Supreme Court New South Wales Medium Neutral Citation: Donna Bruce v QBE Insurance (Australia) Limited [2017] NSWSC 320 Hearing dates: 24 March 2017 Date of orders: 25 May 2017 Decision date: 25 May 2017 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Leave be given to the Plaintiff to file her Amended Summons out of time; (2) The Amended Summons is dismissed. (3) The Plaintiff to pay the Defendants' costs of these proceedings. Catchwords: ADMINISTRATIVE LAW – judicial review – generally – Motor Accidents Compensation Act 1999 Part 3.4 certificate – Nguyen principle – whether the assessor considered referred pain and resulting reduced range of motion – whether assessor provided adequate reasoning for his findings of lack of impairment – adequacy of reasons – summons dismissed Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Meeuwissen v Boden [2010] NSWCA 253 Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351 Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 Category: Principal judgment Parties: Donna Bruce (Plaintiff) QBE Insurance (Australia) Limited (First defendant) State Insurance Regulatory Authority (Second defendant) Matthew Laidely (Third defendant) Ian Cameron (Fourth defendant) Representation: Counsel: Eraine Grotte (Plaintiff) Mark Robinson SC (First defendant) Solicitors: Commins Hendricks Solicitors (Plaintiff) Moray & Agnew, Lawyers (First defendant) NSW Crown Solicitor's Office (Second, third and fourth defendants) File Number(s): 2016/287561 Publication restriction: Nil Judgment 1. HER HONOUR: The plaintiff proceeds by way of Summons filed on 26 September 2016. The Summons was amended on 5 December 2016. The plaintiff claims declaratory and other relief. The following orders were sought: 1. A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the Statement of Reasons for Decision of the third defendant and issued by the second defendant is void and of no effect. 2. An order setting aside the Statement of Reasons for Decision of the third defendant and issued by the second defendant on 23 June 2016. 3. A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the Certificate issued under Pt 3.4 of the Motor Accidents Compensation Act 1999 (NSW) ('the MAC Act') and the Statement of Reasons for Decision of the fourth defendant and issued by the second defendant on 19 March 2016 are void and of no effect. 4. An order setting aside the certificate issued under Pt 3.4 of the MAC Act and the Statement of Reasons for Decision of the fourth defendant issued by the second defendant on 19 March 2016. 5. An order remitting the matter back to the second defendant for referral either to a different medical assessor pursuant to s 60(2) the MAC Act or to a review panel pursuant to s 63(2) of the MAC Act to determine the matter according to law. 1. The first defendant to the proceedings was QBE Insurance (Australia) Limited. The State Insurance Regulatory Authority ('SIRA'), Matthew Laidely in his capacity as the Proper Officer of the Medical Assessment Service of the SIRA and Dr Ian Cameron in his capacity as a Medical Assessor of the SIRA were the second, third and fourth defendants respectively. The second, third and fourth defendants filed a submitting appearance. 2. In support of the Summons, the plaintiff relied upon the Affidavit of Courtney Hunter sworn 5 December 2016 and the exhibited materials. A second Affidavit of Courtney Hunter sworn 23 March 2017 was also relied upon to explain the late filing (by one day) of the Summons. 3. Counsel for the first defendant argued that whilst they did not object to the Affidavit and took no particular issue regarding the one day delay in filing the Summons, there was an issue regarding delays in requesting review of the decision of Dr Cameron dated 19 March 2016. It was argued that this was some months out of time and that the Summons in relation to that decision should have been filed within three months of 19 March 2017. 4. Counsel for the plaintiff submitted that there was a requirement to exhaust available remedies before commencing proceedings for judicial review so the plaintiff first took the issue to the Review Panel. Once that review was refused by the Proper Officer, the Summons to this Court could follow and was attended to within an appropriate timeframe. I agree that course was reasonable and I grant leave to file the Summons out of time pursuant to the Uniform Civil Procedure Rules 2005 (NSW) r 59.10. Factual matters 1. The plaintiff was injured in a motor vehicle accident on 9 April 2014. She was a passenger and sustained injuries and attended Gundagai Emergency Department complaining of neck pain and right shoulder and arm pain amongst other things. Nursing notes at the hospital included a note that the plaintiff was given an ice pack for her shoulder. A medical assessment noted an examination included tenderness in the right neck and that the range of motion in her shoulder was restricted by pain with paraesthesia in the arms. 2. The plaintiff was reviewed by a specialist surgeon Dr Miller in August 2014 and he noted, a complaint of constant pain in both paravertebral regions of her upper cervical spine and that the pain radiated into her left arm causing her paraesthesia in the little, ring and middle fingers. 3. A report from a physiotherapist Ms Collins-Roe dated 17 November 2014 stated that the plaintiff had been attending physiotherapy since April 2014 and that as at 6 November 2014, her shoulder pain was reported to have increased to a sharp pain described as 8 out of 10 with heavy ache post exercise and that she had been experiencing pins and needles on the dorsal surface of the hand consistent with ulnar nerve distribution. Ms Collins-Roe also noted limited range of motion in the shoulders particularly on abduction and flexion and a decrease in shoulder strength particularly on the left. 4. On 1 September 2015 an Application for Assessment of a Permanent Impairment Dispute by the Medical Assessment Service was filed with the second defendant. 5. On 9 October 2015, the first defendant filed a Reply to the Application for Assessment disputing that the injuries information provided in answer to question 6 on the Application was correct. In particular, reply did not accept that the accident caused an assessable degree of permanent impairment to the left and the right shoulders. 6. The authority appointed Dr Ian Cameron for the purpose of assessing the Application. The assessment of the plaintiff by Dr Cameron occurred on 4 March 2016. 7. Annexed to the affidavit of Ms Hunter was a copy of Dr Cameron's certificate and reasons issued under the MAC Act Pt 3.4 ("the Certificate"). Dr Cameron's certificate was titled "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%". 8. The certificate stated that the following injuries were caused by the accident and that the plaintiff suffered permanent impairment: * cervical spine soft tissue injury; * thoracic spine soft tissue injury; * lumbar spine soft tissue injury; * pelvis soft tissue injury. 1. The Summary of Injuries Listed by the Parties and Not Caused by the Accident identified: * left shoulder – soft tissue injury nerve compression and muscular ligamentous injury; * right shoulder – soft tissue injury nerve compression and muscular ligamentous injury; 1. In respect of that finding, the certificate concludes: As noted there is no evidence of a specific injury to either shoulder joint. There are symptoms, including pain, and these are associated with variable movement at the shoulders. There is no assessable impairment at either shoulder as a consequence of this. It is not being demonstrated that there is permanent restriction of movement of either shoulder. 1. Dr Cameron also concluded that the combination of injuries that had been found total 5% whole person impairment, and therefore did not exceed the 10% threshold for an award of damage. 2. In the certificate, Dr Cameron noted that he had seen and considered the MAS Application form and supporting documents, and the MAS Reply form and supporting documents. The MAS Application form was accompanied by the Accident and Emergency notes of Gundagai Hospital, the MRI of the cervical and lumbar spine report dated 30 April 2014, a report of Dr Jeffrey Miller, Specialist Surgeon dated 11 August 2014, a medical certificate completed by Dr Wrice, a report of Dr Miller dated 11 August 2014, a psychologist report of Mr Ravagnani dated 19 May 2015, a report of Dr Stephen dated 30 June 2015 including an evaluation of permanent impairment and information regarding video surveillance of the applicant in August 2014 which it is said indicates that there was no major restriction observed in the physical abilities of the plaintiff whilst she was shopping. 3. Dr Cameron's assessment on page 2 of the Certificate also recorded that the plaintiff reported that she had ongoing symptoms and that current symptoms included left shoulder pain with some radiation to the left scapula and some pins and needles in the 4th and 5th fingers of the left hand. 4. Dr Cameron noted that on clinical examination there was "variable" range of motion in both shoulders, which the plaintiff had said was due to pain. Dr Cameron concluded, under the heading "Consistency of presentation", that the plaintiff had some inconsistency in her presentation in relation to shoulder movement that the plaintiff told him was due to pain. 5. Under the headings "Conclusions, Diagnosis and Causation", Dr Cameron concluded that the plaintiff had sustained soft tissue injuries to her cervical, thoracic and lumbar spine, and that there may have been a soft tissue injury to the pelvis. He noted no major injury to either shoulder is documented in the clinical records. He noted that the plaintiff has residual symptoms. Finally and relevantly he stated "Movements at her shoulders were inconsistent at the time of assessment and were not assessable as being associated with permanent impairment". Medical assessment under the Motor Accidents Compensation Act 1999 A. Medical Assessment and Review 1. Part 3.4 of the Act, titled "Medical Assessment", sets out the process for medical assessments and review of medical assessments by the Motor Accidents Medical Assessment Service (MAS) of the Authority. As earlier noted, the plaintiff was referred for assessment by a Medical Assessor (Dr Cameron) on 4 March 2016. The referral was pursuant to s 60 of the Act. The assessment took place on 4 March and the Certificate is dated 19 March 2016. 2. A claimant who is dissatisfied with the medical assessment may apply to the Proper Officer of the Authority to refer a medical assessment under Part 3.4 to a review panel of medical assessors for review: s 63(1). Such an application may only be made on grounds that "the medical assessment … was incorrect in a material respect": s 63(2). 3. The Proper Officer of the Authority determined that a review was not warranted. The determination stated that the Proper Officer (Third Defendant Mr Laidely) was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. The issues in dispute included an assertion that the medical assessment was incorrect in relation to assessment of lumbar spine impairment (which did not feature on the application for review), as well as assessment of her upper left shoulder impairment. 4. The argument apparently made at that stage on behalf of the plaintiff was that the Assessor had not included the impairment of the shoulders in his assessment. It was argued that he should have, because that impairment a resulted from referred pain from the neck. It was submitted that in accordance with Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351, this impairment should have been found to be causally related to the accident. 5. By way of response, in his letter dated 23 June 2016, Mr Laidely refers to the findings by Dr Cameron to the effect that the range of motion in the shoulders was "variable and inconsistent" and that pursuant to cl 2.4(iv) of the Permanent Impairment Guidelines, the medical assessor concluded that due to the variable nature of the claimant's shoulder range of motion he could not consider the shoulders to be subject to permanent impairment. Mr Laidely found that Dr Cameron was entitled to proceed that way pursuant to cl 2.4(iv), and he dismissed the review application. B. Relevant statutory provisions and MAA guidelines 1. The assessment of the claimant's level of permanent impairment will determine his or her entitlement to non-economic loss under Part 5.3 of the MAC Act. 2. The assessment of permanent impairment is to be carried out in accordance with the Permanent Impairment Guidelines of the Motor Accidents Authority dated 1 October 2007 pursuant to the MAC Act s 133(2). 3. At common law, non-economic loss damages were assessable on an unlimited basis. Under the MAC Act, entitlements for such damages are now prescribed by provisions of the act. 4. The defendant focused its submissions on the terms of the particular provisions in Chapter 2, titled "Upper extremity impairment" with a particular focus on cl 2.4 which deals with the evaluation of impairment using range of motion testing. It provides: Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different time of examination and or possible lack of cooperation by the person being assessed. Range of motion is assessed as follows: (i) A goniometer should be used where clinically indicated (ii) Passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements (iii) If the assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions. (iv) If there is inconsistency in range of motion then it should not be used as a valid parameter of impairment evaluation. Refer to section 1.43 of these Guidelines. (emphasis added) (v) If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present. 1. Clause 1.43 of the Guidelines under the heading "consistency" provides as follows: Where there are inconsistencies between the assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies should be brought to the claimant's attention, e.g. inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The claimant will then have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness. 1. My attention was also drawn to provisions associated with the permanent impairment part of the chapter, in particular cl 1.23, which reads, "The evaluation should only consider the impairment as it is at the time of the assessment." This part of the guidelines is in bold and 1.3 of the introduction to the MAA Guidelines provides that "if the text is in bold, it is a directive as to how the assessment should be performed". 2. My attention was also drawn to 1.40 titled "Pain" which provides: Some Tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, assessors should make no separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA 4 Guides should not be used. However, each chapter of the AMA 4 guides includes an allowance for associated pain in the impairment percentages. C. The alleged error in the medical assessment and plaintiff's submissions 1. The plaintiff submitted that Dr Cameron's assessment was incorrect in material respects for the following reasons: 1. He failed to complete his statutory task, being the assessment of the left and right upper extremities (the left and right shoulders) in accordance with applicable guidelines, specifically clause 2.4(v); 2. He did not use his discretion in considering what weight to give to other available evidence to determine if an impairment is present as required by 2.4.5; 3. If he did consider clause 2.4.5, this is not evidenced in his reasons and he either failed to expose his path of reasoning or failed to provide adequate reasons explaining how he exercised his discretion pursuant to clause 2.4.5, and in failing to do so the plaintiff was denied procedural fairness; 4. He should have assessed permanent impairment in the left and right shoulders in accordance with the principle set out in Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351 and in failing to do that, there is jurisdictional error. 1. The plaintiff submitted that the assessment was incomplete and that Dr Cameron did not adequately explain in his Statement of Reasons how he reached the conclusion that "the movements at the plaintiff's shoulders were inconsistent at the time of assessment and were not assessable as being associated with permanent impairment". 2. The plaintiff submitted that the conclusion that there had been "no major injury" to the shoulder suggested that the assessor was operating on the basis that because there had been no frank injury to the shoulders he failed to assess impairment in the shoulders that resulted from injury to the neck and the radicular symptoms of which the plaintiff had complained. 3. It was clear in oral submissions made by counsel for the plaintiff that there was no complaint about Dr Cameron failing to find frank injury to either shoulder, simply that he had not properly assessed and/or properly explained his reasoning in relation to his conclusion that there had not been a permanent restriction of movement of either shoulder demonstrated. D. The first defendant's submissions 1. Senior counsel for the first defendant submitted that Dr Cameron was required to do an examination, and he did that. Dr Cameron examined evidence of injury to either shoulder, and carried out a clinical examination to assess impairment. The only symptom that Dr Cameron could assess in connection with the shoulders was a complaint of pain on movement of the shoulders (noting that pain is not by itself a valid basis for assessment of impairment – cl 1.40 of the Permanent Impairment Guidelines). Therefore there was no other available evidence to determine if an impairment of either shoulder was present. It followed that Dr Cameron was not required to refer to clause 2.4.5 of the guidelines. 2. It was submitted that it is evident when the assessor's report is read as a whole that the assessor had covered all relevant issues in his report. He confirmed having seen and considered the MAS Application Form and supporting documents which included the series of documents confirming complaints of pain and restriction of movement in the shoulders in the first six months or so after the motor vehicle accident. 3. Senior counsel for the first defendant also argued that it was clear that Dr Cameron had assessed the left and right shoulders as noted on page 2, and acknowledged that the plaintiff had said that she had ongoing symptoms. He noted that she had left shoulder pain with some radiation to the left scapula and some pin and needles in the fourth and fifth fingers of the left hand but noted variable range of motion at both shoulders which the plaintiff said was due to pain. Dr Cameron made particular note of inconsistency in the plaintiff's presentation in relation to shoulder movements. 4. It was submitted that there is no obligation to mention in detail each of the applied aspects of the guidelines by specific reference to them. The Court can infer that the Assessor carried out his statutory task as required by the legislation and the guidelines: See Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6]: Although it is undesirable for the Statement of Reasons to leave important matters to inference, doing so does not necessarily breach the obligation to set out the assessor's reasons. The question is whether the reasoning process can be discerned, reading the reasons as a whole and applying a "beneficial construction" to which the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272. At least where a gap may be filled as a matter of necessary inference on a fair reading of the reasons, I would consider that the obligation to set out the reasons has been discharged. E. Plaintiff's submissions in reply 1. In supplementary submissions, the plaintiff argued that whilst she did not disagree with the statement of principle in Zahed relied on by the first defendant, it does not allow beneficial construction at large or without restriction. There is nothing in the assessor's reasons from which it can be inferred that he completed the statutory tasks to provide an assessment of the left and right shoulders resulting from the subject accident and if he did, it cannot be discerned from his reasoning. Alternatively, the reasons he gave are inadequate. F. Resolution of issues re Dr Cameron's assessment and certificate 1. The conclusion on page 4 of the Assessment was sufficiently clear and adequately exposed Dr Cameron's reasoning in that he traced through that there was no evidence of a specific injury to either shoulder joint, the symptoms including pain were asserted on assessment to be present and were associated with variable movement of the shoulders. He concluded that there was no assessable impairment at either shoulder and that there was no demonstration that there was a permanent restriction of movement of either shoulder. 2. Reliance on Nguyen is misconceived because the principle in Nguyen is in essence that where there is an impairment of a body part following a motor vehicle accident, but no specific injury to that body part, there can still be impairment assessable if the symptoms causing the impairment originate and/or radiate from a body part that was the site of an injury caused by the accident. Here, Dr Cameron was satisfied that the accident caused a soft tissue injury to the plaintiff's neck but he was not satisfied that there was any impairment in either shoulder at the time of the assessment. It was therefore unnecessary for Dr Cameron to consider the question of whether or not any impairment in either shoulder had its origin in the injury to the neck. 3. As noted by Hall J in Nguyen v MAA [2011] NSWSC 351 .at [89] to [92]: [89] The provisions of the Act generally are built around 3 concepts: A motor accident. Injury caused by a motor accident. Permanent impairment as a result of such injury. [90] The second and third concepts both involve causal concepts. [91] A bodily injury may or may not cause or give rise to impairment. The term impairment is not defined in the Act The expression permanent impairment as earlier noted and extracted above is defined in the American Medical Associations Guide to the Evaluation of Permanent Impairment (4th Ed). Nguyen dealt with the application of common law causation principles being utilised to support the conclusion that an impairment in one or both of the plaintiff's upper limbs could be consequent upon an injury to the cervical spine (and should be compensable as a natural and direct consequence of a spinal injury) and whether in that case, the provisions of the MAC Act operated to alter, constrain or limit those principles (Nguyen at [94]–[95]). 1. The issue here is quite different. Here, the issue is that on assessment and evaluation of permanent impairment in accordance with cl 1.23 of the guidelines, the Medical Assessor could not be satisfied that there was any permanent impairment relating to the shoulders at all. The third aspect referred to in Nguyen at [89] as found to be absent in relation to the alleged impairment of the shoulders. 2. The issue then remains whether adequate reasoning was outlined in the Certificate. I have reached the view that although not outlined in minute detail, the analysis and conclusions are adequately reasoned and adequately set out in the Certificate. When the Certificate is read as a whole, the reasoning process can be discerned. The absence of demonstrable impairment in the shoulders on assessment is clear and was decisive of the rejection of the claim in regard to the shoulder impairment. The decision of the Proper Office on the application for review 1. The plaintiff alleged in ground 6 of her Amended Summons that Mr Laidely failed to deal with a "substantial clearly articulated argument", namely, that Dr Cameron had not assessed permanent impairment in the plaintiff's left and right shoulders in accordance with the principles set out in Nguyen, and that this was a failure of procedural fairness and jurisdictional error. 2. Second, it is argued that the third defendant exceeded his lawful authority by adopting a beneficial construction of the reasons of Dr Cameron and that he took it upon himself to fill in the gaps where the reasons were deficient, incomplete or absent, and that is jurisdictional error. 3. Third, the construction and application of s 63(3) of the MAC Act was erroneous because Mr Laidely failed to find that there was a reasonable cause to suspect that the medical assessment of Dr Cameron was incorrect in a material respect. This constituted jurisdictional error. 4. It was also argued that the role of the Proper Officer is characterised as a gate keeper and not a decision maker (Meeuwissen v Boden [2010] NSWCA 253 [23] per Basten JA (Beazley JA and Sackville AJA agreeing). Section 63 requires only a determination about whether there is "reasonable cause to suspect" that the medical assessment was incorrect in a material respect. It was argued that this is not a high threshold, and that Mr Laidely failed to appropriately exercise his role. 5. The first defendant argued that if there is no error in Dr Cameron's reasons, there is no basis upon which Mr Laidely's dismissal of the application for review could be set aside. 6. I accept that argument and find that there was no failure on the part of the proper officer, Mr Laidely, in the circumstances, because there was no reasonable cause to suspect that the medical assessment carried out by Dr Cameron was incorrect in a material respect. 7. Accordingly, I order: 1. Leave be given to the Plaintiff to file her Amended Summons out of time; 2. The Amended Summons is dismissed; 3. The Plaintiff to pay the Defendants' costs of these proceedings. ********** 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: 01 June 2017