Supreme Court New South Wales Medium Neutral Citation: John Hoyn v NRMA Insurance Limited [2015] NSWSC 814 Hearing dates: 7 April 2015 Date of orders: 26 June 2015 Decision date: 26 June 2015 Jurisdiction: Common Law Before: Adams J Decision: The decision of the Proper Officer is quashed and the application returned to the Authority to be determined in accordance with this judgment. The defendant is to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – referral for further medical assessment – application of s 62 Motor Accidents Compensation Act 1999 – additional information Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322 Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443; (2010) 57 MVR 157 Category: Principal judgment Parties: John Hoyn (Plaintiff) NRMA Insurance Limited (Defendant) Representation: Counsel: Mr G. Barter (Plaintiff) Mr S. Torrington (Defendant) Solicitors: Maguire & McInerney Lawyers (Plaintiff) Holman Webb Lawyers (Defendant) File Number(s): 2014/00343526 Publication restriction: None Judgment Introduction 1. The plaintiff suffered injuries in a motor vehicle accident on 24 May 2011. On 5 April 2012 a Compulsory Third Party (CTP) claim was lodged with the first defendant, NRMA Insurance Limited, which admitted fault on 16 October 2012. On 23 May 2013, there being a dispute as to the extent of his permanent impairment, if any, the plaintiff applied for an assessment by the Medical Assessment Service under the Motor Accidents Compensation Act 1999 (NSW). On 12 August 2013, Dr Mohammed Assem found injuries to the cervical spine (disc protrusion at C5-6 causing non-verifiable radiculopathy), the left shoulder (soft tissue injury) and left arm (mild left C6-7 radiculopathy) were caused by the accident and assessed the plaintiff's permanent impairment at 10%. His certificate added that the plaintiff also suffered a "limitation in right shoulder motion due to pain arising from the cervical spine" which was caused by the accident but not listed for assessment. This injury was not included in the 10% assessment. On 12 September 2013 the plaintiff applied for a further assessment to be made. On 7 April 2014 the Motor Accidents Authority referred the matter back to Dr Assem, who issued a further certificate on 15 May 2014 assessing the plaintiff's permanent impairment at 12% in respect of the injuries he had initially identified together with the left shoulder injury to which he had referred. On 5 August 2014 the plaintiff was examined anew by Dr Pierides and, following his report the first defendant, applied for a further assessment on the basis that the report provided additional relevant information about the injury which was "capable of having a material effect on the outcome of previous assessment" within the meaning of ss 62 1(a) and 62 (1A) of the Act. On 16 October 2014 the Authority advised the plaintiff that this application had been accepted and a further assessment was required. 2. On 21 November 2014 the plaintiff commenced proceedings by summons in this Court seeking judicial review of the decision by the Proper Officer of the authority, contending that the Proper Officer, in referring the subsisting assessment for further assessment, misconstrued s 62(1A) and otherwise acted outside the jurisdiction conferred by the Act. Additional relevant information 1. Dr Assem's assessment of 7 August 2013 described the plaintiff's then symptoms as including "a dull ache in the mid cervical region radiating to the left upper trapezii, left shoulder and dorsal aspect of his left upper arm". Measurements of the range of movement of both the plaintiff's shoulders revealed "limitations … to both shoulder movements … due to pain arising from his cervical spine rather than the shoulder joint". It is clear, therefore, that Dr Assem examined the plaintiff's right shoulder and observed a limitation due to pain in the joint caused by injury to the cervical spine. He noted that Dr Bodel, an orthopaedic surgeon, found on examination on 12 February 2013 that the plaintiff had a full range of motion in the right shoulder and the range of movement in the left shoulder was better than that observed by Dr Assem. Dr Assem noted that the plaintiff "explained that he experienced a spasm two weeks… [before Dr Assem's examination] that resulted in exacerbation of his symptoms" and commented that the "shoulder range of motion can vary at different times due to level of pain, anxiety or cooperation of the person being examined", concluding the plaintiff's condition was stable and enabled an assessment of Permanent Wholeperson Impairment to be made. As mentioned, the limitation in right shoulder motion was noted by Dr Assem as caused by the motor accident, but not listed for assessment by the parties. 2. Dr Assem's further assessment of 7 May 2014 noted that the list of injuries referred to a disc protrusion at C5-6 and C6-7, soft tissue injury to the left shoulder and, as to the right shoulder, "neck injury leading to the limitation of movement of the right shoulder". He again measured the range of movement in both right and left shoulders and again concluded, that the "limitations observed to both shoulder movements were due to pain arising from his cervical spine rather than the shoulder joint". 3. Dr Assem again referred to Dr Bodel's findings on examination on 12 February 2013 and repeated his earlier observation about variation in the range of motion of shoulders. He concluded the plaintiff's condition was stable and enabled an assessment of Permanent Wholeperson Impairment to be made at 12%. 4. Dr Pierides, in his report of 7 August 2014, noted that an MRI scan on 29 May 2012 of the cervical spine revealed mild degenerative change at C4-5, C5-6 and C6-7 but no neurological compromise at any level, which result was unchanged on a further MRI scan on 28 February 2014. An MRI scan of the right shoulder conducted on the same day revealed some very minor degenerative changes but no abnormalities of significance. Of significance, he thought, was the plaintiff informing him that he had not complained about his right shoulder during the first two years after the accident because the pain had only been present for about a year, with the pain intensity and location varying. Dr Pierides reviewed the documentation including, in particular, the reports of Dr Bodel and noted the content of Dr Assem's two assessments and concluded – As noted above, based on the information available, including the long gap between the initial return to work and the next review and the lack of reference to any right shoulder symptoms during April 2012, it is difficult to understand how the right shoulder could be classified as being related to the subject incident. I note that … if there is a restricted range of right shoulder motion as a result of cervical injury, that this is considered part of the assessment of impairment. There was though clearly a variation in the range of motion, even between Dr Bodel's 2 examinations, and between the examination I performed today and the examinations of Dr Assem and Dr Bodel. Also, there was no evidence today that he had a restricted range of right shoulder motion as a result of any cervical injury [or, as I understand the doctor, at all]. I believe significant doubt exists as to whether there is any right shoulder injury. The evidence suggests that there was a cervical injury and a left scapula/shoulder injury in the subject accident. The decision 1. The decision of the Proper Officer (Ms Barnett) noted that there was an application for further assessment "in relation to causation of the right shoulder and degree of impairment of the right shoulder, left shoulder and cervical spine". Ms Barnett then stated the statutory requirements, namely that there is additional relevant information which is capable of having a material effect on the previous outcome. She referred to the meaning of the phrase "additional relevant information" given by Rothman J in Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443; (2010) 57 MVR 157 as being "additional to the party relying on it as grounds for further assessment", going on to note that "an opinion on an issue already canvassed is not, of itself, additional relevant information". 2. The material proposed by the first defendant as additional included clinical notes from the Northern Polyclinic received on 5 August 2013 and from the Corrimal Health Care Centre as well as the report of Dr Pierides. In respect of the former items, Ms Barnett noted that the Northern Polyclinic notes were received on 5 August 2013, predating Dr Assem's assessment of 7 August 2013 and, of course, his further assessment of 15 May 2014, the last visit to the clinic made by the plaintiff having occurred on 29 April 2013 whilst, in respect of the Corrimal Health Care Centre notes, the only new document was a "pro fit rehabilitation referral" of 8 August 2013 which also predated the application for further assessment lodged that year and contained no additional relevant information about the injuries, in particular the right shoulder injury. It followed that the clinical notes were not "additional relevant information". Ms Barnett then moved to the report of Dr Pierides, which she summarised. She noted, in particular, that the plaintiff stated that the right shoulder pain had only been present for about 12 months and Dr Pierides did not believe the plaintiff "moved through the full range of motion that he was capable of". (However, she was mistaken: this belief concerned the plaintiff's neck only and not his shoulder movements.) Ms Barnett stated – Dr Pierides is of the opinion that the right shoulder injury is not as a result of the cervical spine injury and found that there was no evidence of restricted range of right shoulder motion as a result of any cervical spine injury". Doctor expresses his doubt that there actually is a right shoulder injury and states his opinion that it has been 3 years since the subject accident and it is difficult to determine why the claimant has ongoing symptoms and the claimant has "likely fully recovered from any subject related injuries". 1. Ms Barnett concluded, in effect, that Dr Pierides' opinion that the delay in onset of symptoms affecting the right shoulder, together with the lack of any restriction apparent on his consultation, raising significant doubt as to whether there was any right shoulder injury, was additional relevant information in the sense that this opinion was not before Dr Assem at the time of his examinations of the plaintiff. Ms Barnett noted that Dr Assem "found that the 'neck injury causing a limitation in motion to the right shoulder' was related to the subject motor vehicle accident" but did not have before him Dr Pierides' opinion concerning causation which "may be capable of altering the assessment of Wholeperson Impairment on further assessment of the complainant by a suitably qualified medical assessor". Discussion 1. The presence of facts satisfying the statutory criteria for directing a fresh assessment is not a "jurisdictional fact": QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322: Basten JA (Ward JA and Young AJA agreeing) at [35]. Basten JA added (some references omitted) – [36] Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this Court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law … The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide." 1. It is true that Dr Pierides' opinion as to causation differed to that of Dr Assem, in that the effect of his consideration of the history combined with what was demonstrated on examination, was that the plaintiff demonstrated no restriction in the range of his right shoulder motion and significantly doubted any right shoulder injury. However, it is clear to the point of demonstration that Dr Assem was well aware that the plaintiff had made no complaints about his right arm or shoulder at the time of the application for assessment and, in his assessment of August 2013, noted that the plaintiff told him the worsening of his symptoms followed a "recent [in a later passage specified as two weeks earlier] spasm in his neck". The doctor concluded, as mentioned above, that the "limitations observed to both shoulder movements were due to pain arising from his cervical spine rather than the shoulder joint". Since he accepted that the cervical spine had been injured and that this gave rise to the restriction in the right shoulder, Dr Assem concluded the shoulder problem was rightly regarded as having been caused by the accident. In his second assessment of 7 May 2014, the history noted by Dr Assem was much the same as that in his earlier report but added the information that the plaintiff "is now relying on the compensatory use of his uninjured right arm for any physically demanding activities" (emphasis added). The then current symptoms noted by Dr Assem were constant neck discomfort, fluctuating in intensity depending on activity, and pain radiating to the left shoulder and upper arm with an intermittent tingling sensation in the left hand. Although there was no particular reference to symptoms in the right shoulder, he again noted limitations to both shoulder movements which he ascribed again "to pain arising in his cervical spine rather than the shoulder joint". When told of Dr Bodel's finding three months earlier of a full range of movement of the right shoulder, the plaintiff explained that he had experienced a recent neck spasm that had worsened his symptoms. Dr Assem made the point, again, about variation in the range of shoulder motion being "due to level of pain, anxiety or cooperation of the person being examined". He ultimately accepted, in addition to the injuries earlier referred to, "neck injury causing a limitation in motion to right shoulder". 2. Dr Pierides' opinion, as characterised by Ms Barnett, was based upon two facts: the first that because of the lack of reference to any right shoulder symptoms until August 2013, there was no causative link between the accident (via the neck injury) and the right shoulder complaints; and, secondly, he found no limitation in shoulder movements at all and, accordingly, no restriction in the shoulder caused by any cervical spine injury. Consideration 1. A further medical opinion as to an issue that merely differs with an earlier opinion (here, expressed by the assessor) as to that issue is not relevantly additional information. Here, the issues of delay in complaint and the lack of restriction of movement on examination (at times) were patently the subject of earlier consideration. The mere fact that Dr Pierides differed with Dr Assem as to the significance of these matters is not additional information in the relevant sense. 2. During argument with counsel I raised the difficulty for the plaintiff that the interpretation of medical reports was a question matter of fact and a different conclusion by a reviewing court was not sufficient to justify interference. In the end, I have concluded that Dr Pierides' report was not logically or rationally capable of constituting information dealing with different issues to those already considered and the subject of opinions expressed by Dr Assem. Though this concerned a question of fact, the issue of capacity is one of law. It follows that the decision of the Proper Officer must be quashed and the application returned to the Authority to be determined in accordance with this judgment. The defendant is to pay the plaintiff's 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: 26 June 2015