particular articulation of points you want to make and then say down the track … that the medical assessor was wrong to conclude that the documents did not reveal enough about matters relevant to the PIRS and he should have done something about it because we had served a medico-legal report that raised a pre-existing condition". (T28)

70. Senior counsel for QBE made a valiant response to this which was to the effect that "we do not have to join the dots" for a medical assessor; "they must assess the evidence themselves". However, without having made any attempt by QBE to "join the dots", it is clear that the medical assessor did all that he was invited to do: take into account the documents he was given in the course of his making his assessment and this he clearly did.

(c) failure to consider and apply cl 1.33 and cl 7.18 of the Permanent Impairment Guidelines

(d) error in the medical assessor deciding that he was entitled to not assess pre-existing impairment in accordance with Ch 7 of the Permanent Impairment Guidelines

71. The complaint by QBE that the medical assessor "failed to consider and apply clause 1.33 and [7.18] of the Permanent Impairment Guidelines" (1st written submissions at [47]; similarly [34] of the 2nd written submissions) cannot be sustained. It is abundantly clear that he was aware of the requirement and addressed it. He discussed Ms Alawia's "Past Psychiatric History" (pp 3-4); "Psychiatric Injuries or Psychiatric Conditions that Predated the Motor Vehicle Accident" (p 4); "Objective Evidence that these Pre-existing Injuries or Disabilities were Symptomatic at the Time of the Motor Vehicle Accident" (pp 4-5); and "Function Prior to the Motor Vehicle Accident" (p 7). He commented on "Medical Reports that Differ From Your Findings" with reference to the report of Dr Apler and the records of Drs Makary and Nigro (p 17-18). Finally, he expressed a conclusion as to "Pre-existing Psychiatric Impairment" and rated it "as 0%" (p 23).

72. In short, Ms Alawia had, according to the medical documents, a "pre-existing psychiatric diagnosis or condition". The medical assessor was therefore required by cl 7.18 to estimate the overall pre-existing impairment. He did so.

73. The complaint by QBE that the medical assessor "failed to obtain from the first defendant a history of the injured person's pre-accident lifestyle, activities and habits and then assess the extent to which these have changed as a result of the psychiatric injury so that he may adequately score the pre-existing impairment using the Psychiatric Impairment Rating Scale" (1st written submissions at [48]) also cannot be sustained. The history obtained by the medical assessor of Ms Alawia's pre-accident lifestyle, activities and habits were summarised in the reasons under the headings, "Psychosocial History Prior to the Motor Vehicle Accident" (p 5); "Work History" (p 6); and "Function Prior to the Motor Vehicle Accident" (p 7). In the latter, the medical assessor was clearly applying the PIRS criteria to what he derived from the history given by Ms Alawia (and from the medical documentation).

74. The most significant indication of pre-existing impairment was said to be found in the certificate issued by Dr Nigro to Centrelink on 15 April 2013 stating that Ms Alawia was unfit for work for three months from that date and in another certificate dated 21 June 2013 (five days before the accident) in which it was stated that she "is/was unfit for normal work for many years". Whether Dr Nigro was stating that this was her condition for many years in the past, or would be in the future, is unclear but it may be the former given the diagnosis ("Major depression, chronic since 2007"). In any event, on their face, QBE argued that these constituted objective evidence of Ms Alawia's pre-existing impairment.

75. The history provided by Ms Alawia to the medical assessor included that she had been in employment in the past, including in the period July 2008 until early 2011. She lost her job in early 2011 when she asked to take some sick leave following a workplace accident. She then received parenting payments. She was performing unpaid work experience in the two weeks before the motor accident (that is, at the time Dr Nigro's certificate) and was due to start working the week after. It is not clear for what purpose Dr Nigro issued the certificate on 21 June 2013. It is not addressed to anyone. But it is abundantly clear from the reasons of the assessor that he was aware of this certificate and generally of the conflict between the medical records and the history she provided: see reasons at p 18. Generally as to the care in comparing a patient's account with apparently conflicting medical records, see, for example, Mason v Demasi [2009] NSWCA 227 at [2] (Basten JA).

76. Senior counsel for Ms Alawia referred to a passage in the report of Dr Apler as indicating that he too accepted some difficulty in identifying and assessing pre-existing impairment:

"Further information from her previous doctors, the Family Court, Centrelink or any other sources concerning her pre-accident functioning and symptoms would help to understand the nature of her problems before the accident." (Exh A p 17)

77. The medical assessor in this case was required to exercise clinical judgment (cl 7.17) and this appears to be what he has done. It was open to him not to regard Dr Nigro's bald statement that Ms Alawia "is/was unfit for normal work for many years" as "objective evidence of pre-existing symptomatic permanent impairment" (cl 1.33).

78. These grounds are not made out. The provisions of the guidelines referred to required the medical assessor to estimate the overall pre-existing impairment. He did so.

(e) there was legal unreasonableness in failing to give adequate weight to relevant factors; giving excessive weight to irrelevant factors; reasoning illogically or irrationally; and making a decision that lacked evident and intelligible justification

79. There is enough in what I have written above (and it does not bear repeating) to indicate that this complaint cannot be sustained as well.

Conclusion

80. I am not satisfied that any jurisdictional error has been made out, or that there is any error of law on the face of the record in the determination of the medical assessor.

81. Comparatively little was said in writing and orally about the decision of the proper officer refusing the referral application. Essentially the complaint was that he failed to appreciate and uphold complaints advanced in this Court about the medical assessment. They fail and so too must the complaints about the proper officer's determination.

Orders

82. I make the following orders:

1. Extend time for the filing of initiating summons pursuant to UCPR r 59.10(2) to 15 March 2016.

2.   Amended summons filed on 26 October 2016 dismissed.

3.   The plaintiff is to pay the costs of the first defendant.

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Decision last updated: 23 December 2016