Supreme Court New South Wales Medium Neutral Citation: Lowther v Insurance Australia Limited trading as NRMA Insurance and Ors [2019] NSWSC 305 Hearing dates: 15 March 2019 Date of orders: 21 March 2019 Decision date: 21 March 2019 Jurisdiction: Common Law Before: Fullerton J Decision: 1. Pursuant to r 59.10 of the Uniform Civil Procedure Rules, time is extended to 15 August 2018 to commence judicial review proceedings. 2. The Summons is dismissed. 3. The plaintiff is to pay the defendant's costs. Catchwords: ADMINISTRATIVE LAW - judicial review - grounds of review - whether the Panel failed to give reasons -whether the Panel failed to consider issues afresh Legislation Cited: Supreme Court Act 1970 (NSW): Motor Accidents Compensation Act 1999 (NSW) State Insurance and Care Governance Act 2015 (NSW) Cases Cited: Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zahed v IAG Ltd t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 QBE Insurance (Australia) Limited v Edwards [2016] NSWSC 1664 Texts Cited: Guides to the Evaluation of Permanent Impairment, Fourth Edition, published by the American Medical Association. Category: Principal judgment Parties: Kevin Martin Lowther (Plaintiff) Insurance Australia Limited trading as NRMA Insurance (1st Defendant) State Insurance Regulatory Authority (2nd Defendant) (submitting appearance) Medical Review Panel (3rd Defendant) (submitting appearance) Representation: Counsel: Scott Maybury (Plaintiff) Keith Rewell SC (1st Defendant) Solicitors: Stacks Law Firm (Plaintiff) McCabe Curwood Lawyers (1st Defendant) File Number(s): 2018/251058 Judgment 1. By Summons dated 15 August 2018 the plaintiff seeks the following orders pursuant to s 69 of the Supreme Court Act 1970 (NSW): 1. A declaration that the determination and statement of reasons issued by the second defendant (the State Insurance Regulatory Authority), constituted by the third defendant (the Medical Review Panel), on 26 April 2018 is void and of no effect, and an order setting aside that determination and statement of reasons. 2. An order remitting the matter to the second defendant for determination by a differently constituted Medical Review Panel according to law. 3. An order pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) extending the time to apply for judicial review of the decision and statement of reasons of the third defendant issued by the second defendant on 8 May 2017 to the date of the filing of the Summons. 4. Costs. 1. As to (3) above, on the hearing of the Summons the plaintiff read an affidavit of the plaintiff's solicitor, Jodie Thurgood, dated 15 August 2018 in support of the plaintiff's application to extend time for the filing of the Summons. While I do not regard her explanation as entirely satisfactory, in circumstances where the first defendant did not wish to be heard on the application, I will make an order extending time for the filing of the Summons. Background 1. On 24 August 2015 the plaintiff, Kevin Lowther, suffered an injury in a motor vehicle accident ("the motor vehicle accident"). He was the driver of a motor vehicle which was stationary at a roundabout when he was impacted from behind by the at-fault driver causing him to be propelled forward into his seatbelt. An ambulance attended the scene and the plaintiff was conveyed to hospital complaining of heart palpitations. 2. An electrocardiogram conducted following the plaintiff's admission to Port Macquarie Base Hospital showed sinus rhythm with occasional extra systoles. On referral to a cardiologist, a transthoracic echo-cardiogram was performed which revealed a normal left ventricular size and satisfactory function. Mild dilation of the right ventricular wall was noted as was some dilation of the aortic root and aortic arch. These conditions were assessed as being associated with a pre-existing and long-standing diagnosis of bronchiectasis and chronic obstructive airways disease, and not, therefore, considered to be a product of recent aetiology. The plaintiff was discharged home. 3. Over the following week the plaintiff developed an increase in shortness of breath. A chest x-ray was performed which revealed a pleural effusion at the base of the left lung. Antibiotics were commenced and the plaintiff was re-admitted to Port Macquarie Base Hospital where a chest drain was inserted to drain the pleural effusion. An empyema (a collection of pus in the pleural cavity) was observed and drained, but recurred quickly resulting in the plaintiff's transfer to John Hunter Hospital where he underwent a thoracotomy (surgical incision into the chest wall) and pleurodesis (a procedure performed to obliterate the pleural space to prevent recurrent pleural effusion). He remained an in-patient at John Hunter Hospital before his return to Port Macquarie Base Hospital. He was thereafter discharged home under the care of his respiratory physician, Dr Houghton. 4. The plaintiff seeks an award of damages under the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) from the driver of the vehicle that he contends was at fault. The first defendant is the third-party insurer of that vehicle. Legal proceedings in negligence have not commenced. 5. Pursuant to s 131 of the MAC Act, the plaintiff is entitled to an award of damages for non-economic loss only if his whole person impairment (WPI) is assessed at greater than 10%. As the first defendant does not admit that the plaintiff's WPI exceeds 10%, the dispute about the extent of impairment was referred to the Motor Accidents Medical Assessment Service (MAS) of the State Insurance Regulatory Authority (SIRA). SIRA is the second defendant and is an independent board established under s 18 of the State Insurance and Care Governance Act 2015 (NSW) (SICG Act). MAS is a unit of SIRA established pursuant to s 57A of the SICG Act. A submitting appearance has been filed on behalf of the second defendant. Assessment by Dr Mark Burns on 21 June 2017 1. Upon the referral of the dispute to MAS, the plaintiff was assessed by Dr Mark Burns, occupational physician. In Dr Burns' Certificate (issued under Part 3.4 of the MAC Act), he sets out a history of the plaintiff's pre-existing respiratory problems as disclosed by the plaintiff. That history includes the plaintiff having smoked approximately 25 cigarettes per day from the age of "15 or 16" until about two months prior to the consultation. In his Certificate Dr Burns also details the plaintiff's diagnosis of bronchiectasis in 2010 and an undated diagnosis of chronic obstructive airways disease. The plaintiff reported symptoms of both conditions prior to the accident as including breathlessness on mild to moderate exertion and his use of Ventolin and Symbicort puffers. Dr Burns also took a history of the motor vehicle accident and the plaintiff's symptoms and treatment thereafter. He recorded that following the accident the plaintiff was commenced on Spiriva (a type of respiratory inhaler). 2. In assessing the plaintiff's permanent impairment, Dr Burns opined that the plaintiff: … has a complex respiratory history with pre-existing chronic obstructive pulmonary disease (asthma) and also bronchiectasis. 1. He compared the plaintiff's pre-accident spirometry results (conducted on 24 January 2011, 10 March 2011 and 11 August 2014) with his post-accident spirometry results (conducted on 1 December 2015, 2 May 2016, 21 June 2017 and 13 July 2017). That analysis tabulated four parameters including FEV1, FVC, FEV1 over FVC and DLCO. 2. FEV1 refers to the "forced expirator volume" which is the volume of air a person can exhale in one second, after a deep intake of breath. FVC refers to the "forced vital capacity" being the maximum volume of air that can be forcibly exhaled from the lungs after taking the deepest possible breath. The FEV1 to FVC ratio represents the proportion of a person's vital capacity they can exhale in the first second of forced exhalation (FEV1) relative to the full, forced vital capacity. DLCO measures the ability of the lungs to transfer gas from inhaled air to the red blood cells in the pulmonary capillaries. That result is reported as a percentage of the predicted value, 80% of which is regarded as normal. 3. In respect of the results of FEV1, FVC and FEV1/FVC, Dr Burns concluded that they revealed "marked variability over time" which he considered was "mostly due to [the plaintiff's] underlying chronic obstructive airways disease and his bronchiectasis" and "a small component associated with his post-traumatic injury to the lungs". From this he concluded that: … the best parameter for looking at his respiratory injury from the accident would in fact be the carbon monoxide diffusing capacity [the DLCO], which is the one that was consistent both before and after the accident. 1. DLCO was undertaken on 25 January 2011, 10 March 2011 (both pre-accident), and on 1 December 2015 and 2 May 2016 (both post-accident). The DLCO result on 25 January 2011 was 68% of the predicted value and 69% of the predicted value in the testing conducted on 10 March 2011. In the testing conducted on 1 December 2015 (3 months and some days after the accident), the plaintiff was 45% of the predicted value and 42% of the predicted value in the testing conducted on 2 May 2016. 2. By reference to table 8 on page 162 of the fourth edition of the Guides to the Evaluation of Permanent Impairment (which I extract below), published by the American Medical Association (the AMA IV Guides), Dr Burns was of the opinion that the plaintiff's pre-accident DLCO results, which placed him in Class 2, resulted in an assessed pre-accident WPI of approximately 20%. With respect to the plaintiff's post-accident DLCO results (which placed him in Class 3) Dr Burns assessed the plaintiff's WPI at 40% from which he concluded that the plaintiff's WPI attributable to the motor vehicle accident was 20%, entitling him to damages for non-economic loss. Class 1: Class 2: Class 3: Class 4: 0%, no impairment of the whole person 10 – 25%, mild impairment of the whole person 26% - 50%, moderate impairment of the whole person 51 – 100%, severe impairment of the whole person FVC FEV1 FVC ≥ 80% predicted; and FEV1 ≥ 80% of predicted; and FEV1/FVC ≥ 70%; and DCO ≥ 70% of predicted. (emphasis added) FVC between 60% and 79% of predicted; or FEV1 between 60% and 79% of predicted; or DCO between 60% and 69% of predicted. (emphasis added) FVC between 51% and 59% of predicted; or FEV1 between 41% and 59% of predicted; or DCO between 41% and 59% of predicted. (emphasis added) FVC ≤ 50% of predicted; or FEV1 ≤ 40% of predicted; or DCO ≤ 40% of predicted. FEV1/FVC (%) DCO Referral for review, and subsequent assessment by the Medical Review Panel 1. The first defendant applied for a review of Dr Burns' Certificate by a Medical Review Panel constituted by SIRA under s 63 of the MAC Act. Section 63 provides as follows: 63 Review of Medical Assessment by Review Panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. … (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. (5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review. (6) Section 61 applies to any new certificate or new combined certificate issued under this section. (7) The Motor Accidents Medical Guidelines may limit the time within which an application under this section may be made. 1. Neither the grounds upon which review was sought, nor the decision of the Proper Officer, was in evidence before me. The proceedings were conducted on the agreed basis that the Proper Officer determined that Dr Burns' Certificate was "incorrect in a material respect". 2. A Review Panel was convened by telephone on 29 March 2018. It comprised Drs Ian Cameron, Anup Desai and Margaret Gibson, respectively, a rehabilitation physician, a sleep and respiratory physician, and an occupational physician. 3. Section 44 of the MAC Act permits SIRA to issue guidelines with respect to the conduct of a review of a medical assessment. The Guidelines with respect to the conduct of the Review Panel's assessment provide as follows: 16.21 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: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; 16.21.3 determine whether additional information is required in order to make a decision; 16.21.4 determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked; 16.21.5 if revoked, determine what new certificates are to be issued; 16.21.6 where the original assessment certificate was issued under . … 16.21.9 advise the Proper Officer of any determinations under this clause. 1. The Review Panel revoked Dr Burns' Certificate and issued a new Certificate dated 16 April 2018. That Certificate records the following; 1. In the application for review, the first defendant (as the applicant seeking review) submitted that Dr Burns did not provide a sufficient reasoned basis for his assessment of the plaintiff's WPI at 20%, in circumstances where Dr Bryant (a doctor who provided the applicant with a medico-legal opinion prior to the plaintiff's referral for assessment) observed that there was no evidence of any decline in the plaintiff's vital capacity and he expressed his doubts as to whether the DLCO measurement on the testing on 2 May 2016 had generated "valid readings". 2. The Review Panel also noted that the Proper Officer was critical of Dr Burns' failure to explain why he relied on the DLCO result of 2 May 2016 and did not refer to any of Dr Bryant's reports. 3. The Review Panel considered afresh all aspects of the assessment under review. In circumstances where Dr Burns' Certificate included a detailed clinical history and the results of a comprehensive clinical examination (as to which there was no dispute), they did not require a further clinical assessment of the plaintiff. (I note that it forms no part of the plaintiff's case in these proceedings that the Panel's failure to re-assess the plaintiff was productive of error.) 4. The Review Panel also noted that Dr Burns had supplied a table of the progression of the plaintiff's lung function over time and agreed with Dr Burns that the use of the DLCO as a measure of impairment was the most appropriate in the context of the plaintiff's clinical history. 5. As to the DLCO readings of 1 December 2015 and 2 May 2016 (discussed in [13] above), the Panel considered that "the latter reading was questionable as [the plaintiff] was unable to get a good breath". (I note that the results of testing on that date bears the following qualification: Unable to complete static lung volumes today, patient light-headed and did not want to continue, please interpret with caution.) 1. The Panel also noted that the plaintiff's general practitioner's progress note of 26 August 2015 records left rib bruising, and the subsequent note of 10 September 2015 records left-sided pleural effusion following CT scan, from which the Panel concluded that "the subject accident was a cause that was more than negligible to the subsequent development of this particular lung condition". 2. The Panel went on to consider whether, having discounted the 2 May 2016 DLCO results as unreliable, it was reasonable to use the 1 December 2015 reading in isolation; that is, whether that reading was representative of the plaintiff's current impairment. 3. Given the effluxion of time following the December 2015 DLCO testing, the Review Panel concluded that further testing should be provided were it available. DLCO testing was performed on 13 March 2018, generating a DLCO reading of 21.45, which equated to 64.6% of the predicted value. 4. Under the heading "Panel Deliberations" the following is recorded: The Panel considered the recent report. They remained of the opinion that the spirometry values were not relevant so the DLCO [of March 2018] was the most appropriate measure [of current impairment]. 1. The Panel went on to find that having regard to the AMA IV Guides, 64.6% of the predicted DLCO value positioned the plaintiff "at the higher end" of the Class 2 range, and that in the context of the plaintiff's clinical presentation, 25% WPI was an appropriate assessment within that range. After noting the plaintiff's pre-accident DCLO was 69% of the predicted value (which also fell within Class 2), and in light of the plaintiff's "severe known lung disease and [that] he was a smoker" both at the time of the accident and for many years prior to the accident, they assessed his pre-existing WPI at 20%. 2. In the ultimate result, the Review Panel determined that the motor vehicle accident resulted in an accident-related WPI of the plaintiff's respiratory function of 5%. The grounds on which relief is sought 1. The grounds on which the plaintiff sought relief are enumerated in the Summons as follows: (a) The Panel failed to give reasons for finding that the spirometry values in the respiratory functioning test were irrelevant. (b) The Panel failed to give reasons for finding 20% WPI for pre-existing impairment was appropriate. (c) The Panel failed to give reasons for finding only an additional 5% WPI for pre-existing impairment was appropriate, particularly in the context of what it described as the history of the plaintiff not being in dispute as recorded by Dr Burns. (d) The Panel failed to approach the task afresh as required, and instead adopted or agreed with the findings by Dr Burns as regards pre-existing impairment. (e) The Panel failed to approach the task afresh as required, and instead adopted or agreed with the findings by Dr Burns as regards the DLCO respiratory test results being the most relevant in relation to measure of impairment. The plaintiff's submissions 1. Having accepted at the hearing that the grounds of appeal were "intertwined", counsel for the plaintiff focussed his submissions on what was said to be error in the Review Panel's assessment of the degree of WPI, both pre and post-accident. 2. Counsel submitted that the Review Panel's reasons for determining that the plaintiff's pre-existing WPI was 20% (extracted below) were deficient, and, to the extent that reasons were given, they evidence a failure to approach the assessment of the plaintiff's pre-existing whole person impairment afresh. 3. In oral submissions, the plaintiff's counsel directed the Court's attention to table 8 on page 162 of the AMA IV guides, extracted at [14] above. As I observed in [13] above, the plaintiff's predicted pre-accident DLCO result was 69%. Counsel described this as on the cusp of the threshold for a 0% impairment, and in support of that proposition, observed that the results for FEV1 and FVC placed the plaintiff in Class 1 (that is, 0% impairment). While the plaintiff does not seek to make the case that he had no pre-existing respiratory condition, his counsel contended that an assessment of 20% pre-existing WPI was not open (either to Dr Burns or the Review Panel) and, in those circumstances, where the DLCO results were "absolutely borderline", that the appropriate finding was that the plaintiff was closer to the bottom of the range comprehended by Class 2, being 10%, rather than in the middle or upper part of the range at 25%. 4. Senior counsel for the first defendant characterised that submission as simplistic and cautioned against an approach to the determination of WPI (whether by a medical assessor or by the Court on review) as if there is a linear relationship between the available range of WPI in a particular class and the DLCO result. Counsel submitted that where a person is positioned within a particular class is a question for the clinical judgment of the Review Panel (as it was for the medical assessor). He submitted that it was open to the Review Panel to assess the plaintiff's pre-existing WPI at 20% in circumstances where there was evidence of a pre-existing lung disease, including bronchiectasis and chronic obstructive airways disease; both conditions being encapsulated by the Review Panel's reference to the plaintiff having "severe known lung disease". While counsel for the first defendant fairly conceded that he could advance no submission as to the degree to which those lung diseases in fact overlap, it was self-evident that the plaintiff had a significant and complicated lung disease before the accident and that this was both material to the Review Panel's approach to its assessment of pre-existing WPI and material to its assessment of the plaintiff's current WPI. I accept that submission. 5. The plaintiff's counsel also submitted that the Review Panel failed to consider the potential impact of "extra pulmonary factors" on the DLCO results, consideration of which was mandated by the AMA IV Guides, and observed that this was a "failure" about which the defendant complained in successfully seeking a review of Dr Burns' Certificate. Counsel did not identify any so called "extra pulmonary factors" in his submissions, and no factors sensibly correlating with that descriptor were identified by the Review Panel or Dr Burns. The contention that there is error in the Panel's Certificate in this respect is unsustainable. 6. In dealing with the plaintiff's post-accident WPI, his counsel drew the Court's attention to page 159 of the AMA IV Guides where, under the heading 'Forced Respiratory Manoeuvres (Simple Spirometry)', the following is recorded: A forced respiratory manoeuvre must be performed during the examination and evaluation of each patient for permanent pulmonary impairment. 1. He submitted that this entry obligated the Review Panel to undertake spirometry testing, despite its view that these tests were likely to be unreliable. Counsel submitted that the Review Panel gave no reasons, or no adequate reasons, for disregarding the spirometry results as unreliable, and by concurring with Dr Burns that use of the DLCO as a measure of impairment was the most appropriate, it failed to consider for itself the most appropriate measure. 2. Senior counsel for the first defendant characterised that submission as both irrational and implausible. Not only was it an approach that was not mandated under the AMA IV Guides, both Dr Burns and the Review Panel agreed that the spirometry results were likely to be flawed. In those circumstances, the plaintiff's complaint has no resonance and the submission should be rejected. 3. The plaintiff also submitted that having resolved to use the DLCO results in lieu of the spirometry results, the Review Panel disregarded the 2 May 2016 result in its entirety despite the results appearing to be complete. Similarly, the plaintiff submitted that the Panel disregarded the 1 December 2015 DLCO result without adverting to the basis upon which Dr Burns excluded it, namely that lung surgery had been performed three months previously, and without considering, for themselves, whether that approach was appropriate. The plaintiff also submitted that the basis upon which the Review Panel resolved to exclude the 1 December 2015 result (that is that it may not have been representative of the plaintiff's current impairment given the period of time that had elapsed since the test was performed) was not an adequate basis upon which to take that approach. I will return to consider that submission and the complaint as to the adequacy of the Panel's reasons for finding 20% pre-existing WPI later in this judgment. 4. Finally, the plaintiff's counsel submitted that the Review Panel gave no consideration to the plaintiff's clinical history and whether the deterioration in his reported respiratory capacity was consistent with the assessed WPI, and further that the Panel failed to give any reasons for the plaintiff's apparent clinical improvement between December 2015 and the time of the DLCO testing in March 2018. The plaintiff submitted that the Review Panel was obliged to grapple with the conflicting results of the DLCO testing (namely, the 2015/2016 testing and the testing which they ordered in 2018) and provide reasons for why the latter was substantially different from the earlier testing. The first defendant's submissions 1. Senior counsel for the first defendant submitted that the plaintiff's recurring contention that the Review Panel failed to consider the matters in dispute afresh misconceives the function of the Review Panel. He submitted that it is not the function of the Review Panel to debate the opinions of other medical experts, or to resolve disputes between competing experts, and even less so to resolve any inter partes dispute. 2. A passage of the judgment from Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; HCA 43 at [47] was relied upon as encapsulating the function of the Review Panel under the Act: 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. 1. It was submitted that the High Court's encapsulation of the Review Panel's function as neither "arbitral nor adjudicative" did not disentitle the Review Panel from expressing its agreement (or disagreement) with particular findings or approaches to the assessment of WPI by Dr Burns as recorded in his Certificate. Neither was the Review Panel prohibited from adopting Dr Burns' tabulated results or testing, or his analysis of those results. Counsel submitted that there is no inconsistency between the Review Panel carrying out its task in assessing the plaintiff's impairment "afresh", and deciding for itself whether it accepts (or rejects) the tabulation and analysis of prior respiratory test results in Dr Burns' Certificate. Rather, what was required of the Review Panel was that it set out, in its Certificate, the "actual path of reasoning" by which it arrived at the opinion it "actually formed for itself" (Wingfoot Australia Partners v Kocak at [48]). 2. Senior counsel submitted that it is difficult to see how the Review Panel's path of reasoning to the conclusion it reached as to the plaintiff's WPI attributable to the motor vehicle accident could be more clearly exposed. Counsel submitted that the following series of propositions extracted from its Certificate articulate that path of reasoning: 1. The Panel expressly adopted the detailed table of historical testing in Dr Burns' Certificate and, having done so, agreed with Dr Burns' reasoning as to why the spirometry results were an inferior parameter for measuring the plaintiff's respiratory function in contrast to the DLCO test results. On that reasoning they concluded that the spirometry results were "unreliable", and were therefore "not relevant". 2. The Panel then proceeded to make its assessment of WPI on the basis that the DLCO testing conducted in May 2016 was unreliable. (While I note that reasoning to that conclusion was not articulated in terms, the decision to exclude them is apparent from the Panel's express reference in the Certificate to the warning accompanying the results that they should be "interpret[ed] with caution" and the Panel's further observation that Dr Burns "had not explained why he had relied on the results of 2 May 2016 as being valid"; the inference being that in the Panel's view they were not.) 3. The Panel then proceeded to make its assessment on the basis that the DLCO test results of 1 December 2015 should be excluded because those results may not be representative of the plaintiff's current impairment as at that date. (Counsel submitted that it was open to the Court to find that the Review Panel, aware that the December 2015 results may have been affected by lung surgery the plaintiff underwent three months earlier, excluded them on that basis. Again, while that reasoning is not express, in circumstances where the plaintiff's history is adopted by the Review Panel (as to which see paragraph 19(3) above) the defendant submitted that conclusion follows by necessary inference.) 4. Having formed the view that fresh testing should be undertaken, the Panel proceeded to make its own assessment of the plaintiff's current (total) WPI referable to that testing. 5. Finally, after explicitly agreeing with Dr Burns' assessment of 20% for the plaintiff's pre-existing WPI incorporating the fact that there was severe known lung disease and that the plaintiff was a smoker, and the Panel finding that 20% WPI pre-existing impairment was appropriate, it deducted 20% pre-existing WPI from 25% total WPI, concluding that the plaintiff's accident related WPI is 5%. Consideration 1. To the extent possible, having regard to the manner in which the parties directed their submissions, the grounds of appeal will be considered separately. Ground (a) – The Panel failed to give reasons for finding that the spirometry values in the respiratory functioning test were irrelevant. 1. As the High Court has made clear in Wingfoot, it is not the function of the Review Panel: … 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. 1. Rather, its 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. 1. Continuing, at [48]: 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. 1. In this case, the Panel reasoned that, by reference to Dr Burns' "detailed table of the progression of [the plaintiff's] lung function", use of the DLCO as a measure of impairment was the most appropriate. 2. Having taken that approach, the Panel went further and observed that they: [R]emained of the opinion that the spirometry values were not relevant so the DLCO was the most appropriate measure. 1. I am satisfied that the Review Panel, having considered the "detailed table of the progression of [the plaintiff's] lung function" in Dr Burns' Certificate, formed the opinion, independent of Dr Burns, that the most appropriate measure of determining impairment was the DLCO results. It is worth nothing that had the Review Panel utilised spirometry results despite having formed the opinion that they were less appropriate than the DLCO results as a measure of impairment, that may itself have been productive of error. 2. This ground is not made out. Ground (b) and (c) – The Panel failed to give reasons for finding 20% WPI for pre-existing impairment was appropriate, and failed to give reasons for its finding that the plaintiff's WPI attributable to the subject accident was 5% WPI, particularly where the plaintiff's history is not in dispute 1. Since the Review Panel's determination of the plaintiff's total WPI informed its determination of his pre-existing WPI, it is appropriate to deal with grounds (b) and (c) together. In considering the assessment of total WPI, the Review Panel's reasons were expressed as follows: The Panel were of the opinion that clinically [the plaintiff] should be placed at the higher end of [the Class 2] range, so 25% WPI. This was because the Panel were persuaded that there was a definite deterioration in his lung function as a consequence of the subject accident. The pleural effusion had arisen in close proximity to the subject accident, as evidence by the chest x-ray taken on 10 September 2015, and this was confirmed on the CT scan of 10 September 2015. The chest x-ray of 28 January 2016 was suggestive of scarring of the pleural surface which would relate to the empyema, and represents a permanent change in the lung structure. 1. I am well satisfied as to the adequacy of the Panel's path of reasoning. They "clinically" determined that the plaintiff was at the higher end of the Class 2 range, and thus nominated 25% WPI; the highest whole person impairment rating available for a person falling within Class 2. Its reasons for so finding included the "definite deterioration in the plaintiff's lung function as a consequence of the subject accident" which together with his pleural effusion and a chest x-ray in 2016 suggestive of scarring represented a permanent change in his lung structure. 2. Having reasoned to the conclusion that the plaintiff's total WPI was 25% (a figure which, as I have emphasised, was the highest available within Class 2), the Review Panel then determined the plaintiff's pre-existing WPI to be 20%, with the result that the accident-related WPI was 5%. This process of reasoning is significant. By assessing total WPI first, in the Panel's subsequent assessment of pre-existing WPI it had available to it the range of impairment figures available in Class 2 (10% - 25% WPI). The availability of this range then permitted the Panel to give due consideration to the plaintiff's clinical history, including a deterioration in his respiratory function consequent upon the motor vehicle accident, in nominating the pre-existing WPI which, by a simple calculation, allowed for a determination of the plaintiff's accident-related WPI. 3. The Review Panel's reasons for assessing pre-existing injury at 20% WPI, and its resulting assessment of accident related WPI, are as follows: On a clinical basis considering there was severe known lung disease and he was a smoker, the Panel considered 20% WPI pre-existing impairment was appropriate. And in this respect concurred with Assessor Burns. 1. The Review Panel was aware of, and accepted the plaintiff's history as it related to the period prior to the motor vehicle accident. On the available material, that history included bronchiectasis and chronic obstructive airways disease (accepting, as the first defendant acknowledged, that these diagnoses may overlap), together with a long history of cigarette smoking. In my view, one of these conditions, or a combination of both, necessarily supported the Review Panel's finding that the plaintiff suffered from "severe known lung disease" at the date of the accident. 2. I accept that the Review Panel's reasons for its determination of the plaintiff's pre-existing WPI are expressed economically. This is not, however, an indication of a lack of depth in their reasoning or a failure to reveal the reasoning pathway in circumstances where, as here, the assessment of WPI also called for the Panel's clinical judgment. 3. In the result, I am satisfied that the Review Panel has given adequate reasons for its determination of the plaintiff's pre-existing WPI, and has revealed its path of reasoning to that conclusion (albeit stated succinctly). I am also satisfied that the Review Panel has given sound and discernible reasons for its assessment of the plaintiff's pre-existing WPI at 20%, and its assessment of 5% WPI as attributable to the motor vehicle accident. 4. Central to the plaintiff's contention that the Review Panel failed to give reasons for its finding that the WPI attributable to the accident was 5% is the plaintiff's further submission that the Review Panel failed to explain or advert to the plaintiff's apparent clinical improvement when comparing the 1 December 2015 DLCO results with the results generated from the March 2018 testing. Leaving to one side the question of whether the Review Panel was obliged to undertake an assessment of the measure of "improvement" (as the plaintiff described), it was not suggested that the March 2018 results were inaccurate or otherwise failed to properly reflect the degree of the plaintiff's respiratory impairment at that date. Importantly, and worthy of emphasis, the Review Panel's role was to assess the plaintiff's condition at the time of the assessment. In any event, I am satisfied that the Review Panel's process of reasoning can be readily discerned, on a beneficial reading of the Review Panel's Certificate, as a matter of necessary inference. 5. In Zahed v IAG Ltd t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 at [6], Leeming JA said: 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 271-272. 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." 1. Although not expressly stated, I am satisfied that the Review Panel must have been alert to the plaintiff having undergone lung surgery three months prior to the December 2015 DLCO testing, and the effect that surgery must have had on the results of that testing; both matters being expressly noted in Dr Burns' Certificate. 2. Being of that view, I am satisfied that the absence of any note of the improvement in the plaintiff's respiratory function between December 2015 and the testing conducted in March 2018 is readily explained by the Review Panel's conclusion that the 1 December 2015 DLCO results were unreliable, such that the "improvement", so called, was in fact a product of erroneous results having been produced by the 1 December 2015 DLCO testing. 3. Accordingly, for the foregoing reasons, grounds (b) and (c) are not made out. Grounds (d) and (e) – The Panel failed to approach the task afresh as required, and instead adopted or agreed with the findings by Dr Burns as regards pre-existing impairment, and as regards the DLCO respiratory test results being the most relevant in relation to measure of impairment. 1. As previously noted, it is no part of the plaintiff's case that the Review Panel's failure to re-assess him was productive of error in the sense that it revealed a failure, on their part, to approach the assessment afresh. Moreover, grounds (d) and (e) (as they relate to a failure on the part of the Review Panel to approach the task afresh) extend only to allege a failure to consider the issue of the plaintiff's pre-existing impairment, and the adoption of the DLCO results, as opposed to a failure to discharge the Panel's statutory obligation more generally. By those remarks I do not suggest that a differently articulated ground of appeal would have compelled a different conclusion. I simply make that observation in order to properly frame the parties' submissions and my consideration of them. 2. In QBE Insurance (Australia) Limited v Edwards [2016] NSWSC 1664, the plaintiff alleged, as the plaintiff does here, that "the Review Panel failed to undertake its own assessment … but simply agreed with the first assessment". In that case Wilson J determined that: … substantial agreement with the first assessment does not of itself disclose a failure to comply with s 63(3A) of the MAC Act. What is required is that the Review Panel conduct its own "new assessment". 1. Having determined that grounds (a), (b) and (c) have not been made out because adequate reasons were provided, I am satisfied that the Review Panel's impugned adoption, agreement and/or concurrence with certain findings expressed by Dr Burns is not reflective of a failure on their part to approach the task afresh. This finding is supported by the inclusion in the Review Panel's Certificate the fact that they "considered afresh all aspects of the assessment under review". That they may have elected to express agreement with the Certificate of Dr Burns after having conducted their own analysis does not compel any contrary conclusion. Orders 1. Accordingly, I make the following orders: 1. Pursuant to r 59.10 of the Uniform Civil Procedure Rules, extend time to 15 August 2018 for the plaintiff to apply to the Court for the commencement of judicial review proceedings. 2. The Summons is dismissed. 3. The plaintiff is to pay the defendant'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: 22 March 2019