AAI Limited v Fraser

[2021] NSWSC 938

Supreme Court of NSW|2021-07-16

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Source facts

Court

Supreme Court of NSW

Decision date

2021-07-16

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

Judgment

HER HONOUR: This is a judicial review of a Medical Review Panel of the President of the Personal Injury Commission of New South Wales.
By amended summons filed 16 March 2021, the plaintiff seeks: (1) An order in the nature of certiorari, or alternatively a declaration, setting aside or declaring invalid the decision of the third defendant, a Medical Review Panel appointed by the second defendant, namely the certificate of the third defendant dated 12 December 2020 assessing the impairment dispute between the parties; and (2) An order that the matter be remitted to the second defendant for allocation to a different Medical Review Panel for determination of the impairment dispute according to law.
The plaintiff is AAI Limited ("the insurer"). The first defendant is David Fraser ("Mr Fraser). The second defendant is the President of the Personal Injury Commission of New South Wales ("the Commission"). The third defendant is a Medical Review Panel comprising of Dr Cameron, Dr Kenna and Dr Stubbs appointed by SIRA ("the second Medical Review Panel"). Mr Keith Rewell SC appeared for the insurer. All defendants have filed submitting appearances. Hence, there is no real contradictor.
The Medical Assessor and the first Medical Review Panel assessed Mr Fraser's injuries at 10% WPI. The second Medical Review Panel assessed Mr Fraser's injuries above the 10% threshold thus entitling him to an award for non economic loss.
The significance of 10% is due to s 131 of the Motor Accidents Compensation Act 1999 (NSW). It reads "Part 5.3 Damages for non-economic loss 131 Impairment thresholds for award of damages for non-economic loss No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. …"

[2]

[6]

The decision of the second Medical Review Panel

Unlike the Medical Assessor and the first Medical Review Panel, the second Medical Review Panel found that Mr Fraser did suffer injuries to his right shoulder and left hip caused by the accident on 9 January 2017, as well as injuries to his right wrist, left knee and left ankle.
On 10 November 2020, Drs Cameron and Kenna, examined Mr Fraser via Skype. Mr Fraser informed Drs Cameron and Kenna that he had right shoulder and left hip pain from the day of the accident onwards. This recollection differs from what he had told the Medical Assessor.
There is no contemporaneous medical record of any right shoulder pain until two months after the accident, as recorded by the Medical Assessor and by the first Medical Review Panel.
Mr Fraser told Drs Cameron and Kenna that he had no symptoms in his left hip initially, because he was not physically active for three months after the accident.
There is no contemporaneous medical record of any symptoms in the left hip for five months after the accident, as recorded by the Medical Assessor and the first Medical Review Panel.
When Drs Cameron and Kenna asked Mr Fraser to move his shoulders, there were significant inconsistencies, and movements were not reproduced on repeat testing. Mr Fraser considered that the range of movement as measured could not be used as a reliable indicator of impairment.
Drs Cameron and Kenna measured the range of movement of Mr Fraser's hips. Movements of the left hip were different from the right, but each hip had a greater range of movement than the other in some planes.
In determining causation of the symptoms in the right shoulder, Mr Fraser said that based on his memory (from approximately 3 years and 9 months ago) he had also suffered an injury to his right shoulder.
As to the left hip, Mr Fraser said that he believed he injured his left hip. He said the mechanism of injury meant that there were also injuries to other parts of his body.
While questioning the accuracy of Mr Fraser's recollection from such a long time ago, particularly when compared with the contemporaneous clinical records (or lack thereof), the second Medical Review Panel accepted albeit with some hesitancy, Mr Fraser's recollection that he suffered symptoms in his right shoulder and left hip at or soon after the time of the accident, despite the absence of any contemporaneous medical record of either.
Under the heading "Panel Deliberations", the second Medical Review Panel stated: "The Panel reviewed the results of the reassessment, including the history provided by Mr Fraser at a subsequent teleconference. Causation: The Panel confirmed that causation is established with reference to: • the right wrist, left knee and left ankle • Based on Mr Fraser's memory from approximately 3 years and 9 months ago he said he also has an injury to his right shoulder. • He said that be believes he injured his left hip. He said the mechanism of injury meant that there were also injuries to other parts of his body. The Panel accepted Mr Fraser's statements although it did question the accuracy of Mr Fraser's recall from a long time ago when compared with the contemporaneous clinical records."

[9]

Goniometer measured If these movements produced considerable fatigue but because of initial inconsistencies, there was an attempt at repeating them. However, as noted subsequent to this for the right shoulder forward flexion was only 100° (as opposed to 140° previously). Abduction was also 110". On the left, forward flexion again was limited to 110° and abduction to 110°. External rotation was reduced on the right upon repetition to 45° and to 45° on the left. When asked about such, he stated he had increasing pain and inability to perform those maneuvers. It was considered, therefore, that range of movement could not be used as a reliable indicator, but it is to be noted that the ranges of movement initially were symmetrical between the right and left shoulders."

Under the heading "Panel Deliberations", the second Medical Review Panel stated: "Right shoulder - soft tissue injury Due to pain, movements of this shoulder were inconsistent. In this regard the Motor Accident Permanent Impairment Guidelines, section 1.40, page 12 are noted: "Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of claimants' efforts. The Assessor must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the Assessor should modify the impairment estimate accordingly, describing the modification and outline the reasons in the impairment evaluation report". It is, in the judgment of the assessor, not appropriate to rely on the measured range of motion in this case. The clinical information does not show that there are major significant pathological changes present in this shoulder. Therefore the assessment of permanent impairment is made by analogy and it is determined that the impairment would be equivalent to mild crepitation (Section 6.24, page 96 of the Motor Accidents Permanent Impairment Guidelines) and see Table 19 page 59 AMA4 Guides) at the acromioclavicular joints (see Table 18, page 58 AMA4 Guides) and therefore would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation."

[12]

The relevant Guidelines

The SIRA Motor Accident Permanent Impairment Guidelines ("the Permanent Impairment Guidelines"), as at 1 June 2018, made pursuant to s 44(1)(c) of the Motor Accidents Compensation Act, apply to the assessment of permanent impairment disputes by virtue of ss 133 and 106(1) of the Motor Accidents Compensation Act. The Court of Appeal has held that a failure to comply with these guidelines may constitute a constructive failure to perform a statutory duty: see Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356 at [9], [16-22], [44], [49], [51], [56], [108].
The SIRA Medical Assessment Guidelines ("the Medical Assessment Guidelines"), as at 1 October 2008, made pursuant to ss 44(1)(d) and 65(1) of the Motor Accidents Compensation Act, apply to medical assessments conducted pursuant to the Act.
Clauses 1.5, 1.6 and 1.7 of the Permanent Impairment Guidelines refer to causation. They read: "Causation of injury 1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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."
In Rodger v De Gelder [2015] NSWCA 211 ("De Gelder"), the Court of Appeal stated at [18] and [91]: "18 Before the primary judge little attention was given by the parties, at least in their written submissions, to the status of the Permanent Impairment Guidelines for the purpose of Mr De Gelder's application for judicial review. Mr Rodger contended that the Panel did apply each section of cl 1.8 of the Permanent Impairment Guidelines "as required by law". The reference to "each section of cl 1.8" may be taken to be a reference to the medical determination and the non-medical determination with respect to causation. Counsel for Mr Rodger accepted that the non-medical determination referred to in cl 1.8(b) is essentially a non-medical factual question (tcpt CA at 7, lines 23 - 25). … 91 As cl 1.8 of the Permanent Impairment Guidelines makes clear, the causation issue involves both a medical determination and a non-medical determination. Here, what is in issue is the non-medical determination by the Panel that Mr De Gelder's thoracic spine injury was not caused by the motor accident."
The non medical determination is in the nature of a factual enquiry, and a medical practitioner's specialised knowledge is not determinative of this factual enquiry.

[13]

The insurer's submissions

The insurer submitted that the second Medical Review Panel resolved the factual enquiry by simply accepting Mr Fraser's statement that he had an immediate onset of right shoulder pain after the accident on 9 January 2017, despite there being no contemporaneous medical record of any such complaint.
Having determined the factual enquiry in that manner, the second Medical Review Panel did not proceed with, or alternatively did not complete, the medical enquiry.
The second Medical Review Panel noted that the ranges of movement of Mr Fraser's shoulders on examination were so inconsistent (as can be seen from the measurements reproduced earlier in this judgment) that they could not be relied upon as a measure of impairment of the right shoulder. It noted that there was no evidence of any pathology in the right shoulder to explain any limitation of the range of movement of that shoulder.
The second Medical Review Panel did not have any radiological evidence establishing any pathology in the right shoulder or supporting any complaints of pain or limitation of movement of that shoulder.
The insurer submitted that the second Medical Review Panel did not explain, or attempt to explain, how or why it could accept any accident-related impairment of the right shoulder for which there is no pathological basis and no reliable clinical signs. Instead, simply stating, "Therefore the assessment of permanent impairment is made by analogy, and it is determined that the impairment would be equivalent to mild crepitation ... There is no other available method of measurement by analogy applicable in this situation."
In this way, the second Medical Review Panel assessed 2% impairment of the right shoulder caused by the accident.
According to the insurer, before the second Medical Review Panel could proceed to assess the degree of impairment by analogy, it had to identify the medical basis on which it determined that any impairment was caused by injury suffered in the accident. The second Medical Review Panel omitted this step entirely. Put another way, the second Medical Review Panel did not complete the medical enquiry it was required to complete.
By not doing so, the insurer submitted that the second Medical Review Panel therefore failed to determine causation of a right shoulder injury as it was required to do under the Permanent Impairment Guidelines issued by SIRA. That was an error of law, or alternatively a jurisdictional error in failing to complete its statutory task, and the decision of the second Medical Review Panel should be set aside.

AAI Limited v Fraser

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Judgment (31 paragraphs)

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