Balde v AAI Ltd t/as GIO

The Act

1. Section 44 of the Act relevantly provides: "44 Medical Guidelines of Authority (1) The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following: … (c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident, (d) the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4. …"
2. Part 3.4 of the Act provides for medical assessments. The term "medical assessment matters" is defined by s 57 as being any of the matters referred to in s 58. Of present relevance, s 58(1) provides in part: "58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as "medical assessment matters"): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, … (d) 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%. …"
3. Section 61, which provides for medical assessments, requires a medical assessor or panel to give a certificate as to the matters referred for assessment and the reasons, which is to be conclusive.
4. Section 63, which provides for review of medical assessments, relevantly provides: "63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. … (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. … (6) Section 61 applies to any new certificate or new combined certificate issued under this section. …"
5. Section 65(1) provides: "65 Authority monitoring and oversight (1) Medical assessments under this Part are subject to relevant provisions of Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment."

The Guidelines

1. The Motor Accident Permanent Impairment Guidelines (the PI Guidelines) were issued under s 44(1)(c) of the Act. Clause 1.3 provides that the PI Guidelines apply to the assessment of the degree of permanent impairment that has resulted from an injury between 5 October 1999 and 30 November 2017. The claimant suffered injuries as a result of an accident during this period.
2. Clauses 1.5-1.7 make provision for causation, as follows: "Causation of injury 1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a non-medical informed judgement. 1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."
3. Although these provisions were included in the claimant's list of authorities, it was not suggested that they applied in terms to the treatment disputes which were referred to Dr Giblin since he was not assessing permanent impairment. It was, however, common ground that causation for the purposes of treatment would be established by proof of material contribution and that this is consistent with the position at common law.
4. Permanent impairment of the spine is addressed in cll 1.111-1.155 of the PI Guidelines. Clause 1.111 provides that only the diagnosis-related estimate (DRE) is to be used for evaluating impairment of the spine, as modified by the Guidelines. Of present relevance (because of the way the claimant put the submission), cll 1.138-1.142 provide: "Radiculopathy 1.138 Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found: 1.138.1 loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines) 1.138.2 positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines) 1.138.3 muscle atrophy and/or decreased limb circumference see the definitions of clinical findings in Table 8 in these Guidelines) 1.138.4 muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution 1.138.5 reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. 1.139 Spinal injury causing sensory loss at C2 or C3 must be assessed by firstly using Table 23 page 152 of AMA4, rather than classifying the injury as DRE cervicothoracic category III (radiculopathy). The value must then be combined with the DRE rating for the cervical vertebral injury. 1.140 Note that complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings do not by themselves constitute radiculopathy. They are described as non-verifiable radicular complaints in the definitions of clinical findings (Table 8 in these Guidelines). 1.141 Global weakness of a limb related to pain or inhibition or other factors does not constitute weakness due to spinal nerve malfunction. 1.142 Electrodiagnostic tests are rarely necessary investigations and a decision about the presence of radiculopathy can generally be made on clinical grounds. The diagnosis of radiculopathy should not be made solely from electrodiagnostic tests."

The accident

1. On 5 March 2017, the claimant, who was born in 1976, suffered injuries in a motor vehicle accident for which he made a claim against the insurer on 7 March 2017. The insurer is the third party insurer of the owner or driver at fault and has admitted liability pursuant to s 81 of the Act.

The claim for permanent impairment

1. The claimant made a claim for % whole person impairment (WPI), which was assessed by Dr Perla who certified on 6 September 2018 that the claimant had 0% WPI. There is no challenge before me to this decision.

The submission of the claim and its rejection by the insurer

1. In a report dated 29 April 2019, the claimant's treating orthopaedic surgeon, Dr Balsam Darwish, recommended that the claimant undergo surgery to his cervical spine, namely a right C4/5, C5/6 and C6/7 foraminotomy.
2. On 10 January 2019 the claimant submitted a claim to the insurer for the cost of the surgery, which was said to amount to $12,630. On 17 January 2019 the insurer rejected the claim. It said, in its letter of that date: "We advise the service has not been approved for the following reason(s): There are concerns in relation to the requirement for surgery noting the claimant sustained a muscle strain in the subject Motor Vehicle Accident. MAS certificate of Dr Perla dated 06/09/2018 indicated that the claimant has DRE Impairment Category 1 of the Cervical Spine with 0% WPI with no evidence of radiculopathy and no history of non-verifiable radicular complaints."

The referral of the assessment to Dr Giblin

1. At the claimant's request, SIRA referred two medical disputes to Dr Giblin: first, whether the proposed treatment related to the injuries caused by the accident; and, secondly, if so, whether the proposed treatment was reasonable and necessary. These disputes correspond with the medical assessment matters referred to in s 58(1)(a) and (b) of the Act.
2. The claimant supported his claim with medical reports from Dr Sikander Khan and Dr Darwish as well as X-ray films and MRI scans.
3. The insurer provided two documents to Dr Giblin: the certificate and reasons of Dr Perla referred to above and a letter dated 11 July 2019 from Dr John Bentivoglio, an orthopaedic surgeon who saw the claimant at the request of the insurer.
4. None of these documents forms part of the record in the sense in which this term is used in s 69 of the Supreme Court Act. However, as the claimant also relied on jurisdictional error, they are potentially relevant.
5. Mr Romaniuk accepted that, even had the insurer not provided Dr Perla's certificate and reasons to Dr Giblin, it is likely that the Proper Officer would have provided the document to Dr Giblin by way of background in any event. However, Mr Romaniuk submitted, in effect, that Dr Giblin had erred by applying the test for radiculopathy in the PI Guidelines (which had been applied, correctly, by Dr Perla when assessing the claimant's permanent impairment) when addressing the disputes which had been referred to him. For that reason, it is necessary to set out what Dr Perla said of the claim for permanent impairment of the claimant's neck, although it does not, except to the extent that it is replicated or referred to in Dr Giblin's reasons, form part of the record before me for the purposes of s 69 of the Supreme Court Act.
6. Dr Perla said, as follows: "In relation to his neck: I have referenced Chapter 3 of the Guides, Page 110, Table 73 and it is my opinion that he has a DRE impairment Category 1 of the cervical spine equivalent to 0% impairment of the whole person. The reasons are that he has complaints and symptoms however clinical examination today reveals a uniform loss of range of motion, no muscle spasm or guarding, no dysmetria, no neurological compromise, no evidence of radiculopathy and no history of non-verifiable radicular complaints. I note he reports radiating pain into both upper limbs and tingling sensation of the right hand. I refer [to] the MAA Impairment Guidelines, 1st June 2018, Page 31 in relation to non-verifiable radicular complaints which states: 'Non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or. diminished sensation, loss or diminished power, loss or diminished reflexes).' In my opinion he does not have symptoms or signs which follow a known spinal nerve root pattern or distribution therefore he does not have non-verifiable radicular complaints."
7. Dr Bentivoglio, in his report provided to Dr Giblin by the insurer, recorded that, on 22 June 2018, the date of the examination, the claimant complained of neck pain 50% of the time "with symptoms radiating down his right upper limb extending as far as his wrist". Dr Bentivoglio recorded that he had viewed X-rays and MRI scans of the claimant's cervical spine. Dr Bentivoglio's answers to the insurer's questions were as follows: "In answer to your specific questions:- 1. Whether there is a need for surgery. As Mr Balde is only experiencing symptoms present in his neck fifty percent of the time, he does not have evidence of any radicular symptoms and although he has some degree of abnormality, most noted at the C3/4 level which would give symptoms to his shoulder (and not down to his wrist region), surgical treatment on the most abnormal level which is the C3/4 level would not alter his symptoms. He does not give true C6 radicular symptoms and as such I am doubtful (even though it is not unreasonable) that a CT guided root sleeve injection at the C5/6 level would make any difference to his symptoms. Definitely in the presence of five level degenerative changes present in his cervical spine, surgical treatment on any one, two, three, four or five levels would not improve his symptoms. 2. If there is a need for surgery please advise whether this is causally related to the Motor Vehicle Accident. As indicated previously, I would not consider surgical treatment is an appropriate modality of treatment for Mr Balde."

The certificates issued by Dr Giblin

1. Dr Giblin conducted an assessment of the applicant on 15 October 2019 and issued a certificate on 16 October 2019 in which he certified that: 1. the proposed treatment (the right C4/5, C5/6 and C6/7 foraminotomy) did not relate to the injuries caused by the accident (the causation certification); and 2. the proposed treatment was not reasonable and necessary in the circumstances (the reasonable and necessary certification).

Dr Giblin's reasons

1. In his reasons, Dr Giblin recorded the medical issues, the history he had taken from the claimant and the history of symptoms and treatment following the motor vehicle accident, as well as the findings on examination. Dr Giblin confirmed that he had viewed X-rays and MRI scans of the claimant's right shoulder and cervical spine. He noted that the radiologist reported, in respect of the MRI scan of the cervical spine of 21 August 2018: "moderate to severe foraminal narrowing with potential nerve root impingement".
2. Dr Giblin recorded the following conclusions from the films: "There are some wide spread minor spondylitic changes throughout the cervical spine with a good degree of canal patency and CSF [cerebrospinal fluid] surrounding the cord. The foramina are reasonably well preserved, and the nerve roots on the right and left side of the cervical spine show no clear evidence of compression or oedema [swelling] and there is a reasonable amount of epidural fat around the nerve roots in the exiting foramina at C4/5, C5/6 and C6/7 on the right side."
3. Dr Giblin reviewed the medical reports which had been provided to him. He expressed agreement with Dr Bentivoglio's opinion. He referred to a report of Dr Sikander Khan dated 29 August 2019 provided by the claimant in which Dr Khan agreed with Dr Darwish's recommendation for surgery. Dr Giblin commented that Dr Khan's belief that surgery was reasonable was "without any clinical justification". Dr Giblin reviewed Dr Darwish's report of 29 April 2019 and noted that the report did not "include objective anatomical clinical findings". He noted that none of Dr Darwish's other reports contained "any clear physical objective findings". Dr Giblin also noted that Dr Perla's assessment "did not record objective physical findings which would indicate cervical nerve root irritation".
4. In support of the causation certification, Dr Giblin said: "This gentleman presents with a clear history of the intercurrent active medical co-morbidity of rheumatoid arthritis which is a frequent causation of cervical spondylitic changes. His age, in itself, is normally associated with the onset of early degenerative changes on a readiological basis. There is a clear history of recurrent neck injuries of a soft tissue nature in 2011 and 2015. The radiological changes as noted on the MRI scan cervical spine of an examination date 21 August 2018, are minor in extent but sufficient in magnitude to have been present prior to the subject accident of 5 March 2017. For those reasons, the foraminal stenosis as commented upon in the MRI scans, is a pre-existing combination of facet joint arthritis and intervertebral disc degeneration. Notwithstanding a contemporaneous relationship of cervical spine symptoms and the subject motor vehicle accident, the soft tissue nature of the clinical complaints is non-specific in nature and not directly productive of the radiological changes referred to in the MRI scan 21 August 2018. As such, it is my opinion that the right C4/5 and right C5/6 and right C6/7 foraminotomy is not causally related to the subject motor vehicle accident injury." [Emphasis added because of the significance the claimant attached to this sentence in his submissions.]
5. In support of the reasonable and necessary certification, Dr Giblin said: "Based upon today's physical examination findings, there was no clear objective of radiculopathy in the right upper extremity. That is to say, there was no evidence of altered nerve sensation in the distribution of an anatomical nerve root, no changes in deep tendon reflexes on the right arm compared to the left, no muscle wasting, weakness or atrophy in a nerve root distribution or confined to a muscle group that would satisfy that application. I was satisfied that the resistance to any attempted moving of the right shoulder was compatible with global weakness due to voluntary pain inhibition as per the description on 1.141, page 34 of the Motor Accident Authority Guidelines. I was satisfied that the definition of non-verifiable radicular complaints on page 31 of the Guidelines was appropriate following the physical findings as noted in the body of this report with reference to paragraph 1.138, pages 33 and 34 of the Guidelines. Therefore, in the absence of signs of radiculopathy and with no clear satisfactory radiological evidence, I view the surgical procedures of C4/5, C5/6 and C6/7 as not being reasonable and not being necessary."

The claimant's application for review of Dr Giblin's assessments and the Proper Officer

1. The claimant applied for a review of the assessments made by Dr Giblin. His application was forwarded to the Proper Officer so that she could address the threshold question in s 63(3). In his submissions, the claimant contended that Dr Giblin had misapprehended the legal test for causation. He also submitted that the proposed treatment was reasonable and necessary because it would have a reasonable chance of alleviating symptoms when other modes of treatment had failed. He made no submission to the Proper Officer that Dr Giblin had erroneously used the definition of radiculopathy in the PI Guidelines to determine whether the proposed treatment was reasonable and necessary.
2. On 26 February 2020 the Proper Officer gave reasons for not being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. The Proper Officer addressed each of the certificates separately and expressed her lack of the requisite degree of satisfaction separately. I note that the question whether the reasons of the Proper Officer formed part of the record for the purposes of s 69 of the Supreme Court Act was left open in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 (Miller) at [37]-[38] (Basten JA, Ward JA and Young AJA agreeing). As the claim for relief in the present case was put on the alternative basis of jurisdictional error, this point need not be determined.
3. In her reasons, the Proper Officer referred to the submission made by the claimant in support of his application for review that Dr Giblin had been in error in failing to appreciate that legal liability arises from an incident that makes a material contribution to a claimant's condition and that what had occurred in the present case was that the claimant's underlying degenerative condition had been rendered symptomatic by the trauma of the accident.
4. The Proper Officer recorded the insurer's submission on the issue of causation that Dr Giblin had provided "clear and concise reasons as to the basis for his ultimate conclusion that the proposed surgery was not causally related to the accident."
5. The Proper Officer set out in detail the findings and reasons of Dr Giblin and concluded: "20. Assessor Giblin has thoroughly engaged with the medical evidence, conducting an analysis of those opinions and was clear in either agreeing or disagreeing. Assessor Giblin has conducted a thorough examination of the claimant, dealing directly with the purported symptoms of the claimant. Assessor Giblin's conclusion is clear and comprehensive. The path of reasoning is clear throughout the entire certificate. 21. The applicant merely disagrees with Assessor Giblin's conclusion and this does not satisfy me of reasonable cause to suspect the medical assessment is incorrect in a material respect, in relation to causation."
6. The Proper Officer proceeded to address Dr Giblin's reasonable and necessary certification. She concluded: "30. Assessor Giblin has thoroughly engaged with the medical evidence, conducting an analysis of those opinions and was clear in either agreeing or disagreeing. Assessor Giblin has conducted a thorough examination of the claimant, dealing directly with the purported symptoms of the claimant. Assessor Giblin's conclusion is clear and comprehensive. The path of reasoning is clear throughout the entire certificate. 31. I am therefore not satisfied of reasonable cause to suspect the medical assessment is incorrect in a material respect, in relation to reasonable and necessary."

Consideration

1. The claimant seeks to impugn the Assessor's decision and the Proper Officer's decision. In the amended summons, the claimant sought to impugn both decisions on the basis of error of law on the face of the record or jurisdictional error (a s 69 error). However, on the day of the hearing, Mr Romaniuk was granted leave to add a further ground so as to permit him to argue that the Proper Officer had made a s 69 error even if the claimant did not establish a s 69 error in the Assessor's decision.
2. It was accepted that the claimant was entitled to seek internal review of the Assessor's decision by applying to the Proper Officer and that, having been unsuccessful in his application for referral to a review panel, he was entitled to invoke this Court's jurisdiction under s 69 to challenge the Assessor's decision: see Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [85]-[86] and [91]-[92] (Beazley JA, McColl and Macfarlan JJA agreeing).
3. In order to address the grounds, it is necessary to start with Dr Giblin's assessment and determine whether the alleged errors have been made out and, if so, whether any errors are s 69 errors. The insurer accepted that if Dr Giblin had made a s 69 error, both his assessment and the Proper Officer's assessment ought be set aside. If the claimant has established error in Dr Giblin's assessment but the error is not a s 69 error, it is necessary to address separately whether the Proper Officer's decision is vitiated by a s 69 error. It was common ground that the principles which apply to a challenge to the Proper Officer's decision were authoritatively stated in Miller at [36]: see also Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [38] (Gummow and Hayne JJ).

Dr Giblin's assessment

1. Mr Romaniuk argued that Dr Giblin made the following errors, each of which was a s 69 error: 1. Dr Giblin erred in failing to appreciate that causation could be established by proof that the trauma of an accident made a material contribution to an underlying condition and that the material contribution could be established by the onset of symptoms following trauma; and 2. Dr Giblin erroneously applied the test in the PI Guidelines for assessment of WPI of the neck when the test had no application to the question whether the proposed surgery was reasonable and necessary.
2. The appropriate approach, when reading Dr Giblin's reasons for his certificates, is one of fairness. The reasons are to be read as a whole with due and beneficial allowance being made for the expertise of, and words chosen by, the decision-maker: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.
3. The present case is to be distinguished from a case where treatment was accepted to be reasonable and necessary but the issue is whether the proposed treatment is related to the injuries sustained in an accident. In the present case, both matters (whether the treatment was related to the injuries caused by the accident and whether the treatment was reasonable and necessary) were referred to Dr Giblin for assessment.

The alleged error in determining causation

1. In determining whether Dr Giblin made the error as alleged, it is important to appreciate the context in which the question of causation arose for his consideration. The only questions for Dr Giblin were those referred to him for assessment. They related to the connection, if any, between the injuries sustained in the accident and the proposed surgery. It was not part of his role to determine whether the injuries sustained in the accident caused the claimant's underlying condition to become symptomatic or whether the insurer would, for example, be liable to the claimant for economic loss if the symptoms arising from the accident rendered him wholly or partially unfit for work. What Dr Giblin had to determine was whether the injuries sustained in the accident were related to the proposed surgery.
2. Surgery is treatment which by definition changes the body part affected, in many cases by removing the offending part. The purpose of the proposed surgery was to remove any bone, joint or soft tissue which impinged on the spinal nerve at the juncture where the nerve left the spinal column and extended to the extremities. Whether or not the surgery would relieve symptoms would depend on the provenance and cause of the symptoms. In essence Dr Giblin concluded that the radiological changes were not caused by the accident and that any soft tissue injuries would not be resolved by surgery. Of greater significance, Dr Giblin was not persuaded that there was any clinical presentation which indicated any nerve root impingement at the site of the proposed surgery and that therefore the surgery was neither reasonable nor necessary. This aspect of his reasons is relevant to the second question considered below, but also bears on the first.
3. Mr Romaniuk contended, and Mr Rewell accepted, that Dr Giblin's comment that the "soft tissue nature of the clinical complaints is non-specific in nature and not directly productive of the radiological changes referred to in the MRI scan of 21 August 2018" (emphasis added) was potentially problematic. However, I consider that Dr Giblin's observations mean no more than that the impact of the accident caused symptoms (of a soft-tissue non-specific clinical nature) which arose at least in part from a pre-existing condition which was reflected in radiological changes which must have pre-dated the accident. I do not consider that this passage, when read in the context of the reasons as a whole, reveals any error in determining causation. This conclusion is supported by Dr Giblin's detailed consideration of the films which showed "a good deal of canal potency and CFS surrounding the cord" and "no clear evidence of compression or oedema [swelling] and there is a reasonable amount of epidural fat around the nerve roots in the exiting foramina".
4. It may be accepted that, as the claimant contended, his underlying degenerative condition became symptomatic following the accident. On this basis, the accident can be said to have been a cause of his symptoms, in that it materially contributed to them. However, it does not follow from these propositions that the injuries sustained in the accident relate to the proposed surgery. The conclusion of causation can only be drawn when the purpose of the surgery is identified and the part or parts to be treated with the proposed surgery can be said to have been affected by the accident. A rudimentary example (which is not a perfect analogy) is sufficient to illustrate the point. An appendectomy will alleviate stomach pain when the cause of the stomach pain is appendicitis. However, where there is no appendicitis, an appendectomy will not be related to the stomach pain, which cannot be expected to be alleviated by such surgery. In the present case, Dr Giblin considered that, in the absence of radiological or clinical evidence of nerve root impingement, the proposed surgery, the purpose of which was to relieve such impingement, was not related to the injuries sustained in the accident.
5. The medical opinion which formed the basis for the causation certification was open to Dr Giblin as an expert. That is, it was open to Dr Giblin as an expert to find that the accident did not alter the underlying pathology in the claimant's cervical spine, to which the proposed surgery was directed. Mr Romaniuk has not established the alleged error. Accordingly, it is neither necessary nor useful to decide whether any such error would amount to a s 69 error.

Alleged error in determining whether the proposed treatment was reasonable and necessary

1. In essence, Mr Romaniuk submitted that Dr Giblin used the wrong test because he applied the provisions in the PI Guidelines relating to radiculopathy when they had no application to the task in hand. He relied on the extensive provisions relating to radiculopathy in cll 1.138-1.142 of the PI Guidelines and submitted that the similarity in language used by Dr Giblin and in the PI Guidelines was a powerful indication that Dr Giblin had, in effect, used the PI Guidelines to determine whether the proposed treatment was reasonable and necessary.
2. I am not persuaded that this error has been made out. One can infer from the language used by Dr Giblin in his reasons and by the other experts in their reports that terms such as radiculopathy have a meaning as a matter of medical science which is known to medical experts. The term radiculopathy was used by Dr Giblin to connote any impingement on the nerve from the cervical spine. While the PI Guidelines purport to define radiculopathy in a particular way, they do not have a monopoly on the use of the term. It is to be expected that some, if not all, of the concepts addressed in cl 1.138 will be associated with the terms used generally by the medical profession as part of medical science. Dr Giblin was obliged "to form and give his own opinion on the medical question referred to it by applying [his] own medical experience and [his] own medical expertise": Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [47] (French CJ, Crennan, Bell, Gageler and Keane JJ).
3. I am not persuaded that Dr Giblin adopted the definition of radiculopathy in the PI Guidelines, which was the definition which Dr Perla applied in his assessment of WPI. Although Dr Giblin referred to the PI Guidelines in his reasons and cited clauses which are germane to the assessment of WPI of the cervical spine, his discussion of the claimant's clinical presentation and the films was not confined by these definitions. While Dr Giblin had regard to Dr Perla's reasons, this was primarily for the purpose of ascertaining whether Dr Perla had detected any indications of nerve root impingement in his examination of the claimant for the purposes of that assessment.
4. Dr Giblin listed the various clinical presentations which could be expected if there was impingement on the nerve root: altered nerve sensation in the distribution of the nerve root; changes in the deep tendon reflexes (in the right arm compared with the left); muscle wasting; and weakness or atrophy in a nerve root distribution. In the exercise of his medical expertise he was entitled to infer from the absence of these matters that there was no impingement on the claimant's nerve root from his cervical spine.
5. In essence, Dr Giblin's assessment reflects his medical opinion that the purpose of the proposed surgery was to remove obstacles to the nerves (in the forms of bones, joints or soft tissue which impinged on the nerves) emanating from the cervical spine. Dr Giblin considered that it was neither reasonable nor necessary for the claimant to have the proposed surgery because he did not exhibit (either in Dr Giblin's assessment or in any other recorded clinical setting) any organic signs to indicate that there was any impingement on the nerves associated with the cervical spine.
6. The medical opinion which formed the basis for the reasonable and necessary certification was open to Dr Giblin as an expert. His reasons set out in detail his "actual path of reasoning" which exposed how he had come to the assessment: see Wingfoot at [48]. Mr Romaniuk has not established the alleged error. Accordingly, it is not necessary to decide whether any such error would amount to a s 69 error.

The Proper Officer's decision

1. The parties agreed that, if no error was established in Dr Giblin's assessment, it was open to the Proper Officer not to be satisfied that either medical assessment was incorrect in a material respect and that, accordingly, the Proper Officer's decision is not amenable to relief under s 69.
2. As no error has been established in Dr Giblin's assessment, the decision of the Proper Officer also stands.

Costs

1. The parties agreed that, subject to one matter, costs ought follow the event in accordance with the general rule: UCPR, r 42.1. Mr Rewell submitted that, if the claimant were successful, the claimant should be ordered to pay the costs of 13 November 2020 since the amendment to the summons on 12 November 2020 necessitated a further appearance on that day. As the claimant has not been successful, it is not necessary to address this submission. However, for completeness, I note that the hearing, although listed for a day, commenced at 9.30am on 12 November 2020 and, at noon, was adjourned to 10am on 13 November 2020 to permit the parties time to prepare submissions on the ground which the claimant was granted leave to add to the amended summons. The hearing resumed at 10am on 13 November 2020 and concluded at 10.45am. Accordingly, it was completed in a total of half a day.

Orders

1. For the reasons set out above, I make the following orders: 1. Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2) extend the time for filing the summons to 21 May 2020. 2. Dismiss the further amended summons. 3. Order the plaintiff to pay the first defendant's costs of the proceedings.

Amendments 16 November 2020 - Second hearing date inserted - coversheet 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: 16 November 2020