Bannister v Allianz Australia Insurance Ltd

The Application to Refer for Further Assessment

1. The application for the further medical assessment by Allianz was made in the form required by cl 14.1 of the Medical Assessment Guidelines (1 October 2008) issued by the Authority pursuant to s 44(1)(d) of the MAC Act. That subsection enables guidelines to be issued with respect to: "(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. The application under s 62 of the MAC Act by Allianz for further assessment dated 8 May 2014 was made on MAS Form 4API and comprised eleven standard form pages and contained a section entitled: "5 Dispute information Grounds for further assessment"
3. In answer to the standard question "What is the reason for further assessment?" the relevant box was marked, accompanied by the following statement: "There is additional relevant information about the injury or injuries sustained in the motor vehicle accident and this additional information is capable, if the matter was to proceed to further assessment, of altering the outcome of the dispute from that certified in the previous assessment.
4. In Section 6 of the application entitled "Details about the Permanent Impairment Dispute" and under the subheading "Detailed Reasons" the insurer inserted relevant details of matters contained in the Certificate of the MAS Assessor, Dr Alan Home, dated 6 May 2013.
5. At the conclusion of those particulars the insurer included the following statement: "The insurer submits that Dr Cummine's report evidences that there has been a significant improvement since the assessment by Dr Home in May 2013 and as a consequence the permanent impairment would be less than 5% in respect of each of the cervical and lumbosacral spines such that the total body whole person impairment would not be in excess of 10%."
6. On the second-last page of the insurer's Application for Further Assessment under the statement "Documents MUST be provided to the other party" the following documents were identified: A1 MAS Certificate and Reasons of Dr A Home, 6 May 2013 A2 Report of Dr J Cummine, 1 April 2014 There were no other documents identified in the insurer's application.
7. Mr Bannister completed a Reply to an Application for Further Assessment on MAS Form 4RPI on 22 May 2014 which identified on the second-last page the "documents to be provided to the other party" as "Claimant's Submissions" dated 20 May 2013.
8. A copy of those submissions was included in the Tender Bundle in the present proceedings.
9. The determination of the insurer's application for referral under s 62 of the MAC Act was set out in a letter written by Proper Officer Jane Probert sent on behalf of the Authority, addressed to the plaintiff dated 6 June 2014. The letter under the heading "Reasons" referred to the report of Dr Cummine. It noted (at p 2): "The Insurer concludes that the findings of Dr Cummine evidence that there has been a significant improvement since the assessment by Assessor Home in May 2014 and as a consequence the permanent impairment would be less than 5% each in respect of both the cervical and lumbosacral spine, thereby resulting in a WPI (whole person impairment) of less than 10%."
10. The letter then referred to the assessment made by Assessor Home and to the reports of Dr Peter Giblin and Dr Noel Dan, interspersed with references to the decisions in Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056 and Alavanja v NRMA Insurance [2010] NSWSC 1182. The Proper Officer stated that she did not consider that Dr Cummine's report fell into the same category as that in Alavanja: "… As his assessment of whole person impairment is based on a different range of active movement in relation to the cervical and lumbosacral spine based on clinical findings as an examination held nearly 12 months after the original assessment by Assessor Home."
11. The Proper Officer's reasons on the final page of her letter to the plaintiff referred to the role of the Proper Officer which required her to apply: "… a threshold test of determining whether there is additional relevant information that is such as to be capable of having a material effect on the outcome of the previous assessment."
12. The provisions of s 62(1A) of the MAC Act were then set out following which the Proper Officer stated: "In accordance with the tests set out in section 62(1A) of the Motor Accidents Compensation Act 1999, I am satisfied that there is additional information about the injuries sustained in the subject MVA namely different clinical findings based on a medical examination by Dr John Cummine on 27 March 2014. I am also satisfied that because the Insurer has provided a medical report based on physical examination of the claimant and because this has resulted in an assessment of whole person impairment below the 10% threshold, the report of Dr Cummine may constitute additional relevant information and is such as to be capable of having a material effect on the outcome of the previous assessment."

Medical Assessment Provisions

1. Part 3.4 of the MAC Act, in particular s 58(1) of the Act, prescribes an assessment procedure where there is disagreement between a claimant and an insurer about any of the following matters (referred to in that Part as "medical assessment matters"): "(a) … (b) … (c) Repealed (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%. (e) Repealed."
2. That section notes that Part 3.4 applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.
3. The first decision challenged by the plaintiff requires consideration of the provisions of s 62 of the MAC Act which is in the following terms: "Referral of matter for further medical assessment 62(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 of the Authority who is 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." (emphasis added)
4. Clause 14.6 of the Medical Assessment Guidelines provides: "For the purposes of s 62(1A) the word 'material' includes that it is relevant and capable of altering the outcome of a dispute about: 14.6.1 … 14.6.2 … 14.6.3 Permanent impairment from 'not greater than 10% whole person impairment' to 'greater than 10% whole person impairment' or vice versa."
5. As has been noted above, the plaintiff was assessed by the MAS assessor (Dr Alan Home), on 6 May 2013 as having a whole person impairment exceeding 10%, with the following assessments of impairment having been made in relation to the injuries caused by the motor accident.

• As to the plaintiff's cervical spine - 5%;
• As to the plaintiff's lumbosacral spine - 5%;
• As to the plaintiff's right hip - 2%.

Principles Applicable to Referral Provisions

1. What may be referred for assessment under Part 3.4 (for the purposes of s 62(1)) is a "medical dispute" identified in s 60(1). Section 58 identifies matters upon which there may be disagreement as: "(1)(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%."
2. In these proceedings, as noted above, there is an issue as to whether the degree of the plaintiff's permanent impairment exceeds 10%. Unless that figure is exceeded, no damages can be awarded under the MAC Act for non-economic loss: s 131.

(a) Conditions Precedent to the Proper Officer's Exercise of the Section 62 Power to Refer

1. A party to a medical dispute is entitled to seek a further assessment, in accordance with Part 3.4 of the MAC Act "but only on the grounds of the deterioration of the injury or additional relevant information about the injury": s 62(1)(a).
2. Before there can be a referral for further assessment under s 62, there must, under MAC law, be "additional information" of a quality "such as to be capable of having a material effect on the outcome of the previous assessment". This is the proper formulation of the precondition to referral for a further assessment: QBE Insurance v Miller [2013] NSWCA 442; 67 MVR 322 per Basten JA at [16].
3. In Miller, Basten JA observed that s 62 confers power to refer a matter: "[4] … if the condition set out in sub-s (1A) is satisfied: Rodger v DeGelder (2011) 80 NSWLR 594; 58 MVR 23; [2011] NSWCA 97 at [70] (per Beazley JA, McColl and Macfarlan JJA agreeing). [5] The first question concerns the power of the Court to review the decision of the proper officer to refer, or refuse to refer, a particular application. On the basis that the decision of the proper officer constitutes a gateway, or condition precedent, to the carrying out of a further medical assessment, that decision is reviewable. While the proper officer does not make any recommendation with respect to the merits of the application, the fact that the officer stands between the applicant and a determination of the medical dispute between the applicant and the other party in relation to a civil claim, renders the decision reviewable in the terms explained in R v Collins; ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691; 50 ALJR 471 …".
4. Section 62(1A) contains a prohibition on referral of matters for further assessment subject only to specified qualifying circumstances. The decision of the Proper Officer under s 62, if properly exercised, satisfies a condition precedent to the exercise of the power for further referral, which decision affects legal rights. It is on that basis, that the decision of the Proper Officer is reviewable: Miller per Basten JA at [6].
5. In order to make a determination in terms of s 62(1A) the Proper Officer was required to determine according to law whether the information identified in the insurer's application was "additional relevant information" about the injury and, if so, whether any such information "was capable of having a material effect on the outcome of the previous assessment".
6. Section 62(1B) requires that the referral under s 62(1) is to be "by referral to … the Proper Officer of the Authority". As Meagher JA in Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; (2013) 66 MVR 69 at [78] observed, the unstated but obvious reason for referral to the Proper Officer is to enable him or her to determine whether the prohibition in s 62(1A) applies. His Honour then observed: "… To do so the officer must consider and decide whether the ground of deterioration of the injury or of additional relevant information about the injury is capable of having a material effect on the outcome of the previous assessment." (at [78])
7. The Medical Assessment Guidelines also address the procedures for referral to the proper officer. Clauses 14.3 and 14.4 provides that when an application is made for a further medical assessment, an officer of the Authority, described as the Proper Officer, is to conduct what has been described as an allocation review to determine whether the matter is suitable for referral for further assessment: Henderson at [79] per Meagher JA.
8. The application by the Insurer in the present case was required to identify the kind of information to which s 62 is directed, in particular, information said to have been "additional". In the present case, the information needed to identify the respects in which the evidence of Dr Cummine was different from that which was the subject of the previous assessment by Assessor Home, the evidence of Dr Cummine being the "additional information".
9. The Proper Officer was not required to do other than address the information specified by the Insurer in the application. In Henderson, Meagher JA observed: "[106] What the circumstances of this case emphasise is the need, in relation to such applications, to specify clearly the additional information about the injury which is said to be capable of having a material effect on the outcome of any earlier assessment. In some cases the fact of a medical opinion may be, or be part of, the relevant additional information. In the present case, however, the information which was capable of having a material effect on the outcome of the earlier assessment was not the fact that the revised opinions were held but that the underlying symptoms or assumptions by reference to which those symptoms were expressed were said to have changed."
10. In Miller, it was accepted that the precondition to the referral for a further assessment depended on the satisfaction of the Proper Officer as to the qualifications imposed by s 62(1A): Miller at [35] (per Basten JA and Ward JA and Young AJA agreeing).
11. The Proper Officer's decision in determining whether the preconditions for further assessment are met involves application of the following principles: 1. The Proper Officer must "identify the information relied upon by the applicant party": Miller at [7]. 2. Relevant characteristics may be significant in a determination as to whether the information is "additional", "relevant", and "capable" of having a material effect on the outcome of the previous assessment: Miller at [7]. 3. In relation to a medical assessment, "information" can have a range of characteristics: Miller at [7]. It was there observed that such characteristics might include: 1. a record of symptoms prior to the accident; 2. a diagnosis of a condition extant prior to the accident; 3. the making a diagnosis by a doctor or the recording of a history. 1. Information which is not in any relevant sense "information that is additional" to that already considered by the previous assessor, cannot affect the outcome in terms of s 62(1A). 2. The matters making up the range of characteristics the subject of information utilised in a medical assessment are not to be segmented "as if they were each separate and independent of the others": Miller at [10]. Such characteristics are to be regarded as interrelated: "That which is capable of affecting an outcome must be relevant; further, that which is properly described as 'additional' must also be relevant." (at [10]). 1. "Information" for the purposes of a further medical assessment is to be compared with the information which was considered by the original assessor as the ground on which the application was made: Henderson at [100].

(b) Standard of Review

1. As characterisation of the information is a matter to be considered in the first instance by the Proper Officer and not one to be determined by this Court afresh on a judicial review application, the review proceedings are limited to determining whether the Proper Officer's opinion "has been properly formed according to law": Buck v Bavone (1976) 135 CLR 110 at 118-9 per Gibbs J; D'Amore v ICAC [2013] NSWCA 187 at [220]; Miller at [36].
2. In Miller, Basten JA at [45], noted the observations of Latham CJ in R v Connell; ex parte Hetton Bellbird Collieries Limited (1944) 69 CLR 407 at 432 as follows: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational or not bona fide."
3. In Henderson, Meagher JA stated at [84]: "The first [ground] was that the acting proper officer's conclusion that the information relied upon was not "additional relevant information" was not reasonably open on the material before her so as to demonstrate that she had "misconstrued or misunderstood her powers". That ground asserted legal error on the basis that the requirements of s 62(1A) had been misconstrued and as a result not addressed. That was also said to have involved jurisdictional error because there had been a constructive failure to exercise jurisdiction. As is mentioned earlier, if a decision-maker mistakes the proper construction of the statute and as a result does not address the correct question or misunderstands the nature of the opinion to be formed there is no real exercise of jurisdiction so that in law the jurisdiction is constructively unexercised: see Ex parte Hebburn Ltd at SR (NSW) 420; Yusufat [41]; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; 64 ALD 545; [2001] HCA 51 at [193]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 73 ALD 321; 77 ALJR 1088; [2003] HCA 26 at [24], [25], [32] and [88]; and Goodwin v Commissioner of Police [2012] NSWCA 379 at [19]-[20]."

The Issue of Additional Relevant Information

1. The information which the insurer claimed to be "additional relevant information" in this case was the information set out in Allianz's application. The information therein set out is to be identified by a reasonable reading of its terms: Henderson per Meagher JA at [90]. This makes it necessary, as his Honour there observed, to consider, as a first step, what information the application showed, on a reasonable understanding of its terms, was relied upon.
2. In the present case, Allianz's application, signed by its legal representative on 8 May 2014, provided "Detailed reasons" in Section 6 in the following terms: "The claimant was originally assessed by MAS Assessor Dr Alan Home on 6 May 2013. On that date Dr Home assessed permanent impairment of the cervical spine at 5% (A1 page 6), based on his findings which included a range of active motion being: ● Flexion 40%; ● Extension 30%; ● Right rotation 60%; ● Left rotation 70%; ● Right and left lateral flexion 15% Dr Home also assessed permanent impairment of the lumbosacral spine at 5%, which was based on his findings which included: ● Flexion to reach finger tips of the mid shins; ● Extension restricted to quarter normal range; ● Right lateral flexion to reach finger tips 5 cm above the knee crease; ● Left lateral flexion performed to reach 5 cm above the knee crease; ● Mild muscle guarding during lateral flexion motion. On 27 March 2014 Dr John Cummine examined the claimant and found (A2, page 4): ● Flexion in relation to the cervical spine, flexion and extension were achieved through a full range; ● Lateral rotation to the left was achieved through a full range without complaint of discomfort; ● Lateral rotation to the right was restricted through approximately the last 30° of arc with discomfort occurring. In relation to the thoraco-lumbar spine Dr Cummine found: ● Lateral rotation to right and left was achieved through a full range with complaints of lumbosacral pain; ● Lateral flexion to right and left was also exhibited through a full range, with discomfort to the right of the midline of the low back ● With forward flexion, the finger tips reached to the knees with slight discomfort; ● The claimant could execute a full range of extension of the spine with no complaints of pain. The insurer submits that Dr Cummine's report evidences there has been a significant improvement since the assessment by Dr Home in May 2013 and as a consequence the permanent impairment would be less than the 5% in respect of each of the cervical and lumbosacral spines such that the total body whole person impairment would not be in excess of 10%." (Court Book at pp 64-5)
3. The additional information accordingly was stated to be Dr Cummine's reported findings on clinical examination of particular spinal flexion, extension and rotation movements of the cervical and thoraco-lumbar spine.
4. A reasonable reading of the terms of the claimed "additional relevant information" was accordingly the "information" as to the "range of active motion" upon Dr Cummine's examination of the plaintiff's cervical and thoraco-lumbar spine, and the "findings" Dr Cummine said he made.
5. As earlier set out (for convenience of reference again set out below) there then followed in Section 6 of Allianz's application a submission that: "The insurer submits that Dr Cummine's report evidences that there has been a significant improvement since the assessment of Dr Home in May 2013 and as a consequence the permanent impairment would be less than the 5% in respect of each of the cervical and lumbosacral spines such that the total body whole person impairment would not be in excess of 10%."
6. By its terms, this submission was directed towards persuading the Proper Officer as to the conclusion to be drawn from the cervical movement findings. The submission itself did not, in my opinion, constitute "information" or "additional information" within the provisions of s 62. It was, within the ordinary meaning of the word "submit", a statement advanced as "a contention or proposition", one to "urge or represent": Oxford English Dictionary.
7. Two matters concerning the submission may be noted at this point. First, the subject matter of the submission was not one of law. Though made by a legal practitioner the submission was in the nature of a medical conclusion. Second, the concept of "a significant improvement" was not one expressed or stated by Dr Cummine in his report.
8. Before considering the nature of the information, including its comparison with Professor Home's "findings" of "range of active motion" as set out in Section 6 of Allianz's application under s 62, the following matters provide context to the "findings" by Assessor Home and Dr Cummine.
9. As mentioned above, Basten JA indicated in Miller that information relevant to a medical assessment may have a "range of characteristics": Miller at [7]. As can be seen from Assessor Home's "Reasons" and Dr Cummine's medico-legal report, medical assessment in particular of impairment arising from spinal injury involves a consideration of information upon a number of characteristics as interrelated matters including: 1. A person's pre-accident histories as to injury, health, symptoms, disabilities, impairment; 2. A person's history of medical treatment; 3. A person's post-accident symptoms and restrictions, including symptoms as at the date of examination; 4. A person's clinical signs, and findings re the same; 5. Relevant documentation including medical reports and radiological/CT scans and other diagnostic testing results; 6. Relevant observations including consistency on clinical presentation.
10. A copy of the report of Dr Cummine of 1 April 2014, as noted above, was provided with the s 62 application. Dr Cummine set out his findings as to range of cervical and lumbar spine movements on p 4 of his report and stated on p 5, "in regard to physical findings I obtained a greater range of movement of the patient's neck and lumbosacral spine …". Dr Cummine, having referred to such findings with an indication that the range of such movements had been "greater" (presumably in contrast to Assessor Home's findings), did not make any observation or conclusion that the greater movements were indicative of "substantial improvement" or indicative of significant or permanent improvement. Dr Cummine, on p 4 of his report, identified cervical movement that was said by him to have been "full range" with "no discomfort" as well as movement "with discomfort" (lateral flexion of the lumbar spine), forward flexion "with slight discomfort" and cervical spine movements through full range (lateral rotation to the left without discomfort) and lateral rotation to the right being restricted with discomfort occurring.
11. Dr Cummine's conclusion as to his assessment is expressed in relation to a number of aspects in relation to the plaintiff's cervical, thoraco-lumbar spines, right hip and knees (in particular the right knee). He did not specifically identify what part his findings as to cervical range of movement played in his overall assessment of the plaintiff.
12. The examinations of the plaintiff by three medical examiners of the plaintiff's cervical spine - Assessor Home (on 6 May 2013), Dr Cummine (on 27 March 2014) and Dr Burns (on 30 July 2014) reveal a degree of variability in findings on cervical movements on examination. None of them indicated that any variability on assessment of such movements indicated or reflected "improvement" in the injury to the cervical spine or reflected transient factors at work. A precise comparison of "findings" made by Assessors Home and Burns and by Dr Cummine is made difficult due to the differing modes of description employed by each examiner. (Dr Cummine, for example, unlike Assessor Home, did not express his findings in terms of a percentage range on different cervical movement.)

The First Medical Assessment of the Plaintiff

1. The medical assessment undertaken by Assessor Home, was based upon a number of "characteristics" as reflected in the Certificate made by him and dated 6 May 2013. In Section 4 of Assessor Home's Certificate, entitled, "Findings on Clinical Examination" he set out the findings made, inter alia, in respect of both the cervical spine (cervicothoracic) and the lumbar spine (lumbosacral).
2. In respect of each, Assessor Home's Certificate recorded the following: "CERVICAL SPINE (cervicothoracic) Examination of the cervical spine reveals a fair range of active motion, with normal spinal curvature. There is tenderness elicited to palpation overlying the paravertevral structures between C5 and C7. There is a fair range of active motion, with flexion 40°, extension 30°, right rotation 60°, left rotation 70°, right and left lateral flexion 15°. LUMBAR SPINE (lumbosacral) Examination of the lumbar spine was normal spinal curvature. Flexion was performed to reach fingertips to the mid shins. Extension is restricted to quarter normal range. Right lateral flexion was performed to each fingertips 5cm above the knee crease. Left lateral flexion was performed to reach 5cm above the knee crease. There is mild muscle guarding during lateral flexion motion." (at p 6 of 14)
3. Assessor Home observed at page 7 that "Mr Bannister was consistent in his clinical presentation".
4. At pages 8-9 of his Certificate, Assessor Home provided a "Summary of Relevant Documentation" and referred to having undertaken a review of medical records prepared by the treating general practitioner, Dr Parhawk, the report of Dr Dan dated 18 January 2013, in particular as to the lumbosacral spine, and Dr Dan's diagnosis and assessment of impairment.
5. Assessor Home expressed agreement with the assessment made by Dr Dan of DRE Category II impairment of the cervical spine.
6. In the same section of this report he referred to having reviewed the report of Dr Peter Giblin dated 1 August 2012, and the assessments made by that doctor of whole person impairment.
7. He concluded (on the basis of the plaintiff's clinical presentation): "I would assess a DRE Category II impairment for the cervical spine. The total whole person impairment on the basis of the current examination findings equals 12%." (at p 9)
8. In Section 7 of his certificate Assessor Home dealt with "Degree of Permanent Impairment" in relation to the cervical and lumbosacral spine. He provided DRE Category impairment assessments in relation to both (at page 12).

Report of Dr John L Cummine, Orthopaedic Surgeon, 1 April 2014

1. Dr Cummine undertook a medico-legal examination of the plaintiff on 27 March 2014. He was not undertaking an assessment procedure on a disagreement as to the degree of impairment pursuant to s 58(1) MAC Act or the Medical Assessment Guidelines.
2. Dr Cummine referred (at p 5 of his report) to a similar history obtained by Assessor Home as set out in Assessor Home's MAS Certificate. Contrary to Assessor Home and, subsequently, Assessor Burns, he said any continuing neck and back symptoms "relate to underlying pre-existing in-situ degenerate disc disease consistent with his age" (at p 7 of his report). Consistent with other medical examiners, Dr Cummine did not suggest that the plaintiff was an unreliable historian and did not suggest that there were any inconsistencies on examination. Whilst Dr Cummine did not undertake an assessment utilising the American Medical Association ('AMA') Guidelines method, he included a general comment in his report to the effect that he did not identify any physical signs that would allow a classification other than DRE Category I for the cervical spine. Similar comment he said applied to the lumbosacral spine (p 5). The latter observation differed from Assessor Home's assessment of the lumbar spine and Assessor Burns' subsequent assessment of that segment, with both certifying a 5% whole person impairment: See Assessor Burns' MAS Certificate at pp 10-11.

First Defendant's (Insurer) Submissions

1. The first defendant which was represented by Mr M Robinson SC and Ms A Poljak of counsel, relied upon Written Submissions filed on 26 March 2015, supplemented by submissions made at the hearing on 1 April 2015. The first defendant also relied upon the First Defendant's Additional Submissions dated 10 April 2015 made following the filing by the plaintiff of a Further Amended Summons on 7 April 2015.
2. On 11 November 2014, the first defendant had filed the First Defendant's Response in which the first defendant set out grounds upon which it opposed the relief sought in the Summons originally filed by the plaintiff on 9 October 2014 (Grounds 1-13).
3. The submissions made on behalf of the first defendant were directed to issues raised in the Response document and addressed the plaintiff's Written Submissions dated 23 September 2014.
4. Leave was sought to file and rely upon submissions that exceeded the limit specified by r 59.8(5) of the UCPR 2005. Leave was granted to the first defendant in that respect.
5. The submissions noted that the first defendant is the "insurer" in a non-curial personal injury medical dispute assessment process which was undertaken in the Medical Assessment Service of the Authority pursuant to the provisions of ss 57-65 of the MAC Act.
6. It was submitted on behalf of the first defendant that the real question is whether there is established any relevant error of law on the face of the record or jurisdictional error of sufficient severity to warrant quashing the decision of the Proper Officer and/or of the decision of Assessor Burns: First Defendant's Submissions at [9]. As the submissions noted, that is the nature of judicial review proceedings.
7. In relation to the Proper Officer's decision, it was submitted that the decision was correct. It was also submitted that the making of the decision was open to the Proper Officer and that the decision was lawfully made: First Defendant's Submissions at [11].
8. It was further submitted that there was no vitiating error of law on the face of the record and no jurisdictional error or constructive failure to exercise jurisdiction: First Defendant's Submissions at [12].
9. Reference was made in the submissions for the first defendant to the provisions of s 62 and relevant authorities that had considered those provisions: First Defendant's Submissions at [14]-[16].
10. It was submitted in particular that the opinion that was expressed by Dr Cummine in his report was new additional relevant information about the injury: "17 … as it is based on a fresh clinical examination conducted some 11 months after the assessment of Dr Hume (sic - Home) …"
11. It was submitted that Dr Cummine's report contained new findings from his clinical examination of the plaintiff. In that respect, reference was made to Dr Cummine's findings in relation to the range of movement of the plaintiff's neck and lumbosacral spine and to his assessment in relation to the cervical spine as DRE Category I.
12. In the First Defendant's Submissions it was contended: "20 There is no reason why in law, a significant improvement in a claimant's impairment cannot properly constitute 'additional relevant information'."
13. In his oral submissions, Mr Robinson observed that Dr Cummine did not attempt to make an assessment "in full terms" of creating a whole person impairment: T 34. There was no reference to the whole person impairment rating by him. However, it was submitted that what he did do was move the claimant from DRE Category II to DRE Category I in relation the neck.
14. The Proper Officer saw that as "significant": T 34. Mr Robinson submitted that it was significant. This statement was based upon the acceptance by the Proper Officer that if 5% assessment in respect of the cervical spine was removed that that would affect the loss for which the plaintiff could claim damages: T 34. The Proper Officer had proceeded on this basis: T 36: 40-50.
15. Mr Robinson initially submitted that the three-page decision of the Proper Officer did not comprise the record of the decision-maker: T 35:5-10. However, it appears that he later did not maintain that position insofar as he did not submit that it was not open to this Court to examine the Reasons of the Proper Officer: T 35:25-50.
16. In relation to the Proper Officer's statement that Dr Cummine's assessment of whole person impairment below the 10% threshold "may" constitute additional relevant information, Mr Robinson submitted that words which the decision was expressed should not be overanalysed: T 36. He submitted that it was clear from the preceding pages of the decision that the Proper Officer had accepted Dr Cummine's report as "additional relevant information."
17. It was further submitted for the first defendant that the Proper Officer had provided her reasoning as to why she considered the information was additional relevant information, and that this Court should accept her statement to that effect. It was submitted that the reasons under challenge must be read as a whole and considered fairly. A narrow approach should not be undertaken in an over-zealous fashion in judicial review proceedings: Additional Submissions at [37].
18. Mr Robinson submitted that the proper characterisation of what the Proper Officer did was to have regard to information which, it was submitted, was relevant to change in cervical movement: T 41:45-50.
19. Mr Robinson presented to the court a Schedule or chart showing the findings of Assessor Home and Dr Cummine: T 41-42.
20. It was submitted that the Proper Officer was informed by the evidence as to the range of cervical movements as assessed by Assessor Home and Dr Cummine.
21. As noted above, Mr Robinson submitted that the matter that influenced or "swayed" the Proper Officer (demonstrated by Section 2.5 of her Reasons) was the fact that Dr Cummine's examination eleven months after the medical assessment of Assessor Home indicated that clinical findings had varied: T 43:15-20.
22. A submission was made that variation in cervical movement between the assessment made by Assessor Home and that by Dr Cummine constituted "raw data" of a change that brought the case within the principles stated in Miller: T 43:45-50.
23. In relation to the second challenged decision, that of Assessor Burns, it was submitted that the decision was "correct", that it was the Assessor's decision alone and it was open to him to make it and that it was lawfully made: First Defendant's Submissions at [30].
24. It was submitted that there was no vitiating error apparent on the face of the record of the decision and no other error, jurisdictional or otherwise: First Defendant's Submissions at [31].
25. It was submitted by the first defendant that there was a "raft of evidence" before Assessor Burns to assess the plaintiff's cervical injury as none other than DRE Category I: Additional Submissions at [22].
26. Reliance was placed upon the decision in Cupac v Motor Accidents Authority (NSW) (2010) 56 MVR 82 at [11] at [65] and at [36]. Based on the decision in that case the submission was that it was not necessary for the medical assessor to list the diagnostic criteria in relation to DRE I or DRE II in order for the medical assessments to be considered valid.
27. Mr Robinson, in oral submissions on the issue as to whether or not there had been "satisfaction of the guidelines" by Assessor Burns, further submitted that, if it was an error not to "spell out every single category that appears in DRE I or II", then this was not an error that went to the validity of the decision. In that respect he relied upon the Project Blue Sky principles of construction: T 51:15-25 (referring to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355).
28. As noted above, the plaintiff was granted leave to file a Further Amended Summons which was done on 7 April 2015. The new Summons added a new ground concerning the report of Dr Cummine. Leave was granted to the first defendant to make additional submissions.
29. The Additional Submissions addressed a number of matters concerning Dr Cummine's assessment, in particular, at [14]-[19]. As therein observed, Dr Cummine did not assess the plaintiff in his capacity as a medical assessor. It was submitted that his report should not be assessed as if it were a medical assessment for the purposes of Part 3.4 of the Act.
30. It was further submitted for the defendant that a tribunal or an administrative decision-maker is not required to state why they did not accept certain matters, the duty was only to state the (real) reasons for a decision (not anything else): Additional Submissions at [38].
31. Even if the impugned decisions were considered erroneous in law for failure to provide adequate reasons it was submitted that it did not follow, as a matter of statutory construction, that such error rendered the decision in question invalid: Additional Submissions at [39].
32. In his oral submissions, Mr Robinson submitted that the second decision (the decision of Assessor Burns) was "fine" - that is, that it was not perfect but was good enough for a medical practitioner appointed under the Act to be a medical assessor performing his duties and examining claimants - such assessors were performing statutory procedures or duties and there was no error in relation to his assessment: T 34:1-10.
33. As to the submissions made by Mr Romanuik in relation to the five criteria or elements that establish DRE Category I, Mr Robinson submitted that the approach to construction developed in the submissions for the plaintiff would "basically wipe out DRE I as a category altogether": T 45:10-20. He submitted that this was not in accordance with "reality". However, the response submissions on the point did not elaborate upon the contention of asserted error in the analysis put forward in the submissions for the plaintiff.
34. Mr Robinson in dealing with this aspect contended that the plaintiff's approach to the construction of Category DRE I: "… has little bearing on reality and the primary purpose can be found in the objects of the Act which is insufficient money is to be given to claimants. The public purse can't stand giving them the full compensation so we will restrict it and this is part of that process": T 45:15-25.
35. Mr Robinson, in oral submissions, developed the first defendant's submissions in relation to the failure of the Proper Officer to refer for further assessment impairment in relation to the plaintiff's hip (an aspect of the first impugned decision): T 47. In this respect he relied, inter alia, upon the definition of the expression "medical dispute" in s 57 and relied upon the provisions of s 61(1) of the MAC Act. He submitted that the provisions of the Act made it plain that there may be more than one medical assessment made by more than one medical assessor dealing with different parts of the human body: T 47-48.
36. In relation to the Tribunal decision concerning the plaintiff which was provided to Assessor Burns by the insurer (as to which see below at [123]), Mr Robinson submitted that though the decision was before Assessor Burns it was apparent that he had put it aside: T 50:30-45.

The First Decision: Proper Officer's Decision

1. Ground 8 of the Summons raises for consideration the matters that the Proper Officer considered in arriving at her decision and whether they included the matters required to be addressed under s 62(1A).
2. Properly construed and applied the provisions of s 62(1A) do not permit a decision by a Proper Officer in favour of a referral of a medical dispute under those provisions for further medical assessment upon the basis of revised medical opinion unless such opinion was based upon a change in underlying or subjacent medical facts by reference to which a previous opinion as to an assessment was made.
3. As Meagher JA in Henderson observed: "106 What the circumstances of this case emphasise is the need, in relation to such applications, to specify clearly the additional information about the injury which is said to be capable of having a material effect on the outcome of any earlier assessment. In some cases the fact of a medical opinion may be, or be part of, the relevant additional information. In the present case, however, the information which was capable of having a material effect on the outcome of the earlier assessment was not the fact that the revised opinions were held but that the underlying symptoms or assumptions by reference to which those opinions were expressed were said to have changed." (emphasis added)
4. Section 62(1A) required the Proper Officer in the present case to examine the information put forward in Section 6 of the insurer's application in order to determine whether it constituted "additional information" as claimed by the insurer. This was essential so as to ensure that the principle as stated by Meagher JA, set out in the above extract in Henderson, was not contravened or circumvented. For this reason, the Proper Officer was required to examine whether the "information" in relation to findings reported by Dr Cummine as to the plaintiff's range of movement of the neck movement, when compared to those reported by Assessor Home, represented or constituted a medical opinion based on a change in the underlying condition, characteristics or assumptions by reference to which Assessor Home's opinion was expressed.
5. On this issue of "additional relevant information" the following matters and circumstances bear upon the principle referred to (and extracted) above: 1. Assessor Home's findings, as at 6 May 2013 (approximately two years ten months post-accident), as to "active motion" in the cervical spine, were, as noted above, expressed in specific percentage terms, and flexion and extension movement in the lumbar spine expressed in conventional descriptive terms. 2. Dr Cummine's findings were not so expressed. He recorded a mix of findings as to movements of the cervical spine - expressed as "full range" with flexion/extension lateral rotation to the left achieved through full range without discomfort and lateral rotation to the right which was restricted through approximately the last 20° of arc, with discomfort occurring. 3. Neither Assessor Home nor Dr Cummine, expressed an opinion that the range of cervical movements was in itself a decisive or overriding characteristic in their respective assessments, although doubtless each took them into account. Dr Cummine, in particular, did not state that his specific findings as to range of cervical movement established or indicated "improvement" or as submitted in the s 62 application, "significant improvement".
6. The Reasons of the Proper Officer reflect a line of reasoning that is evident in the insurer's submission of "significant improvement" in its s 62 application, namely: 1. Dr Cummine's range of cervical movement findings differed from the findings of Assessor Home. 2. There was additional information, namely, the different "clinical findings" noted in Dr Cummine's report. 3. Dr Cummine's assessment of whole person impairment was based on a different range of active motion, based on his "clinical findings" on examination held almost 12 months after Assessor Home's assessment. 4. This resulted in an assessment of whole person impairment by Dr Cummine below the 10% threshold.
7. The submission by the insurer in its application to the effect that his findings on ranges of cervical motion "evidences there has been a significant improvement since the assessment by Assessor Home in May 2013 …", is not supported by Dr Cummine's report (it is also noted that the Proper Officer in her Reasons appears to have taken the submission to be a conclusion: "… The insurer concludes that this finding …"). Dr Cummine did not say that the range of activity motion in the cervical spine, in his opinion, meant that there had been a significant change in the plaintiff's medical condition or a reduction in cervical symptoms or that there were underlying changes that established improvement. The history given by the plaintiff to both Assessor Home and Dr Cummine included an account of restricted right neck movement with pain (Assessor Home at Court Book p 47 and Dr Cummine, at Court Book p 84). Both determined restriction on right rotation existed (though it appears to different degrees). In summary, Dr Cummine did not state that any difference in the range of movement, in particular in the cervical spine, either alone or in association with other features or characteristics was sufficient to establish or indicate that improvement had occurred since Assessor Home's assessment approximately 11 months earlier.
8. The Proper Officer referred in her Reasons to the following observations of Davies J in Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182. "[43] Even if Rothman J had not expressed the opinions he did in Garcia, I should have had great difficulty accepting that a party was entitled to refer a matter for further assessment simply because they obtained a medical report which said something different from previous reports that had been considered by an assessor. If that was so, there may never be an end to the assessment process. It would be inconsistent with the objects of the Act particularly the object set out in s 5(1)(b) of encouraging early resolution of compensation claims."
9. However the Proper Officer proceeded upon the basis that this case was not in the same category as that referred to in Alavanja as set out above. "… as his assessment of whole person impairment is based on a different range of active motion in relation to the cervical and lumbosacral spine based on clinical findings at an examination nearly 12 months after the original assessment ..."
10. The Proper Officer's statement that Dr Cummine's assessment of whole person impairment "is based on a different range of active motion in relation to the cervical and lumbosacral spine based on clinical findings" reflects an assumption and process of reasoning based upon the insurer's submission to the effect that the range of active motion in the cervical spine was a decisive or central factor reflecting improvement implicit in Dr Cummine's overall assessment of whole person impairment. The insurer's submission and the Proper Officer's acceptance of that submission formed the basis upon which the Proper Officer concluded that this case was not in the Alavanja category.
11. In my opinion the information relied upon by the insurer did not, for reasons discussed above, satisfy the preconditions required for further assessment under s 62(1A). The decision of the Proper Officer accordingly, in my respectful opinion, was one made in the absence of additional information sufficient to establish those preconditions. There was no additional relevant information. Even if, contrary to that conclusion, there could be said to be some additional information, it was not additional relevant information capable of having a material effect on the outcome of the previous assessment.
12. The decision of the Proper Officer to refer the dispute for further assessment was based on legal error by reason of the following. In determining whether the preconditions for referral for further assessment under s 62(1A) had been satisfied, the Proper Officer proceeded upon the basis: 1. That Dr Cummine's findings as to cervical range of motion established an underlying change (improvement) in the plaintiff's cervical injury when no opinion to that effect had been expressed by Dr Cummine; 2. That Dr Cummine's findings as to range of cervical movement was evidence that was capable of proving that improvement or significant improvement in the plaintiff's cervical spine had occurred since the previous assessment; 3. In reaching her decision, by taking into account as "information" the submission made by the insurer's legal representative, that Dr Cummine's report evidenced that there had been significant improvement and implicitly that the submission made was correct; 4. In reaching the conclusion that Dr Cummine's report as to the range of cervical movement meant that the report was not in the Alavanja category of case (ie, a further assessment or of a revised opinion by another medical examiner).
13. The Proper Officer's decision, by reason of the matters referred to in the preceding paragraph, took into account and relied upon irrelevant information and failed to apply the provisions of s 62(1A) by, firstly, identifying the information relied upon by the insurer as capable of constituting "additional information" and secondly determining whether it was "information" "capable of having a material effect on the outcome of the previous assessment."
14. As discussed in greater detail below, the plaintiff had previously been assessed by two medical examiners as having a 5% permanent whole person impairment of the cervical spine. These assessments were made by Dr Noel Dan, a neurosurgeon who saw the plaintiff on referral by Dr Parhawke, general practitioner, and by Assessor Home. If in fact there had been no change in the plaintiff's cervical underlying condition, Dr Cummine's opinion would fall within the category of a revised opinion only.
15. As Meagher JA in Henderson stated, if the claimed "additional information" did not have the effect his Honour there stated - that is, constituted a change in "underlying symptoms or assumptions" by reference to which the further opinion was advanced, then that opinion simply amounted to a further opinion: Henderson at [100] extracted in [104] above.
16. Dr Cummine, in fairness to him, did not categorise, describe or state that his examination identified a particular matter or matters that indicated that there had been a change and improvement in the plaintiff's cervical condition by reason of change in the underlying pathology, symptoms or assumptions made. The importance, as Meagher JA in the abovementioned passage observed, of the need for an application "to specify clearly" the "additional information" was to enable the consideration of the issue of "material effect" on the earlier assessment to be undertaken, thereby enabling a determination as to whether a particular application for further assessment meets the s 62 criteria. Medical opinions must be subject to such scrutiny to ensure they meet that criteria, lest multiple or repeat applications for assessment are made which in fact are based merely on a new, another, or "revised" opinion.
17. Dr Cummine did not advance the basis put forward in the insurer's application in this case of "improvement" or "significant improvement" nor suggest that any such form of change arose from, or by reason of, a change in underlying factors, symptoms or assumptions.

The Second Decision - Assessor Burns' Assessment

1. There are three separate grounds relied upon in the plaintiff's challenge to the decision and Certificate of Assessor Burns given on 31 July 2014. 1. That by reason of the Proper Officer's decision, Assessor Burns only considered some and not all of the injuries. It was contended that this was impermissible. 2. Assessor Burns was supplied with material that was wholly irrelevant to a whole person impairment assessment by the first defendant. This consisted of a copy of a 2007 Medical Tribunal decision made under the Medical Practice Act 1992 by which the plaintiff's application for re-registration as a medical practitioner was dismissed. Assessor Burns in his decision stated that he had "considered" all material, which included the Tribunal's decision. If the material was to be used (said to have been irrelevant in any event) procedural fairness required that the plaintiff be confronted with it and provided with the opportunity to respond. It was contended that, the material having been "considered", it could not be concluded that it played no part in the medical assessor's decision. 3. An issue had arisen in materials exchanged and the earlier MAS assessment as to whether the plaintiff's cervical injury should be classified as being DRE Category I or II. The AMA 4 Guidelines, which are to be taken into account by assessors, specify the requirements, in particular the criteria, for the classification of DRE Category I and II (at pp 103 and 104 of the Guidelines) but the assessment of Assessor Burns was not made in accordance with the Guidelines.
2. In relation to the first of these three grounds, s 96 of the MAC Act deals with "special assessments" of disputes of a specified kind.
3. Assessor Burns' Certificate was issued under Part 3.4 (Medical Assessment) of the MAC Act. As noted above, s 58 in that Part defines "medical assessment matters" as, inter alia: "(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle accident is greater than 10%."
4. The Proper Officer's letter of 6 June 2014 which set out her Decision and Reasons on the s 62 application, stated that she was referring only the cervical spine and lumbosacral spine injuries for further assessment.
5. A letter sent by the plaintiff's solicitors to the Proper Officer dated 13 June 2014 did not raise or take up any issue of the hip injury not having been referred as well as the spinal injuries.
6. The combined certificate brought into account the assessed impairment of all relevant injuries including Assessor Home's assessment in relation to the right hip. I do not consider that there was a requirement by the provisions of the MAC Act for the Proper Officer to have again referred the question of impairment of the plaintiff's hip injury for further assessment. No dispute had arisen in respect of that matter and no disadvantage resulted in the Proper Officer not including the injury to the plaintiff's hip in the referral under s 62.
7. I have concluded that no basis has been established in respect of this ground that warrants a grant of relief.
8. As to the second of the three grounds set out above, I consider that this ground may be readily dealt with. Whilst there is much to be said for the proposition that the Medical Tribunal's decision concerning the plaintiff was irrelevant material and potentially unfairly prejudicial, in circumstances in which no adverse comment had earlier been made by Assessor Home as to the plaintiff's bona fides and there was no other evidence bringing the plaintiff's complaints of injury and disability into question, no detriment flowed from Assessor Burns having seen and considered the material. Indeed, a reading of Assessor Burns' Reasons indicates that he accepted the plaintiff as reliable and authentic in relating his symptoms and limitations, which symptoms were essentially described by the plaintiff in moderate terms. There is no suggestion that Assessor Burns (or Assessor Home or Dr Cummine) was in any way critical of the plaintiff as a historian or in relation to his account of symptoms and associated limitations. To the contrary, each examiner accepted the plaintiff's account.
9. I do not consider this ground provides a basis for the relief claimed.
10. The third of the above three grounds raises a question as to the approach and path of reasoning of Assessor Burns. This ground concerns Assessor Burns' approach and decision in concluding that the applicable rating in respect of the cervical injury was DRE Category I, which resulted in a zero whole person impairment outcome. This was in contrast to Assessor Home's previous assessment rating of DRE Category II. Dr Burns' DRE rating subsequently contributed to the combined whole person impairment of 7% determined by Kathryn Williamson.
11. The criticism of Assessor Burns' assessment was based upon the proposition that he failed to apply the assessment criteria or descriptors specified in the AMA 4 Guidelines relevant to DRE Categories I and II. It will be necessary to analyse and refer in some detail to the criteria and their application in determining the degree of whole person impairment.
12. The starting point in examining the submissions for the plaintiff is that the actual path of reasoning leading to the Medical Assessor's decision and Certificate must be set out.
13. For that proposition, reliance was placed upon the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 88 ALJR 52 at [47]-[48]. That was a case I note involving the provisions of s 68(2) of the Accidents Compensation Act 1985 (Vic). That subsection provides: "The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion."
14. In the judgment of the Full Court in that case (French CJ, Crennan, Bell, Gageler and Keane JJ), it was observed: "[46] Two considerations are of particular significance in determining by implication the standard required of a written statement of reasons in order to fulfil the duty imposed on a Medical Panel by s 68(2) of the Act. One is the nature of the function performed by a Medical Panel in forming and giving an opinion on a medical question referred to it. The other is the objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion. … [48] The reasons that s 68(2) of the Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself."
15. It was next observed in submissions for the plaintiff that the AMA 4 Guidelines have the status of delegated legislation.
16. Section 44(1)(c) and s 44(7) of the MAC provide: 44(1) The Authority may issue guidelines (MAA 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, … 44(7) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to a guideline under this section in the same way as those sections apply to a statutory rule.
17. Section 133 of the MAC Act provides: 133 Method of assessing degree of impairment (1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part. (2) The assessment of the degree of permanent impairment is to be made in accordance with: (a) MAA Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force - the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition. (3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
18. Table 73 to the AMA Guidelines, entitled "DRE Cervicothoracic Spine Impairment Categories", lists eight different categories of DRE rating (DRE refers to Diagnostic Related Estimates). DRE Impairment Categories I and II are in the following terms: Table 73. DRE Cervicothoracic Spine Impairment Categories DRE impairment category Description % Impairment of the whole person Impairment (%) with long-tract signs combined VI (40) VII (60) VIII (75) I Complaints or symptoms 0 II Minor impairment: clinical signs of neck injury are present without radiculopathy or loss of motion segment integrity 5 43 62 76

1. On 1 October 2007, Permanent Impairment Guidelines for assessment were issued which were provided by the plaintiff to the court in a bundle of authorities. Clauses 4.15 and 4.16 are in the following terms: "4.15 To determine the correct DRE category, the assessor should start with Table 4.1 (MAA Guidelines), and use this Table in conjunction with the DRE descriptors (pp 102-107 AMA g Guides), as clarified by the definitions in the box above with the following amendments to pp 102-107 of the AMA 4 Guides: ● "or history of guarding" is deleted from DRE category I for the lumbosacral spine (p 102) and DRE category I for the cervicothoracic spine (p 103) ● "documented or" as it relates to muscle guarding is deleted from DRE category I of the thoracolumbar spine (p 106) ● replace "that has been observed and documented by a physician" with "that has been observed and documented by the assessor" in DRE category II for the lumbosacral spine (p 102) ● replace "observed by a physician" with "observed by the assessor" in the descriptors for DRE category II for the cervicothoracic spine (p 104) and thorocolumbar spine (p 106) ● replace "or displacement" with "with displacement" in the descriptors for DRE category II for the thoracolumbar spine (p 106). 4.16 If an assessor is unable to distinguish between two DRE categories, then the higher of those two categories should apply. The inability to differentiate should be noted in the assessor's report and explained."
2. Section 3.3h, entitled "Cervicothoracic Spine Impairment", sets out five DRE categories and the descriptors, structural inclusions and impairment rating relevant to each. Categories I and II are in the following terms: "DRE Cervicothoracic Category I: Complaints or Symptoms Description and Verification: The patient has no significant clinical findings, no muscular guarding or history of guarding, no documentable neurologic impairment, no significant loss of integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness. Structural Inclusions: None. Impairment: 0% whole-person impairment. DRE Cervicothoracic Category II: Minor Impairment Description and Verification: The history and findings are compatible with a specific injury and include intermittent or continuous muscle guarding observed by a physician, nonuniform loss of range of motion (dysmetria, differentiator 1, Table 71, p 109) or nonverifiable radicular complaints. There is no objective evidence of radiculopathy or loss of structural integrity."
3. Particular emphasis was placed upon Clause 4.16 of the Guidelines in the plaintiff's submissions as the basis upon which the assessment should have been made. If utilised, the submission proceeded, it would have resulted in a DRE rating of Category II, not Category I. The error was said to be that Assessor Burns used Clause 4.16 effectively to default to the lower not the higher category (ie, Category I not Category II): T 27-8.
4. As noted above, Assessor Home had determined that the plaintiff's whole person impairment qualified for and was rated as DRE Category II: T 28.
5. The plaintiff's submission was that Dr Cummine, although not assessing as a medical assessor but as an examiner on behalf of the insurer, took a similar approach which again was argued to have been incorrect.
6. It was submitted that Assessor Burns did not determine whether there existed a concurrency, that is that all five criteria or descriptors prescribed under the Guidelines for DRE Category I were satisfied, as required for a Category I rating. DRE Category I, it was observed, requires a determination, inter alia, that there existed the following five criteria or descriptors, each being expressed in the negative: i. The patient has no significant clinical findings. ii. No muscular guarding or history of guarding. iii. No documentable neurologic impairment. iv. No significant loss of integrity on lateral flexion and extension roentgenograms, and v. No indication of impairment related to injury or illness
7. The use of the conjunction "and" at the end of (iv) above was pointed to by the plaintiff as an indicator that all matters in (i) to (v) are cumulative elements.
8. It was submitted in relation to Assessor Burns: "He did not address whether the plaintiff fell within Category I by making findings as to the existence of each of those components": (T 28).
9. Attention in particular was drawn to Element (v) which required that there be "no indication of impairment related to injury or illness."
10. In his submissions for the plaintiff, Mr Romaniuk stated that DRE Category II, Minor Impairment, contains fewer elements.
11. In the plaintiff's Written Submissions at [56]-[58] it was contended: "As the guidelines have that statutory status for the MAS assessor to correctly determine that the Plaintiff's cervical spine injury was to be classified as DRE category 1 the MAS assessor had to make findings that address the five elements of the statutory criteria in DRE category 1 and his path of reasons had to reveal those findings and that process: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 88 ALJR 52, [48] (see also [47]) per French CJ, Crennan, Bell, Gageler and Keane JJ, see also Frost v Kourouche [2014] NSWCA 39, [2] per Basten JA. That was not done by the MAS assessor; indeed there is no appropriate indication in his findings or reasons that the statutory criteria of DRE category I was considered: and those fundamental matters are not to be inferred or supposed: Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816, [130]-[131] per Hayne J and Minister for Immigration and Multicultural Affairs v Yusuff (2001) 206 CLR 323, [5] per Gleeson CJ. On the history obtained, and the findings that were made by the medical assessor, each of the five criteria required for a classification of DRE category I could not be satisfied."
12. In oral submissions at the hearing Mr Romaniuk again submitted: "The specific requirements of Category I have to be addressed because without [a] finding dealing with those five elements, you are not in Category I. If you are not in Category I, but you did not strictly fall into Category II, you go to what clause 4.16 says": T 28.
13. The effect of the submissions for the plaintiff accordingly was: 1. The five criteria or descriptors in DRE Category I that determine impairment under the AMA Guidelines, must all be assessed and findings made in relation to them, if that category is to be applied in a particular case; 2. Assessor Burns did not make a determination as to whether the five elements referred to in (1) were established; 3. Clause 4.16 was misapplied by Assessor Burns. Clause 4.16 applied, there being no basis for distinguishing between the two DRE Categories. Clause 4.16 in those circumstances specifies and requires that the higher, not the lower, of the two categories applies.

Assessment of Cervical Injury: DRE Category I or II

1. As accepted for the purposes of the present proceedings the publication by the AMA previously referred to, entitled "Guides to the Evaluation of Permanent Impairment, 4th edition" set out the relevant guideline requirements for the assessment of Cervicothoracic Spine Impairment (3.3h) in this case.
2. That part of the Guidelines refers to DRE Categories I to V. The details of the relevant categories for the purposes of this case, Category I and Category II are set out above at [138].
3. The AMA Guidelines prescribe the allocated percentage of whole person impairment, in particular, nil per cent whole person impairment is within DRE Category I and 5% whole person impairment in respect of DRE Category II.
4. In the submissions for the plaintiff, as noted above, it was contended that the medical examiner for the insurer, Dr Cummine, did not address the (statutory) criteria for DRE Category II, p 104. I will deal with this aspect further below.

Second Decision: Medical Assessment of Assessor Burns

1. The Reasons and the Further Certificate of Assessor Burns dated 31 July 2014 bring forward for consideration the criteria or 'differentiators' stated in the Guidelines under DRE Cervicothoracic Category I: Complaints or Symptoms and those stated in the Guidelines in respect of DRE Cervicothoracic Category II: Minor Impairment and a determination as to the criteria that Assessor Burns took into account in determining the issue of permanent impairment. Specifically, a question arises as to whether there was, as contended, a failure to apply all relevant DRE criteria, in particular, those that apply to DRE Category I.
2. Firstly, I note that the Reasons of Assessor Burns are segmented into conventional categories. These include consideration of (i) source materials, (ii) the history given by the injured person (in particular, the history of the accident and of symptoms and treatment following the accident), (iii) current symptoms, (iv) clinical examination and findings, (v) consistency of presentation, (vi) document review.
3. Sections 1 to 5 of Assessor Burns' Reasons, in particular, address the application of the criteria for DRE Categories I and II in the Guides to the Evaluation of Permanent Impairment.
4. Assessor Burns' Reasons contained his observations and commentary on the following matters: 1. That the plaintiff's reported symptoms included a history that his neck had improved slightly, but that he still had pain and discomfort when attempting to sleep, that he could not sleep on his right side, and wakes at night with neck or back pain. The pain was reported as being in his neck, mostly on the right-hand side (p 5). 2. Examination of the cervical spine revealed no evidence of localised tenderness or muscle spasm or muscle guarding. 3. Flexion and extension of the cervical spine was 75% of predicted range. They were symmetrical. 4. Rotation to the left and right was 50 degrees and lateral tilt to the left and right 30 degrees. Such movements were symmetrical. 5. There was said to be consistency of presentation, it being noted that the plaintiff gave a "straightforward consistent history. There was no inconsistency in his physical examination" (p 6). 6. Assessor Burns noted that the report of Dr Dan dated 18 January 2013 had recorded an assessment of 5% whole person impairment of the cervical spine and that Dr Cummine had assessed the cervical spine as DRE Category I or zero per cent whole person impairment. 7. A conclusion that the plaintiff had, inter alia, suffered injury to his cervical spine. 8. The plaintiff's cervical and low back conditions had stabilised over a period of more than four years. There is no reference to a significant improvement having taken place in that period or observed on his clinical examination.
5. In Section 7 of the Reasons, entitled "Determinations", Assessor Burns set out his conclusion on "Degree of Permanent Impairment": p 9. The issue, as earlier discussed, is whether the Reasons disclose that proper consideration had been given to the particular DRE criteria as required by the AMA Guidelines, and if so, the result(s) of having applied the criteria in the instant case and the basis upon which Assessor Burns arrived at his conclusion on the ultimate issue of "Degree of Permanent Impairment". In Section 7 of his Reasons, Assessor Burns stated: "Mr Bannister was noted to have symmetrical range of movement in flexion, extension, rotation and lateral bending in the cervical spine. There was no evidence of muscle spasm or muscle guarding or localised tenderness. There was no evidence of non-verifiable radicular complaint in either upper extremity. From Table 73 of the 4th Edition of the AMA Guides his cervical spine would be rated as DRE Category I or zero percent whole person impairment."
6. In a Table set out on page 10 of the Reasons, in relation to "Cervical spine" Assessor Burns provided an affirmative answer by entering the word "Yes" under the heading "Permanent (Yes/No)". However, the Table also recorded an entry of zero per cent current whole person impairment.
7. As noted, the Reasons of Assessor Burns express his conclusion that the plaintiff suffered a muscular-ligamentous injury, inter alia, to his cervical spine in the motor vehicle accident. The Reasons also express his acceptance of the plaintiff's symptoms and complaints of associated disability, pain and discomfort when sleeping, inability to sleep on his right side, waking at night with neck pain, and the right-sided nature of the neck pain.
8. Assessor Burns noted that the plaintiff's history was consistent with the history given to Assessor Home. In the "Determination" section of his report Assessor Burns confirmed his opinion that the plaintiff had permanent impairment of the cervical spine that had stabilised over four years. In the absence of any stated pre-existing or subsequent extraneous cause for the cervical symptoms to have continued over four years, the inference from the Determination of Assessor Burns is that continued pain, discomfort and associated problems were in fact related to the motor vehicle accident.
9. Assessor Burns' conclusions in relation to these matters leads to the central question which arises as to his reasons for stating a zero per cent whole person impairment assessment (in relation to the cervical spine). That in turn requires a determination as to what DRE criteria were considered and applied by Assessor Burns.
10. The description in the AMA Guidelines of DRE Category I, in similar fashion to the relevant DRE category discussed in the case of Crnobrnja v Motor Accidents Authority of New South Wales [2010] NSWSC 633; (2010) 55 MVR 579 (RS Hulme J), requires the absence of each of five distinct matters or differentiators before an impairment can be assessed as falling within the category. The differentiators have been listed at [142] above.
11. Assessor Burns, as noted above, obtained a reasonably detailed history from the plaintiff and performed a clinical examination. He also had available the reports of Dr Parhawk and Dr Dan. Dr Parhawk, as earlier noted, had referred the plaintiff to Dr Dan. Assessor Burns noted Dr Dan's two reports dated 18 January 2013 in which the plaintiff was assessed by Dr Dan as having a 5% whole person impairment rating for the cervical spine (Assessor Burns' report at p 8). As noted earlier, Assessor Home on 6 May 2013 also assessed the plaintiff as having a 5% whole person impairment although Assessor Burns does not refer to having actually seen Assessor Home's Reasons or Certificate amongst the documents that were sent to him, though he noted he was sent a copy of Dr Cummine's report.
12. As mentioned above, Assessor Burns made an evaluation of the nature and consistency of the plaintiff's symptoms and recorded: "Consistency of Presentation Mr Bannister was noted to give a straightforward consistent history. There was no inconsistency in his physical examination." (p 6). "Diagnosis and Causation I believe Mr Bannister did sustain musculo-ligamentous injuries to both is cervical and lumbar spine in the motor vehicle accident." … The following injuries WERE caused by the motor accident: ● Cervical spine - musculo-ligamentous injury …" (p 9) Mr Bannister continues to complain of pain and discomfort both in his neck and low back. It is now more than 4 years since the motor vehicle accident so I believe that these conditions would now be considered as permanent for assessment." (p 9) ● Dr Burns' history of the plaintiff's complaints indicated right sided neck pain, that he could not sleep on his right side and woke at night with neck or back pain and that otherwise "The pain in his neck is mostly on the right hand side" (p 5 of 11). Assessor Home had obtained a history which included "restricted motion when turning to his right side. This causes him difficulty driving." (p 4) Dr Cummine obtained a history of neck pain on walking with pain on the right side of the neck and difficulty turning his head to the right in traffic (p 2).
13. A medical assessment under the AMA Guidelines DRE Category I applies where the injured person complains about symptoms but where clinical signs are not found on assessment. Meaning and content must be given to each of the criteria for DRE Category I.
14. As noted, in the "Description and Verification" of DRE Category I the descriptors include "no indication of impairment related to injury or illness", a phrase which must be applied in accordance with its intended meaning. In particular in that respect the question arises as to the meaning to be given to the word "indication" in the formulation. The phrase clearly does not include "clinical findings" as that is within the first of the five DRE Category I delineators. Taken in context it must, in my opinion, mean and refer to an "indication" apparent to a medical assessor based not merely on a history of "symptoms" per se but also upon the description, nature and history of symptoms and associated disabilities supporting the existence of presence of an underlying cause or pathology (disease or other condition).
15. I note at this point that Assessor Burns made no reference to the delineator, "no indication of impairment related to injury or disease."
16. The Oxford English Dictionary defines the word "indication", inter alia, as: "Indication - something that indicates or suggestions, a sign, a symptom, a hint… (in) Medicine - a symptom which suggests a particular disease, syndrome …"
17. Assessor Burns, as discussed above, accepted that the plaintiff suffered injury to his neck and that his symptoms of pain and discomfort in his neck were consistent with that injury and had stabilised. He proceeded upon the basis that the "condition" (p 9) of his neck injury was to be considered "permanent". When, however, he discussed the "Degree of Permanent Impairment" (pp 9-10) he recorded matters relevant to only two of the five DRE Category I criteria: 1. No significant clinical findings. 2. No evidence of muscle spasm or muscle guarding adding "or localised tenderness".
18. There was no reference to any of the remaining three of the five criteria specified in DRE Category I. Assessor Burns did refer to one other matter but that was a specified criteria for DRE Category II not DRE Category I, namely: "No evidence of non-verifiable radicular complain in either upper extremity".
19. Assessor Burns' reliance on the last-mentioned matter, however, may not carry significance as it could possibly be seen as a sub-set of the absence of a "clinical finding."
20. Notwithstanding Assessor Burns' acceptance of the nature, description (right-sided pain) and continuation of the plaintiff's symptoms and associated disabilities discussed above leading to "impairment" there was a failure by him to address all the criteria in DRE Category I, including, as noted above, a failure to address the delineator of "no indication of impairment related to injury or illness".
21. In a case such as the present where the nature of the symptoms were accepted by the medical assessor as genuine and consistent, and sufficient to produce continuing disability in the form of continuing pain and discomfort, sleep disturbance etc, such matters were at least consistent with, if not indicative of, an underlying injury or cervical syndrome and impairment which continued as the source or cause of the symptoms and disabilities.
22. In the course of submissions, Mr Robinson was asked that if Assessor Burns be shown to have accepted and found that the plaintiff had a "permanent impairment" would he not in those circumstances then have to give a reason why the case would still qualify as a DRE Category I case.
23. In response, Mr Robinson stated that his answer was that "… it would be preferable if he did, in an ideal world …": T 51:25-40.
24. The absence of any reference to the criterion "no indication of impairment …" etc, and the absence of consideration as to its application in the assessment of impairment is consistent with there having been a failure to consider a relevant matter apply that a medical assessor was required to assess under the Guidelines.
25. On that basis, I have concluded that the assessment made on 30 July 2014, evidenced in the Certificate of 31 July 2014, was not one made according to law in that the provisions upon which the medical assessment was required to have been undertaken under the MAC Act, including the AMA Guidelines including the DRE method specified were not complied with.
26. As mentioned above, the requirement for a medical assessor proceeding under the AMA Guidelines to consider and apply the DRE criteria was discussed in Crnobrnja v Motor Accidents Authority of NSW [2010] NSWSC 633. In that case RS Hulme J observed: "28 In this connection it is appropriate to recognise that in respect of none of the cervical, thoracic or lumbar spine did he refer either to there being "no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury of illness" - other aspects of the description of DRE I. And although Dr Truskett had earlier referred to the radiological examinations, he nowhere said that they were conducted in circumstances of "lateral flexion and extension". It seems to me that ultimately the question boils down to whether an assessor is obliged to refer, either expressly or by necessary implication, to each of the matters necessary to place a claimant in DRE Category I if that is what an assessor concludes. 29 Given the different terminology in the descriptions of other Categories, different considerations may well apply to them but the description in the AMA Guidelines of Category 1 requires the absence of each of 5 distinct matters, viz:- significant clinical findings, muscle guarding, documentable neurological impairment, significant loss of structural integrity on lateral flexion and extension roentgenograms, and indication of impairment related to injury or illness." 30 Clause 4.19 of the MAA Guidelines is not as specific although in its statement that "DRE I applies when the injured person complains about symptoms but there are no objective clinical findings by the assessor", it is equally categorical about the absence of "objective clinical findings". I do not find it necessary in the circumstances of this case to decide whether a formulation simply in terms of clause 4.19 would be sufficient statement of reasons. 31 Clearly relevant in this connection is clause 4.20 which, at the cost of repetition dictates that, "when allocating the injured person to a DRE category the assessor must reference the relevant differentiators and/or structural inclusions". It must also be recognised that the clause is not printed in bold and thus not a directive as to how the assessment should be performed but given the obligation in an assessor to provide reasons - an obligation that must extend to reasons explaining or justifying the decision - it is difficult to see how an assessor can do so without referring, expressly or by implication, to either the absence of "objective clinical findings" or all of the 5 matters listed in paragraph 29 above. 32 Thus I do not regard Dr Truskett's Assessment as complying with the obligation, contained in s61(9) of the Act to provide reasons. 33 Consistently with the approach that should have been taken, Dr Truskett also erred in the reasons he gave in the paragraphs I have numbered (vii) and (viii) dealing with the Thoracic and Lumbar Spine. Although muscular spasm may well be a significant clinical finding, the absence of only muscular spasm and neurological deficit does not justify a classification of DRE Category I. The absence of other matters to which Dr Truskett did not refer was also required."
27. In respect of the decision in Crnobrnja, it was submitted by the first defendant that the decision in that case was not binding and was wrong: Additional Submissions at [11].
28. I respectfully agree with RS Hulme J in Crnobrnja that a medical assessor required to apply the Medical Assessment Guidelines is required to reference the DRE criteria or differentiators - that is, to consider and apply the criteria to the facts of a particular case thereby ensuring that the Guidelines have been properly considered and applied. Placing an injured person's injury within one or other of the DRE Categories will, in turn, then determine the percentage of the impairment to which that person is entitled in accordance with the whole person impairment percentage set out in Table 73.
29. The question as to whether a failure, for example by a tribunal, to deal with a particular aspect of a claim amounts to reviewable error has been the subject of considerable attention in the relevant authorities. In the present case a medical assessor, as the statutory officer required to make a decision supported by reasons in a medical assessment under the MAC Act and Guidelines is, as discussed above, made subject to an obligation to give attention to the specified criteria for making a medical assessment. The failure to identify and apply relevant DRE criteria or differentiators in his or her assessment may support the conclusion that the particular criteria or differentiator was not in fact considered and/or applied in assessing which Category the injury/impairment in a particular case is to be place.
30. Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 concerned a challenge made to a decision of the Refugee Review Tribunal on a question as to whether or not the Tribunal was obliged to make findings on material questions of fact and if required, whether a failure to make findings was a ground for judicial review under the Migration Act 1958 (Cth).
31. In Yusuf, the Court addressed the obligation under s 430(1) of the Migration Act to address four matters in a statement, one of which was "findings on any material questions of fact." Their Honours observed that the provision entitled a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material: Yusuf at [69].
32. Although the legislation and the factual context of that case, of course, was quite different to the present, involving a tribunal rather than a statutory decision-maker, nonetheless some of the principles discussed by the plurality (McHugh, Gummow and Hayne JJ) are instructive. As was there observed, a question arose as to whether or not the statutory scheme placed an obligation on the Tribunal to make findings on a particular matter. That question was to be determined by consideration of the statutory scheme as a whole.
33. In the present case, as RS Hulme J in Crnobrnja observed, a medical assessor is required to consider and apply the DRE criteria or differentiators and to apply them in a particular case.
34. As also observed by the plurality in Minister for Immigration v Yusuf: "… what is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that a centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts." (at [74])
35. As already detailed, in the present proceedings the central complaint was that a reading of Assessor Burns' Reasons and Certificate indicates a failure to consider all of the DRE Category I criteria, in particular in this case, whether or not there was or was not an "indication of impairment" as specified as the last delineator in DRE Category I.
36. Given Assessor Burns' acceptance of the cervical symptoms having existed for over four years and the permanency of the plaintiff's condition, it is difficult to see a basis upon which he would not have concluded that the plaintiff in fact had an indication of impairment related to injury. Even if there be doubt as to this conclusion, Clause 4.16 would require him, if unable to distinguish between DRE Category I and II, to apply the higher of those categories. It is evident that the assessor did not consider Clause 4.16 as having any application in the present case.
37. As discussed above, the evidence establishes that two assessments, one by Dr Dan and the other by Assessor Home, placed the plaintiff's impairment in DRE Category II. Dr Cummine's assessment was based upon a medico-legal examination, not expressed as having been undertaken by way of an assessment made under and in accordance with the AMA Guidelines. The assessment of Assessor Burns, on the basis discussed above, failed to address the "degree of impairment" by reference to the accepted "indication" as to the nature and extent of impairment. In those circumstances, in my opinion, the assessment evidenced in the Certificate of 31 July 2014 was made contrary to law or alternatively was affected by legal error should be set aside.
38. Accordingly, I have concluded that the Certificate and Reasons of Assessor Burns should be set aside on two bases. Firstly, upon the basis that the referral of the Proper Officer to him was made contrary to law. Secondly, because in any event the medical assessment purportedly made by Assessor Burns under the Guidelines, was made contrary to the legal requirements prescribed for medical assessments in particular those arising from the DRE Category provisions contained in 3.3h of the AMA Guidelines.

Orders

1. Accordingly I make the following orders: 1. A declaration that the decision of the third defendant, the Proper Officer appointed by the Motor Accidents Authority of New South Wales made on 6 June 2014 pursuant to s 62(1A) of the Motor Accidents Compensation Act 1999 to refer the plaintiff for further medical assessment under s 62 of that Act was made contrary to law. 2. The decision of the Proper Officer made on 6 June 2014 referred to in Order 1 be set aside. 3. A declaration that the medical assessment of the fourth defendant made on 31 July 2014 in MAS Matter Number 2014/04/1557 by way of Further Certificate issued under Part 3.4 of the MAC Act 1999 as to the degree of permanent impairment of the plaintiff was made contrary to law. 4. The Further Certificate in MAS Matter Number 2014/04/1557 issued by the fourth defendant on 31 July 2014 referred to in Order 2 is set aside.
2. Leave to the parties to apply with respect to costs or other ancillary matters.

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: 19 June 2015