AAI Limited v Fitzpatrick

Supreme Court of NSW|2015-07-01|Before: Schmidt J

Judgment

In November 2005 Mr Fitzpatrick was injured in a car accident. In October 2008 his injuries were first assessed under the Motor Accidents Compensation Act 1999 (NSW) at 5% whole person impairment. On further assessment in September 2011 they were found to be at 7% and in a third assessment conducted in 2014, they were found to be 21%. In June 2014 the plaintiff insurer AAI Limited sought to have the assessment reviewed under s 63 of the Act, alleging a number of jurisdictional errors and errors of law on the assessors' part. The application was dismissed.

Was the application brought within time?

Mr Fitzpatrick's case was that under Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), AAI had to bring these proceedings within 3 months of the assessment decision made in April 2014 and the review decision made in August 2014. The proceedings were not brought until January 2015. There was no explanation for the delay and so the Court would not exercise its discretion to extend time.
AAI pressed its application for extension of time, relying on another application it made in September 2014 under s 62 of the Motor Accidents Compensation Act, for a further assessment of Mr Fitzpatrick's injuries, which was rejected in November 2014.
AAI submitted that it had been proper and appropriate for it to have made and awaited the outcome of that application, before bringing these proceedings, given that in the proper officer's August review decision, reference had been made to Mr Fitzpatrick's medical history, which the proper officer considered might be the subject of an application for further assessment. It had then pursued that application, which was dismissed in November 2011, following which these proceedings were brought.
That approach was submitted to have been consistent with Rodger v De Gelder [2011] NSWCA 97; (2011) 80 NSWLR 594, where at [91] - [92] it was observed that in judicial review proceedings such as this, it was better for remedies available under the legislative scheme to be exhausted, before judicial review was pursued.
The objection to the leave sought was finally not pressed, it being accepted that while the explanation advanced by AAI in submissions ought strictly to have been advanced in an affidavit, there being no dispute on the facts or the law, the point would not be pressed.
In the result it is appropriate that the required leave be granted.

The legislative scheme

Before turning to the issues lying between the parties, it is important to outline the legislative scheme under which those issues have arisen.
The scheme of the Motor Accidents Compensation Act must be approached in light of the objects of the Act, provided in s 5 to be: "5 Objects of Act (cf s 2A MAA; Sch 1 [1] of Act No 132 of 1998) (1) The objects of this Act are as follows: (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, (c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure, (d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales, (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities, (f) to ensure that insurers charge premiums that fully fund their anticipated liability, (g) to deter fraud in connection with compulsory third-party insurance. (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and (c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and (ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and (iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and (d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability."
If there is a medical dispute, which is defined in s 57 to be a disagreement or issue to which Part 3.4 Medical assessments applies, it may be referred for assessment by either party. Such disputes include whether the injured person's degree of permanent impairment as a result of injury caused by the motor accident is greater than 10% (s 58(1)(d)). It is only if such impairment is greater than 10%, that an injured person is entitled to compensation for non-economic loss (s 131).
Such medical disputes are referred to medical assessors, who must give a certificate as to the matters referred (s 61(1)). Such medical assessments are subject to the provisions made in MAA Medical Guidelines (s 44(1) and s 65(1)). The first of the relevant guides, the Medical Assessment Guidelines, require an insurer to give written reasons, if an application is rejected. Those reasons must accompany the application for assessment (Medical Assessment Guidelines, Chapter 8).
The assessor is also obliged to comply with the provisions made in the Guidelines for the Assessment of Permanent Impairment of a Person Injured as a Result of a Motor Vehicle Accident (s 44(1)). Both these Guidelines have the status of delegated legislation (see Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287; (2010) 57 MVR 9 at [31]).
Before issuing the certificate, the assessor is required to conduct a medical assessment examination, at which the insurer is not represented (Medical Assessment Guidelines, Chapter 11). Assessors must also take into consideration documents they are provided, which must also be provided to the other party (Medical Assessment Guidelines, Chapter 12).
The relevant Permanent Impairment Guidelines became effective in October 2007. They require an impairment to be evaluated only as at the time of the assessment, which may not include an allowance for predicted deterioration (cl 1.24).
The Permanent Impairment Guidelines deal with the concept of causation of injury, providing at cls 1.8 - 1.9: "1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: "Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following. (a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. (b) The alleged factor did cause or contribute to worsening of the impairment, which is a nonmedical determination". This therefore involves a medical decision and a non-medical informed judgement. 1.9 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question "Would this injury (or impairment) have occurred if not for the accident?" may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."
The Permanent Impairment Guidelines require the assessment to involve three stages, specified in cl 1.20 to be: "(i) A review of medical and hospital records, including: - all available treating and medico-legal doctor notes and reports (general practitioner, specialist and allied health), both prior to and following the accident; and - diagnostic findings from all available relevant investigations. (ii) An interview and a clinical examination, wherever possible, to obtain the information specified in the MAA Guidelines and the AMA 4 Guides necessary to determine the percentage impairment; and (iii) The preparation of a report using the methods specified in these MAA Guidelines which determines the percentage permanent impairment together with the evidence, calculations and reasoning on which the determination is based. The applicable parts of the MAA Guidelines and the AMA 4 Guides should be referenced."
Clause 1.19 requires the assessor to consider the available evidence and to be satisfied that there: "(i) was an injury to the part being assessed caused by the accident; (ii) is a defined diagnosis that can be confirmed by examination; and (iii) is an impairment as defined at 1.11 of the MAA Guidelines."
The Permanent Impairment Guidelines also provide for the assessment of pre-existing impairment (at cls 1.33 - 1.35). Spinal impairment is specifically dealt with in Chapter 4 and impairment of upper extremities in Chapter 2.
The Medical Assessment Guidelines deal with the certificate which must be issued by an assessor in the case of a permanent impairment dispute of the kind here in question, providing: "13.5 An Assessor to whom a permanent impairment dispute is referred requiring either a psychiatric or psychological injury assessment, or requiring a physical injuries assessment by a single Assessor, that does not require the issuing of a combined certificate, is to send to MAS a certificate certifying: 13.5.1 the list of the injuries referred and whether they were each found to have been caused by the accident; 13.5.2 the degree of permanent impairment of the injured person as a result of each of those injuries referred that were found to be caused; and 13.5.3 whether the degree of permanent impairment of the injured person as a result of those injuries referred that were found to be caused, is greater than 10%."
Once the certificate has been issued, it is conclusive evidence as to the matters there certified (s 61(2)). The reasons for any finding as to any matter certified, in respect of which the certificate is conclusive evidence, must also be provided (s 61(9)). The Medical Assessment Guidelines also require the certificate to include written reasons for the determination "in the form approved by the Authority" (cl 13.2).
A party can apply to a proper officer to have such a medical assessment referred to a review panel (s 63(1)). The other party must then be given an opportunity to reply (Medical Assessment Guidelines, Chapter 16). The proper officer is obliged to give a brief statement of the reasons for the decision made (cl 16.15). The assessment may only be referred for review 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 (s 63(2)).
A party can also refer a matter for assessment again, on one or more further occasions, "but only on the grounds of the deterioration of the injury or additional relevant information about the injury" (s 62(1)(a)), if the deterioration or further information is "capable of having a material effect on the outcome of the previous assessment." Such applications must be made after the time period for review of the earlier assessment has expired and any application dealt with (Medical Assessment Guidelines, cl 14.2).
If such a further application is made, the Medical Assessment Guidelines require the proper officer to conduct an "allocation review", to determine whether the applicant is suitable for further referral, in which the application and the other party's reply are considered by the proper officer, as well as other applications, replies and certificates, as well as the objects of the Act (Medical Assessment Guidelines, cl 14.5).
If not satisfied that the deterioration of the injury or further information would have a material effect on the outcome, the application may not be referred (s 62(1A) and Medical Assessment Guidelines, cls 14.6 - 14.7).
If there is a further assessment, a later certificate prevails over previous certificates as to the matter, to the extent of any inconsistency (s 62(2)).

The assessor's obligations

There was no real issue between the parties as to the assessor's obligations under this statutory scheme, where the statutory task being undertaken requires consideration to be given to the question of both factual and medical causation.
Those obligations are of the nature discussed in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [47] - [48], namely, to form and give his or her own opinion on the medical dispute referred. In undertaking that function, the assessor must consider what both parties advance, in light of the information provided to the assessor. The assessor is not called on to choose between competing arguments, or to opine on the correctness of other opinions about the medical dispute, but must form his or her own opinion, by applying the assessor's own medical experience and expertise.
In forming his or her opinions on the dispute, the assessor must thus take into account what any clinical examination he or she conducts reveals, as well as the opinions of other medical practitioners, including those expressed in earlier certificates, by treating doctors and those who have expressed medico-legal opinions. Account must also be taken of diagnostic findings and other available notes and reports, including those from allied health professionals.
The conclusions expressed in the certificate issued must then be explained by the assessor in the accompanying statement of the reasons. While the reasons given need not be elaborate, they must disclose the actual path of reasoning by which the assessor arrived at the opinions formed on each of the issues which had to be resolved. Such reasons are not, in review proceedings such as this, to be scrutinised over zealously, as discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2.
As discussed in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at [122], however, where there is a medical controversy over a particular issue, more expansive explanations may need to be given.

The parties' cases

AAI's case was that not only had the assessor, Dr Crocker, failed to have regard to relevant material in arriving at his conclusions on the issues in dispute, he failed to give reasons.
AAI also complained that Dr Crocker had not given any explanation of what regard he had paid to the results of investigations into Mr Fitzpatrick's injuries, both after the accident and subsequently. Its case was that in his reasons, Dr Crocker had to reveal what use he made of the information he had been provided, in coming to his conclusions. It was insufficient simply to record in his reasons that he had referred to it.
Mr Fitzpatrick's case was that on a beneficial reading of Dr Crocker's reasons, he had not only paid regard to the applicable guidelines and relevant material, he had also met the statutory obligation to give reasons. He was not required to give extensive reasons, nor was it necessary to refer to every piece of evidence he had considered. The conclusions Dr Crocker had reached were merit findings, open on the material provided and his reasoning process had been adequately exposed. The conclusion that his conditions had stabilised, was correct. His pre-existing conditions had also been dealt with and Dr Crocker's reasons for making no deduction, properly explained. No more was required.

The prior certificates

In order to resolve the issues lying between the parties, it is necessary to understand that the assessor who dealt with Mr Fitzpatrick's first application, Dr McGroder, concluded in October 2008, some three years after his 2005 accident, that the injuries to Mr Fitzpatrick's neck (soft tissue disc injury at C6/7) and soft tissue injury to the left shoulder had been caused by the accident, but that they had not given rise to a whole person impairment greater than 10%. He also concluded that Mr Fitzpatrick's left shoulder injury had resolved, there then being full range of movement, Dr McGroder concluded that the injury to his cervical spine had resulted in 5% whole person impairment.
Mr Fitzpatrick made a second application for assessment in March 2009, advanced not on the basis of deterioration, but on additional relevant information about the injuries he had sustained in the accident, which he claimed was capable of altering Dr McGroder's certificate. The information relied on was a 2009 report by Dr Sachinwalla on an MRI arthogram, which had not been available to Dr McGroder in 2009.
In September 2011, Dr Truskett, the second assessor, certified some 6 years after the accident, that the injuries to Mr Fitzpatrick's neck (soft tissue/disc injury at C6/C7/left C2/C3 facet joint injury) and to his left shoulder (type 2 acromion/soft tissue injury/ partial thickness rotator cuff tear to the left shoulder) had been caused by the accident, but had not given rise to a whole person impairment greater than 10%.
Mr Fitzpatrick had by then had the first of two surgeries to his left shoulder, but complained of ongoing pain. Dr Truskett concluded that there was evidence of non-verifiable radiculopathy to Mr Fitzpatrick's left arm and a demonstrated rotator cuff tear, with persistent loss of movement following surgery. He concluded that the shoulder injury had resulted in a 2% impairment and the neck injury in a 5% impairment, resulting in a 7% whole person impairment.

Mr Fitzpatrick's third application

Mr Fitzpatrick's third application for assessment in December 2013, was also advanced on the basis of additional relevant information about the injuries he had sustained in the accident, not deterioration. Medical reports, arthrograms and bone scans, dating from January 2009, were relied on, including reports which predated the second application for assessment and others which pre-dated the date of Dr Truskett's certificate.
In its reply to the third application, AAI opposed referral for further assessment, submitting, amongst other things, that there was evidence of improvement to Mr Fitzpatrick's neck in an August 2013 report of Dr Zeman. Dr Davis' October 2013 assessment had found no change. As to Mr Fitzpatrick's shoulder, it submitted that the only relevant radiological investigation had been undertaken by Dr Houang in March 2013; that Dr Davis had not explained how his findings substantiated any claimed deterioration; and that Dr Zeman had observed that the arthrogram indicated some cysts in the rotator cuff tendons, but no major tears, with no major change in movement. This was submitted to have been supported by the treating surgeon's 2013 findings, when Mr Fitzpatrick had been found to have good range of motion and was certified fit to resume full activity, including full duties at work. In the result, AAI argued, there was no basis on which Dr Truskett's assessment could be materially altered.
In January 2014, the proper officer referred the matter to Dr Crocker for assessment, noting that there were conflicting medical opinions as to whether there had been any deterioration in the condition of Mr Fitzpatrick's neck or shoulder and concluding that because of his second arthroscopic surgery in 2012 and later radiological investigations, there was additional relevant information which was capable of having an effect on the outcome of the previous assessment, which could result in whole person impairment in excess of 10%.
The matters referred to Dr Crocker for assessment on 4 February 2014 by the proper officer were thus:

The list of the injuries referred and whether they were each found to have been caused by the accident;
The degree of permanent impairment of the injured person as a result of each of those injuries referred that were found to be caused; and
Whether the degree of permanent impairment of the injured person as a result of those injuries referred that were found to be caused, is greater than 10%.

The list of injuries provided: "1. Neck - Soft tissue injury; disc injury at C6/7; left C2/3 facet joint injury 2. Left shoulder - Type 2 acromion ; soft tissue injury; partial thickness tear."

Dr Crocker's assessment

In his third assessment, some 8 years after the accident, Dr Crocker certified that Mr Fitzpatrick's motor accident had caused a permanent impairment greater than 10%, caused by traumatic injury to Mr Fitzpatrick's rotator cuff left shoulder girdle and aggravation of cervical spondylosis with radiculopathy. He concluded that the impairment resulting from the cervical spine injury was 15% and that resulting from the left shoulder injury was 7%, with a total 21% whole permanent impairment.
Dr Crocker's certificate provided: "The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%:

Traumatic injury of rotator cuff left shoulder girdle
Aggravation of cervical spondylosis with radiculopathy"

In his accompanying reasons, Dr Crocker identified the dispute to be whether the degree of permanent impairment was greater than 10%. That overlooked what had been referred by the proper officer in relation to causation of the injuries identified in the list referred and the degree of impairment resulting from each of those injuries.
Dr Crocker observed that Mr Fitzpatrick had reported still being in full-time employment, without specific medical restrictions or receiving ongoing treatment and that his pain was being managed by panadeine forte on 3 to 4 occasions per week at night.
The conclusions which Dr Crocker reached as to the nature of Mr Fitzpatrick's injuries, departed from what had been referred and from the conclusions reached in 2008 and 2011. That he came to the conclusion that there had been a significant deterioration in Mr Fitzpatrick's condition may, however, be inferred from his conclusions that Mr Fitzpatrick's level of whole person impairment due to the neck injury was 15%, that having been 5% in 2011 and 2008; that due to shoulder injury was 7%, having been 2% in 2011 and 0% in 2008; and that his total impairment was 21%, having been 7% in 2011 and 5% in 2008.
The reasons do not refer to any deterioration, however. Nor do they adequately disclose the basis on which Dr Crocker came to conclude that there had been such significant deterioration.
Under this scheme, the form supplied to assessors assists them in meeting their obligations by providing a framework for the giving of their reasons. It is insufficient, nevertheless, for an assessor simply to identify in that form to the questions posed, the material supplied and considered, what clinical examination of the applicant revealed and then to state the conclusions reached on the questions which had to be answered. Here, of course there was the added difficulty that Dr Crocker's reasons do not correctly reflect the matters referred.
An assessor is also required to reveal the reasoning process which led to each of the conclusions reached. That not only requires active intellectual engagement with whatever is relevant to a resolution of each issue referred for assessment, but also a consideration of the competing views urged by the parties as to that issue. It also requires an explanation to be given of how that has led the assessor to the particular conclusion arrived at, given the material on which the conclusion rests.
In Dr Crocker's reasons, under the heading "Introduction", he referred to Mr Fitzpatrick's application, supporting documents and AAI's reply, as well as to other documents. He identified imaging studies and reports which were brought to the examination, dating from 2007. He incorrectly, however, identified the only matter referred to him to be whether the degree of Mr Fitzpatrick's permanent impairment was greater than 10%.
Dr Crocker then outlined the history he was given, which included that Mr Fitzpatrick was employed as a site operator, which involved a range of duties, working full-time without specific medical restrictions, as well as former employment as a butcher, concrete truck driver, and driver and storeman; his work absence after the accident in 2005; and after his two shoulder surgeries; the motor accident, his symptoms immediately after the accident; ongoing pain; referral to neurosurgeons; surgery in March 2010, with limited improvement and a second surgical procedure in 2012, with questionable benefit. Dr Crocker noted that Mr Fitzpatrick reported no other relevant injuries or conditions after the accident. His current symptoms were described, as well as current treatment. Clinical examination findings were then set out. The document review referred to various reports and hospital records, including the ambulance report in 2005. The conclusions reached were then stated.
Under the heading "Conclusions: Diagnosis and Causation" Dr Crocker said: "I consider that Mr Fitzpatrick suffered a traumatic injury of the rotator cuff of the left shoulder girdle and has required two surgical interventions with residual clinical features reported. I also consider that he has suffered an aggravation of cervical spondylosis (previously asymptomatic) with associated motor and sensory radiculopathy affecting the left upper limb. With respect to the cervical spine, the more recent MRI examination of 23.11.12 outlines degenerative changes at multiple levels in particular at the C6/7 level with associated radiological features of foraminal bilateral narrowing. I note that in relation to the MRI examination of 19.9.11 the radiologist had reported changes consistent with moderate foraminal encroachment with potential impingement of the exiting nerve roots at the C3/4 level to the right side and at the C6/7 level to the left. I consider that the motor vehicle accident has been significantly contributory to the above medical conditions."
While Mr Fitzpatrick's variable complaints were noted, Dr Crocker also concluded that stabilisation had been achieved.
Under the heading "Determinations", Dr Crocker said the conclusions he had reached were: "Degree of Permanent Impairment It is evident that an opinion is sought in relation to whole person impairment pertaining to the left upper extremity in relation to the shoulder and the cervicothoracic spine with reference to the relevant Guides. In relation to the cervicothoracic spine, I consider that the clinical presentation is inclusive of a motor and sensory radiculopathy in relation to the C6/C7 nerve roots. This is inclusive of motor weakness affecting the triceps muscle of the upper arm and sensory deficit of the left forearm and hand. I consider that the criteria for radiculopathy outlined in the MAA Guides (Chapter 4, 4.28, pg 27) whereby at least two need to be satisfied are met. These include motor weakness anatomically localised to an appropriate spinal nerve root distribution and reproducible sensory loss localised to an appropriate nerve root distribution. Additionally, I consider that the radiological features are consistent with these clinical findings. As a consequence, a DRE category III rating is applicable i.e. 15% whole person impairment. I have indicated that I consider that Mr Fitzpatrick has suffered an aggravation of cervical spondylosis. It is evident that he had been previously asymptomatic. In view of the absence of pre-existing permanent symptomatic impairment, I consider that nil deductions are applicable. With respect to the left upper extremity in relation to the shoulder, taking into account limitation with active range of motion, an 11% upper extremity impairment is determined which converts to a 7% whole person impairment. Nil deductions are applicable in relation to mild limitation with active range to the right contralateral shoulder girdle in view of this not being considered "normal" for Mr Fitzpatrick in view of mild limitation with active range probably being impacted upon by his condition affecting the cervical spine. When considering the above, a combined whole person impairment of 21% is determined. Details relating to the above are outlined in the table that follows. AMA Guides/ MAA Guidelines references (chapter/ Permanent Current %WPI* from pre-existing %WPIdue to Body Part or System page/table) (YES/NO) % WPI OR motor Subsequent causes accident (MAA Guides) pp 21-29; 1 Cervicothoracic (AMA Guides) Chapter 3, 3.3h, Yes 15% 0% 15% spine Tables 70, 72, 73, pp 103-105; DREIII (MAA Guides) Chapter 2, 2 Left upper extremity pp 9-12; (AMA Guides) Chapter 3, 3.1j, Yes 7% 0% 7% figs 36-44, pp 41-45; Table 3, pg20

%WPI = percentage whole person impairment I have indicated that I do not consider that any deductions are applicable. Pre-existing/subsequent impairment I have indicated that Mr Fitzpatrick has not reported pre-existing permanent symptomatic impairment in relation to the region of the cervicothoracic spine This is also the case in relation to the left shoulder girdle. He has not reported any subsequent injuries or conditions relating to these conditions. Effects of Treatment I do not consider that any are applicable. A Current % permanent impairment 21% B Pre-existing/subsequent % permanent impairment -- C Adjustments % for effects of treatment -- Final % permanent impairment 21%

The assessor failed to give reasons

Contrary to the submissions advanced for Mr Fitzpatrick, I am satisfied that Dr Crocker, in so explaining his reasons, did not adhere to his statutory obligation to give reasons for his decision.
Clauses 1.21 - 1.22 of the Permanent Impairment Guidelines deal with the concept of permanent impairment, requiring that before impairment is evaluated, it should be present for a period of time, static, well established and unlikely to change substantially, regardless of treatment. An impairment may be found to be permanent, even if injuries have not stabilised, because of intended future treatment. The impairments to Mr Fitzpatrick's neck and spine had been found to have stabilised first in 2008 and then again in 2011.
The February 2014 letter of referral identified the then medical dispute to be threefold: whether the listed injuries to Mr Fitzpatrick's neck and shoulder had been caused by the accident; the degree of the permanent impairment which had resulted from those injuries; and whether they were greater than 10%.
In giving his reasons, it was not sufficient for Dr Crocker to identify what impairments Mr Fitzpatrick was suffering, given his current symptoms and what objective examination had revealed, then to apply the applicable Guidelines and arrive at a conclusion as to his current level of impairment.
He had to resolve the medical dispute lying between the parties by reference to all of the issues referred for assessment. They concerned not only the level of Mr Fitzpatrick's impairment as at the date of assessment, but also whether the then condition of his neck and left shoulder had been caused by the accident.
Contrary to the submissions advanced for Mr Fitzpatrick in these proceedings, what AAI contended for did not revolve merely around what was evidenced by clinical notes, which need to be approached with caution (see Mason v Demasi [2009] NSWCA 227 at [2]). The matters it raised in its reply to the application, which Dr Crocker had to consider, included what various diagnostic findings had revealed over time as to Mr Fitzpatrick's injuries and what various treating and other medical practitioners had concluded, as to the nature and cause of his impairments.
Dr Crocker was plainly in error when he identified that what had been referred to him was simply whether the degree of Mr Fitzpatrick's permanent impairment was greater than 10%. The submissions advanced for Mr Fitzpatrick in these proceedings, that there was no controversy as to causation, which Dr Crocker was required to determine in accordance with the requirements of the statutory scheme, was incorrect.
The medical dispute raised questions not only as to the extent of Mr Fitzpatrick's impairments in 2014, but also their cause. It also raised issues as to the nature of the injuries Mr Fitzpatrick had suffered in the accident and their connection to his condition in 2014. In reaching his conclusions on the questions referred, Dr Crocker had to consider what was in issue in accordance with the applicable guidelines relevant to each issue, including causation. How each of the issues referred was resolved, also had to be explained in the reasons given.
Dr Crocker concluded that Mr Fitzpatrick suffered another impairment, cervical spondylitis, which had not been caused by the accident. Clause 1.33 of the Permanent Impairment Guidelines required that "[i]f there was objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its values should be calculated and subtracted from the current whole person impairment value. If there was no objective evidence of pre-existing symptomatic permanent impairment, then its possible presence had to be ignored."
Clause 1.34 notes that "[t]he capacity of an assessor to determine a change in physical impairment will depend on reliability of clinical information on the pre-existing condition". Clause 1.35 provides that "[p]re-existing impairments should not be assessed, if they are unrelated to or not relevant to the impairment arising from the motor vehicle accident".
Dr Crocker noted under the heading "Pre-existing/subsequent impairment" that Mr Fitzpatrick had not reported pre-existing permanent symptomatic impairment in relation to the region of his cervothoracic spine, or the left shoulder girdle, or any subsequent injuries or conditions.
There had, however, been numerous radiological investigations into Mr Fitzpatrick's spine and shoulder, soon after the accident and subsequently, which Dr Crocker said he had reviewed or noted. That clinical information appears to be relevant to the resolution of the dispute, but what impact it had on the conclusions reached, was not revealed.
On Dr Crocker's assessment, there seems to have been a very significant deterioration in the level of Mr Fitzpatrick's impairment, even though he remained in full-time employment. Given what was in dispute, there had to be some fuller explanation given as to what the objective evidence established, than the reference Dr Crocker made to degenerative changes having been shown in September 2011 and November 2012 MRI examinations, listing the information he had been provided with and indicating that it had been considered.
At one point Dr Crocker said that he was generally in agreement with the radiologists' comments, but he did not discuss what their examinations had shown, either in relation to the underlying cervical spondylosis, or the other impairments to Mr Fitzpatrick's spine, which Dr Crocker concluded had been caused by the accident. Nor did he refer to what opinions other doctors had arrived at, or what he had made of them, in arriving at his own opinions.
Dr Crocker concluded that Mr Fitzpatrick's cervical spondylosis had not been symptomatic; and that the accident had significantly contributed to its aggravation. The only explanation given was that 'It is evident that he had been previously asymptomatic".
The other statement "I consider that the motor vehicle accident has been significantly contributory to the above medical conditions", provided no explanation at all as to the basis upon which Dr Crocker's findings as to causation rested. What Dr Crocker said later about the degree of impairment to Mr Fitzpatrick's spine and shoulder, also said nothing about causation.
Nor did Dr Crocker refer to the matters advanced by AAI, which revealed the nature of the medical dispute he had to deal with. These matters were not otherwise addressed by reference to the relevant diagnostic findings or medical opinions relevant to the resolution of that dispute.
It must accordingly be accepted, as AAI contended, that Dr Crocker failed to meet his statutory obligation to give reasons. The brief reasons given simply did not reveal, as they had to, the actual path of reasoning by which he arrived at the opinions which he had to form on each of the matters which had been referred to him; on the conclusions which he reached as to the underlying condition which he had identified; or on the matters on which the particular medical dispute lying between Mr Fitzpatrick and AAI rested.
In the result, I am satisfied, the orders sought by AAI must be made.

Did the assessor fail to consider relevant material?

It has long been settled that failure to take into account relevant considerations in making administrative decisions under statutory schemes such as this, involves jurisdictional error (see Minister for Aboriginal Affairs v Peko-Walsend [1986] HCA 40; (1986) 162 CLR 24 at 39-40). As discussed in Minister for Immigration v Yusuf [2001] HCA 323; (2001) 206 CLR 323 at [82] such an error involves an error of law, which results in the decision maker exceeding the powers given by the statute.
I am also satisfied that such an error has been established in this case.
As Campbell J discussed in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; (2010) 61 MVR 245 at [50] a motor accident does not have to be the sole cause of an impairment, as long as it is more than a negligible contributing cause it is compensable. Contemporaneous investigations may not be decisive, but they can be important countervailing material, which must be taken into account in arriving at a conclusion.
In 2005 and 2006, in proximity to the accident, the conclusion reached by radiologists was that Mr Fitzpatrick's cervical spine was normal and that no abnormality such as recent fractures, acute injuries or trauma had been detected. Later scans showed abnormalities which had not been present in those earlier scans. The position in relation to Mr Fitzpatrick's left shoulder was that X-ray and ultrasound examinations in 2008 had showed his shoulder to have been normal, while an MRI scan in 2009 showed abnormality.
Much of the material Mr Fitzpatrick relied on to support his third application was not available at the time of the original assessment in 2008, but some of it predated the second assessment in 2011, when Dr Truskett again considered that his conditions had stabilised. In its opposition to the third application, AAI relied on material which post-dated the second certificate and which it claimed was consistent with improvement in Mr Fitzpatrick's condition. Dr Crocker made no reference to what any of that material disclosed, nor did he explain how he had come to the conclusions he had reached, as I have explained.
Dr Crocker had to reach conclusions both as to Mr Fitzpatrick's impairments in 2014 and whether they had been caused by the 2005 accident. That involved matters of evaluation and judgment, which may not always be reducible to precise explanation, but required consideration of the relevant material and an explanation of what particular findings and conclusions on each issue rested.
The absence of any explanation at all for the conclusions reached as to the cause of the impairments Dr Crocker identified, when examinations in 2006 of his spine had showed that Mr Fitzpatrick had a normal spine after the accident, with no evidence of injury or trauma, suggests failure to consider relevant matters. Scans undertaken some years later, showed early level degenerative changes and even later, more significant degenerative changes. There were similar issues in relation to what investigations of the left shoulder showed after the accident and more recently.
What the conclusions Dr Crocker reached as to causation of the impairments he identified were based on, is not apparent and was not explained. That is consistent not only with a failure to give required reasons, but also a failure to consider relevant material. It is also consistent with Dr Crocker's failure to identify that causation was part of the dispute which had been referred to him for assessment.
In the result, I consider that it must be concluded that despite reference in Dr Crocker's reasons to the material with which he had been provided, he did not give necessary consideration to the material relevant to all that he had to determine.

Did the proper officer also fall into error?

AAI also complained that the proper officer had failed to give proper consideration to its review application and the evidence it had relied on, with the result that she had failed to exercise her statutory power of review; had exceeded her powers; and had also fallen into jurisdictional error. It also argued that the proper officer had impermissibly shifted to it, an onus which fell on Mr Fitzpatrick, with the result a constructive failure to exercise the jurisdiction and an invalid review.
Contrary to Mr Fitzpatrick's case, I am satisfied that AAI has established that the proper officer failed to identify the errors into which Dr Crocker had fallen. That can only have been the result of the proper officer also failing to have regard to the relevant material and falling into jurisdictional error. (see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179).
The proper officer concluded as to Mr Fitzpatrick's spine: "1. The applicant submits the assessment of Assessor Crocker is incorrect in a material respect, as he failed to specifically refer to and address the contents of all the radiological reports and medical evidence related to the cervical spine which were before him. It is contended that while the Assessor considered the accident had been a significant contributor to the claimant's cervical spine condition, he failed to properly consider the medical evidence which suggests the claimant's injuries and current symptoms are not related to the subject accident. Further, he failed to address the possibility that the cervical spine changes may be degenerative in nature or as changes as a consequence of further injury or aggravation. … 3. The applicant submits that in the above comments, the Assessor failed to outline his findings and opinions which are not in agreement with the comments of the radiologists, and he failed to list the individual investigation reports referred to on page 10. … 5. All of the evidence listed by the applicant, apart from the MRI dated 19 January 2006, was specifically referred to in the certificate by Assessor Crocker. These findings and opinions were plainly taken into account in the course of the assessment. While the MRI dated 19 January 2006 has not been specifically referred to by Assessor Crocker, it was annexed to the original application and before the Assessor. Given the large amount of documents before the Assessor, I am satisfied that the multiple radiological investigation reports which Assessor Crocker referred to under the heading 'Summary of Relevant Documentation Provided for the Initial Assessment' includes the MRI report of January 2006."
The proper officer also considered that an assessor was not required to make specific comment on all radiological reports, or specific comments on previous findings or opinions of other doctors. She considered that the assessor must "conduct an assessment and make his own determination in accordance with the scope of the medical dispute and in accordance with Part 3.4 of the Act and the MAA Guidelines" (at [6]).
That observation was correct, but overlooked both the nature of the medical dispute referred for assessment and Dr Crocker's failures, earlier discussed.
Contrary to the conclusion which the proper officer reached at [7], Dr Crocker's identification of the dispute referred to him for assessment to be whether the degree of impairment was greater than 10%, when considered with his failure to give required reasons for his decision; his failure to refer to the medical dispute lying between the parties, or to the diagnostic findings and opinions of treating and other doctors, on which the dispute rested; and with his failure to explain how he arrived at the conclusions which he reached, all revealed the errors into which he fell.
At [8] the proper officer observed: "The applicant has also submitted that the Assessor needed to explain why the claimant's current symptoms and radiculopathy are related to the injuries suffered in the accident, given the findings of Assessor McGroder and Assessor Truskett that there was no evidence of radiculopathy at the time of their assessments. I refer the applicant to clause 1.23 of the MAA Guidelines, which states that "the evaluation should only consider the impairment as it is at the time of assessment". This clause makes it clear that, once being satisfied as to the causation of the injury concerned, Assessor Crocker was only required to consider the claimant's impairment on the date of the assessment, and therefore not required to comment on the previous findings of Assessor McGroder and Assessor Truskett."
The proper officer reached similar conclusions as to Mr Fitzpatrick's left shoulder injury.
Clause 1.23 of the Permanent Impairment Guidelines is concerned with assessment of permanent impairment, as at the time of the assessment. There were three matters referred to Dr Crocker for assessment. Dr Crocker thus had to consider how the impairments identified were caused and to explain how the conclusions he reached were arrived at. That required that the investigations of the injuries which Mr Fitzpatrick suffered in the accident, undertaken over time, not merely be identified, but to be considered and referred to in the reasons given for the conclusions reached.
It was not sufficient for the assessor to state by way of blunt, unexplained, conclusion that "the motor vehicle accident has been significantly contributory to the above medical conditions". The assessor was also obliged to disclose the actual path of reasoning by which he arrived at the opinions formed on each of the matters referred. The proper officer was wrong in concluding that those obligations had been met.
The proper officer also referred to cl 1.36 of the Permanent Impairment Guidelines, which refers to the possibility of subsequent unrelated injury. The proper officer concluded that it was for AAI to demonstrate by objective evidence that there had been a subsequent impairment. The proper officer was also incorrect in this conclusion.
Clause 1.36 required the assessor to consider any objective evidence of injury subsequent to the motor accident. Reference was made in Dr Crocker's reasons to Mr Fitzpatrick not having reported subsequent injuries or conditions relating to his cervical spine or shoulder, but he made no reference to the objective evidence as to the condition of his spine and shoulder, as revealed by the investigations undertaken after the accident and subsequently.
In the case of the spine, for example, after Mr Fitzpatrick had reported an aggravation to his general practitioner, there was evidence of abnormalities present in 2009, which had not been present earlier. There were at least three obvious explanations: first, injury caused by the motor accident previously not detected; second, injury caused by some other event, which Mr Fitzpatrick had not revealed or appreciated; third, an underlying condition. In the latter case, consideration had to be given to the objective evidence as to whether it had been previously asymptomatic.
The proper officer was wrong to consider that it was a matter for AAI to demonstrate that there had been subsequent impairment. There was a medical dispute between Mr Fitzpatrick and AAI in relation to the matters referred for assessment. It was Dr Crocker who had identified the existence of an underlying condition. It was for Dr Crocker to explain how he had resolved the questions raised by the reported aggravation of Mr Fitzpatrick's condition, in arriving at the conclusions which he reached, by reference to the materials on which his conclusion rested. There was no such explanation given.
The proper officer's conclusion that she could not be satisfied that there was reasonable cause to suspect the assessment was incorrect in a material respect, was in error. It was not in issue that an assessor's failure to give required reasons was itself a sufficient basis for the contrary conclusion to have been reached.
The proper officer's role under s 63(3) was as discussed in Meeuwissen v Boden [2010] NSWCA 253; (2010) 78 NSWLR 143 at [19] - [24]: "19 First, what must be incorrect in a material respect is "the medical assessment" and not the certificate which results from the assessment. The subject matter of a medical assessment is a "medical dispute": s 63(1). A "medical dispute" is defined to mean "a disagreement or issue to which this Part applies": s 57. The Part applies to a disagreement about one of the matters (referred to as "medical assessment matters") set out in s 58(1). These include whether the degree of permanent impairment is greater than 10%: s 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error. 20 Secondly, and consistently with the first reason, the phrase "in a material respect" is less precise than "capable of having a material effect on the outcome of the previous assessment", being the language of s 62(1A). While it is true that this subsection was added with effect from 1 October 2008, it is significant that the legislature declined to adopt the same language as existed in s 63(3). Further, although the same amending Act varied s 63, it did not vary s 63(3): see Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW). 21 Thirdly, the power conferred on the proper authority is not discretionary, once the requisite state of satisfaction is achieved. Thus, once satisfied as to the relevant matter, the proper officer "is to" arrange for the application to be referred: s 63(3). 22 Fourthly, the matter as to which the proper officer is to be satisfied, is not that the medical assessment was incorrect in a material respect, but only that "there is reasonable cause to suspect" that it was. This language is inconsistent with the proper officer being expected (let alone required) to carry out an assessment or calculation, as opposed to identifying possible error. 23 Fifthly, and following from the last point, where there is doubt as to the extent of the power of an administrative officer, the nature of the power itself must be taken into account. The power under s 63 is that of a gatekeeper, not a decision-maker. Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts: where an important fact has been ignored, the assessment has not been properly undertaken and the statutory right subverted. Where a construction is available which would allow a full and proper assessment to occur, in place of a flawed assessment, that construction should be preferred. 24 Finally, the role of the review panel is not limited to a review of "that aspect of the assessment" affected by possible error. Rather, the panel is to reconsider all of the matters in dispute: s 63(3A). This approach no doubt reflects the difficulty in some cases of dividing an assessment of permanent impairment into aliquot parts. More importantly, it may be seen to reflect an intention that a flawed process is to be cured, so that a proper assessment has been made of the whole of the matters in dispute."
An assessor's failure to give required reasons was itself a sufficient basis for the conclusion that "there is reasonable cause to suspect that the medical assessment was incorrect in a material respect", to have been reached.
In the result, the approach adopted by the proper officer involved a constructive failure to exercise jurisdiction (see Minister for Immigration and Multicultural Affairs v Yusuf [2010] HCA 30; (2010) 206 CLR 323 at [41] - [42]).
Further, contrary to the submissions advanced for Mr Fitzpatrick, the evidence simply does not establish that it was "practically futile" to grant the relief AAI sought, given the nature of the medial dispute which was referred for assessment. There is, accordingly, no basis on which the exercise of the Court's discretion could in these circumstances be refused.

Recommendations

Given the nature of the errors made in this and the many other cases where judicial review of an assessor's decision has been sought in this Court and having in mind the obligations imposed on the Court by s 56 of the Civil Procedure Act 2005 (NSW), which obliges the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings, as well as the objects of the Motor Accidents Compensation Act earlier referred to, I consider it appropriate to make two suggestions.
They, I consider might, if implemented, help to improve the quality of the decisions produced by assessors and reduce the incidence of challenge to their decisions and the resulting time cost and delay, to which they give rise.
As earlier mentioned, assessors are presently given guidance about their task, both in the guidelines which they must adhere to and the form they are provided, in which they are required to give their reasons. Giving adequate reasons provides considerable challenges, not just for decision makers under this statutory scheme. In the case of disputes about causation, for example, assessors are assisted by the explanation of the difficult concepts given at cls 1.8 - 1.9 of the Permanent Impairment Guidelines, referred to at [16] above. They are not, however, given guidance as to their obligation to give adequate reasons for the conclusions which they reach.
It would, I suggest, thus firstly, be of considerable potential assistance to assessors to be provided with more specific guidance in the Medical Assessment Guidelines at Chapter 13, as to the nature of their obligation to give reasons for how they have resolved each aspect of the medical dispute lying between the parties, which has been referred to them for assessment.
In particular, the obligation to reveal the actual path of reasoning by which the assessor arrives at the opinions which must be formed, on each of the matters which are referred, could be there explained. Such an explanation would include the obligation to identify, not only what examination of the applicant has revealed and the relevant diagnostic materials and opinions of treating and other doctors, which the assessor has considered, but also disclosing the path of reasoning which has led the assessor to the conclusion reached.
Secondly, practical assistance in meeting this obligation could be given to assessors by improvement of the form in which assessors must provide their reasons. That form could better identify to them the path which they should follow in resolving the medical dispute which has led to the application for assessment. This could be achieved by: 1. The form provided to an assessor specifying both the particular medical dispute the subject of the assessment application and each of the issues which the assessor has to resolve. 2. The assessor being expressly reminded in the form, at the appropriate places, of the need to succinctly disclose the actual path of reasoning by which the opinion on each issue was arrived at, including by identification of the results of examination, relevant diagnostic materials and opinions of treating and other doctors, to which consideration has been given and disclosure of their relevance to the conclusion reached, on that issue.

Orders

For the reasons given there must be judgment for AAI.
The usual order as to costs is that they follow the event. In this case, that would be an order that Mr Fitzpatrick pay AAI's costs, as agreed or assessed.
Unless the parties approach within 7 days to be heard, the Court's order be: 1. Time for the commencement of these proceedings be extended to the date of filing the summons. 2. The decisions of both the assessor and the proper officer be set aside and the matter be remitted to the second defendant for reallocation of the matter to a different medical assessor for determination of the matters raised by Mr Fitzpatrick's application according to law. 3. Mr Fitzpatrick is to bear AAI's costs as agreed or assessed. 4. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Amendments 12 August 2015 - [107], [108] and [111] - typographical errors 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: 12 August 2015

Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (15 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (23)

Cited By (8)