Wellman v CIC Allianz Australia Insurance Limited

[2019] NSWSC 1353

Supreme Court

New South Wales

Medium Neutral Citation:

Wellman v CIC Allianz Australia Insurance Limited [2019] NSWSC 1353

Hearing dates:

30 August 2019

Date of orders:

11 October 2019

Decision date:

11 October 2019

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The further amended summons filed 30 August 2019 is dismissed.

 

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

 (3) The execution of the costs orders is stayed for 7 days.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Jurisdictional error – Review of a certificate of a medical Review Panel – Failure to respond to substantial and clearly articulated arguments –– Where the plaintiff had a history of impairment in in the same location as the subject injury

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW) ss 44, 58, 59, 61, 63, 65, 131, 132, 133
Supreme Court Act 1970 (NSW) s 69

Cases Cited:

Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Frost v Kourouche (2014) 86 NSWLR 214
Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780
IAG Limited t/as NRMA Insurance v Chahoud [2019] NSWSC 767
IAG Limited trading as NRMA Insurance v Tran (2015) 70 MVR 105
Martin v Kelly [2008] NSWSC 577
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Nguyen v Motor Accidents Authority [2011] NSWSC 351
Origin Energy LPG Ltd v BestCare Foods Ltd [2013] NSWCA 90
Rodger v De Gelder (2015) 71 MVR 514
Swain v Waverly Municipal Council [2005] HCA 4, (2005) 220 CLR 517
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64
Zahed v JAG Limited t/as NRMA Insurance (2016) 75 MVR 1

Category:

Principal judgment

Parties:

Robert Wellman (Plaintiff)
CIC Allianz Australia Insurance Limited (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
The Medical Review Panel, comprising of Christopher Oates, Clive Kenna and Thomas Rosenthal acting in their capacity as medical assessors appointed by SIRA (Third Defendant)

Representation:

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

  Solicitors:
Masselos & Co Lawyers (Plaintiff)
McInnes Wilson Lawyers (First Defendant)

File Number(s):

2019/21798

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a judicial review of the decisions of a medical review panel of the State Insurance Regulatory Authority.

2. By further amended summons filed 30 August 2019, the plaintiff seeks firstly, an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the assessments and the certificates of the third defendant dated 22 October 2018 purportedly issued pursuant to s 63 of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”); and secondly, an order in the nature of mandamus remitting the medical assessment in MAS Matter Number 2017/02/1557 to the second defendant for allocation to a differently constituted review panel for determination according to law.

3. The plaintiff is Robert Wellman. The first defendant is CIC Allianz Australia Insurance Limited (“the insurer”). The second defendant is the State Insurance Regulatory Authority (“SIRA”). The third defendant is the Medical Review Panel, comprising of Christopher Oates, Clive Kenna and Thomas Rosenthal acting in their capacity as medical assessors appointed by SIRA (“the Review Panel”). The second and third defendants have filed submitting appearances. For convenience, I will refer to the first defendant as the defendant throughout this judgment.

4. The plaintiff relied upon the affidavit of his solicitor, Gregory Masselos, dated 31 July 2019. The parties relied on a joint court book.

Background

5. On 26 April 2012, the plaintiff initiated a claim for damages against the insurer for personal injury arising out of a motor accident that occurred on 14 November 2011. The claim was subject to the MAC Act. In the course of that claim, a dispute arose between the parties as to the plaintiff’s degree of permanent impairment, which is determinative of the plaintiff’s entitlement to non-economic loss damages under s 131 of the MAC Act. Under Part 3.4, s 132 of the MAC Act, the dispute over the plaintiff’s permanent impairment was referred for determination by the insurer’s medical assessment service (“MAS”).

6. On 1 September 2017, the MAS issued the certificate of medical assessor Dr Paul Myers, general surgeon. Assessor Myers was appointed to assess the plaintiff’s whole person impairment (“WPI”) arising from injuries to his cervical spine, right shoulder, right hip, right leg and knee, left middle finger and scarring as a result of the accident. The certificate assessed the plaintiff with 0% WPI in respect of those alleged injuries.

7. On 4 September 2017, the MAS also issued the certificate of medical assessor Dr Sylvester Fernandes, ENT physician. Assessor Fernandes’ certificate assessed the plaintiff with WPI of 5% in respect of hearing loss, tinnitus and vestibular dysequilibrium suffered as a result of the accident. Neither party lodged an application for review of Assessor Fernandes’ certificate in accordance with s 63 of the MAC Act.

8. That same day, on 4 September 2017, the MAS issued a combined certificate certifying the plaintiff’s total WPI arising from the accident at 5%.

9. On 23 October 2017, the plaintiff lodged an application for review of the medical assessment of Assessor Myers, pursuant to s 63 of the MAC Act.

10. On 22 October 2018, in response to that application, the MAS issued the two decisions which are the subject of this judicial review.

11. The first decision under review is the Review Panel’s certificate and reasons issued purportedly pursuant to s 63 of the MAC Act. This certificate certified the plaintiff with a WPI arising from the accident of 5% in respect of injuries to the cervical spine with referred symptoms to the right shoulder, as well as injuries to the right middle finger.

12. The second decision under review is the MAS’ review combined certificate combining the accepted assessment of Assessor Fernandes (5% WPI) with that of the Review Panel (5% WPI). This combined certificate assessed the plaintiff’s total WPI as a result of the accident at 10%.

The statutory framework

13. The plaintiff’s claim for damages is governed by the MAC Act. The operation of Part 3.4 of the MAC Act underpins this proceeding. Relevantly, ss 44, 58, 59, 61, 63, and 65 relevantly provide:

“44 Medical Guidelines of Authority

(1) The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following:

…

(c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident,

(d) 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.

…

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%.

…”

59 Appointment of medical assessors

(1) The Authority is required to appoint medical practitioners and other suitably qualified persons to be medical assessors for the purposes of this Part.

…

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.

…

(4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.

…

(6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part.

…

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

(10) The following procedure is to apply if the assessment of more than one medical assessor is required to assess whether the degree of permanent impairment of the injured person is greater than 10% (not being an assessment of the degree of permanent impairment resulting from psychiatric or psychological injury):

(a) each medical assessor is to give a certificate as to the degree of permanent impairment of the injured person resulting from the particular injury or injuries with which the medical assessor’s assessment is concerned,

(b) based on the matters certified in each such certificate a medical assessor nominated by the Authority for the purpose is to make an assessment of the total degree of permanent impairment resulting from all the injuries with which those certificates are concerned and is to give a certificate (a combined certificate) as to that total degree of permanent impairment,

(c) the combined certificate is conclusive evidence as to whether the degree of permanent impairment of the injured person is greater than 10% and this section applies to the combined certificate accordingly.

(11) If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error.

…

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.

…

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

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

…

65 Authority monitoring and oversight

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

…”

14. Sections 131 and 132 of the MAC Act concern awards for non-economic loss in respect of injuries caused by motor accidents under the Act. They read:

“131 Impairment thresholds for award of damages for non-economic loss

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 accident is greater than 10%.

132 Assessment of impairment required before award of damages for non-economic loss if dispute over impairment threshold

(1) If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4 (Medical assessment).

Note. The assessment of the medical assessor under Part 3.4 is conclusive in proceedings before the court - see section 61.

(2) The court may, at any stage in proceedings for an award of damages for non-economic loss, refer the matter for assessment of the degree of permanent impairment under Part 3.4.

(3) A medical assessor may decline to make an assessment under Part 3.4 of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent. Court proceedings with respect to any such matter may be adjourned until the assessment is made.

(4) Nothing in this section prevents:

(a) the degree of impairment being re-assessed under Part 3.4, or

(b) a claim from being settled at any time.”

15. Finally, s 133 relevantly states:

“133 Method of assessing degree of impairment

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

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

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

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

…”

The guidelines

16. Section 133 of the MAC Act provides that the assessment of permanent impairment is to be made in accordance with the Motor Accident Permanent Impairment Guidelines (“the PI Guidelines”). The PI Guidelines, effective from 1 June 2018, are issued pursuant to s 44(1)(c) of the MAC Act and apply to assessments conducted by medical assessors.

17. The PI Guidelines relevantly provide:

“Introduction

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.

…

Permanent impairment

1.19 Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment. The AMA4 Guides (page 315) state that permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% whole person impairment (WPI) in the next year with or without medical treatment. If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to these Guidelines.

…

Consistency

1.40 Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of the injured person’s efforts. The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.

Assessment of the upper extremity

…

1.50 Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:

…

1.50.3 If the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions.

1.51 If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.

1.52 When using clause 1.51 above, the medical assessor must subtract the total upper extremity impairment (UEI) for the uninjured joint from the total UEI for the injured joint. The resulting percentage UEI is then converted to WPI. Where more than one joint in the upper limb is injured and clause 1.51 is used, clause 1.51 must be applied to each joint.”

18. Section 133 of the MAC Act also states that the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition (“the AMA Guides”) are to be applied in the alternative to a motor accident medical guideline issued under the MAC Act.

19. Finally, the Medical Assessment Guidelines (“the MA Guidelines”) are delegated legislation issued pursuant to s 44(1)(c) of the MAC Act. The MA Guidelines set out the procedure for review of assessments under Part 3.4 of the MAC Act.

The decision of the medical assessor

20. On 1 September 2017, the MAS issued the certificate of Assessor Myers (“the assessor”), general surgeon, who was appointed to assess the plaintiff’s WPI arising from the injuries allegedly suffered to his cervical spine, right shoulder, right hip, right leg and knee, scarring, and left middle finger as a result of the accident. The assessor assessed the plaintiff with 0% WPI in respect of these alleged injuries.

21. On 4 September 2017, the MAS issued a combined certificate certifying the plaintiff’s total WPI arising from the accident at 5%.

22. On 23 October 2017, the plaintiff lodged with the MAS an application for review of the assessor’s assessment pursuant to s 63 of the Act.

23. The MAS issued the subject decisions on 22 October 2018 in response to that application. By those decisions, the third defendant certified the plaintiff with a WPI arising from the accident of 5% in respect of injuries to the cervical spine with referred symptoms to the right shoulder, and to the right middle finger.

24. On 22 October 2018, a certificate and reasons was issued by the Review Panel purportedly pursuant to s 63 of the MAC Act.

25. On 22 October 2018, the MAS issued a review combined certificate combining the assessment of Assessor Fernandes with that of the Review Panel, thereby certifying the plaintiff’s total degree of permanent impairment from the accident at 10%.

The decisions of the Review Panel dated 22 October 2018

26. The Review Panel comprised of Drs Christopher Oates and Thomas Rosenthal, occupational medicine, and Clive Kenna, musculoskeletal medicine.

26. On 22 October 2018, the Review Panel revoked the certificate of the MAS dated 1 September 2017 and issued a new certificate in respect of the subject accident, which considered that the plaintiff’s injuries to his cervical spine gave rise to a WPI of 0% and that the injuries to his right shoulder gave rise to a WPI of 3%. The Review Panel also assessed the plaintiff’s injuries to his right middle finger at 2% WPI, although that assessment is not the subject of this judicial review.

27. In its reasons for decision, the Review Panel stated:

“2.

…

B.   Disputes identified by the Parties

The Panel considered the matters cited in the Application for Review and noted that the following aspects of the assessment were disputed:

•   Permanent impairment

In particular, with regard to the right upper extremity, the Assessor did not address whether the claimant has a referred injury to the right upper extremity consequential from the cervical spine injury in accordance with the Nguyen decision. With regard   the cervical spine, complaints of neck pain and pain going over the right deltoid muscle to be interpreted as non-verifiable radicular complaints resulting in a DRE cervical category II rather than category I. With regard to subsequent falls, the Assessor misstated and ignored relevant evidence before him that the falls in question were in fact secondary to vertigo.

The Panel considered the matters cited in the Reply to the Application for Review in and noted that:

•   The respondent opposed the hospital notes after the first fall in 2015 and ambulance records indicated he had not fallen because of a dizzy spell, but because of a slip on wet grass.

The respondent raised additional grounds for review, as follows - with respect to the shoulders, based on the restrictions recorded by the assessor, there was 8% upper extremity impairment from restricted flexion of the right shoulder and 5% upper extremity impairment from restricted movement of the left shoulder, which was uninjured, and pursuant to clause 2.5, equals 3% upper extremity impairment or 2% whole person impairment. The respondent requested that the assessment of Assessor Fernandez (ENT) be reconsidered by the review panel if the application for review of Assessor Myers certificate was not dismissed.

•   The applicant made further submissions in reply - on the standard of proof for causation; the statement of the claimant and that of Ms. Li did show evidence of the link between the vertigo and the accident; the use of clause 2.5 in an attempt to rewrite the Assessor’s report implies a WPI but the assessor failed to assess and constituting a material error (sic); a review of Assessor Fernandez assessment was opposed.

…”

29. Under the heading “3. Matters Considered and Decided by the Panel”, the Review Panel stated:

“A.   Evidence Considered

…

The Panel considered all of the available evidence and decided at the second teleconference on 13/04/2018 that a re-examination of the claimant was necessary in order to reach a decision, and to clarify the nature of referred right arm symptoms and signs, establish whether a situation exists in relation to the shoulders and to question the claimant about the circumstances of the falls associated with claimed subsequent injuries to the right leg and right middle finger.”

30. Under the heading “History”, the Review Panel stated:

“With respect to the past history, Mr Wellman confirmed that prior to the accident he was physically fit, riding a pushbike regularly and doing a lot of bushwalking, and was kept busy caring for his son who has a psychiatric condition. He had had a previous motor vehicle accident in 2000 with an injury to the cervical spine and a right hip tear, but these injuries had resolved prior to the subject accident. He also confirmed he had had no previous problems with the right shoulder, right leg or knee.

With respect to the subject accident, he confirmed that on 14 November 2011 he was standing at the side of the road, waiting to cross whilst holding his bicycle and he had his bicycle helmet on. A bus hit the kerb and a section of the bald rear tyre closest to the kerb blew out and he was hit by a section of tyre rubber, indicating between his right side of neck and shoulder.

…

The claimant did not describe a direct right shoulder injury, rather a blow to the upper trapezius between the neck and right shoulder and thereafter radiating pain from the neck through the trapezius into the upper arm as far as the elbow.”

31. Under the heading “Current Symptoms”, the Review Panel stated:

“Mr Wellman said he has neck pain most of the time which radiates through the upper trapezius to the lateral right upper arm to the elbow and can disturb sleep. It is made worse with active use of the arm, such as sweeping, and he will get a sharp shooting pain in the arm. He has no arm numbness. Lyrica takes the edge off this pain. The right shoulder is not too bad. He has aching in the right hip, but this is not related to the subject accident. The right knee area of the leg aches at times and there is some limited bending movement in the knee and there is a Baker’s cyst present. His right middle finger is pretty good, but he cannot flex it tightly to undo a tight lid on a jar. He has no cramps or vascular function problems in the right leg since having the glue gun procedure in 2017. There are no left shoulder problems.”

32. Under the heading “Examination”, the Review Panel stated:

“Cervical spine

At the cervical spine there was no muscle spasm or guarding. There was slight drooping of the right shoulder. Flexion was three-quarters of normal; extension was limited to one-third normal with complaint of right arm pain; lateral flexion was one-third to the right causing pain in the right shoulder and two-thirds to and rotation was two-thirds bilaterally. There was some intermittent guarding observed, at the right C5/6 area during active range of movement. The reflexes were symmetrical and power in the upper limbs was normal. Sensation was intact in the left upper extremity and slightly decreased in the right arm in a widespread non-dermatomal distribution. Upper arm girth: right = left = 31 cm. Forearm girth: right = left = 27 cm.

Lumbar spine

The lumbar spine showed no guarding or spasm, with normal lordosis. There was no dysmetria of active movement in the lumbar spine and normal neurological findings in the lower extremities.

Active range of movement was measured in both shoulders with a goniometer and repeated to check for consistency.”

33. On examination, the plaintiff’s right shoulder external rotation active range of movement measured “50º, 70º - best 70º”. His left shoulder external active range of movement measured “80º, 70º - best effort 80º”.

34. Under the heading “C. Panel Deliberations”, the Review Panel stated:

“Injuries:

•   Cervical spine - disc injury, soft tissue injury, radiculopathy - the Panel notes that the claimant sustained an earlier injury to his neck in a motor vehicle accident on 30/08/2000. A MAS Certificate from Assessor Mackie issued on 28/09/2004 assessed the claimant with Cervicothoracic DRE 2 from dysmetria and guarding, giving 5% permanent whole person impairment. The claimant contended that this previous permanent impairment should be ignored as the impairment was not at the time of the subject accident. (cl 1.33-135). Dr. Machart noted on 5/06/2002 neck pain with a small midline C3/4 protrusion not requiring surgery and complaints of tingling the fingers of both hand and occasional dizzy spells and acknowledged the claimant's statement of 16/03/2006. A subsequent MVA on 02/07/2001 caused seatbelt bruising to the right clavicle and anterior chest wall and a further accident on 23/01/2002 injured the right elbow and caused neck stiffness. He fully recovered from these two subsequent accidents. A Further MAS assessment by Assessor Wong for the accident of 30/08/2000 noted continuing neck pain and stiffness progressively getting worse but previously reported tingling sensation in the hands had resolved. Assessor Wong found DRE cervicothoracic catergory II because of dysmetria giving 5% whole person impairment. Dr Nikolaou referred him to a physiotherapist in May 2011 because of light-headiness and upper cervical spine tension and occipital headache presumably due to tight stiff cervical spine. The claimant consulted Dr. Lord, neurologist, in June and July 2011 to explore therapeutic options to improve his dizziness and memory.

The PICF, completed five months after the accident, referred to a neck injury after being struck in the head, neck and right arm/shoulder by rubber trim which detached and was projected from a rear tyre of a bus when the tyre struck the kerb whilst he was standing beside his bicycle at a pedestrian crossing waiting for the lights to change. The accompanying medical certificate mentioned impact by wheel/tyre and rim to right side of head, and body. The ambulance report notes abrasions right ear, neck and forearm. The record from Hornsby hospital noted black markings from Tyre Rubber around the right ear pinna with preauricular region tenderness with right sided hearing loss, abrasions to right side of neck with no midline neck tenderness, contusions over the posterolateral aspect of the right forearm and full range of movement of the right arm. He was wearing a bicycle helmet the time of the accident. He was knocked down when hit by the rubber and force of the explosion. He was to have ENT follow up re hearing loss and tinnitus.

Dr Wan, GP records on 8/12/2011 - three weeks after the MVA - that a piece of rubber hit him on right arm, right side of neck and head and he wished to claim for hearing loss and tinnitus. Subsequent GP records do not mention neck complaints but refer to difficulties caring for his son and the ENT condition with occasional light headiness. The neck is not mentioned until 9/07/2012 when GP records (Dr Wan) noted he is having physiotherapy for the neck - eight months after the MVA. In a letter, Dr Wan admitted his notes were brief. The claimant told the Panel he had complained about his neck pain from the date of accident and started physiotherapy a few weeks after the accident firstly at Hunter Street Physiotherapy and then with Chris Dodds, then at Healthy Innovations, Thornleigh. He derived only short term relief from treatment.

CT cervical spine of 11/10/2014 gave history of neck pain radiating to the right arm with suspicion of radicular pain. Scan found a large mainly right-sided C5/6 disc protrusion extending into the right exit canal. Dr Little, neurosurgeon saw him on 22/10/2014 and recorded a history of pain and tingling down his right arm for about a month. He diagnosed probable right C6 brachalgia and recommended continuing physiotherapy, and if that fails, to proceed with a foraminal injection. A subsequent MRI of cervical spine dated 21/11/2014 reported a large right posterolateral C5/6 disc protrusion, with likely right C6 nerve root compression. A right C5/6 foraminal injection on 27/01/2015 gave him initial relief of right arm tingling and lasted for 18 months then it slowly got worse and he was started on Lyrica. A further MRI scan 11/11/2015 showed C5/6 discovertebral end plate changes stenosing the right exit foramen with a small lateral disc protrusion contributing to this.

The Panel considered the above evidence and accepted an initial soft tissue injury to the cervical spine, that it appeared to have resolved shortly after the accident because there was no further mention of a neck condition in the extensive GP record after the accident for many months, despite multiple GP consultations in the period up till July 2012. The Panel was not inclined to accept the referred injury of cervical radiculopathy as there was no mention of this condition until three years after the accident in October 2014.

The claimant’s submissions state the GP Dr Wan referred him to physiotherapy on 15/03/2012 for unspecified symptoms with an admission from Dr Wan that though his records are brief and incomplete, he considers that cervical radiculopathy has arisen from the subject accident. The medical certificate dated 16/04/2012 mentions the neck and the PICF dated 26/04/2012 refers to neck right shoulder and arm. The Panel noted the records from Hunter Street Physiotherapy dated ?/07/2012 which refers to LEFT neck pain and LEFT upper arm ache - the opposite side to the alleged radicular symptoms. The Panel explored this further with the claimant at re-examination. The claimant nominated continuing symptoms of right sided neck pain radiating to the trapezius, right shoulder, lateral right upper arm to the elbow, but no numbness. The distribution of these symptoms is non-concordant with a right C6 radiculopathy as suggested on MRI scan. The claimant explained a second cervical injection by Dr Kos less effective with shorter duration of benefit. Dr Little, neurosurgeon, advised he could have a further injection and that surgery could not be ruled out. Considering all the evidence including verbal evidence from the claimant, the Panel decided to accept a continuing cervical spine soft tissue injury despite the lack of a continuing reference in the GP notes, admitted to being sketchy by their author, but not cervical radiculopathy for these reasons.

•   Right shoulder soft tissue injury - The Panel did not accept that the accident was a cause of this injury because the right shoulder is not mentioned in any of the contemporaneous records (ambulance, hospital). At re-examination, the claimant explained that the tyre rubber struck him on the right side of neck/head and right upper trapezius, but not the shoulder. He described symptoms radiating from the right side of neck to the trapezius, deltoid and lateral upper arm the elbow. There was never any imaging ordered for this part. Furthermore, the Panel notes that Dr Endrey-Walder’s report of 21/11/2012 records ‘the right shoulder seems to be okay’ with full range of rotatory movement at the shoulder girdles. Dr Oakeshott’s report of 29/05/2014 records that his neck was uncomfortable at times, but no right shoulder complaints and full range of painless movement of his neck and both shoulders.”

35. Finally, the Review Panel assessed the plaintiff’s WPI as follows:

“•   Cervical spine – redefined as soft tissue injury – the Panel found cervicothoracic DRE category II or 5% WPI, based on its examination findings of dysmetria. The Panel notes a previous permanent impairment determined by SIRA of 5% WPI from a previous accident, and subtracted this amount from the current WPI, 5% - 5% = 0% WPI. (Motor Accident PIG 1/06/2018 clause 1.32 page 11. For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments). The Panel considered a prior unchallenged WPI assessment by a SIRA Assessor is accurate information on a prior permanent impairment in the same body region.

•   Right shoulder – as above the Panel determined the accident not a cause of direct right shoulder injury, however, at re-examination, the right shoulder ROM was reduced by referred symptoms from the neck, attracting an assessable impairment under the Nguyen judgement. The left shoulder also had some restriction in ROM, limited not by referred pain but by (constitutional) shoulder stiffness, with the claimant informing the Panel that the left shoulder movement felt ‘normal’ for him. Therefore, the Panel decided the left shoulder ROM could be used as a baseline ‘uninjured joint’, and using their clinical skills and experience to note that as a person ages there is a naturally occurring loss of full range of movement to the shoulders. For the right flexion 120° gives 4% UEI, abduction 110° gives 3% UEI and internal rotation 70° gives 1% UEI. 4% + 3% + 1% = 8% UEI. On the left side, flexion 140° gives 3% UEI. 8% - 3% = 5% UEI or WPI. (Motor Accident PIG 1/06/2018 clause 1.51, page 14. It is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury).”

36. The Review Panel’s certificate certified the plaintiff with a WPI arising from the accident of 5% in respect of the combined injuries to the cervical spine with referred symptoms to the right shoulder, and the right middle finger (the first decision under review). As outlined earlier in this judgment, the MAS also issued a review combined certificate combining the assessment of Assessor Fernandes with that of the Review Panel, certifying the plaintiff’s total degree of permanent impairment as a result of the accident at 10% (the second decision under review).

Judicial review generally

37. 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 court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).

The guiding principles

38. In these proceedings, the plaintiff argues that each of the errors identified in order (1) of the further amended summons are:

1. errors of law on the face of the record, and/or

2. jurisdictional errors and/or

3. constructive failure to exercise statutory power.

39. All that is required for the plaintiff to establish his case and enliven the Court’s power to issue remedies is for the Court to find an error of law on the face of the record. Errors of law on the face of the record need not be errors going to jurisdiction.

40. A medical assessor’s and Review Panel’s reasons form part of the record, because s 61(9) of the MAC Act requires it to give reasons.

41. As to the issue of jurisdictional error, the plaintiff pleaded that the errors include a constructive failure to exercise jurisdiction.

42. In Rodger v De Gelder (2015) 71 MVR 514 (“De Gelder”), the Court of Appeal stated at [95] per Gleeson JA (MacFarlan and Leeming JJA agreeing):

“[95] Jurisdictional error includes a constructive failure to exercise jurisdiction. A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Yusuf at [41] per Gaudron J.”

43. The question for this Court is whether the plaintiff has established relevant error(s) of law on the face of the record or jurisdictional error(s) that warrant the Court to exercise its discretion to quash the decision. That is the nature of judicial review proceedings, as distinct from an appeal or review on questions of law, fact or discretion.

Grounds of judicial review

44. The plaintiff submitted that there are a number of jurisdictional errors and/or errors of law on the face of the record of the Review Panel’s decision. Alternatively, the plaintiff submitted that the Review Panel constructively failed to exercise its statutory power in reaching its decision.

45. Specifically, the plaintiff submitted that the Review Panel erred in the following respects:

1. by purporting to assess impairment of the right upper extremity using the 70° measurement for external rotation, in non-compliance with cl 1.50.3 of the PI Guidelines; and

2. by assessing the plaintiff as having a 5% WPI in respect of his injuries to the cervical spine, but then deducting 5% WPI for pre-existing injury on the basis of a medical assessment in 2005, in non-compliance with cl 1.31 of the PI Guidelines.

46. I will consider these two grounds in turn.

Ground 1 – measurement of the right shoulder movement

The plaintiff’s submissions

47. When assessing impairment of the right upper extremity, the Review Panel recorded two measurements for external rotation: 50° and 70°. It then used the 70° measurement to calculate the plaintiff’s impairment on the basis that it represented his “best effort”. The Review Panel’s decision to use the 70° measurement resulted in a WPI of 3% in respect of the right upper extremity, whereas the 50° measurement would have resulted in a WPI of 4%.

48. The plaintiff submitted that the Review Panel’s approach to calculating WPI in relation to the right upper extremity was impermissible for two reasons. The first is that if the Review Panel considered the 50° measurement unreliable, pursuant to cl 1.50.3 of the PI Guidelines, it was required to measure the active range of movement at least two more times.

49. Clause 1.50.3 provides:

“1.50.3 If the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions.”

50. The plaintiff argued that in circumstances where two measurements were inconsistent, the PI Guidelines did not permit the Review Panel to measure the active range of movement only twice and to then select the measurement that produced the lower WPI score. The plaintiff submitted that the Review Panel’s actions were wrong in law and unfairly prejudicial.

51. The second reason the plaintiff argued that the Review Panel’s approach was erroneous was because it was based upon an unfounded assumption that the higher measurement was a truer representation of the plaintiff’s restriction of movement. The plaintiff submitted that it is equally likely that the measurement of greater range of movement was an outlier that could not be reproduced.

52. In Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 (“Hossain”), the High Court stated at [23]:

“[23] Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have ‘such force and effect as is given to it by the law pursuant to which it was made.’”

53. In Hossain, the High Court further stated at [27]:

“[27] …The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.”

54. The errors which the plaintiff alleges under this ground of judicial review go to the exercise of power by the Review Panel, and in particular, to breach of conditions which the statute expressly or impliedly requires to be observed.

55. The plaintiff noted that the Court of Appeal has found that the PI Guidelines have statutory force, and that a failure to comply with SIRA guidelines can constitute a constructive failure to exercise jurisdiction. The plaintiff noted that the Review Panel’s alleged non-compliance with the PI Guidelines in this respect had a significant material effect to the outcome, because if the lower measurement of 50° had been used, the difference in whole person impairment would have changed the overall combined WPI from 10% to 11%, thereby entitling the plaintiff to damages for non-economic loss.

56. The plaintiff submitted that as a result of this error, the decision is void and should be set aside.

The insurer’s submissions

57. The insurer submitted that the Review Panel did not err in calculating the plaintiff’s impairment from the 70° measurement for external rotation. The Review Panel was aware of the importance of measuring the range of movement of the plaintiff’s right shoulder. It noted the plaintiff’s complaint that the assessor had failed to consider whether the plaintiff suffered from referred symptoms in the right shoulder as a result of his neck injury. In its reasons which addressed the issue of the injury at p 4, the Review Panel referred to the decision of this Court in Nguyen v Motor Accidents Authority [2011] NSWSC 351.

58. Like the medical assessor, the Review Panel found that that the plaintiff did not suffer a direct injury to his right shoulder. However, the Review Panel was satisfied that the plaintiff had referred symptoms in his right shoulder caused by the injury to his neck.

59. As is required under both the PI Guidelines and the AMA4 Guides, the Review Panel then assessed permanent impairment of the right shoulder using the “range of motion” method. This method required the Review Panel to measure the active range of motion of both of the plaintiff’s shoulders. The Review Panel then took the range of motion of the left shoulder, which was not the site of any alleged injury or impairment, as indicating the plaintiff’s “normal” range of shoulder movement. That measurement served as the baseline for assessing any reduction in right shoulder movement caused by pain or impingement. The Review Panel then measured the active range of movement of each shoulder, and tabulated the results on p 7 of its certificate.

60. As outlined in the plaintiff’s submissions, the Review Panel measured external rotation of the right shoulder as “50°, 70° - best effort 70°”, and adopted 70° for the purpose of measuring impairment. The plaintiff has submitted that the Review Panel’s decision to use the 70° measurement as representative of the plaintiff’s capable range of motion was “impermissible”, and breached cl 1.50.3 of the PI Guidelines.

61. The insurer submitted that contrary to the plaintiff’s submissions, the Review Panel did not determine that the active range of motion of 50° was not reliable. It determined only that the plaintiff was capable of an active range of motion of 70°. The insurer submitted that that determination was different, and involved the exercise of the Review Panel’s clinical judgment. In choosing 70°, the Review Panel did not err or fail to comply with the PI Guidelines.

62. In fact, the insurer submitted that the Review Panel used the same approach when measuring the active range of motion of the plaintiff's left shoulder, which was recorded as “80°, 70° - best effort 80°”. In this way, the Review Panel consistently accepted the higher range of movement of each shoulder as the range that was relevant for measuring impairment. The insurer argued that the Review Panel’s approach was logical, given that its task was to establish the range of motion of which the shoulders were actually capable. In any event, it was the approach adopted by the Review Panel in the exercise of its clinical judgment. There was no error.

Consideration

63. At the hearing of these proceedings, counsel for the defendant agreed that the Review Panel’s assessment was governed by cl 1.50.3 of the PI Guidelines (T 29.45). The question for this Court to consider is on what terms.

64. Clause 1.50.3 states that in situations where a medical assessor is not satisfied that the results of a measurement are reliable, he or she should measure active range of motion with at least three consistent repetitions. In interpreting cl 1.50.3, counsel for the plaintiff argued that the word “should”, as opposed to “may” or “might”, provides a clear directive (T 10.6-7). Counsel for the defendant disagreed, noting that the decision of the draftsperson not to use the word “must” suggests that the clause is advisory and not determinative (T 30.14-15).

65. Counsel for the defendant also submitted that the context in which cl 1.50.3 appears in the relevant guidelines is important. Guide 3.1a of the AMA4 Guides also refers to evaluation of the hand and upper extremity, and relevantly states:

“In evaluation of restriction of motion of the hand and upper extremity, the full range possible of active motion should be carried out by the subject and measured by the examiner. Several repetitions may be performed to obtain reliable results.”

66. The defendant submitted that in the context of this similar provision in the AMA4 Guides, cl 1.50.3 of the PI Guidelines merely provides for an examiner to repeat a measurement for active range of motion to obtain a result which is reliable.

67. I do not agree that the use of the word “should” gives rise to the same imperative as “must”, which is used elsewhere in the PI Guidelines. However, even if I were to grant that cl 1.50.3 provides a “clear directive” as the plaintiff submits, it is not clear that the Review Panel has failed to comply with the clause on its terms.

68. Clause 1.50.3 states that a medical assessor should elicit three consistent repetitions from the plaintiff in situations where he or she is not satisfied that the results of a measurement are reliable. The plaintiff submitted that by necessity, because the Review Panel chose to base its WPI score off of the 70° measurement, it must have considered that measurement to be reliable and the 50° measurement to be unreliable. I do not agree. The Review Panel took two measurements of the plaintiff’s range of movement in respect of both of his shoulders. The active range of motion of his left shoulder was recorded as “80°, 70° - best effort 80°”. His right shoulder was recorded as “50°, 70° - best effort 70°”. From both sets of measurements, the Review Panel chose the greater range as representing the plaintiff’s best effort. It does not follow by necessary implication that the other, lower measurement was unreliable. Rather, the Review Panel determined in the exercise of its clinical expertise that the lower measurements were not representative of the plaintiff’s full capabilities.

69. In Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284, Basten JA (with McColl JA agreeing) set out the proper standard to which a Medical Appeal Panel’s reasons will be held at [121]-[122]:

“[121] Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant’s condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.

[122] On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment…”

70. Although Vegan concerned statutory medical assessments made under the NSW workers compensation legislation, the same standard of reasons applies to the Review Panel in this case.

71. Basten JA in Vegan continued at [128]:

“[128] No doubt the assessment of physical impairment involves matters of evaluation and judgment by medical specialists. Such matters are often not reducible to precise explanations, and the choice of a particular figure will only be a point within a legitimate range. The content of reasons must be assessed with those factors in mind...”

72. I bear this standard in mind when I assess the Review Panel’s approach in this case.

73. I also bear in mind that cl 1.40 of the PI Guidelines directs medical assessors to use the entire range of their clinical expertise when assessing the accuracy and plausibility of measurements for range of motion. Clause 1.40 states:

“Consistency

1.40   Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of the injured person’s efforts. The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.” (emphasis added)

74. In light of this clause, as well as the language of cl 1.50.3 which is phrased in terms of the satisfaction of the assessor, is my view that the Review Panel’s approach to assessing the plaintiff’s active range of motion in relation to the right arm was not in error. Rather, its decision to use the 70° measurement as representative of the plaintiff’s capability was an exercise of its clinical judgment. As such, it is my view that it was not in breach of the statutory conditions, and that the Review Panel’s reasons reveal no error of law. This ground of review fails.

Ground 2 – pre-existing impairment of the neck

The plaintiff’s submissions

75. The plaintiff submitted that cl 1.31 of the PI Guidelines may be summarised in the following way:

1. The evaluation of permanent impairment may be complicated by the presence of pre-existing impairment.

2. If there is objective evidence of:

1. pre-existing, and

2. symptomatic, and

3. permanent impairment, that is

4. in the same region, and

5. existed at the time of the accident,

then its value must be calculated and subtracted.

3. If there is no objective evidence of:

1. pre-existing, and

2. symptomatic, and

3. permanent impairment,

then its possible presence should be ignored.

76. As such, the plaintiff argued that the clause consists of an introduction (limb 1), an imperative (limb 2) and a prohibition (limb 3).

77. The plaintiff submitted that the clause cannot be construed in a way that means that the evidence itself must be dated “at the time of the accident”. It is impossible, or at least very unusual, that there could exist an objective assessment of the plaintiff’s pre-existing impairment at the exact time of the accident.

78. In IAG Limited t/as NRMA Insurance v Chahoud [2019] NSWSC 767 (“Chahoud”), Bell P stated at [70]:

“[70] IAG submitted that…the proper officer wrongly construed cl 1.31 as requiring that the evidence itself be dated ‘at the time of the accident’. It submitted that the clause should instead be read as requiring that there be ‘evidence of pre-existing impairment at some time prior to the accident, that likely still existed at the time of the accident.’ What was ‘likely still to exist’, in other words, were not records of any pre-existing impairment, but the pre-existing impairment itself.”

79. In Chahoud, his Honour found at [73]:

“[73]…The statement ‘[e]ven if I were satisfied that the record was close enough in proximity to the accident to make a deduction’…makes clear that the proper officer was previously concerned with the timing of the record, as distinct from the injury. In this regard, the proper officer erred.”

80. In these proceedings, the Review Panel referred to the previous certificate of Assessor Mackie issued on 28 September 2004 (“the 2004 assessment”), which assessed the plaintiff’s injuries from a motor vehicle accident in 2000. The Review Panel noted that the 2004 assessment had certified the plaintiff as having a WPI of 5% in respect of the cervical spine, but that the plaintiff told the Review Panel that the previous impairment should be ignored, as it was not symptomatic at the time of the subject accident.

81. The Review Panel then noted the assessment of Assessor Wong issued on 16 December 2005 (“the 2005 assessment”) in respect of the same 2000 accident. The 2005 assessment had also certified the plaintiff as having a WPI of 5% in respect of the previous impairment of the cervical spine.

82. The plaintiff noted that in making its assessment of WPI in respect of the cervical spine, the Review Panel made a deduction for pre-existing impairment. However, it did so without reference to, or application of, cl 1.31, instead jumping straight to cl 1.32, which deals with methodology for assessing pre-existing impairment.

83. The Review Panel stated:

“Cervical spine - redefined as soft tissue injury - the Panel found cervicothoracic DRE category 11 or 5% WPI, based on its examination findings of dysmetria. The Panel notes a previous permanent impairment determined by SIRA of 5% WPI from a previous accident, and subtracted this amount from the current WPI, 5% - 5% = 0% WPI. (Motor Accident PIG 1/06/2018 clause 1.32 page 11. For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments). The Panel considered a prior unchallenged WPI assessment by a SIRA Assessor is accurate information on a prior permanent impairment in the same body region.”

84. The plaintiff submitted that the Review Panel’s approach was erroneous because before it went on to apply the assessment methodology, it failed to address the threshold issue of whether a deduction for pre-existing impairment was authorised, required and/or prohibited under cl 1.31.

85. Clause 1.31 only required that a deduction be made for pre-existing impairment if there was “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”. The plaintiff submitted that there was no evidence that the impairment that was assessed by the previous MAS assessment nearly six years prior to the subject accident was still in existence at the time of the accident. The fact that the impairment had, at that time, been assessed as “permanent” is not evidence that it was still in existence, or symptomatic, six years after the assessment.

86. Clause 1.19 of the PI Guidelines provides that “A permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% whole person impairment (WPI)) in the next year with or without medical treatment.” The plaintiff argued that pursuant to cl 1.19 of the PI Guidelines, the medical assessor’s assessment of 5% for soft tissue injuries in 2005 was made on the basis that the assessment was unlikely to change by more than 3% within the next year. It was not evidence of permanent impairment at the time of the subject motor accident. As such, the plaintiff argued that the mandatory requirement in cl 1.31 was not engaged.

87. The plaintiff submitted that the Review Panel erred in failing to inquire into the plaintiff’s level of symptomatic impairment at the time of the accident, instead relying upon outdated evidence, and accordingly made a deduction for pre-existing impairment that was not permitted by the PI Guidelines.

84. The plaintiff referred to IAG Limited trading as NRMA Insurance v Tran (2015) 70 MVR 105, in which Hall J stated that a “no evidence” ground of review had been considered by the Court of Appeal in Origin Energy LPG Ltd v BestCare Foods Ltd [2013] NSWCA 90 (“BestCare”). In BestCare, Ward JA (with Macfarlan and Hoeben JJA agreeing) stated at [89] that the question is “not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.”

85. In these proceedings, the plaintiff submitted that the finding of fact made by the Review Panel that there was evidence of pre-existing “permanent impairment” of the neck injury “as defined by SIRA” was not supported by logically probative evidence, because there was no evidence of symptomatic impairment at the time of the accident.

86. The plaintiff further submitted that the Review Panel denied the plaintiff procedural fairness by failing to put to him the proposition that he was in fact suffering from symptomatic impairment at the time of the accident.

87. The plaintiff noted that the obligation to afford procedural fairness exists at general law. In Frost v Kourouche (2014) 86 NSWLR 214, the Court of Appeal (per Leeming JA with Beazley P and Basten JA agreeing) stated at [31]:

“[31] It was common ground that the panel was obliged to accord procedural fairness to Ms Kourouche. The ‘common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97]….”

92. The Court of Appeal further stated at [41]:

“[41] Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. Gleeson CJ said that ‘Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice’: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. In connection with the Act, in McKee at [8], Allsop P said that ‘procedural fairness would require any and all necessary steps to ensure a fair hearing’.”

93. The plaintiff submitted that in the alternative, the Review Panel denied him procedural fairness by failing to respond to his substantial and clearly articulated argument in his submissions. According to the plaintiff, the Review Panel noted the submissions, but did not respond to them in its determination of the issue.

94. In Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443 at [19]-[20], Basten JA addressed the legal obligation of administrative decision-makers to take particular evidence into account, stating:

“[19] … In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] (Dranichnikov), Gummow and Callinan JJ stated:

‘To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.’

[20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [81] (Miah) where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued:

‘However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah’s application and could only have failed to do so because he misunderstood what is involved in the Convention definition of “refugee”.’”

95. In De Gelder, Gleeson JA (with MacFarlan and Leeming JJA agreeing) held that the review panel in that case had failed to respond to a substantial argument raised by the claimant, stating at [109]:

“[109] Here the Panel failed to respond to a substantial argument based on evidence relied upon by Mr De Gelder as to the causation of his thoracic spine injury by the motor accident. It may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under s 58(1)(d), because it misunderstood a significant body of evidence relevant to its non-medical determination. What the Panel did amounted to a jurisdictional error. The Panel’s decision recorded in its certificate is to be regarded as a purported and not real exercise of its statutory function in s 58(1)(d), leaving that statutory function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge by way of judicial review: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ).”

96. The plaintiff submitted that by failing to respond to his substantial and clearly articulated arguments, the Review Panel failed to afford him procedural fairness and constructively failed to exercise its jurisdiction.

The insurer’s submissions

97. In relation to this alleged error, the insurer noted that the Review Panel referred to two previous medical assessments of permanent impairment of the neck arising from the accident on 30 August 2000. The first was the 2004 assessment, which assessed permanent impairment of the neck at 5% by reason of dysmetria, which is an asymmetrical range of neck movements, and guarding. The second was the 2005 assessment, which assessed the same degree of impairment of the neck for the same reasons.

98. On its own clinical examination of the plaintiff’s neck, the Review Panel found asymmetrical ranges of motion of lateral flexion to the right and to the left, and some intermittent guarding. Those were the same clinical findings reached by 2004 and 2005 assessments. The insurer submitted that it was this evidence which led the Review Panel to the same assessment of permanent impairment of 5%.

99. The insurer further argued that the prior assessment of the neck in 2005 was of “permanent” impairment. As such, the Review Panel was correct to find that the 2005 assessment represented “objective evidence of a pre-existing impairment” of the cervical spine for the purposes of cl 1.31 of the PI Guidelines. The insurer submitted that there was no error in the Review Panel’s approach. It was not required to “put to” the plaintiff that he had a previous assessment of permanent impairment of the neck, of which the plaintiff was obviously already aware.

100. In any event, the Review Panel recorded the plaintiff’s stated history that “He had had a previous motor vehicle accident in 2000 with an injury to the cervical spine and a right hip tear, but these injuries had resolved prior to the subject accident” on 14 November 2011. The plaintiff informed the Review Panel that his prior neck injury had resolved before the accident in 2011. The Review Panel took that history into account, but in the exercise of its discretion preferred the 2004 and 2005 assessments of permanent impairment, as it was entitled to do.

Consideration

101. Clause 1.31 of the PI Guidelines states that if there is “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”, the medical assessor must calculate the pre-existing WPI value and subtract it from the current WPI value. As the recent case of Chahoud makes clear, cl 1.31 does not require the evidence of injury to be dated at the time of the accident. Instead, the clause requires that there be evidence that the injury existed at the time of the accident ([70]-[74]). In Chahoud, the proper officer was found to have erred by incorrectly focusing on the timing of the medical record, as distinct from the injury.

102. The Review Panel’s reasons for making a deduction in respect of the plaintiff’s previous injury to the cervical spine are extracted earlier in this judgment. The reasons state, “[T]he Panel found cervicothoracic DRE category 11 or 5% WPI, based on its examination findings of dysmetria. The Panel notes a previous permanent impairment determined by SIRA of 5% WPI from a previous accident, and subtracted this amount from the current WPI, 5% - 5% = 0% WPI.” Shortly thereafter, the Review Panel concluded, “The Panel considered a prior unchallenged WPI assessment by a SIRA Assessor is accurate information on a prior permanent impairment in the same body region.” The plaintiff submitted that in these reasons, the Review Panel erroneously considered medical assessments from 2004 and 2005 to be evidence of pre-existing, symptomatic permanent impairment at the time of the subject accident in 2011.

103. Much was made, both in written and oral submissions, of the meaning of the word “permanent” in the context of the plaintiff’s impairment.

104. Clause 1.19 of the PI Guidelines, reproduced at [17] of this judgment, outlines permanent impairments in the context of the guidelines. Counsel for the plaintiff emphasised that pursuant to cl 1.19, a “permanent” impairment is merely one which is considered to be unlikely to change by more than 3% WPI in the next year with or without medical treatment. As such, assessments of permanent injury in 2004 and 2005 are not to be considered as evidence that the injury persisted in 2011. At the hearing of these proceedings, counsel for the insurer emphasised the fuller wording of cl 1.19, which states that a permanent impairment is one which “is static, well stabilised and unlikely to change substantially regardless of treatment”. Counsel for the insurer noted that often, damages are assessed more than a year after the issue of a medical certificate. No one would argue that in that time, the assessment has expired (T 32.17).

105. I agree that the Review Panel’s statement, “The Panel considered a prior unchallenged WPI assessment by a SIRA Assessor is accurate information on a prior permanent impairment in the same body region”, when read alone, seems to suggest that the Review Panel simply deducted the WPI value from the 2004 and 2005 assessments from its own calculation of impairment in 2018. If that were the case, the Review Panel may have fallen into the erroneous reasoning described in Chahoud. However, the insurer submitted that, when read as a whole and fairly, the 2004 and 2005 assessments were not the sole basis on which the Review Panel deducted 5% for pre-existing impairment.

106. Under “History”, the Review Panel stated:

“[The plaintiff] had a previous motor vehicle accident in 2000 with an injury to the cervical spine and a right hip tear, but these injuries had resolved prior to the subject accident.”

107. Under “Panel Deliberations”, the Review Panel stated:

“A MAS certificate from Assessor Mackie issued on 28/09/2004 assessed the claimant with Cervicothoracic category DRE 2 from dysmetria and guarding, giving 5% permanent whole person impairment. The claimant contended that this previous permanent impairment should be ignored as the impairment was not symptomatic at the time of the subject accident. (clause 1.33-1.35).”

108. I note that the reference to cls 1.33-1.35 of the PI Guidelines appears to be a typographical error. The intended reference is to cls 1.31-1.32.

109. Under the heading “Examination”, the Review Panel stated, “Flexion was three-quarters of normal; extension was limited to one-third normal with complaint of right arm pain; lateral flexion was one-third to the right causing pain in the right shoulder and two-thirds to and rotation was two-thirds bilaterally.” This, counsel for the insurer noted, is a finding of dysmetria. Counsel for the insurer submitted that as such, the Review Panel’s grounds for assessing the plaintiff as having 5% WPI was the same as the earlier assessors’ grounds for doing so in 2004 and 2005. The Review Panel did not merely take the earlier assessments at face value as evidence of “permanent” impairment, but made a determination from its own examinations, in the exercise of its clinical discretion, that the evidence of the described injury persisted in 2018.

110. The Review Panel was obliged to provide reasons for its findings pursuant to s 61(9) of the MAC Act. The standard by which those reasons are considered to have discharged its obligation is set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64 (“Wingfoot”). In Wingfoot, the High Court considered a similar statutory regime which provided for medical panels to assess Victorian workers compensation claims. In relation to the duty of a medical panel to give reasons for its decision, the Court stated at [55]:

“…The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, the failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”

111. Wingfoot has been applied in New South Wales in relation to both medical assessors and claims assessors under the New South Wales scheme in the MAC Act: see Frost v Kourouche (2014) 86 NSWLR 214 at [2], [40]; Zahed v JAG Limited t/as NRMA Insurance (2016) 75 MVR 1 at [34].

112. In considering the adequacy of the Review Panel’s reasons, I accept that they are not to be “minutely and finely construed with an eye keenly attuned to the perception of error”, but rather read fairly and as a whole: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Martin v Kelly [2008] NSWSC 577 (“Martin”) at [16]. In reading the Review Panel’s reasons generally, I bear in mind that they are written to inform, and “not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.

113. The Review Panel was required under cl 1.31 of the PI Guidelines to make a deduction for pre-existing impairment if there was “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident.” The plaintiff submitted that there was no evidence that the previously-assessed impairment still existed at the time of the accident. I do not agree. In its own clinical examination of the plaintiff’s cervical spine, the Review Panel found asymmetrical ranges of motion of lateral flexion to the right and to the left, and some intermittent guarding. Those were the same clinical findings reached in the 2004 and 2005 assessments. Read as a whole and fairly, it is my view that the decision of the Review Panel may be read to have considered these symptoms, in the exercise of the Review Panel’s clinical judgment, to be “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident” as provided for in cl 1.31 of the PI Guidelines. As such, the Review Panel was obliged to deduct the WPI of the pre-existing impairment from the current WPI value. The Review Panel’s reasons therefore reveal no error.

114. As to its alleged failure to afford the plaintiff procedural fairness, the Review Panel noted the plaintiff’s assertion that his prior neck injury had resolved before the subject accident. Nonetheless, it was open to the Review Panel to prefer the evidence from its own examination and from the certificates of previous assessors. By disagreeing with the plaintiff, the Review Panel did not fail to respond to his arguments. As such, it is my view that ground 2 reveals no jurisdictional error or error of law on the face of the record. This ground also fails.

Result

115. The result is that the application for judicial review fails. The further amended summons filed 30 August 2019 is dismissed.

Costs

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

The Court orders that:

(1)   The further amended summons filed 30 August 2019 is dismissed.

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

(3)   The execution of the costs order is stayed for 7 days.

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Decision last updated: 11 October 2019