Shmailov v AAI Limited

[2020] NSWSC 887

Supreme Court

New South Wales

Medium Neutral Citation:

Shmailov v AAI Limited [2020] NSWSC 887

Hearing dates:

19 May 2020

Date of orders:

10 July 2020

Decision date:

10 July 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court declares that:

(1) The decision of the proper officer dated 29 September 2019 is vitiated by an error of law and jurisdictional error.

The Court makes an order:

(2) In the nature of certiorari removing into the Court the decision of the proper officer dated 29 September 2019 and quashing that decision.

The Court further orders that:

(3) The matter is remitted to the State Insurance Regulatory Authority to be determined according to law.

(4) The first defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Review of the decision of a proper officer – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – Whether the proper officer asked herself a wrong question by determining whether the assessment was incorrect in a material respect, not whether there was reasonable cause to suspect that it was

Legislation Cited:

Motor Accident Permanent Impairment Guidelines, cl 1.220

Motor Accidents Compensation Act 1999 (NSW), ss 44, 58, 62, 63(3), 131

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), r 59(4)

Cases Cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 93 ALR 1

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22

Craig v State of South Australia (1995) 184 CLR 163; (1995) 131 ALR 595

Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848

Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 145

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; (1986) 66 ALR 299

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 136 ALR 481

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1

Category:

Principal judgment

Parties:

Leva Ari Shmailov (Plaintiff)
AAI Limited t/as AAMI (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
Bec Ingleton Proper Officer of the Motor Accidents Medical Assessment Service (Third Defendant)

Representation:

Counsel:
R de Meyrick (Plaintiff)
J Turnbull SC (First Defendant)

Solicitors:
Grieve Watson Kelly Lawyers (Plaintiff)
Moray & Agnew Lawyers (First Defendant)
Crown Solicitor’s Office, Submitting Appearance (Second & Third Defendants)

File Number(s):

2019/335736

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a judicial review of the decision of a proper officer of the State Insurance Regulatory Authority (“SIRA”).

2. By summons filed 25 October 2019, the plaintiff seeks firstly, an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside the determination and reasons dated 29 September 2019 given by the proper officer of the Medical Assessment Service (“MAS”) appointed under the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”); and secondly, an order in the nature of mandamus remitting the matter to SIRA for referral to a review panel of three assessors.

3. The plaintiff is Leva Ari Shmailov. The first defendant is AAI Limited t/as AAMI (“the insurer”). The second defendant is SIRA. The third defendant is Bec Ingleton, a proper officer of the MAS (“the proper officer”). The second and third defendants have filed submitting appearances.

Background

4. On 24 April 2014, the plaintiff was injured in a motor vehicle accident (“the accident”) when a car struck the motorcycle he was riding. The impact caused the plaintiff to fall onto the road, where his head collided with the pavement and was then struck by the front wheel of the car. The insurer is the compulsory third party insurer of the vehicle at fault in the accident.

5. As the plaintiff’s entitlement to damages for non-economic loss pursuant to s 131 of the MAC Act was in dispute, a medical assessment of his degree of permanent impairment was required to determine whether his whole person impairment (“WPI”) exceeded 10%.

6. The plaintiff first made an application to the MAS for assessment of his WPI pursuant to s 58(1)(d) of the MAC Act. He alleged that he sustained a number of injuries as a result of the accident, including psychological injuries.

7. On 30 May 2018, psychiatrist Associate Professor Anthony Samuels (“the medical assessor”) first assessed the plaintiff and issued a medical assessment certificate (“the 2018 medical assessment”). He diagnosed the plaintiff with “adjustment disorder with mixed anxiety and depressed mood” and found that the plaintiff had 6% WPI.

8. On 27 December 2018, the plaintiff lodged an application for a further assessment of his permanent impairment with the MAS, on the basis that his injuries had deteriorated in a manner which was capable of altering the outcome of the dispute.

9. On 29 May 2019, the medical assessor re-assessed the plaintiff and found that his condition had deteriorated. On 31 May 2019, the medical assessor issued a second medical assessment certificate (“the 2019 medical assessment”) assessing the plaintiff with “Concentration, Persistence and Pace” from “Class 2” to “Class 3”, resulting in a finding of 7% WPI. Although the medical assessor also found deterioration in respect of “Social and Recreational Activities” and “Adaption”, he still assigned the plaintiff “Class 2” for “mild” impairment in these categories. I will refer to this assessment in more detail later in this judgment.

10. The plaintiff filed an application for review of the 2019 medical assessment.

11. On 29 September 2019, the proper officer dismissed the plaintiff’s application and published reasons for her decision. I will also refer to this assessment in greater detail later in this judgment. It is this decision that is the subject of this judicial review in this Court.

The legislation and guidelines

12. Before I turn to the decisions of the medical assessor and the proper officer, it is necessary that I set out several provisions of the MAC Act and the relevant guidelines.

13. Section 58 of the MAC Act relevantly reads:

“58 Application

(1) This Part 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”):

...

(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%.

…”

14. Section 62 of the MAC Act relevantly reads:

“62 Referral of matter for further medical assessment

(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:

(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or

…

(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.

(1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority).

…”

15. Section 63 of the MAC Act provides for a review of a medical assessment by a review panel. Section 63(3), which is of particular relevance to these proceedings, gives the proper officer of the MAS a “gatekeeper” function when a review application is received. Section 63 of the MAC Act reads:

“63 Review of medical assessment by review panel

(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.

…

(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.

…” (My emphasis)

16. The Motor Accidents Authority may issue guidelines described as Medical Assessment Guidelines (“the MA Guidelines”) with respect to various matters, including the procedures for referral of disputes for, and review of, assessments under Part 3.4 of the MAC Act. The following clauses of the MA Guidelines issued under s 44(1)(d) of the MAC Act are relevant to these proceedings:

“Proper Officer Determination

14.6 For the purposes of section 62(1A) the word ‘material’ includes that it is relevant and capable of altering the outcome of a dispute about:

...

14.6.3 Permanent impairment, from ‘not greater than 10% whole person impairment’ to ‘greater than 10% whole person impairment’ or vice-versa.

14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application.

14.8 The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2.”

17. In relation to s 63(3) of the MAC Act, counsel for the plaintiff referred to two cases: Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 145 (“Meeuwissen”) and Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848 (“Elliott”).

18. In Meeuwissen, the Court of Appeal (per Basten JA with Beazley P and Sackville AJA agreeing) set out the principles which inform judicial review of a proper officer’s function at [19] to [24], summarised as follows:

1. the question of correctness relates not to the certificate which results from the medical assessment, but to the medical assessment itself;

2. the phrase “in a material respect” in s 63(3) of the MAC Act is not as precise as the statutory test fixed by s 62(1A) concerning referrals for further assessment;

3. it is generally accepted that the phrase “in a material respect” means “the error is material to the decision in the sense that it contributes to it, so that, but for the error, the decision would have been, or might have been, different”: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (“Bond”) at 353;

4. the question of materiality connoted by that phrase extends to errors that could not be dismissed “as trivial, insignificant or immaterial”;

5. the power conferred on the proper officer is not discretionary once the requisite state of satisfaction is achieved; if that occurs, the matter has to be referred for review; and

6. it is not for the proper officer to decide whether the medical assessment is incorrect in a material respect, but only that there is reasonable cause to suspect that it is.

19. Finally, in Meeuwissen, the Court of Appeal held at [24] that the power conferred on the proper officer is that of a gatekeeper, not a decision-maker. Basten JA continued:

“[24] …Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts.”

20. In Elliott, Campbell J stated at [59] to [62]:

“[59] It is likely that a state of satisfaction that there is reasonable cause to suspect that the assessment was incorrect need not rise above anything other than a state of unease on the part of the proper officer about the correctness of the assessment reading the assessor’s reasons and considering the applicant’s criticisms of them. It may be, as I have said already, that taking the accumulation of various complaints together might produce that state of uneasiness in a way which is not apparent when one considers each particular individuality. The weight of the whole argument may be greater than the sum of its parts.

[60] Moreover, I am of the view that the proper officer, with respect, has overstated his role if one has regard to what Basten JA said at [23] of Meeuwissen. It is not for the proper officer to decide the correctness of the assessment. That decision is made in appropriate cases by the review panel and in making that decision the review panel is not restricted to the particulars set out in the application for a review. Rather the review panel is bound to carry out a new assessment of all the matters with which the medical assessment was concerned. Given that there are valuable rights at stake it is worth repeating what Basten JA said at [23] that ‘Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed.’ The reason for that is that ‘the injured person is entitled to a decision reached in accordance with a proper understanding of the statutory scheme and the facts’. It seems to me that the proper officer has sought to impute the phrase ‘in a material respect’ with too high a degree of precision.

[61] Really the emphasis is on whether there is a reasonable ground for the relevant suspicion, and given the significant inconsistency which the proper officer identified, as I have said, it was a misconception of his proper role for him to then decide in fact whether or not the correction of that error would make a difference.

[62] I am satisfied that the plaintiff has demonstrated jurisdictional error in the exercise of the proper officer's function particularly by him posing the wrong question for determination.”

The guidelines for the assessment of the degree of permanent impairment

21. Also relevant to this judicial review are the Motor Accident Permanent Impairment Guidelines (“the Permanent Impairment Guidelines”), issued by SIRA for assessing the degree of permanent impairment arising from motor accident injuries.

22. In Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 (“Boyce”) the Court of Appeal held that a failure to comply with the Permanent Impairment Guidelines can constitute a constructive failure to exercise jurisdiction: see Boyce at [9], [14] to [22], [41], [44], [49] to [51], [66] per Basten JA (Macfarlan JA agreeing) and at [108] per Sackville AJA.

23. Clauses 1.1 and 1.2 of the Permanent Impairment Guidelines state:

“1.1 These Motor Accident Permanent Impairment Guidelines have been developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with Section 133(2)(a) of the Motor Accidents Compensation Act 1999 (NSW) (the Act).

1.2   These Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) (AMA4 Guides). However, there are some very significant departures from that document in these Guidelines. A medical assessor undertaking impairment assessments for the purposes of the Act must read these Guidelines in conjunction with the AMA4 Guides. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA4 Guides should be followed. In particular, chapters 1 and 2 of the AMA4 Guides should be read carefully in conjunction with clauses 1.1 to 1.46 of these Guidelines. Some of the examples in the AMA4 Guides are not valid for the assessment of impairment under the Act. It may be helpful for medical assessors to mark their working copy of the AMA4 Guides with the changes required by these Guidelines.”

24. Under the Permanent Impairment Guidelines, behavioural consequences of a psychiatric condition are assessed according to the Psychiatric Impairment Rating Scale (“PIRS”). Each of the six categories on the PIRS evaluates an area of functional impairment. The three categories which are relevant to this judicial review are “Concentration, Persistence and Pace”, “Social and Recreational Activities” and “Adaptation”.

25. Clause 1.220 of the Permanent Impairment Guidelines states:

“Impairment in each area of function is rated using class descriptors. Classes range from 1 to 5 according to severity. The standard form (Figure 2) must be used when scoring the PIRS. The classes in each area of function are described through the use of common examples. These are intended to be illustrative rather than literal criteria. The medical assessor should obtain a history of the injured person’s pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury. The medical assessor should take into account variations in lifestyle due to age, gender, cultural, economic, educational and other factors.” (My emphasis)

26. Thus, under cl 1.220 of the Permanent Impairment Guidelines, the “common examples” of the class descriptors are intended to provide a medical assessor with illustrative, rather than literal criteria.

27. Table 12 of the Permanent Impairment Guidelines sets out the common examples in relation to “Social and Recreational Activities”. It relevantly reads:

Class 2	Mild impairment. Able to occasionally go out to social events without needing a support person, but does not become actively involved; for example, in dancing, cheering favourite team.
Class 3	Moderate impairment. Rarely goes to social events, and mostly when prompted by family or close friend. Unable to go out without a support person. Not actively involved, remains quiet and withdrawn.

28. Table 15 of the Permanent Impairment Guidelines sets out the common examples in relation to “Concentration, Persistence and Pace”. It relevantly reads:

Class 2	Mild impairment. Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes; for example, then feels fatigued or develops headache.
Class 3	Moderate impairment. Unable to read more than newspaper articles. Finds it difficult to follow complex instructions; for example, operating manuals, building plans, make significant repairs to motor vehicle, type detailed documents, follow a pattern for making clothes, tapestry or knitting.

29. Table 16 of the Permanent Impairment Guidelines sets out the common examples for “Adaptation”. It relevantly reads:

Class 2	Mild impairment. Able to work full time in a different environment. The duties require comparable skill and intellect. Can work in the same position, but no more than 20 hours per week; for example, no longer happy to work with specific persons, work in a specific location due to travel required.
Class 3	Moderate impairment. Cannot work at all in same position as previously. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different; for example, less stressful.

The 2018 medical assessment

30. The plaintiff was assessed twice by the medical assessor.

31. In the 2018 medical assessment, the medical assessor assessed the plaintiff as suffering from “adjustment disorder with mixed anxiety and depressed mood”.

32. Under the categories “Concentration, Persistence and Pace”, “Social and Recreational Activities” and “Adaptation”, the medical assessor assessed the plaintiff as “Class 2”. Having considered the plaintiff’s presentation and history, the medical assessor assessed the plaintiff’s total WPI for psychiatric injuries caused by the accident at 6%.

The further medical report that was before the medical assessor in the 2019 medical assessment

33. On 18 October 2018, the plaintiff attended an appointment with consultant psychiatrist Associate Professor Michael Robertson. Associate Professor Robertson had previously written a report concerning the plaintiff’s condition in June 2017.

34. On 23 October 2018, Associate Professor Robertson wrote a report based on his evaluation of the plaintiff’s condition. In that report, Associate Professor Robertson opined (CB 168-169):

“[The plaintiff] reported that while he continued to work in his business, this was only between 16 and 20 hours per week and he had handed over the bookkeeping and financial management to his accountant. He describes making frequent errors in his business, for example, he made a costly error in calculating the quantity of fabric required for an upholstery quote, which placed a considerable strain on his business’s cash flow. Beyond this, he misplaces belongings (he left his telephone in my office when he left after the consultation) and he is unable to read a page before losing focus. He reports, much to his chagrin, he has lost fluency in his other languages (I not [that the plaintiff] is a polyglot and speaks Russian, Hebrew, English and an Azerbaijani dialect).

[The plaintiff] describes having periods of ‘dark moments’ and paroxysms of hopelessness and demoralisation that extend beyond the severity of his headache. He feels that he is ‘not functioning’. He described propensity to symptoms of anxiety, usually physical anxiety symptoms. He is irritable and easy to anger. He continues to experience driving phobia and social withdrawal. He has lost confidence and is no longer dating. He has diminished self-esteem and has constricted his social interactions.

…

Social/Recreational: [The plaintiff] no longer seeks female company and is no longer dating. He only consults with a few close friends. He regularly attends his local synagogue in Bondi Junction, but leaves after the service and does not interact with other worshippers. He socialises with his children, but tends to lose interest. He no longer goes salsa dancing or out for dinners as reported to [the medical assessor].

…

Employment/Adaptation: [The plaintiff] reports that he is working around 20 hours per week in his usual job. He rarely participates in the running of the business, often passing much of the work on to his employee. He describes diminished productivity and reduced profitability of his business.

…

35. Under the heading “Assessment”, Associate Professor Robertson opined (CB 171):

“It would seem that there has been deterioration in some aspects of [the plaintiff’s] presentation since examined by [the medical assessor]. In particular, there has been a decline in social and recreational activities and his capacity to perform paid employment.”

36. Under the categories “Concentration, Persistence and Pace” and “Social and Recreational Activities” on the PIRS, Associate Professor Robertson assessed the plaintiff as “Class 3”. Under the category “Adaptation”, he assessed the plaintiff as “Class 2”. On the basis of his evaluation, Associate Professor Robertson assessed the plaintiff’s total WPI for psychiatric injuries caused by the accident at 15%.

The 2019 medical assessment

37. On 27 December 2018, the plaintiff lodged an application for a further assessment of his permanent impairment with the MAS, on the basis that his injuries had deteriorated in a manner which was capable of altering the outcome of the dispute (CB 179). The plaintiff included the report of Associate Professor Robertson with his submissions to the medical assessor in relation to his application for further assessment.

38. In the 2019 medical assessment, the medical assessor re-assessed the plaintiff and determined that his condition had deteriorated.

39. Under the heading “Pre-Accident Functioning”, the medical assessor stated (CB 207):

“As noted in my prior report, [the plaintiff] told me that before the accident he had no problems; he was riding his motorbike, he would go Salsa dancing, go out to music venues, dinners and it was ‘full on’. He was seeing his children and he used to go out to his ex-wife’s for dinner. He said he was very active and a lot more sociable. He would read and watch television and said now he cannot even finish a page but he said the Botox gives him some stability without side effects.

40. Under the heading “Current Functioning”, the medical assessor wrote (CB 208-209):

“In terms of activities of daily living, he is able to attend to his self-care but he said he often does it in ‘slow motion’.

In terms of social and recreational activities, he said he used to be very social but he is less social now. The Synagogue is his main outlet. He said his life had changed. He does, however, visit friends and they visit him. He sees his family and he has recently travelled to Israel to see family and he enjoyed that.

In terms of travel, [the plaintiff] will drive short distances but had a minor accident last week and is avoiding driving. He prefers to take Uber. He does not ride a motorbike. He will take buses or trains. He has been overseas.

In terms of social functioning, his relationship ended after the accident. [The plaintiff] is however close to his family, he has visited his family in Israel and he said he has not lost friends, he just has less contact with them.

In terms of concentration, persistence and pace, he said that he is much less proficient in other languages and his memory is not as good but when the Botox is working, he can feel quite good.

In terms of adaptation, [the plaintiff] is working 24 hours per week, he is much slower and he delegates tasks. He is taking on smaller jobs.”

41. Under the heading “5. Review of Documentation”, the medical assessor relevantly stated (CB 211-212):

“I note the report of Dr Michael Robertson, dated 6 June 2017. He found a man with persistent depressive disorder and seems to be as a consequence of subject motorbike accident [sic]. He noted a clinical quandary raised by a number of assessing clinicians as to whether there had been a mild traumatic brain injury or post concussive syndrome. He noted he did not meet criteria for the MAA Guidelines in terms of traumatic brain injury. It was Dr Robertson’s view that the observed pattern of cognitive impediment and other problems which will persist in the untreated depression [sic]. He found on cognitive testing some intrinsic impairment to short-term memory and effort which appeared to be at disproportionate degree of concern about cognitive functioning compared to what was observable, and more consistent with cognitive impairment attributable to depressive illness rather than organic mental syndrome. Dr Robertson believed that there was a strong argument in neurological investigation. He also noted that [the plaintiff] had experienced significant difficulties in his business, particularly impairment in productivity which was likely to have had financial costs and his relationship had broken down. He rated [the plaintiff] as having a 15% WPI.” (My emphasis)

42. In summarising relevant additional documentation provided for the plaintiff’s application for further assessment, the medical assessor stated (CB 212):

“[The plaintiff] relies on the reports of…Associate Professor Robertson, dated 23 October 2018.

A/Prof Robertson stated, ‘It would seem there has been a deterioration in some respects of [the plaintiff’s] presentation since examined by [the medical assessor], particularly, there has been a decline in social and recreational activities and his capacity to perform paid employment.’ I found a Class 2 in relation to Social and Recreational Activities: [the plaintiff] was socialising on occasion with friends, going to the beach and swimming but not doing a lot of activities he was doing before, including Salsa dancing, going out for dinners, going to music venues or parties. He was seeing his children and enjoyed seeing them. I noted that his functioning seemed to be better when he perceived the Botox to be working. A/Prof Robertson noted that [the plaintiff] was no longer seeking female company or dating, only consults with a few close friends, regularly attends his local Synagogue in Bondi Junction but leaves after the service and does not want to interact with other worshippers. He socialises with his children and tends to lose interest. He no longer goes out dancing or for dinners.

In terms of Concentration, persistence and pace, I rated [the plaintiff] a Class 2. I noted significant problems with concentration, particularly reading, less motivated to converse in different languages and found it hard to focus on emails and Facebook [sic]. A/Prof Robertson rated him a Class 3 on the basis of forgetfulness of places, belongings, making costly errors at work, had handed over much of his role to his accountant or colleague, and performed poorly on cognitive assessment [sic].”

43. In considering the plaintiff’s MAS application form, the medical assessor relevantly wrote (CB 213):

“I note the report of A/Prof Robertson dated 23 February 2018. He noted that he had assessed [the plaintiff] in June 2017; that he had been involved in a motorbike accident on 24 April [2014]. He thought he had a Persistent Depressive Disorder as a result of that motor accident. A/Prof Roberson made reference to my report of 30 May 2018 in which I noted that it was most likely the cognitive symptoms related to an underlying depressive or anxiety condition and that I diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood and thought that [the plaintiff’s] WPI was 6%.

When A/Prof Robertson saw [the plaintiff] on 18 October 2018, he noted that [the plaintiff] was single, in regular contact with his children. The primary management of his clinical care had been management of his headaches, seeing Dr Granot and having Botox injections into the spine. While [the plaintiff] was working, his business was only between 16-20 hours per week and he had handed over the bookkeeping and financial management to his accountant. He was making frequent errors in the business and misplacing belongings. He had lost fluency in other languages. He was having ‘dark moments’. He was not having any psychiatric or psychological treatment.

In relation to self-care, he felt it to be ‘a bit of an effort’. In terms of social and recreational activities, he was no longer seeking female company and no longer dating. Although he attended the local Synagogue, he was leaving after the service. He did socialise with his children. He was no longer going out Salsa dancing or for dinners. He described being a nervous person. In terms of travel he described himself as being nervous and anxious in traffic. In terms of social adaptive functioning, he remained in good terms with his children. In terms of employment, he was working around 20 hours per week in his usual job but did not participate much in the running of the business, passing much of the work to his employers. He described reduced productivity.

A/Prof Robertson stated that having had the opportunity to re-examine [the plaintiff]…he thought there had been some deterioration in some aspects of his presentation since examined by myself, particularly a decline in social and recreational activities and capacity to perform paid employment. He rated [the plaintiff] as having a WPI of 15%, rating him a Class 3 on Social and Recreational Activities, a Class 3 on Social Functioning, and a Class 3 on Concentration, persistence and pace.”

44. Under “Conclusions”, the medical assessor wrote (CB 215):

“Diagnosis and Causation

…I concur with Dr Robertson that [the plaintiff] could be regarded as having a Persistent Depressive Disorder but it does not seem that his mood symptoms are very reactive to the state of his migraines and I continue to think an Adjustment Disorder and Mixed Anxiety and Depressed Mood is a more apposite diagnosis. I continue to regard his condition as having stabilised. He is not really having any psychological treatment at the present time and I have not made any apportionment for treatment effect.

In terms of the Permanent Impairment Rating Scale, my impression has not really changed. Undoubtedly [the plaintiff] is socialising less than before but he has managed to travel overseas to visit family and I would not regard him as having more than a mild impairment in this domain. He does say that he is less proficient in other languages and that his memory is not as good, but his concentration and memory problems are not static and they appear to be very much related to whether or not [the plaintiff] is experiencing severe headaches and there is a strong somatic component to his memory/concentration problems. He did however have a minor car accident last week which he could not really explain but it seems he did lose concentration. I have classed his rating in this domain as being moderate on the basis of his adjustment condition. [The plaintiff] is still working 24 hours per week albeit slower, delegating more tasks and taking on smaller jobs so I continue to think he has a mild impairment.”

45. Having considered the plaintiff’s submissions and supplementary reports, the medical assessor reclassified the plaintiff’s “Concentration, Persistence and Pace” as “Class 3”. Although the medical assessor also found deterioration in respect of “Social and Recreational Activities” and “Adaptation”, he still classified the plaintiff as “Class 2” for mild impairment in these categories. He gave the following reasons for his decision (CB 216-217):

Category	Class	Reason for decision
Social and Recreational Activities	2	Mild impairment. He does go to the Synagogue every day and this is his main social outlet. He does visit friends and they visit him. I accept that he is socialising less than before the accident but he still has managed to travel overseas.
Concentration, Persistence and Pace	3	Moderate impairment. [The plaintiff] said he is less proficient in other languages, his memory is not as good but when he has Botox things improve. He did however have a minor car accident last week which he could not really explain but it seems he did lose concentration and on this basis I now regard him as having moderate impairment.
Adaptation	2	Mild impairment. He is still working 24 hours per week. He said he is a bit slower in what he does, he is delegating more tasks and taking on smaller jobs. This is partly because of the problems with his migraines and not always feeling well but he also does feel quite depressed, unhappy and less motivated at times.

46. The 2019 medical assessment certificate assessed the plaintiff’s total WPI at 7%.

The decision of the proper officer

47. On 19 July 2019, the plaintiff filed an application for review of the medical assessor’s certificate under s 63 of the MAC Act, on the basis that the assessment was incorrect in a material respect. The plaintiff relied on the matters set out in his application form and written submissions. The insurer did not lodge a reply to the application for review.

48. The plaintiff submitted to the proper officer that the medical assessor’s assessment was incorrect in two respects. The first was in failing to reclassify the plaintiff as “Class 3” in respect of “Social and Recreational Activities” on the PIRS, and the second was in failing to reclassify the plaintiff as “Class 3” in respect of “Adaptation”. The plaintiff submitted that the particulars of his application were sufficient to satisfy the proper officer that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, as required under s 63(3) of the MAC Act.

49. On 29 September 2019, the proper officer dismissed the plaintiff’s application and published reasons for her decision.

50. At [6]-[16] of her reasons, the proper officer addressed the plaintiff’s submissions in relation to the classification of his “Social and Recreational Activities” as follows:

“Assessment of social and recreational activities

6.   The applicant submits:

“[The medical assessor] found ‘Class 2’, ‘mild’ impairment in respect of the claimant’s ‘Social and Recreation[al] Activities’. This is at odds with the evidence and [the medical assessor’s] own findings.

In the 2018 assessment, [the medical assessor] also found ‘Class 2’, and described the claimant as socialising with friends, going to the beach, seeing his children and enjoying seeing them, and refers to the Botox treatment as assisting in this regard.

When [the medical assessor] assesses the claimant in 2019 he has deteriorated …

[The medical assessor] notes the history taken by Professor Robertson in his summary of the further relevant information provided He does not reject or otherwise disagree with it his findings quoted are consistent with it, just less detailed.

The examples given for ‘Class 3’, ‘moderate’ impairment under the PIRS for this category are ‘rarely goes out to such events, and mostly when prompted by family or close friend Will not go out without a support person. Not actively involved, remains quiet and withdrawn’.

This is not a case where the claimant’s injury merely results in him being less actively involved in social activities e.g. by not dancing or cheering his favourite team (see ‘Class 2’ description).

Clearly this claimant is more seriously impacted than that.

The claimant should be assigned a ‘Class 3’ for this category.”

7.   On page 4 of the certificate, under ‘Current Functioning’, [the medical assessor] has reported:

‘In terms of social and recreational activities, he said he used to be very social but he is less social now. The Synagogue is his main outlet. He said his life has changed. He does, however, visit friends and they visit him. He sees his family and he has recently travelled to see family and he enjoyed that.’

8.   On page 11 of the certificate, under ‘Diagnosis and Causation’, [the medical assessor] has reported:

‘In terms of the Permanent Impairment Rating Scale [PIRS], my impression has not really changed. Undoubtedly [the plaintiff] is socialising less than before but he has managed to travel overseas to visit family and I would not regard him has having more than a mild impairment in this domain.’

9.   On page 12 of the certificate, under the PIRS, [the medical assessor] reported:

“Mild impairment

He does go to Synagogue every day and this is his main social outlet. He does visit friends and they visit him I accept that he is socialising less than before the accident but he still managed to travel overseas.”

10.   [The medical assessor] has found a Class 2, and the applicant asserts it should have been a Class 3.

11.   Class 2, in Table 12 of the PIRS, is described as:

“Mild impairment. Able to occasionally go out to social events without needing a support person, but does not become actively involved; for example, in dancing, cheering favourite team.”

12.   Class 3 is described as:

“Moderate impairment. Rarely goes out to social events, and mostly when prompted by family or close friend. Unable to go out without a support person. Not actively involved, remains quiet and withdrawn.”

13.   I note that clause 1.220 of the [Permanent Impairment] Guidelines provides that the descriptors are intended to be illustrative rather than literal. However, a distinguishing feature between Classes 2 and 3 is the claimant’s inability to go out without a support person. At no stage does the applicant, [the medical assessor] or [Associate] Professor Robertson indicate that the claimant is unable to go out without a support person.

14.   Further, there is no evidence that the claimant needs to be prompted by family or a close friend to go out. The applicant has not provided any submissions that would persuade me that the claimant is more appropriately placed in Class 3.

15.   [The medical assessor] specifically noted that he accepted the claimant is socialising less, however the claimant still attends the Synagogue, sees friends and has travelled overseas. At no point is it indicated that these occur only with the assistance of a support person. This does not accord with a Class 3 impairment.

16.   I am therefore not satisfied of reasonable cause to suspect the medical assessment is incorrect in a material respect, in relation to social and recreational activities.”

51. At [17]-[29] of her reasons, the proper officer turned to address the medical assessor’s classification of the plaintiff’s “Adaptation” on the PIRS as follows:

“Assessment of adaptation

17.   The applicant submits:

[The medical assessor] has found ‘Class 2’, ‘mild’ impairment in respect of the claimant’s ‘Adaptation’ or employability. This too is at odds with the evidence and [the medical assessor’s] own findings.

The example given in the PIRS for ‘Class 2’, ‘mild’ impairment in this regard refers to persons being able to work in the same position, where the ‘duties require comparable skills and intellect as those of the pre-injury job’. Alternatively, it refers to working no more than 20 hours in the same job, but perhaps not with specific people or with reduced travel.

[The plaintiff] at the time of the accident ran his own upholstery business and prior to the accident worked the long hours of a business owner. He was responsible for the administration of his business as well as the upholstery work. He describes in detail at paragraphs [49] to [62] of his statement how his work has been affected by his injury. He works less hours. He has been unable to grow his business. He is affected by his loss of memory and concentration. He is uninterested and unmotivated. He has had to engage people to do things he would normally do himself. He avoids larger jobs. He turns down lots of work. He does not like dealing with his customers.

Having regard to [the medical assessor’s] finding of ‘moderate’ impairment for ‘concentration, persistence and pace’ it would be remarkable is such an impairment had only a ‘mild’ effect on the claimant’s work capacity.

The example given for ‘Class 3’, ‘moderate’ impairment for employability is described under the PIRS as ‘cannot work at all in the same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (e.g. less stressful)’.

... The claimant is effectively working in a different position involving less skill and which is qualitatively different.

He is clearly more than mildly impaired in this category.

The claimant should be assigned ‘Class 3’ for this category.

In the alternative, the claimant submits that the Assessor took an insufficient history and had insufficient regard to the claimant’s evidence...

18.   On page 5 of the certificate, under ‘Current Functioning’, [the medical assessor] has reported:

‘In terms of adaptation, [the plaintiff] is working 24 hours per week, he is much slower and he delegates tasks. He is taking on smaller jobs.”

19.   On page 11 of the certificate, under ‘Diagnosis and Causation’, [the medical assessor] has reported:

“[The plaintiff] is still working 24 hours per week albeit slower, delegating more tasks and taking on smaller jobs so I continue to think he has a mild impairment.”

20.   On page 13 of the certificate, under the PIRS, [the medical assessor] has reported:

“Mild impairment.

He is still working 24 hours per week. He said he is a bit slower in what he does, he is delegating more tasks and taking on smaller jobs. This is partly because of the problems with his migraines and not always feeling well but he also does feel quite depressed, unhappy and less motivated at times.”

21.   [The medical assessor] has found a Class 2, and the applicant asserts it should have been a Class 3.

22.   In Table 16 of the PIRS, Class 2 is described as:

“Mild impairment. Able to work full time in a different environment. The duties require comparable skill and intellect. Can work in the same position, but no more than 20 hours per week; for example, no longer happy to work with specific person, work in a specific location due to travel required.”

23.   Class 3 is described as:

“Moderate impairment. Cannot work at all in the same position as previously. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different; for example, less stressful.”

24.   I acknowledge the applicant’s submissions that the claimant is now in a different position. However, I do not agree. The claimant is still working in his business. It is noted that he is performing tasks slower and delegating some of those tasks, but ultimately, it is the same role.

25.   Class 3 requires that the claimant cannot work in the same position at all, and that the different role is less than 20 hours per week. This does not accord with the claimant’s evidence, nor the information provided to [the medical assessor].

26.   Of significance is that [the medical assessor] has noted the claimant’s migraines. This is a physical limitation which cannot be considered in assessing any impairment from a psychiatric impairment.

27.   Further, the applicant relies on issues with the claimant’s concentration and its relation to adaptation. [The medical assessor] has assigned a Class 3 for concentration, persistence and pace, which is an increase from Class 2 from the previous assessment. Concentration cannot be accounted for in both PIRS categories. [The medical assessor] has given an allowance for the deterioration in concentration in that category.

28.   The applicant submits that [the medical assessor] has not had sufficient regard to the claimant’s statement. The information contained within the claimant’s statement is consistent with the [the medical assessor’s] certificate, and further, does not alter the view that the claimant is ultimately performing the same role.

29.   I am therefore not satisfied of reasonable cause to suspect the medical assessment is incorrect in a material respect.”

52. Having considered the plaintiff’s submissions, the proper officer determined that she was not satisfied that there was reasonable cause to suspect that the medical assessor’s assessment was incorrect in a material respect. The proper officer dismissed the plaintiff’s application for review.

Judicial review generally

53. It is common ground that this Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including both a medical assessor and proper officer, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the proper officer in her ultimate determination: s 69 of the Supreme Court Act.

The grounds of judicial review

54. The grounds of judicial review as articulated in the plaintiff’s summons are:

1. that the proper officer made a jurisdictional error in dismissing the plaintiff’s application for a review of the medical assessment of the assessor;

2. that the proper officer erred by failing to find that there was reasonable cause to suspect that the relevant medical assessment was incorrect in a material respect;

3. that the proper officer erred by failing to adhere to the gatekeeper role assigned to the proper officer, and instead embarked on a review of the substantive merits of the application; and

4. that the proper officer misapplied the statutory test required of s 63(3) of the MAC Act.

55. Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) sets out the rules in relation to judicial review proceedings. Rule 59(4) provides that a summons must state, with specificity, the grounds on which relief is sought.

56. The plaintiff’s grounds of review are general propositions which do not identify the basis of the errors alleged. However, from the plaintiff’s submissions, it appears that the plaintiff’s application for judicial review is made on the basis that the proper officer erred in two respects:

1. by failing to find that there was reasonable cause to suspect that the medical assessor was incorrect in categorising the plaintiff as “Class 2”, and not “Class 3”, in respect of “Social and Recreational Activities” on the PIRS; and

2. by failing to find that there was reasonable cause to suspect that the medical assessor was incorrect in categorising the plaintiff as “Class 2”, and not “Class 3”, in respect of “Adaptation”.

57. I will now turn to consider these two grounds of review.

Ground 1 – “Social and Recreational Activities”

The plaintiff’s submissions

58. The plaintiff submitted that by classifying him as “Class 2” for “Social and Recreational Activities”, the medical assessor’s reasons were out of keeping with the evidence before him and his own findings. In the 2018 medical assessment, the medical assessor also classified the plaintiff as “Class 2” in this category. He described the plaintiff as socialising with friends, going to the beach, seeing and enjoying his children, and receiving assistance from Botox treatments.

59. In the second certificate in 2019, the medical assessor noted that the plaintiff had deteriorated in his condition. The medical assessor wrote:

“…he used to be very social but he is less social now. The Synagogue is his main outlet. He said his life has changed. He does, however, visit friends and they visit him. He sees his family and he has recently travelled to Israel to see family and he enjoyed that.

…

Undoubtedly [the plaintiff] is socialising less than before but he has managed to travel overseas to visit family and I would not regard him as having more than a mild impairment in this domain.”

60. The plaintiff also submitted that the medical assessor noted the history recorded in Associate Professor Robertson’s report dated 23 October 2018, and seemed to have accepted it.

61. According to the plaintiff, his presentation and history to the medical assessor aligned with the guidelines for “Class 3” or “moderate” impairment under Table 12 of the Permanent Impairment Guidelines. This was not a case where the plaintiff’s injuries merely resulted in him being less actively involved in social activities. The plaintiff submitted that he was clearly more seriously impacted than reflected in the “Class 2” descriptors, and he should have been categorised as “Class 3” on the available evidence.

The insurer’s submissions

62. The insurer submitted that the plaintiff’s application for judicial review is an attempt to seek a merits review of the medical assessor’s findings in his second report.

63. Moreover, the insurer submitted that the plaintiff’s submission that the medical assessor miscategorised the plaintiff as “Class 3” in respect of “Social and Recreational Activities” is misguided. In the plaintiff’s submissions before the proper officer, the plaintiff summarised the relevant factors which he says the medical assessor failed to take into account. They are that the plaintiff:

1. is less social now;

2. has a changed life;

3. visits friends and they visit him;

4. sees his family;

5. has recently travelled to Israel and enjoyed it;

6. goes to the Synagogue but leaves after the service and does not interact with other worshippers; and

7. no longer goes out dancing or to dinners.

64. In Table 12 of the Permanent Impairment Guidelines for the PIRS category “Social and Recreational Activities”, “Class 3” states:

“Rarely goes out to such events, and mostly when prompted by family or close friends. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”

65. It is the plaintiff’s case that his symptoms qualify as “Class 3”. However, the insurer submitted that while the plaintiff rarely goes to social events, there is no evidence that he “mostly does only when prompted by someone else”. The insurer also submitted that there is no evidence that the plaintiff “will not go out without a support person.” There is also no evidence that he “is not actively involved”, as, for example, he attends Synagogue. There is no evidence that he “remains quiet and withdrawn”.

66. As such, the insurer submitted that the medical assessor was correct to categorise the plaintiff as “Class 2” for “Social and Recreational Activities”, and that the proper officer was correct to make the same finding.

67. The insurer also took issue with the plaintiff’s reference to the medical assessor apparently accepting the history taken by Associate Professor Robertson. The insurer submitted that in fact, the medical assessor noted that history, but had undertaken his own assessment of the plaintiff during the interview. The insurer submitted that it is highly likely that the medical assessor relied more heavily on his own history than that taken by a third party.

68. Finally, the insurer addressed the plaintiff’s submission that he “is more seriously impacted than reflected in the ‘Class 2’ descriptors.” The insurer submitted that this complaint is not only completely subjective, but does not accord with the plaintiff’s evidence and presentation. Further, the fact that the plaintiff might be “more seriously impacted” does not mean that the medical assessor should automatically have categorised him in a different PIRS class. The medical assessor followed the guidelines and applied the correct descriptors in arriving at the conclusion that the plaintiff merited a “Class 2” impairment rating. Not only was the medical assessor entitled to assign a “Class 2”, he was probably bound to do so on the evidence.

Consideration

69. In considering the plaintiff’s application for judicial review, I am conscious that the plaintiff is not entitled to a review on the merits of his application before the medical assessor or the proper officer: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; (1986) 66 ALR 299 at [40]; Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 93 ALR 1 at [35]; and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 136 ALR 481 (“Wu Shan Liang”) at 272. It is not for this Court to make an assessment as to whether the plaintiff satisfied the criteria for a “Class 3” or “Class 2” impairment in any PIRS category.

70. Rather, in order for the plaintiff to succeed in his application, he must satisfy this Court that there was jurisdictional error in the exercise of the proper officer’s function under s 63(3) of the MAC Act. Relevantly, the plaintiff must demonstrate that the proper officer has made an error of law which caused her to identify a wrong issue, ask herself a wrong question, ignore relevant material, rely on irrelevant material, make an erroneous finding or reach a mistaken conclusion such that there was jurisdictional error: see Craig v State of South Australia (1995) 184 CLR 163; (1995) 131 ALR 595 (“Craig”) at 176; 179-180.

71. Section 63(3) of the MAC Act is extracted earlier in this judgment. Under s 63(3), the proper officer was to refer the plaintiff’s application to a medical assessment panel if she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. This power was not discretionary, once the requisite state of satisfaction was achieved: see Meeuwissen at [23].

72. Clause 14.6.3 of the MA Guidelines defines “material” for the purposes of s 62(1A) of the MAC Act as including the capability to alter the outcome of a dispute by raising the WPI above the 10% statutory threshold. I accept that “in a material respect” under s 63(3) of the MAC Act is not as precise as the statutory test under s 62(1A): see Meeuwissen at [20]. However, in these proceedings, the reclassification of the plaintiff’s injuries on the PIRS scale from “Class 2” to “Class 3” in either the categories “Social and Recreational Activities” or “Adaptation” would have resulted in the plaintiff overcoming the 10% statutory threshold. It is therefore my view that the errors alleged in respect of these two categories could not be dismissed as “trivial, insignificant or immaterial”, and as such each was “material” for the purposes of s 63(3) of the MAC Act: see Meeuwissen at [22].

73. The remaining issue for the proper officer to consider was whether there was reasonable cause to suspect that the 2019 medical assessment was incorrect. It was not for the proper officer to decide whether the assessment was incorrect, but only that there was reasonable cause to suspect that it was: Meeuwissen at [24].

74. The proper officer’s reasons are extracted earlier in this judgment. In considering the alleged error in respect of the medical assessor’s PIRS categorisation of “Social and Recreational Activities”, the proper officer summarised the plaintiff’s submissions at [6]. The proper officer then summarised the medical assessor’s findings at [7]-[9]. Notably, the medical assessor had accepted that the plaintiff was socialising less than before, but noted that he still went to Synagogue daily, was continuing to visit with friends and had managed to travel overseas.

75. At [10]-[12], the proper officer set out the “Class 2” and “Class 3” descriptors from Table 12 of the Permanent Impairment Guidelines, extracted earlier in this judgment. She acknowledged that under cl 1.220, the class descriptors were to be taken to provide illustrative, rather than literal, criteria. However, she noted that two distinguishing features of “Class 3” impairment are that the claimant cannot go out without a support person, and that the claimant needs to be prompted to go out by family or a close friend. She therefore determined at [14]-[15] that nothing in the plaintiff’s submissions persuaded her that he was more appropriately classified in “Class 3”. On this basis, the proper officer concluded at [16], “I am therefore not satisfied of reasonable cause to suspect the medical assessment is incorrect in a material respect” in relation to his “Social and Recreational Activities”.

76. It was the plaintiff’s case that the evidence before the medical assessor was that he was “clearly more seriously impacted” than reflected by a “Class 2” impairment rating. However, in considering the plaintiff’s submissions, the question before the proper officer was not whether the plaintiff could have been categorised as a “Class 3”, but whether there was reasonable cause to suspect that the medical assessment was incorrect. In my view, it was open to the medical assessor to exercise his discretion to categorise the plaintiff, on the available evidence and presentation, as satisfying the criteria for “Class 2” impairment for “Social and Recreational Activities”. This is the case even if the medical assessor acknowledged that the plaintiff’s condition had deteriorated in some respect.

77. For these reasons, it is my view that the plaintiff has failed to demonstrate that in exercising her discretion to dismiss the plaintiff’s application, the proper officer made an error of law in the exercise of her function under s 63(3) of the MAC Act. This ground of judicial review fails.

Ground 2 – “Adaptation”

The plaintiff’s submissions

78. The plaintiff submitted that by classifying him as “Class 2” for “Adaptation”, the medical assessor’s reasons were again out of keeping with the evidence before him and his own findings. On the PIRS for “Class 2” or “mild” impairment, a claimant should be able to work in the same position, where “duties require comparable skill and intellect as those of the pre-injury job”. Alternatively, the claimant is to work no more than 20 hours in the same job, but not with specific people or with reduced travel.

79. In his submissions before the proper officer, the plaintiff stated that at the time of the accident, he ran his own upholstery business and worked long hours as its owner. He was responsible for the administration of the business as well as the upholstery work. The review application made reference to the plaintiff’s statement, where he described how his work was affected by his injury. He stated that he worked fewer hours, was unable to grow his business, experienced memory and concentration loss, was uninterested and unmotivated, and had to engage others to do work he used to perform himself. He also submitted that he avoided larger jobs, turned down work and did not like dealing with his customers.

78. The medical assessor noted the plaintiff’s statement in his decision, but not in great detail. In his decision, the medical assessor stated at [5], [11] and [13]:

“In terms of adaptation, [the plaintiff] is working 24 hours per week, he is much slower and he delegates tasks. He is taking on smaller jobs.

…

[The plaintiff] is still working 24 hours per week albeit that he is a bit slower, delegating more tasks and taking on smaller jobs.

…

…this is partly because of the problems with his migraines and not always feeling well but he also does feel quite depressed, unhappy and less motivated at times.”

81. The medical assessor also made reference to Associate Professor Robertson’s report dated 18 October 2018, where he stated:

“While [the plaintiff] was working, his business was only between 16-20 hours per week and he handed over the bookkeeping and financial management to his accountant. He was making frequent errors in the business and misplacing his belongings. He had lost fluency in other languages. He was having ‘dark moments’.”

82. The plaintiff submitted that the medical assessor did not contradict Associate Professor Robertson’s report, except in recording that the plaintiff worked 24 instead of 16-20 hours.

83. In his submissions before the proper officer, the plaintiff argued that given the medical assessor found “moderate” impairment for “Concentration, Persistence and Pace”, it would be remarkable if the impairment only had a “mild” effect on the plaintiff’s work capacity.

84. Under “Class 3” or “moderate” impairment on the PIRS for “Adaptation”, the example claimant cannot work at all in the same position, and that he can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (i.e. less stressful). The plaintiff submitted that he is not working in the same position. This is because he:

1. only works 16-20 or 24 hours;

2. does smaller jobs;

3. delegates tasks he previously performed;

4. hands over bookkeeping and financial management to his accountant; and

5. makes frequent errors and misplaces belongings.

85. The plaintiff submitted that this position cannot be described as the same position he was in before the accident. The position is effectively different and involves less skill, which is qualitatively different. He is clearly more than mildly impaired in this category. He submitted that he should have been assigned a “Class 3” for this category. Alternatively, he submitted that the medical assessor took an insufficient history or had insufficient regard to the plaintiff’s evidence in assessing this category.

The insurer’s submissions

86. The insurer submitted that the plaintiff’s submissions before the proper officer stated that he worked a 24 hour week in what was essentially the same position. The insurer submitted that these align with the medical assessor’s categorisation of “Class 2”.

87. The insurer submitted that the plaintiff’s submissions seek to cavil with the medical assessor’s subjective findings. That is to say, the plaintiff seeks to suggest that the proper officer ought to have found that there was error in 2019 medical certificate, because that decision was in contrast to Associate Professor Robertson’s findings in his report dated 18 October 2018. Essentially, the plaintiff’s position is that on the evidence, the plaintiff was “clearly more than mildly impaired in this category”. This is an attempt at a merits review.

88. The insurer referred to Chapter 14.7 of the AMA4 Guides, which state the following in relation to “Adaptation”:

“There is no available empiric evidence to support any method for assigning a percentage of impairment of the whole person, but the following approach to estimating the extent of mental impairments is offered as a guide.”

89. The history taken by the medical assessor was that the plaintiff was able to work 24 hours per week in his pre-accident job. He was essentially doing the same work, although “a bit slower”. In Table 16 of the Permanent Impairment Guidelines, “Class 2” and “Class 3” identify an ability to work more or less than 20 hours per week as a significant factor. The medical assessor found that the plaintiff was working 24 hours per week.

90. The insurer also submitted that the plaintiff did not give the medical assessor a history stating that he made frequent errors or misplaced his belongings, as the plaintiff has submitted. It is true that the plaintiff is impaired in his ability to work. However, the plaintiff did not indicate to the medical assessor that he cannot work at all in the same position as he did previously, or that he can perform only under 20 hours of work in another position. The insurer submitted that these are the primary criteria for a finding of “Class 3” in this category. As such, this ground of review is misplaced.

Consideration

91. The proper officer’s consideration of the medical assessor’s categorisation for “Adaptation” is extracted earlier in this judgment. At [17], the proper officer summarised the plaintiff’s submissions. The proper officer then summarised the medical assessor’s findings at [18]-[20], to the effect that the plaintiff was working 24 hours per week, but more slowly, delegating tasks and taking on smaller jobs.

92. The proper officer then set out the “Class 2” and “Class 3” descriptors from Table 16 of the Permanent Impairment Guidelines. She stated that she did not agree with the plaintiff’s submissions to the effect that his position at work had changed as a result of the accident. At [25], she stated that the plaintiff’s evidence did not accord with the criteria for “Class 3” impairment. At [29], the proper officer repeated the concluding line from her assessment of “Social and Recreational Activities”, stating, “I am therefore not satisfied of reasonable cause to suspect the medical assessment is incorrect in a material respect”.

93. The plaintiff has made two primary submissions in relation to this ground of review. The first was that the proper officer, in adopting the approach of the medical assessor, was too prescriptive in her assessment of the class descriptors from Table 16.

94. Clause 1.220 of the Permanent Impairment Guidelines, extracted earlier in this judgment, states that the PIRS tables merely provide “common examples” with illustrative, rather than literal, criteria. Clause 1.220 states that the medical assessor should obtain a history of the injured person’s pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury.

95. In the plaintiff’s case before the medical assessor, the evidence was that prior to the accident, the plaintiff ran a business which was in the process of expanding, requiring long hours to manage employees and run multiple premises. It was in respect to his previous work in that role, not a prescriptive 20-hour work week, that the medical assessor was required to assess the plaintiff’s post-accident impairment under “Adaptation”.

96. In considering the plaintiff’s submissions at [13] of her reasons, the proper officer acknowledged that under cl 1.220 of the Permanent Impairment Guidelines, the criteria within the PIRS tables were not to be interpreted literally. Nevertheless, at [25] of her reasons, she stated that “Class 3 requires that the claimant cannot work in the same position at all, and that the different role is less than 20 hours per week” (my emphasis). She stated that the criteria from the table did not accord with the claimant’s evidence.

97. I am conscious in considering the proper officer’s reasons that the standard to which they are to be held is not as onerous as that required of a Court. The proper officer’s words are not to be read with eyes “seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: see Wu Shan Liang at 271-2. However, even read at this standard, it is my view that by prescriptively applying the criteria from the Table 16 “common examples”, the proper officer misapplied the Permanent Impairment Guidelines. This was an error of law on the face of the record.

98. The second of the plaintiff’s primary submissions on this ground of review was that the proper officer, more fundamentally, asked herself the wrong question when purporting to exercise her function under s 63(3) of the MAC Act.

99. At [24] of her reasons, the proper officer addressed the plaintiff’s submission that his new role at work was qualitatively different to his role before the accident. She then stated, “However, I do not agree.” It was the proper officer’s view that as the plaintiff was still working in his business, albeit slower and requiring the delegation of certain tasks, “ultimately, it is the same role.”

100. Section 63(3) of the MAC Act requires a proper officer to consider whether there was reasonable cause to suspect that an assessment was incorrect. That state of satisfaction “need not rise above anything other than a state of unease”: see Elliott per Campbell J at [59]. I note, as did Campbell J in Elliott at [60], that there are valuable rights at stake in such applications. Under s 63 of the MAC Act, the proper officer is conferred the power of gatekeeper, and not decision-maker, so as to afford the injured person a decision reached in accordance with the proper understanding of the statutory scheme and facts. That is to say, the decision as to whether the medical assessment was actually incorrect in a material respect was to be made by a review panel, which was bound to carry out a new assessment and re-determine the plaintiff’s case on its merits.

101. As such, assessing whether or not the plaintiff satisfied the criteria for “Class 3” impairment for “Adaptation” was not the proper officer’s statutory task under s 63(3) of the MAC Act. In my view, by considering whether she agreed that the medical assessment was incorrect, rather than considering whether there was reasonable cause to suspect that it was, the proper officer fell into the type of error described by Basten JA in Meeuwissen. This error in the proper officer’s substantive reasons is not remedied by her conclusion at [29], which simply repeated the proper legal test from earlier in her decision.

102. For these reasons, it is my view that in purporting to apply s 63(3) of the MAC Act, the proper officer asked herself a wrong question and answered it. In doing so, she issued a decision vitiated by jurisdictional error and error of law on the face of the record: Craig at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1 at [82].

Result

103. By asking herself a wrong question in purporting to apply s 63(3) of the MAC Act, the proper officer failed to carry out her statutory task and fell into jurisdictional error.

104. The result is that the proper officer has constructively failed to exercise jurisdiction and made errors of law in her decision dated 29 September 2019. In the exercise of my discretion, it is my view that the proper officer’s decision should be quashed and that the matter should be remitted to SIRA for determination according to law.

Costs

105. Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs on an ordinary basis.

The Court declares that:

1. The decision of the proper officer dated 29 September 2019 is vitiated by an error of law and jurisdictional error.

The Court makes an order:

1. In the nature of certiorari removing into the Court the decision of the proper officer dated 29 September 2019 and quashing that decision.

The Court further orders that:

1. The matter is remitted to the State Insurance Regulatory Authority to be determined according to law.

2. The first defendant is to pay the plaintiff’s costs on an ordinary basis.

**********

Decision last updated: 10 July 2020