Alavanja v NRMA Insurance Ltd

Alavanja v NRMA Insurance Ltd - [2010] NSWSC 1182 - NSWSC 2010 case summary — Zoe

[12]

62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the member of staff designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority ). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency. 7 The application for a further assessment was made on the basis of the provision of what the Plaintiff alleges was "additional relevant information" about the injury. 8 It was not disputed that the material which the Plaintiff submitted with the 2 subsequent applications constituted relevant information about the injury. It is to be noted that sub-s (1A) makes it necessary, not only that there be additional relevant information, but that the additional information "is such as to be capable of having a material effect on the outcome of the previous assessment". The Defendant did not dispute that, if the report of Dr Matalani was additional relevant information, it would be capable of having a material effect on the outcome of the previous assessment. The Defendant did submit, however, that if the factual evidence contained in the statements of the Plaintiff and members of her family was regarded as additional, it would not be capable of having material effect on the outcome of the previous assessment. 9 The primary issue in the proceedings was whether the information was "additional" within the meaning of s 62. 10 Rothman J had occasion to consider what was meant by the word "additional" in Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056. He said: [38] The proper construction of the term in s 62(1) of the Act is a question of law. The determination, whether, in any particular case, the information is "additional", or, whether, in another case, the material is "information", will be a question of fact. The term "additional information" about the injury does not include a restatement of information already received. Nor does it include a summary of information already received. It does include new information about an injury, even though it does not describe the injury or some other feature of the injury. An expert medical opinion as to the cause of injury is relevant evidence and is "about the injury". Further, to the extent that an opinion has not previously been expressed (by any expert) it results in the opinion being "additional information" not previously considered. In those circumstances, an opinion expressed by a medical expert, in circumstances where the Assessor had not previously received expert opinion of that kind , would be "additional relevant information about the injury". Such an opinion would satisfy one of the pre-conditions prescribed in s 62(1)(a) of the Act.

[21]

EXAMINATION On examination of her cervical spine, she is unable to put her chin on her chest, left and right lateral rotation are reduced by 50% with pain at the extremes. On examination of her right shoulder, she could forward flex to 90 degrees, abduct to 90 degrees, extension of the right shoulder is equivalent to the left shoulder. Adduction of the right shoulder is equivalent to the left shoulder. Internal and external rotation are equivalent bilaterally. On examination of her thoracic spine, she has pain on rotation of the thoracic spine and tenderness in the mid thoracic area. INVESTIGATIONS 3l st January, 2007 M.R.I. Thoracic Spine Moderate sized left posterolateral disc protrusion at T6/T7 causing mild displacement and impression of the thoracic spinal cord. Smaller left posterolateral disc protrusion at T7/T8 with minimal encroachment on the thoracic spinal cord. OPINION & PROGNOSIS It is my opinion this lady's injuries are consistent with the accident described. She seems to have disc lesions in the cervical spine and in the mid thoracic spine and she also has some right rotator cuff disease with restriction of movement. I consider these to be consequent upon the accident. (emphasis added) 18 Dr Giblin assessed her as having 5% impairment of the whole person in respect of the cervical spine, 5% impairment of the whole person in respect of the thoracic spine, and overall 15% impairment of the whole person taking into account the impairment of the upper limb. 19 The Assessor also had a report prepared on behalf of the Insurer by Dr Richard Sekel of 3 May 2007. He described the history of the accident in this way: 9/4/06, Motor Vehicle Accident On 9/4/06 during Mrs Alavanja's private time (sic), she was the front seat passenger in a car being driven by her husband. The car had been stationary at an intersection, but her husband started to slowly drive the car to turn right, when another car approached their car from the opposite direction in a suburban area (presumably maximum 60 kph). The front of Mrs Alavanja's car sideswiped the offside surface of the other car as it drove past, but their car did not strike any other object or roll. Mrs Alavanja states that no part of her body struck the inside of the car cabin. The car was not fitted with airbags.

[44]

Was the material "additional"? 31 Ms Nolan of counsel who appeared for the Plaintiff submitted, picking up the words of Rothman J in para [38] of Garcia, that what was contained in the Plaintiff's statement and the report of Dr Matalani was not information of the kind that had been provided to Dr Menogue. She pointed to the detail in the report of Dr Matalani which she said provided appropriate reasons for his opinion that the injuries to the 3 body parts were caused by the accident. She accepts that there were expressions of diagnosis and causation in those doctors' reports that were given to the Assessor but she said none was as comprehensive as Dr Matalani's report. She submitted that the doctors' reports did not go into the factual matters which are necessary in order to make a meaningful finding as to causation in accordance with what the High Court found in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. She described Dr Giblin as having expressed a bare ipse dixit. 32 By way of analogy with the requirements laid down in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Ms Nolan submitted that Dr Matalani's report was the only report that properly complied with that decision and, accordingly, there was no medical opinion "of that kind" before the Assessor. 33 I do not think the analogy with Makita is at all helpful. Nor do I think it is sufficient to focus on the words "of that kind" in Rothman J's judgment. First, a judgment is not a statute whose words are being interpreted. Secondly, it is necessary to read the whole of that paragraph together with, at least, the highlighted passages in paras [40] and [41] to understand what his Honour was saying about the requirement of additional information. 34 With respect, I agree with what his Honour has said in those paragraphs. I understand him not to be saying that any further opinion of an expert would be additional relevant information. Rather, if no expert has already expressed an opinion about a particular aspect of the matter then it would be additional. 35 It seems to me that if material before the Assessor has expressed an opinion that particular injuries were caused by the accident, the fact that another expert says the same thing but using different or greater analysis will not mean the information is additional. This is because there was an opinion to that effect before the Assessor which, on the face of the Assessor's report, was considered. If the opinion has been expressed, as here, that particular injuries are related to the accident, the precise way the doctor explains why he thinks that that is so, cannot amount to additional relevant information. The important matter is the opinion about causation. 36 In my opinion, the reports of Dr Todorovic and Dr Giblin express opinions, whether by inference or expressly, concerning the causation of injuries to the 3 body parts in the accident. Ms Nolan submitted, particularly in relation to Dr Giblin, that his reasoning and analysis was not set out. However, a summary of his report is relevantly this: (a) The Plaintiff was a front seat passenger with a seatbelt and headrest in a car that was hit from the front; (b) since the accident she had neck pain, upper thoracic pain, pain in the right trapezius and right shoulder region;

[47]

It is hard to see what else, in substance, Dr Giblin could have said to express a view about causation. Even if, as Ms Nolan submits, it is appropriate to apply analogously the principles from Makita to the issue being determined, Dr Giblin's report complied with the requirements of Makita . 37 If one looks at what Dr Matalani is saying in the passage set out in para [21] above, the majority of his reasoning concerns why she may not have noticed a shoulder injury at the time of the accident because of the immediacy and severity of the neck and upper back pain. This analysis was put forward by Dr Matalani to justify his opinion that the shoulder injury was caused by the accident. However, the material before the Assessor from Dr Todorovic and Dr Giblin did not doubt that the shoulder injury was caused by the accident. 38 Further, whilst it is true that Dr Matalani assessed 8% whole person impairment for the right shoulder, that of itself cannot amount to additional relevant information. Rather, it is simply a different opinion about the same matter. In that regard, it is to be noted that he came to the same assessment of the neck injury as Dr Giblin but, on the other hand, assessed 0% whole person impairment for the thoracic spine. Mere differences of opinion and differing assessments of whole person impairment are not, without more, additional relevant information. 39 There is nothing else in Dr Matalani's report which provides additional relevant information. It covers the same ground as the material that was before the Assessor, albeit, it was expressed at greater length. 40 I do not consider that the material contained in the statements of the Plaintiff and members of her family constitutes additional relevant information. Although there may be greater detail about the circumstances of the accident and its sequelae in terms of injury and disability, the information to that effect was before the Assessor, not only because of what was contained in the reports of Drs Todorovic, Giblin and Sekel but because the Assessor also took a history from the Plaintiff. It is apparent from the reports of Drs Todorovic and Giblin in particular that they utilised the information about the accident and its sequelae in reaching the views they did about consistency with, and causation by, the accident with regard to the injuries complained of. 41 Further, because the doctors used the information provided to them by the Plaintiff about the accident and her injuries and disabilities in reaching their opinions, I could not be satisfied, even if the information is accepted as additional, that it is capable of having a material effect on the outcome of the previous assessment. 42 Ms Nolan drew my attention to the opening words of s 62(1) that enabled further references to be made on "one or more further occasions". For that reason, and in any event, it was submitted that a liberal interpretation needs to be given to what is meant by additional relevant information. It was submitted that the legislature contemplated that there would be applications for reassessment on more than one occasion.

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