Supreme Court New South Wales Medium Neutral Citation: IAG Limited trading as NRMA Insurance v Milic and Ors [2020] NSWSC 885 Hearing dates: 26 June 2020 Date of orders: 10 July 2020 Decision date: 10 July 2020 Jurisdiction: Common Law Before: Johnson J Decision: 1. Pursuant to Rule 59.10(2) Uniform Civil Procedure Rules 2005, the time for the Plaintiff to bring judicial review proceedings with respect to the decision of the Medical Assessor dated 19 August 2019 is extended to 21 February 2020. 2. The decision of the Medical Assessor dated 19 August 2019 under s.61 Motor Accidents Compensation Act 1999 is set aside. 3. The decision of the Proper Officer dated 21 November 2019 under s.63 Motor Accidents Compensation Act 1999 is set aside. 4. The matter is remitted to the Second Defendant for allocation of the medical dispute to a different Medical Assessor for determination according to law in accordance with ss.58-61 Motor Accidents Compensation Act 1999. 5. No order as to costs. Catchwords: ADMINISTRATIVE LAW - judicial review - injuries sustained in motor accident - medical assessment under s.61 Motor Accidents Compensation Act 1999 - claim of error of law on face of record and jurisdictional error concerning certificate of Medical Assessor - whether failure to comply with mandatory guidelines - whether failure to give reasons as required by s.61(9) of Act - whether jurisdictional error on part of Proper Officer in refusing to order assessment by review panel under s.63 of Act - errors established concerning decisions of Medical Assessor and Proper Officer - relief granted Legislation Cited: Motor Accidents Compensation Act 1999 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Allianz Australia Insurance Limited v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 Bannister v Allianz Australia Insurance Ltd (2015) 71 MVR 203; [2015] NSWSC 796 Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 Crnobrnja v Motor Accidents Authority of NSW (2010) 55 MVR 579; [2010] NSWSC 633 Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 Garcia v Motor Accidents Authority of NSW (2009) 54 MVR 102; [2009] NSWSC 1056 Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Mulcahy v NRMA Insurance Limited (2018) 85 MVR 337; [2018] NSWCA 189 Pham v NRMA Insurance Ltd (2014) 66 MVR 152; [2014] NSWCA 22 QBE Insurance (Australia) Limited v Miller (2013) 67 MVR 322; [2013] NSWCA 442 Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 Vitaz v Westform (NSW) Pty Limited [2010] NSWSC 667 Vitaz Westform (NSW) Pty Limited [2011] NSWCA 254 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zahed v IAG Limited trading as NRMA Insurance (2016) 75 MVR 1; [2016] NSWCA 55 Texts Cited: --- Category: Principal judgment Parties: IAG Limited trading as NRMA Insurance (Plaintiff) Andjela Milic (First Defendant) State Insurance Regulatory Authority of NSW (Second Defendant) Peter Steadman in his capacity as a Medical Assessor of State Insurance Regulatory Authority of NSW (Third Defendant) Representation: Counsel: MR MA Robinson SC; Ms OJ Dinkha (Plaintiff) Submitting appearances for First, Second and Third Defendants Solicitors: Hall & Wilcox (Plaintiff) Alliance Compensation & Litigation Lawyers (First Defendant) Crown Solicitor's Office (Second Defendant) Crown Solicitor's Office (Third Defendant) File Number(s): 2020/57351 Publication restriction: --- Judgment 1. JOHNSON J: By Further Amended Summons filed in Court on 26 June 2020, the Plaintiff, IAG Limited trading as NRMA Insurance, seeks judicial review of decisions made by a Medical Assessor and a Proper Officer under the Motor Accidents Compensation Act 1999 ("MAC Act") arising from a claim made by the First Defendant, Andjela Milic, for injuries sustained in a motor accident. 2. Also joined as parties to the proceedings are the Second Defendant, State Insurance Regulatory Authority of NSW ("SIRA") and the Third Defendant, Peter Steadman in his capacity as a Medical Assessor of SIRA ("the Medical Assessor"). 3. In accordance with usual practice, the Second and Third Defendants have filed submitting appearances in which each party submits to the making of all orders save as to costs. 4. Unusually, a submitting appearance has been filed, as well, on behalf of Ms Milic, the First Defendant, by which she submits to any order of the Court save as to costs. 5. Accordingly, there was no contradictor at the hearing of the claim for relief brought by the Plaintiff. Hearing in this Court 1. Mr Robinson SC and Ms Dinkha of counsel appeared for the Plaintiff at the hearing of the Further Amended Summons. 2. A bundle of SIRA documents including the certificate of the Medical Assessor dated 19 August 2019 and the decision of the Proper Officer dated 21 November 2019 was tendered at the hearing (Exhibit A). Factual Background 1. On 4 June 2016, Ms Milic (then aged 37 years) was driving a motor vehicle in heavy rain on a public street near Cabramatta. Her vehicle became stationary and was struck from behind by another vehicle. Police attended the scene of the accident. The Plaintiff accepts that the other driver was at fault. 2. On 9 May 2019, an Application for Assessment of Whole Person Impairment ("WPI") was lodged with SIRA on behalf of Ms Milic in which a claim was made for injuries sustained in the motor accident including strain injuries to her neck, upper back, lower back and left shoulder. 3. On 14 June 2019, a Reply to Application for Assessment of WPI was lodged on behalf of the Plaintiff. 4. On 10 July 2019, SIRA wrote to the Plaintiff's solicitors advising of an appointment for Ms Milic to be examined by Dr Steadman, as Medical Assessor, on 7 August 2019. This referral occurred as there was a disagreement between Ms Milic and the Plaintiff as to whether the degree of permanent impairment she sustained as a result of the motor accident was greater than 10%: s.58(1)(d) MAC Act. 5. On 7 August 2019, the Medical Assessor assessed Ms Milic. 6. On 19 August 2019, the Medical Assessor issued a certificate for the purpose of s.61 MAC Act. In that certificate, the Medical Assessor certified that Ms Milic sustained injuries to her neck (cervical spine), upper back (thoracic spine) and lower back (lumbar spine) as a result of the motor accident and that the WPI resulting from those injuries totalled 15%, being 5% each with respect to the cervical spine, thoracic spine and lumbar spine. 7. By reason of the Medical Assessor's certification that the injuries sustained by Ms Milic in the motor accident resulted in WPI which exceeded 10%, Ms Milic became entitled to damages for non-economic loss: s.131 MAC Act. 8. On 2 October 2019, the Plaintiff lodged an Application for Review of Assessment of WPI by a Proper Officer under s.63 MAC Act. A Proper Officer is an employee of SIRA (s.62(1B) MAC Act) authorised to make decisions concerning referrals of medical assessments to a review panel under s.63 MAC Act. 9. On 23 October 2019, the solicitors for Ms Milic lodged a Reply to Application for Review of Assessment of WPI with SIRA. 10. On 21 November 2019, Jeremy Lum, as Proper Officer of SIRA, issued his written reasons for dismissing the Plaintiff's application for Review of Assessment of WPI. 11. On 21 February 2020, the Plaintiff filed a Summons in this Court seeking judicial review with respect to the decisions of the Medical Assessor and the Proper Officer. An Extension of Time is Required 1. The decision of the Medical Assessor, which is sought to be challenged in these proceedings, was made on 19 August 2019. The present proceedings were commenced by Summons filed on 21 February 2020. 2. Proceedings for judicial review of a decision must be commenced within three months of the date of the decision although the Court may extend time for commencing proceedings if it sees fit: Rule 59.10 Uniform Civil Procedure Rules 2005 ("UCPR"). 3. Accordingly, the Plaintiff requires an extension of time in which to seek judicial review of the Medical Assessor's decision. An extension of time is not required with respect to the challenge to the Proper Officer's decision made on 21 November 2019. 4. In circumstances where the statutory scheme under the MAC Act allows for a process of review of medical assessments under s.63 MAC Act and the Plaintiff sought firstly to utilise that process, it was submitted for the Plaintiff that an extension of time should be granted to allow the Plaintiff to seek judicial review with respect to the decision of the Medical Assessor, relying upon Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [91]-[92]. 5. It was reasonable for the Plaintiff to seek first to exhaust other remedies under the MAC Act concerning the decision of the Medical Assessor rather than coming immediately to this Court seeking discretionary relief by way of judicial review. Having sought a review under s.63 MAC Act, the Plaintiff was unsuccessful in that respect and then brought proceedings in this Court within three months of the decision of the Proper Officer. 6. Also relevant on this question is the fact that each of the Defendants, including Ms Milic, has filed a submitting appearance so that no party appears to oppose the application for an extension of time or the Plaintiff's claim for relief generally. 7. I am satisfied in these circumstances that an extension of time should be granted to the Plaintiff under Rule 59.10(2) UCPR to allow it to bring proceedings for judicial review with respect to the decision and certificate issued by the Medical Assessor on 19 August 2019. Framework of the MAC Act 1. Pursuant to s.60 MAC Act, a "medical dispute" may be referred to SIRA for assessment under Part 4.3 MAC Act by either party to the dispute. 2. Under s.61(1) and (2), a Medical Assessor is required to give a certificate as to the matters referred for assessment, which is then conclusive evidence as to the matters certified. A s.61 certificate is to set out reasons for any findings by the Medical Assessor as to any matter certified in the certificate in respect of which the certificate is conclusive evidence: s.61(9) MAC Act. 3. Other provisions in the MAC Act provide for the form, procedure and content of medical assessment. Section 133(1) and (2) MAC Act 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. … " 1. For the purpose of s.133(2)(a) MAC Act, the applicable Motor Accident Medical Guidelines ("MA Guidelines") in this case are those effective from 11 July 2018 which apply to motor accidents occurring on or after 5 October 1999. 2. The MA Guidelines are issued under s.44(1)(d) MAC Act and cover, amongst other things, the procedure for review of assessments under Part 3.4 MAC Act. 3. The Motor Accident Permanent Impairment Guidelines ("the PI Guidelines") are effective from 1 June 2018 and apply to motor accidents that occurred between 5 October 1999 and 30 November 2017. The PI Guidelines are issued under s.44(1)(c) MAC Act. 4. Both the PI Guidelines and the MA Guidelines are made effective by s.65(1) MAC Act. 5. The Court of Appeal has found that the PI Guidelines have (in effect) statutory force and a failure to comply with them can constitute a constructive failure to exercise jurisdiction: Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 at [14]-[22], [41]-[51], [66] and [108]. 6. In addition to the obligation to provide reasons in s.61(9) MAC Act, Clause 13.2 of the MA Guidelines requires the Medical Assessor's certificate to contain written reasons for the determination. 7. Clause 1.2 of the PI Guidelines states that the PI Guidelines are definitive with regard to the matters they address and that, where they are silent, the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edn ("AMA4 Guides") should be followed. This gives effect to s.133(2)(b) MAC Act (see [28] above). 8. Clauses 1.120 and 1.122 of the PI Guidelines make further detailed provision for the content of a Medical Assessor's report including the need for a history, examination and findings and a description of how the impairment rating was calculated with reference to relevant tables and/or figures used. 9. Further reference will be made to parts of the AMA4 Guides when considering submissions made in support of the Plaintiff's claim for relief. 10. Section 63 MAC Act allows for a party to a medical dispute to apply to the Proper Officer of SIRA to refer a medical assessment by a single Medical Assessor to a review panel of Medical Assessors for review. Application for referral may only be made "on the grounds that the assessment was incorrect in a material respect": s.63(2) MAC Act. 11. Referral of a medical assessment to a review panel may only be made "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: s.63(3) MAC Act. 12. In Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253, Basten JA (Beazley JA and Sackville AJA agreeing) observed at [19]: "First, what must be incorrect in a material respect is 'the medical assessment' and not the certificate which results from the assessment. The subject matter of a medical assessment is a 'medical dispute': s 63(1). A 'medical dispute' is defined to mean 'a disagreement or issue to which this Part applies': s 57. The Part applies to a disagreement about one of the matters (referred to as 'medical assessment matters') set out in s 58(1). These include whether the degree of permanent impairment is greater than 10%: s 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error." Relief Claimed by the Plaintiff 1. The Further Amended Summons contains grounds which allege four errors on the part of the Medical Assessor and four errors on the part of the Proper Officer. 2. As will be seen, the four grounds challenging the certificate of the Medical Assessor are overlapping. 3. The first alleged error on the part of the Medical Assessor concerned failures to comply with certain specified parts of the MA Guidelines, PI Guidelines and the AMA4 Guides, to which reference will be made when considering the first ground concerning the Medical Assessor's certificate. 4. The second, third and fourth alleged errors on the part of the Medical Assessor were described as follows in the Further Amended Summons: "(b) Second error The medical assessor was required to undertake a complete assessment of each body part referred to him. This included providing neurological assessment, passive intervertebral testing or active motion and functional testing. He wholly failed to undertake these tests and his assessment is accordingly incomplete. (c) Third Error The medical assessor was required to set out written reasons for his decision -section 61(9) of the Act and clause 13.2 of the SIRA Medical Assessment Guidelines effective 1 October 2008. He failed to set out reasons that related to the first defendant's lumbar and thoracic; how he calculated permanent impairment and what tests he administered on his examination. (d) Fourth Error The medical assessor was required by Table 7 and clause 1.117 of the SIRA Permanent Impairment Guidelines effective 1 June 2018 to set out the criteria for or indicia of a category of injury 'DRE II'. He failed to do so." 1. The four overlapping errors relied upon with respect to the decision of the Proper Officer were described as follows in the Further Amended Summons: "(a) First error The proper officer's decision was bad in law because the medical assessor's decision was bad in law and the validity of the proper officer's decision depended on the validity of the medical assessor's decision. (b) Second error The proper officer was asked by the plaintiff whether the medical assessor was required to identify what body part he had examined, and what were the results of each examination, the proper officer wrongly inferred that the medical assessor had dealt with the lumbar and thoracic separately and sufficiently. Such an inference was not reasonably open. (c) Third error The plaintiff put to the proper officer that the medical assessor failed to undertake a complete assessment of each body part referred to him. The proper officer (at reasons [12]) wrongly implied that the said testing had been undertaken. Such a finding was not reasonably open to him. (d) Fourth Error The proper officer failed to have regard to or engage with the plaintiffs arguments before him which were substantial arguments clearly made in writing concerning the medical assessor's ambiguous assessment of some evidence before him as being 'supportive' and the arguments based on DRE II - derived from Table 7 and clause 1.117 of the SIRA Permanent Impairment Guidelines effective 1 June 2018. This failure is a denial of procedural fairness." 1. The Plaintiff contends that each of the errors identified in the grounds contained in the Further Amended Summons constitute: 1. errors of law on the face of the record; 2. jurisdictional errors; and/or 3. constructive failures to exercise statutory power. 1. All that is required for the Plaintiff to establish its case is for the Court to find an error of law on the face of the record, with the "record" including written reasons for the impugned decision: s.69(3) and (4) Supreme Court Act 1970. Errors of law on the face of the record need not be errors going to jurisdiction: Garcia v Motor Accidents Authority of NSW (2009) 54 MVR 102; [2009] NSWSC 1056 at [21]-[24]. 2. It has been held that both a Claims Assessor's certificate and reasons form part of the record as the MAC Act requires reasons to be given: Pham v NRMA Insurance Ltd (2014) 66 MVR 152; [2014] NSWCA 22 at [27]. I accept that similar reasoning applies to the certificate of a Medical Assessor under s.61 MAC Act given its important statutory operation and the requirement for reasons to be set out in the certificate. 3. With respect to the claim of jurisdictional error, the Plaintiff has pleaded that the errors involved a constructive failure to exercise jurisdiction. In Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211, Gleeson JA (Macfarlan and Leeming JJA agreeing) said at [95]: "It has also been said where the relevant facts have been clearly established and the reasons show the decision-maker acted on the wrong basis in important respects, the decision-maker has failed properly to exercise their jurisdiction: Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757 ; 282 ALR 24 at [102]–[103]. 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: Minister for Immigration v Yusuf [(2001) 206 CLR 323; [2001] HCA 30] at [41] (Gaudron J)." 1. The question in these proceedings is whether the Plaintiff has established relevant error of law on the face of the record or jurisdictional error and, if so, whether the Court should exercise discretion to quash the impugned decision or decisions. 2. Review proceedings concerning the determination of a Proper Officer "are limited to determining whether the Proper Officer's opinion has been properly formed according to law": QBE Insurance (Australia) Limited v Miller (2013) 67 MVR 322; [2013] NSWCA 442 at [36] (Basten JA, Ward JA and Young AJA agreeing). Critically, the issue is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds: QBE Insurance (Australia) Limited v Miller at [36]. 3. Although the decision in QBE Insurance (Australia) v Miller involved a decision under s.62 MAC Act regarding an application for further medical assessment, it has been applied to a decision under s.63 MAC Act concerning an application for review of a medical assessment: Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171 ("Dominice"). In Dominice, Basten JA said (at [7]) that, where the Proper Officer refuses to grant a review on the basis of a legal misunderstanding as to the scope of his or her powers, there may well be grounds for judicial review of that decision. 4. The Plaintiff submits that error of law on the face of the record is demonstrated with respect to the decision of the Medical Assessor and that, if the Court so finds, the decision of the Proper Officer would fall and be quashed as well. 5. In any event, the Plaintiff submits that the decision of the Proper Officer is also affected by error of law on the face of the record and jurisdictional error. The Decision of the Medical Assessor 1. The focal point of the Plaintiff's claim for relief was the certificate dated 19 August 2019 of the Medical Assessor which has statutory force under s.61 MAC Act. 2. The Medical Assessor certified that the following injuries to Ms Milic caused by the motor accident gave rise to a permanent impairment which is greater than 10%: * Neck - strain. * Upper back - strain. * Lower back - strain. 1. The Medical Assessor certified that the following injury caused by the motor accident had resolved and gave rise to no assessable permanent impairment: * Left shoulder - strain. 1. The certificate identified formal topics including the list of injuries to be assessed, as identified in the referral letter, and the history of the motor accident provided to the Medical Assessor by Ms Milic. 2. Under a heading "Findings on Clinical Examination", the Medical Assessor recorded Ms Milic's height, weight and licence number and then stated: "On examination she was cooperative. She could heel and toe walk and hop and squat. Spine had normal alignment with no tenderness. She forward flexed to reach the floor with extension causing her pain of 10°. Lateral flexion to the right was 30° while to the left was 40°. In the seated position with rotation she had 50° to the right and 70° to the left and complained of pain In the left scapular area. No neurological deficit was noted. On examination of the cervical spine she had 30° of forward flexion with 40° of extension. She had left-sided muscle spasm, and pain around the left scapula. Dysmetria was noted with lateral flexion to the right was 20° while to the left was 30° and rotation to the right was 20° and to the left was 40°. Examination of the shoulders revealed a full range of motion with 180° of abduction and flexion, 70° of adduction and extension and 90° of Internal and external rotation. Consistency The presentation was clinically consistent and I support the complaint and reduced asymmetrical movement resulted in WPI." 1. It was submitted for the Plaintiff that there were a number of deficiencies in the clinical examination so that there had been a failure to comply with aspects of the PI Guidelines and the MA Guidelines. 2. The Medical Assessor then referred to an MRI report which was on file and then stated under a heading "Summary of Relevant Documentation": "I have seen the reports of the rehabilitation occupational specialist's Dr Sekel dated 16th of August 2017 along with Dr Sun dated 8th of June 2017. Despite the closeness of the assessments, both assessments are quite dichotomous with ranges between 0 and 15% respectively. There are very extensive clinical notations of the treating practice confirming problems of the cervical thoracic and lumbar spines without me being specific about dates. It is quite extensive and, in my opinion, supportive. I rely upon the records of Dr Lani and in particular the referral letter of 9th of June 2016 where he indicates the presence of symptoms in the spine from the date of the accident. I rely upon the accident certificate dated 9 June 2016 whether same signs are recorded In the cervical and thoracolumbar spines." 1. It was submitted for the Plaintiff that all the Medical Assessor has noted here are the widely different opinions contained in medical reports provided on behalf of the Plaintiff and Ms Milic giving rise to a medical dispute where it was said, on the one hand, that there was 0% WPI and, on the other hand, 15% WPI. 2. It was submitted that, in these circumstances, there was a particular necessity for the Medical Assessor to set out his reasons rather than merely record the controversy. This was especially so in the Medical Assessor's statement of opinion that clinical notations of the treating practice were said to be "supportive", without any indication as to how they were supportive let alone how they assisted a resolution of the substantial medical dispute with opinions of 0% WPI and 15% WPI both arising for consideration. 3. This aspect was said to support a failure to give reasons so as to constitute error for which relief should be granted to the Plaintiff. 4. The Medical Assessor then set out the following conclusions: "6. Conclusions Diagnosis and Causation I consider the documentation to be consistent and I rely upon Cervical spine musculoligamentous strain or aggravation of underlying degenerative disease Thoracic musculoligamentous strain or aggravation of underlying degenerative disease Lumbar spine musculoligamentous strain or aggravation of underlying degenerative disease The Left shoulder had referred pain clinically is from the cervical spine with application of Nguyen principles to the left shoulder (rather than a localised soft tissue shoulder joint Injury) with full recovery now is consistent and the cause In the assessment is largely inconsequential in terms of permanent impairment. Summary of Injuries Listed by the Parties and Caused by the Accident The following Injuries WERE caused by the motor accident: Neck-Strain. Upper back-Strain. Lower back-Strain. Left Shoulder-Strain - resolved." 1. It was submitted for the Plaintiff that there was, in effect, no further reasoning expressed by the Medical Assessor in the certificate before the WPI assessment was stated near the end of the certificate. 2. The Medical Assessor then referred in the certificate to permanency of impairment, with reference being made to parts of the PI Guidelines and the AMA4 Guides in a manner which is not controversial. 3. The Medical Assessor then expressed his conclusions with respect to the degree of permanent impairment in the following table: AMA/Guidelines/ Permanent Current Body Part or System Guidelines References (YES/NO) %WPI %WPI from pre-existing OR subsequent causes %WPI due to motor accident (chapter/page/table) 1 Cervical spine Chapter 3.3h of the Guides, AMA4 Yes 5% 0% 5% Chapter 3/ Page 103 table 73 2 Thoracic spine Chapter 3.3I of the Guides, Page 106 Table 73 Yes 5% 0% 5% 3 Lumbar spine Chapter 3.3g of the Guides, Chapter 3/Page 101 Table 73 Yes 5% 0% 5% 1. It was submitted for the Plaintiff that these entries in the certificate contained a number of errors. It was submitted that the entries for the "thoracic spine" and the "lumbar spine" contained erroneous references to the relevant guidelines. It was submitted that the wrong tables had been used to assess both the thoracic spine and the lumbar spine. 2. Further, it was submitted that the Medical Assessor in the certificate had moved from an uninformative description of the clinical examination and description of relevant documentation, without any analysis, to the allocation of a total 15% WPI divided into 5% WPI for each of the three stated components. No reasoning was expressed for these critical and binding conclusions. 3. The certificate of the Medical Assessor concluded in the following way: "A Current % permanent impairment 15% B Pre-existing/subsequent % permanent impairment 0% C Adjustments % for effects of treatment 0% Final % permanent impairment 15%" Errors in Certificate of Medical Assessor 1. I am satisfied that the certificate of the Medical Assessor contains a number of errors which entitle the Plaintiff to the relief sought concerning that decision. 2. By operation of s.65(1) MAC Act, in undertaking an assessment of the degree of permanent impairment of a person injured in a motor accident, the Medical Assessor was bound to comply with guidelines issued under s.44 MAC Act, including the PI Guidelines and MA Guidelines and, to the extent that they applied in the absence of applicable PI Guidelines or MA Guidelines, the AMA4 Guides: s.133(2)(b) MAC Act. 3. Clause 1.18 of the PI Guidelines sets out the three stages of assessment of the degree of permanent impairment which are to be undertaken. The second and third stages are most relevant to this application. Those stages are described in Clauses 1.18.2 and 1.18.3: "1.18.2 an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment, and 1.18.3 the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced." 1. Clause 1.120 of the PI Guidelines deals with the assessment of the spine and provides as follows: "The assessment should include a comprehensive accurate history, a review of all relevant records available at the assessment, a comprehensive description of the individual's current symptoms, a careful and thorough physical examination and all findings of relevant diagnostic tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The medical assessor should record whether diagnostic tests and radiographs were seen or whether they relied on reports." 1. The Medical Assessor was required to assess the degree of permanent impairment arising from the strain injuries alleged by Ms Milic to her neck, upper back, lower back and left shoulder. That required the Medical Assessor to undertake a physical examination of Ms Milic's cervical spine, thoracic spine, lumbar spine and left shoulder and to set out his findings in respect of the examination of each of those body parts. 2. Clauses 1.111 of the PI Guidelines states that "only the diagnosis-related estimate (DRE) method is to be used for evaluating impairment of the spine" as modified by the PI Guidelines. 3. The DRE method involves the categorisation of spinal impairments into one of five categories designated DRE I to DRE V. The DRE category determines the percentage impairment to be ascribed to a spinal impairment. Categorisation into DRE I and DRE II results respectively in a percentage impairment of 0% and 5%. 4. Clauses 1.129 and 1.130 of the PI Guidelines provide for DRE I and DRE II descriptors: "1.129 DRE I applies when the injured person has symptoms but there are no objective clinical findings by the medical assessor. DRE II applies when there are clinical findings made by the medical assessor, as described in the Sections 'Description and Verification' (pages 102-107, AMA4 Guides) with the amendments in clause 1.125, for each of the three regions of the spine. Note that symmetric loss of movement is not dysmetria and does not constitute an objective clinical finding. 1.130 When allocating the injured person to a DRE category, the medical assessor must reference the relevant differentiators and/or structural inclusions." 1. The Medical Assessor did not state expressly that he carried out a physical examination of Ms Milic's thoracic spine or lumbar spine, nor did he set out any specific finding in relation to those areas of her body, let alone any finding which would warrant categorisation of each of Ms Milic's thoracic spinal impairment and lumbar spinal impairment as DRE II. 2. I will return to this aspect in the context of the alleged fourth error which raises related issues (at [95] below). 3. In addition, the Medical Assessor was required to apply the applicable tables from the AMA4 Guides. He wrongly applied Table 73 (the cervical table) of the AMA4 Guides to Ms Milic's injuries to the lumbar spine and thoracic spine. 4. Further, the Medical Assessor was required by Table 8 and Clause 1.124 of the PI Guidelines to determine dysmetria (or non-uniform loss of spinal motion) by including in his examination three planes of motion for the cervicothoracic spine (flexion/extension, lateral flexion and rotation), two planes of motion for the thoracolumbar spine (flexion/extension and rotation) and two planes of motion for the lumbosacral spine (flexion/extension and lateral flexion). There is no evidence that these requirements were complied with. 5. The Medical Assessor was required in this respect (Table 8) to record the range of spinal motion as a fraction or percentage of the normal range, such as cervical flexion is three-quarters or 75% of the normal range. The Medical Assessor failed to do this and wrongly recorded measurements as degrees and not as a fraction or percentage as required in Table 8 of the PI Guidelines. 6. In addition, the Medical Assessor was required to undertake a complete assessment of each body part referred to him with this including the provision of neurological assessment, passive intervertebral testing or active motion and functional testing. Testing of this type was not undertaken. 7. I am satisfied that the first and second errors relied upon by the Plaintiff have been made out. 8. The third error relied upon by the Plaintiff with respect to the Medical Assessor's certificate relates to the alleged failure to give written reasons for his decision in accordance with s.61(9) MAC Act and Clause 13.2 of the MA Guidelines. 9. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot"), French CJ, Crennan, Bell, Gageler and Keane JJ (at [55]) described the duty of a medical assessment panel (under Victorian legislation) to give reasons: "... 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." 1. The decision in Wingfoot has been applied in this State with respect to medical assessors and claims assessors under the MAC Act: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [2] (Basten JA) and [40] (Leeming JA, Beazley P and Basten JA agreeing) (medical assessors) and Zahed v IAG Limited trading as NRMA Insurance (2016) 75 MVR 1; [2016] NSWCA 55 at [34] (Emmett AJA, Leeming and Meagher JJA agreeing) (claims assessors). 2. It was necessary for the Medical Assessor's reasons to disclose "the actual path of reasoning" by which he arrived at the opinions concerning WPI contained in the certificate. If the Medical Assessor's certificate fails in this respect, then error of law on the face of the record has occurred: Wingfoot at [55]. 3. The "actual path of reasoning" should be apparent in the reasons, although this requirement may be achieved by incorporating a reference to a source document (such as an expert's report) where a particular statement is said to be accepted: Mulcahy v NRMA Insurance Limited (2018) 85 MVR 337; [2018] NSWCA 189 at [36]-[42]. That is not what occurred in this case. 4. I am satisfied that the Medical Assessor has simply set out his conclusion that the permanent impairment referable to Ms Milic's thoracic spine and lumbar spine was 5% for each of those body parts, without setting out his actual path of reasoning as to how he arrived at those conclusions. 5. In considering this ground, I have kept in mind the need to fairly and practically read the certificate of the Medical Assessor who is a medical practitioner and not a lawyer: Vitaz v Westform (NSW) Pty Limited [2010] NSWSC 667 at [61]; Vitaz Westform (NSW) Pty Limited [2011] NSWCA 254 at [34]. There remain, however, minimum legal standards to be applied where the actual path of reasoning of the Medical Assessor must be apparent on the certificate. That did not happen in this case. 6. The Plaintiff has established that there was a failure on the part of the Medical Assessor to comply with the duty to give reasons in this regard so that error of law on the face of the record is demonstrated: Wingfoot at [28], [55]. 7. The fourth error relied upon by the Plaintiff with respect to the Medical Assessor's certificate concerns the suggested failure on his part to assess impairment of the spine by use of the DRE method in accordance with Clause 1.111 of the PI Guidelines. This alleged error overlaps with aspects of the first and second errors considered earlier (at [77] to [80]). 8. The Medical Assessor did not expressly state the DRE categorisations for Ms Milic's thoracic spinal impairment and lumbar spinal impairment. It is, however, implicit from the Medical Assessor's determination of a 5% permanent impairment to each of the thoracic spine and lumbar spine, that the Medical Assessor categorised her thoracic spinal impairment and lumbar spinal impairments as falling within DRE II. 9. However, the Medical Assessor did not set out reasons for why Ms Milic's thoracic spinal impairment and lumbar spinal impairment each warranted qualification into DRE II as opposed to any one of the other DRE categories, in particular DRE I. 10. Clause 1.125 of the PI Guidelines provides that to determine the correct DRE category "the medical assessor may start with Table 7 in these Guidelines, and use this table in conjunction with the DRE descriptors (pages 102-107, AMA4 Guides), as clarified by the definitions in Table 8 above, with the following amendments to pages 102-107 of the AMA4 Guides...". 11. Table 7 of the PI Guidelines is titled "Assessing spinal impairment - DRE category" and sets out 22 conditions and the corresponding DRE categorisation for those conditions. 12. Clause 3.3i of the AMA4 Guides is titled "Thoracolumbar spine" and sets out eight DRE categories and the descriptors, structural inclusions and impairment rating relevant to each. 13. Clause 3.3g of the AMA4 Guides is titled "Lumbosacral Spine Impairment" and sets out eight DRE categories and the descriptors, structural inclusions and impairment relating relevant to each. 14. The requirement for a Medical Assessor to consider and apply the DRE criteria was considered by R S Hulme J in Crnobrnja v Motor Accidents Authority of NSW (2010) 55 MVR 579; [2010] NSWSC 633 ("Crnobrnja") where his Honour held that a Medical Assessor is required to reference each of the DRE criteria or differentiators when allocating an injured person to one or other of the DRE categories. His Honour stated at [31]: "Clearly relevant in this connection is cl 4.20 which, at the cost of repetition dictates that, 'when allocating the injured person to a DRE category the assessor must reference the relevant differentiators and/or structural inclusions'. It must also be recognised that the clause is not printed in bold and thus not a directive as to how the assessment should be performed but given the obligation in an assessor to provide reasons - an obligation that must extend to reasons explaining or justifying the decision - it is difficult to see how an assessor can do so without referring, expressly or by implication, to either the absence of 'objective clinical findings ' or all of the 5 matters listed in para 29 above." 1. R S Hulme J held (at [32]) that the Medical Assessor had not complied with the duty to give reasons in s.61(9) MAC Act. 2. The requirement for a Medical Assessor to reference the DRE criteria set out by R S Hulme J in Crnobrnja was considered by Hall J in Bannister v Allianz Australia Insurance Ltd (2015) 71 MVR 203; [2015] NSWSC 796 ("Bannister"). In Bannister, his Honour followed Crnobrnja and held (at [182]) that the failure to identify and apply relevant DRE criteria or differentiators may support the conclusion that the particular criteria or differentiator was not considered and/or not applied. Hall J held that the Medical Assessor in Bannister had not complied with the duty to give reasons. 3. In the present case, it is not apparent what criteria or differentiators the Medical Assessor considered and applied in arriving at his conclusion that Ms Milic's thoracic spine and lumbar spine warranted categorisation as DRE II. 4. The Medical Assessor did not address why Ms Milic fell within DRE II by making findings as to the existence of each of the criteria or differentiators set out in the AMA4 Guides as modified by the PI Guidelines. There is no appropriate indication in the Medical Assessor's decision that the statutory criteria for any of the DRE categories was considered and applied and such fundamental matters ought not be inferred: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 ("Yusuf") at [5] (Gleeson CJ). 5. I am satisfied that failure to give reasons as required in law, as occurred in Crnobrnja and Bannister, has also occurred in the present case. 6. With respect to each of the four grounds, I am satisfied that the Plaintiff has demonstrated that the Medical Assessor failed to provide reasons or otherwise did not comply with prescribed requirements so that error of law on the face of the record has been demonstrated. Challenge to the Decision of the Proper Officer 1. As the decision of the Medical Assessor is to be set aside, it is not strictly necessary to consider the Plaintiff's challenge to the decision of the Proper Officer. However, in case I have erred in my approach to the challenge to the Medical Assessor's certificate, I will consider briefly the challenge to the Proper Officer's decision. 2. The Plaintiff's submissions to SIRA seeking review under s.63 MAC Act of the Medical Assessor's decision contended that: 1. the Medical Assessor failed to identify whether the thoracic spine or lumbar spine were assessed and that the Medical Assessor did not carry out an appropriate and complete examination of those areas; and 2. the Medical Assessor disregarded the AMA4 Guides in categorising the injuries to Ms Milic's thoracic spine and lumbar spine as DRE II. 1. In his Statement of Reasons dated 21 November 2019 declining the review application, the Proper Officer said: "9 It Is clear from the examination findings that the Assessor incorporated the thoracic spine and lumbar spine clinical examination findings in the same paragraph. For both the thoracic spine and lumbar spine, the claimant could forward flex to reach the floor however extension resulted in pain at 10°. For the lumbar spine only, lateral flexion to the right was 30° with the left at 40°. For the thoracic spine only, rotation was 50° to the right and 70° to the left. 10 Accordingly, while I accept that the Assessor did not use the words 'thoracic spine' and 'lumbar spine' in his clinical findings, there is no reasonable cause to suspect that the Assessor failed to examine the required planes of motion for both spinal regions The clinical findings illustrate the presence of dysmetria which supports the Assessor's impairment evaluation of 5% for both spinal regions. 11 The remaining submissions take issue with the Assessor not specifying 'whether active motion and functional testing' was done and whether there was 'neurological assessment or passive intervertebral testing' of the cervical spine. 12 I note that the Assessor is specifically trained and has expertise in the provision of medical assessments. It is implied in the clinical findings that the Assessor utilises the prescribed methodology which includes active motion and functional testing The Assessor is not required to record every minute detail with respect to the procedure and processes of the examination." 1. It was submitted for the Plaintiff that it was not open to the Proper Officer to effectively fill in a gap in the Medical Assessor's reasons in the manner contained in these paragraphs. It was submitted that the approach of the Proper Officer confirmed the necessity for referral to a review panel under s.63 MAC Act as it was clear that the Proper Officer should have been satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. 2. In circumstances where the Medical Assessor's findings on examination made no reference to either the thoracic spine or the lumbar spine, it was submitted that it was not open for the Proper Officer to draw an inference as to a matter as fundamental as whether parts of the spine had been examined: Yusuf at [5]. 3. It was submitted, as well, that the Proper Officer had failed to have regard to or engage with the Plaintiff's arguments in support of the review application concerning the Medical Assessor's failure to have regard to the AMA4 Guides in categorising the injuries to the thoracic spine and lumbar spine as DRE II. 4. The Plaintiff relied upon Allianz Australia Insurance Limited v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 at [19]-[20] where Basten JA (McColl and Macfarlan JJA agreeing) emphasised the legal obligation of administrative decision makers to take particular evidence into account. Reliance was placed as well on Rodger v De Gelder (2015) where Gleeson JA (Macfarlan and Gleeson JJA agreeing) said at [109] that the review panel had failed to respond to a substantial argument raised by the claimant, thereby giving rise to jurisdictional error. 5. It was submitted for the Plaintiff that, in failing to respond to the substantial and clearly articulated argument advanced by the Plaintiff, the Proper Officer had failed to afford procedural fairness to the Plaintiff and had constructively failed to exercise jurisdiction so that his decision should be set aside. 6. I am satisfied that the decision of the Proper Officer inferred wrongly that the Medical Assessor had dealt with the lumbar spine and thoracic spine separately and sufficiently in circumstances where such an inference was not reasonably open. Although the Proper Officer was entitled to read fairly and as a whole the certificate of the Medical Assessor for the purpose of determining whether reference should be made to a review panel under s.63 MAC Act, I am satisfied that what occurred in this case was impermissible given the clear deficiencies in the certificate of the Medical Assessor. 7. The only reasonable decision open to the Proper Officer in the circumstances was to be satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and to refer the matter to a review panel under s.63 MAC Act: Dominice at [7]-[8]. 8. In these circumstances, it is not necessary to consider the fourth error asserted by the Plaintiff (at [45] above) that a denial of procedural fairness occurred in this case. 9. The Plaintiff has demonstrated jurisdictional error with respect to the decision of the Proper Officer as well. Conclusion 1. The Plaintiff has made good its claim for relief with respect to the decision of the Medical Assessor and the decision of the Proper Officer. It is appropriate to make orders setting aside these decisions and remitting the matter to SIRA for allocation of a different Medical Assessor to redetermine the medical assessment under s.61 MAC Act according to law. 2. In the event that the Plaintiff was successful in its claim for relief, the Court was informed that no application for costs was made by the Plaintiff with respect to any of the Defendants. 3. I make the following orders: 1. pursuant to Rule 59.10(2) Uniform Civil Procedure Rules 2005, I extend time to 21 February 2020 for the Plaintiff to bring judicial review proceedings with respect to the decision of the Medical Assessor dated 19 August 2019; 2. the decision of the Medical Assessor dated 19 August 2019 under s.61 Motor Accidents Compensation Act 1999 is set aside; 3. the decision of the Proper Officer dated 21 November 2019 under s.63 Motor Accidents Compensation Act 1999 is set aside; 4. the matter is remitted to the Second Defendant for allocation of the medical dispute to a different Medical Assessor for determination according to law in accordance with ss.58-61 Motor Accidents Compensation Act 1999; 5. No order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2020