Robson v QBE Insurance (Australia) Ltd

[2020] NSWSC 1558

Supreme Court

New South Wales

Medium Neutral Citation:

Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558

Hearing dates:

18 September 2020

Date of orders:

05 November 2020

Decision date:

05 November 2020

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1)   The Certificate in MAS Matter Number 2018/04/3059 given by the third defendant on 30 January 2020, as to whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%, is set aside.

(2)   The Certificate in MAS Matter Number 2018/01/3524 given by the third defendant on 30 January 2020, as to whether the treatment provided or to be provided to the injured person relates to the injury caused by the motor accident, is set aside.

(3)   The Certificate in MAS Matter Number 2018/01/3524 given by the third defendant on 30 January 2020, as to whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, is set aside.

(4) The matters are remitted to the second defendant to be referred under s 63 of the Motor Accidents Compensation Act 1999 (NSW) to a different panel of at least three medical assessors for review and determination according to law.

(5)   The first defendant is to pay the plaintiff’s costs as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Claim under Motor Accidents Compensation Act 1999 (NSW) following motor accident – Medical review panel assessment – Procedural fairness – Whether failure to put parties on notice of panel’s intention to consider and potentially rely on results of survey conducted between 1976-1990 in Minnesota a denial of procedural fairness – Jurisdictional error established – Certificates set aside and matters remitted

ADMINISTRATIVE LAW – Judicial review – Claim under Motor Accidents Compensation Act 1999 (NSW) following motor accident – Medical review panel assessment – Whether panel failed to ask itself the correct legal question posed by s 58(1)(d) – Whether the panel impermissibly treated the absence of contemporaneous medical records of injury and complaint as determinative – Jurisdictional error established – Certificates set aside and matters remitted

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229

Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318

Bugat v Fox [2014] NSWSC 888

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293

Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

North v Homolka [2014] VSC 478

Owen v Motor Accidents Authority of NSW [2012] NSWSC 650

Pascoe v Mechita Pty Ltd [2019] NSWSC 454

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Rodger v De Gelder [2015] NSWCA 211

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

Texts Cited:

Motor Accidents Medical Assessment Guidelines (effective from 1 October 2008)

Category:

Principal judgment

Parties:

Shaun Spencer Robson (Plaintiff)
QBE Insurance (Australia) Ltd (First Defendant)
State Insurance Regulatory Authority (SIRA) (Second Defendant)
Dr Ian Cameron, Dr Rhys Gray and Dr Thomas Rosenthal in their capacity as a Medical Review Panel appointed by SIRA (Third Defendant)

Representation:

Counsel:
J Gumbert (Plaintiff)
K P Rewell SC (First Defendant)

Solicitors:
Stacks Law Firm (Plaintiff)
Moray & Agnew (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s):

2020/127786

Judgment

Introduction

1. Mr Robson, the plaintiff, was injured in a motor vehicle accident near Failford in New South Wales on 16 May 2012. QBE Insurance (Australia) Ltd (QBE), the first defendant, was the compulsory third-party insurer in respect of the vehicle at fault in the accident and was the only active defendant in these proceedings. The State Insurance Regulatory Authority (SIRA), the second defendant, and Drs Cameron, Gray and Rosenthal in their capacity as assessors on the medical review panel, the third defendant, entered submitting appearances.

2. By his amended summons filed on 18 September 2020, Mr Robson seeks judicial review of the decisions of the review panel contained in three certificates issued under s 63(4) of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) in relation to medical disputes arising out of the injuries said to have been suffered in the 2012 motor accident.

Background

3. On 17 February 2015, Mr Robson lodged an application with the Medical Assessment Service (MAS) for determination of an impairment dispute as to whether a C5/6 disc rupture and nerve compression, said to have been caused in the motor accident on 16 May 2012, gave rise to permanent impairment in excess of 10%.

4. On 15 May 2017, Mr Robson underwent a C5/6 anterior cervical discectomy and fusion performed by Prof Owler.

5. On 5 September 2018, QBE lodged an application for assessment by the MAS of a treatment dispute in effect as to whether the C5/6 anterior cervical discectomy fusion surgery was reasonable and necessary and whether such treatment related to any injury caused by the motor accident.

6. On 15 February 2019, a medical assessor, Dr Philip Truskett, undertook an assessment of Mr Robson.

7. On 22 February 2019, Dr Truskett issued three certificates under s 61(1) of the MAC Act certifying that:

1. the injury described as “Cervical spine – aggravation of disc degenerative disease, significant disc bulging at C5/6 with non-verifiable radicular complaint”, caused by the motor accident, gave rise to a permanent impairment which was greater than 10%;

2. the treatment by way of C5/6 anterior cervical discectomy and fusion surgery performed by Prof Owler on 15 May 2017 related to the injuries caused by the motor accident; and

3. such treatment was reasonable and necessary in the circumstances.

8. On 23 March 2019, QBE applied, under s 63 of the MAC Act, for a review of Dr Truskett’s medical assessment.

9. On 30 May 2019, the proper officer of the MAS determined that she was satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. Consequently, in accordance with s 63(3) of the MAC Act, QBE’s review application was referred to a medical review panel.

10. On 24 July 2019, the review panel decided that a re-examination of Mr Robson was necessary.

11. By letter dated 30 July 2019, the parties were informed by email from a Case Manager on behalf of the Proper Officer of the MAS that an examination of Mr Robson had been scheduled for 1 October 2019 and that:

“The Review Panel is inclined to find that an injury to the cervical spine did not occur in the subject accident due to the lack of contemporaneous documentation.”

12. The letter also included an invitation to the parties to provide submissions by 20 August 2019. In response to the invitation from the review panel, both Mr Robson and QBE made further submissions on the issue raised in the letter.

13. On 1 October 2019, Mr Robson was examined by Drs Cameron and Gray.

14. On 30 January 2020, the review panel revoked, under s 63(4) of the MAC Act, the certificates of Dr Truskett, and issued review panel certificates, together with reasons, certifying that:

1. “The following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%:

2. • Nil injuries related to the motor accident”;

3. “The following treatment, namely:

4. • C5/6 anterior cervical discectomy and fusion surgery performed by Professor Owler on 15 May 2017

5. DOES NOT RELATE TO THE INJURIES caused by the motor accident”; and

6. “The following treatment, namely:

7. • C5/6 anterior cervical discectomy and fusion surgery performed by Professor Owler on 15 May 2017

8. IS NOT REASONABLE AND NECESSARY in the circumstances.”

Summons seeking judicial review and the amended summons

15. On 29 April 2020, Mr Robson filed a summons in this Court effectively seeking orders setting aside the medical review panel’s certificates and having the matter remitted to SIRA for reallocation to another review panel and determination in accordance with law. The only substantive ground identified in the summons was that the review panel’s decision was affected by jurisdictional error or error of law on the face of the record because:

“[t]he review panel erred by denying the plaintiff procedural fairness in that it did not give notice to him of its intention to rely on the study “Epidemiology of Cervical Radiculopathy, Brain (1994), 117, 325 – 335 study of population-based study of Cervical Radiculopathy from USA” at page 25 of the decision in making their determination. …”

16. The summons came on for hearing before me on 18 September 2020. At the commencement of the hearing, however, Ms Gumbert of counsel, who appeared for Mr Robson, sought leave to file in court an amended summons, which contained an additional ground of review.

17. Mr Rewell of Senior Counsel, who appeared for QBE, opposed the filing of the amended summons on the basis that “[t]he ground was not pleaded in the summons. It was raised first in submissions. We responded. But we were entitled to rely on the summons.” It was not submitted that QBE could not meet the amended summons. Furthermore, the additional ground raised in the amended summons had been addressed by both sides in their written submissions. As there was no prejudice to QBE, leave to file the amended summons was granted.

18. The additional ground of review raised in the amended summons was that:

“[t]he panel impermissibly treated the contemporaneous medical material or the absence thereof as a decisive or determinative factor when making their determination of causation of injury…”

19. In order to consider these grounds it is necessary to review the review panel’s decision in some detail.

The review panel certificates and reasons

20. As mandated by the combined operation of ss 61(9) and 63(6) of the MAC Act, the review panel set out, in the same document as the certificates, the reasons for its findings.

Review panel’s reasons – part 1

21. After noting preliminary matters in part 1 sections A and B, the review panel’s reasons recorded, in part 1 section C, the documentation and other material, which the panel members had considered, namely: Dr Truskett’s certificates and reasons; the application for review form with attached documents and the reply form with attached documents; the proper officer’s determination referring the assessment for review; all the documents provided to Dr Truskett prior to his assessment; an additional document from the plaintiff’s lawyers requesting that the review panel should re-examine Mr Robson, a further statement from Mr Robson and further submissions; additional submissions from QBE lawyers; and, a further certificate including reasons of Assessor W Mason dated 18 February 2019.

22. It can be noted at this point that the review panel did not include in the list of documents considered by them a study by K Radhakrishnan, W J Litchy, W M O’Fallon and L T Kurland entitled “Epidemiology of cervical radiculopathy: A Population-based study from Rochester, Minnesota, 1976 through 1990” (1994), 117 Brain 325-335 (the Minnesota 1976 – 1990 Study), although it is clear from their reasons that they did consider this study. Furthermore, based on the unchallenged evidence of Mr Ian Graham, who was the contact solicitor who acted and acts for Mr Robson, I find that Mr Robson was not given notice of this study or the review panel’s intention to consider or rely upon it.

Review panel’s reasons – part 2

23. In part 2, the review panel noted, in section A of their reasons, what Dr Truskett had certified and, in section B, the disputes identified by the parties were recorded.

Review panel’s reasons – part 3

24. In part 3, the review panel set out at length what were described as “Matters Considered and Decided by the Panel”, under three headings: “A. Evidence Considered”; “B. Additional Evidence”; and, “C. Panel Deliberations”.

“A. Evidence Considered”

25. In part 3 section A, it was noted that the review panel had decided, after considering “all of the available evidence”, that a re-examination of Mr Robson was necessary in order to reach its decision, “because there was varying documentation available regarding the time course of the onset of [his] symptoms post the motor accident and the Panel wished to review [Mr Robson’s] own history”. It was also noted by the panel that the “clinical findings/documentation of possible cervical radiculopathy varied amongst medical assessors and a contemporary WPI assessment post cervical spine surgery may be indicated” and that there had been a request by Mr Robson for re-examination.

26. Furthermore, it was said under this heading that:

“The Panel was inclined to find that an injury to the cervical spine did not occur in the subject accident due to the lack of contemporaneous documentation. Accordingly, the Chairperson of the Panel instructed the secretary to issue a notice to both parties requesting submissions on the above to be provided by 1 October 2019.”

“B. Additional Evidence”

27. The review panel’s record of additional evidence, and its assessment of that evidence, in section B of part 3, was divided into subsections which generally dealt with the topics as set out below.

History given by Mr Robson

28. Section B commenced with a lengthy description of the history and other information obtained from Mr Robson at the re-examination on 1 October 2019. This included Mr Robson’s report that he could not use his left arm and could not effectively move his left arm in front of his torso without distress as well as his suffering from anxiety/depression which was “pretty bad” which came on after the accident and required ongoing treatment.

29. It was noted that Mr Robson denied any past history of injury or symptoms with regard to the neck, left shoulder, left upper limb or back but there had been a recurrent feeling of “general discomfort” related to work activities, before and after the motor accident. At this point, the review panel inserted the first of numerous paragraphs with the subheading “Comment”, although at this point the “comment” was simply to note that Mr Robson said that a statement from one of his employers that he had complained of pins and needles in the left upper arm in the six months or so before the motor accident and after the accident was “totally incorrect”.

Mr Robson’s current symptoms

30. The review panel then recorded the current symptoms complained of by Mr Robson.

The review panel’s examination of Mr Robson

31. Next, the review panel recorded the results of their examination of Mr Robson.

Investigations

32. The review panel then summarised various investigations by way of x-rays, ultrasounds, MRIs and similar investigations of the left shoulder and cervical spine during the period from June 2012 to July 2013.

“Review of File Material”

33. Under the heading “Review of File Material”, the review panel included summaries of, or extracts from, a large number of documents as follows:

1. Records from Mr Robson’s patient health summary from Nabiac Family Practice including an entry dated 14 August 2009 of Dr Fairleigh, a general practitioner and a series of entries made by Dr Nael Hussain, a general practitioner from 13 October 2009 to 10 September 2012;

2. A case conference report dated 19 September 2020 by M C Firth, a rehabilitation consultant;

3. An Initial WorkCover NSW Medical Certificate dated 27 June 2012 of Dr Hussain;

4. A statement of Mr Robson’s employer given on 28 August 2012 to a licenced private investigator regarding injury related comments Mr Robson made at certain times before and after the accident;

5. An early intervention report dated 17 October 2012 and a supplementary report dated 12 November 2012 of Dr R Wallace, an orthopaedic surgeon;

6. Three reports dated 27 September 2012, 5 November 2012 and 22 May 2014 of Dr S Kennedy, a shoulder and upper extremity surgeon;

7. A report dated 13 October 2012 of Dr S Vucic, a consultation neurologist and neurophysiologist;

8. Several reports dated 20 December 2012, 25 January 2013, 29 April 2013 and 7 August 2013 of Dr B Hsu, a spinal surgeon;

9. A report dated 18 June 2013 of Dr C Hollo, an occupational physician;

10. A report dated 14 August 2013 of Dr L Kleinman, an orthopaedic surgeon;

11. Several reports dated 8 November 2013, 11 December 2013, 10 February 2014, 15 November 2016, 15 May 2017 and 11 July 2017 of Associate Professor B Owler, a neurosurgeon;

12. A report dated 9 July 2014 of Dr Harbison, an orthopaedic surgeon;

13. A report dated 31 March 2014 of Dr A G Hopcroft, a general surgeon (orthopaedic);

14. A report dated 9 April 2014 of Dr P Carney, a neurosurgeon;

15. Two reports dated 7 August 2014 and 13 March 2017 of Dr J Cummine, an orthopaedic surgeon;

16. A report dated 21 November 2014 of Dr Dalton, a consultant in rehabilitation medicine;

17. A vocational assessment report dated 2 December 2014;

18. A report dated 3 February 2015 of Dr A Suen, a rehabilitation physician;

19. A certificate dated 10 June 2015 of Assessor Murray Page;

20. A report dated 7 March 2018 of Dr D Millons, a surgeon; and

21. A Workers’ Compensation Commission, Medical Assessment Certificate dated 12 September of Dr D Dixon, an orthopaedic surgeon;

22. The Further Certificate dated 22 February 2019 of Dr Truskett;

23. The Further Certificate dated 18 February 2019 of Assessor W Mason;

24. Documentation provided by QBE;

25. Documentation provided by Mr Robson;

and, finally,

26. the Minnesota 1976 – 1990 Study.

34. Despite being included under the heading “Review of File Material”, it does not appear that the Minnesota 1976 – 1990 Study was “File Material”. It was not part of the material provided to the review panel in accordance with cl 16.19 of the Medical Assessment Guidelines issued by SIRA effective from 1 October 2008.

35. Interspersed with the extracts and summaries of the “File Material” were the review panel’s comments on the information provided in some of the documents. Those comments were generally provided under the subheading “Comment”. The “comments” largely appeared to be limited to comments or arguments supportive of the conclusion that Mr Robson had suffered no relevant injury relating to the C5/6 disc in the 2012 motor accident, often on the ground that there was no documentation recording complaints of neck injury or localised symptoms in the cervical spine immediately following the motor accident.

36. In addition, the review panel’s “comments” also included suggestions to the effect that Mr Robson’s C5/6 disc issues were associated with general cervical degenerative changes. The support for general cervical degenerative changes accounting for Mr Robson’s C5/6 disc problems and symptoms appears to have been found in the Minnesota 1976 – 1990 Study. The review panel referred to this study in the following terms at the end of its “Review of File Material”:

“Epidemiology of Cervical Radiculopathy, Brain (1994), 117, 325 – 335 study of population-based study of Cervical Radiculopathy from USA.

This report was reviewed by the Panel.

The paper found that a low rate of cervical radiculopathy to be caused by physical exertion or trauma immediately preceding was not common (15%), with those activities mainly shovelling and playing golf. It was noted that cervical radiculopathy due to a spinal fracture or root avulsion resulting from a motor vehicle accident occurred in 3.1% of the patients and “there was no case of intervertebral disc extrusion in our study which could be ascribed to a flexion-extension injury related to a rear-end automobile collision” (page 332). It was noted (page 332) that the major cause of cervical radiculopathy is degenerative disease of the spine.” (italics in original)

“C. Panel Deliberations”

37. Despite the heading of section C, the review panel did not record extensive “deliberations” in this section but stated as follows:

“• Cervical spine – aggravation of a disc degenerative disease and/or cervical spondylitic problem, significant disc bulging at C6/7, C5/6 and C4/5, radiculopathy, musculoskeletal injury.

Not caused by the motor accident.

The Panel found no injury to the neck/cervical spine caused by the motor accident on the basis of the early post-accident history and medical documentation.

• Left shoulder – tendinitis, frozen shoulder, musculoskeletal injury

Not caused by the motor accident.

The Panel found no injury to the neck/cervical spine caused by the motor accident on the basis of the early post-accident history and medical documentation, Dr Kennedy’s report of September 2012 and then into current left shoulder injury documented by Dr Kennedy (22 May 2014).

• Left arm/hand – radiculopathy.

Not caused by the motor accident.

The Panel found no injury to the left upper limb caused by the motor accident and no evidence of a left upper limb/hand radiculopathy.”

38. The review panel consequently stated “as no injury was caused by the motor accident … there was no resultant permanent impairment and no apportionment indicated”.

39. The review panel also concluded that, as no injury was caused by the motor vehicle accident, the C5/6 anterior cervical discectomy and fusion surgery performed by Associate Professor Owler on 15 May 2017 did not relate to any injury caused by the motor accident, and these treatments were therefore not reasonable and necessary in the circumstances.

Remaining parts of the review panel decision

40. In the remaining parts of its reasons, parts 4, 5 and 6, the review panel merely restated its conclusions, expressed the view that all of the issues raised in the application had been dealt with and noted that all assessors on the review panel agreed with the certificate.

Judicial review application

41. In his amended summons, Mr Robson is relevantly seeking orders as follows:

“1 An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and Review Panel Certificate of the third defendant, the medical assessors review panel as was constituted by the State Insurance Regulatory Authority (“SIRA”), the second defendant, namely, the assessment dated 30 January 2020, made purportedly pursuant to section 63 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) (“the review panel decision”).

2 An order in the nature of mandamus remitting the matters the subject of the review panel decision and the Review Panel Certificate to the second defendant for reallocation of the matter to a differently constituted medical assessors review panel for determination of the matter according to law.

…

5 Costs.”

42. As has been noted above, the two grounds of review said to give rise to both jurisdictional error and error of law on the face of the record were in substance that:

1. The review panel erred in denying Mr Robson procedural fairness by not putting him on notice of its intention to rely on the Minnesota 1976 – 1990 Study, where such a report had not been referred to by any party or expert previously; and

2. The review panel impermissibly treated the contemporaneous medical material or the absence thereof as a decisive or determinative factor when making their determination of causation of Mr Robson’s injury.

Relevant principles in relation to jurisdictional error and error of law on the face of the record

43. The relevant principles were not the subject of any substantial dispute between the parties. It is sufficient, in these circumstances, to note what follows.

44. The review panel’s certificates in a case such as this are liable to be set aside either for jurisdictional error or error of law on the face of the record: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (Wingfoot); [2013] HCA 43 at [26] – [27] (French CJ, Crennan, Bell, Gageler and Keane JJ). This Court’s power to grant relief in such cases is confirmed by s 69 of the Supreme Court Act 1970 (NSW).

45. Jurisdictional error embraces different types of error but, relevantly for present purposes, includes failing to afford each party procedural fairness: Kioa v West (1985) 159 CLR 550 at 587; [1985] HCA 81. Jurisdictional error may be established by any admissible evidence that is relevant for that purpose: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 (McGiffen) at [45] (Meagher, Simpson, Payne JJA).

46. By way of contrast, if relief is to be granted as a result of an error of law within jurisdiction, the error must be identified “on the face of the record”: McGiffen at [69]. In this case, the “record” included the review panel’s reasons which were set out in the certificates viewed by the panels, as required by the combined operation of ss 61(9) and 63(6) of the MAC Act: Rodger v De Gelder [2015] NSWCA 211 at [73].

Relevant statutory provisions and provisions of the Guidelines

The MAC Act

47. The MAC Act provides for the medical assessment of injuries and impairment which result from motor vehicle accidents, such as were allegedly suffered by the plaintiff in the present case.

48. Section 131 of the MAC Act provides that no damages for non-economic loss are to be awarded unless the degree of permanent impairment of the injured person as a result of the motor accident is greater than 10%. Section 132 provides that if there is a dispute about whether the degree of permanent impairment exceeds the 10% threshold, a court may not award any such damages unless the degree of impairment has been assessed by a medical assessor under Pt 3.4 of the MAC Act. In the present case, there was a dispute as to whether Mr Robson’s degree of impairment as a result of the motor accident was greater than 10%.

49. In addition, there was also a dispute as to whether the treatment received by Mr Robson in relation to his C5/6 disc problems was “reasonable and necessary in the circumstances” and whether such treatment related to the injury caused by the motor accident.

50. These disputes or disagreements each related to a medical assessment matter as referred to in s 58(1) of the MAC Act which relevantly provides:

“(1) This Part [Pt 3.4] applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters):

(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,

(b) whether any such treatment relates to the injury caused by the motor accident,

(c) (Repealed)

(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

(e) (Repealed)”

51. Consequently, those medical assessment matters were dealt with under Pt 3.4 of the MAC Act. For this purpose, an assessment was carried out by Dr Truskett and, as noted above, he provided his three certificates on 22 February 2019. As it was entitled to do, QBE sought a review of those medical assessments, under s 63 of the MAC Act.

52. Section 63 provides:

“(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

(2A) If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based.

(3) 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.

(3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.

(4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

(5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review.

(6) Section 61 applies to any new certificate or new combined certificate issued under this section.

(7) The Motor Accidents Medical Guidelines may limit the time within which an application under this section may be made.”

53. The effect of s 63(3A) and (6) is that the review panel is to conduct its review by way of a new assessment of all the medical assessment matters addressed in the original assessment and is to comply with s 61 in determining new certificate or certificates issued by it, including s 61(9) which requires that reasons be set out in the certificate or certificates.

54. In addition, s 65(1) of the MAC Act, which is also in Pt 3.4 provides:

“Medical assessments under this Part are subject to relevant provisions of Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.”

55. Further and in particular in relation to the dispute as to Mr Robson’s degree of permanent impairment, s 133 of the MAC Act prescribes the method for assessing the degree of impairment. That section provides:

“(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.

(2) The assessment of the degree of permanent impairment is to be made in accordance with:

(a) Motor Accidents Medical Guidelines issued for that purpose, or

(b) if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.

(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.”

56. Section 44 of the MAC Act empowers SIRA to issue Motor Accidents Medical Guidelines, as referred to in ss 65 and 133.

The Motor Accident Medical Assessment Guidelines

57. It was not in dispute that the relevant guidelines for present purposes were the Motor Accident Medical Assessment Guidelines issued by SIRA under s 44(1)(d) of the MAC Act, with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessments and Review Panel assessments under Part 3.4 of the MAC Act, effective from 1 October 2008 (the Medical Assessment Guidelines).

58. Chapter 12 of the Medical Assessment Guidelines deals with documentation and other supporting material that may be considered by the assessor conducting the original assessment of the relevant medical assessment matters. It relevantly provides:

“12.1 Whenever a party submits physical copies of documents and other material (including videotape, CD, DVD, electronic image or file, film or photographs) in support of an application or reply, the party lodging the material must have already provided a copy of the material to each other party to the dispute.

12.2 Only copies of documents are to be lodged at MAS.

12.3 An officer of MAS, or any Assessor is not to take into consideration any documentation or information that has not been provided to the other party, except as provided in this chapter.

…

12.10 No additional documents or information sought to be added to the list of documents to be referred to the Assessor may be lodged by either party after the lodgement of their application or their reply, except:

12.10.1 by consent of the other party;

12.10.2 in response to a specific request or direction from the Proper Officer, an Assessor or an officer of MAS, in circumstances where the Proper Officer is satisfied that any such document would be of assistance to the conduct of the assessment; or

12.10.3 if the Proper Officer is satisfied that exceptional circumstances exist;

and any such documents must have been provided to the other party.”

59. Chapter 16 of the Medical Assessment Guidelines makes provision in relation to reviews of medical assessments by a review panel in accordance with s 63 of the MAC Act.

60. Clause 16.10 expressly makes Ch 12 of the Medical Assessment Guidelines applicable to reviews by the review panel. Clause 16.10 provides:

“Chapter 12 'Documentation and other supporting material' applies to any documentation and material in support of an application for review or reply to such an application.”

61. Clause 16.16 permits the proper officer to obtain further information or documentation as follows:

“If the Proper Officer is satisfied that further information or documentation is required or is likely to assist in the review, the Proper Officer may:

16.16.1 request that additional information or documentation be provided by a party within a period of up to 20 days and notify the other party;

16.16.2 proceed with processing the application in the absence of the requested further information but only after the passing of any period of time specified for the submission of that additional documentation or information; and/or

16.16.3 admit into evidence any document despite non-compliance with any time limit in relation to that document or service of it.”

62. The material to be put before the review panel by the proper officer is dealt with in cl 16.19 as follows:

“The Proper Officer or an officer of MAS shall act as secretary to the Review Panel and provide administrative support to the Review Panel, and shall arrange for copies to be sent to each member of the Review Panel of:

16.19.1 all the material that was before the original Assessor;

16.19.2 all certificates issued by the original Assessor;

16.19.3 the review application and reply, and any supporting submissions or documents;

16.19.4 any other applications and replies and/or MAS certificates in relation to the same claimant, not limited to the same matter, after the parties have been provided with copies of these documents;

16.19.5 the determination of the Proper Officer under clause 16.15; and

16.19.6 any additional information or documentation under clause 16.16.”

63. The assessment process to be undertaken by the review panel is governed by cl 16.21 as follows:

“16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to:

16.21.1 consider afresh all aspects of the assessment under review;

16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur;

16.21.3 determine whether additional information is required in order to make a decision;

16.21.4 determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked;

16.21.5 if revoked, determine what new certificates are to be issued;

16.21.6 where the original assessment certificate was issued under clause 13.7 and included in a combined certificate under clause 13.9, determine whether the panel is to issue a new combined certificate, combining the result of the review with the results of the other assessments included in that combined certificate;

16.21.7 determine which member of the panel will sign any certificates on behalf of the panel;

16.21.8 determine whether a further meeting of the panel is required; and

16.21.9 advise the Proper Officer of any determinations under this clause.”

64. Clause 16.23 provides that, if required, the proper officer is to advise the parties of any determinations made in a panel conference within five days of being advised of any such determination.

65. From these provisions of the Medical Assessment Guidelines, it can be seen that one of the objects of Chs 12 and 16 is to ensure that parties to a medical assessment under s 61 and a review under s 63 of the MAC Act are afforded procedural fairness by having all documents before the assessor or review panel disclosed to the parties so that they are informed of, and can adduce evidence and make submissions in relation to, the material which the assessor or review panel may take into account.

Ground 1 – failure to afford procedural fairness

66. The substance of Mr Robson’s first ground of review was that the review panel’s conduct in considering and relying on the Minnesota 1976 – 1990 Study in determining the review, without putting him on notice of its intention to do so or affording him the opportunity to respond to it, amounted to a denial of procedural fairness. Thus, the review panel’s decision was affected by jurisdictional error and the review panel’s certificates should be set aside.

Submissions

67. Mr Robson submitted in substance that:

1. the review panel was required to afford the parties procedural fairness;

2. the review panel considered the Minnesota 1976 – 1990 Study and it was a significant or critical factor in the review panel’s decision adverse to Mr Robson, as demonstrated by their reasons;

3. Mr Robson was given no notice of the existence of, or the review panel’s consideration of or potential reliance on, the Minnesota 1976 – 1990 Study; and

4. accordingly, there has been a denial of procedural fairness.

68. It was contended that if Mr Robson had been put on notice of the review panel’s intention to consider the study, he could have responded in a number of ways, including, for example, by making submissions as to its lack of relevance to the Mr Robson’s situation in Australia in 2020 and drawing attention to deficiencies in the study. Consequently, the failure to give the parties notice of the intention to consider or rely on the study led to practical injustice in the present case. Ms Gumbert referred to a number of authorities including Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293.

69. While QBE accepted that the review panel was required to accord procedural fairness to Mr Robson, it was contended that such a duty did not extend to notifying him of the panel’s single reference to peer-reviewed medical literature that was a small part of its analysis. In the present case, it was submitted that the determination that the C5/6 disc protrusion that led to the surgery by Prof Owler was not caused by the motor accident was not dictated or determined by the study to which the review panel briefly referred but followed from a multi-factorial analysis of the circumstances of the motor accident, the extensive history taken from Mr Robson, the medical treatment history and the radiological evidence, each aspect of which involved the exercise of the panel’s collective clinical judgement.

70. Further it was contended that the review panel is not required to give notice to the parties of its intention to cite a peer-reviewed medical journal in its reasons and, in any event, the review panel did not rely on the study in a substantial way. QBE relied on the contention that, as explained by the High Court in in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], the function of the review panel is to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. It was submitted that this was what the review panel did in the present case and that merely referring in passing to a medical journal article did not involve any denial of procedural fairness.

68. Mr Rewell also sought to distinguish this case from Pascoe v Mechita Pty Ltd [2019] NSWSC 454, in which Button J stated, at [65], that a reliance by a review panel on literature that is critical to the actual process of calculating WPI must be disclosed to the parties and:

“the reliance by the Panel on the [medical literature] introduced a new line of reasoning that was not flagged to the parties, and therefore the plaintiff was indeed denied procedural fairness.”

72. Mr Rewell submitted that unlike in Pascoe where the actual process for calculating the extent of an injury was not disclosed to the parties, in this case the journal article did not dictate the determination of a certain WPI but merely formed, at most, one part of the multi-factorial analysis referred to above.

Consideration

73. It was accepted by the parties that the review panel owed a duty to accord procedural fairness to Mr Robson and to QBE. This was correct, see for example Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 (Frost) at [31].

74. The content of the obligation to accord procedural fairness depends on what is required to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]; Frost at [41].

75. At a general level, procedural fairness requires a decision-maker such as the review panel:

1. to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power; and

2. to advise a party of any adverse conclusion which would not obviously be open on the known material:

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR) at [9]; Kioa v West (1985) 159 CLR 550 at 587; [1985] HCA 81.

76. Beyond that, however, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision: SZGUR at [9].

77. Where a person is entitled to procedural fairness, that person will generally be entitled to be made aware of, and have the opportunity to address any adverse information that is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550 at 629 (Brennan J) (and note also Mason J at 587).

78. How those general principles are to be applied in a context such as the present, where the administrative decision making body is comprised of persons with relevant medical expertise, was considered by Ashley JA in North v Homolka [2014] VSC 478. At [104], it was held:

“… A panel is an expert tribunal. It is entitled to rely upon its expertise in making its determination. Here, the Panel’s expertise was in part the expertise of Dr Homolka, an occupational physician. She might be expected to understand a good deal about job descriptions. It would go too far, and the authorities do not require it, to say that every resort by a panel to its own knowledge and expertise, not communicated to a party, will constitute want of procedural fairness. It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material …”

79. In the present case, the Minnesota 1976 – 1990 Study was expressly referred to under the heading “Review of File Material” in section B of part 3 of the review panel’s reasons. As already noted, to the extent that this indicated that the study was part of the “File Material”, this was incorrect.

80. What the review panel said about the study has been quoted in full above. Most significantly, the review panel quoted the following passage directly from the study:

“‘there was no case of intervertebral disc extrusion in our study which could be ascribed to a flexion-extension injury related to a rear-end automobile collision’ (page 332).”

In addition, the review panel expressly noted that at p 332 of the study it was concluded that:

“the major cause of cervical radiculopathy is degenerative disease of the spine.”

81. Thus, the two aspects of the Minnesota 1976 – 1990 Study which the review panel manifestly saw as relevant in the present case were that rear end collisions did not cause intervertebral disc extrusion and the major cause of cervical radiculopathy was degenerative disease of the spine.

82. The review panel’s history taken from Mr Robson clearly described the motor accident in a way which established that it was a rear-end collision and the panel also referred to a “context of general cervical degenerative changes” in rejecting other experts’ opinions concerning causation of Mr Robson’s injuries.

83. One particular example of how these two aspects of the Minnesota 1976 – 1990 Study probably influenced the review panel’s reasoning can be found in the panel’s consideration of Dr Wallace’s conclusions in his report of 17 October 2012. In that report, Dr Wallace expressed the opinions that “Mr Robson suffered an injury at his cervical spine as a result of a rear end motor vehicle collision …” and “Mr Robson has no evidence of a pre-existing degenerative condition at his cervical spine”. Both of these opinions were rejected by the review panel. Their express reasoning referred to the lack of documentation of neck injury or symptoms related to the motor accident in the early post-accident period and the contention that “subsequent MRI and bone scans showed established mid-cervical degenerative changes of longstanding nature”. Although the study is not expressly mentioned by the review panel at this point in its “comments” in relation to Dr Wallace’s opinions, passages from the study relied on by the review panel can be seen as informing and supporting the reasoning.

84. A further example of the influence of the Minnesota 1976 – 1990 Study can be seen in the review panel’s “comments” on the Workers’ Compensation Commission Medical Assessment Certificate prepared by Dr Drew Dixon, dated 12 September 2017, in which he said that Mr Robson:

“sustained a whiplash injury to his neck in the subject motor vehicle accident and sustained a C5/6 disc protrusion with foraminal stenosis and left shoulder brachialgia with radicular complaint, with pain extending down his arm and paraesthesia in his left hand, thumb, index and middle finger and subsequently ref acquired A CDF C5/6 intervertebral spacer and segmental fixation…”

85. The review panel “comment” in this regard included:

“Subsequent MRI of the cervical spine outlined C5/6 mid cervical degenerative changes, in particular the C5/6 disc protrusion/foraminal stenosis, but the Panel decided there was no evidence that this was caused by the motor accident and in many instances, such changes are quite asymptomatic particularly in the context of general cervical degenerative changes.”

86. Given the parts of the Minnesota 1976 – 1990 Study to which the review panel drew attention in their reasons and their “comments” relating both to the nature of the accident and general cervical degeneration, it appeared to me that the study was likely to have influenced the review panel to a significant degree to reach the conclusion that Dr Dixon’s opinion should be rejected.

87. I am also satisfied more generally that the conclusions in the Minnesota 1976 – 1990 Study to which the review panel drew attention and which were potentially applicable to Mr Robson’s particular circumstances, constituted adverse information that was relevant to and significant for the decision to be made. The review panel considered the information sufficiently credible to quote it in their reasons. In those circumstances, Mr Robson was entitled to be made aware of, and have the opportunity to address, the study including the particular aspects identified by the review panel. Notwithstanding this, the review panel did not at any stage bring to the attention of Mr Robson the existence of the Minnesota 1976 – 1990 Study or that the review panel might rely to a greater or lesser extent on that study in determining the review adversely to him.

88. This involved practical injustice to Mr Robson. The relevance and reliability of the Minnesota 1976 – 1990 Study were far from unassailable. Although self-described as an “epidemiological survey”, the study related only to 561 persons from one town in Minnesota, with a population of about 70,000 persons, treated at one clinic over a period of 14 years from 1976 to 1990: see p 325. Only 14.8%, or 83 persons, had a history of physical exertion or trauma preceding onset of symptoms and, of those:

“[t]he most frequently encountered types of physical exertion which precipitated radicular symptoms were shovelling snow in winter and playing golf in summer. Cervical radiculopathy due to a spinal fracture or root avulsion resulting from a motor vehicle accident occurred in 17 patients (3.1%); however, no patient had a disc prolapse precipitated by an automobile accident. An antecedent history of cervical radiculopathy was obtained in 31% of cases and lumbar radiculopathy in 41% of cases …” [at p 328].

89. In addition to questioning the statistical validity and reliability of this “epidemiological survey”, especially in relation to conclusions concerning automobile related injuries, Mr Robson could also have made submissions as to the lack of relevance of this study to persons injured in New South Wales in 2012:

1. because it is unlikely that many New South Wales residents would suffer symptoms as a result of shovelling snow in winter; and

2. because of the differences between the automobiles, roads and circumstances of the residents of Rochester, Minnesota, and the vehicles, roads and circumstances of drivers in this State at the relevant time. For example, significant differences might include whether seat belts were generally worn by the residents of Rochester between 1976 and 1990 when driving their automobiles and whether their automobiles were fitted with airbags, and another might be whether residents of Rochester who suffered trauma as a result of automobile accidents died as a result of the accident or did not attend the relevant clinic or were treated elsewhere or for other more significant injuries.

90. The Minnesota 1976 – 1990 Study was not before the review panel by any of the processes provided in Chs 12 and 16 of the Medical Assessment Guidelines nor was it otherwise brought to the attention of Mr Robson or QBE. It was not obvious, nor would it have been reasonably anticipated, on the material known to Mr Robson to be before the review panel (which did not include the study), that the review panel might proceed on the basis that it had been established that rear end collisions did not, or were unlikely to, cause intervertebral disc extrusion and that the major cause of cervical radiculopathy is degenerative disease of the spine, having regard to the passages from the Minnesota 1976 – 1990 Study adopted by the review panel.

91. The decision of Button J in Pascoe v Mechita Pty Ltd [2019] NSWSC 454 is similar to the present case. In Pascoe, a medical appeal panel relied on ISO tables 1999 to 2013 with regard to progressive hearing loss induced by noise in the process of calculating whole person impairment as a result of hearing loss for the purposes of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). In that case, the plaintiff had no notice that ISO tables could play a role in the subsequent adverse determination. It was held that the plaintiff had been denied procedural fairness. In considering the situation of an expert panel as an administrative decision maker, Button J stated, at [73] and [74]:

“73. Speaking more generally, it is true, of course, that experts – whether in coming to an opinion, or giving evidence, or sitting on a Panel such as this – are permitted to take into account previously unmentioned material if it is unassailable, or can be understood to be within common knowledge, including that of the parties. For example, as I remarked in discussion with counsel, an expert is entitled to take into account the propositions that the sun rises in the East, or that gravity causes items to fall towards the ground, or that, other things being equal, locations are darker in the night time than they are in the day. And they can do so without elaboration, and without providing notice that they will do so.

74. But I do not believe that that characterisation can apply to the ISO [tables]. It can hardly be equated to propositions such as those; indeed, its provenance is unclear on the evidence before me, and its use by the Panel is complex to a layperson.”

92. A similar approach was adopted in Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318 by Harrison AsJ at [60].

93. I have already explained why the Minnesota 1976 – 1990 Study was not “unassailable”. Nor can the conclusions of the study relied on by the review panel be said to be common knowledge. The fact that the study did not determine the outcome in the present case but was part of a multi-factorial analysis, if that be the case, does not, however, establish that the aspects of the study identified by the review panel were not a more than minimal factor in the review panel’s conclusions, such as to attract the obligation to disclose the study to Mr Robson and allow him the opportunity to respond it.

94. In all these circumstances, in my view, Mr Robson was denied procedural fairness as contended in his first ground of review. As a result, the review panel fell into jurisdictional error in making the determinations recorded in the three certificates and those certificates are liable to be set aside.

95. It could not be said in this case that the absence of the opportunity for Mr Robson to make submissions and lead evidence in response to the Minnesota 1976 – 1990 Study did not deprive him of the possibility of a successful outcome. Hence, there is no reason why relief should be refused.

Ground 2 –reliance on an absence of contemporaneous medical material

96. The second ground of review relied upon by Mr Robson was to the effect that the review panel impermissibly treated the absence of contemporaneous medical records of injury to his cervical spine as a decisive or determinative factor when considering the causation of Mr Robson’s injury and thereby fell into jurisdictional error.

Submissions

97. Ms Gumbert submitted in effect that the review panel impermissibly relied on the absence of contemporaneous evidence of cervical spine injury in making its decision and treated that absence as a determinative factor in relation to the question of causation. In this way, it was said that the review panel fell into jurisdictional error. More particularly, it was submitted that a review of the review panel’s reasons demonstrated that the overriding theme was that the absence of reference to injury to or symptoms in the cervical spine in Dr Hussein’s clinical notes taken during consultations immediately after the motor accident led to the conclusion that Mr Robson’s C5/6 disc injury was not caused by the motor accident.

98. Mr Rewell submitted that the review panel concluded that the symptoms of which Mr Robson complained were related to a pre-existing degenerative disease in the cervical spine and were neither caused nor aggravated nor accelerated by the motor accident. It was also contended that these conclusions were reached by a multifactorial analysis which included, inter alia, factors such as: the nature of the motor collision itself; the fact that Mr Robson told the review panel that he did have some general discomfort after the accident but that discomfort was typical of what he experienced at the end of the usual working day when he had done heavier activity; Mr Robson telling the panel that he maintained his normal work duties after the accident; the panel’s view that there were no reported symptoms consistent with a C5/6 disc bulge until at least September 2012; the panel’s view that the symptoms reported after September 2012 were not consistent with true radiculopathy; and the panel’s view that the radiological findings at C5/6 were not consistent with traumatic injury in the context of the symptom history, but were consistent with degenerative change.

Consideration

99. This ground was based upon the type of error identified by the Court of Appeal in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; 77 MVR 348 (McGiffen). At [64] – [65] Meagher, Simpson and Payne JJA said:

“64. The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the “gait derangement”, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident?

65. In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.”

100. Earlier, Campbell J in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; (2012) 61 MVR 245 (Owen) had identified this type of jurisdictional error as identifying a wrong issue as follows, at [52]:

“Moreover, the juxtaposition between the statement that the material provided by the parties had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident with the following analysis of contemporaneous documentation persuades me that the Review Panel identified a wrong issue, namely, did treatment providers in the first month or so following the motor accident make a record of complaints of symptoms in the lumbar spine? Undoubtedly, it was relevant to consider that material in the process of determining the right question, but it was wrong to treat this consideration as decisive, not least because [e]xperience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v. Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]). The medical histories were taken in furtherance of a purpose which is not identical with the purpose of resolving the medical assessment matter before the Review Panel: Container Terminals Australia v. Huseyin [2008] NSWCA 320 at [8]; Mason v. Demasi [2009] NSWCA 227 at [2] and Gulic v. O'Neill [2011] NSWCA 361 at [24]. These statements were made in the context of the exercise by the Court of Appeal of its powers of rehearing pursuant to s.75A Supreme Court Act 1970. But they are apposite to the exercise by the Review Panel of its powers under s.63 of the Act, especially subs. (3A). In my judgment the identification of this wrong issue was jurisdictional error.”

101. It can be accepted, as Mr Rewell submitted, that the review panel took into account the factors identified in his submissions in reaching their conclusion. In this sense, the panel can be said to have adopted a multifactorial approach.

102. On a fair reading of the review panel’s reasons as a whole, however, it appears to me that the panel regarded the absence of documentation, such as clinical notes made immediately following the accident, referring to symptoms in or related to Mr Robson’s neck, as the determinative factor, albeit among other factors, in reaching their conclusion as to causation. While my conclusion concerning the review panel’s reasons is based on reading them as a whole, what is set out in the following paragraphs highlights some of the material which gave rise to this understanding.

101. Towards the beginning of their reasons, the review panel stated that, after considering all of the available evidence but before the review panel had examined Mr Robson, they were “inclined to find that an injury to the cervical spine did not occur in the subject accident due to the lack of contemporaneous documentation.” (underlining added). This was a significant indication that the review panel was disposed to rely on “the lack of contemporaneous documentation” as determinative of whether Mr Robson’s C5/6 disc rupture or bulging was caused by the motor accident, subject to the examination of Mr Robson and any further submissions of the parties.

102. Mr Robson was re-examined and the most significant purpose for this appeared to be to obtain a further history from Mr Robson. The review panel’s record of Mr Robson’s account of what occurred in the motor accident on 16 May 2012 included that he was stationary at the time and suffered a rear end collision leaving him suddenly covered in glass with his vehicle potentially on the path of oncoming traffic. He was able to drive the vehicle off to the side and alight. He then drove 2 to 3 km home and had a shower to remove the glass. He had no idea of being injured from the accident at that stage but had some general discomfort, with that discomfort being typical of that he experienced at the end of the usual working day when he had to do some heavier activity. The review panel then recorded as follows:

“Mr Robson said that he had attended his own doctor on two occasions immediately post-accident, with Mr Robson advising that this had not been recorded. Mr Robson explained that he was relatively friendly with his general practical sooner, particularly as his wife worked for the GP as a receptionist. Mr Robson reiterated that his GP was aware of the motor accident although this had not been recorded.

The Panel raised with Mr Robson that there was an entry in Dr Hussain’s notes on 17 May 2012, the day post-accident, with no reference to a motor accident and no documentation of complaints/injury; there was a further entry on 23 May 2012 when he had a further injection of re-and drawn and BP/pulse taken, with no documentation of the accident or symptoms. Mr Robson agreed that at the stage of the early consultations with Dr Hussain post-accident, that he had been asymptomatic as far as the motor accident was concerned.

Mr Robson described the onset of discomfort, pointing to the left trapezius muscle region, which he described as ‘shoulder’, about a week after the motor accident, with no neck or left upper limb symptoms at that stage. However, he said that he had not made a claim on Workers Compensation until after he had an ultrasound of the left shoulder in August 2012 that showed an abnormality; his GP had then referred him to Dr S Kennedy, shoulder orthopaedic surgeon.

…

Mr Robson said that at review by Dr Kennedy with a shoulder MRI, he was advised that the left shoulder was not obviously injured. An MRI of the neck was then organised, with the suggestion by Dr Kennedy that the symptoms presenting at that stage in November 2012 might be from the neck and related to the accident.

Mr Robson could not date the time, but there had been a specific incident when he experienced a major problem on changing from 2^nd to 3^rd gear while driving at work – he described a sudden electric shock feeling and numbness in the whole less side of his body, without any involvement on the right side, with the left side of the neck, left upper limb, left shoulder, left also and left leg being involved. Mr Robson said that he had to stop the car and attended his GP who advised him that there was ‘something wrong’ and he was put off ‘sick’. He said that this was thought to have been a ‘pinched nerve’, being about August 2012. He said that at that stage, there were also pins and needles that he described as being mainly the radial side of his left hand.

The Panel reviewed with Mr Robson in detail the onset of symptoms immediately post-accident: to direct questioning, Mr Robson said that the first thing he noticed wrong/different was some aching, and he pointed to the left trapezius area, coming on about a week post motor accident; however, he said that these aches and pains he had experienced commonly before the motor accident, with the type of work he did in his job. He said that he did attend his GP the next day post-accident and believed that he had also discussed with his GP, on a social level, the motor accident. He re-attended his GP about one week later and he believed that the GP was aware that he was involved in an accident. However, Mr Robson said that there was no conclusion at that stage that there was a connection between any symptoms and the motor accident.

Mr Robson said that later the specialist for the shoulder had advised him that his shoulder was okay, so his symptoms must be coming from elsewhere, this being the reason for the neck MRI. Mr Robson said it was explained to him that the abnormality on the MRI scan was the cause of his problems.

…” (emphasis added, underlining in original)

105. In addition to his re-examination, Mr Robson provided a further statement to the review panel in which he explained how his GP, Dr Hussain, came to prepare his notes of the consultations immediately after the accident. That statement contained the following:

“(9) I had an appointment with my GP, Dr Hussain, on Thursday afternoon [the day after the accident] after work. I knew Dr Hussain well. He had been my GP for some years but I also knew him socially. My wife was a nanny for his children…

(10) The appointment with Dr Hussain on 17 May 2012 was for an injection. It was a very short appointment. I believe that I told Dr Hussain about the car accident in our general conversation. I did not consult him about it in a formal way. It was only the day after the accident and I thought I would get better.

(11) I recall clearly that the pins and needles in my left arm and hand began before the end of the week in which the accident happened…

(12) I attended a further appointment with my GP, Dr Hussain, on 23 May 2012 (Wednesday). Again, it was a scheduled appointment for an injection and was a short appointment…I believe that during that consultation I discussed with Dr Hussain the work issues that I had raised a few weeks earlier with him. I am sure that we discussed the accident during that meeting. As with all of his conversations with me, it was very casual. I believe that he said to me words to the effect “how are you going” and I told him words to the effect of “oh, all right, still a bit sore” It had been just over a week since the accident and I still thought that the symptoms would go away.

(13) On 1 June 2012, I made a specific appointment to see Dr Hussain about the symptoms that had developed since the motor accident. Dr Hussain sent me for some xrays. I recall that he seemed to think that my problem was my left shoulder. He referred me to Dr Kennedy, who undertook further tests and identified that the problem was not my shoulder, but my neck.

…”

106. This additional statement does not, however, appear to have been the subject of specific comment in the review panel’s reasons.

107. As explained above, the review panel also provided quite extensive extracts from, and summaries of, the material before it, under the heading “Review of File Material”. Interspersed with these extracts and summaries of the “File Material” were the review panel’s comments on the information provided in some of the documents, generally but not always with the subheading “Comment”. These “comments” often included comments or arguments supportive of the conclusion that Mr Robson had suffered no relevant injury relating to the C5/6 disc in the 2012 motor accident, on the ground that there were no documented complaints of neck injury or localised symptoms in the cervical spine immediately following the motor accident.

108. The “Review of File Material” included the following in relation to the immediate post-accident clinical notes of Mr Robson’s GP, Dr Hussain:

“…

Subject motor accident: 16 May 2012

Entry, 17 May 2012, Dr Hussain: imi sustain.

Entry, 23 May 2012, Dr Hussain: ‘sustine’ imi. BP & pulse taken.

Entry, 1 June 2012, Dr Hussain: pain limitation in movement. Pain post mva. ‘Pain to upper thoracic radiated to the arm’. Xray request.

Comment: no reference to cervical spine symptoms or injury, or symptoms consistent with a specific soft tissue injury left shoulder from the motor accident.”

109. Thus, two weeks after the accident there is documentation of symptoms related to the motor accident including pain, limitation of movement and radiation to the upper limb. Notwithstanding this, the review panel’s “comment” indicates an apparently pedantic focus on absence of reference to “cervical” or “specific” injury.

110. The review panel’s further consideration of the GPs post-accident notes continued:

“Entry, 6 June 2012, Dr Hussain: pt with many issues. 1. Shoulder some limitation neurovascular intact. 2. pt for gynaecomastia. 3. pt for skin lesion. 4. pt as well for the ‘lew tewton’. Left shoulder Xray. [Comment] No reference to cervical injury or specific symptoms

Entry, 13 June 2012, Dr Hussain: pale sweating. Chest clear. Maxalon imi. Med certificate 14 – 17 June 2012. US left shoulder.

…

Entry, 21 June 2012, Dr Hussain: pain to the shoulder to the left side. ‘Since the accident pain worse on’ and pins and needles in the arm. [Comment] No reference to cervical injury or local cervical symptoms

Entry, 25 June 2012, Dr Hussain: “Blank Letter”. Letter to A J Wilsons, 25/6/2012 – Dr Hussain noted presentation on 1 June 2012 with left shoulder pain and limitation in movement left shoulder, as per GP record, “Pain to upper thoracic radiated to the arm”; also tingling in his left hand and arm. On 21 June Dr Hussain noted clinical findings related to the left suprascapular notch, although with widespread symptoms.

Comment: no reference to MVA/symptoms/injury at the earlier consultations on 17 and 23 May 2012 plus no reference to neck injury or local neck symptoms.

…

Entry, 10 September 2012, Dr Hussain: still in pain limitation of movement. Numbness and pins and needle.

Comment: no specific neck injury or local neck symptoms. As per Dr Hussain’s comments in 19 September 2012 report, the mechanism of any injury is vague, and his presentation and symptoms are confusing. The Panel noted no injury recorded early post-accident, with continuation of some pre-existing discomfort, with no subsequent cervical injury or local neck symptoms documented by September 2012, three months post-accident.

...” (underlining added)

111. The consistent theme in these “comments” is lack of documentation of specific cervical related complaint or symptoms.

112. The “Review of File Material” continued with material including what follows.

1. In relation to a case conference report from Interact Injury Management dated 19 September 2012, a the review panel’s reasons included:

“On page 2, under ‘Diagnosis’, noted that ‘Mr Robson’s diagnosis is listed in his WorkCover Medical Certificate as? Nerve damage pain getting worse and the limitation in movement. [GP] advised there was some evidence of soft tissue injury on the MRI, but the mechanism of injury is vague, and his presentation and symptoms are confusing. [GP] is awaiting a review with Orthopaedic Specialist, Dr Stuart Kennedy prior to further treatment and upgrades and certification or fitness for work’

Comment: the Panel found no documentation of neck injury or localised symptoms in the cervical spine and no neck investigations in early GP documentation and on Mr Robson’s own history. No initial description of soft tissue injury left shoulder to correlate with ultrasound report. No reference to specific left hand injury.” (underlining added)

2. In relation to an early intervention report of Dr R Wallace, an orthopaedic surgeon, dated 17 October 2012, the review panel’s reasons included:

“Under ‘History’, Dr Wallace noted that Mr Robson continued with his normal work duties psot the motor accident on 16 may 2012 and the history was that he had, ‘some four days later, he noted the onset of niggling pain at his left shoulder accompanied by paraesthesia and numbness at his left hand:

Comment: not consistent with GPnotes of 17 & 23 May 2012

...” (underlining added)

and

“Under ‘Opinion’ on page 6, Dr Wallace stated, “Mr Robson suffered an injury at his cervical spine as a result of a rear end motor vehicle collision in the course of his duties at work on 16 May 2012”.

Comment: the Panel found no documentation of neck injury or symptoms related to motor accident in early post-accident period. …

…” (underlining added)

3. When reviewing a report of Dr S Kennedy, shoulder and upper extremity surgeon dated 27 September 2012, the review panel’s reasons included:

“Comment: no formal evidence of a cervical radiculopathy documented in Dr Kennedy’s clinical findings. Time of onset of symptoms relied on by Dr Kennedy, not consistent with the early contemporaneous history and documentation by Mr Robson and his GP. Dr Kennedy found no intrinsic injury to the left shoulder.” (underlining added)

4. When reviewing a certificate of Assessor Hyde Page dated 10 June 2015, the review panel’s reasons included:

“On page 3, under ‘History of Motor Accident”, Assessor Hyde Page noted that, ‘He was able to drive his sedan home, which was nearby. Initially he had only minor discomfort around his neck and shoulders’.

Comment: this is not consistent with the contemporaneous medical documentation or Mr Robson’s history given to the Panel and other Assessors. In particular, no initial specific neck pain/discomfort.” (underlining added).

113. Relying generally on the lack of documentation of neck injury or symptoms related to the motor accident in the very early post-accident period or disagreement as to the interpretation of investigative reports, the review panel made “comments” rejecting not only the opinions of Dr Wallace, Dr Kennedy and Assessor Hyde Page but also rejected some of the histories taken by, and opinions of, Dr Hsu, spinal surgeon, Dr Kleinman, orthopaedic surgeon, Dr Owler, neurosurgeon, Dr Harbison, orthopaedic surgeon, Dr Hopcroft, general surgeon (orthopaedic), Dr Carney, neurosurgeon, Dr Millons, surgeon, Dr Drew Dixon in his medical assessment certificate for the Workers Compensation Commission, and Dr Truskett in his certificates of 22 February 2019. The reasons for rejecting these opinions set out in the “comments” included, without attempting to be exhaustive:

“the Panel did not agree that a fairly large posterolateral disc herniation at the left of C5/6 on the left side with encroachment on the C5 nerve root was caused by the motor accident, on the history and clinical findings documented at that stage.” (underlining added)

“the Panel decided that any such mechanism of disc injury was not consistent with Mr Robson’s documented progress, because of lack of early symptoms and the initial onset of symptoms not being of a specific cervical nerve root irritation, and the early cervical spine clinical examinations consistently normal.” (underlining added)

“not consistent with the contemporaneous history from Mr Robson or the medical documentation.” (Underlining added)

“The Panel felt that there was no evidence of soft tissue or other injury to the cervical spine in the motor accident, based on Mr Robson’s history the contemporaneous history and medical documentation. ” (Underlining added)

“the above history is not consistent with the evidence of Mr Robson or the contemporaneous medical notes, as outlined in the report above.” (Underlining added)

“this description of the early onset of neck symptoms, is not consistent with Mr Robson’s current history or the contemporaneous medical document inpatient in the first week.” (Underlining added)

“this history is not consistent with the contemporaneous documentation outlined elsewhere in this report. ” (Underlining added)

“in the early medical documentation, the Panel noted that Mr Robson attended his general practitioner multiply at that stage, without documentation of reference to the motor vehicle accident or to any symptoms and signs from a recent injury. In particular, there was no documentation of history from Mr Robson at that stage of neck pain.” (Underlining added)

114. From the comments in the “Review of File Material”, I was left with the distinct impression that the absence of documentation of specifically identified cervical injury by Dr Hussain in the period immediately following the motor accident was the determining factor, even in the context of a multifactorial approach, in the review panel’s conclusion that Mr Robson’s C5/6 disc protrusion was not caused by the motor accident.

115. This impression was confirmed by section C of the review panel’s reasons under the heading “Panel Deliberations”. There, it was stated in relation to, inter alia, the C5/6 disc protrusion:

“• Cervical spine – aggravation of a disc degenerative disease and/or cervical spondylitic problem, significant disc bulging at C6/7, C5/6 and C4/5, radiculopathy, musculoskeletal injury.

Not caused by the motor accident.

The Panel found no injury to the neck/cervical spine caused by the motor accident on the basis of the early post-accident history and medical documentation.

…” (underlining added)

116. This part of the review panel’s reasons confirms my understanding of the panel’s approach to the assessment of causation of Mr Robson’s injury since it makes explicit that the panel’s “deliberation” on the question of causation of the C5/6 disc protrusion was confined to one factor or basis, namely “the early post-accident history and medical documentation”. No other factor was noted as affecting the panel’s conclusion in this regard. The review panel, in substance, addressed only the question of whether there was contemporaneous documented complaint of injury to the cervical spine and did not address the actual question posed by s 58(1)(d), namely what was the degree of permanent impairment of Mr Robson as a result of the injury caused by the motor accident.

117. For these reasons, I conclude that the review panel made the type of jurisdictional error identified in McGiffen and Owen, referred to above. In addition, in my view, the following comment of R S Hulme AJ in Bugat v Fox [2014] NSWSC 888 at [32] are also applicable in the present case:

“in expressing themselves the way they have, the Panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.”

118. Consequently, the three certificates issued by the review panel are also liable to be set aside on the basis of the second ground of review.

119. It was not submitted by QBE that if there was found to be jurisdictional error or error of law on the face of the record, the Court should nonetheless, in the exercise of its discretion, refuse relief. Nor do I accept that there are any grounds which would justify refusal of relief in the present case.

Costs

120. The plaintiff has been successful in his application for judicial review. There do not appear to me to be any circumstances which would render it appropriate to deviate from the usual rule that costs follow the event.

121. Accordingly, I propose to order that the defendant pay the plaintiff’s costs of this application as agreed or assessed. Should the parties wish to make an application for a different costs order, this may be done by way of a notice of motion filed within 14 days of the entry of these orders, pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).

Orders

122. Mr Robson sought that, in remitting the matter, the Court should direct that it be dealt with by a differently constituted review panel. In the circumstances of the present case and given the nature of the matters taken into account by the review panel, there does appear to me to be some substantial basis for adopting this approach and, in my view, the interests of justice require the making of an order to that effect, notwithstanding the general reluctance of the Court to interfere with the management of the Medical Assessment Service.

122. Accordingly, the orders of the Court are:

1. The Certificate in MAS Matter Number 2018/04/3059 given by the third defendant on 30 January 2020, as to whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%, is set aside.

2. The Certificate in MAS Matter Number 2018/01/3524 given by the third defendant on 30 January 2020, as to whether the treatment provided or to be provided to the injured person relates to the injury caused by the motor accident, is set aside.

3. The Certificate in MAS Matter Number 2018/01/3524 given by the third defendant on 30 January 2020, as to whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, is set aside.

4. The matters are remitted to the second defendant to be referred under s 63 of the Motor Accidents Compensation Act 1999 (NSW) to a different panel of at least three medical assessors for review and determination according to law.

5. The first defendant is to pay the plaintiff’s costs as agreed or assessed.

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Decision last updated: 05 November 2020