AAI Limited t/as GIO v Zaroual - [2020] NSWSC 1563 - NSWSC 2020 case summary — Zoe

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AAI Limited t/as GIO v Zaroual

[2020] NSWSC 1563

Supreme Court of NSW|2020-09-04

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Source facts

Court

Supreme Court of NSW

Decision date

2020-09-04

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

Judgment

HER HONOUR: This is a judicial review of the decisions of a medical assessor and a proper officer of the State Regulatory Authority ("SIRA") in relation to a determination of a treatment dispute.
By amended summons filed 28 July 2020, the plaintiff relevantly seeks: 1. an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside the certificate and accompanying reasons of the third defendant, Dr James Bodel ("the Medical Assessor"), dated 28 October 2019 ("the Medical Assessor's decision"); or, alternatively, 2. an order in the nature of certiorari or a declaration setting aside or declaring invalid the Medical Assessor's decision; 3. an order pursuant to s 69 of the Supreme Court Act setting aside the determination and reasons of the fourth defendant, Jeremy Lum ("the Proper Officer"), dated 30 January 2020 ("the Proper Officer's decision"); or, alternatively, 4. an order in the nature of certiorari or a declaration setting aside or declaring invalid the Proper Officer's decision; 5. an order in the nature of mandamus remitting the plaintiff's application for determination of the treatment dispute to the second defendant for reallocation of the matter to a different medical assessor for determination according to law; or, alternatively, 6. an order in the nature of mandamus remitting the plaintiff's application for review to the second defendant for reallocation to a different proper officer for determination according to law.
The plaintiff is AAI Limited t/as GIO ("the insurer"). The first defendant is Sam Hamid Zaroual ("Mr Zaroual"). The second defendant is SIRA. The third defendant is Medical Assessor. The fourth defendant is the Proper Officer. The second, third and fourth defendants have filed submitting appearances.

[2]

[5]

The Guidelines

Section 44 of the MAC Act provides that SIRA may issue guidelines with respect to the procedures for the referral of disputes for assessment ("the Medical Assessment Guidelines").
Clause 13.3 of the Medical Assessment Guidelines requires a medical assessor to whom a treatment dispute has been referred is to issue a certificate certifying whether the treatment was reasonable and necessary and related to the injury caused by the accident.
Clause 13.2 of the Medical Assessment Guidelines provides that the certificate shall include written reasons for the determination.
The parties also referred to Clauses 1.5 to 1.7 of the Permanent Impairment Guidelines ("the PI Guidelines"), which concern causation. While the Medical Assessor's task in these proceedings was not to determine the Mr Zaroual's whole person impairment ("WPI"), the parties agreed that these causation guidelines provide useful guidance in relation to the second limb of s 58 of the MAC Act as to whether the treatment to be provided to the injured person related to the injury caused by the motor accident.
Clauses 1.5 to 1.7 of the PI Guidelines read: "1.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must 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 injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.6 Causation is defined in the Glossary at page 316 of the AMA4 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: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. 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 judgement. 1.7 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."

[7]

The report of Michael Griffiths

Mr Griffiths ("the engineer") is a Biomedical and Mechanical Engineer of Road Safety Solutions. He provided a report dated 14 September 2017. The engineer was provided with photographs of damage to the respective vehicles, statements as to the circumstances of the accident and medical records and reports. Mr Griffiths, in his curriculum vitae, refers to his separate biomedical qualifications including (CB 310): "My training in bio-mechanical engineering, including studies in physiology, anatomy, impact injury bio-mechanics, plus membership of relevant international committees such as the International Standards Organisation (ISO) Committee on the Tolerance of the Human Body, and the ISO Committee on Child Restraint Systems etc., provides sound fundamental understanding of the tolerance of the human body to impact, and how it is damaged by impact trauma."
The engineer, having studied the minimal damage to the respective vehicles, noted that the damage to the rear of Mr Zaroual's vehicle was limited to some superficial scuff marks on the bumper cover. He noted that the other driver had stated that he was almost stopped or travelling at no more than 10 kph when the impact occurred.
Based on the damage evident from the photographs provided to him and his own expertise, the engineer concluded that the resultant change in velocity to Mr Zaroual's vehicle would have been no more than 5 kph (CB 316). He prepared a diagrammatic summary of Mr Zaroual's injuries and pathology. He also noted that the radiology revealed pre-existing degenerative spondylosis as early as January 2013, consistent with the subsequent scanning, which reported longstanding degenerative changes. The engineer noted that objective assessment by non-invasive imaging established the pre-existing degenerative disease in the vertebrae, and provided his opinion that after the accident, this condition had not changed beyond the normal progression of his pre-existing degenerative pathology.
Under the heading "Neck injury threshold in low speed rear impacts", the engineer relevantly stated that rear impacts do not expose the occupant of the vehicle to greater vulnerability to injury. After introducing the relevance of head restraints to accidents, he stated that "in simple terms, a good head restraint is positioned as close as to the head as possible", where in the event of a collision, it can restrain the head before the neck muscles attempt to do so. The engineer continued as follows (CB 339): "Some 'active' head restraints move forward and apply direct support to the head, when a rear impact is detected. The idea is to act before the neck muscles detect motion and tense up before there is major rearward head motion. The effectiveness of both pre-impact self-bracing and passively activated 'pre-safe' support is consistent. Research has found that that those who see a rear impact coming, and actively brace themselves, have a lower incidence of neck injury. Some of my knowledge of good head restraint characteristics derives from my research facility's initiative of being the first to purchase, assess and assist with development of a prototype device developed by Dr Jocelyn Pedder from Ronakinetics Canada, with Insurance Corporation of British Columbia (ICBC) funding, in conjunction with Transport Canada researchers. The ICBC Head Restraint Measuring Device (HRMD) mounts on top of a H-point machine, which is in turn mounted on the seat base to identify the Hip point for seat belt assessments. A production version of the HRMD was later adopted by the USA's Insurance Institute of Highway Safety (IIHS) for their ongoing assessments of potential effectiveness of head restraints in new cars. In August 2017, I checked and found that IIHS protocols report that the HRMD is still a primary tool for rating head restraints in IIHS consumer safety programs. IIHS is the world leading body in using consumer information to drive advances in vehicle safety. From my international networking and reviews of research, I deduced that the most comprehensive and credible research work into low speed rear impact neck injury is that by the FOLKSAM group in Sweden. Their research programs include both - - sled tests using volunteers - fitment of a large proportion of the vehicle fleet in Sweden with crash event recorders. I visited the FOLKSAM research facility in Stockholm on a number of occasions, and observed the operation of the test sled in the configuration in which was used with volunteers. I established lengthy liaison with the relevant Swedish researchers, in particular Dr Maria Krafft, a lead author of FOLKSAM's neck injury work, and Professor Claus Tingvall, her then boss. The combination of the volunteer sled testing coupled with real world crash pulse recording allowed a unique researcher's view into the mechanisms and incidence of neck injury associated with rear impacts. The Swedish research group was able to fit crash recorders to nearly all Swedish manufactured vehicles since 1995. This means that when a crash occurs and a person receives injury, the researchers are able to review the extent of injury received, along with an in-vehicle recording of the crash pulse severity. In my role as head of vehicle safety aspects of road safety in the NSW Government's research facility, I initiated negotiations for the installation of the Swedish crash event recorders into a .targeted section of the NSW vehicle fleet. In part, the FOLKSAM group reported:- AIS 1 neck injuries has become the most common disabling injury in vehicle crashes. Research has shown that there are variations in rear impacts causing short- and long-term disability to the neck. Therefore impacts in where the duration of symptoms differ need to be separated in analyses. Crash severity is usually measured as change of velocity. The correlation between injury risk and impact severity parameters based on acceleration levels is to a high extent unknown. Since 1995, approx. 15,000 vehicles on the Swedish market have been equipped with crash pulse recorders measuring the acceleration time history in rear impacts. In the present study, the results from crash recording of 34 real life rear impacts were analysed where the change of velocity and the crash pulse were measured. The injury status of the 49 front occupants was classified as no symptoms, or symptoms less or more than 1 month after the impact. Also injury risk functions were calculated for different duration of symptoms correlated to the crash severity parameters. Most of the occupants that sustained symptoms more than 1 month, the change of velocity was higher than 15 km/h and the mean acceleration more than 5g. The average impact speed and mean acceleration for this group were 23 km/h and 5.4. Furthermore, the crash pulses form a corridor with acceleration between 5 and JOg and duration between 80 and 150 ms. Those occupants that sustained symptoms less than 1 month, the average change of velocity were 10 km/h and the mean acceleration was 3.5g. When designing test methods for evaluating vehicle safety concerning AIS 1 neck injuries, the acceleration pulse will differ considerably depending on focusing short- or long term consequences. The FOLKSAM study concluded:- There was a correlation between crash severity and duration of neck symptoms. 10 out of 11 occupants that sustained AIS 1 neck symptoms more than 1 month, the change of velocity was more than 15 km/h and the mean acceleration higher than 5g. Below an impact speed of 15 km/h and a mean acceleration less than 4g nearly all occupants were uninjured or had symptoms less than two weeks. The average change of velocity for those occupants with symptoms more than 1 month was found to be approximately 23 km/h and the mean acceleration was 5.4g. The corresponding figures for occupants with symptoms less than 1 month was 10 km/h and 3.5g. As reported above, the Swedish research group found that, in rear impacts, the velocity changes needed to be in excess of 15 km/hr for an occupant to record symptoms of pain of a duration 351 greater than one month. [Figure 1 omitted] This earlier research was based on 34 crashes with in vehicle recorders. In 2005 Krafft et al further reported on the FOLKSAM study of 150 real world rear-end impacts in Sweden with 207 front seat occupants the risk of suffering Whiplash Associated Disorder ('WAD') following a rear end collision was: a. Initially: iii. 0% for a change in velocity (delta v or Δv) of 0 km/hr; ii. 10% for a change in velocity (delta v or Δv) of 1 km/hr; iii. 50% for a change in velocity (delta v or Δv) of 19 km/hr. b. Greater than one month following a rear end collision was- i. 0% for a change in velocity (delta v or Δv) of 2.5 km/hr; ii. 10% for a change in velocity (delta v or Δv) of 13 km/hr; iii. 50% for a change in velocity (delta v or Δv) of 24 km/hr. c. Greater than six month following a rear end collision was: i. 0% for a change in velocity (delta v or Δv) of 2.5 km/hr; ii. 10% for a change in velocity (delta v or Δv) of 17 km/hr; iii. 50% for a change in velocity (delta v or Δv) of 25 km/hr. [Figure 2 omitted] In summary, the comprehensive FOLKSAM work indicates that crash pulses would heed to exceed a velocity change of 15 km/hr, and an acceleration of 4.5g, for there to be a likelihood of a neck injury (WAD). 8.3 Discussion and Conclusions The information on the exchange of energy involved in this incident is indicative of the kind of impact where there is the experience of a jolt/bump, but limited movement of the vehicle's tyres relative to the roadway. The available physical evidence is of a velocity change of no more than 5 km/hr. This is considerably less than the 15 km/hr criteria found in the Swedish Folksam laboratory and real world studies (see preceding section) for injury to the neck vertebra. As the neck vertebra are less well supported structurally, the neck is more vulnerable than the thoracic and lumber vertebra. That is, if the velocity change is below neck injury threshold, it is even further below thoracic or lumber vertebra injury threshold. A detailed review of SAM ZAROUAL's pathology shows that he had extensive pre-existing degenerative pathology, and that there has been no significant change in this, apart from the normal progression of degenerative disease over time."
The engineer concluded that the minimal energy exchange associated with this incident was consistent with the robust documentation of the medical records that there was no new acute injury. It was his opinion that the lack of any new acute injury was consistent with the low velocity change indicated by the vehicle damage and consistent with the various studies that crash pulses would need to exceed a velocity change of 15 kph for there to be a likelihood of a neck injury.
According to the engineer, the velocity change involved in the accident of no more than 5 kpm was considerably less than the injury threshold established by the studies.

[10]

The decision of the Medical Assessor

In his decision, the Medical Assessor identified the two issues in dispute before him as being whether the surgery related to the injuries caused by the motor accident, and whether it was reasonable and necessary in the circumstances. The Medical Assessor also took into account the MAS certificate of Medical Assessor Home dated 11 January 2016 and replacement certificate dated 4 July 2016 (CB 361-362).
The Medical Assessor then recorded a history of the accident (CB 363). He stated that the Mr Zaroual's vehicle was fitted with a head restraint and that Mr Zaroual was wearing a seatbelt. Mr Zaroual stated that there was a lot of damage to the vehicle which struck his, but that apart from the stereo in his dashboard "popp[ing] out", his own vehicle was not badly damaged and was driveable.
The Medical Assessor then set out a history of symptoms and treatment following the motor accident as follows (CB 363-364). Under the heading "History of symptoms and treatment following motor accident", the Medical Assessor stated: "This gentleman development increasing lower back and increasing head and neck pain associated with this injury. He was sent to have a CT scan of the cervical and lumbar spines.… As I indicated initially, the area of pain was most localized to the lower part of the back but later the neck was also troublesome although it has been present but not as severe as the back. … He states that the initial minor neck complaint became much more severe two or three months after the injury. He then began further conservative care with rest and analgesic medical, physiotherapy and hydrotherapy. He indicates that this was of benefit, but the pain would worsen at night. He was eventually referred to see Dr McKechnie. He observed that this gentleman had significant head, neck and lower back pain. He advised conservative care including rest and analgesic medication, physiotherapy and hydrotherapy. In 2018 and 2019 however he did do further MRI scans which showed evidence of myelomalacia in the spinal cord and at that stage he recommenced the decompression which is the subject of the current determination. He has indicated that although there is evidence of degenerative disc disease in the cervical spine and in the lumber spine that the motor vehicle accident has rendered this symptomatic to the point that he is now at risk of cervical myelopathy and for that reason the decompression has been recommended …"
Under the heading "4. Findings on Clinical Examination", the Medical Assessor set out Mr Zaroual's consistency of presentation as follows (CB 365): "This gentleman presented with neck pain and referred pain into the left arm. He also has lower back pain. He does have clinical symptoms of mechanical discomfort in the neck with nonverifiable radicular complaints in the left upper limb. I have seen the reports from Dr McKechnie who has seen him over a lengthy period and observed in the recent MRI that this gentleman is now developing myelomalacia. He is concerned that this will progress to a cervical myelopathy and for that reason has proposed the decompressive surgery."
Under the heading "5. Review of Documentation", the Medical Assessor set out a summary of the relevant documentation as follows (CB 365-368): "…I note that in the initial Accident Claim form there is mention of injury to both the neck and back. There is a letter from the GIO dated 23 May 2019 which is a recent letter in response to the request from Dr McKechnie dated 23 April 2019 to undergo the cervical spine decompressive cervical laminectomy. Their response to Mr Zaroual is that they have denied liability for the cost of this on the basis of the fact that Dr Slezak and Dr Sekel who had examined him previously had indicated that the need for this surgery had arisen as a consequence of constitutional factors and was not related to the effect of the injury. The official report of the MRI scan from 26 February 2019 confirms the widespread degenerative disc disease in the cervical spine and concludes that there is a: 'congenitally narrow spinal canal from C3/4 to C5/6 exacerbated by osteophyte disc complexes of varying sizes, the most pronounced is at C5/6 where there is a moderate spinal canal stenosis with an AP spine canal diameter of 5.8 millimetres. There is some early intrinsic cord signal change suggesting early myelomalacia. Neurological opinion is suggested'. The series of reports from Dr McKechnie, particularly the most recent report on 07 August 2019 addresses those issues and it is he who has reviewed that MRI scan and notes that there has been changes in the degree of the myelomalacia and it is for that reason that he has recommended the surgery should proceed. The reports from Dr McKechnie do concede that the pathology in the cervical spine is not caused by the motor vehicle accident but that the motor vehicle accident has caused significant ongoing aggravation to that region. I note that there have been previous assessments for the State Insurance Regulatory Authority to that effect and it was determined that there was indeed aggravation to the underlying degenerative change caused by the motor vehicle accident."
The Medical Assessor's reasons for determining that the proposed surgery was causally related to the accident is as follows: "Dr McKechnie, who is the treating Neurosurgeon, has indicated that he is satisfied that the motor vehicle accident has caused aggravation of that underlying degenerative process and this is associated with deteriorating clinical function over time leading to the need for the decompressive surgery. I agree with that clinical assessment." The series of reports from Dr McKechnie, particularly the most recent report on 07 August 2019 addresses those issues and it is he who has reviewed that MRI scan and notes that there has been changes in the degree of the myelomalacia and it is for that reason that he has recommended the surgery should proceed. The reports from Dr McKechnie do concede that the pathology in the cervical spine is not caused by the motor vehicle accident but that the motor vehicle accident has caused a significant ongoing aggravation to that region. I note that there have been previous assessments for the State Insurance Regulatory Authority to that effect and it was determined that there was indeed aggravation to the underlying degenerative change caused by the motor vehicle accident. The local doctor's continuation notes are also noted, and they are consistent with the ongoing medial management of injuries and of his general health issues including the heart condition and the blood pressure. He has been under the care of a cardiologist for a lengthy period because of that ongoing condition. There are extensive hospital notes which are also noted which do not add to my understanding of this gentleman's clinical circumstance regarding the cervical spine 'injury' and the need for the surgery as proposed. I also note some very poor quality black and white photographs of the cars involved in this accident and it is difficult to identify the damage in this gentleman's motor vehicle. I note also the reports of the MRI scans of the lumbosacral spine from 08 December 2015 confirming the degenerative disc disease in the lumbosacral region. This gentleman has also been assessed by Dr Richard Sekel at IMMEX. He is of the view that this gentleman's pathology is indeed degenerative in nature with congenital short pedicles and vertebral canal stenosis and I agree with that. There is very clear evidence that the underlying pathological process is largely a degenerative one. This gentleman however was apparently asymptomatic in the neck and the back at the time of the accident. He has had extensive conservative care which has not helped, and he has steadily deteriorated in the neck and the left arm over time which has brought forward the need for the decompressive surgery as recommended by Dr McKechnie. There are some better-quality photographs in a Road Safety Solutions Report which are also noted and there is indeed minimal damage to the back of the VW motor vehicle. That indeed was the history given by Mr Zaroual at the time of my assessment. … Dr Home was of the view in his Medical Assessment Certificate, which is provided, that this gentleman did have 'injuries caused by the motor vehicle accident, cervical spine aggravating underlying degenerative changes at C5/6 and C6/7' and I agree with that. That also appears to be the conclusion from Dr McKechnie regarding the management of this injury. This gentleman has early signs of myelomalacia, and possible cervical myelopathy and the decompression hopefully will prevent any further deterioration in that regard. Finally, there are the additional documents which are the copies of a series of reports from Dr McKechnie including the most recent one from 07 August 2019 in which he confirms his recommendation for the wide decompressive laminectomy for the reasons that I have mentioned above. I have also seen the Medical Assessment Certificates from Dr Alan Home and I have referred to those above. He does indeed indicate that there has been aggravation of an underlying degenerative process in the neck and the back caused by the motor vehicle accident. 6. Determinations Treatment - Causation This gentleman has suffered a soft tissue injury to the neck and the back in the motor vehicle accident that occurred on 12 May 2014. I agree with those who have indicated that there has been longstanding pre-existing degenerative change in the neck and the back and an acquired vertebral canal stenosis particularly in the cervical spine. In part this is due to degenerative change and in part due to congenital short pedicles. Dr McKechnie who is the treating Neurosurgeon has indicated that he is satisfied that the motor vehicle accident has caused aggravation of that underlying degenerative process and this is associated with deteriorating clinical function over time leading to the need for the decompressive surgery. I agree with that clinical assessment."
In summary, the Medical Assessor identified the relevant medical dispute and documentation upon which the parties relied and recorded the history as given by Mr Zaroual. Relevantly, the Medical Assessor obtained a history "that there was a lot of damage" to the other vehicle involved in the accident, although Mr Zaroual's vehicle was not as badly damaged and was driveable. The Medical Assessor obtained a history of the development of symptoms thereafter and Mr Zaroual's ongoing symptomatology.
After reporting on the clinical examination, the Medical Assessor noted the context in which the surgery was proposed. The Medical Assessor was of the opinion that there was clear evidence that the underlying pathological process was largely degenerative. However, Mr Zaroual was apparently asymptomatic in the neck and the back at the time of the accident. The Medical Assessor noted that Mr Zaroual had had extensive conservative care which had not helped, and he had steadily deteriorated in the neck and the left arm over time which brought forward the need for the surgery.
The Medical Assessor agreed with Medical Assessor Home in his MAS that Mr Zaroual did have injuries caused by the motor vehicle accident, cervical spine aggravating underlying degenerative changes at C5/6 and C6/7, which also appeared to be the conclusion from Dr McKechnie regarding the management of this injury.
The Medical Assessor noted that Mr Zaroual had early signs of myelomalacia, and possible cervical myelopathy and the surgery would hopefully prevent any further deterioration.
Importantly, the Medical Assessor agreed with those experts who had indicated that there had been longstanding pre-existing degenerative change in the neck and the back and an acquired vertebral canal stenosis particularly in the cervical spine. He stated that this was due in part to degenerative change and in part due to congenital short pedicles. Hence, the Medical Assessor agreed with the insurer's medico-legal experts up to this point. The remaining issue was whether the accident had caused aggravation of the underlying degenerative process that led to Mr Zaroual's need for surgery.
The Medical Assessor agreed with Dr McKechnie, indicating that he was satisfied that the motor vehicle accident had aggravated the underlying degenerative process, leading to the requirement for surgery. The Medical Assessor also referred to the opinion of Dr McKechnie where he had observed in recent MRI scans that Mr Zaroual was developing myelomalacia and there was some concern that this would progress to cervical myelopathy.

[11]

Grounds 1 and 2 - failures to consider and/or respond to a substantial and clearly-articulated argument, and to afford procedural fairness

An administrative decision maker has an obligation to consider and respond to a substantial and clearly-articulated argument articulated by a party to the dispute. A failure to do so constitutes a failure to accord procedural fairness and natural justice, and amounts to a constructive failure to exercise jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24] ("Dranichnikov"); Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 per Basten JA at [19]-[22] ("Cervantes"); Rodger v De Gelder [2015] NSWCA 211 per Gleeson JA at [89] - [96], [109] ("De Gelder"); AAI Ltd t/as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [66] ("McGiffen").
The parties also relied upon Wingfoot Australia Partners Pty Ltd v Kocak [2003] HCA 43 ("Wingfoot") at [47] and [56]. They read: "[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. … [56] …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."
The defendant referred to Cervantes at [19]-[22], where Basten JA stated: "[19] Although this ground must be dismissed for the reasons given above, it is desirable to return to the first step in the reasoning, namely identifying the legal obligation to take particular evidence into account. No case was referred to which supported a proposition expressed in these terms. In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, at [24], Gummow and Callinan JJ stated: 'To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.' [20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [81] where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued: 'However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of "refugee".' [21] Two propositions may be drawn from these statements. First, although not articulated in these terms, a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms. Thus, in the present case, s 94 of the Compensation Act requires that a claims assessor "is, in respect of a claim referred to the assessor for assessment, to make an assessment of ... the amount of damages": s 94(1)(b). It is, therefore, mandatory that the assessor address the claim and carry out the statutory function. [22] The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [35]."

[12]

The insurer's submissions

The insurer submitted that in considering the insurer's export reports, the Medical Assessor merely noted (and agreed) with the opinion of Dr Sekel that Mr Zaroual's pathology was degenerative in nature with congenital short pedicles and vertebral canal stenosis. The Medical Assessor made no reference to the opinion of Dr Sekel as to causation of the need for the surgery, and made no reference to the opinion of Dr Slezak at all.
As to the report of the engineer, the Medical Assessor made reference to the "better quality" photographs of damage to Mr Zaroual's vehicle in the engineer's report, which he observed was consistent with the history provided by Mr Zaroual. However, the Medical Assessor made no reference to the engineer's expert opinion itself.
The Medical Assessor agreed that Mr Zaroual had longstanding pre-existing degenerative change in the neck and an acquired vertebral canal stenosis in the cervical spine. He concluded that this was in part due to degenerative change and in part due to congenital short pedicles.
The insurer submitted that by so doing, the Medical Assessor did not: 1. engage at all with the insurer's contentions as to causation; 2. respond to its substantial and clearly-articulated argument as to causation; 3. consider, let alone refer to, the contrary opinions expressed in the medical reports of Drs Slezak and Sekel; 4. consider the report of the engineer; 5. provide any reasons for rejecting the contrary opinion contained in the insurer's material; and 6. provide any reasons for preferring the opinion of Dr McKechnie and Medical Assessor Home.
The insurer contended that the surgery was not causally related to the accident, and supported this contention with expert reports. It submitted that it was incumbent upon the Medical Assessor, in determining the issue as to causation, to consider and respond to its arguments and the evidence upon which it relied.
According to the insurer, the Medical Assessor failed in his most fundamental obligation as an administrative decision maker. He gave no consideration to the insurer's contentions, or for that matter the evidence upon which the insurer relied supporting its causation case. The insurer referred to De Gelder as per Gleeson JA at [109]: "[109] Here the Panel failed to respond to a substantial argument based on evidence relied upon by Mr De Gelder as to the causation of his thoracic spine injury by the motor accident. It may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under s 58(1)(d), because it misunderstood a significant body of evidence relevant to its non-medical determination. What the Panel did amounted to a jurisdictional error. The Panel's decision recorded in its certificate is to be regarded as a purported and not real exercise of its statutory function in s 58(1)(d), leaving that statutory function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge by way of judicial review: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ)."
In the circumstances, the insurer submitted that the Medical Assessor failed to accord the insurer procedural fairness and natural justice, and failed to constructively exercise his jurisdiction, thereby falling into jurisdictional error.

[13]

Mr Zaroual's submissions

Mr Zaroual submitted that instead of identifying what the substantial and clearly-articulated argument was that was purportedly not responded to by the Medical Assessor, the insurer merely outlined the merits of its own expert reports and complained that the Medical Assessor did not expressly refer to each report in making his findings. Distilled, it appears that the insurer's argument was that: 1. Mr Zaroual suffered a pre-existing degenerative condition; 2. the accident was low speed and therefore did not cause the damage to Mr Zaroual's vertebrae; and 3. consequently, the treatment claimed is not causally related to the accident nor reasonable and necessary.
Having regard to the authorities (particularly Cervantes at [19]-[22]), Mr Zaroual submitted that there is no obligation for the Medical Assessor to refer to every piece of evidence that was before him. All that was required of the Medical Assessor, in this context, was to respond to the substance of a substantial and clearly-articulated argument.
Mr Zaroual submitted that when reading the Medical Assessor's decision fairly and as a whole, it is clear that the Medical Assessor responded to the substance of the insurer's argument.
Further, although he was not required to, the Medical Assessor did made reference to the reports of Drs Sekel and Slezak and the engineer. He accepted that Mr Zaroual had an underlying condition. At p 7 of his decision, the Medical Assessor identified the very substance of the argument said to have been not engaged with, and then provided some explanation for the contrary view of Drs Slezak and Sekel.
At p 8, the Medical Assessor then considered the degenerative condition of Mr Zaroual's spine and the opinion of Dr Sekel, stating: "Dr Home was of the view in his Medical Assessment Certificate, which is provided, that this gentleman did have injuries caused by the motor vehicle accident, cervical spine aggravating underlying degenerative changes at C5/6 and C6/7 and I agree with that. That also appears to be the conclusion from Dr McKechnie regarding the management of this injury."
In short, the Medical Assessor not only referred to and responded to the first limb of the insurer's argument, he accepted it. His reasons make it plain that he found that there was an underlying degenerative condition. However, he also accepted that the claimant was asymptomatic prior to the accident and that the accident aggravated the underlying condition and brought forward the need for surgery.
Mr Zaroual further submitted that the Medical Assessor expressly referred to the report of the engineer, which was the insurer's primary evidence on the issue of the velocity of the impact. The Medical Assessor stated on page 8: "There are some better-quality photographs in a Road Safety Solutions Report which are also noted and there is indeed minimal damage to the back of the VW motor vehicle. That indeed was the history given by Mr Zaroual at the time of my assessment."
As such, Mr Zaroual submitted that the insurer's submissions about the minimal damage to the vehicle was not only responded to, but accepted.
Mr Zaroual further submitted that it is helpful to have regard to the conclusion in the engineer's report, which was that "the minimal energy exchange associated with this incident is consistent with the robust documentation of the medical records that there is no new acute injury." In other words, the accident did not cause the vertebral damage.
Mr Zaroual submitted that this issue was squarely considered by the Medical Asssessor; he just disagreed with the engineer's conclusion. The Medical Assessor's conclusion on the topic was plainly stated on page 9 of the decision: "This gentleman has suffered a soft tissue injury to the neck and the back in the motor vehicle accident that occurred on 12 May 2014. I agree with those who have indicated that there has been longstanding pre-existing degenerative change in the neck and the back and an acquired vertebral canal stenosis particularly in the cervical spine. In part this is due to degenerative change and in part due to congenital short pedicles. Dr McKechnie who is the treating Neurosurgeon has indicated that he is satisfied that the motor vehicle accident has caused aggravation of that underlying degenerative process and this is associated with deteriorating clinical function over time leading to the need for the decompressive surgery, I agree with that clinical assessment."
The Medical Assessor provided his reasoning that even though the vertebral changes were pre-existing, the accident aggravated them, rendering them symptomatic and bringing forward the need for surgery.
For these reasons, Mr Zaroual submitted that the Medical Assessor's reasons respond to all three limbs of the insurer's argument. Not only did the Medical Assessor specifically refer to the reports of Drs Sekel and Slezak, but the Medical Assessor accepted their positions to the extent that Mr Zaroual suffered from preexisting congenital conditions and that there was minimal damage to the vehicle. The Medical Assessor was not required to go through each page of the hundreds of pages of documents provided by the insurer and provide a detailed explanation as to why he did or did not agree with each and every part of each and every report: see Wingfoot at [47] and Cervantes. As such, the Medical Assessor did not err in his determination.

[14]

Resolution

As previously stated, the Medical Assessor correctly identified that in this dispute, his statutory task was to determine whether the surgery related to the injuries caused by the accident and whether it was reasonable and necessary in the circumstances.
The Medical Assessor stated that he preferred the engineer's "better" coloured photographs of the vehicles than those taken by Mr Zaroual. The photographs of both cars showed that the impact had only been minor, which was common ground between the parties.
The medical opinions of Drs Slezak and Sekel were set out by the Medical Assessor when he referred to the insurer's letter dated 23 May 2019. He noted that Drs Slezak and Sekel had previously examined Mr Zaroual. Both doctors had indicated that the need for surgery had arisen as a consequence of constitutional factors and was not related to injury arising from the accident. It was on that basis the insurer has denied the costs for the surgery. In other words, the Medical Assessor correctly outlined the medical opinions of Dr Slezak and Sekel and their view that the need for surgery was a consequence of constitutional factors, not the effect of the accident.
As set out in the Medical Assessor's decision, both the insurer and Mr Zaroual's medico-legal experts agreed that Mr Zaroual had a longstanding pre-existing vertebral canal stenosis in his cervical spine. This was in part due to degenerative change and congenital pedicles. The Medical Assessor also agreed with this common view of the medical experts. What was left in issue for the Medical Assessor to determine was whether the accident caused aggravation of the underlying degenerative process which led to Mr Zaroual's need for surgery, and if so whether the surgery was reasonable and necessary.
This issue calls for a medical opinion, not the opinion of a biomedical and mechanical engineer. Earlier in this judgment, I set out the engineer's report in some detail. Its contents cover matters such as a FOLKSAM of Sweden group study in relation to neck injuries in vehicle crashes. It appears that in that study, the results were extrapolated from crash pulse recorders of a sample size of only 34 real life impacts. The matters to which the engineer referred are outside the field of study and knowledge of a special medical practitioner. The Medical Assessor was not in a position to ascertain the veracity or otherwise of the graphs and findings made in the engineer's report. In these proceedings, the speed and velocity of the accident were not in dispute, and the relevant opinion sought was that of a specialised medical practitioner such as the Medical Assessor.
The Medical Assessor also referred to the findings of the prior Medical Assessor, Dr Home, who stated that Mr Zaroual had injuries caused by the motor vehicle accident which aggravated his underlying degenerative changes at C5/6 and C6/7. Medical Assessor Home stated that Mr Zaroual had early signs of myelomalacia and possible cervical myelopathy, and it was his opinion that the surgery would hopefully prevent any further deterioration. The Medical Assessor agreed with Medical Assessor Home's opinion.
The Medical Assessor also referred to the report of Mr Zaroual's treating neurosurgeon, Dr McKechnie. Dr McKechnie indicated that he was satisfied that the accident has caused aggravation of the underlying degenerative process, and that this is associated with deteriorating clinical function over time. In particular, the Medical Assessor referred to Dr McKechnie's report dated 7 August 2019, where Dr McKechnie noted that there had been changes in the degree of myelomalacia and it was for this reason that he had recommended the surgery should proceed. The Medical Assessor had conducted his own clinical examination, read the medical reports, viewed the MIR scan and agreed with Dr McKechnie's opinion.
A Medical Assessor's statutory task was to form and to give his own opinion on the medical question referred for his opinion. As stated in Wingfoot, it goes too far to conceive the function of the Medical Assessor 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 Assessor 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. Rather, the function is in every case to form and to give its own opinion on the medical question referred to him by applying his own medical experience and expertise.
In my view, for the reasons stated above, this is precisely what the Medical Assessor did. The Medical Assessor applied his own medical experience and expertise to give his opinion that the accident caused aggravation of the underlying degenerative process which led to Mr Zaroual's need for surgery, which he concluded was reasonable and necessary. By so doing, the Medical Assessor correctly carried out his statutory task. The Medical Assessor has considered and responded to the insurer's argument about whether the plaintiff's injury was due to a constitutional and degenerative condition not related to the accident, and whether the accident aggravated this underlying degeneration. As such, he provided procedural fairness to both parties. Grounds 1 and 2 of the judicial review fail.

[17]

Mr Zaroual's submissions

Mr Zaroual submitted that the insurer's complaint on this ground is that the Medical Assessor failed to have regard to relevant considerations, being the opinions of Dr Slezak and Dr Sekel and the engineer. In this way, ground 3 is merely a different articulation of grounds 1 and 2.
Moreover, Mr Zaroual submitted that ground 3 rests on a mistaken legal foundation. It invites the Court to make the same error that the Court of Appeal identified in De Gelder at [84] to [86]: "[84] It is well-established that reference to a 'relevant consideration' in judicial review is a reference to a factor which, by law, the decision-maker is bound to take into account: Peko-Wallsend at 39; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 at [15] (Cervantes) per Basten JA (McColl and Macfarlan JJA agreeing). [85] As Basten JA explained in Cervantes at [15] , this ground required the respondent, Mr De Gelder, to identify the legal obligation on which he relied to identify what were mandatory factors to be taken into account for the purposes of the panel's decision. The identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision-maker to act rather than from the particular facts of the case that the decision-maker is called on to consider: Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; 55 ALD 1; [1999] HCA 14 at [195] per Gummow and Hayne JJ. [86] It seems that this did not occur before the primary judge. This remained the position in this court. Although Mr Rodger contended that the Permanent Impairment Guidelines were delegated legislation and Mr De Gelder did not (2015) 71 MVR 514 at 531 submit to the contrary, neither party identified any mandatory considerations the panel was bound to take into account. Both parties proceeded on appeal on the same basis as they did before the primary judge - that relevant material was the same as a relevant consideration in the sense described in Peko-Wallsend. This approach, which his Honour adopted, was erroneous. The error, as Basten JA said in Cervantes at [15], is that 'to describe evidence as "relevant" to the case of one party is not to identify a "relevant consideration" for judicial review purposes'."
Mr Zaroual noted that is well settled that a relevant consideration, for judicial review purposes, is one that is required by the empowering statutory instrument and not the evidence specific to the facts of the matter.
As such, the opinions of Drs Sekel and Slezak and the engineer do not fall within the category of mandatory considerations. They are not in the nature of mandatory guidelines or statutory provisions. Rather, the insurer invites a review of the merits of the matter instead of identifying a legal error as required to enliven the supervisory jurisdiction of the Court.
Mr Zaroual submitted that even if the opinions were relevant considerations for the purposes of judicial review, not only did the Medical Assessor consider the opinions of Dr Sekel and Dr Slezak, but adopted their positions in relation to the damage to discs and pre-existing degenerative conditions. The Medical Assessor was not only entitled to, but was required to reach his own medical conclusions.
Accordingly, Mr Zaroual submitted that the insurer's position is not maintainable. The opinions of Drs Sekel and Slezak and the engineer were read, considered and to a limited extent, agreed with by the Medical Assessor.

[19]

Ground 4 - Failure to provide reasons

The insurer referred to Wingfoot at [43], where the High Court stated: "[43] 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."
In Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 ("Vegan"), Basten JA (with whom Handley and McCall JJA agreed) stated at [121]-[122]: "[121] Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. [122] On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required."

[21]

Mr Zaroual's submissions

Mr Zaroual submitted that on any reading, let alone one with a beneficial construction, the insurer has unfairly characterized the Medical Assessor's reasons. It is not fair to say that the Medical Assessor did no more than to agree with Dr McKechnie. Rather, he set out and agreed with the views of a number of other experts, including Medical Assessor Home and, in part, the insurer's experts.
Mr Zaroual submitted that the insurer's submissions fail to accord with the principle of beneficial construction required by the High Court in Wu Shan Liang. The Medical Assessor's decision must be read as a whole. For the reasons provided in relation to the previous grounds, Mr Zaroual submitted that the Medical Assessor plainly provided his path of reasoning in concluding that he agreed with the opinion of Dr McKechnie.
This is the same kind of process that was found to be reasonably open to the Medical Assessor by this Court in NRMA Insurance v Koic [2019] NSWSC 1674 at [82] - [97] ("Koic"). In Koic, Harrison AsJ stated at [96]: "Read as a whole and fairly, it is my view that the medical assessor's reasons meet the standard set out in Wingfoot at [55] quoted earlier. As I outlined in relation to grounds 2(a)-(b), the medical assessor accurately set out the available evidence on causation, and then determined that he was 'swayed' by the evidence of the first defendant and her treating surgeon."
As in Koic, all of the findings of the Medical Assessor here were reasonably open to be made, and having regard to the decision as a whole, the Medical Assessor provided a path of reasoning that was easily discernible.
At p 7 of the decision, the Medical Assessor noted the MRI dated 26 February 2019 and identified that Mr Zaroual had degenerative conditions. He then cited the reports of Dr McKechnie and the consistent reports that Mr Zaroual's condition was as a result of aggravation of his pre-existing condition. The Medical Assessor also cited Medical Assessor Home's assessments and the consistent conclusion that the accident was a key aggravating factor, causally relating to the Mr Zaroual's condition at the time of assessment. Critically, the Medical Assessor stated at p 8: "There is very clear evidence that the underlying pathological process is largely a degenerative one. This gentleman however was apparently asymptomatic in the neck and the back at the time of the accident. He has had extensive conservative care which has not helped, and he has steadily deteriorated in the neck and the left arm over time which has brought forward the need for the decompressive surgery as recommended by Dr McKechnie."
Further, Mr Zaroual submitted that the Court of Appeal has determined that adopting reports of others into a path of reasoning is not an error of law, and on the contrary is perfectly acceptable in administrative decision making. The obligations of the Medical Assessor, consistently with the MAC Act and the Guidelines, is to provide a path of reasoning as efficiently and briefly as possible while making those reasons in accordance with the common law obligations.
Not only did the Medical Assessor provide a clear path of reasoning, but he explained how and why he preferred the reasoning of Dr McKechnie over the competing views of the insurer's experts.
Mr Zaroual further noted that in relation to the passage in Vegan to which the insurer referred, what the case requires is that a decision maker explain his preference for one conclusion over another. He is not required to explain why he accepted some evidence over other evidence. The latter proposition would be at odds with Wingfoot and Cervantes.
What the Medical Assessor has disagreed with is the insurer's contention that there was no a causal relationship between the accident and the subsequent requirement for surgery. The Medical Assessor explained why he come to his conclusion that the treatment was causally related and reasonable and necessary. Mr Zaroual submitted that the insurer's real complaint is not that the path to this decision was not exposed, but rather that the Medical Assessor did not accept its argument.

AAI Limited t/as GIO v Zaroual

At a glance

Court

Decision date

Source

Judgment (30 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (14)