Colley v Insurance Australia Group trading as NRMA Insurance

Background

1. The circumstances giving rise to the medical assessment were as follows. The plaintiff was a front seat passenger in a stationary motor vehicle on 24 April 2013 when the vehicle was struck by another vehicle (insured by the first defendant) on the driver's side door, extending to the front bonnet. At the time of impact, the plaintiff was wearing a seat belt.
2. The plaintiff was assessed by ambulance personnel who recorded that the plaintiff had a slight abrasion along the left side of the neck. The plaintiff complained of tingling along the left arm from the shoulder to the elbow. No complaints were made of injury or symptoms to her left knee or lower back.
3. On presentation to Armidale Hospital later that day, the plaintiff had pain in her left shoulder with numbness down to the left elbow and a marking on the left side of her neck from the seatbelt. The plaintiff appeared to be moving freely. There was no complaint of injury to the left knee or lower back.
4. The plaintiff next sought medical advice for her injuries on 20 June 2013 when she consulted her general practitioner. The plaintiff reported neck pain and left shoulder pain. No other symptoms were disclosed.
5. On 9 October 2013, the plaintiff complained to her general practitioner of lower back pain and left knee pain, said to be attributable to the motor vehicle accident.
6. On 21 October 2013 the plaintiff lodged a claim for personal injury compensation under the Act. The plaintiff listed her injuries from the accident as "top of spine, neck, finger numbness left hand, knee left side, shoulder left side, tail bone with lower back pain."
7. On 28 October 2013, another general practitioner noted lower back pain and left knee pain with occasional swelling. The plaintiff also complained of pain in the gluteal cleft on 29 October but was unsure whether that symptom was accident related.
8. On 10 March 2015 a CT of the lumbar spine showed disc disease at several levels with slight nerve root compression at L5-S1. On 27 March 2015 an MRI of the left knee showed patellofemoral chondromalacia (irritation of the cartilage under the kneecap) and a small tear in the medial meniscus.
9. In the absence of agreement concerning the extent of the plaintiff's whole person impairment, the plaintiff made an application under s60 of the Act for an assessment of a number of injuries, namely, soft tissue injury to the thoracic spine, a direct blow injury to the left knee with significant chondral damage to the patella, soft tissue injury by way of aggravation of an injury to the left ankle, contusion/strain of the neck aggravating pre-existing degenerative changes, contusion/strain to the lower back aggravating pre-existing degenerative changes and soft tissue injury to the left shoulder.
10. The assessment was carried out on 12 October 2015. The next day a certificate issued under Part 3.4 of the Act recording that, on the basis of an assessment of the injuries to the neck, lower back and left shoulder, the whole person impairment was not greater than 10%.
11. A further assessment was carried out on 14 March 2016, during which the injuries to the thoracic spine, the left knee and the left ankle were added to the injuries previously assessed. The assessment concluded that the injuries to the lumbar spine, the left knee and the aggravation of the left ankle were not attributable to the accident.
12. The lumbar injury was said to be inconsistent with the mechanism of the accident and that inconsistency was supported by the absence of recorded back pain in the ambulance report, the hospital report and the general practitioner notes of June 2013. The complaints of back pain and the diagnostic imaging were said to be consistent with an underlying constitutional lumbar spondylosis.
13. The absence of any complaint relating to left knee pain to the ambulance personnel, the hospital personnel or to the general practitioner six weeks after the accident was also said to be inconsistent with a causal nexus with the accident. It was concluded that there was no clear history of trauma to the knee. The knee pain was however said to be consistent with constitutional bilateral patellofemoral chondromalacia.
14. There was no reference to a left ankle injury in the ambulance report, the hospital report or the general practitioner's notes of June 2013 or October 2013, or a further report in October 2014. On examination of the left ankle in April 2015, no abnormality was detected. None was evident during the assessment itself.
15. The certificate of the assessor which issued on 16 March 2016 found that the injuries attributable to the accident resulted in a whole person impairment of 10%.
16. The plaintiff applied for a review of that assessment, principally on the grounds that the assessor erred in finding that the injuries to the left knee and lumbar spine were not caused by the accident.
17. On 14 April 2016, the proper officer dismissed the application for review. It is that decision to dismiss the application for review that is the subject of these proceedings.

Grounds of Judicial Review

1. Eight grounds were pressed on the hearing of the application. Grounds 1 to 5 challenge the basis of the findings that rejected the injuries to the lumbar spine and left knee as relevantly caused by the accident. Grounds 6 and 7 challenge the proper officer's application of the test under s 63(3) of the Act. Ground 8 as filed was not pressed. Ground 9 asserts that the proper officer did not provide adequate reasons with respect to some aspects of the decision.

Grounds 1 - 5: Causation

1. In her application for review of the assessor's decision pursuant to s 63 of the Act, the plaintiff alleged error in that the assessor found that there was "no clear history of trauma to the knee". The error was made out, according to the plaintiff, by the reference in the assessor's report to the plaintiff's recollection "that her left knee struck the inner aspect of the passenger door and she twisted to her left in her seatbelt". This statement was contained within the history provided by the plaintiff to the assessor. In other words, it is submitted that this is an inconsistency which itself constitutes material error.
2. The proper officer's finding in relation to this alleged error appears at paragraph 11 of the challenged decision: I do not consider that the determination in relation to the causation of the left knee injury contravenes the decision in McGiffen as it is not the lack of contemporaneous evidence which has been the decisive factor in the determination. Assessor Home has considered the claimant's recollection of the injury, the documented medical evidence and found that the claimant presented with constitutional bilateral patellofemoral chondromalacia. I am satisfied that the assessor has applied the test as prescribed by clause 1.8 permanent impairment guidelines in finding that the accident did not cause the injury. The assessor has provided sufficient reasons and performed his assessment in accordance with clause 1.20 of the permanent impairment guidelines. As such I am not satisfied that the applicant has demonstrated material error here.
3. The reference to McGiffen in this paragraph is to a decision of Rothman J in this Court: Clinton McGiffen v AAI Limited t/as GIO, as agent for Nominal Defendant [2015] NSWSC 1530; 73 MVR 193. In that case, Rothman J found jurisdictional error in a decision of a review panel, which failed to properly address the issue of causation. The review panel had confined the question of causation to the existence of immediate or contemporaneous complaint of injury to the relevant body part, rather than addressing the issue of causation under clauses 1.8 and 1.9 of Guidelines for the assessment of the degree of permanent impairment 2007 (NSW) ('The Guidelines'). Those clauses define causation to include a medical condition which arises from, or is aggravated by, an injury directly caused by the accident. The judgment was upheld on appeal: AAI Ltd trading as GIO as Agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; 77 MVR 348.
4. The proper officer's task in determining whether to refer the matter to a review panel is constrained by the terms of s 63(3) of the Act. The proper officer need not be affirmatively satisfied that there has been error in a material respect. It is sufficient if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect: Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143.
5. The plaintiff submits that the proper officer has not provided reasons for the conclusion that there was no material error and has therefore failed to determine the issue, thereby denying both procedural fairness and natural justice.
6. The proper officer's reasons are not confined to paragraph 11. The "Reasons for Decision" segment of the report pertaining to the left knee comprises six paragraphs. After setting out the plaintiff's submissions on the application and the basis for them, the proper officer notes at paragraph 10 that: The [plaintiff] correctly submits that the Assessor records that the claimant complained of left knee pain however, it is clear that the Assessor has taken this into consideration when making his determination. On page 10 of the certificate, [the Assessor] states: "The patient reports she has suffered left knee pain. It is not evident that the claimant's left knee pain commenced at the time of the accident or soon after the accident. There is no record of complaint in the ambulance or the initial hospital report. There is no record at the assessment by Dr Niven six weeks post accident. The patient recalls the knee pain and swelling commenced while she was walking at the hospital some time after the accident. There is no clear history of trauma to the knee. The patient presents with some clinical features of constitutional bilateral patellofemoral chondromalacia which is symptomatic on the left side."
7. This paragraph must be read together with paragraph 11. When construed together, it is sufficiently clear that the proper officer was of the view that the assessor acknowledged the plaintiff's statements to him of left knee pain at the time of the accident, that he took those statements into consideration, but ultimately determined that, given the absence of recorded complaints contemporaneously with the accident and up to six months later, there was no clear history of trauma to the knee. There were some complaints of knee pain, but they were made in circumstances which did not allow the assessor to conclude that the injury was directly or indirectly caused by the accident, particularly in the light of the underlying constitutional condition.
8. These reasons were sufficient in my view to support the determination that there was no reasonable cause to suspect error in a material respect.
9. The second ground of review is closely allied to the first. Essentially the plaintiff submits that the proper officer committed jurisdictional error in failing to find reasonable cause to suspect the medical assessment was incorrect in a material respect, in that the assessor relied exclusively upon the lack of any contemporaneous record of injury to the left knee and failed to consider the plaintiff's statement to the assessor of trauma to the left knee.
10. The plaintiff calls in aid the decision of Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; 61 MVR 245, specifically at [50] to [53]:- The statement of the Review Panel that the material before it had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident is only explicable on the basis that the panel misdirected itself as to law. As the extract from Clause 1.9 of the MAA Guidelines set out at page 8 of Exhibit A makes clear - albeit in the context of the left shoulder - in general terms (subject to 5D Civil Liability Act 2002) it is sufficient if the injury ... was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible. The absence of a reference by the Review Panel to this important matter suggests that in relation to the back, it did not direct itself as to the law as required. This impression is reinforced by the emphasis the Panel placed upon the construct as a result of the injury caused by the motor accident at the top of page 8. The emphasised language suggests to me that the panel of experts, as legal laymen, looked to a more direct or proximate relationship than that mandated by the relevant legal principles. [51] This impression is reinforced by the consideration that the Panel, in concluding that there was no evidence to support the relevant causal relationship, took into account, and apparently only, the absence of any reference to a lumbar spine injury in contemporaneous medical records, within about a month of the motor accident. [52] Moreover, the juxtaposition between the statement that the material provided by the parties had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident with the following analysis of contemporaneous documentation persuades me that the Review Panel identified a wrong issue, namely, did treatment providers in the first month or so following the motor accident make a record of complaints of symptoms in the lumbar spine? Undoubtedly, it was relevant to consider that material in the process of determining the right question, but it was wrong to treat this consideration as decisive…In my judgment the identification of this wrong issue was jurisdictional error. [53] Another point raised in argument concerned the Review Panel giving primacy to the contents of the contemporaneous documentation. As I have said, in his statement and in other material before the Review Panel, the plaintiff, whilst acknowledging the pre-existing problems with his back, said he injured it again in the motor accident…
11. The force of these remarks by Campbell J must be understood by reference to the facts of that matter. The plaintiff in Owen had provided to the Review Panel a statement which supported a causal relationship between the accident and a lower back injury. The Panel failed to refer to it at all when delivering its decision. Moreover, the Panel also failed to refer to other material, including the clinical notes of a treating physiotherapist taken two months after the accident which arguably supported an indirect causal connection between the lower back injury and the accident. Within that context, Campbell J concluded that the Panel's statement, namely, "the material before it had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident" constituted a failure to take into account relevant material.
12. Here, there is no failure to refer to the plaintiff's statement to the assessor of trauma and injury to the left knee. The proper officer records the fact that the assessor considered the plaintiff's statement and the medical evidence. The proper officer specifically addresses the plaintiff's allegation that the assessor committed the error identified in McGiffen and dismisses it.
13. Once the relevant considerations were identified, it was a matter for the assessor to determine how they were to be taken into account and what weight to ascribe to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 62 CLR 24. The absence of contemporaneous records of injury to the left knee, and for six months thereafter, was recognised as one relevant factor to be weighed and considered together with the plaintiff's statement to the assessor and the other medical material.
14. The plaintiff next submits that a suspicion of material error in the assessment arose from the assessor's failure to consider whether the accident aggravated a pre-existing condition affecting the plaintiff's left knee. However, once it is accepted that the assessor took into account all relevant considerations and was entitled to find that the left knee injury arose independently of the accident, there is no basis for considering whether the accident aggravated a pre-existing condition. That exercise would necessarily entail an acceptance of some injury to the left knee during the accident.
15. The plaintiff makes the same submissions with respect to the asserted injury to the lower back.
16. The history provided by the plaintiff to the assessor included a recollection of immediate pain in her lower back at the time of the accident. The plaintiff also recalled telling her general practitioner in June 2013 of lower back pain.
17. The first documentation of an injury to the lower back occurred in October 2013, six months after the accident and at the same time as the first reported injury to the left knee. In late October, the plaintiff consulted Dr Chandrasekhar who recorded pain in the gluteal cleft commencing six weeks after the accident and noted that the plaintiff queried whether it was accident related.
18. Following a consideration of all the medical reports, the assessor concluded:- I am not satisfied the claimant sustained any material injury to her lumbar spine in the motor vehicle accident. The mechanism of the accident is atypical for causing low back injury. The patient was the left sided passenger, seated, when the car was struck from the right driver's side. The patient may have been thrown to the left. There is no record of early back pain in the ambulance report, the hospital report…or the general practitioner's notes from June 2013. A subsequent general practitioner, Dr…Chandrasaker, documents that coccygeal pain commenced six weeks post accident. The subsequent diagnostic imaging demonstrates underlying lumbar spondylosis. It is probable that her subsequent complaints reflect underlying constitutional lumbar spondylosis.
19. The decision of the proper officer set out the reasons for dismissing the application for review with respect to the lumbar spine in five paragraphs. The substance of these reasons appear at paragraphs 15 and 16:- In respect to the submissions regarding the decision on the causation of the lumbar spine injury, I make a similar finding to that given above. I do not consider that the Assessor has contravened the decision made in McGiffen as the lack of contemporaneous evidence was not the only determinative factor in the decision. The Assessor considered the claimant's verbal history, the documented medical evidence and found that the lumbar spine injury was due to an underlying condition of lumbar spondylosis. I am satisfied that the Assessor has applied the test of causation at clause 1.8 of the Permanent Impairment Guidelines in finding that the accident did not cause the injury. I am also satisfied that the Assessor has conducted the assessment in accordance with clause 1.20 of the…Guidelines and as such am not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect on this ground. As to the submission regarding the Assessor's classification of the accident being 'atypical' to cause a low back injury, I refer the applicant to clause 1,8 of the…Guidelines which concludes that a decision on causation 'involves a medical decision and a non-medical informed judgment.' When the Assessor's comments are read in the context of this clause, it is clear that he is using his non-medical informed opinion to help determine that the mechanism of the accident was unlikely to result in a low back injury. I am not satisfied that the Assessor is not qualified to make this statement and am satisfied that he has done so in accordance with his duty to make a determination on causation. I am satisfied that the Assessor has given sufficient reasons to support his conclusion in accordance with clause 1.20 of the...Guidelines and therefore, am not satisfied that there is reasonable cause to suspect that the assessment is incorrect in a material respect.
20. The plaintiff submits that "the assessor has not taken into account the plaintiff's complaints of injury during the assessment or the plaintiff's statement that she recalls complaining to her general practitioner in June 2013 regarding lower back pain and has placed no weight on Dr Chandrasaker documenting that coccygeal pain commenced six weeks post accident." Again, the plaintiff relies on Owen.
21. Whilst the assessor does not explicitly refer to the plaintiff's complaints of injury during the assessment in the passage set out at [38] above, those complaints are clearly recorded in the body of the assessment report. In any event, it is the proper officer's determination that is the subject of challenge. In order to demonstrate jurisdictional error on these grounds, the plaintiff must point to a failure on the part of the proper officer to take into account a relevant consideration, or taking into account an irrelevant consideration.
22. The proper officer's reasons set out at [39] above do not disclose a failure to take into account a relevant consideration or that any irrelevant consideration was taken into account. Essentially, the observations at [32] to [34] above also apply to this aspect of the plaintiff's argument.
23. The plaintiff's claim on these grounds fails.

Grounds 6 and 7 - Application of the wrong test

1. The plaintiff submits that the proper officer has misconceived the test under s 63(3) and that the evidence of that misconception resides in the proper officer's statements, namely, "I am not satisfied that the applicant has demonstrated material error here" (with respect to the left knee injury assessment), "I am satisfied that the Assessor has applied the test of causation at clause 1.8 of the .. Guidelines" and "I am satisfied that the Assessor has given sufficient reasons to support his conclusion in accordance with clause 1.20 of the … Guidelines." (with respect to the lumbar spine injury assessment).
2. The plaintiff relies upon Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848, wherein Campbell J stated at [59] that "a state of satisfaction that there is a reasonable cause to suspect that the assessment was incorrect need not rise above anything other than a state of unease on the part of the proper officer about the correctness of the assessment". His Honour further observed that it is not the proper officer's role to decide the correctness of the assessment.
3. At [58], his Honour said:- Really a single question is being posed: is the proper officer satisfied that there is reasonable cause to suspect the medical assessment is incorrect in a material respect? When considering that question the proper officer is bound to have regard to the particulars set out in the application of the party moving for the review.
4. The plaintiff maintains that the proper officer applied too strict a test and therefore the wrong test in "asking herself whether or not material error [was] demonstrated" and in reaching a state of affirmative satisfaction, rather than suspicion.
5. This submission ignores the proper officer's statements at pages 1 and 4 of the Statement of Reasons, namely, "I am not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect." Lest these statements are construed as a mere recitation of the statutory test, rather than a conscious application of it, it is relevant to have regard to the whole of the document.
6. The proper officer addressed the particulars of the application for review. They were the alleged errors in relation to the assessment of the left knee injury and the lumbar spine injury, in particular the alleged failure to have regard to the plaintiff's statements to the assessor in arriving at the conclusion that the left knee and the lumbar spine injuries were not causally related to the accident, and the alleged error in determining that the lumbar spine injury was "atypical".
7. The statements complained of appear in paragraphs 11 and 16 of the proper officer's Statement (see [22] and [39] above). The proper officer was not applying the wrong test simply by addressing the particulars of the application. At no point did the proper officer formulate the test, impliedly or otherwise, in terms of whether material error had been demonstrated. It is apparent that the proper officer immediately followed the statements of satisfaction in regard to clauses 1.8 and 1.20 of the Guidelines with a reference to the test under s 63(3), that is, that she was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
8. As a matter of logic, the expression of a positive state of satisfaction that the particularised errors had not been made out is not inconsistent with the application of the correct test under s 63(3). Absent any error of the kind alleged by the applicant for review, it would follow that no suspicion or sense of unease could arise that the medical assessment was incorrect in a material respect.
9. These grounds of judicial review fail.

Ground 9 - the 'Atypical' Lumbar Spine Injury

1. The plaintiff's submissions on this ground allege a failure on the part of the proper officer to provide adequate reasons for dismissing the plaintiff's challenge to the qualifications of the medical assessor to express the opinion that the accident was 'atypical' to cause a lumbar spine injury. The plaintiff also submits that the proper officer erred in finding that the medical assessor provided adequate reasons in support of that opinion and in failing to find that the expression of such an opinion constituted reasonable cause to suspect that the medical assessment was incorrect in a material respect.
2. A failure to provide adequate reasons sufficient to constitute error of law on the face of the record will be established when the statement of reasons does not explain the actual path of reasoning in sufficient detail to allow a court to discern whether the opinion involves an error of law: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480. The reasons need not be extensive or provide a detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372.
3. The focus of the inquiry on this ground is the adequacy of the reasons set out at paragraph 16 of the proper officer's Statement. In so far as the plaintiff challenged the qualifications of the assessor to express the opinion relating to the lumbar spine injury, the proper officer refers to clause 1.8 of the Guidelines which describes a determination as to causation involving a medical decision (that a factor could aggravate or cause the impairment) and a non-medically informed judgment (that a factor did in fact aggravate or cause the impairment). She then concludes that the assessor was relevantly medically and non-medically informed to allow him to determine that the mechanism of the accident was unlikely to result in a low back injury.
4. The path of reasoning is sufficiently clear. The assessor was not required to hold qualifications in ergonomics or physics to express the non-medical opinion that he expressed. He was relevantly informed by the description of the mechanism of the accident, the position of the plaintiff in the vehicle and the documentary material. The documentary material included a report from Dr Stephen, which is referred to by the assessor in his "Summary of Relevant Documentation". In that report, under "Diagnosis", Dr Stephen expresses difficulty in understanding how any significant injury could have been caused by the mechanism of the accident. Clause 1.8 of the Guidelines confirms the approach taken by the assessor.
5. Moreover, there was no error on the part of the proper officer in finding that the assessor provided adequate reasons in support of that opinion. Clause 1.20 of the Guidelines requires an assessor to review medical and hospital records, interview and clinically examine the claimant and prepare a report using the MAA Guidelines together with the evidence, calculations and reasoning on which the determination of the percentage impairment is based. The assessor referred to the mechanism of the accident, the fact that the plaintiff was a seated passenger on the left side of the vehicle, restrained by a seat belt, that the vehicle was struck from the right side, and that the plaintiff may have been thrown to the left, inferentially not thrown forward or back.
6. Contrary to the plaintiff's submissions on this ground, the assessor's reference to damage to the front bonnet of the vehicle does not provide support for the proposition that the plaintiff may have been thrown forwards or backwards. The assessor notes under "History of the Motor Accident" (provided by the plaintiff) that the plaintiff's "car was struck at the level of the driver's side door with damage extending to the front bonnet of the vehicle. The other car progressed forward and spun. [The plaintiff] recalls that she was jolted in her seat belt toward the left side, striking her left shoulder on the inner aspect of the door. She recalls she struck her head on the door. She recalls that her left knee struck the inner aspect of the passenger door as she twisted to her left in her seat belt".
7. The plaintiff at no stage suggested she was thrown forwards or backwards.
8. The plaintiff also submits that the failure on the part of the assessor to consider the plaintiff's claim that she "twisted to her left" in arriving at his opinion that the accident was atypical further undermined the validity of that opinion, such that the proper officer failed to take into account a relevant consideration and failed to determine the issues raised by the application for review.
9. There was no requirement on the proper officer to address every alleged omission on the part of the assessor in determining whether the assessor provided adequate reasons. The assessor's doubts relating to the plaintiff's reliability, particularly with respect to the left knee and lumbar spine injury, were laid bare by the assessment report. The plaintiff's implicit submission, that nothing short of a detailed explanation of the criteria applied to reach the assessor's judgment and the proper officer's determination is required, is not supported by authority. The requirement is to provide adequate reasons, not comprehensive ones.
10. The plaintiff's summons is dismissed. The plaintiff is to pay the first defendant's costs. 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: 07 June 2017