Bratic v Motor Accidents Authority of New South Wales & Ors

Bratic v Motor Accidents Authority of New South Wales & Ors - [2010] NSWSC 1244 - NSWSC 2010 case summary — Zoe

[16]

8 On the substantive issue raised by the plaintiff's summons the insurer submitted that no error of the kind contended for by the plaintiff has been made out and that the summons should be dismissed. It was submitted that to focus on the single word "significant", used on two occasions when Dr Wan described the dysmetria exhibited by the plaintiff after a comprehensive clinical assessment and evaluation by him; a word which was then explained or interpreted in the Review Panel's decision as no identifiable dysmetria, is contrary to the approach adopted by this Court in a number of decisions when the adequacy and content of the reasons for decision provided by statutory medical assessors have been under consideration (see Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372). It is also a construction that the insurer submitted fails to recognise that the Guidelines specifically require medical assessors (each of whom in this case were specialist clinicians) to utilise clinical judgment in assessing whether or not the results of measurements or tests are plausible. In particular, the insurer emphasised that the Guidelines direct assessors that to qualify as "true dysmetria" a finding must be reproducible and consistent, and the assessor must be convinced that the individual is cooperative and "giving full effort". 9 The insurer submitted that despite the fact that Dr Wan reported "no significant dysmetria", as distinct from a categorical finding of no dysmetria or no true uniform loss of motion, the effect of his findings are that there was no evidence of dysmetria important or meaningful enough to merit attention, or to be indicative of true non-uniform loss of spinal motion such as to qualify as objective evidence of impairment under the Guidelines. The insurer also pointed to the fact that the use of the word "significant" is built into the statutory instrument the assessors are required to apply in the description of complaints and symptoms of DRE cervicothoracic category I under the AMA 4 Guides, albeit not in connection with dysmetria per se (as to which see para 16 of this judgment). Furthermore, so it was submitted, when his detailed reasons for decision are read and considered as a whole, and due weight is given to his observation that the plaintiff demonstrated exaggerated pain behaviour (which I note he also described as significant) and to the inconsistency between formal and informal examination of the plaintiff's function (something which was reported upon by other practitioners whose reports were available for his consideration), his assessment of the degree of permanent impairment at 0% was an available and entirely appropriate finding made in accordance with the requirements of the statutory scheme.

[32]

1.43 Where there are inconsistencies between the assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies should be brought to the claimant's attention, e.g. inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The claimant will then have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness." 15 Chapter 4 of the Guidelines deals with spinal impairment which specifies, inter alia, that only the DRE method is to be used. The assessor is to be directed to establish the appropriate category for spinal impairment by reference to a table used in conjunction with the AMA 4 Guides (as modified by cl 4.15 of the Guidelines) where DRE I is defined as low back pain, neck pain [back pain (lumbago)] complaints or symptoms. DRE II is defined as low back pain or neck pain with guarding or non-verifiable radicular complaints or non-uniform range of motion (dysmetria). Dysmetria (or non-uniform range of motion) is then defined as: "Nonuniform loss of motion of the spine in one of the three principle planes is sometimes caused by muscle spasm or guarding. To qualify as true nonuniform loss of motion, the finding must be reproducible and consistent and the assessor must be convinced that the individual is co-operative and giving full effort." 16 The AMA 4 Guides relevantly provide: " 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." (emphasis added) " 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." The factual background and the issue of delay

[35]

22 Given the contradictory findings of the various medical specialists to which I have referred, on 24 July 2008 the plaintiff was assessed by Dr Wan in accordance with the statutory process in Part 3.4 of the MAC Act for resolving the medical dispute between the plaintiff and the insurer as to the degree of physical impairment she suffered as a result of injuries caused by the motor accident. Dr Wan is a specialist in rehabilitation medicine and a Review Panel member. 23 On 30 July 2008 Dr Wan issued a certificate certifying that soft tissue injuries to the cervical and thoracic spine and right shoulder gave rise to a whole person impairment which was, in total, not greater than 10%. His reasons for coming to that conclusion were set out in a detailed statement of reasons attached to the certificate. They were cited by him as forming part of his determination. 24 The following findings, as they relate to the plaintiff's thoracic and cervical spine, can be extracted from that statement of reasons: (a) In so far as the plaintiff's complaint of pain at the time of examination Dr Wan noted pain in her neck experienced as a sharp intermittent pain which was increased by turning her head and relieved by massage. On clinical examination he found the plaintiff oriented and alert, however even with the help off the interpreter she was vague and did not provide direct answers to questions asked of her. He noted features of exaggerated pain behaviour during the interview and physical examination. (b) Examination of the plaintiff's neck showed generalised mild tenderness over the cervical spine but no definite muscle spasm or guarding. There was moderate reduction in active movement of the cervical spine during formal examination with the active range of movement (ROM) measured using an inclinometer and a goniometer. When asked to explain why she showed more active range of motion when not in formal examination, and why this was reported upon by other medical experts, the plaintiff informed Dr Wan that what she was demonstrating to him were her actual ranges of movement. After repeating the measurements of range of motion on two further occasions he reported that the best results were:

[43]

28 On 5 December 2008 the Review Panel was convened to review all aspects of Dr Wan's assessment. The three members of the Review Panel and their listed clinical specialties were Professor Fearnside, neurology and neurosurgery, Dr Schultz, general surgery, and Dr Noll, orthopaedic surgery. They noted, in particular, that the degree of whole person impairment was the aspect of Dr Wan's assessment that was in dispute. 29 The Review Panel considered all of the available evidence and decided that there was adequate information in the available documentation such that a re-examination of the plaintiff was not necessary for the Review Panel to reach a decision. 30 The Review Panel was satisfied that in respect of each of the claimed injuries to the neck, thoracic spine and right shoulder, the injuries had stabilised. In respect of the assessment of impairment to the spine they reported as follows: "After careful consideration the panel concluded that the clinical findings reported by Assessor Wan regarding the cervical spine fulfilled the criteria for DRE category I with 0% whole person impairment. The panel arrived at this conclusion by taking into account the following criteria: + The panel accepted that the comment that there was 'no definite muscle spasm or guarding' was intended to mean an absence of any relevant evidence of muscle spasm or guarding. + The panel also accepted that the comment that there was 'no significant dysmetria (asymmetrical loss of motion)' was intended to mean an absence of any relevant evidence of dysmetria. The panel noted in this regard that the Oxford Dictionary defines the word 'significant' as '…extensive or important enough to merit attention; indicative of something'. Being in the negative, the panel accepted that Assessor Wan had indicated that there was no evidence of dysmetria important enough to merit attention or indicative of something. + The panel was firmly of the opinion that assessment of ranges of movement of the neck (and the rest of the spine) could be appropriately assessed by a suitably trained medical practitioner without the use of a goniometer or inclinometer and it was therefore open to Assessor Wan to arrive at a conclusion regarding the ranges of movement of the neck 'when not in formal examination' and therefore when not using a goniometer or inclinometer. + Inconsistent ranges of cervical spine movements were noted at the time of the examination carried out by Assessor Wan and this was drawn to the attention of the Claimant as required by the MAA Guidelines clause 1.43 (page 7). + The panel noted the absence of any complaint of symptoms or clinical features suggestive of radiculopathy." 31 The Review Panel concluded that the clinical findings reported by Dr Wan regarding the thoracic spine fulfilled the criteria for DRE Category I with 0% whole person impairment and stated: "In arriving at this conclusion the panel took into account the following criteria: + Assessor Wan reported having found 'no muscle spasm or guarding' on examination of the upper back. + He reported having observed 'no significant dysmetria' during formal examination or with spontaneous movement of the upper back. (The panel again accepted that the comment that there was 'no significant dysmetria' was intended to mean an absence of any relevant evidence of dysmetria). + The panel noted the absence of any complaint of symptoms suggestive of radiculopathy and Dr Wan was noted to report…that '…There was no evidence of radiculopathy'. + The reported clinical findings in relation to the lower back were not felt to be relevant with regard to the assessment of impairment." 32 In concluding that it agreed with the assessment of the cervical spine made by Dr Wan the Review Panel referred to clause 1.42 of the Guidelines which states the following: "Tests of consistency such as using a goniometer to measure range of motion are good but imperfect indicators of claimant's efforts. The assessor must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If in spite of an observation or test result the medical evidence appears not to verify that an impairment of a certain magnitude exists, the assessor should modify the impairment estimate accordingly, describing the modification and outlining the reasons in the impairment evaluation report." 33 The Review Panel agreed with Dr Wan that the injuries sustained were more appropriately described as follows: + "Cervical spine - soft tissue injury + Thoracic spine - soft tissue injury + Right shoulder - soft tissue injury". 34 The Review Panel considered the certificates issued by Dr Wan and determined that both the certificate as to stabilisation and the certificate as to permanent impairment were confirmed. A new certificate dated 15 December 2008 issued. 35 On 17 December 2008 the Proper Officer advised the insurer's solicitor of the Review Panel's decision by enclosing a copy of their reasons for decision. They confirmed a copy had been forwarded to the plaintiff's solicitor. I note that in Mr Macri's affidavit he said that it was Dr Wan's decision that was received on 15 December 2008. I assume this is an error and he is in fact referring to the decision of the Review Panel. He goes on to say that his file indicates that the plaintiff took a number of steps to pursue her claim up until this time but, I infer, had done nothing thereafter until 18 May 2009 when her solicitors responded to a letter from the insurer (which appears to be in a standard form) inviting their participation in an informal settlement conference by declining the offer until "final investigations" were complete and "final documents" received. These investigations and documents are not further explained. What Mr Macri next says is that on 30 July 2009 counsel's advice was sought and on 9 October 2009 counsel advised in writing (and I am told in some detail) after which the proceedings were commenced on 29 October 2009. What remains unexplained, so far as these proceedings are concerned, is the seven months from December 2008 before counsel's advice was sought, accepting as I do, that counsel's advice, whilst not promptly delivered, may have taken some time to consider before it was rendered.

[44]

Discretionary considerations 36 In urging for the disposition of the summons on discretionary grounds the insurer submitted that despite there being no time limit under the Supreme Court Act or the Uniform Civil Procedure Rules 2005 for a party to commence proceedings for judicial review, a delay of fifteen months before the plaintiff commenced proceedings to challenge Dr Wan's decision, and ten months from the date of the decision of the Review Panel, was intolerable and unacceptable both as a matter of general principle (as to which see for example Italiano v Carbone [2005] NSWCA 177 at [117]) and when regard is had to the statutory scheme under the MAC Act which is designed to achieve the statutory objectives of cost efficiency and the speedy resolution of compensation claims. 37 It was submitted that the Court should be quick to discourage claimants for damages under the statutory scheme from delaying seeking judicial review of decisions made in the bureaucratic process under the MAC Act, particularly where a process for resolving disputes about medical assessment matters is provided for in Part 3.4, designed to avoid the delay which would otherwise result where the system is clogged with "frozen" claims. The insurer also pointed to the cost and efficiency implications were allegedly invalid medical assessments or other decisions routinely challenged in this Court. 38 It cannot be said that the plaintiff failed to act promptly or in accordance with the statutory protocols under the MAC Act in seeking a review of Dr Wan's decision by a Review Panel. In doing so she embraced the very scheme that the Act provides for when a decision of a medical assessor is said to be incorrect in a material respect. In Wilkie v Motor Accidents Authority of New South Wales [2007] NSWSC 1086 Malpass AJ dismissed a summons on discretionary grounds where the plaintiff had delayed for five months before seeking judicial review of the decision of the Proper Officer to refer a decision of a medical assessor to a Review Panel, and where she commenced proceedings only after the process of further assessment reduced her whole person impairment to less than the statutory threshold. His Honour was of the view that she should have first pursued the statutory review provided for in the MAC Act and that she should not have participated further in an assessment process that she claimed was invalid.

[45]

39 In so far as the challenge to the decision of the Review Panel is concerned I do not consider that ten months from the publication of the reasons for decision to the commencement of proceedings in this Court is intolerable or unwarrantable per se, despite the plaintiff's conduct in apparently being prepared to proceed with the settlement of her claim as the next stage in the assessment process under the Act once her solicitor had "further documents" and the "result of investigations were at hand". However, it is difficult to regard the expiration of fifteen months from the publication of Dr Wan's decision in July 2008 to the date of filing the summons in the same light. In the absence of any other explanation, and there is none proffered, the delay is explicable solely on the basis that the plaintiff elected to participate further in the medical assessment process under the MAC Act by applying for and later participating in a medical assessment by the Review Panel, albeit passively, in the sense that she did not seek to be further examined. Given my observations about the appropriateness of the plaintiff pursuing her statutory options before bringing proceedings in this Court, the length of delay, however, is not determinative. What is determinative is her participation in the review conducted in circumstances where, given the correspondence with the Proper Officer in November 2008, she must be taken to have known that pursuant to s 63(3A) of the MAC Act the review would involve a de novo inquiry into the assessment of the degree of whole body impairment and, if a new certificate of determination issued under s 63(4) (as occurred in this case), it would have the dual effect of replacing Dr Wan's assessment by operation of s 62 of the MAC Act and becoming conclusive evidence of the matters stated in it under s 61(2). 40 Having regard to the correspondence tendered in the proceedings I am also satisfied that the plaintiff must also be taken to have known that the Review Panel would make its assessment on the basis of Dr Wan's clinical findings since had not asked to be re-examined. Her open acquiescence in this process, and what must be taken to be her acceptance of the risk that there might be a finding by the Review Panel adverse to her based on Dr Wan's clinical findings, is conduct which satisfies me that in the exercise of discretion I should dismiss that aspect of the claim for relief that is grounded on the Review Panel's purported failure to re-examine her before they undertook an assessment of the degree of her whole person impairment. In addition, because I am satisfied that Dr Wan's decision is of no continuing legal effect in any event, having been effectively replaced by the certificate issued by the Review Panel, I refuse the relief the plaintiff seeks in respect of Dr Wan's decision, in its entirety, on discretionary grounds. 41 That leaves open the question whether I should uphold the insurer's submission and dismiss the plaintiff's summons, in so far as it relates to the decision of the Review Panel confirming Dr Wan's assessment of 0% impairment of the spine, in the exercise of discretion.

[47]

Has jurisdictional error been made out? 43 The plaintiff's challenge to the Review Panel's decision is essentially the same as the challenge to Dr Wan's decision, namely that the clinical findings upon which the assessment of impairment was based (namely the examination and testing undertaken by Dr Wan) necessitated a finding of impairment of both spinal regions within DRE II. In this Court, that finding is characterised as a jurisdictional error whereas, for the purposes of persuading the Proper Officer to refer it to a Review Panel, it was characterised as a material error in the assessment process. Nothing turns on the distinction. Although I have refused the relief sought in respect of Dr Wan's decision on discretionary grounds, principally, but not exclusively, on the basis that it is a decision that is no longer operative in fact or in law having been overtaken by the issue of a fresh certificate by the Review Panel, the test results underlying his assessment of impairment survive because the Review Panel necessarily referred to these matters in the course of considering whether error was demonstrated in his approach or in his application of the Guidelines. 44 I am not persuaded that error has infected the Review Panel's determination in the way contended for by the plaintiff. It is beyond question that medical assessors are directed that assessments of whole body impairment must be undertaken in strict accordance with the Guidelines and the AMA 4 Guides, and that for this reason the approach to assessments under the Act is standardised and prescriptive, they are also directed to use clinical skill and judgment. In their reasons for decision the Review Panel emphasised, and in my view quite properly, that in accordance with 1.42 of the Guidelines, assessors must utilise the entire gamut of their clinical skill and experience and modify an impairment estimate, in spite of an observation or test result, where the evidence does not seem to verify the impairment. Assessors are also directed to describe the modification (by which I assume the nature and extent of it), and to outline the reasons for modifying their findings. Assessors are not, however, directed by the Guidelines or otherwise to express their findings, or their reasons for any finding (or the nature or extent of any modification) according to some statutory formula. In my view, it barely warrants observation that the architects of the statutory scheme intended that the language used by an assessor in the reasons that accompany a finding of impairment is, within obvious limits, a matter for the individual assessor. Such reasons will ordinarily withstand the scrutiny of judicial review unless the language used is vague, confusing, inept, inadequate or can otherwise be shown to disclose error. 45 In considering the standard by which the reasons of statutory medical assessors (in the context of medical assessments under the New South Wales workers compensation legislation) are viewed, in Campbelltown City Council v Vegan, Basten J (with McColl JA agreeing) said at [122]: "…to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment…".

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