Allianz Australia Insurance Ltd v Salucci

Supreme Court of NSW|2023-12-07|Before: Schmidt AJ

JUDGMENT

Allianz was the insurer of a motor vehicle involved in an accident in which Mr Salucci was injured in May 2017. It seeks judicial review of a decision of a Review Panel constituted by the President of the Personal Injury Commission, to review an assessment of Mr Salucci's claim for compensation under the Motor Accidents Compensation Act 1999 (NSW)('MAC Act') conducted by an assessor, Dr Preston: s 69 Supreme Court Act 1970 (NSW).
Mr Salucci originally claimed that in the accident he had suffered injury to his mid back/thoracic spine, low back/lumbar spine and left hip. He later also pursued other claimed injuries. In September 2022 Dr Preston assessed him as only having suffered 5% whole person impairment, as the result of the injury to his low back/lumbar spine, having concluded that: "24. The following injuries WERE caused by the motor accident: Mid back/thoracic spine - soft tissue injury Low back/lumbar spine - aggravation of pre-existing degenerative change with non-verifiable radicular complaints left leg Left hip - aggravation of underlying osteoarthritis 25. The following injuries WERE NOT caused by the motor accident: Neck/cervical spine soft tissue injury Left leg - soft tissue injuries Left foot - soft tissue injuries Right elbow - soft tissue injuries Right hand - radiculopathy."
Mr Salucci sought a review of this assessment under s 63 of the MAC Act, with the result that he was examined again by two members of the Review Panel. It concluded that he had suffered 24% WPI as the result of the injuries to his thoracic spine, lumbar spine, left hip, cervical spine and right ulnar nerve.

Conclusion

For reasons which follow I am satisfied that relevant error has been established with the result that the orders Allianz sought must be made.

Applicable principles

There was no issue between the parties about the applicable principles.
The record includes the reasons given for the Review Panel's decision: s 69(4) Supreme Court Act 1970 (NSW) considered in Pham v NRMA Insurance Ltd [2014] NSWCA 22;(2014) 66 MVR 152 at [27] and Insurance Commission of Western Australia v Gargoura [2020] NSWSC 1786 at [44].
Constructive failure to exercise jurisdiction arises when the decision maker misunderstands the nature of the jurisdiction being exercised and thus applies a wrong test, misconceives the duty being exercised, fails to apply him or herself to the real question to be decided or misunderstands the opinion to be formed: Rodger v De Gelder (2015) 71 MVR 514 at [95].
Reasons given must disclose the decision maker's actual path of reasoning in sufficient detail to enable the court to see whether the opinion does or does not involve an error of law: Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480 [2013] HCA 43 at [55] applied in Frost v Kourouche [2014] NSWCA 39.
While gaps in reasons given may be filled by necessary inference, they cannot be filled by an assumption that a decision was made according to law: Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216 at [47]. If a gap may be filled by necessary inference, the obligation to give reasons may be discharged Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6].
The Panel's reasons must thus be read as a whole, applying the "beneficial construction" to which the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;(1996) 185 CLR 259 at 271-272.

The applicable statutory requirements

Medical disputes about claims made under the MAC Act could be referred for assessment by the President: s 60(1). That term is defined to mean "a disagreement or issue to which this Part applies": s 57. It is s 58 which specifies the type of disagreements which can be the subject of a referral. They include "whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%": s 58(1)(d).
This requires consideration of causation, s131 providing that "No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%: Motor Accidents Authority of New South Wales v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 at [59]-[61]. The result of such an assessment had to be expressed as a percentage and the assessment had to be made in accordance with the Motor Accidents Medical Guidelines issued for that purpose, or if there are no such guidelines in force - the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition: s 133(2).
Assessors to whom such medical disputes are referred must give a certificate as to the matters referred: s 61(1). It must set out the assessor's reasons for any finding as to any matter certified in the certificate in respect of which the certificate is conclusive evidence: s 61(9).
A matter may be referred for further assessment in specified circumstances: s 62(1). A party may also apply to the President for referral to a Review Panel: s 63(1). A review is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and must be conducted by way of a new assessment of all the matters with which the medical assessment is concerned: s 63(3A) considered in Frost v Kourouche (2014) 86 NSWLR 214 at [9].
The Motor Accident Permanent Impairment Guidelines are definitive with regard to the matters they address: cl 1.2 considered in Boyce v Allianz Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 at [18].
They regulate how causation of injury is to be assessed, that involving both a medical and non-medical decision: cl 1.5-1.7. Assessors thus have to be aware of relevant provisions of the AMA 4 Guides, as well as common law principles applied by courts: cl 1.5. A motor accident does not have to be the sole cause of an injury, being a contributing cause of an injury and associated impairment is sufficient, if it is more than negligible: cl 1.7.
"Impairment" is defined to mean an "alteration to a person's health status which is a deviation from normality on a body part or organ system and its functioning, that being a medical issue to be assessed by medical means: cl 1.9.
The guidelines also specify how an assessor must evaluate available evidence, in three specified stage: review and evaluation of specific types of available evidence, medico legal reports, diagnostic findings and other relevant evidence; interview and clinical examination; and preparation of the certificate, using specified methods, including referencing applicable parts of the guidelines and AMA 4 Guides: cl 1.18.
How injured people are to be placed into specified DRE, diagnosis related estimates, categories is also regulated: cl 1.124. Radiculopathy is regulated by cl 1.138. It is concerned with impairment caused by dysfunction of a spinal nerve root and requires the presence of two or more specified signs: cl 1.138. Complaints of pain or sensory features which cannot be verified by neurological findings do not by themselves constitute radiculopathy. They are described as "non-verifiable radicular complaints: cl 1.140.

The parties' cases

Allianz contended that the Review Panel had misconceived its statutory task, purporting only to determine the degree of Mr Salucci's permanent impairment of injury, without determining causation, as s 58 required.
That was submitted to have been the result of the Panel having been misled by what was decided in Wood v Insurance Australia Group Limited trading as NRMA Insurance [2022] NSWSC 1290, which had been heard without a contradictor and without reference to binding Court of Appeal authority. It had also misunderstood what was decided in Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236.
The parties' written submissions had established that causation was in issue. The Panel also misunderstood this, as well as its statutory obligations.
The result was that in its reasons the Panel made some limited observations about causation, but given what was in issue, they fell far short of a discharge of its statutory obligations. That was the result of it having wrongly taken the view that it could not assess causation and thus it failed to decide that issue, in accordance with the requirements of the applicable guidelines.
Assessor Preston had found that some of the injuries were causally related to the accident, but others were not. By its approach the Review Panel failed to conduct the required assessment of Mr Salucci's claimed impairments afresh, with the result jurisdictional error, as well as error on the face of the record.
By not appreciating that causation was a part of the medical dispute referred which it had to resolve, the Panel had fallen into error of the kind dealt with in Boyce at [54]-[56], the result a constructive failure to exercise jurisdiction.
Causation was regulated by the Motor Accident Permanent Impairment Guidelines, ss 5D and 5E of the Civil Liability Act 2002 (NSW) and common law principles. Failure to comply with those guidelines resulted in a constructive failure to exercise jurisdiction: Boyce at [16]-[22] and [44].
Because of its apparent misunderstanding, the Panel thus failed to make findings in relation to causation that the guidelines required in relation to the neck/cervical spine, right elbow and left hip. It also failed to adhere to cl 1.31 of the guidelines, which required consideration to be given to pre-accident WPI.
It also failed to apply Guideline 1.138 to the assessment of the lumbar spine and the question of radiculopathy, which was a critical matter about which the parties were also in dispute. That had to be approached in the way discussed in Richardson bht Richardson v QBE Insurance (Australia) Ltd [2020] NSWSC 366 at [64] in relation to a similarly worded clause. This was important because the difference in WPI in issue was between 5% and 15%.
But the Panel did not refer at all to this guideline in its reasons. The result of its approach was also a constructive failure to exercise jurisdiction and error of law on the face of the record.
The reasons given were also inadequate, not disclosing the Panel's path of reasoning as they needed to, in relation to causation and the conclusions reached about the right elbow. That required consideration of whether a non-accident cause was the most likely cause of injury.
For Mr Salucci, these errors were disputed and the relief sought opposed.
He contended that the Review Panel's reasons, fairly read, established that it had conducted its assessment in accordance with the requirements of the Act and applicable guidelines, despite its misunderstanding of Brown and having followed Woods, which it was accepted had not been decided in accordance with binding Court of Appeal authority. The result was that it had not fallen into the claimed errors, nor failed to exercise its powers or give required reasons.
They disclosed that it had resolved the causation controversies and provided the required explanations for its conclusions, having directed itself to that issue and decided it. They also established that it had not misunderstood the factual basis for its determination, its reasons also disclosing in the necessary way, the path of reasoning which had led to its conclusions, having addressed the mechanism of injury and thus causation.
In reply it was accepted that the Panel had made some reference to causation, but it was still contended that the reasons disclosed significant gaps, particularly with respect to the cervical spine and elbow injuries. The result was that causation had not been determined according to law. In any event the reasons revealed that the Panel had misunderstood Brown and wrongly followed Wood, having been led into error by the submissions which were accepted.
The issue was whether the Panel had applied the applicable guidelines in relation to causation, which could not be accepted, on its given reasons.

Dr Preston's assessment

The referral to the assessor was not in evidence. But Dr Preston noted that there was a dispute about the degree of permanent impairment under s 58(1)(d). It was the extent of the claimed injuries, the insurer submitting that they did not give rise to impairment in excess of 10%, due to issues about causation and pre-existing conditions, which were in issue.
Dr Preston identified the permanent impairment dispute to be assessed by reference to the claimed injured body parts, confirming her observations about the submissions to Mr Salucci claiming his impairment was above 10% and the insurer that it was below.
She then said she had considered the documents provided and turned to her reasons, noting that Mr Salucci had attended unaccompanied. She explained the history Mr Salucci had given about his pre-accident details, the accident and his post accident symptoms, as well as his then current symptoms and current and proposed treatment and her findings on clinical examination.
Dr Preston then reviewed documents she had considered and summarised relevant imaging. She then turned to her diagnosis and reasons, reaching the conclusions about causation earlier quoted.
Dr Preston then turned to her assessment of permanent impairment, concluding that there was 5% impairment as the result of injury to the lumbar spine and one for the thoracic spine or left hip. She explained: "Mr. Salucci is assessed as having a DRE1 thoracolumbar spine impairment in that he has no significant clinical findings, no documentable or observed spasm or guarding, no documentable neurological impairment and no significant loss of structural integrity on imaging. He does not have dysmetria which would place him in a higher impairment category. Mr. Salucci is assessed as having a DRE2 lumbosacral impairment on the basis of non-verifiable radicular complaints in his left leg. He does not have objective signs of radiculopathy or loss of structural integrity which would place him in a higher impairment category. Mr. Salucci is assessed as having a 0% whole person impairment related to the left hip. His symptoms are considered to be due to an aggravation of underlying arthritis in the joint. He has a normal cartilage interval of 4 mm on review of the films. As such his impairment is assessed as 0% using table 62, page 83, chapter 3 of the AMA4 guides."

The challenged decision

Mr Salucci pursued his review successfully.
The Panel gave reasons for its conclusion that Mr Salucci had suffered 24% WPI as the result of: "• Neck/cervical spine- soft tissue injury, musculoligamentous injury; • Mid back/thoracic spine - soft tissue injury; • Low back/lumbar spine - L5/S1 radiculopathy; • Left hip - aggravation/acceleration of congenital dysplasia; • Right elbow - ulnar nerve neuropathy, sensory deficit;"
The Panel began with an explanation of the legislative scheme, noting that s 7.26(6) of the Motor Accident Injuries Act 2017 (NSW) required it to conduct the review by way of new assessment. It had directed Mr Salucci to attend a re-examination conducted by Medical Assessors Dr Moloney and Dr Stubbs, who later provided a report to the Panel which was not confined to the re-examination.
It noted that Assessor Preston, who had been directed by the Commission to assess Mr Salucci's injuries in accordance with s 58(1)(d) of the MAC Act, had concluded that he had suffered 5% WPI. The President's delegate had referred the matter for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The Panel then turned to Dr Moloney and Dr Stubbs' re-examination report. What it dealt with included:

Mr Salucci's pre-accident history, which had included a 1996 motor vehicle accident which had been assessed as having caused him 20% WPI due to a cervical injury;
the 2017 motor vehicle accident, when a car had failed to give way, a collision to the passenger side resulting, which did not result in a collision with the left side of his body, but he hit his right elbow and the right side of his head;
his symptoms after the accident including pain in the left hip, lower back, mid thoracic and right elbow;
the treatment he had received;
his current symptoms, including the pain he was still experiencing, including pain in his left leg, lower back, right elbow, left hip and pins and needles radiating down his left shin to his left foot and resulting poor balance;
his present medication;
what clinical examination of his cervical spine, right elbow, lumbar spine and hips had shown; and
what imaging studies had shown.

The mechanism of injury was explained to be: "46. The motor vehicle accident had two components. First, there was a T-bone accident to the left side of his vehicle. He notes that he struck the transmission tunnel/gearshift. This is as anticipated from the first component of the motor vehicle accident, as he was stationary in respect to the car but on impact the car shifts to the right and his inertia caused direct contact with structures to his left side, particularly his flexed left hip. There is thus a direct blow to the left side of the hip caused by the motor vehicle accident and acceleration/aggravation of any previously noted early osteoarthritis may be a consequence. 47. The second component occurred when his vehicle mounted the median strip. In this case the vehicle jumped vertically. He reported direct contact with his flexed right elbow against the armrest on the driver door. This too is very plausible, and a direct injury to the medial side of the flexed right elbow (ulnar nerve) is therefore likely."
They concluded that the impairment assessment required four injuries to be considered: Mr Salucci's hip, L5 radiculopathy, cervical spine and right arm. They explained: "48. There are thus four injuries to consider: 49. Aggravation/acceleration of the congenital dysplasia of the left hip. The motor vehicle accident makes a material contribution. There is no deduction for pre-existing condition because this was asymptomatic prior to the motor vehicle accident - 2% WPI. 50. L5 radiculopathy - though there is a mixture of congenital and degenerative spinal stenosis symptoms begin with the motor vehicle accident, there is a plausible mechanism of injury and the motor vehicle accident makes a material contribution. - 15% WPI. 51. The situation in the cervical spine and right arm is more complex. The dermatomal mapping the sensory disturbance is much more widespread than a simple radiculopathy. It best follows the ulnar nerve distribution - C8/T1, anaesthesia on the ulnar border of the forearm and the ring and small fingers with some wasting of the small muscles of the hand and a positive nerve tension signs on palpation of the ulnar nerve just proximal to the elbow (Tinel's sign). There is also anaesthesia in the index and middle fingers - this normally has a C6/7 distribution but it is noted that the thumb sensation (also C6) and muscles are spared. Carpal tunnel compression tests are negative so there is no median nerve compression. One possible explanation is the normal variation in formation of peripheral nerves. This may be in the spinal canal before the nerve root is formed from the sometimes variable number of sensory nerve rootlets that bundle within the epidural sheath to form the nerve roots, variations in how the nerve roots bundle and divide into trunks in the brachial plexus, variation in how the trunks contribute to the peripheral nerves and finally occasional communicating branches from the ulnar nerve to the median nerve in the forearm. The sensory and motor contribution of the median and ulnar nerves is variable (medial or ulnar dominance), and whilst ulnar dominance is uncommon it is not rare. This seems the best explanation for the clinical findings. The dermatomal map C6 in the right upper limb shows sparing of large components of C6, the radial side of the forearm and the thumb. 52. Impairment calculations for the cervical spine are therefore DRE 2, 5% WPI, due to the presence of dysmetria but not DRE3 as there is no true radiculopathy. 53. Impairment calculations for the ulnar nerve consist of the potential sensory loss of the ulnar nerve above the mid forearm, maximum 7% UEI plus what would normally be the radial and ulnar palmar branch contributions to the ring as per table 15, and middle finger and the radial side of the ring finger. Combined 20% upper extremity impairment as per table 15. Modified by table 11 clinical grade 3, (50%.) Plus 46% upper extremity impairment for motor deficit table 15 modified by table 11 clinical grade 4 (25%) - the calculation then becomes 10% UEI +11% combined 19% UEI which table 3 translates to 11% WPI. 54. Table 15 ulnar n.(above midforearm) sensory deficit is 7 % UEI . Using table 11a grade 3 which is 60 %of 7 % = 4.2 % and rounded down to 4 % UEI. The motor component is assessed using table 12 to be grade 5 which is 0 %. The rule is to use the highest level for each grade in accordance with the Procedure mandated in table 11b. 55. Body Part or System AMA4 Guides/Guidelines References (chapter/page/table) Permanent Current %WPI* %WPI* due to motor accident (YES/NO) %WPI From pre-existing OR subsequent causes 1 Thoracic spine Chapter 3 Yes 0% 0% 0% 2 Lumbar spine Chapter 3 Yes 15% 0% 15% table 72 3 Left hip Chapter 3 Yes 2% 0% 2% table 40

Reasons were then given: "57. As there was no challenge by the parties to Assessor Preston's finding of 0% whole person impairment of the claimant's thoracic spine, there was no re-examination of the claimant's thoracic spine, and the Panel confirms the 0% whole person impairment finding. 58. Although injuries to the claimant's left leg, left foot and right hand were referred for assessment to Assessor Dr Preston, the Panel notes that no Frank injuries to these body parts were caused by the accident. The symptoms noted in the left leg and left foot are a result of the injury of the claimant's lumbar spine, and have been assessed as part of that injury. The symptoms of the right hand result from the injury to the ulnar nerve, and have been assessed as part of that injury. 59. The insurer's submissions of 14 November 2022 (insurer's bundle pages 1 - 8) dismiss a number of the claimant's criticisms of the Certificate of Assessor Preston on the basis that the Assessor found that the injuries to the claimant's neck/cervical spine, left leg, left foot, right elbow and right hand were not caused by the motor vehicle accident. 60. However, the insurer did not engage with the submissions made by the counsel for the claimant (claimant's bundle page 114 at paragraph 14) based upon the principles in Insurance Australia Ltd Trading as NRMA Insurance v Brown [2019] NSWSC 1236 at [77]. Button J there found that where the causation of a referred injury was not explicitly or implicitly in dispute, that there was no ability of a Panel to agitate this issue. 61. Wright J's comments at [65] of Wood v Insurance Australia Group Ltd trading as NRMA Insurance [2022] NSWSC 1290 made it clear that a Medical Assessor has no ability to determine 'that the relevant injury was not caused by the motor accident when that issue was not referred to him for assessment.' 62. In relation to the insurer's submissions concerning the lack of a deduction in respect of the claimant's 1996 injury to his neck, the Panel agrees with claimant's counsel's submissions at paragraph 15 (page 114 - 115 of the claimant's bundle) that clause 6.31 of the Permanent Impairment Guidelines directs that the unless there is objective evidence of pre-existing symptomatic permanent impairment, its possible presence should be ignored. 63. In the present matter, the claimant's treating general practitioner's clinical notes reveals no consultations or treatment for his neck from at least 2011 until the time of the motor vehicle accident. 64. Accordingly, the Panel finds that can be no deduction from the impairment found in the claimant's cervical spine on the basis of his 1996 injury. 65. The Review Panel accordingly agrees with and adopts the findings and conclusions of Assessors Dr Moloney and Dr Stubbs."
The result was assessor Preston's certificate was revoked and a new certificate issued.

The Review Panel erred

I am satisfied that the Panel's reasons establish that it misconceived the statutory task which fell to it, with the result jurisdictional error, apparent on the face of the record.
The result of its approach was to fail to respond to substantial, clearly articulated arguments advanced on established facts, with the further result, a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [23] and [88].
That is because there was no issue that causation was a live issue in this case which assessor Preston had considered and resolved, for the reasons she gave. The Panel was obliged to undertake that assessment afresh, given the cases the parties had advanced.
That required it to consider not only Mr Salucci's history, which included that he had been injured in an earlier motor vehicle accident, in which he had suffered injuries which had resulted in an assessment of impairment of 21%. But that his original claim in respect to the 2017 accident was confined to claimed injuries to his leg, lower and middle back. It also had to consider the insurer's reliance on this history and complaints about his other claimed injuries not having been made until years after the accident, to advance its case on causation.
In the reasons assessor Pressor gave she referred in the history section to Mr Salucci's previous debilitating whiplash injury, the 1999 assessment, as well as his symptoms after the 2017 accident.
Dr Preston's conclusions are earlier quoted. She did not find that all of Mr Salucci's injuries were caused by the accident and assessed the permanent impairment resulting from those that she concluded were. In the case of Mr Salucci's thoracic spine injury, 0%, from his lumbar spine injury, 5% and his left hip injury 0%, with a resulting overall WPI of 5%.
Mr Salucci's application for review and his supporting submissions raised the assessor's alleged failure to comply with the applicable guidelines "with particular reference to the issue of causation" relying on Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351 at [119]-[127]. There Hall J discussed the common law principle of causation and how it is picked up by the statutory formulation, the error there identified having been the failure to recognise that an injury may have a proximate cause and that in order for there to be a causal relationship between an accident and impairment, there need not be a primary and related injury to a particular body part.
Mr Salucci's submissions challenged the assessor's conclusions about causation, relying on the permanent impairment guidelines, which required consideration to be given to pre-existing impairment, providing that "If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored": cl 6.31
The insurer's case was that assessor Preston had engaged in impermissible speculation in the conclusions reached about post-accident cervical and upper limb impairments, that resulting in erroneous conclusions on causation.
There can thus be no question that on the Panel's review, causation remained a live issue which it had to consider and resolve.
Instead the Panel did not consider that this was a matter for it to consider or determine, given the view it took of what had been decided in Wood and Brown. What it explained about its views, contrary to Mr Salucci's case that it did give necessary consideration to causation, that it had misunderstood what was decided in Brown and that it did not appreciate that Wood, was contrary to binding Court of Appeal authority, must be accepted.
In Brown at [77] Button J summarised his earlier detailed analysis to be that "the question of causation of the LSS injury was not in dispute, explicitly or implicitly, by the parties prior to the provision of reasons by the Panel; the Panel was deciding nothing about that particular question that was different from what the assessor had undisputedly decided; no evidence placed before the Panel raised an alternative hypothesis about causation of that particular injury that rose above mere speculation; and the reasons of the Panel were sufficient with regard to its attribution of causation for the LSS injury to the accident in any event."
What Mr Salucci relied on were the reasons given at [65], which it was argued indicated that the Panel had agreed with and adopted the findings and conclusions of assessors Moloney and Stubbs, their report not being confined to a report of what their re-examination of Mr Salucci had revealed.
The report was not in evidence. But from the way that the Panel's reasons are structured, it appears that it quoted from the report from paragraphs [15] to [56] of its reasons. What lay in issue about causation was not, however, resolved by anything there said.
It should be observed that the course the Panel pursued does not immediately appear to be a process contemplated by the statutory scheme or the guidelines. Section 63(3) now permits a medical re-examination of a claimant by only some members of the Panel. But it does not envisage the entire assessment being undertaken by only some of its members and their report later being considered by others.
As explained in Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 at [33], the Panel's task requires that it exercise its collective judgment as to the assessment of the respondent's impairment.
Given the way in which the Panel structured its reasons, while it did not say so, it may be that it also concluded when it first met that not only should two of its members, those who were medically qualified, re-examine Mr Salucci, but that they would deal in their report both with the results of their re-examination and the matters which were in issue between the parties on the review, approaching them in the way explained at [60] and [61] of the reasons later given.
That accords with the Panel adopting that report after it was provided, as indicated at [65], and earlier, setting it out before the short reasons given for its adoption.
Whether this was a process which the legislative scheme contemplated that a Panel could pursue when it conducted Mr Salucci's assessment afresh, does not arise for determination in these proceedings, given the issues lying between the parties. But the approach which was adopted does help explain the errors into which the Panel fell.
Causation is a matter of law which Panel members must all understand, as the guidelines require, given what was in dispute, that is, "whether the degree of permanent impairment Mr Salucci suffered as a result of the injuries caused by the motor accident was greater than 10%": s 58(1)(d).
Despite what was urged for Mr Salucci, I am satisfied that what the Panel deliberately explained at [60] and [61], an approach with which the two medical assessor's report accords, does not permit the conclusion that the Panel did not act in accordance with its so expressed view. Namely, refraining from dealing with the causation issues which the parties had addressed in their submissions, because it considered that it had "no ability" to determine that the relevant injury was not caused by the motor accident.
Not only did it have that ability, as s 58 required and Mills explained, the guidelines dealt in detail with how that exercise had to be undertaken. But no reference was made to such considerations.
It appears that like Wright J in Wood, the Panel's attention was not drawn to relevant binding authority.
Wood concerned an application for review of the decision of a proper officer refusing an application to refer an assessment for review, not being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. There Wight J had to consider the requirements of the statutory scheme, observing at [50]: "50 The wording of s 61(1) is a little confusing as it describes, consistently with s 60(1), the thing which is referred for assessment as a "medical dispute" but it also states that a certificate is to be given "as to the matters [rather than the medical dispute] referred for assessment". The expression "medical dispute" is defined in s 57 as meaning "a disagreement or issue to which this Part applies" and s 58(1) describes the relevant types of "disagreement" and s 58(2) describes the relevant types of "issue". Taking into account this context, the expression "the matters referred for assessment" in s 61(1) should be construed as referring to the particular disagreement about, or issue arising about, one of the matters set out in s 58(1)(a), (b) or (d), which constitutes the relevant medical dispute referred for assessment under s 60(1). In other words, what is referred for assessment and what is required under s 61(1) to be the subject of a certificate is not the general matter of the type referred to in s 58(1)(a), (b) or (d) but rather is the specific disagreement or issue concerning such a matter in the particular case. Accordingly, if there is no dispute between the parties as to whether certain injuries were caused by a motor accident but there is a dispute as to whether the degree of impairment as a result of those injuries is greater than 10%, the medical assessor is only required to give a certificate as to whether the degree of impairment is greater than 10% and not as to causation."
But in Mills it had already been decided that "Assessment of degree of permanent impairment without regard to causation from the motor accident was not relevant to determining whether the threshold in s 131 was reached, and would depart from the description of the matter in s 58(1)(d). A medical assessment of degree of permanent impairment without regard to causation from the motor accident had no statutory basis or function.": at [61].
It follows that contrary to the Panel's view, it was not bound to refrain from considering and resolving what lay in issue between the parties about causation. That had to be considered and resolved in accordance with the applicable guidelines and reasons had to be given for the conclusions reached about the resolution of that issue.
The practical result of its misunderstanding of the law which [60] and [61] of its reasons revealed, was thus that the Review Panel failed to respond to substantial, clearly articulated arguments advanced about established facts, with the result that a constructive failure to exercise jurisdiction also resulted.
Section s 58(1)(d) being concerned as it is with not only the question of the degree of permanent impairment which resulted from Mr Salucci's injuries, but also whether they were caused by the accident, even in a case where the parties are not in dispute about causation, it has to be considered in the assessment, as was actually also explained in Brown.
In such a case, if there is no dispute between the parties about causation and the assessor or Panel agrees, consistently with the nature of the reasons which must be given, but little explanation of the reasons for the conclusions reached about causation will need be given, to meet the obligation to give adequate reasons.
But when there are live issues about causation pursued by the parties, they have to be considered and resolved, whether on assessment of the dispute or review. This the Panel failed to do, having misunderstood the law as it did.
Even if that conclusion were incorrect and the Panel did attempt to resolve the causation issues, the result of the reasons which it gave must be the conclusion that it failed to give the required reasons, to which I will return.
In this case the issue of causation was squarely addressed in submissions before the assessor and the Review Panel. On the review that question did have to be addressed in accordance with the applicable guidelines, which as Button J also observed in Brown at [76] provide a complex, prescriptive mechanism as to how both an assessor and a panel are to determine a question of causation.
Because of the erroneous view which the Panel reached about the resolution of what lay in issue about causation, in the reasons it did not deal with either the submissions advanced, nor with what the applicable guidelines required.
The result was legal error about matters which might have resulted in a different outcome, had they been considered and determined as they needed to be.
On what had been advanced the answer to the causation questions did not lie in views such as that taken in relation to Mr Salucci's neck, where the Panel having observed that there had been no objective evidence of pre-existing symptomatic permanent impairment, given that the general practitioner's notes revealed that there had been no consultations or treatment for the neck from at least 2011.
Mr Salucci had been assessed as having suffered 21% WPI for the injury he had earlier suffered to his neck. This was objective evidence of a relevant pre-existing symptomatic permanent impairment which thus had to be considered, as did the condition of his neck immediately before and after the accident and the time and circumstances in which he first pursued problems with his neck, only years after the 2017 accident.
In the result I am satisfied that relevant legal error has been established which warrants the exercise of the Court's discretion to make the orders sought.

Inadequate reasons

That the reasons given were inadequate must also be accepted.
Under the guidelines causation required consideration of whether what was claimed could have caused or contributed to the occurrence or worsening of a medical condition. That required both medical and non-medical questions to be considered, as the guidelines explain: cl 1.6 That also explains the importance of the Panel as a whole engaging in the review process.
The guidelines also required that consideration be given to whether an injury or impairment would have occurred, if not for the accident: cl 1.7. Because of the view it took about causation, the Panel either did not consider this or if it did, it did not explain its conclusions in the reasons given. Simply forming the view that there was an impairment following the accident, did not accord with this requirement.
Consideration also had to be given to whether a particular impairment arose from an injury caused by the accident: cl 1.17. That Guideline required on assessment, both a review and evaluation not only of the results of the re-examination, but also of relevant medical evidence and medico legal reports: cl 1.18. But the Panel, unlike Dr Preston, made no reference at all to these documents, nor did it explain how they helped drive its conclusions.
Merely indicating what it had before it to consider, without explaining the path of reasoning which led it to the conclusions it reached about all it had to consider, also did not satisfy the Panel's obligation to give reasons for its decision.
Nor did the reasons indicate that the guidelines which applied to DRE findings and radiculopathy had been considered, or what conclusion their consideration had led to.
This was important because the result of a conclusion that DRE 2, rather than DRE 3 was that the appropriate category, resulted in WPI of 5%, rather than 15%. What was explained was: "52. Impairment calculations for the cervical spine are therefore DRE 2, 5% WPI, due to the presence of dysmetria but not DRE3 as there is no true radiculopathy."
In the case of radiculopathy at least two of the signs in the guidelines had to be found to be present: cl 1.138. Similarly worded guidelines were considered in Richardson bht Richardson v QBE Insurance (Australia) Ltd [2020] NSWSC 366 at [64] to be mandatory, applying Boyce. One sign, positive sciatic nerve root tension was found by the Panel at [38].
It was argued for Mr Salucci that a second, muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, had also been found. What was relied on to establish this, with my emphasis was: "45. … Clinically he has an L5 radiculopathy on the left. This could be due to lateral foraminal stenosis at L5/S1 though this particular foramina does not seem to be particularly more affected than any of the others. As with the cervical spine there is lateral flexion combined with compression. A traction injury the L5 nerve root is possible. It is also noted that he suffered a distinct recurrence of the L5 radiculopathy when exercising at the gym with the intention of strengthening his week left leg that followed the motor vehicle accident."
The guidelines also provided as to "weakness and loss of sensation" that: "To be valid, the sensory findings must be in a strict anatomic distribution, i.e. follow dermatomal patterns. Motor findings should also be consistent with the affected nerve structure(s). Significant longstanding weakness is usually accompanied by atrophy."
There was no reference to such requirements, nor any explanation of what conclusions the Panel reached about them.
That these applicable requirements of the guidelines were considered is not an inference readily to be drawn from the Panel's reasons, without impermissibly attempting to fill in gaps in its reasoning.
Clearly its statement of reasons should not have left important matters to inference, given that only short reasons were required to be given. I am satisfied that even reading the Panel's reasons as a whole and applying the "beneficial construction" discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-272, does not permit the conclusion that it considered these requirements, let alone that it discharged its obligation to disclose its path of reasoning for the conclusions which it reached.
The way in which other reasons given were expressed, also explains why it must be concluded that the obligation to explain the path of reasoning which led to the conclusions arrived at, was otherwise not met. It was said, for example: "51. The situation in the cervical spine and right arm is more complex. The dermatomal mapping the sensory disturbance is much more widespread than a simple radiculopathy. It best follows the ulnar nerve distribution - C8/T1, anaesthesia on the ulnar border of the forearm and the ring and small fingers with some wasting of the small muscles of the hand and a positive nerve tension signs on palpation of the ulnar nerve just proximal to the elbow (Tinel's sign). There is also anaesthesia in the index and middle fingers - this normally has a C6/7 distribution but it is noted that the thumb sensation (also C6) and muscles are spared. Carpal tunnel compression tests are negative so there is no median nerve compression. One possible explanation is the normal variation in formation of peripheral nerves. This may be in the spinal canal before the nerve root is formed from the sometimes variable number of sensory nerve rootlets that bundle within the epidural sheath to form the nerve roots, variations in how the nerve roots bundle and divide into trunks in the brachial plexus, variation in how the trunks contribute to the peripheral nerves and finally occasional communicating branches from the ulnar nerve to the median nerve in the forearm. The sensory and motor contribution of the median and ulnar nerves is variable (medial or ulnar dominance), and whilst ulnar dominance is uncommon it is not rare. This seems the best explanation for the clinical findings. The dermatomal map C6 in the right upper limb shows sparing of large components of C6, the radial side of the forearm and the thumb. 52. Impairment calculations for the cervical spine are therefore DRE 2, 5% WPI, due to the presence of dysmetria but not DRE3 as there is no true radiculopathy."
The explanation advanced for Mr Salucci in oral submissions as to what was intended by what was said at [51] was to give an explanation as to "why, in the face of the mechanism of injury, which they say led to the direct impact on the flex drive elbow, and that it's a plausible direct injury to the ulnar nerve, they're saying why the distribution, while more widespread than normal, is still consistent with that and, they exclude two possibilities, one being the median nerve and the other being the congenital condition": Tcpt, 7 December 2023, p 30.
I am not satisfied that this can be accepted or that what the Panel explained met its obligation to expose its path of reasoning. Indeed, its conclusion is difficult to discern. Another way, logically, to read what the Panel said at [51] is that it was the formation of Mr Salucci's nerves, with ulnar rather than median eminence, which explains the sensory disturbance the Panel discussed.
But how it was that the Panel concluded that this disturbance was an impairment caused by the accident, is simply not revealed, as it had to be by these reasons. That is consistent with the Panel's incorrect view that it did not have to resolve the causation issue. Nor did the Panel adequately explain its final conclusion, that the correct category was DRE2, rather than DRE3.
In the result it must be concluded that the Panel also fall into legal error in respect of this aspect of the appeal, as well as failing to give the required reasons for its decision.
I am thus satisfied that the orders sought all have to be made.

Costs

Under the Uniform Civil Procedure Rules 2005 (NSW) costs usually follow the event: r 42.1There was no issue between the parties that the usual order would be made. In this case that is an order that Mr Salucci pay Allianz's costs, as agreed or assessed.

Orders

For these reasons I order that: 1. The Appeal Panel's decision is quashed. 2. The matter is remitted to the President to be dealt with according to law. 3. Mr Salucci is to pay Allianz's costs as agreed and assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2023

Under the Uniform Civil Procedure Rules 2005(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (23)

Cited By (3)