Cupac v Motor Accidents Authority - [2010] NSWSC 631 - NSWSC 2010 case summary — Zoe

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Cupac v Motor Accidents Authority

[2010] NSWSC 631

Supreme Court of NSW|2010-04-12

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Source facts

Court

Supreme Court of NSW

Decision date

2010-04-12

Source

Original judgment source is linked above.

Judgment (38 paragraphs)

[1]

These proceedings 6 Mr Cupac seeks judicial review of a medical assessment by the MAS Assessor under the MAS system in respect of orthopaedic injuries allegedly suffered by him in a motor vehicle accident on 13 February 2007. On 21 May 2009, the MAS Assessor conducted his assessment. On 24 June 2009, a certificate in respect of the assessment was issued. On 7 July 2009, the MAS Assessor provided written reasons for his determination. 7 Mr Cupac submitted that the Proper Officer, had she exercised her discretion under s 63(3) of the Act in accordance with law, for reasons which particularise the error alleged against the MAS Assessor, would have properly been satisfied that there was reasonable cause to suspect that the decision of the MAS Assessor was incorrect in a material respect; and the Proper Officer's exercise of discretion was therefore a purported exercise of discretion which had the effect of affirming the MAS Assessor's decision which was no decision at all and the Proper Officer's decision was thereby no decision at all. 8 Mr Cupac applied to the Proper Officer for a review of the assessment of the MAS Assessor. On 14 August 2009, the Proper Officer refused the plaintiff's application. The application for judicial review of the decision of the Proper Officer will succeed or fail on the basis of the outcome of the judicial review concerning the MAS Assessor.

[2]

Grounds of review 9 Mr Cupac seeks a review on the following grounds. Firstly, that the decision of the MAS Assessor is infected by a breach of procedural fairness, for the failure to give adequate reasons and the failure of the MAS Assessor when exercising judicial functions to give adequate reasons for his decision constitutes an error of law which appears on the face of the record; second, the decision of the MAS Assessor demonstrates that he failed to make objective clinical findings necessary to establish the requisite facts to appropriate Mr Cupac a Diagnosis Related Estimate ("DRE") Category I for the lumbar spine; third, the MAS Assessor failed constructively to complete his statutory task by reasons of misdirection as to the proper construction and effect of the MAA Permanent Impairment Guidelines (1 October 2007) ("the Guidelines") and the American Medical Association Guides to the Evaluation of Permanent Impairment, (1995) 4th ed, ("AMA 4") and in so doing the MAS Assessor applied the wrong test and therefore, could not properly be satisfied of the requisite matters to have appropriated Mr Cupac with a DRE Category I for the lumbar spine; and fourth, the MAS Assessor failed to constructively consider the considerations made mandatory by the Motor Accidents Compensation Act 1999 ("the Act") and thereby constructively failed to exercise his power under s 61 of the Act. 10 The alleged errors submitted by Mr Cupac can be shortly summarised as follows. Firstly, that Dr Maxwell misunderstood or misapplied the diagnostic criteria for DRE Category II for the cervical spine; second, that Dr Maxwell misunderstood or misapplied the diagnostic criteria for "non-verifiable radicular complaints" for both the cervical spine and the lumbar spine; third, that Dr Maxwell failed to make the objective clinical findings required by the DRE method for evaluation of impairment of the lumbar spine as set out in the Guidelines; and finally, that Dr Maxwell failed to give adequate reasons for his assessment.

[4]

12 Section 61 of the Act provides that a medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. 13 The Guidelines are issued pursuant to s 44(1)(c) of Act and apply in respect of a motor accident occurring on or after 5 October 1999. Section 65(1) of the Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the Guidelines issued for that purpose. The Guidelines use AMA 4 as their basis. The Guidelines make changes to the AMA 4 to align them with Australian clinical practice and to better suit them to the purposes of the Act. The convention used in the Guidelines is that if the test is in bold it is a directive as to how the assessment should be performed. I shall adopt this convention in my judgment where referring to the Guidelines. 14 Chapter 4 of the Guidelines deals with spinal impairment and the assessment. There are specific guidelines provided for the cervicothoracic and thoracolumbar regions. Section 4.1 of the Guidelines provides that only the DRE category method, as modified by the Guidelines, is to be used for evaluation of impairment of the spine. The range of motion ("ROM") model is not to be used. 15 Section 4.6 deals with the approach to be taken to the assessment of the spine and provides: " 4.6 The assessor should start with Table 4.1 of these MAA Guidelines to establish the appropriate category for the spinal impairment. Its principal difference from Table 70 (p 108, AMA 4 Guides) is the removal of the term 'motion segment integrity' wherever it appears (see section 4.13 below)." 16 Sections 4.15 to 4.17 of the Guidelines states: " 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 4 Guides), as clarified by the definitions in the box above with the following amendments to pp 102-107 of the AMA 4 Guides : ... 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 .

[5]

4.17 Table 71 (p 109 AMA 4 Guides) is not to be used. The Definitions of Clinical Findings in the box above should be the criteria by which a diagnosis and allocation of a DRE category are made." 17 Table 4.1 of the Guidelines provides relevantly that low back pain, neck pain [back pain (lumbago), WAD* I] complaints or symptoms would afford a claimant a DRE Category I; and low back pain or neck pain with guarding or non-verifiable radicular complaints or nonuniform range of motion (dysmetria) would afford a DRE Category II. 18 Sections 4.18 to 4.22 of the Guidelines set out what DRE category method should be applied. Relevantly section 4.19 provides that DRE Category I applies when the injured person complains about symptoms but there are no objective clinical findings by the assessor. DRE Category II applies when there are clinical findings made by the assessor, as described in the sections "description and verification", (pp 102-107 AMA 4). The MAS Assessor's reasons for determination 19 The MAS Assessor's task was to assess permanent impairment to Mr Cupac's cervical spine, lumbar spine and right shoulder. The injuries that were caused by the motor accident were soft tissue injuries to both the cervical spine and lumbar spine, and subacromial bursitis to the right shoulder. The assessment of the impairment to the right shoulder is not the subject of this judicial review. I shall deal with the cervical spine and lumbar spine in turn. 20 Relevantly, in his reasons dated 7 July 2009 the MAS Assessor noted Mr Cupac's current symptoms and that upon clinical examination of Mr Cupac reported that: "He states he experiences discomfort in the back of his neck, lower back and right shoulder. He states the pain in his back radiates into the right hip from time to time. He occasionally feels some pain in his left foot. He also feels pain in the back of his head. He also feels numbness in all the fingers of his right hand which has been present for 1 year. This occurs intermittently. … He is unaware of any neck stiffness. ... He was a thick set man at 92kgs. He was 172cms tall. He moved freely and did not appear to be in any distress. He used his right arm to hold his jacket and to lift his x-rays. He moved his neck freely during gesticulation and while moving about the room. …" 21 The MAS Assessor commented that there did appear to be some inconsistencies regarding Mr Cupac's presentation. There was a paradoxical straight leg raising sign and the sensory abnormalities of Mr Cupac's left foot fitted no dermatomal pattern. 22 In relation to these injuries the MAS Assessor examined various x-rays and CT scans of both the cervical and lumbar spine and summarised these results.

[13]

(i) Whether the Assessor misunderstood or misapplied the diagnostic criteria in relation to the injuries to the cervical spine 32 According to counsel for Mr Cupac, all of these factors in DRE Category II were present in the clinical findings of the MAS Assessor going to the cervical spine, nevertheless a DRE Category I was awarded. Counsel for Mr Cupac submitted that the decision of the MAS Assessor demonstrated that he had applied the wrong test and/or misdirected himself as to the relevant differentiators for DRE Category II for the cervical spine. 33 The MAS Assessor made findings that there was no muscle guarding, no evidence of radiculopathy and no radicular signs. Mr Cupac's counsel sought to make much of findings that the MAS Assessor made under the tabular form [reproduced earlier in this judgment] namely that Mr Cupac had 30° flexion of the neck as compared with 20° on extension of the neck. From that counsel extrapolated that the movement is asymmetrical and therefore there was dysmetria present. Had dysmetria been present, the injuries to Mr Cupac's neck would have been classified at DRE Category II. 34 To make a finding of nonuniform loss of spinal motion (dysmetria) involves clinical judgment. Nonuniform loss of motion of the spine means a loss of movement in the relevant spinal plane which is not symmetrical [my emphasis added]. Symmetrical loss or limitation of movement of the cervical or lumbar spines is not "nonuniform loss of spinal motion" or "dysmetria". 35 In making overall findings in relation to injury to the cervical spine, the MAS Assessor also took into account both the results of the testing and the MAS Assessor's observation of the free movement of Mr Cupac's neck during gesticulation and while he was moving around the room. The MAS Assessor, after conducting an examination, determined that the limitation of movement was symmetrical, there was no nonuniform range of motion (dysmetria). 36 To fall within DRE Category II the MAS Assessor would have to have made a positive finding that the decreased sensation in the right hand was a radicular symptom or sign, verifiable or non-verifiable. He did not do so. If the radicular signs were not present, he was not obliged to make a negative finding. In Vitaz v Westform (NSW) Pty Limited [2010] NSWSC 667 Johnson J expressed this more eloquently. His Honour at [73] stated that he did not think it was necessary for an Approved Medical Specialist to systematically deal with each and every criterion he or she did not consider to be indicated in a particular case, simply so he or she can expressly say they did not apply. I respectfully agree. In my view the MAS Assessor correctly determined that, in respect of the cervical spine, Mr Cupac satisfied none of the diagnostic criteria for DRE Category II. Mr Cupac was correctly placed in DRE Category I for the cervical spine.

[29]

(iii) Whether the AMS misunderstood or misapplied diagnostic criteria for non-verifiable radicular complaints for both cervical and lumbar spine 52 Mr Cupac's counsel submitted that the MAS Assessor applied the wrong test for non-verifiable radiculopathy for both the cervical and lumbar spine, and therefore could not properly be satisfied of the requisite matters to appropriate Mr Cupac with a DRE Category I for the lumbar and cervical spine, and in so doing failed constructively to consider the considerations made mandatory by the Act and thereby constructively failed to exercise his power under s 61 of the Act. 53 Counsel for Allianz submitted that Dr Maxwell correctly found that none of the diagnostic criteria for DRE Category II were established in respect of the lumbar spine and that Dr Maxwell has correctly placed Mr Cupac in DRE Category I in respect of the lumbar spine. Allianz submitted that Dr Maxwell had not misunderstood or misapplied the criteria for DRE II. 54 The definition for non-verifiable radicular complaints in the Glossary is: "Non-verifiable radicular complaints are symptoms (eg shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (eg loss or diminished sensation, loss or diminished power, loss or diminished reflexes)." 55 Non-verifiable radicular complaints are defined as symptoms that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root, for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes. In respect of the both the lumbar and cervical spine the MAS Assessor found non-verifiable radicular complaints. 56 The definition for "radiculopathy" found in the Guidelines at 4.28 reads: "4.28 Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found: (i) loss or asymmetry of reflexes; (ii) positive sciatic nerve root tension signs; (iii) muscle atrophy and/or decreased limb circumference; (iv) muscle weakness which is anatomically localised to an appropriate spinal nerve root distribution; (v) reproducible sensory loss which is anatomically localised to an appropriate spinal nerve root distribution. " 57 Section 4.29 notes that complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings do not by themselves constitute radiculopathy. They are described as non-verifiable radicular complaints in the definitions of clinical findings.

[30]

58 The MAS Assessor found on relation to the cervical spine, decreased sensation in the fingers of the right hand; in respect of the lumbar spine, he found a decreased right ankle jerk and a numb sensation in the left foot. It is noted that in respect of the lumbar spine the MAS Assessor noted that the abnormalities in his left foot followed no dermatomal pattern. 59 Counsel for Mr Cupac submitted that both decreased sensation in the hands and diminished jerk responses constitutes non-verifiable radicular complaints. According to Mr Cupac's counsel, the MAS Assessor's reasons reveal that in his conclusions no consideration is given to the presence of this differentiator, rather the MAS Assessor focuses on the absence of radiculopathy. Counsel for Allianz submitted that the MAS Assessor correctly found that Mr Cupac did not make a non-verifiable radicular complaint in either the cervical spine or the lumbar spine. 60 In his determination, according to counsel for Mr Cupac, the MAS Assessor nonetheless makes the paradoxical conclusion with regard to the cervical spine that there were "no radicular symptoms and no radicular signs", despite having found the presence of finger numbness in his clinical findings and not making any inconsistency finding to found a basis to reject this particular finding. 61 Similarly, counsel submitted with respect to the lumbar spine, the MAS Assessor after stating that Mr Cupac had reduced right ankle jerk, recorded that he did not consider there was "any other evidence of significant S1 radiculopathy". The MAS Assessor found that there were no "true radicular signs" although there was a complaint of referred pain. The MAS Assessor acknowledged the L5/S1 disc protrusion but found that it was not "acute" nor did it reveal "any significant nerve root impingement." Mr Cupac contends that if these findings were read together, the diminished ankle jerk and the MRI results showing a disc protrusion would, nevertheless, suggest the presence of non-verifiable radicular pain. The presence of which when coupled with pain and no objective sign of radiculopathy and no loss of structural integrity would properly place Mr Cupac in DRE Category II. 62 According to Mr Cupac's counsel, the MAS Assessor, by failing to consider whether the clinical symptoms as found gave rise to non-verifiable radiculopathy, has failed to take into account a consideration made mandatory by the Act. In my view, this approach suggested by Mr Cupac misunderstands both the diagnostic criteria for radiculopathy in section 4.28 of the Guidelines, and the definition of non-verifiable radicular complaints in s 4.29 and in the Guidelines. As Mr Cupac complained of numbness in all fingers of the right hand, and of a numb sensation in his left foot, they cannot (in the case of the fingers) and do not (in the case of the foot) follow a defined anatomical pathway. The MAS Assessor correctly disregarded those symptoms when considering the existence or absence of radicular signs and correctly placed Mr Cupac in DRE Category I for both injuries to his cervical spine and lumbar spine.

Parties

Applicant/Plaintiff:

Cupac

Respondent/Defendant:

Motor Accidents Authority

Cases Cited (27)

CITATION : Cupac v Motor Accidents Authority [2010] NSWSC 631

Abede v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Attorney-General for New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 Bruce v Cole (1998) 45 NSWLR 163 Buck v Bavone (1976) 135 CLR 110 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Craig v State of South Australia [19995] HCA 58; (1995) 184 CLR 163 Cross v McHugh [1974] 1 NSWLR 500 CASES CITED : Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Martin v Kelly [2008] NSWSC 577 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; [2007] 235 ALR 609 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Vitaz v Westform (NSW) Pty Limited [2010] NSWSC 667 Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; (2005) 139 LGERA 296

Judicial review generally 3 This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970. 4 In Martin v Kelly [2008] NSWSC 577, Johnson J at [13]-[23], made some helpful remarks on the confines of judicial review. I respectfully adopt and repeat them here. They are: "13 The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 14 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44].

16 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

20 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia , and continued at 351 [82]: 'Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.' 21 Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].

23 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119; Bruce v Cole (1998) 45 NSWLR 163 at 183-184. …" 5 Recently, in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, the High Court discussed jurisdictional error in Australia and considered Craig v South Australia (1995) 184 CLR 163 at [66] - [68].

(1999) 197 CLR 510

(1990) 170 CLR 1

(1998) 45 NSWLR 163

(1976) 135 CLR 110

(2000) 199 CLR 135

(1995) 184 CLR 163

(2010) 239 CLR 531

(1986) 162 CLR 24

(1996) 185 CLR 259

(2001) 206 CLR 323

(2000) 111 LGERA 181

(2005) 139 LGERA 296