Abdal v Insurance Australia Limited t/as NRMA Insurance

Medium Neutral Citation: Abdal v Insurance Australia Limited t/as NRMA Insurance [2025] NSWSC 478

Hearing dates: 26 March 2025

Date of orders: 16 May 2025

Decision date: 16 May 2025

Jurisdiction: Common Law

Before: Wright J

Decision: (1) The time for commencement of the proceedings in respect of the decision (including the reasons) of Medical Assessor Sidorov of 25 February 2024 is extended to 18 September 2024.
(2) The decision (including the reasons) of Medical Assessor Sidorov of 25 February 2024 is set aside.
(3) The decision of the delegate of the President of the Personal Injury Commission of New South Wales of 19 June 2024 is set aside.
(4) The matter is remitted to the President of the Personal Injury Commission of New South Wales to be dealt with in accordance with law.
(5) The first defendant is to pay the plaintiff’s costs.
(6) Otherwise, there is no order as to costs.

Catchwords: ADMINISTRATIVE LAW – judicial review – medical assessor’s determination of whole person impairment for the purposes of the Motor Accident Injuries Act 2017 (NSW) – assessment of whole person impairment as a result of psychiatric injury – whether the medical assessor took into account an irrelevant consideration – consideration that “no overt cognitive difficulties noted during the assessment” wrongly assigned to the “concentration, persistence and pace” area of functional impairment as defined in the Motor Accident Guidelines – error established – decisions and reasons of assessor set aside
AMDINISTRATIVE LAW – judicial review – where medical assessor’s function included obtaining necessary information to assess whole person impairment for the purposes of the Motor Accident Guidelines – where necessary information not obtained – medical assessment of class 2 for the “Concentration, consistency and pace” area of functional impairment – where class rating based on considerations that did not provide a basis for distinguishing between class rating 2 and class rating 3 – error established

Legislation Cited: Accident Compensation Act 1985 (Vic)
Motor Accident Injuries Act 2017 (NSW) ss 1.7, 4.11, 4.12, 7.17, 7.20, 7.21, 7.26, sch 2 cl 2(a)
Motor Accidents Compensation Act 1999 (NSW) (repealed)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(3A), 59.10(1) & (2)

Cases Cited: Ali v AAI Limited [2016] NSWCA 110
Ballas v Department of Education (2020) 102 NSWLR 783; [2020] NSWCA 86
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Flanagan v Allianz Australia Insurance Ltd [2022] NSWSC 1374
Insurance Australia Group Ltd v Keen [2021] NSWCA 287; 399 ALR 765
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited: Motor Accident Guidelines (Version 9.2) (superseded) published by the State Insurance Regulatory Authority

Category: Principal judgment

Parties: Maythem Kamel Abdal (Plaintiff)
Insurance Australia Limited t/as NRMA Insurance ABN 11 000 016 722 (First Defendant)
President of the Personal Injury Commission of New South Wales (Second Defendant)
Alexey Sidorov in his capacity as a Medical Assessor under section 33 of the Personal Injury Commission Act 2020 (Third Defendant)

Representation: Counsel:
E G Romaniuk SC / D Adhikary (Plaintiff)
J Gumbert (First Defendant)
Solicitors:
LHD Lawyers (Plaintiff)
Hall & Wilcox (First Defendant)
Crown Solicitor for NSW (Second and Third Defendant)

File Number(s): 2024/00346214

JUDGMENT

Introduction

1. Mr Maythem Kamel Abdal, the plaintiff, seeks judicial review in this Court of two decisions arising out of a medical assessment in the Personal Injury Commission of New South Wales (PIC) in relation to a medical dispute about a claim based on injuries suffered by the plaintiff in a two-car collision, for which the plaintiff was not at fault.

2. The plaintiff’s original summons for judicial review was filed on 18 September 2024. The first defendant, the insurer of the at fault driver, is Insurance Australia Limited trading as NRMA Insurance (NRMA). NRMA has accepted liability for the accident. The second defendant is the President of the PIC and the third defendant, the medical assessor appointed by the President of the PIC, is Dr Alexey Sidorov whose medical assessment decision is the first decision challenged in these proceedings. The original summons also included a fourth defendant, Ms Ashley Payne, the President’s delegate who made the decision to refuse the plaintiff’s application for a review of Dr Sidorov’s medical assessment. This is the second decision challenged by the plaintiff.

3. The plaintiff filed an amended summons on 21 October 2024 by which the fourth defendant was removed as a party.

4. The second and third defendants filed submitting appearances. Consequently, the only active party is the first defendant, NRMA.

5. The present case turns on the application of the Psychiatric Impairment Rating Scale (PIRS) used for the assessment of whole person impairment, or WPI, under both the motor accident injury and workers’ compensation schemes in New South Wales. The area of functional impairment under the PIRS relevant for present purposes is described as “concentration, persistence and pace”.

Background

6. The background to the present proceedings was not in dispute and may be summarised as follows. On 22 June 2021, the plaintiff was involved in a motor vehicle accident while he was driving in the course of his employment as an accounts manager with a business called Pain Away. He was proceeding through a roundabout turning right when the car behind him went over the roundabout and T-boned him on the driver’s side. His car was written off.

7. The plaintiff stated that, immediately after the collision, he was in shock and sat in his car in a dazed and confused state, he felt back pain and sustained a bruise above and over his right eyebrow. No significant injuries were identified as a result of X-rays, MRI and CT scans conducted at hospital shortly after the accident. Some days later, when he consulted his general practitioner, the plaintiff was experiencing back pain as well as headaches and neck pain. He was referred for physiotherapy for his neck and lower back pain which led to some improvement.

8. The plaintiff was initially off work for some weeks then returned to modified duties. He ceased work in about November 2022.

9. The plaintiff also said that after the accident he developed a significant fear of driving and when reminded of the accident he would feel more depressed with reduced energy and motivation and felt generally negative. He stated that his anxiety would be triggered by, for example, seeing P plates on cars, as the driver who crashed into him had P plates on his vehicle. The plaintiff described being more irritable and angry as well as more on edge, hypervigilant and easily startled with disturbed sleep. He started seeing a psychologist on a fortnightly basis which he found somewhat helpful and he was also prescribed medication by a psychiatrist, Dr Chow.

10. Given the circumstances in which the accident occurred, the plaintiff had entitlements under both Motor Accident Injuries Act 2017 (NSW) (MAI Act) and the workers’ compensation legislation.

11. For the purposes of the workers’ compensation proceedings, the plaintiff commissioned a report and impairment assessment from Dr Nicholas Argyle, consultant psychiatrist, in respect of his diagnosed psychiatric disorder of post-traumatic stress disorder and possible mild neurocognitive disorder due to traumatic brain injury. Dr Argyle’s report and impairment assessment were both dated 17 February 2023. Dr Argyle assessed the plaintiff’s “whole person impairment [WPI] according to PIRS [Psychiatric Impairment Rating Scale]” [1] as 20%, made up of 19% being the calculation of PIRS from the conversion chart and 1% for the effect of treatment in relation to sleep. As part of the assessment of WPI according to the PIRS, Dr Argyle assessed the plaintiff’s class rating for the “concentration, persistence and pace” area of functional impairment as 3 on the basis of findings that:

“[The plaintiff] finds computer screens difficult for more than 10-15 minutes as he has a headache, and he cannot concentrate long enough to watch a film but very short videos. He can fill out a simple form but anything complex requires his wife’s assistance. He does not read as this causes headaches.”

12. The plaintiff’s employer commissioned a report from Dr Kumar, psychiatrist, who provided an initial report of 16 March 2023.

13. On 9 June 2023, the plaintiff sought a concession from NRMA that the non-economic loss threshold of WPI impairment of 10% in s 4.11 of the MAI Act had been met.

14. On 29 June 2023, Dr Kumar provided a further report in which he opined upon the percentage of WPI then suffered by the plaintiff as a result of his psychiatric injuries. Although Dr Kumar disagreed with Dr Argyle’s diagnosis of mild neurocognitive disorder and traumatic brain injury, Dr Kumar assessed the plaintiff’s relevant WPI according to PIRS as 19% from the conversion chart but did not allow any percentage for the effect of treatment. Under the heading “Concentration, Persistence and Pace”, Dr Kumar stated:

“[The plaintiff] reported that his concentration is not the best. He is quite forgetful. He added that he finds it difficult to focus on any tasks and even playing with his children can be difficult at times. He says that when his wife gives him some instructions, he forgets easily. Impairment in this domain is class 3.”

15. Accordingly, there was substantial agreement between Drs Argyle and Kumar that the percentage WPI attributable to the plaintiff’s psychiatric injury from the accident was 19%. This was based on, inter alia, an assessment in respect of the “concentration, persistence and pace” area of functional impairment that the severity of the plaintiff’s impairment should be given a class rating of 3.

16. On 6 September 2023, NRMA advised that it did not concede that the non-economic loss threshold of 10% WPI in s 4.11 of the MAI Act had been met. Thus, there arose a medical dispute within the meaning of s 7.17 and cl 2(a) of Sch 2 of the MAI Act as to the plaintiff’s degree of permanent impairment and whether that degree was greater than 10%.

17. On 23 October 2023, the plaintiff’s treating psychiatrist, Dr Frank Chow, provided a report on the plaintiff’s psychiatric condition.

18. On 20 November 2023, the plaintiff lodged an application for a medical assessment, under Div 7.5 of the MAI Act, of the degree of permanent impairment in respect of, inter alia, his psychiatric injury suffered in the motor accident on 22 June 2021. In the application form, one of the injuries was described as “Psychiatric injury as detailed in the reports of Dr Mukesh Kumar, Dr Frank Chow and Dr Nicholas Argyle”. The application was eventually supported by documentation which included, but was not limited to, the reports of those three psychiatrists.

19. On 14 February 2024, the plaintiff was medically examined by Medical Assessor Sidorov, who was the medical assessor whom the President of the PIC, by his delegate, had arranged, in accordance with s 7.20 of the MAI Act, to deal with the medical dispute between the plaintiff and NRMA as to the degree of impairment in respect of the plaintiff’s psychiatric or psychological injury.

20. On 25 February 2024, Medical Assessor Sidorov issued his assessment of the degree of permanent impairment in respect of the injury described as “Psychological injuries – Posttraumatic Stress Disorder” which included his reasons for his assessment. Medical Assessor Sidorov’s assessment was as follows:

“The following injuries caused by the motor accident give rise to a permanent impairment of 8% and IS NOT GREATER THAN 10%:

● Post-traumatic Stress Disorder”.

21. In essence, the different assessments of WPI by Drs Argyle and Kumar of 20% and 19% and Medical Assessor Sidorov of 8% resulted largely from Drs Argyle and Kumar rating the plaintiff in class 3 in respect of the “concentration, persistence and pace” area of functional impairment under the PIRS whereas Medical Assessor Sidorov rated the plaintiff in class 2 for that area of functional impairment. Assessment of the degree of impairment using PIRS will be considered further below.

22. On 25 March 2024, the plaintiff lodged an application for review under s 7.26 of the MAI Act of Medical Assessor Sidorov’s medical assessment of 25 February 2024.

23. On 19 June 2024, the delegate of the President of the PIC dismissed the plaintiff’s review application and gave reasons for the dismissal.

The judicial review application

24. On 18 September 2024, the plaintiff filed a summons in this Court seeking judicial review of both Medical Assessor Sidorov’s decision, including the statement of reasons, dated 25 February 2024 concerning the plaintiff’s WPI and the President’s delegate’s decision of 19 June 2024 to dismiss the plaintiff’s review application.

25. On 21 October 2024, as noted above, the plaintiff filed an amended summons. In that amended summons, he sought:

26. declarations that both the medical assessor’s decision and the President’s delegate’s decision were void and of no effect;

27. orders setting aside both decisions; and

28. an order under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) extending the time in which to commence the proceedings against the Medical Assessor in respect of his decision of 25 February 2024.

29. In respect of the medical assessor’s decision, the following jurisdictional errors and errors of law on the face of the record were identified in the amended summons as the grounds of review as follows (in slightly reorganised form):

30. “The Medical Assessor misunderstood, and misapplied, the PIRS category of ‘concentration, persistence and pace’, including by reference to the exemplar descriptions contained in the applying guidelines” in that:

(a) “The Medical Assessor did not make findings as to factual matters that distinguished between a Class rating of 2 and a Class rating of 3, including by reference to the exemplar descriptions contained in the applying guidelines”; (b) “The Medical Assessor [erred in] treating the fact of ‘no overt cognitive difficulties noted during the assessment’ as being material, and determinative, when overt cognitive difficulties are not distinguishing features between Class rating of 2 and Class rating of 3, and cognitive factors are relevant to a different category (‘travel’) or relevant to the application of the clinical dementia rating scheme, and in doing so took into account an irrelevant consideration and misapplied facts to the determination of the category”;

2. “The Medical Assessor did not comply with the reasons obligation to explain the Medical Assessor’s determination that a Class rating of 2 rating was appropriate as compared to a Class rating of 3, including that the Plaintiff’s clearly articulated case presented through the contemporaneous medico-legal reports of Dr Argyle and Dr Kumar, which was not contradicted by any medico-legal report submitted by [NRMA], was a Class rating of 3, including the reasons obligation discussed in Campbelltown City Council v Vegan (2006) 67 NSWLR 372”;

3. “The Medical Assessor erred by failing to engage with a clearly articulated case presented through the contemporaneous medico-legal reports of Dr Argyle and Dr Kumar, which was not contradicted by any medico-legal report submitted by [NRMA], that the Class rating was 3. As a result, there was a denial of procedural fairness”.

4. In respect of the decision of the President’s delegate concerning the review application, the jurisdictional errors and errors of law on the face of the record were identified in the amended summons as:

5. “The President’s Delegate erred in failing to form a state of satisfaction that the Medical Assessor’s decision was, at a gateway threshold, incorrect in a material respect for the reasons [identified in respect of the Medical Assessor’s decision in (1) to (3) of the preceding paragraph]”; and

6. “The President’s Delegate … erred by not complying with the reasons obligation to explain why the gateway threshold state of satisfaction did not exist”.

Application for an extension of time

28. As noted above, the plaintiff’s amended summons included a prayer for relief by way of an extension of time in which to commence proceedings in respect of Medical Assessor Sidorov’s decision.

29. Rule 59.10(1) of the UCPR provides that proceedings for the review of a decision must be commenced within three months of the date of the decision. The proceedings in respect of the President’s delegate’s decision were commenced on 18 September 2024 within three months of that decision being made on 19 June 2024. An extension of time was, however, required in respect of the proceedings for judicial review of the medical assessor’s decision which had been made on 25 February 2024.

30. Under r 59.10(2), the Court may at any time extend the time for commencing proceedings fixed by subr (1). The explanation for the delay in commencing proceedings in respect of the medical assessor’s decision was, in substance, that the plaintiff sought to exhaust his right to seek review of the assessment by the medical assessor under s 7.26 of the MAI Act before seeking judicial review of the medical assessor’s decision. This course was appropriate and to be encouraged. The right to seek a review was exhausted when the President’s delegate made her decision to dismiss the review application on 19 June 2024. The present proceedings were then commenced within three months of that date. It was not suggested that there was any relevant prejudice to NRMA if the extension of time was granted as sought and I was not satisfied that there was any such prejudice.

31. In all the circumstances, it is appropriate to extend the time for commencement of the proceedings in respect of the medical assessor’s decision to 18 September 2024 and I shall so order.

Matters not in dispute

32. In the present case, there was no dispute that:

33. the plaintiff’s relevant rights and entitlements arising out of injuries suffered in the motor accident on 22 June 2021 were to be determined in accordance with the MAI Act;

34. the plaintiff contended, and NRMA disputed, that his degree of WPI was greater than 10% and thus the non-economic loss threshold of WPI impairment of 10% in s 4.11 of the MAI Act had been crossed;

35. there was a medical dispute between the plaintiff and NRMA as to the degree of permanent impairment of the plaintiff including in respect of the psychiatric or psychological injury suffered as a result of the motor accident; and

36. the President of the PIC had arranged under s 7.20 of the MAI Act for this dispute to be dealt with by Medical Assessor Sidorov.

Relevant legislative provisions and parts of the Guidelines

33. In relation to determination of whether the impairment threshold of 10% has been crossed, s 1.7 of the MAI Act provides:

“1.7 Determination of threshold degree of permanent impairment of injured person who suffers both physical and psychological/psychiatric injuries

(1) This section applies for the purposes of a determination under this Act of whether the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident is greater than 10% (the impairment threshold).

(2) If an injured person receives both a physical injury and a psychological or psychiatric injury arising out of the same motor accident—

(a) the degree of permanent impairment that results from the physical injury is to be assessed separately from the degree of permanent impairment that results from the psychological or psychiatric injury (and accordingly those separate degrees of injury are not to be added together for the purposes of the impairment threshold), and

(b) the injured person is taken to have a degree of permanent impairment greater than the impairment threshold if either the degree of impairment caused by physical injuries or the degree of impairment caused by psychological or psychiatric injuries is greater than 10%.”

34. By reason of s 1.7(2), the degree of permanent impairment due to the plaintiff’s psychiatric or psychological injury was assessed by Medical Assessor Sidorov separately from the degree of any impairment due to other injuries. Thus, Medical Assessor Sidorov’s decision concerned only the degree of impairment resulting from the plaintiff’s psychiatric or psychological injury.

35. Sections 4.11 and 4.12 of the MAI Act relevantly provide:

“4.11 No damages for non-economic loss unless permanent impairment greater than impairment threshold

No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.

4.12 Assessment of permanent impairment required if dispute over impairment threshold

(1) If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5.

…”

36. For present purposes, it is sufficient to note that Div 7.5 of the MAI Act includes s 7.21 which governs the assessment of the degree of permanent impairment of an injured person such as the plaintiff. Section 7.21 provides:

“7.21 Assessment of degree of permanent impairment

(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.

(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.

(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”

37. By virtue of s 7.21(1), the assessment of the degree of permanent impairment is to be made in accordance with “the Motor Accident Guidelines”. To this extent, the MAI Act establishes the relevant provisions of those guidelines as a statutorily mandated process for the exercise of the decision-making function involved in assessing of the degree of permanent impairment for the purposes of the MAI Act. [2]

38. The relevant guidelines in the present case are the Motor Accident Guidelines version 9.2, which applied between 10 November 2023 and 6 December 2024 (the MA Guidelines).

39. In the MA Guidelines, permanent impairment is dealt with in Part 6. The most pertinent provisions of Part 6 include those referred to below.

40. The concept of “impairment” is defined in cl 6.9 as:

“an alteration to a person's health status. It is a deviation from normality in a body part or organ system and its functioning. Hence, impairment is a medical issue and is assessed by medical means.”

41. Specific guidance as to the evaluation of impairment is given in cll 6.17 – 6.18.

“Evaluation of impairment

6.17 The medical assessor must evaluate the available evidence and be satisfied that any impairment:

(a) is an impairment arising from an injury caused by the accident, and

(b) is an impairment as defined in clause 6.9 (above).

6.18 An assessment of the degree of permanent impairment involves three stages:

(a) a review and evaluation of all the available evidence including:

• medical evidence (doctors', hospitals' and other health practitioners' notes, records and reports)

• medico-legal reports

• diagnostic findings

• other relevant evidence

(b) an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment

(c) the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced.”

42. Thus, a medical assessor’s proper exercise of the decision-making function of assessing permanent impairment involves a three stage process which includes, inter alia:

43. reviewing and evaluating all medical evidence and medico-legal reports;

44. where an interview and clinical examination are conducted, obtaining the information specified in the MA Guidelines necessary to determine the percentage impairment; and

45. preparing a certificate as to the percentage of WPI, which includes the reasoning on which the determination is based.

46. In relation to the assessment of psychiatric and psychological impairment, cll 6.35 - 6.37 provide:

“Psychiatric impairment

6.35 Psychiatric impairment is assessed in accordance with 'Mental and behavioural disorders' within this part of the Motor Accident Guidelines.

Psychiatric and physical impairments

6.36 Impairment resulting from a physical injury must be assessed separately from the impairment resulting from a psychiatric or psychological injury (see section 1.7(2) of the Act).

6.37 When determining whether the degree of permanent impairment of the injured person resulting from the motor accident is greater than 10%, the impairment rating for a physical injury cannot be combined with the impairment rating for a psychiatric or psychological injury.”

44. Clauses 6.201 – 6.228 are the “Mental and behavioural disorders” clauses within Part 6 of the MA Guidelines, as referred to in cl 6.35.

45. The introductory clauses of the “Mental and behavioural disorders” section of Part 6 relevantly contain the following clauses:

“6.201 Psychiatric disorders have complex effects on the individual, and impairment must be assessed by a psychiatrist.

…

6.203 The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in these Guidelines. Chapter 14 of the AMA4 Guides (pages 291-302) is to be used for background or reference only.

6.204 The PIRS draws heavily on Chapter 14 of the AMA4 Guides.

6.205 The AMA4 Guides provide a framework to determine whether a motor accident has caused psychiatric impairment. They bridge the gap between impairment and disability by focusing on four areas or aspects of functioning:

(a) activities of daily living (ADL). Three aspects of ADL are used in the PIRS system

(b) social functioning

(c) concentration, persistence and pace

(d) adaptation.

…

6.207 Activities of daily living include self-care, personal hygiene, communication, ambulation, travel and social and recreational activities

…

6.209 Concentration, persistence and pace is defined as the ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings.

…

6.211 Impairment is divided into five classes ranging from no impairment to extreme impairment.

…”.

46. For the purposes of assessing relevant impairment, cl 6.213 provides that the impairment must be attributable to a recognised psychiatric diagnosis.

47. Clause 6.216 deals with the situation where cognitive deficits may be present as follows:

“6.216 Where cognitive deficits are suspected, the medical assessor must carefully consider the history of the injury, medical treatment and progress through rehabilitation. The medical assessor must also take into account the results of CT and MRI scans, electroencephalograms (EEGs) and psychometric tests.”

48. Clause 6.217 emphasises that the Psychiatric Impairment Rating Scale or PIRS must be used by a properly trained medical assessor and states:

“The psychiatrist's clinical judgement is the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis and based on the psychiatrist's clinical experience.”

49. The PIRS is then explained in more detail in cll 6.219 – 6.221 as follows:

“6.219 Behavioural consequences of psychiatric disorders are assessed on six areas of function, each of which evaluates an area of functional impairment:

(a) self-care and personal hygiene (Table 6.11)

(b) social and recreational activities (Table 6.12)

(c) travel (Table 6.13)

(d) social functioning (relationships) (Table 6.14)

(e) concentration, persistence and pace (Table 6.15)

(f) adaptation (Table 6.16).

6.220 Impairment in each area of function is rated using class descriptors. Classes range from 1 to 5 according to severity. The standard form (Figure 6.2) must be used when scoring the PIRS. The classes in each area of function are described through the use of common examples. These are intended to be illustrative rather than literal criteria. The medical assessor should obtain a history of the injured person's pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury. The medical assessor should take into account variations in lifestyle due to age, gender, cultural, economic, educational and other factors.

6.221 Where adaptation cannot be assessed by reference to work or a work-like setting, consideration must be given to the injured person's usual pre-injury roles and functions such as caring for others, housekeeping, managing personal/family finances, voluntary work, education/study or the discharge of other obligations and responsibilities.”

50. After cl 6.224, the MA Guidelines set out six tables (Tables 6.11 – 6.16) which relate to each of the six areas of functional impairment set out in cl 6.219(a) to (f) respectively. The relevant table for present purposes is Table 6.15 which is as follows:

Table 6.15: Psychiatric impairment rating scale (PIRS)

| Concentration, persistence and pace | | Class 1 | No deficit, or minor deficit attributable to normal variation in the general population. Able to operate at previous educational level; for example, pass a TAFE or university course within normal timeframe. | | Class 2 | Mild impairment. Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes, for example, then feels fatigued or develops headache. | | Class 3 | Moderate impairment. Unable to read more than newspaper articles. Finds it difficult to follow complex instructions; for example, operating manuals, building plans, make significant repairs to motor vehicle, type detailed documents, follow a pattern for making clothes, tapestry or knitting. | | Class 4 | Severe impairment. Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. | | Class 5 | Totally impaired. Needs constant supervision and assistance within an institutional setting. |

51. Accordingly, in the present case, the function of the medical assessor included assessing into which class the plaintiff fell in respect of “concentration, persistence and pace” which is defined in cl 6.209 as “the ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings”.

52. Clauses 6.225 – 6.228 and the accompanying tables and examples explain how the percentage WPI is to be calculated based on the results of the class ratings given for each of the six areas of functional impairment in the PIRS. There was no dispute concerning how the calculation was carried out in the present case and it is not necessary to set out or consider how the class ratings for the six areas of functional impairment are to be dealt with to yield a percentage WPI.

53. Against that background, it is appropriate to consider first the challenges to the decision of Medical Assessor Sidorov. It will only be necessary, then, to consider the challenges to the decision of the President’s delegate dismissing the application to review Medical Assessor Sidorov’s decision if none of the challenges to Medical Assessor Sidorov’s decision is successful.

Medical Assessor Sidorov’s assessment decision

54. Medical Assessor Sidorov’s certificate and reasons dated 25 February 2024 in relation to his medical assessment of the plaintiff recorded that on 14 February 2024 the plaintiff “attended the assessment via audio-visual link and was examined unaccompanied”. This was the “interview and a clinical examination” which the medical assessor was to carry out, if possible, under cl 6.18 of the MA Guidelines, “to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment”.

55. Medical Assessor Sidorov’s certificate and reasoning relevantly included the following:

56. Certification that the plaintiff’s post-traumatic stress disorder gives rise to a permanent impairment of 8% which is not greater than 10%;

57. Under the headings “CLINICAL EXAMINATION” and “15. Current functioning”, information obtained in the clinical examination included the following which can be seen as relevant to assessing the “concentration, persistence and pace” area of functional impairment:

“… He struggles with his energy and motivation levels. … He feels that his concentration has been worse than in the past. He gets bored easily and has become more forgetful, although no overt cognitive problems were noted during the assessment where [the plaintiff] was able to focus and concentrate during the one hour-long assessment. He does not currently work. He stated that, after the accident, he attempted to return to work about six months later. He was working from home, but developed significant headaches and so he stopped working. He also attempted to return to his pre-injury duties working to a reduced capacity but stated that driving was triggering for him and he stopped after five or six months. His employment has since been terminated as the business was sold. He has not found a new job since.”

3. Under the heading “REVIEW OF DOCUMENTATION” and the subheading “17. Summary of relevant documentation”, the most relevant information included:

“I note the description of the subject accident contained in the Application for Personal Injury Benefits Form. I note that it is generally consistent with the account provided by [the plaintiff] during the assessment.

I note the report of Dr Nicholas Argyle, Consultant Psychiatrist, dated 17 February 2023. I note that Dr Argyle had diagnosed a Posttraumatic Stress Disorder and assess[ed] [the plaintiff’s] whole person impairment at 20%.

I note the report of Dr Mukesh Kumar, Psychiatrist, dated 16 March 2023. I note the Dr Kumar had diagnosed [the plaintiff] with a Posttraumatic Stress Disorder.

I note the report of Dr Mukesh Kumar, Psychiatrist, dated 29 June 2023. I note the Dr Kumar assessed [the plaintiff’s] whole person impairment at 19%.

I note the report of Dr Frank Chow, Consultant Psychiatrist, dated 23 October 2023. I note that Dr Chow diagnosed [the plaintiff] with a Posttraumatic Stress Disorder and a Major Depressive Disorder.

I note the reports of Ms Anusha Harinath, Psychologist, dated 29 October 2021 and 8 December 2021. … It is noted that he experiences significant anxiety when driving and that his driving ability is reduced to 10 to 15 minutes maximum. …

I note the letter of Dr Rajneesh Singh, Consultant Psychiatrist, dated 21 Fabry 2023. I note that Dr Singh diagnosed a Posttraumatic Stress Disorder and a Major Depressive Disorder and had advised to increase the Citalopram to 30 milligrams daily and stated that the dose can be increased further to 40 milligrams. He also advised the addition of Prazosin, as well as, as required, Diazepam.

A report by Ms Anusha Harinath, Psychologist, dated 6 June 2023, notes that [the plaintiff] continues to present with trauma related symptoms.

I have reviewed the clinical record of Dr David Lam. I note an entry in 2008 relating to [the plaintiff] experiencing anxiety at work. There is also an entry from April 2017 noting a panic/anxiety attack. There are no other entries of psychiatric relevance prior to the subject accident.”

4. Under the heading “REVIEW OF DOCUMENTATION” and the subheading “18. Summary of relevant additional documentation provided for the further assessment”, the most pertinent material included:

“…

I have reviewed the clinical notes of Dr Frank Chow of various dates.… It notes that [the plaintiff] presented with trauma and depressive symptoms of the Posttraumatic Stress Disorder as a result of the subject accident. I note the description of ongoing trauma related and mood symptoms. I note treatment with psychotropic medications and psychological therapy.

…”.

5. Under the heading “DETERMINATIONS”, the following was set out:

“19. Diagnosis and reasons

Based on the account provided by [the plaintiff], his presentation and review of provided documentation, he meets the diagnostic criteria for a Posttraumatic Stress Disorder, as per DSM-5. This is based on a history of [the plaintiff] being involved in a serious motor vehicle accident where he had a fear of death or serious injury with subsequent development of intrusion symptoms … negative alterations in cognitions and mood associated with the accident and marked alterations in arousal and reactivity associated with the accident, characterised by increased irritability and angry outbursts, hypervigilance, an exaggerated startle response, difficulties with concentration and sleep disturbance.

20. Causation and reasons

[The plaintiff’s] Posttraumatic Stress Disorder was caused by the subject accident. …

Summary of injuries referred by the parties

21. The following injuries WERE caused by the motor accident:

● Posttraumatic Stress Disorder

…

22. …

The impairment associated with [the plaintiff’s] Posttraumatic Stress Disorder can be considered to be permanent …

Degree of Permanent Impairment Psychiatric Impairment Rating Scale

23. …

[Medical Assessor Sidorov set out his assessment essentially using the form in Figure 6.2 of the MA Guidelines as follows.]

| Psychiatric diagnoses | l. Posttraumatic Stress Disorder | 2. | | 3. | 4. | | Psychiatric treatment | Psychological therapy and psychotropic medications | | Category | Class | Reason for decision | | Self-care and personal hygiene | 2 | There is evidence of mild impairment. [The plaintiff] generally maintains his basic personal hygiene, such as showering and changing his clothes regularly, however, he does not do household tasks, such as cleaning and cooking, due to a reduced motivation. | | Social and recreational activities | 3 | There is evidence of moderate impairment. [The plaintiff] has become a lot more socially withdrawn since the accident and does not partake of any regular social and recreational activities. | | Travel | 2 | There is evidence of mild impairment. [The plaintiff] is able to leave home independently and unaccompanied, but continues to experience significant anxiety when he drives a car. | | Social functioning | 2 | There is evidence of mild impairment. [The plaintiff’s] relationship with his wife has been somewhat strained due to his unstable moods and irritability. | | Concentration, persistence and pace | 2 | There is evidence of mild impairment. [The plaintiff] reported difficulty with focus and concentration and reports that he has become more forgetful, however, there were no overt cognitive difficulties noted during the assessment. | | Adaptation | 3 | There is evidence of moderate impairment. [The plaintiff] has not worked consistently since the subject accident. He has attempted to return to work for a few months, but then left and his employment has since been terminated due to the company closing. He has not obtained new employment. It is likely he would not be able to work at all in the same position as previously due to difficulties with concentration and reduced motivation levels, but would be able to perform less than 20 hours per week in a different position which requires less skill or is less stressful. | | List classes in ascending order: 2, 2, 2, 2, 3, 3 | | Median class value: 2 | | Aggregate score: 14 | | %Whole Person Impairment: 7% |

…

26. Effects of treatment

[The plaintiff] has derived a mild treatment effect from a combination of psychological therapy and psychotropic medications, therefore, 1% is added for effects of treatment.”

6. The medical assessor’s conclusion as to the degree of permanent impairment caused by the accident was accordingly recorded as 8%.

7. It was not in dispute that, if the plaintiff had been assessed as having a class rating of 3, not 2, in respect of the “concentration, persistence and pace” area of functional impairment, the application of Table 6.17 in the MA Guidelines would have yielded a WPI of greater than 10%. If the effects of treatment are taken into account, as both Dr Argyle and Medical Assessor Sidorov did, a further 1% would be added to yield the relevant WPI, which would naturally also have been greater than 10%. [3]

The first ground of review in relation to Medical Assessor Sidorov’s decision

57. The first ground of review in relation to Medical Assessor Sidorov’s decision (as set out at [26(1)] above) focused on his assessment of the plaintiff as class 2 in respect of the PIRS area of functional impairment “concentration, persistence and pace”. Although this ground involved two subgrounds, they can be conveniently dealt with together.

Submissions

58. The plaintiff’s fundamental contentions under this ground were to the effect that there was jurisdictional error and an error of law on the face of the record as a result of the medical assessor:

59. failing to obtain information or make findings as to factual matters that distinguished between a class rating of 2 and a class rating of 3, including by reference to the exemplar descriptions in the MA Guidelines; and

60. relying on there being “no overt cognitive difficulties noted during the assessment” as being relevant to and determinative of the appropriate rating being class 2 when this finding did not provide a proper basis for distinguishing between a class rating of 2 and a class rating of 3.

61. In response to this ground, NRMA drew attention to the “exemplar descriptions” for a class 2 and a class 3 rating in respect of “concentration, persistence and pace” set out in Table 6.15 and noted that they were “illustrative only”. It was then submitted that the medical assessor obtained a history regarding reported concentration difficulties and applied his own clinical observations and judgment that the plaintiff had been able to concentrate for a full hour during the assessment and that there were no overt cognitive difficulties noted. It was submitted that this was sufficient to enable a proper assessment of the appropriate class to be made and that the medical assessor was entitled and required to rely on his own clinical judgment in making his assessment.

62. The history taken was also submitted by NRMA to have specifically addressed the relevant area of functional impairment and there was nothing in the reasons to suggest that the medical assessor had misunderstood the nature of the statutory task or misapprehended that his function was to exercise a discretion.

63. As to the medical assessor’s reliance on the absence of overt cognitive difficulties noted in reaching the class 2 assessment, NRMA submitted that this did not involve taking into account an irrelevant consideration. Rather, it was said that absence of observed difficulties with the plaintiff’s process of thoughts, knowledge or perception, or in other words his cognition, was relevant to the “concentration, persistence and pace” area of functional impairment because that observation related to the ability to focus, sustain attention and follow instructions.

Consideration

62. Fundamental to a consideration of the “concentration, persistence and pace” area of functional impairment under the MA Guidelines, is the definition in cl 6.209:

“6.209 Concentration, persistence and pace is defined as the ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings.”

63. The definition establishes that this area of functional impairment concerns:

64. the ability to sustain focused attention in relation to tasks commonly found in work settings; and

65. whether the focused attention can be sustained for a sufficiently long time to permit such tasks to be completed in a timely manner.

66. The cl 209 definition does not support the approach that the “concentration, persistence and pace” area of functional impairment can be assessed by reference to the ability to sustain focused attention in relation to activities not commonly found in work settings or tasks which do not require completion in a timely manner, except where those non-work related activities legitimately provide an indication of the person’s relevant ability to function in work settings.

67. Next, it is important to note that, under cl 6.220, impairment in the “concentration, persistence and pace” area of function is to be rated using class descriptors that range from 1 to 5 according to severity, which are set out in Table 6.15 (which has been set out in full in [50] above). The relevant descriptors for classes 2 and 3 for “concentration, persistence and pace” are:

| Class 2 | Mild impairment. Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes, for example, then feels fatigued or develops headache. | | Class 3 | Moderate impairment. Unable to read more than newspaper articles. Finds it difficult to follow complex instructions; for example, operating manuals, building plans, make significant repairs to motor vehicle, type detailed documents, follow a pattern for making clothes, tapestry or knitting. |

66. In light of the definition of “concentration, persistence and pace” in cl 209, the courses, tasks and the ability to read and follow complex instructions referred to in these class descriptors are to be understood as relating to activities commonly found in work settings rather than in other settings.

67. Clause 6.220 also states that:

“The classes in each area of function are described through the use of common examples. These are intended to be illustrative rather than literal criteria.”

68. Consequently, the relevant descriptors are not to be applied as if they were statutory definitions of the classes or exhaustive statements of relevant criteria. This is also consistent with cl 6.217 which provides that “[t]he psychiatrist's clinical judgement is the most important tool in the application of the scale” and “[t]he impairment rating must be … based on the psychiatrist's clinical experience.”

69. Whilst it is no doubt correct that a medical assessor must exercise a degree of clinical judgment and experience in assigning a class of severity in respect of each area of functional impairment, the characterisation of conduct or ability as going to the “concentration, persistence and pace” area of impairment is not a matter of discretion: Ballas v Department of Education (2020) 102 NSWLR 783; [2020] NSWCA 86 (Ballas) at [93] (Bell CJ and Payne JA, Emmett AJA agreeing). [4]

70. In the present case, Medical Assessor Sidorov’s reasoning in respect of his rating the plaintiff as class 2 for “concentration, persistence and pace” was as follows:

“There is evidence of mild impairment. [The plaintiff] reported difficulty with focus and concentration and reports that he has become more forgetful, however, there were no overt cognitive difficulties noted during the assessment.”

71. The statement that there was “evidence of mild impairment” is merely another way of stating the conclusion that the class rating was 2, as explained in Table 6.15, and did not otherwise explain that conclusion.

72. Next, the medical assessor’s findings that the plaintiff reported difficulty with focus and concentration and becoming more forgetful were entirely general. They did not address whether the plaintiff could “focus on intellectually demanding tasks for up to 30 minutes … then feels fatigued or develops headache” which might have justified a class rating of 2 given the applicable descriptors for that class. Similarly, they did not address whether the difficulty with focus and concentration meant that the plaintiff found “it difficult to follow complex instructions”, which might have justified a class rating of 3. Even bearing in mind that the descriptors in Table 6.15 are “illustrative rather than literal criteria”, these findings did not, and without more could not, provide a justification for a class rating of either 2 or 3.

73. There were, however, two perhaps more fundamental problems with reliance on the plaintiff’s reports of “difficulty with focus and concentration” and “that he has become more forgetful” for the purposes of determining a class rating in respect of the “concentration, persistence and pace” area of functional impairment. First, what is relied on is said to be only the plaintiff’s reports of certain matters. There was no evaluation of those reports and determination of their validity and relevance. Secondly, even if those reports were accepted as reliable, they do not clearly relate to conduct or ability which went to the relevant area of functional impairment. As noted above, the relevant area of functional impairment, as defined in cl 6.209, relates to whether the plaintiff had the ability to sustain focused attention in relation to tasks commonly found in work settings and whether the focused attention could be sustained for a sufficiently long time to permit such tasks to be completed in a timely manner. The plaintiff’s reports on which the medical assessor apparently relied to support his class rating of 2 were not identified as arising in a work related context or as indicating the plaintiff’s ability or inability to function in any particular way for any length of time in relevant work settings.

74. In addition to the plaintiff’s reports concerning difficulty with focus and concentration and forgetfulness, the medical assessor’s reasoning in respect of his assessment that the plaintiff’s class rating should be 2 was based on his observation that “there were no overt cognitive difficulties noted during the assessment”.

75. Similarly to the other findings relied on by the medical assessor, the fact that no overt cognitive difficulties were noted by him during his audio-visual link interview with the plaintiff does not explain or justify a class rating of 2 rather than 3 or vice versa for a number of reasons. First, such an interview involved, in essence, the plaintiff talking about himself in response to the medical assessor’s questions or prompts, and this was not said to be, nor was it likely to be, an intellectually demanding task or a task that involved following complex instructions.

“He does not currently work. He stated that, after the accident, he attempted to return to work about six months later. He was working from home, but developed significant headaches and so he stopped working. He also attempted to return to his pre-injury duties working to a reduced capacity but stated that driving was triggering for him and he stopped after five or six months. His employment has since been terminated as the business was sold. He has not found a new job since.”

83. These findings relate to the plaintiff’s abilities and conduct in a work setting but do not address either the plaintiff’s ability to sustain focused attention in relation to tasks commonly found in such settings or whether the focused attention could be sustained for a sufficiently long time to permit such tasks to be completed in a timely manner, as referred to in the definition of the relevant area of functional impairment in cl 6.209. Nor do these findings permit a reasoned assessment of whether the plaintiff should receive a class rating of 2 or 3 in respect of the relevant area of functional impairment, having regard to the definition in cl 6.209 and the illustrative descriptors in Table 6.15.

84. In addition, when considering the diagnosis of the plaintiff’s psychiatric condition, the basis on which medical assessor concluded that the plaintiff suffered from Posttraumatic Stress Disorder included:

“negative alterations in cognitions and mood associated with the accident and marked alterations in arousal and reactivity associated with the accident characterised by … difficulties with concentration …”.

These findings mention concentration but are general and not related to work settings. They do not, therefore, go to the “concentration, persistence and pace” area of functional impairment as defined in cl 6.209 and, in any event, do not provide a basis for differentiation between class 2 and class 3 in respect of that area.

85. The problem appears to arise out of a failure by the medical assessor to undertake the process in cl 6.18(b) of the MA Guidelines. Under that paragraph, during the interview with the plaintiff the medical assessor was “to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment”. Consequently, in order to carry out his functions under the MAI Act in accordance with the MA Guidelines, the medical assessor should have obtained from the plaintiff information which, relevantly for present purposes, would allow a properly informed assessment, of whether the plaintiff should receive a class rating of 2 or 3 for the “concentration, persistence and pace” area of functional impairment. To this end, the medical assessor should have obtained information as to the plaintiff’s ability to sustain focused attention in relation to tasks commonly found in work settings and as to whether the focused attention could be sustained for a sufficiently long time to permit such tasks to be completed in a timely manner. This information might have included, by way of illustration, whether the plaintiff could focus on intellectually demanding tasks for up to 30 minutes, for example, and then felt fatigued or developed a headache and his reading ability and whether he found it difficult to follow complex instructions which could be considered to be work related or equivalent to work related instructions.

86. The medical assessor’s failure to obtain, during his interview with the plaintiff, information of the type specified in the MA Guidelines for the purpose of assessing severity of impairment in respect of the “concentration, persistence and pace” functional area meant that, in the absence of such information for another source, he was not in a position to form a properly supported assessment in that regard due to a lack of the necessary information. As it appears from the statement of reasons, there was no other source relied on by the medical assessor.

87. In addition to the failure to obtain necessary information in accordance with cl 6.18(b) of the MA Guidelines, there appears also to have been a failure to review and evaluate available evidence as referred to in cl 6.18(a). In the present case, as noted above, there was specific evidence before the medical assessor concerning the plaintiff's functioning and ability relevant to the “concentration, persistence and pace” area of functional impairment in the form of Dr Argyle’s relevant findings in that regard in his 17 February 2023 assessment which were to the following effect:

88. the plaintiff found computer screens difficult for more than 10-15 minutes as he developed a headache;

89. the plaintiff could not concentrate long enough to watch a film other than a very short video;

90. the plaintiff could not fill out a complex form without assistance; and

91. the plaintiff does not read as this causes headaches.

“[From the consultation on 27 June 2023] He did not work for six months after the accident. He tried to work from home. He then tried to visit some customers. He was only able to visit two customers and then became very tired. He was only able to do partial hours and he only lasted about 3-6 months.

…

[From the consultation on 6 September 2023] … He remains having no capacity for work.

[From the consultation on 4 October 2023] … He said before his accident, he used to visit 11 stores a day and 40-50 stores a week. But after the accident he could not even visit two stores a day.

…

He does not think he can go back to doing the work he did before due to the fact that he is scared of driving now. He does not have the resilience and tolerance to deal with customers too. He cannot work as a sales representative or in a supermarket.”

91. Dr Chow’s opinion included:

“He did re-engage back at work on partial duties and partial hours, but he could not cope due to the driving and that stress. He could not last more than a few months. He has since stopped working and his employment has been terminated.

…

He remains totally unfit for work. With his current chronic psychiatric symptoms, associated impairment and failed return to work, it is hard to foresee him able to re-engage back at the work he used to do.”

92. Under cl 6.18(a), Medical Assessor Sidorov was not only to review, but also to evaluate, the medico-legal reports. While the medical assessor identified these medico-legal reports and some of the evidence and opinions contained in them in his reasons under the heading “REVIEW OF DOCUMENTATION” and the subheading “17. Summary of relevant documentation”, [5] there was no indication in his statement of reasons that the medico-legal opinions and evidence directly relevant to the severity of impairment in respect of the “concentration, persistence and pace” functional area were evaluated rather than just being noted. [6] Reading the medical assessor’s certificate and statement of reasons as a whole and in light of all the evidence, I infer that no evaluation of those medico-legal reports directly relevant to the assessment of impairment was carried out.

93. In my view, both aspects of the first ground of review have been made out in that there was jurisdictional error and error of law on the face of the record because, for the reasons set out above, the medical assessor:

94. wrongly relied on findings that did not provide a proper basis for making an assessment of the severity of impairment in respect of the “concentration, persistence and pace” functional area or for distinguishing between a class rating of 2 and a class rating of 3 in respect of that area of functional impairment, having failed to carry out his functions under the MAI Act in accordance with the MA Guidelines by obtaining necessary information during his interview with the plaintiff or by evaluating directly relevant medico-legal reports; and

95. wrongly characterised the conduct or ability of the plaintiff to participate in an hour long audio-visual interview with the medical assessor “without overt cognitive difficulties” as going to the “concentration, persistence and pace” area of functional impairment as defined in the MA Guidelines and thus took into account an irrelevant consideration.

96. Given these conclusions, it is not necessary to consider the other grounds of review relied upon by the plaintiff. Nonetheless, it is appropriate to raise one issue in relation to those grounds which caused me some concern.

The second and third grounds of review

95. The second and third grounds of review of Medical Assessor Sidorov’s decision (as set out in [26(2) and (3)] above) concerned the opinions expressed in the medico-legal reports of Dr Argyle and Dr Kumar. The plaintiff submitted that the medical assessor failed to provide adequate reasons to explain why a class rating of 2 rather than 3 was appropriate when that was contrary to what was said to be a clearly articulated case presented through those medico-legal reports that the class rating should be 3. In addition, it was contended that the medical assessor had failed to engage with the case clearly articulated in those medico-legal reports that the appropriate class rating was 3 rather than 2 in respect of the “concentration, persistence and pace” area of impairment and as a result there was a denial of procedural fairness.

96. Relying on authorities such as Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) and Insurance Australia Group Ltd v Keen [2021] NSWCA 287; 399 ALR 765 (Keen), NRMA contended that while the medical assessor was required to provide reasons which exposed the actual path of reasoning, he was not required to provide reasons for findings that were not made or for an opinion he did not form, even if that opinion had been formed by someone else. In addition, based on Keen for example at [41], NRMA effectively submitted that a medical assessor’s task was, following a review of the documentary material submitted and a clinical examination of the claimant, was to make binding factual determinations and it was not part of a medical assessor’s functions to assess the cogency of the case advanced on behalf of one of the parties.

97. Accordingly, it was submitted in substance that the plaintiff’s second and third grounds of appeal were misconceived and should be rejected.

98. Although it is not necessary to reach a conclusion on grounds 2 and 3 in order to determine these proceedings, there is an issue as to the extent of the obligation on a medical assessor under the MAI Act, and in accordance with the MA Guidelines, to give reasons which may depend on whether a medical assessor is to do more than review evidence and documentary material submitted including medico-legal reports.

99. This issue was not expressly raised or addressed by the parties. Consequently, I have not reached any final view on the issue.

100. As noted above, by virtue of s 7.21(1) of the MAI Act, the assessment of the degree of permanent impairment of an injured person for the purposes of that Act is to be made in accordance with the Motor Accident Guidelines. In the present case, the MA Guidelines established a three stage process which a medical assessor was to undertake in order to assess the degree of permanent impairment as set out in cl 6.18 of the MA Guidelines. Clause 6.18 has been set out in full at [41] above.

“I note the report of Dr Nicholas Argyle, Consultant Psychiatrist, dated 17 February 2023. I note that Dr Argyle had diagnosed a Posttraumatic Stress Disorder and assess[ed] [the plaintiff’s] whole person impairment at 20%.

I note the report of Dr Mukesh Kumar, Psychiatrist, dated 16 March 2023. I note the Dr Kumar had diagnosed [the plaintiff] with a Posttraumatic Stress Disorder.

I note the report of Dr Mukesh Kumar, Psychiatrist, dated 29 June 2023. I note the Dr Kumar assessed [the plaintiff’s] whole person impairment at 19%.”

104. Under cl 6.18(a) of the MA Guidelines, however, the medical assessor was to “evaluate” those reports, in addition to noting or reviewing them.

105. Evaluation, on its ordinary meaning, involves considering carefully and forming a view as to the worth of what is being evaluated. In the case of medico-legal opinions, their evaluation would naturally involve assessing the cogency of the opinions.

106. In Keen at [41] it was said:

“Dr Meakin [the medical assessor] received more than 2,000 pages of material. His task was to make binding factual determinations, following his review of that material and following a clinical examination of Mr Keen. He did just that. It was not part of his function to assess the cogency of the “case” advanced on behalf of the insurer.”

107. These comments by Leeming JA (with whom Basten JA and Simpson AJA agreed) in Keen concerned medical assessments under the previous Motor Accidents Compensation Act 1999 (NSW) and different guidelines. His Honour referred to reviewing relevant material and clinically examining the claimant but did not refer to evaluating any material. In the report of that case, there is no mention of a medical assessor having the function of “evaluating” medico-legal reports or other material submitted.

108. Given the express terms of cl 6.18(a) of the MA Guidelines which envisage a medical assessor not only reviewing but also evaluating all available evidence including medico-legal opinions which advance a case on behalf of a party, it is not clear that the comments in Keen at [41] will necessarily be applicable in cases where the medical assessment is to be conducted in accordance with the MA Guidelines by virtue of s 7.21 of the MAI Act. If a party puts forward a case by way of relevant medico-legal opinions, in accordance with cl 6.18(a), a medical assessor’s function includes evaluating the opinions by assessing their worth or cogency.

109. Similarly, the High Court’s judgment in Wingfoot did not apparently relate to a situation where there was an express reference to a medical assessor “evaluating” relevant medico-legal reports. There was no mention of such an evaluation in the applicable legislation referred to in the judgment – see for example Wingfoot at [10] – [13]. Accordingly, it is also not clear that the High Court’s statements in Wingfoot concerning the obligations of a medical panel under the Accident Compensation Act 1985 (Vic) are necessarily applicable to medical assessments under the MAI Act in accordance with the MA Guidelines. In particular, the High Court said at [56] of Wingfoo**t:

“… A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.”

110. Where the process to be undertaken involves evaluating medico-legal reports which include relevant but different opinions from those formed by the medical assessor and setting out the reasoning on which a determination of WPI is based, it does not necessarily follow that there is no need for the medical assessor to explain how the medico-legal reports which reached relevant but different conclusions from the assessor were evaluated.

111. Of course there will be additional principles and matters which ought to be considered in reaching a definitive conclusion in any particular case as to the nature and content of the process to be undertaken and of the reasons to be given in accordance with the MA Guidelines by a medical assessor when evaluating directly relevant medico-legal reports as part of a medical assessment under the provisions of the MAI Act. In addition, it would be necessary to consider what consequences should be found to flow from a failure to undertake such an evaluation or provide reasons in that regard. As noted above, in the absence of submissions by the parties on these matters, I have reached no concluded view on any of these issues.

Orders

112. In light of the errors affecting the relevant decision identified in the first ground of appeal and in the absence of any matters which would justify the Court, in its discretion, refusing to set aside Medical Assessor Sidorov's decision and statement of reasons of 25 February 2024 and to remit the matter to the PIC to be dealt with according to law, I propose to make such orders.

113. The first order sought in the amended summons was, however, a declaration that the Medical Assessor Sidorov's decision and statement of reasons were void and of no effect. If the order setting aside the decision and reasons is made, it does not appear to me to be necessary to make the declaration sought. Furthermore, if Medical Assessor Sidorov’s decision and statement of reasons are set aside, the underlying subject matter of the President’s delegate’s decision of 19 June 2024 to refuse a review of the medical assessor’s decision no longer exists. As a result, it is appropriate that the President’s delegate’s decision should also be set aside.

114. There do not appear to be any circumstances which would cause the Court to make an order other than the costs of the proceeding, as between the plaintiff and the first defendant, should follow the event. Given the submitting appearances by the other two defendants, there should be no order as to costs in respect of them. If there are circumstances which might justify different costs orders, however, any party may apply to vary the costs orders made under and in accordance with r 36.16(3A) of the UCPR.

115. For these reasons, the orders of the Court are:

116. The time for commencement of the proceedings in respect of the decision (including the reasons) of Medical Assessor Sidorov of 25 February 2024 is extended to 18 September 2024.

117. The decision (including the reasons) of Medical Assessor Sidorov of 25 February 2024 is set aside.

118. The decision of the delegate of the President of the Personal Injury Commission of New South Wales of 19 June 2024 is set aside.

119. The matter is remitted to the President of the Personal Injury Commission of New South Wales to be dealt with in accordance with law.

120. The first defendant is to pay the plaintiff’s costs.

121. Otherwise, there is no order as to costs.

**********

Endnotes

In relation to the assessment of WPI as a result of psychiatric or psychological injury for the purposes of both the New South Wales workers’ compensation scheme and the New South Wales motor accident injuries compensation scheme, a system based on the “Psychiatric Impairment Rating Scale” or “PIRS” is used. The use of the PIRS in each scheme is governed by different Guidelines but there is a significant degree of commonality between the PIRS system used in each scheme. The considerations relevant to the assessment of the severity of impairment in respect of the "concentration, persistence and pace" area of function were in effect accepted as being substantially the same.

The status of guidelines such as the Motor Accident Guidelines was discussed in Ali v AAI Limited [2016] NSWCA 110 and also in Flanagan v Allianz Australia Insurance Ltd [2022] NSWSC 1374 at [35] – [41]; 102 MVR 203.

Adjustment for the effects of treatment is dealt with in cll 6.222-6.224 of the MA Guidelines but played no relevant part in the present proceedings.

Although Ballas v Department of Education concerned the application of the PIRS for the purposes of determining the WPI% under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) there is no reason to doubt that the general principles stated in that case also apply to the determination of the WPI% by application of the PIRS in accordance with the MA Guidelines.

The relevant portions are quoted above at [55(3)].

There was no “Evaluation” heading in the statement of reasons and, apart from the noting of the reports of Dr Argyle and Dr Kumar, there was no other mention of those reports in the reasons.

Amendments

07 July 2025

Blank Footnote 7 deleted.

24 September 2025

Typographical error corrected.