Supreme Court New South Wales Medium Neutral Citation: Wehbe v Insurance Australia Ltd t/as NRMA Insurance Ltd [2015] NSWSC 1506 Hearing dates: 13 & 30 October 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Jurisdiction: Common Law Before: Davies J Decision: (1) Summons dismissed. (2) The Plaintiff is to pay the Defendants' costs. Catchwords: ADMINISTRATIVE LAW – judicial review – plaintiff injured in motor accident – pre-existing condition - whole person impairment – review of assessment – challenge to review panel's assessment – panel assessed that no permanent injuries caused by accident - whether error of law in assessing causation – whether permanent impairment resulted from injury caused by accident - whether plaintiff denied procedural fairness when not examined by panel – offer of examination not taken up by plaintiff – whether failure to follow permanent impairment guidelines – adequacy of reasons – no errors demonstrated Legislation Cited: Accident Compensation Act 1985 (Vic) Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Allianz Australia Insurance Limited v Mackenzie & Ors [2014] NSWSC 67 Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 Bugat v Fox [2014] NSWSC 888 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Jaksic v Insurance Australia Ltd, trading as NRMA [2013] NSWSC 1141 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Peachey v Allianz Australia Insurance Limited [2015] NSWSC 728 Re Coldham and ors, ex parte Municipal Officers' Association of Australia and ors (1989) 84 ALR 208 Sullivan v Department of Transport (1978) 20 ALR 323 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 Category: Procedural and other rulings Parties: Sahar Wehbe (Plaintiff) Insurance Australia Ltd t/as NRMA Insurance Ltd (First Defendant) Motor Accidents Authority (Second Defendant) Representation: Counsel: T Boyd (Plaintiff) M Allars SC (First Defendant) Submitting appearance (Second Defendant) Solicitors: Kheir Lawyers (Plaintiff) Curwoods Legal Services Pty Ltd (First Defendant) Crown Solicitors Office (Second Defendant) File Number(s): 2015/123962 Judgment 1. The Plaintiff was injured in a motor vehicle accident on 30 October 2010. The third party insurer, NRMA Insurance Ltd, disputed the degree of Whole Person Impairment and, accordingly, the matter was referred to the Medical Assessment Service of the Motor Accidents Authority for determination. 2. The Plaintiff was, relevantly, examined by Dr Richard Crane on 25 February 2014. Dr Crane issued a certificate on 6 March 2014 and found that of the injuries referred to him for assessment none was related to the motor vehicle accident. The list of injuries to be assessed were: * Cervical spine – radiculopathy, soft tissue injury; * Lumbosacral spine – radiculopathy, soft tissue injury; * Right shoulder – restriction of joint movement, soft tissue injury. 1. The Plaintiff applied for and was granted a review of the medical assessment by Dr Crane. The certificate by the Review Panel dated 20 January 2015 assessed the injuries caused by the motor accident as not greater than 10% and found that there were nil injuries related to the motor accident. 2. The Plaintiff now seeks an order in the nature of certiorari quashing the decision of the Medical Appeal Panel (said wrongly in the Summons to be dated 15 December 2014), an injunction preventing the Defendants from acting or taking any further steps in reliance on the assessment decision and an order in the nature of mandamus remitting the application to the Medical Assessment Service for reallocation to an appeal panel for determination of the matter according to law. 3. Six grounds were put forward for these orders. 1. The Medical Review Panel failed to analyse the causation issue in that it failed to apply a common sense approach to the issue in asking the appropriate question, namely, did the negligence of the Defendant, cause or materially contribute to the Plaintiff's injuries. 2. The Medical Review Panel failed to provide the Plaintiff with procedural fairness. 3. The Medical Review Panel failed to apply the permanent impairment guidelines of the Medical Assessment Service. 4. The Medical Review Panel erred in finding that the cervical spondylosis was due to constitutional factors and unrelated to the subject motor vehicle accident. 5. The Medical Review Panel erred in failing to find that the insurer was estopped by conduct in continuing to assert that causation was in issue. 6. The reasons given by the Medical Review Panel were inadequate. During the course of argument at the hearing, the Plaintiff abandoned Ground 5. Factual background The Plaintiff described the accident in her claim form dated 7 April 2011 in these terms: I was travelling in a northerly direction along Cumberland Road, Auburn with my two kids Khalil and Jacob when Registered No. DNL93X travelling in the opposite direction turned right and drove across my right of way causing a heavy collision. The diagram the Plaintiff drew showed what was almost a head on collision on the Plaintiff's correct side of the road. 1. In answer to question 25 which asked what her injuries were from the accident she said: Injury to back, neck and shoulder right, shock. 1. In answer to question 26 which asked "How do the injuries affect you now?" she answered: Stiffness in neck and back, headaches and migraines, difficulty sleeping, bending and stooping, lifting and carrying heavy objects, lifting and carrying heavy objects (sic), driving, attending to household chores, anxiety and depression, stress. 1. She identified the doctors who had treated her injuries since the accident as Dr Mazen Said (in respect of which treatment was not ongoing), Dr S Khalil (in respect of whom treatment was ongoing) and a psychologist. 2. She disclosed in answer to a question that she had had an injury to her back in January 2009. The part of the claim form required to be completed by the claimant's doctor was completed by Dr Khalil. He noted that the date of the examination was 28 February 2011. Under the heading "Medical diagnosis or description of injury" he wrote: MVA C3, 4 C4, 5 and C5, 6 disc bulge: L4, 5 and L5,S disc bulge Anxiety and stress 1. Under the heading "Clinical findings (symptoms or results of any investigations)" Dr Khalil wrote: Anxiety, headache Neck pain and stiffness (L4, 5) back pain and stiffness 1. The first time the Plaintiff saw a doctor after the accident was on 18 November 2010 when she saw Dr Said. His notes relevantly read: History: Back pain dorasal (sic) spine for years?? due to large breast. … Examination: GIT: Abdominal tenderness. No guarding. No rigidity. No rebound. No distension. No hepatomegaly. No splenomegaly. Normal bowel sounds. Abdominal tenderness: epigastric. Reason for contact: ? Helicobacter gastritis Back pain – thoracic Depression … Actions: Diagnostic imaging requested: x-ray – spine – thoracic – back pain/dorsal spine 1. The next consultation was with Dr Said on 24 November 2010 where the Plaintiff was complaining of back pain in the dorsal spine. The reason for the contact was said to be "? Bilateral breast reduction" which appears to have been related to the longstanding dorsal spine discomfort. 2. The Plaintiff consulted Dr Said again on 14 January 2011 with the reason for contact being pelvic inflammatory disease. 3. The Plaintiff saw Dr Said again on 19 January 2011. The reason for contact was tinea corporis infection and neck pain with radiculopathy. Dr Said noted that she had had neck pain with radiculopathy for two years and that she had had an x-ray for her cervical spine two years ago although Dr Said put two question marks after that statement. He requested a CT of her cervical spine because of the neck pain with the radiculopathy. It may be noted that there is no mention in Dr Said's notes at any consultation of the motor vehicle accident. 4. In a letter written to the Medical Assessment Service by the Plaintiff's solicitor on 18 March 2014 it was said that Dr Said advised the Plaintiff that he did not do third party claims and that she should see another GP for assistance. It was in those circumstances that she consulted Dr Al-Taiff on 8 February 2011. Dr Al-Taiff's notes record that the Plaintiff was involved in a motor vehicle accident in November and that she had had right shoulder and neck pain. 5. Subsequently the Plaintiff consulted Dr Khalil who I was informed was in the same practice as Dr Al-Taiff. His notes are very difficult to read. The date appears to be 28 February 2011. There is a reference in them to the neck, although in what context cannot be discerned. There is also a reference to a motor vehicle accident on 30 October 2010 6. The Plaintiff underwent a CT scan of her cervical spine on 7 March 2011. That showed a small posterior disc protrusion at C3/4 and at C4/5 impinging slightly upon the anterior aspect of the theca. The report said: When compared to the previous examination of 11/1/2010 there has been no significant change. 1. Dr Khalil provided a report to the Plaintiff's solicitors on 3 March 2012. He noted the head on collision which occurred on 30 October 2010 and that as a result of the accident the Plaintiff sustained multiple injuries to her neck, right shoulder and low back. Dr Khalil said that the Plaintiff reported pre-existing back pain and anxiety. 2. On 16 August 2011 the Plaintiff had an MRI of the cervical spine. That disclosed that at the C4/5 level there was a mild posterocentral disc protrusion impinging on the thecal sac and at C5/6 there was a large posterocentral disc extrusion which was compressing the anterior thecal sac and the anterior spinal cord. 3. The Plaintiff was referred by Dr Khalil to the neurosurgeon Dr Simon McKechnie. He saw the Plaintiff on 8 September 2011. His report dated 10 December 2014 to Dr Khalil after first seeing the Plaintiff on 8 September 2011 discloses that he was told about the motor vehicle accident and her complaints of persistent neck pain radiating into the jaw, hand and across the shoulders, worse on the right side, but there was no indication in that report or any other of his reports that he was told that the Plaintiff had suffered from neck pain and radiculopathy for some two years prior to the accident. (I should mention for clarity that 9 out of 11 reports prepared by Dr McKechnie are dated 10 December 2014 although it is clear from most of them that they were written on or just after each of the days he saw the Plaintiff.) 4. When the Plaintiff first saw Dr McKechnie she was pregnant and any consideration of an operation was delayed until after the birth of the child. She saw Dr McKechnie again on 21 June 2012 having given birth and ceased breast feeding. Dr McKechnie advised that she should undergo an anterior C5/6 discectomy and fusion with cage and bone substitute. On 3 August 2012 the First Defendant agreed to pay for the operation on a without prejudice basis. 5. On 22 August 2012 the Plaintiff underwent the procedure by Dr McKechnie. She subsequently saw Dr McKechnie on a number of occasions where she continued to complain of chronic neck and left arm pain together with lower back pain. Dr McKechnie said that a further MRI of the cervical spine demonstrated no residual nerve root impingement at the operative site. He referred her to a pain management specialist. The Panel's reasons 1. To understand the complaints made by the Plaintiff of the Review Panel's assessment it is necessary to set out the substantive parts of the Review Panel's certificate. 3. Matters Considered and Decided by the Panel The Review Panel considered afresh all aspects of the assessment under review. A. Evidence Considered The Panel considered all of the available evidence. It noted Dr Crane's Certificate. Assessor Crane concluded that, because of insufficient clinical information had been provided that was contemporaneous with the subject motor vehicle crash that the criteria for causation of the listed injuries could not be satisfied. His findings on examination were the presence of a cervical fusion, restricted range of movement at both shoulders, and no significant restriction at the lumbosacral spine. It noted that in the subject motor vehicle accident (MVA), on 30 October 2010, Mrs Wehbe did not initially appear to have sustained significant injuries. She first consulted Dr Said on 18 November 2010 (18 days after the accident) and there were five subsequent documented consultations up to and including 3 February 2011. Copies of the clinical notes from these consultations were not provided and attention to this had been drawn by Dr Crane. In an entry dated 19 January 2011 (two and a half months after the subject MVA), the clinical notes of Dr Said state "Neck pain with radiculopathy for 2 years", suggesting that there was neck pain prior to the subject motor vehicle crash. The clinical notes dated 18 November 2010 (two and a half weeks after the subject motor vehicle crash) also stated "Back pain dorsal spine for years …" Mrs Wehbe then consulted Dr Al-Taiff on 8 February 2011. A partial copy Of the clinical notes from that consultation was provided. Subsequently Mrs Wehbe consulted Dr Khalil on 28 February 2011 and clinical notes from this were provided. The Motor Vehicle Accident Medical Certificate completed on that day listed the injuries as "C3/4, C4/5, C5/6 disc bulges, L4/5 and L5/S1 disc bulges, anxiety and stress". There was no evidence of significant right shoulder injury. Imaging of the cervical spine, however, had been performed. CT scan of the cervical spine on 19 January 2011 showed "mild annual disc bulges of C4/5,C5/6". CT scan of the cervical spine on 7 March 2011 showed small disc protrusion at C5/6. However MRI cervical spine on 16 August 2011 showed significant disc extrusion, suggesting the condition had deteriorated between the two scans. The disc protrusion was more marked in the MRI of 12 June 2012, as there was suggestion of myelomalacia. The Panel noted that later there had been consultations with Dr McKechnie and an anterior cervical fusion had been performed on 22 August 2012. However, the clinical reports from Dr McKechnie had not been provided. The Panel also noted that insurer had approved funding for the surgical procedure. The Panel therefore noted that there was pre-existing neck pain for 2 years, most likely due to cervical spondylosis. The subject motor vehicle crash might have caused a soft tissue injury and temporary aggravation (that is an exacerbation) of pre-existing spondylosis, which would be expected to settle quickly. It noted that imaging of the cervical spine two and a half months after the motor vehicle crash showed a mild annular disc bulge. The imaging appearances of the cervical spine deteriorated 10 months after the subject motor vehicle crash. It is not certain what caused this but it could have been related to pregnancy or natural progression of the underlying cervical spondylosis. Because there was no significant injury to the cervical spine documented after the subject motor vehicle crash the Panel provisionally concluded that the criteria for causation, using the relevant section of the Motor Accident Authority Permanent Impairment Guidelines could not be met. Therefore the need for cervical spine surgery was causally unrelated to the subject motor vehicle crash. With reference to the lumbosacral spine the Panel accepted that there had been a soft tissue injury which had resolved. With reference to the right shoulder, the available clinical records did not establish that an injury to this body region had occurred. The Panel formed the opinion that one crucial issue was to obtain documentation with reference to the injuries from the clinical records soon after injury. In addition, the Panel wished to understand the indications for the cervical spinal fusion. Therefore, the Panel identified additional information that would assist it in its deliberations. These are the full clinical records of Dr Said, Dr Al-Taiff and Dr McKechnie. The Panel asked the Secretary to ask the parties to provide that information and resolved to convene again by teleconference on 27 October 2014 to consider the additional information. B. Additional Evidence The Panel reconvened by teleconference on 27 October 2014. It was noted that the only clinical records provided were from Dr Nairn and there were not relevant to the issues. Dr Nairn's records related oral and facio-maxillary issues which were not in the list of injuries assessed by Assessor Crane. Subsequently the clinical records of Dr McKechnie were provided with a covering letter dated 11 December 2014. The date of the first consultation with Dr McKechnie appears to be 8 September 2011. This is consistent with the referral letter from Dr Khalil, which appears to be dated 28 July 2011. At that time, ten months after the subject motor vehicle crash, Dr McKechnie accepted Mrs Wehbe's history of neck pain with widespread radiation as being present since the subject motor vehicle crash. Dr McKechnie was concerned at the findings on imaging of the cervical spine and particularly the presence of a small area of myelomalacia. A complicating factor was Mrs Wehbe's pregnancy. Eventually a cervical fusion was performed. Unfortunately Mrs Wehbe continued to have significant pain and she was referred to Dr Lam who recommended a multidisciplinary pain management program. C. Panel Deliberations The Panel reconvened by teleconference on 27 October 2014. Causation of the listed injuries was discussed. Based on the information available the Panel was in agreement with Assessor Crane that there was no permanent impairment related to injuries sustained in the subject motor vehicle crash. The reasons were that there were no clinical records available to substantiate that significant injuries, particularly related to the cervical spine, had occurred in the subject motor vehicle crash. The Panel accepted that there had possibly been an exacerbation of pre-existing cervical spondylosis, but this resolved. Furthermore, considering the finding of CT cervical spine of 7 March 2011, the Panel concluded that there was no indication that there was a cervical disc injury sustained in the subject motor vehicle crash. Since the MRI cervical spine of 16 August 2011 showed significant disc extrusion, the Panel concluded that the deterioration occurred between the two scans, it concluded that there was an alternative explanation for the cervical fusion which related to a condition that was not related to the motor vehicle crash. There was cervical spondylosis which was due to constitutional factors and unrelated to the subject motor vehicle accident. The Panel also considered other potential explanations and could not identify other circumstances that were indicative that significant injuries were sustained in the subject motor vehicle crash. The Panel also reviewed the evidence available and found no evidence of significant shoulder injuries which was sustained in the subject MVA. Therefore the previous discussion about the listed injuries to the lumbosacral spine and right shoulder were confirmed. The Panel asked the Proper Officer to write to the parties and say that unless the requested records were received in the next two weeks a decision would be made based on the information that was currently available. The Panel subsequently noted, on 15 December 2014, that the only further information had been provided was the notes of Dr McKechnie (which were from a considerable period following the motor vehicle crash), although still considered. Therefore the Panel confirmed its decision that there was no permanent impairment due to injuries related to the subject motor vehicle crash. 4. Panel Decision The Review Panel found that the accident WAS a cause of the following claimed injuries: • Cervical spine - soft tissue injury (with background cervical spondylosis) • Lumbosacral spine - soft tissue injury The Review Panel found that the accident was NOT a cause of the following claimed injuries: • Right shoulder - soft tissue injury The reasons for this decision have been provided above. The Review Panel found that the following injuries were found to be resolved and give rise to no assessable impairment: • Cervical spine - soft tissue injury (with background cervical spondylosis) • Lumbosacral spine - soft tissue injury The Review Panel considered that the following injuries give rise to a permanent impairment: • Nil injuries related to the motor accident. As noted in the sections above the injuries sustained to the cervical and lumbosacral spine in the subject motor vehicle crash have resolved and are not associated with assessable permanent impairment. (emphasis added) Submissions Grounds 1 and 3 1. The Plaintiff submitted that these grounds related to the failure of the Panel to apply the MAA's Permanent Impairment Guidelines and common law principles of causation including the Civil Liability Act 2002 (NSW). The Plaintiff submitted that the Panel limited their reasons to the absence of clinical records to substantiate the significant injuries. In that way the Panel failed to consider whether the accident had materially contributed to the condition required by cl 1.9 of the Guidelines and the Civil Liability Act s 5D. 2. The Plaintiff submitted that in finding that any exacerbation had resolved the Panel appeared to have ignored the findings of the scan of 7 March 2011 and the MRI of 16 August 2011. The Plaintiff submitted that there was no explanation as to how she would have required the cervical surgery performed by Dr McKechnie on 22 August 2012 but for the motor vehicle accident. There was no explanation as to the basis for the finding of the deterioration between the two scans. 3. The Plaintiff submitted that the Panel simply adopted the reasons of Assessor Crane in determining causation. At no time did the Panel consider the relevant question "Would this injury or impairment have occurred but for the accident?" Ground 2 1. The Plaintiff submitted that the Panel ought to have examined the Plaintiff and given her the opportunity to give her history and provide an explanation for the cervical fusion and the deterioration between the scans of March 2011 and June 2012. Ground 4 1. The Plaintiff submitted that there was no evidence for the Panel's alternative explanation for the cervical fusion, namely, that it was related to a condition that was not related to the motor vehicle crash. The Plaintiff submitted further that there was no evidence that there was a deterioration in the Plaintiff's condition between the two scans given that the MRI scan is a more sophisticated investigation. The alternative explanation made without evidence amounted to legal unreasonableness. Ground 6 1. The Plaintiff submitted that the Panel failed to give adequate reasons for its "alternative explanation" for the cervical fusion. The Plaintiff submitted that there was no reasoning process explaining how the deterioration occurred between the two scans. The Plaintiff submitted that the Panel provided no explanation of how the exacerbation of the existing spondylosis would have resolved so that what was observable on the scans was unrelated to the accident. First Defendant's submissions Grounds 1 and 3 1. The First Defendant said that it was unclear what the legal basis for these grounds were – whether it was a jurisdictional error in failing to ask itself the right question or whether there was an error of law in not taking into account relevant matters being certain documents and reports available to the Panel. 2. The First Defendant submitted that the Panel had a discretion to determine whether assessment of the Plaintiff's present position required an examination. In considering the question of causation the Panel applied the test of causation described in the Permanent Impairment Guidelines but found that the issue of causation was not met. The Panel had no evidence of any new complaint about the cervical spine or of its condition until 19 January 2011. That led the Panel to conclude that it could not answer affirmatively that the injury would not have occurred but for the accident. There was at least an evidentiary onus on the Plaintiff to provide the Panel with medical evidence of her injuries and that they were the result of the accident. This evidence was peculiarly within her knowledge and within her capacity to obtain it from treating medical practitioners. The Review Panel gave the Plaintiff the opportunity to provide it. Ground 2 1. The First Defendant submitted that the Review Panel gave notice to the Plaintiff on 11 July 2014 of its directions which included an opportunity to advise immediately in writing providing reasons if she objected to the review being conducted without an examination. She was advised that if no objection was received by 27 August 2014 the Panel would assume that there was no objection to the review being conducted without an examination. The Plaintiff made no written objection. The Panel had no material that was not previously available to the Plaintiff. No new issues were considered that were not known to the Plaintiff. The Plaintiff was given the further opportunity to provide full clinical records from Dr Said, Dr Al-Taiff and Dr McKechnie. In this way the First Defendant submitted the Plaintiff was not denied procedural fairness. Ground 4 1. The First Defendant noted that this ground raised similar considerations to those raised in grounds 1 and 3. The First Defendant submitted that there was evidence of pre-existing degenerative changes. The clinical notes of Dr Said of 18 November 2010 and 19 January 2011 referred to dorsal spine pain and neck pain with radiculopathy for years prior to the accident. Ground 6 1. The First Defendant submitted that the Panel sets out its actual path of reasoning drawing particular attention to what was found in the clinical notes of Dr Said and the otherwise absence of contemporaneous medical records concerning the condition of the Plaintiff's cervical spine after the accident. There was no requirement for the Panel to refer to the other medico-legal reports which were not provided to the assessor or to the Panel and were not requested by the Plaintiff. Consideration 1. When properly distilled, the Plaintiff's complaints fall into three areas, (1) the issue of causation, (2) procedural fairness, and (3) inadequate reasons. I will consider the matter using those headings. (1) Causation (Grounds 1, 3 and 4) 1. The First Defendant submitted that it was not clear from the oral submissions of the Plaintiff if the issue in relation to causation was a complaint that the Panel had not asked the correct question (as the written submissions suggested) or whether the issue had become that the Panel failed to take account of relevant considerations such as what appeared on the claim form (as the oral submissions suggested). 2. Although the Plaintiff's position did appear to shift a little in that way, I understood the main complaint of the Plaintiff to be that the Review Panel had not properly addressed itself to the issue of causation, and that one error they made in that regard was failing to have regard to material that pointed to the neck problems having come from the motor vehicle accident. The First Defendant did not suggest that it was disadvantaged by the Plaintiff's approach, with its senior counsel regarding the failure to take account of relevant considerations as a subsidiary version of ground 1. 3. The task being undertaken by the Panel was set out in s 58(1)(d) of the Motor Accidents Compensation Act 1999 (NSW). That paragraph provides: 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%. As the First Defendant correctly submits, there are two enquiries for the Panel into causation raised by the paragraph: first, identify the permanent impairment that is a result of the injury and, secondly, identify the injury caused by the motor accident. 1. The Permanent Impairment Guidelines state in relation to causation of the injury: Causation of injury 1.7 An assessment of permanent impairment is as prescribed under section 58(1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: "Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following. (a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. (b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination". This therefore involves a medical decision and a non-medical informed judgment. 1.9 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question "Would this injury (or impairment) have occurred if not for the accident?" may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes. [Emphasis in original.] 1. The Panel had the difficult but not uncommon task of endeavouring to reach a conclusion on causation where there was evidence of a pre-existing injury or condition to the same part of the body that may have been injured in the accident under consideration. That was no doubt why they were concerned to see all contemporaneous records of complaints and examination of the Plaintiff. 2. What was tolerably clear in the present case was that the contemporaneous material demonstrated two things. The first was that for approximately two years before the accident the Plaintiff had suffered from neck and back pain which the Panel concluded was most likely due to cervical spondylosis. The second matter was that there appeared to be an absence of the mention of any accident and the absence of complaint or injury identified to the doctor (Dr Said) that the Plaintiff first saw after the accident, and in that regard it may be noted the first time she consulted a doctor after the accident was some 19 days later on 18 November 2010. The first mention of either the accident or complaint about a neck injury in an accident was to Dr Al-Taiff on 8 February 2011. 3. It was in the light of that evidence that the Panel, having noted the pre-existing neck pain for two years most likely due to cervical spondylosis, the fact that the crash might have caused a soft tissue injury and temporary aggravation of the pre-existing spondylosis, the deterioration shown on the imaging some ten months after the accident and the fact that there was no significant injury to the cervical spine documented in the medical material, provisionally concluded that the criteria for causation in the Guidelines could not be met. 4. The Panel concluded also from the CT scan that there was no indication of cervical disc injury in the motor accident. The Plaintiff criticises the Panel for not taking account of the fact that the MRI in August 2011 showed significant disc extrusion and that an MRI is a more sophisticated investigation. The Plaintiff says that the Panel concluded without evidence that there was a deterioration between the CT scan and the MRI and that the panel provided no explanation for that deterioration. Those are matters of medical judgment and the complaints trespass into the area of a merits review. Similarly, the Plaintiff's complaint that the Panel's conclusion that the exacerbation of the pre-existing spondylosis had resolved without explanation is not a challenge to an error of law or a jurisdictional error but a complaint about a medical judgment. 5. The Panel did, in any event, provide reasons for the deterioration, being the Plaintiff's pregnancy or the natural progression of the underlying spondylosis. The panel was not required to be satisfied of any one cause in that regard. The causation issues concerned injury caused by the accident and permanent impairment from the injury. 6. The Plaintiff asserted that the Panel simply adopted the reasons of Assessor Crane. I do not agree. The Panel said that they agreed with Assessor Crane's conclusion on the causation issues but they did not purport to adopt his reasons. Rather they provided their own reasons which related to the absence of clinical records to substantiate that significant injuries occurred in the accident, the findings on the CT scan, the pre-existing spondylosis and that the need for the cervical fusion arose from a cause unrelated to the motor accident, namely, the spondylosis, 7. The Plaintiff submitted that the Panel limited its reasons to the absence of clinical records to substantiate that the injuries were sustained in the accident. As I have indicated at [42], [43] and [45], the Panel did not so confine its reasons. Unlike in Bugat v Fox [2014] NSWSC 888 at [31]-[32] the Panel has not regarded the absence of contemporaneous records as determinative, although such absence was obviously significant. 8. The Plaintiff submitted that the Panel failed to have regard to what appeared on her claim form where she described her injuries as: Injury to back, neck and shoulder right, shock She also said on that claim form that the doctors who had treated her for her injuries included Dr Said. 1. It may be noted that the claim form was dated 7 April 2011. That was more than six months after the accident, and it cannot have been regarded as contemporaneous as the medical records of Dr Said and Dr Al-Taiff. It is scarcely surprising in the light of the claim form's lack on contemporaneity and the fact that Dr Said, although said by the Plaintiff to be a doctor who treated her for her injuries, did not mention the motor accident, that the Panel did not see the need to refer to the claim form. I do not consider that the Panel failed to have regard to a relevant matter in that way. 2. The reasons given by the Panel, particularly in the passages highlighted above at [23], demonstrate that the Panel asked itself the correct question and properly applied the Guidelines when answering that question. No legal error is demonstrated. What the Plaintiff seeks to do by her submissions is to challenge the medical conclusions reached by the Panel. 3. Grounds 1,3 (insofar as it concerns causation) and 4 should be rejected. (2) Procedural fairness 1. On 11 July 2014 the Motor Accidents Authority wrote to the Plaintiff's lawyers referring to the application for review of the medical assessment. It identified the Review Panel. The letter went on to say: If you object to the review panel being conducted without an examination of the claimant, please advise immediately in writing, providing reasons why you believe an examination is required. If no objections are received by the initial conference date shown above, the panel will assume that there is no objection to the review being conducted on the documentary material provided, should they consider this to be possible. 1. The Plaintiff did not seek to be examined by the Panel. Nevertheless, the Plaintiff now complains that the Panel did not examine her and did not provide her with the opportunity to give her history and provide any relevant information relating to the alternative explanation for the cervical fusion. 2. In Sullivan v Department of Transport (1978) 20 ALR 323 Dean J (with whom Fisher J agreed) was dealing with a refusal to grant an adjournment, and said: A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. … In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act [the Administrative Appeals Tribunal Act 1975 (Cth)] nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled. 1. That statement has been approved in the context of giving a party the opportunity to be heard upon some issue with which the decision maker is concerned: Re Coldham and ors, ex parte Municipal Officers' Association of Australia and ors (1989) 84 ALR 208 at 219-220 and Jaksic v Insurance Australia Ltd, trading as NRMA [2013] NSWSC 1141 at [40]. 2. It is clear from the submissions made by both parties on the application to the Authority to review the Assessor's decision that the history of the injury and disability that followed in the context of the absence of contemporaneous documentation was a significant matter for consideration. Where the Plaintiff was given the opportunity to undergo an examination by the Panel which would necessarily involve a history taking, it cannot be said that she has been denied procedural fairness when that opportunity was not taken up by her. 3. Nor was there any obligation on the Panel under the Guidelines to arrange such an examination as the Plaintiff appears to suggest. Clause 16.21 of the Medical Assessment Guidelines relevantly provides: The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: … 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; 1. Clause 1.20 of the Permanent Impairment Guidelines relevantly provides: An assessment of the degree of permanent impairment involves three stages: … (ii) An interview and a clinical examination, wherever possible, to obtain the information specified in the MAA Guidelines and the AMA 4 Guides necessary to determine the percentage impairment; 1. It is clear that the Permanent Impairment Guidelines are relevant both to the initial assessment as well as to any re-assessment by a panel. Clause 16.21 is directed only to a review panel. The two sets of Guidelines must be read together. Whereas an examination might generally be thought necessary when a claimant is first being assessed, such an examination might often be thought unnecessary where a panel is re-assessing a claimant who was examined by the assessor. It is a matter for the discretion of the panel and there is no obligation on the panel to conduct an examination: Peachey v Allianz Australia Insurance Limited [2015] NSWSC 728 at [60]. 2. In any event, where such an examination would be taking place almost four years after the accident, statements made to the Panel by the Plaintiff at such an examination would likely be regarded with considerably less weight than what appeared and did not appear in the contemporaneous documentation from the doctors the Plaintiff consulted. In that regard, the present case is a very different one from Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 where the Plaintiff had suffered mental harm and where the Court of Appeal considered that an assessment of her psychological injury required an interview by the Panel – see at [31] and [33] where the terms of the Psychiatric Impairment Rating Scale (PI Guidelines) were considered significant in that regard. 3. Ground 2 is not made out, and to the extent that Ground 3 extends also to a failure to undertake an examination of the Plaintiff, that Ground is also rejected. (3) Inadequate reasons 1. The obligations with regard to the reasons that are to be provided are set out in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480. Although that case involved the Accident Compensation Act 1985 (Vic) it has been held that it is relevant to assessments under the Motor Accidents Compensation Act 1999 (NSW): Allianz Australia Insurance Limited v Mackenzie & Ors [2014] NSWSC 67 at [27]. 2. Relevant portions of Wingfoot are as follows: [46] Two considerations are of particular significance in determining by implication the standard required of a written statement of reasons in order to fulfil the duty imposed on a Medical Panel by s 68(2) of the Act. One is the nature of the function performed by a Medical Panel in forming and giving an opinion on a medical question referred to it. The other is the objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion. [47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions]. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. [48] The reasons that s 68(2) of the Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself. … [54] The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain. [55] The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. 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, that 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. [56] The Court of Appeal considered that a higher standard was required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act. On the premise that Brown held that the opinion of a Medical Panel must be adopted and applied for the purposes of determining all questions or matters arising under or for the purposes of the Act, the Court of Appeal analogised the function of a Medical Panel forming its opinion on a medical question to the function of a judge deciding the same medical question. Accordingly, it then equated the standard of reasons required of a Medical Panel with the standard of reasons that would be required of a judge giving reasons for a final judgment after a trial of an action in a court. The application of that judicial standard in circumstances where an affected party had provided to the Medical Panel opinions of other medical practitioners and had sought in submissions to rely on those opinions, and where the opinion formed by the Medical Panel itself did not accord with those opinions, meant that "it was incumbent on the [P]anel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them". Rejection of the premise and the analogy, for reasons already stated, entails rejection of the conclusion that the higher standard is required. A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else. … [58] The written statement of the Medical Panel's reasons for its opinion in the present case listed in a schedule the documents considered by the Panel. The listed documents included those described as "Plaintiff's Medical Reports" and "Defendant's Medical reports". The statement commenced with a recitation of agreed facts. The statement then set out the medical history taken by the Panel from the Worker, findings made by the Panel from its physical examination of the Worker, and findings made by the Panel from its viewing of the x-ray and MRI scan of the Worker's cervical spine. The statement then recorded the Panel's conclusion as to the nature of the Worker's current condition as reflected in the Panel's answer to Question 1: the Worker was suffering from chronic mechanical left cervical spine dysfunction with referred pain to his left shoulder girdle and upper limb. [59] Moving on to the process of reasoning adopted by the Medical Panel to answer Questions 2 and 3, the statement of the Panel's reasons recorded that the Panel considered the Worker's description of his employment duties, the history of his workplace injuries, medical reports of doctors who had treated and examined him, radiological results and its own examination. The statement then specifically recorded that the Panel noted various medical reports by one of the Worker's neurosurgeons and recorded that the Panel noted as well submissions on behalf of the Employer and the Worker, the thrust of which it summarised. The last six paragraphs of the statement were then as follows: [The paragraphs, irrelevant for present purposes, were set out] [62] As argument developed in this Court, it became apparent that the gist of the Worker's complaint about the adequacy of the statement of reasons is that the statement of reasons did not address the possibility that the degenerative changes resulting in the Worker's current condition were initiated on 16 October 1996 other than through soft tissue injury. His counsel submitted on his behalf that "[i]t is a perfectly possible situation that a traumatic event can cause a soft tissue injury to ligaments and muscles and so forth and also cause an injury to the spine". That was, in the Worker's submission, the import of one of the medical reports, provided to the Medical Panel on behalf of the Worker, which was not addressed in the Panel's statement of reasons. The report, that of a neurosurgeon engaged by the Worker in 2009, expressed the opinion that what happened to the Worker on 16 October 1996 "would appear to be consistent with an injury to the cervical spine" and on that basis "may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis". [63] The answer to the Worker's complaint lies in the implicit finding of the Medical Panel that the Worker on 16 October 1996 sustained only a soft tissue injury, and not an injury to his spine. That finding was one of fact. Whether or not that finding of fact was open to the Medical Panel is a question of law. But no further explanation of the reasoning process adopted by the Medical Panel is necessary to enable a court to address that question. 1. The only matter relating to the reasons of the Panel raised in the written submissions of the Plaintiff concerned the asserted failure of the Panel to explain how the deterioration of the cervical spine occurred between the CT scan and the MRI. This matter has been dealt with earlier at [43]-[44]. In short, explanations were provided although there was no obligation on the panel to provide them. The matter was one of medical judgment and was not germane to the causation question the panel had to decide. 2. In oral submissions the Plaintiff widened the complaint to assert that the Panel did not provide explanations for the cause of the matters disclosed in the CT scan and for how the exacerbation to the spondylosis resolved so that what was disclosed on the scan resulted from the scan and not from the accident. 3. The starting point is the approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 of what was said in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 that the reasons of an administrative decision-maker are not to be construed minutely and finely with an eye keenly attuned to the prescription of error. 4. As the Guidelines make clear, part of an assessment of causation involves a medical determination. As noted earlier, part of what appears in the reasons of the Panel involves medical determinations. In a similar way to what was described in Allianz Australia Insurance Limited v Mackenzie [2014] NSWSC 67 at [59], the Panel was not required to provide reasons for every aspect of the assessment. Not the least reason for that is that parts of it involved medical judgment. 5. The reasons of the Panel may be summarised in this way: the Plaintiff had pre-existing spondylosis; there was a lack of evidence including contemporaneous evidence of significant injuries sustained in the accident including (relevantly for neck injuries) significant shoulder injuries; the accident could be expected to cause a temporary aggravation of the spondylosis; the CT of 7 March 2011 indicated no cervical disc injury sustained in the accident; deterioration leading to the cervical fusion might have come from the Plaintiff's pregnancy or the natural progression of the spondylosis; there was no permanent impairment from injuries sustained in the accident. 6. No doubt, more detailed reasons could have been provided but the reasons given clearly satisfy the requirements of Wingfoot. It was not necessary for the panel to provide reasons for the other matters referred to by the Plaintiff ([63] above). 7. Ground 6 should be rejected. Conclusion 1. I make the following orders: 1. Summons dismissed. 2. The Plaintiff is to pay the Defendants' 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: 18 December 2015