Sadr v Allianz Australia Insurance Ltd t/as Allianz Insurance

[2017] NSWSC 1718

Supreme Court

New South Wales

Medium Neutral Citation:	Sadr v Allianz Australia Insurance Ltd t/as Allianz Insurance & Anor [2017] NSWSC 1718
Hearing dates:	21 June 2017
Decision date:	12 December 2017
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	(1) The summons is dismissed. (2) The plaintiff is to pay the first defendant’s costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review of decision of proper officer of SIRA to refer “treatment dispute” to medical assessor – whether assessor had already determined treatment dispute in the course of assessing degree of impairment – whether proper officer had no power to refer treatment dispute
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 5, 44, 57, 57A, 58, 60, 61, 62, 63 131 Supreme Court Act 1970, s 69
Cases Cited:	AAI Limited (t/as AAMI) v State Insurance Regulatory Authority (NSW) (2016) 79 MVR 57; [2016] NSWCA 358 Insurance Australia Ltd t/as NRMA Insurance v Scott (2016) 92 NSWLR 741; [2016] NSWCA 138 Allianz Australia Insurance Ltd v Girgis (2011) 59 MVR 548; [2011] NSWSC 1424 Blair v Curran (1939) 62 CLR 464 Brown v Lewis (2006) NSWLR 587; [2006] NSWCA 87 Carl Zeiss Stiftung v Rayner and Keller Ltd (No 2) [1967] 1 AC 853 Hoystead v Commissioner of Taxation [1926] AC 155 Minister for Immigration and Citizenship v Li (2013) 249 CLR 323 Motor Accidents Authority of New South Wales v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 Pham v Shui (2006) 47 MVR 231; [2006] NSWCA 373 Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213
Texts Cited:	American Medical Association, Guides to the Evaluation of Permanent Impairment, Fourth Edition, Third Printing (1995)
Category:	Principal judgment
Parties:	Nahid Sadr (Plaintiff) Allianz Australia Insurance Ltd t/as Allianz Insurance (First Defendant) State Insurance Regulatory Authority (Second Defendant, submitting appearance)
Representation:	Counsel: Mr M Robinson SC with Mr K Andrews (Plaintiff) Mr K Rewell SC (First Defendant)   Solicitors: NSW Compensation Lawyers (Plaintiff) Moray & Agnew Lawyers (First Defendant) NSW Crown Solicitor (Second Defendant)
File Number(s):	2017/77323
Publication restriction:	Nil

Judgment

1. By summons filed on 13 March 2017, the plaintiff, Nahid Sadr, invokes this Court’s supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), in respect of the decision of the proper officer of the State Insurance Regulatory Authority (“SIRA”) on 19 December 2016 to refer an application by the first defendant, Allianz Australia Insurance Ltd (“Allianz”), for determination of a treatment dispute within the meaning of s 58 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) to a medical assessor for assessment. She claims, inter alia, relief in the nature of certiorari quashing that decision.

2. On 25 April 2014, the plaintiff was involved in a motor vehicle accident in which she sustained injuries to her neck. Allianz is the relevant compulsory third party insurer. SIRA is the second defendant in these proceedings and has filed a submitting appearance.

3. Although these proceedings for judicial review ultimately turn on a question of narrow compass, it is necessary to consider the procedural history of the matter in some detail in order to understand the basis of the plaintiff’s contention that the proper officer fell into jurisdictional error.

Relevant legislation

4. Before turning to consider the material before me, it is convenient to set out the relevant provisions of the Act. I commence by noting that the Act has as one of its objects to provide compensation for compensable injuries sustained in motor vehicle accidents and to encourage the early resolution of compensation claims: s 5(1)(b). Section 131 of the Act provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle accident is greater than 10%.

5. Part 3.4 of Chapter 3 of the Act governs the medical assessment of injuries caused by motor vehicle accidents. Section 57 provides that a “medical dispute” means a disagreement or issue to which Part 3.4 applies and that “medical assessment matters” means any of the matters referred to in s 58.

6. Section 58(1) of the Act sets out the types of disagreement between a claimant and an insurer to which Part 3.4 applies. These are described as: (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”, and (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%.” Matters (a) and (b) are “treatment disputes” and (d) is an “impairment dispute”. Thus there two types of medical dispute to which the Part applies.

7. Section 57A requires SIRA to establish a Motor Accidents Medical Assessment Service (“MAS”).

8. Section 60 of the Act provides that a “medical dispute” may be referred to SIRA for assessment under Part 3.4 by, inter alia, either party to the dispute.

9. Section 61 of the Act is, relevantly, in these terms:

“61 Status of medical assessments

(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

…”

10. Medical Assessment Guidelines have been issued pursuant to s 44(1)(d) of the Act. That sub-section provides that SIRA may issue guidelines with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4. Chapter 9 of the Guidelines governs the allocation and assessment of medical disputes by officers of SIRA.

11. Permanent Impairment Guidelines were issued by the Motor Accidents Authority (the predecessor to SIRA) on 1 October 2007 pursuant to s 44(1)(c) of the Act. Sub-clauses 1.7-1.9 apply to causation in the context of assessment of permanent impairment. They provide:

“Causation of injury

1.7 An assessment of permanent impairment is as prescribed under section 58(1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant’s symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: ‘Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following.

(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination’.

This therefore involves a medical decision and a non-medical informed judgment.

1.9 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question “Would this injury (or impairment) have occurred if not for the accident?” may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

[emphasis in original]

12. Chapter 4 of the Permanent Impairment Guidelines relates to spinal injuries. Paragraph 4.1 states that the “diagnosis-related estimate” method (“DRE”) is to be used in the evaluation of impairment of the spine. Guidance is given as to the way in which assessors are to apply the DRE method, with reference to Chapter 3.3 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. Clause 4.3 provides that the effect of surgery is to be taken into account in assessment of permanent impairment.

The hearing

13. Mr Robinson SC appeared for the plaintiff and Mr Rewell SC appeared on behalf of Allianz at the hearing before me.

14. Mr Robinson relied upon an affidavit of Steven Morgan sworn 29 March 2017. Annexed to that affidavit were 1092 pages of medical reports and other documents. Mr Robinson submitted that it was necessary for all of these documents to be before the Court because he relied upon a “no evidence” ground of review. Mr Rewell submitted that the matter could be resolved simply by having regard to the relevant provisions in the Act and that there was thus no need for me to read the majority of the documentation attached to Mr Morgan’s affidavit.

15. Although Mr Morgan’s affidavit was read on the application, I indicated to Mr Robinson that I would mark the two lever-arch folders for identification until the conclusion of the hearing and then consider which documents were relevant to my consideration.

16. An affidavit of Allianz’s solicitor with a number of exhibits was filed in these proceedings, but not ultimately read at the hearing. Instead, a bundle of documents annexed to that affidavit was tendered and marked as an exhibit. It comprised a number of documents relevant to the treatment dispute between the parties.

17. At the end of the hearing, I indicated to Mr Robinson that I would mark as Exhibit A all of the documents in the two-volume exhibit to the affidavit of Stephen Morgan, but that I did not propose to have regard to any documents upon which he did not rely. He relied upon the certificate of assessor Dr Ian Cameron dated 20 May 2016, two tranches of medical documents (comprising 718 pages) that were before Dr Cameron (in particular the operation report of Dr Kam), the application for an assessment of a permanent impairment dispute lodged by the plaintiff on 27 July 2015, the reply lodged by Allianz on 19 August 2015, various medical reports mentioned by Dr Cameron in the MAC, correspondence between the plaintiff’s solicitor, Allianz and SIRA concerning the plaintiff’s neck surgery and the possibility of a “treatment dispute”, the second application for assessment of a treatment dispute lodged by Allianz on 3 November 2016, and the reply to the application for assessment of a treatment dispute lodged by the plaintiff on 23 November 2016 with submissions.

Procedural history

18. The procedural history of this matter is as follows

19. On 4 March 2015, following Ms Sadr’s motor vehicle accident on 25 April 2014, she made a request for Allianz to pay for a C6/7 anterior cervical discectomy and fusion to be performed by a Dr Kam. I will refer to that procedure as “the surgery” or “the neck surgery”.

20. On 20 March 2015, Allianz refused to pay for the surgery.

21. On 30 June 2015, the plaintiff wrote to Allianz requesting that a decision be made concerning the proposed neck surgery.

22. On 7 July 2015, Allianz again refused to pay for the plaintiff’s neck surgery.

23. On 27 July 2015, the plaintiff lodged an application with SIRA for assessment of a permanent impairment dispute (“the impairment dispute”). That application was limited to a dispute between the parties as to whether or not the plaintiff suffers greater than 10% permanent impairment arising from the injury caused by the motor accident on 25 April 2014. There was no request in that application to assess the question of whether Allianz should pay for the surgery ultimately performed by Dr Kam.

24. On 19 August 2015, Allianz lodged a reply to the application for assessment of the impairment dispute.

25. On 16 November 2015 the plaintiff underwent neck surgery performed by Dr Kam at her own expense.

26. On 11 February 2016, Allianz lodged its first application for assessment of a treatment dispute in respect of the surgery of 16 November 2015 (“the treatment dispute”). This was said to be in anticipation of the plaintiff’s claiming the cost of the surgery as part of her damages claim. Allianz asserted in that application that the need for surgical treatment was not caused by any injury suffered in the motor accident on 25 April 2014 and that the surgical treatment was not reasonable and necessary in respect of any injury suffered in that accident.

27. On 18 February 2016, the plaintiff lodged a reply to the application for assessment of the treatment dispute. In submissions attached to that reply, the plaintiff’s solicitor asserted “…that there is presently no dispute or disagreement as to medical treatment and therefore the medical assessment service has no jurisdiction to entertain the insurer’s application.” It was also asserted in the submissions:

“The Claimant has not sought to challenge the insurer’s decision…dated 7 July 2015 [refusing to pay for the surgery]. The Claimant submits that accordingly, and at present, no dispute exists between the Claimant and the Insurer as to any aspect of her treatment…”

28. On 24 February 2016, SIRA wrote to Allianz indicating that the treatment dispute would be referred for assessment at the same time as the impairment dispute.

29. On 9 March 2016, Allianz’s solicitor wrote to SIRA contending that a treatment dispute did in fact exist. On 10 March 2016, the plaintiff’s solicitor wrote to Allianz’s solicitor and stated that there was presently no treatment dispute, but that there might be in the future. It was stated that, “We repeat our submissions to the State Insurance Regulatory Authority that no treatment dispute currently exists.”

30. On 21 March 2016, Allianz contended to SIRA that there was a treatment dispute.

31. On 23 March 2016, SIRA wrote to the plaintiff about her intention to claim for her neck surgery.

32. On 29 March 2016, the plaintiff’s solicitor wrote to SIRA advising that:

“We confirm that the Claimant, at this time, has no intention of asking the insurer to pay for the surgery. In those circumstances we repeat our previous submissions that no treatment dispute therefore currently exists…”

33. On 20 April 2016, a proper officer of SIRA dismissed Allianz’s application for assessment of the treatment dispute. Her reasons for doing so were:

“I note the Claimant submits that it has not sought to challenge the insurer’s decision and has funded the treatment herself. I refer to the letter from NSW Compensation Lawyers dated 29 March 2016 and note the Claimant further submits that “at this time, (she) has no intention of asking the Insurer to pay for the surgery.”

It appears that the Claimant is no longer pursuing or prosecuting the treatment application or claim [sic] payment for surgery. I have therefore dismissed the treatment application…”

[italics in original]

34. Thus, rather than both the treatment dispute and the impairment dispute being referred at the same time, only the impairment dispute was referred for assessment.

35. On 29 April 2016, Allianz served additional material in relation to the plaintiff’s impairment dispute.

36. On 3 May 2016, a medical assessor, Dr Ian Cameron, examined the plaintiff.

37. On 20 May 2016, Dr Cameron issued a medical assessment certificate (“MAC”) in which he assessed the plaintiff as having a degree of permanent injury of 25%, entirely related to her neck injury.

38. Dr Cameron stated in a portion of his certificate headed “Diagnosis and Causation”:

“The issue of causation with reference to the cervical spinal fusion that has been performed is clearly contentious. It is concluded that causation has been established because the subject motor accident has materially contributed to the injury to the cervical spine. It is a contributing cause which is more than negligible and it is unlikely that the fusion of the cervical spine would have been required, at the time that it was performed, if the motor vehicle crash had not occurred.”

39. On 4 July 2016, Allianz lodged an application with SIRA for review of the MAC by a medical assessors review panel pursuant to s 63 of the Act. On 18 July 2016, the plaintiff lodged a reply to this application.

40. On 10 August 2016, a proper officer of SIRA dismissed Allianz’s application for a review of Dr Cameron’s MAC.

41. On 15 September 2016, the plaintiff lodged an application for general assessment with SIRA’s Claims Assessment Resolution Service (“CARS”). In her schedule of damages, she sought the cost of the surgery performed by Dr Kam for which she had already paid.

42. On 3 November 2016, Allianz lodged a second application for assessment of a treatment dispute in respect of that surgery.

43. On 23 November 2016, the plaintiff lodged her reply to Allianz’s application for assessment of a treatment dispute.

44. On 19 December 2016, a proper officer of SIRA referred the treatment dispute to a different medical assessor for assessment. This is the decision in relation to which the plaintiff seeks judicial review. The decision is contained in a letter to the plaintiff’s solicitor and is in these terms:

“Dear Partners

I have read the material provided by the parties in this matter and have determined that this dispute is ready for assessment.

The following disputes will be referred:

1. Whether the C6/7 anterior cervical discectomy and fusion undertaken by Dr Kam on 16 November 2015 is causally related to the injury sustained in the subject accident.

2. Whether the C6/7 anterior cervical discectomy and fusion undertaken by Dr Kam on 16 November 2015 is reasonable and necessary in relation to the injury sustained in the subject accident.

I note the submissions from both parties in relation to whether accepting or rejecting this application would be procedurally unfair. I also note that there has been some discussion of the above surgery in the certificate issued by Medical Assessor Ian Cameron in relation to permanent impairment. However, the treatment dispute itself has not been assessed at MAS and therefore a binding certificate in relation to that treatment has not been issued under section 61 of the Motor Accidents Compensation Act 1999.

I am mindful of the three components that are necessary to demonstrate that a dispute exists between the parties and, therefore, whether an application for assessment of a treatment dispute can be accepted at MAS:

1. Treatment has been recommended by a health professional. In this case, the treatment has been both recommended and undertaken.

2. A request has been made by the claimant of the insurer. In this case, the claimant has listed the surgery in the CARS schedule of damages.

3. The insurer has declined the treatment. It appears that this has been the insurer’s position for some time, including both before and after the treatment was undertaken.

I am therefore satisfied that a dispute exists between the parties and MAS has jurisdiction to assess the matter.

I am cognizant of the fact that a certificate has previously been issued in respect of the permanent impairment relating to the cervical spine and that the outcome of any such treatment certificate may have an impact on that original certificate. A copy of the permanent impairment certificate will be forwarded to the Assessor assessing the treatment dispute, pursuant to clause 9.11.5.3 of the Medical Assessment Guidelines.

Ultimately whether the Assessor assessing the treatment dispute agrees with the Assessor who assessed the permanent impairment dispute is a matter of clinical judgment.”

45. Thus, two forms of “treatment dispute” within the meaning of s 58 of the Act were referred for assessment; namely, whether the treatment was causally related to the injury sustained in the relevant motor accident and whether the treatment was “reasonable and necessary” in relation to the injury sustained in that accident.

Grounds of review

46. The plaintiff’s summons alleges that a number of specific errors attenuated the decision of the proper officer of SIRA. The grounds of judicial review upon which the plaintiff relied were described at the hearing as being set out in paragraphs 6 to 11 of the “Grounds” section of the summons. Those paragraphs are in these terms:

1. The medical assessor’s determination determined the issue as to the plaintiff’s need for cervical fusion and the fact that it was caused by the motor vehicle collision.

2. The defendants are thereby bound by the decision of the medical assessor made on 20 May 2016 and they are estopped from seeking or making any further determination of the issues so resolved by the medical assessor’s decision.

3. In the making of the decision, the proper officer wrongly determined that there was a fresh or new “dispute” between the plaintiff and the first defendant insurer when in fact there was no new or fresh dispute or disagreement between the parties in the premises or at all within the meaning of the word “dispute” in sections 57, 58 or 60 of the Act.

4. There was no evidence before the proper officer of any new or fresh dispute or disagreement between the parties as at the time of making the decision and the decision is thereby invalid.

5. In making the decision, the proper officer wrongly considered that the issue concerning the plaintiff’s neck injury on 16 November 2015 had not been assessed by a medical assessor (as a treatment dispute) and that it therefore should be assessed. The proper officer fell into legal error here in that he misconstrued his statutory powers as to the binding nature of the medical assessment dated 20 May 2016. The decision should be set aside.

6. The decision is afflicted by legal unreasonableness within the meaning of Minister for Immigration and Citizenship v Li (2013) 249 CLR 323 at [68], [70], [71]-[74], [75], [82] and [85] and thereby invalid, in that in making the decision:

1. the proper officer wrongly determined that there was a new or fresh dispute, when there was not;

2. the proper officer wrongly determined that the dispute had not been already assessed at MAS, when it had (by a medical assessor on 20 May 2016);

3. acted irrationally or illogically in that he considered that the new “dispute” before him had not been assessed by the second defendant and that there was no binding certificate issued by a medical assessor, yet he also determined that any new medical assessment issued as a result of his decision “may have an impact on that original assessment”;

4. the decision bespeaks of vitiating error.

5. [emphasis in original]

Submissions on behalf of the plaintiff

47. Mr Robinson of senior counsel submitted that the MAC issued on 20 May 2016 certified that the motor vehicle accident gave rise to a degree of permanent impairment of greater than 10% in relation to the soft tissue injury to the plaintiff’s cervical spine (with spinal fusion) and soft tissue injury to the lumbar spine. This entitles the plaintiff to be assessed for non-economic loss in due course. If she had been assessed as having a degree of permanent impairment as a result of the injury caused by the motor accident of 10% or less, she would not have been entitled to anything for non-economic loss. The MAC is conclusive evidence as to the matters certified within it. In circumstances where there has been no successful review of that assessment, it remains operative and valid.

48. It was submitted that included in the findings in the MAC of 20 May 2016 were determinations that the surgery was appropriate and that the surgery was caused by the motor accident; that is, that causation had been established (see above at [38]). These matters were certified and thus constitute binding determinations that prevent any further consideration of any treatment dispute. It was submitted that Allianz’s second application for assessment of a treatment dispute was not a proper application because the matter had already been determined and there was no dispute remaining.

49. It was submitted that, by reason of the binding and conclusive nature of the MAC, the proper officer was estopped from referring the treatment dispute to an assessor for determination of whether the accident caused the need for the surgery. Mr Robinson noted that Dr Cameron had applied the Permanent Impairment Guidelines as to causation (extracted above at [11]). Mr Robinson relied upon the decisions in Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 (at [24]) as to the distinction between “ultimate” and “evidentiary” facts for the purposes of estoppel; Blair v Curran (1939) 62 CLR 464 (at 532); Hoystead v Commissioner of Taxation [1926] AC 155 (at 165, 170); and Carl Zeiss Stiftung v Rayner and Keller Ltd (No 2) [1967] 1 AC 853 (at 936).

50. The plaintiff also submitted that there has been an abuse of process. Mr Robinson complained that Allianz is seeking to re-litigate the question of causation of the surgery in circumstances where Dr Cameron determined that question conclusively. It was submitted that permitting a further assessor to determine the treatment dispute would give rise to the potential for conflicting determinations and that the proper officer accepted that fact in his reasons for decision. The referral of the matter for assessment of a treatment dispute in relation to the surgery would have only two possible outcomes; that is, that the surgery is found to be reasonable and necessary and causally related to the accident (consistent with the MAC), or it is not. If the latter outcome occurred it would be in direct contradiction to the MAC, which is conclusive as to the matters certified within it by reason of s 61(2) of the Act.

51. Complaint was made in written submissions that the proper officer failed to consider the submissions as to abuse of process that were attached to the plaintiff’s reply to the Allianz’s application for determination of a treatment dispute.

52. Mr Robinson submitted that the proper officer wrongly considered that Dr Cameron had not assessed the issue of the neck surgery as a treatment dispute. He submitted that the proper officer fell into “legal error” by misconstruing his statutory powers; namely, as to the binding nature of the assessment of 20 May 2016. Alternatively, it was submitted that this constituted a constructive failure to exercise a statutory duty and that the decision should be set aside on that basis.

53. As for the “no evidence” ground, Mr Robinson submitted that there was no evidence before the proper officer of any new or fresh dispute or disagreement between the parties as at the time of making the decision to refer the treatment dispute and for that reason the decision is invalid.

54. It was submitted that for the proper officer to contend that the mere filing of a claim by the plaintiff for a damages award under the Act constitutes a new or fresh dispute is wrong factually and a misconstruction of what constitutes a “dispute” within the meaning of the Act. Dr Cameron had already resolved the dispute.

55. It was also submitted on behalf of the plaintiff that the decision is affected by legal unreasonableness within the meaning of Minister for Immigration and Citizenship v Li in that, in making the decision, the proper officer determined that there was a new or fresh dispute when there was not, wrongly determined that the dispute had not already been assessed at MAS, and acted irrationally or illogically in considering that the “dispute” had not been assessed, yet that a new assessment “may have an impact on the original assessment” (extracted above at [44]).

56. At the hearing before me, Mr Robinson did not accept that there was a denial of procedural fairness in Dr Cameron’s dealing with a treatment dispute at the same time as the impairment dispute, and that this concern actuated the decision of the proper officer of SIRA to refer the treatment dispute for assessment. He submitted that there was a great deal of material before Dr Cameron relating to the surgery, including an operation report. In practical terms, there was a treatment dispute before Dr Cameron and it was open to him to determine it.

Submissions on behalf of the Allianz

57. It was submitted on behalf of Allianz that each of the plaintiff’s grounds of review is misconceived and based on a misunderstanding of the relevant provisions of the Act, the nature and effect of the MAC, and the role and authority of the proper officer.

58. Mr Rewell of senior counsel submitted the only medical assessment matter, within the meaning of s 58(1) of the Act, that was referred to Dr Cameron was the impairment dispute. He contended that the plaintiff’s argument amounts to an assertion that an assessment of one medical assessment matter may conclusively determine another medical assessment matter. He submitted that the meaning of s 58 is clear and that there is no room for the assertion that Dr Cameron’s MAC is conclusive evidence of a matter that was not in fact referred to him for assessment. The MAC is conclusive only as to the degree of permanent impaired suffered by the plaintiff. He submitted that there is no statutory warrant for the assertion that determination of an impairment dispute can subsume another type of medical assessment matter.

59. It was submitted that there may permissibly be inconsistency between determination of a treatment dispute and determination of an impairment dispute, although such inconsistency is likely to be rare and is, in any event, not relevant to judicial review. Mr Rewell submitted that the determination of degree of permanent impairment does no more than open the ”gateway” to damages for non-economic loss. The outcome of an impairment or treatment dispute may bind the claims assessor or judge to award or not to award damages under a particular head, but it does no more than that. It was further submitted that there would have been no possibility of inconsistency as to the causation of surgery had the plaintiff not prevented the referral of the treatment dispute for assessment in February 2016.

60. It was noted that inconsistency in the outcomes of assessment of impairment and treatment disputes may be resolved by further medical assessment under s 62 of the Act or by referral to a Review Panel under s 63.

61. Mr Rewell submitted that the terms “fresh dispute” and “new dispute” have no significance under the Act; there are only disputes to which Part 3.4 of the Act applies. It was contended that s 62 does not apply to this matter because no treatment dispute was ever referred for assessment.

Consideration

62. The error for which the plaintiff contends is ultimately of narrow compass. It is asserted that the proper officer fell into jurisdictional error when he referred the treatment dispute to an assessor to be determined. Although six separate grounds of review were relied upon in the summons, they are all, in effect, different characterisations of the same error: that the proper officer erred in failing to have regard to the fact that the MAC issued on 20 May 2016 was final and conclusive of the treatment dispute. It seems to me that if I am not satisfied that the MAC was conclusive of the treatment dispute, then the summons must be dismissed and there is no need for me to consider each ground of review separately.

63. The plaintiff’s contention is that, on the facts of this particular case, the MAC was conclusive not only of the impairment dispute referred to the assessor but also of two matters that were not before the assessor; namely, whether the neck surgery was “reasonable and necessary” and whether the surgery was caused by the accident within the meaning of s 58(1)(a) and (b) of the Act. There are a number of difficulties with this contention.

64. First, as a matter of construction, the statutory framework of Part 3.4 of the Act does not support the plaintiff’s submission. Rather, it lends support to the conclusion that a medical dispute must be formally before an assessor in order for it to be determined. That Part contemplates the determination of “medical assessment matters”, being disagreements between claimants and insurers as to the specific matters in sub-ss 58(1)(a), (b) and (d) of the Act. Section 61(1) provides that, “The medical assessor or assessors to whom a treatment dispute is referred is or are to give a certificate as to the matters referred for assessment.” Similarly, Chapter 8 of the Medical Assessment Service Guidelines deals separately with the procedures for making application for assessment of a treatment dispute and assessment of an impairment dispute. Different forms are apparently available for different types of medical dispute.

65. Mr Robinson accepted during the hearing that there was no treatment dispute on foot before the assessment of permanent impairment occurred. Despite this, he advanced a submission that the treatment dispute was, practically speaking, before Dr Cameron for assessment nonetheless. He relied upon the fact that there was a great deal of material relevant to the neck surgery amongst the medical reports upon which the parties relied in the impairment dispute. The difficulty with this submission, as Mr Rewell pointed out during the hearing of this matter, is that that material was relevant to the impairment dispute because of the need to use the DRE method to assess the degree of permanent impairment caused by spinal injuries. As Dr Cameron stated in the MAC, a cervical fusion “…is assessed as equivalent to ‘multi-level structural compromise’ with reference to this spinal region, and therefore DRE Cervicothoracic Category IV (25% WPI) is the appropriate evaluation.”

66. The plaintiff’s argument is based upon a misconception as to the conclusive nature of a MAC. An impairment dispute was referred to Dr Cameron; what he certifies in relation to that impairment dispute is conclusive as to permanent impairment, but nothing else. Mr Robinson was unable to describe why the MAC was binding with respect to treatment beyond submitting that Dr Cameron considered the treatment dispute on his own motion. This is inconsistent with the terms of the Act as to the basis upon which medical assessment matters are referred to assessors.

67. Second, the documentation before me, extracted above at [27], [29] and [32], clearly establishes that the plaintiff blocked the referral of the treatment dispute to an assessor prior to the assessment of permanent impairment on the basis that she did not seek that Allianz pay for her surgery. The plaintiff’s solicitor repeatedly informed SIRA that she would not be pressing an application that the insurer pay for the operation performed by Dr Kam. It is quite clear from the documentation before me that the impairment dispute alone was referred to Dr Cameron for assessment. The plaintiff relied upon the fact that her solicitor’s assurance that there was no treatment dispute was modified by the words “at this time”. However, it remains the case that the plaintiff did not claim that any treatment dispute existed at any time until the MAC was issued on 20 May 2016 and now claims that it was resolved by that MAC in any event. It is difficult to see how the words “at this time” in the correspondence assist the plaintiff in these circumstances.

68. Allianz lodged the application for assessment of a treatment dispute on 11 February 2016 because it was on notice that the plaintiff had made a claim that it pay for her neck surgery. Allianz anticipated, in the event correctly, that the plaintiff may make a subsequent claim for damages in relation to that operation. In circumstances where the insurer disputed that that treatment was both caused by the injury and necessary and reasonable, Allianz was entitled to have that aspect of the dispute determined. The plaintiff denied it the opportunity to do so at the relevant time.

69. The plaintiff has not been able to identify any documents in which she clearly raised the fact that she would be claiming for the neck surgery prior to the issue of the MAC. She was legally represented throughout the process. Given that the only “medical assessment matter” that was formally before Dr Cameron was the impairment dispute, it is difficult to accept the plaintiff’s contention that the MAC finalised the treatment dispute.

70. Third, none of the decisions relied upon by the plaintiff support her argument. In fact, counsel for the plaintiff relied upon the same paragraphs of the same decisions in support of its position on the issue of the finality of the MAC as did counsel for Allianz. The decisions in Brown v Lewis (2006) NSWLR 587; [2006] NSWCA 87, Pham v Shui (2006) 47 MVR 231; [2006] NSWCA 373 and Owen v Motor Accidents Authority (NSW) (2012) 61 MVA 245; [2012] NSWSC 650 all support Allianz’s contention that a certificate as to permanent impairment is conclusive of the matters that it certifies. In Brown v Lewis (at 591 [20]), the Court of Appeal held that the function of an assessment of permanent impairment is to determine whether the door to damages for non-economic loss is “unlocked”. In that decision, Mason P (with whom Santow and McColl JJA agreed) stated (at 591 [19]) that, “Only that which is certified has the evidentiary effects stipulated in subs (2) and subs (3) respectively.”

71. Justice Santow in Pham v Shui cited the judgment of Mason P in Brown v Lewis, stating (at 245-246 [90]) that:

“This certificate was required for the purpose of determining whether, within s 131 of the MACA, damages could be awarded for non-economic loss. The certificate was conclusive that the degree of permanent impairment of the injured person was not greater than 10%. I consider that s 61(2)(a) can have no other meaning than that the certificate’s conclusivity applies only to the bare conclusion that the degree of permanent impairment for that purpose was (or was not) greater than 10%.”

72. Both parties also relied upon the decision of Campbell J in Owen v Motor Accidents Authority (NSW) (2012) 61 MVA 245; [2012] NSWSC 650. His Honour observed at 253-254 [32], [34]-[35] :

“[32] It must be well borne in mind that the purpose of medical assessment under Pt 3.4 of the Act is to conclusively resolve the medical assessment matter.

…

[34] In the present case, the medical assessment matter is determinative of the plaintiff’s entitlement to claim damages for non-economic loss: ss 131 and 132 of the Act.

[35] It should also be emphasised that the certificate is conclusive evidence for that purpose only…”

[emphasis added]

73. These decisions all confirm that the MAC is conclusive only of the medical assessment matter before the assessor.

74. The plaintiff relied upon a number of further decisions in support of his position that the MAC is conclusive of the treatment dispute in this matter. Those decisions were Allianz Australia Insurance Ltd v Girgis (2011) 59 MVR 548; [2011] NSWSC 1424 at 553 [11] and 554-562 [16]-[43], Motor Accidents Authority of New South Wales v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 at 136 [63], 138 [74]-[75], 141 [92] and 142 [102], and AAI Limited (t/as AAMI) v State Insurance Regulatory Authority (NSW) (2016) 79 MVR 57; [2016] NSWCA 358 at 91 [158]. I did not find any of those authorities to be of assistance for the purposes of this matter. They all restate the principle that questions of permanent impairment and causation under Pt 3.4 of the Act are matters for determination by a medical assessor, and that such determinations are conclusive. These decisions all confirm that a MAC issued under s 60 of the Act is conclusive of the matters referred to the assessor. They go no further than that.

73. As the proper officer noted in her reasons extracted above at [44], there may be a difference in outcome as between the two MACs, but the question of whether the second assessor agrees with Dr Cameron “is a matter of clinical judgment.” This is no doubt an unsatisfactory result. However, the Act does not appear to require the resolution of a treatment dispute prior to an impairment dispute, although as a matter of practice this is a more logical way to proceed. It seems to me that any treatment would occur in the period immediately following the injury and that it would be at the conclusion of that treatment, such as surgery, that an assessor would be in a position to make an assessment as to permanent impairment. The fact that this is a logical way to proceed does not mean that it would not be open to a claimant to raise a treatment dispute after the resolution of the impairment dispute.

74. I note that Allianz did not suggest that it was not open to the plaintiff to apply for the referral of a treatment dispute after the finalisation of the impairment dispute, as the plaintiff’s solicitor foreshadowed may occur. Rather, the argument was that, in circumstances where the treatment dispute had never been resolved, it could not be said that the proper officer erred in referring that aspect of the matter for assessment.

75. The complicating factor in this matter is that the plaintiff was entitled to be assessed as having a degree of permanent impairment of 25% if the assessor was satisfied that she had undergone spinal fusion that was caused by the motor vehicle accident. Thus it can be seen that the system created by Part 3.4 of the Act would appear to give rise to potentially conflicting MACs certifying treatment disputes and impairment disputes where the claimant has suffered a spinal injury and impairment is to be determined according to the DRE categories.

76. It seems to me prudent that, in matters where an assessor will be required to have regard to disputed questions of treatment in order to resolve an impairment dispute, all outstanding medical disputes be resolved at the same time even if one of the parties resists this. No criticism of the proper officer who determined on 20 April 2016 that no treatment dispute existed is intended in this regard, but the plaintiff must have realised at that time that the impairment dispute was closely tied to the treatment dispute. It is difficult to understand why she resisted having the treatment dispute referred at the same time as the impairment dispute so strongly.

77. The fact remains that assessments of treatment and impairment disputes are conclusive of different matters. That an assessor may need to consider material relevant to the question of treatment in order to resolve an impairment dispute does not lead to a conclusion that he or she of necessity determines any outstanding treatment dispute that has not been referred.

78. The decision of the proper officer that the treatment dispute had never been resolved is consistent with the documents before me and with s 61 of the Act, as construed in the line of authority beginning with Brown v Lewis and reiterated in Pham v Shui. I am not satisfied that the MAC issued on 20 May 2016 is conclusive of the treatment dispute. No error has been established in this regard.

ORDERS

81. I make the following orders:

1. The summons is dismissed.

2. The plaintiff is to pay the first defendant’s costs.

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Decision last updated: 17 April 2018