AAI Ltd trading as GIO v Cooley - [2016] NSWSC 434 - NSWSC 2016 case summary — Zoe

NSWNSWSC

AAI Ltd trading as GIO v Cooley

[2016] NSWSC 434

Supreme Court of NSW|2016-03-18|Before: Fullerton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-03-18

Before

Fullerton J

Catchwords

67 NSWLR 372 Frost v Kourouche [2014] NSWCA 39
86 NSWLR 214 Minister for Immigration and Citizenship v Li [2013] HCA 18
249 CLR 332 Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6
185 CLR 259 Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583 Trazivuk v Motor Accidents Authority (NSW) [2010] NSWCA 287

Source

Original judgment source is linked above.

Catchwords

67 NSWLR 372 Frost v Kourouche [2014] NSWCA 3986 NSWLR 214 Minister for Immigration and Citizenship v Li [2013] HCA 18249 CLR 332 Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6185 CLR 259 Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583 Trazivuk v Motor Accidents Authority (NSW) [2010] NSWCA 28757 MVR 9 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43

Judgment (18 paragraphs)

[1]

Judgment

HER HONOUR: By summons filed 23 October 2015, the plaintiff challenges the validity of a decision of a medical assessor's review panel of the State Insurance Regulatory Authority of New South Wales ("the Review Panel") of 22 July 2015 undertaken pursuant to s 63 of the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act").
The proceedings invoke the jurisdiction derived from s 69 of the Supreme Court Act 1970 (NSW). Orders are sought the effect of which would be to set aside the decision of the Review Panel and remit the matter the subject of the decision to the third defendant (the State Insurance Regulatory Authority of New South Wales) for reallocation to a differently constituted Review Panel to determine the matters referred to it according to law.
The plaintiff challenges the validity of the Review Panel's decision on various grounds inclusive of what are said to be a number of jurisdictional errors and/or by reason of errors on the face of the decision amounting to legal error or, alternately, the Review Panel's constructive failure to perform its statutory duty to undertake a de novo "review" of the medical assessment as required by s 63(3A) of the MAC Act.

[5]

The Review Panel's Assessment

The review was conducted by the Review Panel on 15 July 2015.
On 22 July 2015, the Review Panel revoked Dr Cunneen's certificate and issued a fresh certificate certifying the first defendant's injuries as giving rise to WPI of 11%. The Panel assessed 5% WPI in respect of the injury to the first defendant's cervical spine, 5% WPI in respect of the injury to her thoracic spine, and 1% WPI in relation to her right shoulder injury.
Each of the various errors relied upon by the plaintiff as invalidating the Review Panel's decision relate solely to the injury to the first defendant's right shoulder, the primary challenge being the Panel's failure to undertake a clinical examination of that site of soft tissue injury. The plaintiff's submissions on the appeal gave scant attention to the Review Panel's approach to its review of the assessment of WPI of the first defendant's injured spine (her thoracic, cervical and lumbar spine), despite there being no clinical examination in respect of those injuries and despite the Panel assessing 5% WPI in respect of the thoracic spine (in substitution for Dr Cunneen's assessment of 0% WPI for that injury), elevating the first defendant's WPI from 5% to 10%. Senior counsel for the plaintiff acknowledged in his submissions that the focus of the appeal was on the assessment of WPI of the first defendant's right shoulder because it was the according of 1% WPI for the right shoulder injury which resulted in an assessment of total WPI being greater than 10%.
Senior counsel for the first defendant submitted that Dr Cunneen's approach to the assessment of WPI in respect of each of the injuries referred to him for assessment, as evidenced in his statement of reasons, and the Review Panel's approach to its review of that assessment, as evidenced in their statement of reasons, in particular the basis upon which they came to a conclusion about the degree of permanent impairment of all injures under assessment (including the question of causation in respect of the injury to the first defendant's lumbar spine), will inform the question whether the Review Panel was in error in conducting its review without undertaking a clinical examination of the first defendant (or more precisely, so far as concerns the plaintiff's case on the appeal, without undertaking a clinical examination of her right shoulder). In counsel's submission, the need to consider the examination of the decision as a whole is in accordance with the principles of judicial review most recently exemplified in the judgment of McColl and Meagher JJA in Allianz Australia Insurance Ltd v Rutland.

[7]

The Medical Assessment Guidelines

For the purposes of a review of an assessment by a review panel, cl 11.1 of the Medical Assessment Guidelines provides: In considering an assessment an Assessor, including a member of any Review Panel, may determine the Assessor's own procedure and is not bound by the rules of evidence and may inquire into any issue in such manner as they think fit.
Clause 16.21 provides: The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; 16.21.3 determine whether additional information is required in order to make a decision; 16.21.4 determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked; 16.21.5 if revoked, determine what new certificates are to be issued; 16.21.6 where the original assessment certificate was issued under clause 13.7 and included in a combined certificate under clause 13.9, determine whether the panel is to issue a new combined certificate, combining the result of the review with the results of the other assessments included in that combined certificate; 16.21.7 determine which member of the panel will sign any certificates on behalf of the panel; 16.21.8 determine whether a further meeting of the panel is required; and 16.21.9 advise the Proper Officer of any determinations under this clause.
Clause 16.24 provides: Within 20 days of the final meeting of the panel, and in any case within 60 days of the initial meeting, the panel shall issue its determination and any certificates, accompanied by written reasons for the determination, in the form approved by the Authority, to the secretary who shall within 5 days of the issuing of any certificates, forward them to the parties and the original Assessor.
The question that arises in this case concerning the application of cl 16.21.2 above needs to be read with cl 4(a)(i) of the Review Panel Practice Note 3/2005 which provides: The Review Panel should generally include a re-examination of the claimant, except in cases where there is no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessment.
Clause 4(a)(ii) of the same Practice Note provides: If the Review Panel is informed that a party has objected to the review being conducted 'on the papers', then the Panel should generally conduct a re-examination.

[8]

The Permanent Impairment Guidelines

Clause 1.23 of the Permanent Impairment Guidelines requires that the degree of permanent impairment, whether assessed by a medical assessor or the review panel, is evaluated at the time of the assessment.
Clauses 1.42 and 1.43 provide: 1.42 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 judgement 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 outlining the reasons in the impairment evaluation report. 1.43 Where there are inconsistencies between the assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies should be brought to the claimant's attention, e.g. inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The claimant will then have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.
The assessment process is set out at cl 1.20 as follows: An assessment of the degree of permanent impairment involves three stages: (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.
Chapter 2 of the Permanent Impairment Guidelines (incorporating Chapter 3 of the AMA 4 Guides) provides guidelines on methods of assessing permanent impairment involving the upper extremity. Relevantly, cll 2.2, 2.4 and 2.6 provide: 2.2 Assessment of the upper extremity involves a physical evaluation that can utilise a variety of methods. The assessment, in this Chapter, does not include a cosmetic evaluation, which should be done with reference to Chapter 13 of the AMA 4 Guides. … 2.4 Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or possible lack of co-operation by the person being assessed. Range of motion is assessed as follows: (i) A goniometer should be used where clinically indicated. (ii) Passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements. (iii) If the assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions. (iv) If there is inconsistency in range of motion then it should not be used as a valid parameter of impairment evaluation. Refer to section 1.43 of these Guidelines [see [24]]. (v) If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present. … 2.6 To achieve an accurate and comprehensive assessment of the upper extremity, findings should be documented on a standard form. Figure 1 of the AMA 4 Guides (pp 16-17) is extremely useful to document findings and guide assessment of the upper extremity. Note however, that the final summary part of Figure 1 (pp 16-17, AMA 4 Guides) does not make it clear that impairments due to peripheral nerve injuries cannot be combined with other impairments in the upper extremities unless they are separate injuries.

[9]

The Medical Assessment by Dr Cunneen

Dr Cunneen noted from the history given by the first defendant that she did not lose consciousness as a result of the accident, but that she did have to be cut free of her vehicle by emergency services. He also noted that after the accident she reported experiencing pain about her neck, thoracic region, anterior chest wall, left toe and her right shoulder region. CT scans and x-rays undertaken on her admission to hospital revealed no abnormalities. She was treated with analgesics for pain management and discharged from hospital with follow-up by her treating general practitioner.
Dr Cunneen noted the first defendant's treatment history from the date of the accident to the date of assessment (a period of two years), including treatment provided by her general practitioner, an orthopaedic surgeon, and an occupational physician.
In contrast to the detailed review of the first defendant's treatment history and the results of the ongoing investigation into her injuries undertaken by the Review Panel (see later), other than recording that bruising "over the right shoulder" was noted by the first defendant's general practitioner three days after the accident, Dr Cunneen made only passing reference to the injury to the right shoulder in his summary of her treatment history thereafter. In contrast, he did set out, in some detail, the results of clinical examinations by her treating specialists of, inter alia, the upper thoracic region, the cervical spine and right wrist.
Under the subheading "Current Symptoms", Dr Cunneen reported that the first defendant identified ongoing problems associated with her cervical spine, thoracic spine and right wrist but that all other injuries had either settled or were relatively minor by the time of the assessment. He did report, however, that as regards the right shoulder, the first defendant "stated there was intermittent pain present … [which] she rated … at 2/10 when present".
Under the subheading "Findings on Clinical Examination", of the right shoulder Dr Cunneen noted and recorded a slightly dropped right shoulder joint without tenderness, no muscle spasm/guarding and a negative Neer's test and Speed's test (tests directed to orthopaedic shoulder examinations). In tabular form he then documented the active range of function of the right and the left shoulders. (The compromised range of function in the left shoulder was due to an unrelated injury.)
As reflected in the table below, by the use of a goniometer, "external rotation" of the right shoulder was measured and recorded as 50 degrees. This approach was in accordance with Clause 2.4(i) of the Permanent Impairment Guidelines which provides the method for an assessment of the upper extremity (see [26] ante). It was the form and content of the tabulated results of the clinical examination of the right shoulder in particular respects (in the table below) that the plaintiff submitted should have motivated the Review Panel to undertake its own clinical examination. Active Range of Motion: LEFT RIGHT Normal range of Motion SHOULDER SHOULDER FLEXION 180° 180° 180° EXTENSION 50° 50° 50° ADDUCTION 65° 60° 65° ABDUCTION 180° 180° 180° INTERNAL ROTATION 60° 60° 60° EXTERNAL ROTATION 70° 50° 70°

[11]

%WPI = percentage whole person impairment ~ %LE = percentage lower extremity ^ %UE = percentage upper extremity [Emphasis added.]

What appears, at least prima facie, as a discrepancy or inconsistency in Dr Cunneen's assessment of the external rotation to the right shoulder injury (that is 50 degrees recorded as a "finding" on clinical examination and 80 degrees in his ultimate "determination" of the extent of permanent impairment) was not explained by him.
On the hearing of the appeal senior counsel for the plaintiff also identified what, in his submission, amounted to a further "glaring and unexplained inconsistency" in the base measurement of the first defendant's active range of motion of the right shoulder, this time under adduction. He pointed to a discrepancy between the assessor's reported clinical findings of the right shoulder under adduction being 60 degrees, and his tabulated results for the purposes of his ultimate determination of the degree of permanent impairment being 40 degrees (see the italicised results in the tables in [32] and [34]).
While it is not submitted the measure of adduction had any bearing on the assessment of WPI in the left shoulder, in the plaintiff's submission the unexplained shift from a finding of 60 degrees to 40 degrees by the previous assessor underscores the unreliability of the results of his assessment of the right shoulder. The plaintiff submitted that were the Review Panel to have properly discharged its statutory duty, it would have undertaken its own clinical examination of the right shoulder.
The first defendant submitted on an appropriately beneficial reading of the assessor's reasons as a whole, in accordance with the approach of Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; 185 CLR 259, the Court would be satisfied there is no discrepancy in the results of the first defendant's active range of motion of the kind the plaintiff contends for, nor is there any inconsistency in the results calling for the approach contemplated in cll 1.42 and 1.43 of the Permanent Impairment Guidelines (see ante at [24]). The first defendant submitted that the discrepancy should be understood as a transposition error from Dr Cunneen's "finding" of 50 degrees of external rotation on clinical examination to 80 degrees when the results of all testing were collated by him in the final phase of the assessment, similarly with the range of motion on adduction. The first defendant submitted that the plaintiff's identification of the discrepancy in both external rotation and adduction between the "findings on clinical examination" and in the tabulated results determination section of the statement of reasons as amounting to legal error is the product of an over-zealous critique of the reasons with a view to identifying error for judicial review purposes.
To seek to explain what the plaintiff's senior counsel submitted were inconsistencies in "findings" of active range of motion as transposition errors is mere supposition on the part of the first defendant without any basis in the material available to the Review Panel or its path of reasoning to justify that as the explanation.
The plaintiff's ultimate submission was that the Review Panel received from Dr Cunneen what they should have appreciated was a flawed document and which, if they had properly interrogated the results of his clinical examination of the right shoulder, would have obliged them to undertake their own clinical assessment. In the plaintiff's submission, this was essential to the proper discharge of the Review Panel's statutory obligation to deal with the issue between the parties which derived from s 58(1)(d) of the MAC Act, namely the extent of the first defendant's WPI, an obligation which was not discharged by confining the Panel's assessment to an inter partes identification of the issues that might bear on that assessment.

[12]

The Assessment by the Review Panel

In undertaking its review, the Panel confirmed they had received and considered the following documentation:
The certificate including the reasons issued by Dr Cunneen on 9 February 2015;
Application Form seeking a review and attached documents (including the first defendant's/claimant's submissions);
Reply form and attached documents (including the plaintiff/insurer's submissions);
The determination issued by the Proper Officer on 28 May 2015 referring the matter to the Review Panel; and
All the documents provided to Dr Cunneen prior to the assessment under review.
The Review Panel noted the matters certified by Dr Cunneen, including the degree of permanent impairment as a result of the injuries suffered in the accident being 5% as attributable solely to the soft tissue injury to the cervical spine.
In its statement of reasons, the Review Panel noted the "Disputes Identified by the Parties" as follows: The Panel considered the matters cited in the Application for Review and noted that the following aspects of the assessment were disputed: ● Assessment of right upper extremity ● Assessment of thoracolumbar spine The Applicant [the first defendant in these proceedings] submitted that the MAS Assessor had erred with respect to WPI determination based on measured range of motion. There had been 50 degrees of external rotation at the right shoulder which the Assessor had assessed as 0% WPI when there should have been 1% WPI. The Applicant asserted non-uniform loss of motion in the thoracic (rotation) and lumbar spine (flexion versus extension); in other words dysmetria equating with DREII in each spinal region i.e. 5% for thoracolumbar and 5% for lumbosacral spine. In the Applicant's opinion there was also 5% WPI for the cervical spine and 1% WPI for the right shoulder. Total WPI due to the subject accident was 16% according to the Applicant. The Applicant submitted that further medical examination was not required. The Panel considered the matters cited in the Reply to the Application for Review [by the plaintiff in these proceedings] and noted that: The respondent disagreed with the Applicant. The Respondent noted no evidence of true dysmetria or non-uniform loss of motion. 0% WPI of the lumbar spine was correct. There had also been a delay before the claimant reported lumbar symptoms after the subject accident. It was submitted there had been no injury to the lumbar region. The Respondent also submitted there was no evidence of right hip injury or else there would have been earlier complaints. The pain in the lateral hip and buttock commenced in February 2013 when the claimant started running.
The Review Panel's recitation of the issues in dispute was a distillation of the written submissions of the parties filed as part of the assessment process.
In summary, the plaintiff's position in advance of the review was that a review of Dr Cunneen's assessment of the matters referred for assessment would simply not be material to an assessment of WPI in excess of 10%. The plaintiff directed its submissions to what were said by it to be: (1) Dr Cunneen's "clear and unequivocal findings" with respect to the injury to the thoracic spine, in particular no evidence of "true dysmetria as guided by the MAA Permanent Impairment Guidelines", such that his assessment of 0% WPI was correct; (2) No causation in respect of the lumbar spine or, in the alternative, no evidence of "true dysmetria as guided by the MAA Permanent Impairment Guidelines to warrant non-uniform loss of motion"; and (3) No causal connection between the accident and the right hip injury.
The plaintiff did not join issue with the submission of the first defendant in respect of what she submitted was, in effect, a calculation error in the determination of whole person impairment based on the assessor's measured range of motion in her right shoulder being 50 degrees. This was noted in the first defendant's further submissions filed on receipt of the plaintiff's submissions in the following way: 1.2 In relation to the right upper extremity, the insurer has not provided any submissions in response. 1.3 It appears the insurer concedes that the level of whole person impairment relating to the right upper extremity is 1%. 1.4 Accordingly, the residual issues relate to thoracolumbar and lumbosacral impairments.
In addition, the plaintiff addressed no submission as to whether the first defendant should attend for a clinical examination. It was the first defendant's submission on application to the Proper Officer for a review of the assessment that it would be unreasonable to require her to travel from interstate when the application for review was what was submitted by her to be a "straight calculation issue requiring the application of the AMA 4 guidelines", a submission she repeated in her submissions to the Review Panel.
In the plaintiff's submission on the appeal, the failure on its part to join issue with what the first defendant described as "a calculation issue" when addressing the Review Panel with respect to the injury to the right shoulder; its failure to disabuse her and the Panel of the understanding that the "residual issues" related only to the injuries to the spine; and its silence on the question whether a clinical examination should be undertaken by the Review Panel in resolving those "residual issues", or at all, has no bearing on the question whether there are legal errors infecting the Review Panel's decision justifying the relief sought under judicial review, and no bearing at all on whether, if error is found, discretionary relief should be refused.
The first defendant submitted that what must be assumed to be the plaintiff's considered position as evidenced by its submissions furnished as part of the review process is relevant in at least two ways. It bears on the question whether, on a proper construction of Rutland, there is legal error of the kind the plaintiff now contends for and, even if error is found, because the plaintiff was at least complicit in the circumstances in which the Review Panel was led into error by not alerting the Panel to what it now describes as "glaring inconsistencies … in a flawed document", its conduct is relevant to the further question whether the relief it now seeks should be refused in the exercise of this Court's discretion.

[13]

The Review Panel's Assessment

Under the subheading "Matters Considered and Decided by the Panel", the Review Panel stated that it considered afresh all aspects of the assessment under review. In my view, that approach is borne out, in significant part, by the detailed consideration given to the material provided to Dr Cunneen prior to his assessment and the detailed consideration given to that material in the course of the Review Panel undertaking their own assessment of the degree of the first defendant's WPI resulting from the accident. Insofar as concerns the injury to the right shoulder, the Panel noted: (a) A complaint of tenderness at the right shoulder in the ambulance report, and right shoulder pain was also noted in the summary from the Emergency Department of the hospital; (b) The first defendant's attendance upon her general practitioner post-accident regarding inter alia, "bruising of the right shoulder" which, together with her other soft tissue injuries, was treated with analgesics and a referral to physiotherapy; (c) In in a medical certificate of January 2013, the first defendant's general practitioner reported bruises to her right shoulder and neural pain in that area; (d) In March 2013, she complained to her physiotherapist of "symptom referral" to the anterior hips, lower back and right shoulder with prolonged walking, standing and sitting. The Review Panel noted as follows: Her recovery had been slow. Treatment had focused on soft tissue and joint mobilizations, postural realignment and basic neck/lumbar stabilization. [The physiotherapist] recommended clinical Pilates for a full hour once symptoms settled. (e) By August 2013, the first defendant had resumed work on graduated duties, experiencing, amongst other symptoms in her neck, thoracic spine and right wrist, "intermittent (less severe) right shoulder pain at 2/10 intensity". (f) In December 2013, a medical report from an occupational physician noted that on examination symptoms in the first defendant's right shoulder (and left foot) had resolved. In a separate report prepared at the same time, that physician made no assessment of whole person impairment of the right shoulder. (g) In January 2014, on examination by an orthopaedic surgeon following the first defendant's complaint of persistent pain in the right side of the neck, shoulder, hip and wrist, the surgeon noted, inter alia, "[t]here was full range of motion at the right shoulder with discomfort at end range of abduction". He also assessed no whole person impairment relative to the right shoulder. (h) In March 2014, a further medical report by another orthopaedic surgeon made no mention of pain associated specifically in the right shoulder. Again, no whole person impairment was assessed relative to that injury. (i) In May 2014, on examination by an occupational physician "full range of bilateral shoulder motion" was noted.
The Review Panel's consideration of the other material before it necessarily included all sites of soft tissue injury suffered in the accident and Dr Cunneen's findings on clinical examination of those injuries. It is not necessary for present purposes to set out, in detail, the consideration given to all that material, extending as it did over thirteen pages. Suffice to say that it tends to support the first defendant's case on the appeal that the decision, read as a whole, amply demonstrates that the Panel discharged its statutory duty under s 63(3A) of the MAC Act to undertake a fresh assessment of the first defendant's total WPI and, in so doing, to exercise its own independent judgment on the question of permanent impairment, and that its approach was not limited to those parts of the assessment alleged to be incorrect (the error identified in Rutland).
Based on the available contemporaneous documentation and informed by the assessor's findings, the Review Panel found that there was evidence that the plaintiff had sustained injuries to the neck (cervical spine), upper back (thoracic spine), right wrist, left hip, left second toe and right shoulder in the motor accident. They went on to say: The ambulance report referred to the upper back, right wrist and right shoulder. The ED summary referred to the neck, thoracic spine, right wrist, left second toe and right shoulder. The medical certificate referred to bruising of the right shoulder, left hip, left foot, upper back and cervical spine. The Panel agreed with the Assessor regarding causation and WPI determination of the claimed cervicothoracic spine injury. The Panel agreed there is 5% WPI due to the neck soft tissue injury from the accident. The Panel agreed with the Applicant regarding the description provided by the MAS Assessor of asymmetrical rotation L>R being consistent with thoracolumbar dysmetria. The Panel agreed there is 5% WPI of the thoracolumbar spine due to dysmetria, based on the MAS Assessor's clinical findings. He had unfortunately erred by not awarding WPI for the thoracic spine based on his clinical findings. Apropos the right shoulder, the Panel agreed with the Applicant that 50 degrees of external rotation should have been accorded 1% UEI or 1% WPI (Table 3, page 20AMA4) according to Figure 44, page 45 of AMA4. Apropos the right wrist, the Panel agreed with the original MAS Assessor regarding 0% WPI for the observed active range of function. [Emphasis added.]
The Review Panel then set out its reasons for arriving at its conclusion on the issue of causation in respect of the injury to the lumbar spine different to that of Dr Cunneen. It disagreed with the first defendant's claim to lumbar dysmetria being present, interpreting Dr Cunneen's findings on clinical examination as consistent with 0% WPI.
Finally, the Review Panel came to a different conclusion as to the issue of causation in respect of the right hip injury. Insofar as the left hip injury was concerned, although the Review Panel was satisfied there was acceptable evidence of causation, they found that on clinical examination by Dr Cunneen there was no ongoing injury and no WPI accorded to that injury or the injury to the toe, a finding with which they agreed.
In the result, the Review Panel's determination regarding the degree of whole person impairment resulting from the injury to the right shoulder was as follows: For the right shoulder, the Panel agreed with the Applicant [the first defendant] in relation to 1% UEI or 1% WPI (Table 3, page 20) for mild, observed loss of external rotation. [Emphasis added.]
They went on to say: In summary, following combination of 5% WPI (neck), 5% WPI (thoracic spine) and 1% WPI (right shoulder), there is 11% WPI due to the subject motor accident without deductible proportion. Body Part or System AMA Guides/MAA Guidelines References (chapter/page/table) Permanent (YES/NO) Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident
Cervical spine Table 4.1, page 22 Yes 5% Nil 5% MAA PIG
Thoracic spine Table 4.1, page 22 Yes 5% Nil 5% MAA PIG
Right shoulder soft tissue injury Figures 38, 41 and 44 pages 42-45 AMA4 Yes 1% WPI Nil 1%
Right wrist fracture Figures 26 and 29 page 36, page 38 AMA4 Yes 0% WPI n/a 0%

[14]

The Decision in Rutland

The statutory duty of the Review Panel under s 63(3A) of the MAC Act is to assess the degree of permanent impairment of a person injured in the motor vehicle accident by undertaking a fresh assessment of all matters with which the medical assessment is concerned, not limiting its review to those aspects of the previous assessment said by the applicant for review to be incorrect (see Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214).
The nature of that task was recently explained in Rutland. In that case, the only injury under assessment was a psychiatric injury the claimant suffered when she learnt her sister had died in a motorcycle accident. The insurer sought a review of the medical assessor's assessment of the claimant's WPI as greater than 10%. The Review Panel afforded the claimant the opportunity to make submissions as to whether on review of that assessment she should be examined. No submissions were made. The Review Panel's assessment was made on the documentary material. They certified the claimant's WPI at not greater than 10%.
The claimant brought judicial review proceedings in this Court contending that the Review Panel had failed to discharge its statutory duty under s 63(3A) of the MAC Act by not undertaking a fresh assessment of her degree of permanent impairment (including its own clinical assessment). In addition, she complained that she had been denied procedural fairness in the Review Panel's assessment of the extent of her functional impairment in particular areas (concentration, persistence and pace) in circumstances where there was conflicting evidence in the materials considered by the Panel bearing on those matters, as to which she should have been given the opportunity to respond. The primary judge (Garling J) was satisfied that both grounds were made out (Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583).
The insurer unsuccessfully appealed to the Court of Appeal.
At [19]-[20] the Court considered the statutory duty imposed under s 63(3A): [19] Section 63(3A) confirmed the position to be as stated by Giles JA (Allsop P agreeing) in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 at [38]. (That decision was delivered on 14 July 2008 which was after that sub-section had been enacted but before it commenced on 1 October 2008: Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW).) … The review panel has one task, to review the medical assessment referred to it and either confirm the medical assessor's certificate or revoke it and issue a new certificate. … In order to come to its decision to confirm the medical assessor's certificate or revoke it and issue a new certificate the review panel must give consideration to the matters referred for assessment in whole. The consideration as to some aspects of the matters may be brief if there is a discrete particularised incorrectness in a material respect and no other incorrectness in a material respect is apparent to the professional gaze of the members of the review panel, and depending on perceived occasion to go further the review panel may then focus on the particularised incorrectness in a material respect. If that occurs, it is not failure in an obligation or the exercise of a discretion. It is the exercise of professional judgment. [20] Whether the Review Panel did give consideration to the whole of the question as to the respondent's degree of permanent impairment turns on the nature of its assessment as revealed by its reasons, taking into account the material it had before it.
In considering the question posed in [20], the Court of Appeal noted that on his examination of the Review Panel's reasons for decision, Garling J was satisfied that in reviewing the degree of permanent impairment by reason of the claimant's psychological injury, the Panel had erroneously limited its focus to what were said to be errors in the assessment already undertaken by the previous assessor rather than exercising its own independent and contemporaneous clinical judgment.
At [22] the Court noted that Garling J's examination of the Review Panel's reasons included, at [77], the following: Here, the Review Panel had to determine whether the plaintiff's psychological injuries gave rise to permanent impairment and if so, to what extent. It had to do so as at the date of its assessment. It was not determining the extent of whole person impairment, if any, at some earlier date, but rather as at the date of its assessment. In circumstances where the [Permanent Impairment Rating Scale], to which it was necessary to have regard in accordance with the Guidelines, related to impairment in the identified areas of function, it was not possible, in the circumstances here, for the Review Panel to undertake an assessment and form its opinion without such a consultation and examination.
On appeal, the insurer submitted that his Honour was in error in finding that the de novo assessment required by s 63(3A) of the MAC Act obliged the Review Panel to perform its own clinical assessment of the claimant's psychological impairment. As to that submission, the Court said: [24] That submission overstates the effect of the primary judge's reasoning in at least two respects. First, his Honour expressly declined to determine whether examinations are usually or practically essential to assessments undertaken by review panels: [76]. Secondly, he did not find that an examination of the respondent was a prerequisite to performance of the Review Panel's statutory task because the failure to examine her was not considered to be a freestanding reason for setting aside the assessment: [78]. The question before the primary judge, as on appeal, was whether the Review Panel approached its task too narrowly so as not to conduct a new assessment of all the relevant matters, with its determination that it was unnecessary to examine the respondent being a possible reflection of that overall approach.
In dismissing the appeal, the Court said: [25] Allianz submits that the course adopted by the Review Panel was in accordance with the brief reasoning approach outlined by Giles JA in the passage from McKee extracted at [19] above. Whilst it may be accepted that there are different ways in which the Review Panel might in various circumstances go about successfully discharging its task, it must nevertheless be evident that the Review Panel has undertaken its "one task" of assessing the matter, not the errors, referred to it as a whole and afresh: McKee at [38]; Frost at [9]. In our view, taking account of the medical reports and other material before it, the Review Panel's reasoning shows its overall approach to have been that of addressing asserted error rather than of undertaking its own comprehensive assessment. … [30] The Review Panel's assessment was to be made with the benefit of Dr Jager's report, as well as all the material that was before him: MA Guidelines, cl 16.19. As Giles JA explained in McKee at [23], the "plain purpose of s 63" of the MAC Act is to empower the Review Panel to apply its "collegiate professional expertise" to an assessment in the same way that the single assessor had done before them. This cannot occur where the Review Panel gives primacy to the assessment under review in the sense of assuming that, where error is shown in the reasons of the original assessor, there is no need for further consideration of or resort to the underlying factual material beyond that identified in the original assessor's reasons. There may be other material, not expressly identified by that assessor, which nonetheless supports his or her conclusions. Alternatively, having examined all the same material as the original assessor, the Review Panel may reach a different clinical opinion. [31] Finally, although the Review Panel could determine that it was unnecessary to examine the respondent, its discretion to do so (MA Guidelines, cl 16.21.2) is limited by the requirement that it assess all of the matters with which the permanent impairment assessment is concerned (s 63(3A)). Additional matters to be taken into account include (1) the requirement that the Review Panel assess the impairment at the time the matter comes before it (PI Guidelines, cl 1.23); (2) that an assessment of permanent impairment is said to involve a clinical examination "wherever possible" to obtain the required information (PI Guidelines, cl 1.20(ii)); (3) that clinical judgment is considered the "most important tool" in assessing a mental impairment in accordance with the Psychiatric Impairment Rating Scale (PI Guidelines, cl 7.17); and (4) that the Review Panel was required to determine whether additional information was needed (MA Guidelines, cl 16.21.3). … [33] The task before the Review Panel required that it exercise its collective clinical judgment as to the respondent's impairment at the time of its deliberation on 7 March 2014. The Review Panel had before it Dr Jager's reasons for his certificate, based on his examination of the respondent on 8 October 2013, and the other medical reports which pre-dated that assessment. Notably, the Review Panel did not have the benefit of any transcript or clinical notes associated with Dr Jager's examination. In the circumstances, and recognising that clinical judgment between medical practitioners may vary on the issue which had to be assessed, it would, in our view, be surprising and unusual that a panel of medical assessors seeking to assess a person's degree of impairment due to a particular psychological injury would not interview the relevant individual so as to be satisfied that they have an accurate and complete history of his or her pre-accident lifestyle, activities and habits and the extent to which those may have changed as a result of that injury (PI Guidelines, cl 7.20). That an examination of the respondent did not occur in this case, when considered with the other matters to which we have referred, confirms our view that the Review Panel undertook its task by reviewing the asserted errors in the assessment already undertaken, rather than exercising an independent and contemporaneous clinical judgment on the question of permanent impairment.
The first defendant submitted that what the Court identified in Rutland at [31] as matters to be taken into account on the question whether in a particular case a clinical examination is called for was a finding specific to the case they were considering, in particular that matter (3), namely that a "clinical interview" is a "most important tool" is a consideration particular to cases where psychological injury is being assessed. The first defendant also submitted that where, in [33], McColl and Meagher JJA expressed the view that it would be "surprising and unusual" for an assessment to be undertaken without clinical examination of the claimant, that was also in the context of a psychological injury where the Permanent Impairment Guidelines require an examination of a particular kind that can only sensibly be made in a clinical context. Counsel for the first defendant submitted that was not this case. He went further and submitted that in the somewhat unique circumstances of this case, where the matter in dispute between the parties as revealed in their exchange of submissions as part of the review process was the application of the AMA 4 Guides to the unchallenged clinical findings of the assessor, no clinical examination was called for. Counsel emphasised that the question whether a clinical examination was necessary was raised by the Review Panel in correspondence to the parties in the following terms: If you object to the Review Panel being conducted without an examination of the claimant, please advise immediately in writing, providing reasons why you believe an examination is required. If no objections are received by the initial conference date shown above, the Panel will assume that there is no objection to the review being conducted on the documentary material provided, should they consider this to be possible.
Senior counsel for the plaintiff accepted that Rutland is not authority for the proposition that there is a statutory obligation to undertake a clinical examination in every case referred to a review panel by the Proper Officer under the Act. He also accepted that in Rutland the Court confirmed that it is for a review panel to determine whether, in the exercise of its discretion, in the particular case referred to it, there is the need for it to undertake a clinical examination in the proper performance of its statutory duty under s 65(3A). However, he submitted that in light of the material before the Review Panel in this case there was a demonstrated need for the Panel to undertake its own clinical examination of the first defendant's right shoulder in order to assess, for itself, the degree of her WPI and that there was nothing in the circumstances of this case that were unique or unusual such as might have relieved the Panel of the need to do so in the exercise of its discretion. To the contrary. In counsel's submission, this Court would be satisfied that the material available to the Panel revealed two inconsistent findings of external rotation in the first defendant's right shoulder, and in light of what he submitted was the Panel's heavy and impermissible dependence on one "finding" over the other, it was obliged to clinically examine the first defendant. That being so, far from this case being distinguished from Rutland, counsel submitted it was "on all fours with it".
In the plaintiff's further submission (advanced for the first time on the appeal), it was the first defendant's nomination of the assessment of the right shoulder as a "straight calculation issue" in the submissions that accompanied her application for review that led the Review Panel into erroneously treating the assessment of WPI of that injury in that way and which, in turn, caused the Panel to fail to discharge its statutory duty when it failed to require her to attend for a clinical examination.
As the plaintiff sought to establish on the appeal (also for the first time) no "straight calculation" could or should have been performed by the Review Panel when the assessor's "base figures" as to the active range of function in the right shoulder were inconsistent. (Of course, this analysis proceeds on the factual assumption that both 50 degrees and 80 degrees external rotation were "findings".) Further, as I have already noted, the plaintiff submitted that it was under no obligation to raise for the Review Panel's consideration (or even for their assistance) what it now relies upon as inconsistent "findings" on range of function in the right shoulder. Neither, so it was submitted, was it under any obligation to address what was implicit in the further submissions filed by the first defendant in advance of the review (set out at [46]), to the effect that the plaintiff's silence on the question whether the assessment of WPI in the right shoulder was a straight calculation issue, will be taken as an acknowledgement it should have been treated by the Panel in that way for the purposes of its review.
It was also the plaintiff's submission that, consistent with the Review Panel's legal duty to give reasons for the matters it was required to determine according to law, in discharge of that duty in this case it was required to give reasons for how it arrived at its assessment of WPI in the right shoulder including, in particular, how it arrived at the conclusion that it should or would select one "finding" of external rotation (being 50 degrees) over the other (being 80 degrees) for the purposes of its assessment.

[15]

Consideration

In my view, when read as a whole, Dr Cunneen's statement of reasons should be understood as including a finding of 50 degrees external rotation in the first defendant's right shoulder, despite the summary table in the final "Determinations" section referring to an external rotation of 80 degrees. I am satisfied that it is the finding of 50 degree external rotation in the "Findings" section that was the basis for his assessment of WPI (and the basis upon which the first defendant identified what she claims was a calculation error referable to the AMA 4 Guides), it being evident from his reported findings (set out at [31]-[32] above) that the active range of observable function was other than normal on application of the goniometer whilst also noting a "slightly dropped right shoulder joint". Since the applicable AMA 4 Guides appoint 90 degrees of external rotation as a normal range of function, for Dr Cunneen to have recorded a tabulated finding of 80 degrees as "the finding" (it being the plaintiff's submission that 80 degrees in the table at [34] is correct and 50 degrees in the table at [32] is incorrect) would represent an amount equivalent to normal external rotation inconsistent with the gross appearance of the shoulder alignment as other than normal.
As part of its de novo assessment, the Review Panel was entitled to take into account Dr Cunneen's findings that the external rotation of the first defendant's right shoulder was other than normal, together with the material from the first defendant's treating clinicians which was also suggestive of ongoing restriction in the range of movement. That material, when considered with Dr Cunneen's "findings" on application of the goniometer of 50 degrees external rotation, and his observation of a dropped shoulder, are consistent with what is described by the Panel as "mild observed loss of external rotation" (see [55] above).
In my view, that analysis supports the first defendant's submission that, properly understood, the notation of 80 degrees in the summary table at [34] should be understood as a transcription error (or a typographical error) and not the source of a discrepancy or an irreconcilable inconsistency between clinical "findings", the factual premise upon which the plaintiff relied on the appeal as requiring the Review Panel to undertake a fresh clinical examination, as the legal error foundational to its claim for relief.
The first defendant submitted that the explanation for the Review Panel not addressing in its statement of reasons what the plaintiff now relies upon as a "glaring and unexplained inconsistency in the reported findings on the previous assessment", is to be understood from the fact that far from the range of active movement in the right shoulder being a matter put into dispute by the parties, there was no dispute in the review process that the measurement of external rotation in the right shoulder was 50 degrees, and no suggestion in the exchange of submissions that the Panel should treat the assessment of WPI for that injury on review as other than a calculation issue (see Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [121]).
In light of the submissions advanced by the parties as part of the review process, and in the absence of the Review Panel being obliged as part of its de novo assessment in this case to question the reliability of the base measurements reported by the assessor as his "findings", or to set them aside, I am satisfied that there was no reason for the Panel to have questioned whether there were inconsistent "findings" viz the right shoulder in the previous assessment, much less to have proceeded on the basis that a clinical assessment of the first defendant's right shoulder was called for in this case because there might have been error in the previous clinical assessment or a change in the first defendant's condition.
It follows that where, as here, there is no dispute as to a matter the subject of the assessment referred by the Proper Officer to the Panel for review (in this case the clinical assessment of the active range of movement in the right shoulder being 50 degrees) there is no obligation for a review panel to set out the path of reasoning for what is not in dispute (see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [55], also [47]-[48]).
I am not persuaded that in undertaking its assessment of WPI in the first defendant's right shoulder the Review Panel was obliged to require the attendance of the first defendant for a fresh clinical assessment, there being in this case no legal, factual or medical necessity for it to do so identified by the parties in the review process or any inconsistency (glaring or otherwise) of the kind the plaintiff identified on the appeal. On my reading of Rutland, there is no error of the kind contended for by the plaintiff as invalidating the Panel's decision in this case.

[16]

Has the Insurer Been Denied Procedural Fairness?

In dismissing the insurer's challenge to the primary judge's finding that the claimant had been denied procedural fairness in Rutland, the Court said: [35] The dictates of procedural fairness here, as in other circumstances, are concerned with avoiding practical injustice: Frost at [41]. As Leeming JA explained in Frost, this may require the panel of assessors reviewing a medical assessment under the MAC Act to draw to the attention of the claimant critical facts upon which they propose to base a decision to reject or depart from the underlying assessment and allow him or her an opportunity to respond: [32], [35].
After considering the evidence bearing on the specific areas of impairment in the claimant's psychological functioning, and the importance of the evidence in those areas being up to date for the purposes of the review, the Court went on to say: [44] … The evidence before the Review Panel was conflicting and directed to the respondent's work position at different points in time. What was not clear from the material before the Review Panel was what the respondent's current position was, both as to the duties she was performing and as to whether she was coping with them. In those circumstances, the respondent should have been confronted with the conflicting position revealed by the evidence and given an opportunity to explain the current position, as she asserted it to be. [45] It is true both that Allianz' application for review put in issue the level of concentration required by the respondent's employment and that the respondent did not object to the Review Panel proceeding without a clinical examination. However, the respondent was entitled to assume that the Review Panel would undertake its task of assessing the degree of her permanent impairment afresh, on the basis of all the material, and that it would request further information if relevant to that enquiry. [46] This was not a case where the failure to afford procedural fairness served no practical disservice to the cause of the claimant because there was no further argument to be made or information given: cf Frost at [43]. As the primary judge noted, the obligation of procedural fairness did not necessarily require the Review Panel to examine the respondent: [89]. It did, however, require the Panel to give her the opportunity to address it on whether the inference it proposed to draw concerning an aspect of her functional impairment was available on the facts as they were at that time.
Contrary to the submission advanced by the plaintiff on the appeal, the dictates of procedural fairness in this case did not require a clinical examination of the first defendant's right shoulder when their decision as to whether WPI should be assessed at 1% for the observed loss of function or application of the AMA 4 Guidelines was the issue, and the only issue, to which the parties were invited to address submissions and where the plaintiff had been afforded all procedural fairness (consistent with its Practice Notes and the review process - see Frost at [39]-[40]) to ensure against any practical injustice were the Panel to approach the issue as a calculation question. Was the Decision of the Review Panel Legally Unreasonable?
The plaintiff submitted that the Review Panel's uncritical and unexplained acceptance of the assessor's recorded range of movement in the first defendant's right shoulder as 50 degrees external rotation as opposed to 80 degrees external rotation in its assessment of WPI satisfies the test for legal unreasonableness amounting to jurisdictional error.
In the Minister for Immigration and Citizenship v Li, the consideration given by Hayne, Keifel and Bell JJ at [66]-[76] to the test for legal unreasonableness emphasised the need to ensure that the application of the test is properly confined to the Court's supervisory role of correcting legal error and not trespassing into a review of the merits of the exercise of a discretionary power. Their Honours also emphasised that the requirement that a decision-maker act reasonably is grounded in the need for the decision-maker to understand his or her statutory powers and obligations, the scope of which is to be considered referable to the statute conferring the power and its statutory objects.
In his written submissions, senior counsel for the plaintiff identified what he submitted were examples of legal unreasonableness, and identified as such by the High Court in Li, as amounting to jurisdictional error, and that examples (f) and (g) were particularly apposite in this case: (a) where no sensible decision-maker acting with due appreciation of its responsibilities would have so decided (at [71]); (b) where the decision-maker has failed to give adequate weight to a relevant factor of great importance (at [72]); (c) where the decision-maker has given excessive weight to an irrelevant factor of no importance (ibid); (d) where the decision-maker reasoned illogically or irrationally (ibid); (e) when the decision is a disproportionate response by reference to the scope of the power (at [73]-[74]); (f) when a decision lacks evident and intelligible justification (at [76]); or (g) where it is not apparent how a conclusion was reached, but the decision itself bespeaks error (at [82] and [85]).
Having concluded that it was open to the Review Panel to have approached the assessment of WPI in the first defendant's right shoulder as they did, and for what I am satisfied are the evident and intelligible reasons already discussed as evidenced in the Review Panel's path of reasoning to the conclusion the WPI of the right shoulder should be assessed (or recalculated) at 1%, I am not persuaded that the decision satisfies any articulation or exemplification of the test of legal unreasonableness.
Even were I satisfied that the plaintiff had made out its case that legal error had invalidated the decision on one or more of the grounds relied upon (each of which, as I have observed, depend upon there being errors in the approach of the Review Panel to its statutory obligations), given the plaintiff's conduct in the review process and its effective acquiescence in the approach the Panel took to their assessment of the WPI of the first defendant's right shoulder, I would refuse the relief sought in the exercise of the discretion.

AAI Ltd trading as GIO v Cooley

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