D'Ament v Allianz Australia Insurance Ltd

Background facts and procedural history

1. As indicated above, the appellant was involved in a motor accident on 18 November 2010. The vehicle at fault was a vehicle insured by Allianz. From 25 November 2010 the appellant received medical treatment and physiotherapy. (It will be necessary to make further mention of the physiotherapy notes.) What followed is a long and tortured saga in which the appellant has persistently sought to recover damages for non-economic loss under s 131. In order for her to do so, it was necessary that she be assessed as suffering more than 10 per cent permanent impairment.
2. On 20 April 2011 the appellant completed a Personal Injury Claim Form. She identified the injuries from the accident from which she suffered as: "Whiplash C2+C3 Lower back nerve damage."
3. An accompanying handwritten medical certificate dated 19 April 2011 of the appellant's general practitioner, Dr Todorovic, gave a description of the injury as: "MVA on 18/11/2010 Whiplash injury + low back pain [indecipherable, possibly radiating] to Ⓛ (? disc compression)." Dr Todorovic identified the "clinical findings" as: "Severe low back pain [indecipherable, possibly radiating) to left leg Neck pain (indecipherable)" Dr Todorovic referred the appellant to a physiotherapist, Mr Bill Stahlhut.
4. What took place between the appellant and Allianz from then until December 2012 is not disclosed in the evidence. The appellant was examined, and the degree of permanent impairment assessed, by medical practitioners to whom she was referred on behalf of Allianz; and she was similarly examined, and her degree of permanent impairment assessed, by medical practitioners to whom she was referred by solicitors acting for her. What is clear is that a medical dispute arose and that the dispute concerned the degree of permanent impairment (if any) suffered by the appellant. On 19 December 2012 the appellant filed an Application for Assessment of a Permanent Impairment Dispute on the prescribed form. She nominated the injuries in respect of which she sought assessment as soft tissue injury to the cervical, lumbar and thoracic spine, and to the left shoulder, and psychological injury, and the area of dispute as the degree of permanent impairment. She provided a report by Dr David Millons dated 20 June 2012. Dr Millons found that the appellant had sustained minor whiplash injury to the cervical spine, non-verifiable radicular complaints of the left upper limb, "[p]ossible impingement problems left shoulder", and "[p]ossible minor soft tissue injury lumbar spine".
5. Allianz filed a Reply to the Application. It pointed out that, in the Personal Injury Claim Form lodged on 20 April 2011, the appellant had made no mention of any injury to her left shoulder, and neither had Dr Todorovic.
6. The dispute was referred to a medical assessor, Dr Rosenthal. Dr Rosenthal examined the appellant. On 8 May 2013 he issued a certificate. He listed the injuries to be assessed as: "• Cervical spine - soft tissue injury • Lumbar spine - soft tissue injury • Thoracic spine - soft tissue injury • Left shoulder - soft tissue injury" (The claimed psychological injury had been referred to an appropriately qualified medical assessor and can be put to one side.)
7. Dr Rosenthal found that the injuries to the cervical spine and lumbar spine were caused by the motor accident, but that the injuries the appellant claimed to have suffered to the thoracic spine and left shoulder were not so caused. He assessed the appellant's total whole person impairment resulting from the injuries to the cervical and lumbar spine as 10 per cent (5 per cent attributable to each of the cervical and lumbar spine), and therefore certified that the appellant's injuries did not give rise to a permanent impairment of greater than 10 per cent for the purposes of s 131 of the MAC Act. That assessment is not in issue in these proceedings.
8. Pursuant to s 63(1) of the MAC Act, the appellant sought review of Dr Rosenthal's assessment. In a written submission included in the application, she contended that Dr Rosenthal's assessment was incorrect in a material respect because he had not made the assessment in accordance with the decision of Hall J in Nguyen. On 8 August 2013 the proper officer dismissed the application, being not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. She gave reasons for that decision. That decision is not in issue in these proceedings.
9. On 17 November 2014, pursuant to s 62, the appellant filed an Application for Further Assessment of a Permanent Impairment Dispute. She provided an additional medical report, which the proper officer was satisfied contained additional relevant information which was capable of materially altering the previous outcome (s 62(1A) of the MAC Act). The application was granted, and the appellant was assessed by a medical assessor, Dr Mohammed Assem. The appellant again listed the same four injuries, that is, soft tissue injury to the cervical, lumbar and thoracic spine, and to the left shoulder, and identified the area of dispute as the degree of impairment arising from each.
10. On 6 June 2015 Dr Assem issued a certificate in terms identical to that of Dr Rosenthal, that is, certifying that the appellant suffered soft tissue injury to the cervical and lumbar spine, giving rise to 10 per cent whole person impairment, and that soft injury to the thoracic spine and left shoulder were not caused by the motor vehicle accident. That meant that, again, the appellant's injuries did not meet the threshold required by s 131 for an award of damages for non-economic loss. That assessment is not in issue.
11. On 24 September 2015 the appellant lodged a second Application for Further Assessment of a Permanent Impairment Dispute. She again identified soft tissue injury to the cervical, lumbar and thoracic spine, and to the left shoulder, and the area of dispute as the degree of impairment arising from each. On 19 November 2015 the proper officer declined to refer the application for further medical assessment. She was: "… not satisfied that the additional relevant information or deterioration of the injury is such as to be capable of having a material effect on the outcome of the previous assessment as required by section 62(1A) of the [MAC Act]."
12. On 4 March 2016 the appellant lodged her third Application for Further Assessment of a Permanent Impairment Dispute. She identified the injuries and area of dispute in the same terms as previously. On 7 July 2016 the proper officer referred the application for further medical assessment to Dr Assem. On this occasion she was satisfied: "… that the additional relevant information or deterioration of the injury is such as to be capable of having a material effect on the outcome of the previous assessment as required by section 62(1A) of the [MAC Act]."
13. Dr Assem reviewed medical records, the records of the physiotherapist from whom the appellant had received treatment, and reports of medical practitioners who had examined the appellant at the request of Allianz. Included in the records of the physiotherapist were clinical notes and a diagram ("a pictogram"), which apparently came into existence on 25 November 2010, which Dr Assem interpreted to indicate: "… complaint of pain in the upper trapezius extending to the posterior aspect of both shoulders (periscapular area) and pain in her upper arms. Specific complaints of left shoulder pain were not documented until May 2011 as follows, 'L) shoulder pain again'." The "pictogram" was a representation of a human body, with markings which may be taken to represent areas where the appellant reported pain. There are such markings in the left shoulder area, and the letter "P". An entry in the physiotherapist's notes dated 18 May 2011 recorded: "Ⓛ shoulder pain again …"
14. Dr Assem examined the appellant. He reported his conclusions relevantly as follows: "Diagnosis and Causation Ms D'Ament has a clear injury of a whiplash injury to her cervical spine causing neck pain … She indicated that her neck symptoms were radiating to her left shoulder and she mentioned it to her physiotherapist, there was evidence supporting pain referred to her scapula rather than the shoulder joint. According to the contemporaneous documents of her treating physiotherapist, there is a diagram consistent with pain referred from the cervical spine to both shoulders rather than a direct shoulder injury. She appears to have later developed a primary condition involving her left shoulder in around March 2011 … The presence of fluid or possible haemorrhage within the left shoulder joint would indicate a recent traumatic episode rather than an injury that occurred 12 months earlier. The pattern of restrictions demonstrated were consistent with adhesive capsulitis. This is a constitutional condition that can sometimes be precipitated by recent trauma and it is unlikely to be related to the injuries sustained several months earlier. The notes of her treating physiotherapist confirm my opinion that there was pain referred to the periscapular (shoulder) area rather than an injury or pathology to her left shoulder arising from the subject motor vehicle accident. On the available evidence, the history given, her original symptoms of pain originating from the cervical spine radiating to the left shoulder and the later development of localised problems involving the left shoulder, I could not relate her current left shoulder problems to the subject motor vehicle accident. To ensure procedural fairness, I was required to consider whether she would have experienced a restriction in left shoulder motion due to pain arising from the cervical spine. As she has consistently reported pain at the left side of her neck with increased muscle tension and radicular symptoms in her left arm, it would be reasonable to accept a slight secondary limitation in shoulder motion if she did not have signs suggestive of left adhesive capsulitis (frozen shoulder). Normally pain arising from the cervical spine and increased tension in the left upper trapezius would restrict shoulder flexion and abduction to 150 degrees with no changes in shoulder extension, adduction or rotation. I have therefore adjusted my previous impairment assessment accordingly." (italics added)
15. As before, Dr Assem found that the soft tissue injuries to the cervical and lumbar spine were caused by the motor accident, but that soft tissue injury to the thoracic spine and left shoulder were not. Nevertheless, he found that the permanent impairment caused to the cervical spine was 7 per cent, and that caused to the lumbar spine was 5 per cent, giving a "final % permanent impairment" of 12 per cent. Accordingly, Dr Assem certified that the injuries caused to the appellant by the motor accident gave rise to permanent impairment of greater than 10 per cent.
16. Pursuant to s 63 of the MAC Act, Allianz sought review of Dr Assem's assessment. It identified the "material respects" in which it contended that the assessment was incorrect as the failure to apply cl 1.36 of the Guidelines, and taking into account improper and irrelevant considerations. As mentioned above, cl 1.36 of the Guidelines deals with the evaluation of permanent impairment that is complicated by the intervention of a subsequent injury to the same region of the body of which assessment is required. Allianz complained that Dr Assem had failed to calculate the degree of impairment caused by the "subsequent and unrelated injury", that is, the adhesive capsulitis.
17. On 26 September 2016 the proper officer found that there was reasonable cause to suspect that Dr Assem's certificate was incorrect in a material respect. Pursuant to s 63(3) she accordingly referred to Allianz's application to a Review Panel.
18. The Review Panel did not examine the appellant. It based its assessment on the documentary evidence. On 9 January 2017 the Review Panel issued its certificate. Consistently with the previous assessments of Drs Rosenthal and Assem, the Review Panel found that the motor accident was a cause of soft tissue injuries to the cervical and lumbar spines, but was not a cause of injury to the thoracic spine or the left shoulder. It assessed the degree of impairment of each of the cervical and lumbar spines as 5 per cent, giving a whole person impairment of 10 per cent, insufficient to permit the appellant to recover damages for non-economic loss under s 131. (The certificate states that the whole person impairment resulting from the lumbar spine injury was 0 per cent, but it was not in contest that this was an error and should have been 5 per cent.) Since this certificate is the subject of the present proceedings, it is necessary further to examine the reasoning contained therein.
19. The Review Panel began by identifying the dispute referred for assessment as: "Causation for the left shoulder injury" [On behalf of the appellant it was contended that this was erroneous, and the issue is correctly identified as whether the appellant suffered permanent impairment of the left shoulder caused by the motor vehicle accident.]
20. The Review Panel noted that the ambulance report of paramedics who treated the appellant at the scene of the motor accident recorded no complaint of injury to the left shoulder, and that the appellant's complaints then were of right side and jaw pain, head and neck pain. Similarly, the Review Panel noted, clinical records of the Shoalhaven Hospital, where the appellant was treated after the accident, made no reference to any injury to the left shoulder. Her complaints there recorded were of neck pain and low back pain.
21. The Review Panel referred to reports of Dr Dalton, a consultant in Rehabilitation Medicine, to whom the appellant had been referred for examination on behalf of Allianz. Dr Dalton had stated that there was no reference in the clinical notes of the appellant's physiotherapist (Mr Stahlhut) to left shoulder pain. The Review Panel observed that Mr Stahlhut had noted: "cervical + bilat shoulder pain." That entry appeared immediately after a note of the date of initial treatment as 25 November 2010. Included in the clinical notes was the pictogram apparently recording pain in the area of the left shoulder.
22. The Review Panel observed that the physiotherapy notes showed that, in November 2010 the appellant was complaining of "posterior cervical and bilateral periscapular pain", and that the "pain pictogram" showed: "… that this is periscapular pain not lateralised to either shoulder." The Review Panel said: "The physiotherapist considers that the periscapular pain is radiating from the neck. Specific complaints of left shoulder pain were not documented until May 2011 as follows, 'L) shoulder pain again'."
23. The Review Panel noted reports of Dr Todorovic and said that those notes did not mention left shoulder pain until 19 April 2011.
24. The Review Panel then noted reports of Dr Bodel (an orthopaedic surgeon to whom the appellant had been referred for assessment by her own solicitors) of 23 July 2015. Dr Bodel stated that the appellant was: "… quite adamant that the left shoulder was abnormal at the time of the injury." (Allianz accepted that "at the time of the injury" meant "from the time of the injury", and that the note was not intended to convey any pre-existing injury or symptoms.) The Review Panel added: "However the Panel could find no contemporaneous information to support this."
25. The Review Panel then noted a "clear documented injury" to the appellant's cervical spine causing neck pain which, it accepted, was causally related to the motor accident. It then said: "The next issue is whether there is a component of left shoulder restriction due to radiating pain from the neck. The Panel considered that the pain and restriction in the left shoulder did not present until March 2011. There was no radiation of cervical pain documented and left shoulder restriction was not evident in the documents until March 2011. Therefore there was no component of impairment based on the Nguyen judgement. The later left shoulder pain and restriction is explained adequately given the findings on MRI and ultrasound." The reference to the "Nguyen judgement" is a reference to the decision of Hall J mentioned above.
26. The Review Panel then specifically considered the soft tissue injury to the left shoulder. It said: "Ms D'Ament is reported after March 2011 to have left shoulder pain. However there is no information about such pain prior to this. She is said to have indicated to her general practitioner that her neck symptoms were radiating to her left shoulder and that she mentioned it to her physiotherapist. However the only information at that time indicated pain referred to her periscapular region rather than the shoulder joint. The left shoulder ultrasound, dated 25 May 2011, reported by Dr Janet Macintosh showed 'no evidence of a tendon tear. The humeral head is noted to sit high on plain film suggesting that in the absence of a tendon tear, there may be a weakness of the rotator cuff muscles allowing the humeral head to ride up. This produces narrowed subacromial space and is likely to be responsible for the subacromial bursitis'. There is no previous injury noted. The Panel considered that Ms D'Ament appears to have later developed a primary condition involving her left shoulder in around March 2011. Dr Todorovic reviewed her then and arranged an ultrasound examination of her left shoulder without documenting any injury, symptoms or limitations involving her left shoulder arising from the subject motor vehicle accident. The presence of fluid or possible haemorrhage within the left shoulder joint would indicate a recent traumatic episode rather than an injury that occurred about 12 months earlier. The pattern of restriction of movement demonstrated was consistent with adhesive capsulitis. The Panel considered that this was a constitutional condition that can sometimes be precipitated by recent trauma but considered that it is unlikely to be related to the injuries sustained almost 12 months earlier. The Panel accepts that she may initially have developed referred symptoms to the periscapular area but there is no evidence of a shoulder injury and no relationship to the nature of the motor vehicle accident and the later identification of shoulder pathology on radiological imaging." (italics added) Parts of this are in identical terms to the reasons of Dr Assem.
27. The Review Panel, like the previous assessors, found that soft tissue injury to the cervical and lumbar spine had been caused by the accident, but that soft tissue injury to the thoracic spine and the left shoulder had not.
28. Accordingly, the Review Panel revoked the certificate issued by Dr Assem on 8 August 2016 and issued a new permanent impairment certificate reflecting its findings. This is the certificate of which the appellant sought judicial review under s 69 of the Supreme Court Act, and is the subject of the present appeal.

The jurisdiction invoked

1. As this point it is apposite to comment on the nature of the jurisdiction invoked on behalf of the appellant. Relief under s 69 of the Supreme Court Act is available only for jurisdictional error or error of law on the face of the record. It is apparent that no attention was paid in the submissions in the Supreme Court to the limited nature of the jurisdiction, and no more attention was paid to it in this Court. The result has been, in the Supreme Court, that the primary judge was not asked to deal with s 69 questions, and, in this Court, a descent into arguments that seek to cavil with the factual conclusions reached by the Review Panel, and to identify errors of fact that cannot qualify either as jurisdictional error or error of law on the face of the record.

The primary judgment

1. The primary judge outlined "four substantive errors" in the reasoning of the Review Panel asserted on behalf of the appellant. In three respects the appellant claimed that the Review Panel had failed to perform its statutory task. They were: 1. failing to "consider, deal with or engage with" the appellant's substantive argument on causation, in particular by failing adequately to consider Dr Assem's reasons for issuing the certificate of 8 August 2016; 2. applying a test for the assessment of personal injury that was contrary to law; and 3. failing to apply the Guidelines in the assessment of the appellant's injury. The fourth complaint (not now pressed) was of failure to conduct a clinical examination of the appellant.
2. The primary judge summarised the argument advanced in respect of each ground. In support of the first ground, it was argued on behalf of the appellant that the Review Panel failed to take into account Dr Assem's finding that the appellant's shoulder condition was caused by referred pain rather than a direct injury in the motor vehicle accident. Dr Assem had said: "The notes of her treating physiotherapist confirm my opinion that there was pain referred to the periscapular (shoulder) area rather than an injury or pathology to her left shoulder arising from the subject motor vehicle accident."
3. In respect of the second ground it was argued that the Review Panel proceeded on a wrong basis because it: "… proceeded on a mistaken quest to determine whether there had been an injury to the left shoulder" and that the Review Panel misconceived its task by looking for injury to the left shoulder rather than impairment. In respect of the third ground it was argued that relevant evidence (of pain and loss of strength) in the left shoulder was ignored by the Review Panel.
4. In respect of the final ground it was argued that the Review Panel deprived the appellant of the opportunity to give an account of her history and symptoms. As indicated above, that contention is no longer pressed.
5. As will be explained below, the argument in relation to the first and second grounds are capable of being seen as assertions of jurisdictional error, although that is not how it appears to have been put to the primary judge. It is difficult to see how the argument in support of the third and fourth grounds could be assertions of error within s 69.
6. The primary judge rejected each argument. As to Ground 1, she noted that each application for review [assessment] lodged by the appellant claimed the same four areas of soft tissue injury, one of which was injury to the left shoulder. In those circumstances it could hardly be said to have been an error for the Review Panel to determine whether there had (or had not) been such an injury. She rejected a complaint that the Review Panel failed to have regard to Dr Assem's assessment. That disposed of Grounds 1 and 2. As to the third ground, the primary judge noted Allianz's submission that challenged Dr Assem's finding of referred pain. She concluded: "67 It is entirely within the purview of the Panel to determine, on its own assessment of the contemporaneous clinical records, that there was no such impairment arising from the cervical spine or indeed arising from any injury to the left shoulder, based on its interpretation of the available records."
7. She held that the Review Panel was not obliged to conduct a clinical examination of the appellant.
8. That disposed of Grounds 3 and 4.

The appeal to this Court

1. With that rather lengthy background, the issues on the appeal may be disposed of more economically. The appellant's principal quarrel with the decision of the primary judge was stated to be in her finding, at [67] (extracted above), that it lay within "the purview" of the Review Panel to determine, in its clinical judgment, that there was no impairment arising from the cervical spine or from any injury to the left shoulder.
2. The grounds of appeal as pleaded are: "1 The primary judge erred in finding that the Review Panel's approach was within its purview. 2 Her Honour erred in thinking that the issue of whether there was evidence for a finding was a matter within the clinical judgment of the Review Panel. 3 Her Honour should have found that the existence or not of evidence to support a finding was a question of law. 4 Her Honour should have found that: a. There was evidence of the appellant suffering pain in her left shoulder within days of the motor accident; b. That there was evidence of injury to the left shoulder within the St George's Basin Physiotherapy Records; c. That there was evidence of injury and/or impairment of the left shoulder within those records. 5 The primary judge erred in failing to find that the Review Panel had fallen into error in that: a. It made findings for which there was no evidence; b. Asked itself the wrong question or questions; c. Misunderstood the evidence."
3. It is not entirely easy to relate the argument advanced to the grounds as pleaded. In fact, the argument was a re-agitation of the attack on the Review Panel's determination. A recurring theme of the argument was the proposition that the Review Panel confined its attention to whether there was a direct injury to the appellant's left shoulder, and did not consider the wider proposition that the appellant's shoulder condition resulted from the acknowledged direct injury to her cervical spine.
4. It was then argued that there were factual inaccuracies in the Review Panel's reasoning - specifically, that the pain and restriction in the left shoulder "did not present until March 2011", that such restriction was not evident in the documentation prior to March 2011, and that there was contemporaneous information to support the appellant's history to Dr Bodel that her left shoulder was abnormal from the time of the motor accident.
5. This was, in fact, the centrepiece of the argument advanced on behalf of the appellant. The proposition that shoulder pain did not present until March 2011 could be seen to be factually wrong, it was contended, by reference to evidence before the Review Panel. It was therefore argued that the finding was one for which there was no evidence. A finding of fact for which there was no evidence is, it was contended, an error of law, and, further, that that error was an error of law on the face of the record.
6. Transcribed into language appropriate to the s 69 jurisdiction, the appellant's argument, it seems to me, devolved into three strands: 1. that the Review Panel failed to address an argument that had properly been put before it; 2. that the Review Panel directed its attention to the wrong question, being whether the appellant had suffered injury to the left shoulder in the motor accident, when the correct question was whether she suffered "impairment", whether from direct injury or as a consequence of injury to her cervical spine; and 3. that the Review Panel's determination was based on findings of fact for which there was no evidence.
7. The first proposition, if made out, would establish a denial of procedural fairness and therefore jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; (2016) 77 MVR 348. The second proposition, if made out, would establish a constructive failure to exercise jurisdiction - that is, jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81]. The third proposition, that findings of fact for which there is no evidence amount to error of law on the face of the record, is more controversial and will be addressed below.

(i) jurisdictional error

1. Neither party referred to the decision of this Court in McGiffen. Mr McGiffen was injured while riding a motorcycle. He suffered serious leg injuries that, he claimed, had ongoing effects. In his initial claim form, he nominated his injuries, which included "secondary development of back injury". When the relevant degree of permanent impairment was denied by the insurer, he made a claim for assessment of permanent impairment. He included in his list of injuries spinal injury "consequent upon joint derangement". A medical assessor rejected his claims as did a Review Panel.
2. Neither the medical assessor nor the Review Panel addressed what was in effect a claim for delayed onset of back pain resulting from his leg injury. Both rejected his contention on the basis that his first complaints of back pain were made many months after the motor accident. On judicial review a judge of the Supreme Court found that the Review Panel only partly asked the question it was required to answer. This Court, on appeal, said: "65 In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason the decision recorded in the panel's certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error. 66 This was a case where a failure by the review panel to respond to a substantial argument led to a practical injustice. The primary judge was correct to hold that the review panel did not address the correct question put to it for determination." It was the appellant's case that her claim that she suffered injury to her left shoulder was based not upon direct injury to the left shoulder sustained in the motor accident, but on referred pain as described by Hall J in Nguyen, and that this case was not addressed by the Review Panel. Failure by the Review Panel to address that case was error of the kind found in McGiffen.
3. Whether it is correct that the appellant had advanced her case in the clear terms now proposed is, in my opinion, questionable. As can be seen from the record of numerous applications and claims made by her, she consistently asserted "soft tissue injury" to the left shoulder. The primary judge noted this at [65] of the judgment. On one occasion (the application for review of Dr Rosenthal's assessment in May 2013) the appellant adverted to Nguyen and complained that Dr Rosenthal had failed to perform his assessment in accordance with that decision. Otherwise, there is little in the material to support the assertion that she put her case in the way she now claims.
4. Whether she did in fact advance her case on a Nguyen basis need not, however, be a cause of diversion. That is because no such question was raised on behalf of Allianz. Allianz was content to respond to the argument by reference to the approach taken by the Review Panel, which, it contended, did precisely what the appellant claims it ought to have done. The question is therefore whether the Review Panel did in fact address the issue of referred pain as distinct from direct injury caused in the motor accident.
5. That can be answered by a reference to a single paragraph in the reasons given by the Review Panel: "The next issue is whether there is a component of left shoulder restriction due to radiating pain from the neck. The Panel considered that the pain and restriction in the left shoulder did not present until March 2011. There was no radiation of cervical pain documented and left shoulder restriction was not evident in the documents until March 2011. Therefore there was no component of impairment based on the Nguyen judgement. The later left shoulder pain and restriction is explained adequately given the findings on MRI and ultrasound." There was no failure by the Review Panel to assess the appellant's claim by reference to indirect causation.
6. The appellant then contended that, in reaching its determination, the Review Panel failed to ask itself the correct question. That is the second strand in the appellant's argument. The argument was that the Review Panel directed its attention, not to impairment, which is the focus of a permanent impairment assessment for the purposes of s 131, but on "injury" or "direct injury" to the shoulder. Impairment may result from direct injury, or, as explained by Hall J in Nguyen, from referred pain from injury to a different body part. But, on the appellant's argument, the Review Panel confined its attention to "injury" or "direct injury" and overlooked consequential injuries.
7. Senior counsel pointed to a number of discrete passages in the reasons. These included:

• "… as causation of the left shoulder injury was the matter in question";
• "… the causation of the left shoulder injury was that most germane to [the Panel's] deliberations";
• "… [Dr Dalton] stated that there was no reference to the left shoulder pain [in the physiotherapy notes]";
• "The Panel accepts that she may initially have developed referred symptoms to the periscapular area but there is no evidence of a shoulder injury and no relationship to the nature of the motor vehicle accident …".

1. Allianz's response was to rely on the Guidelines, which, it was submitted, make "restricted movement the sole parameter by which impairment is measured"; assessment of impairment required evidence of "restriction of range of motion" (of which there was no evidence).
2. That, in my opinion, is significantly to overstate the effect of the Guidelines. The relevant part of the Guidelines cites the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition, Third Printing (1995), which relevantly states as follows: "Evaluating the range of motion of an extremity or of the spine is a valid method of estimating an impairment. To some extent, however, the range of motion is subject to the patient's control. The results of such evaluations should be consistent and concordant with the presence or absence of pathologic signs and other medical evidence." The first sentence of that passage does not support the bald proposition put on behalf of Allianz, and neither does the last.
3. Nevertheless, there is difficulty in accepting the appellant's argument that the Review Panel failed to examine impairment as distinct from direct injury. The argument fails to have regard to the reasons of the Review Panel as a whole. It is expressly contradicted by more than one passage in the reasons, notably the passage extracted above, in which the Review Panel considered indirect inquiry, and a number of others in which impairment is considered.
4. One flaw in the appellant's argument is that it extracts from the reasons individual sentences and passages, and overlooks or ignores others. The reasons are to be read as a whole. When they are, it is clear, in my opinion, that the Review Panel directed its attention to impairment.
5. In my opinion the Review Panel did not fail to address the appellant's case that, as a consequence of the motor accident, she suffered referred pain in the left shoulder. Nor did it address the wrong question by focusing erroneously only on direct injury. Jurisdictional error is not established.
6. Before passing from the question of jurisdictional error, it is appropriate to make one further observation. At the commencement of these reasons I noted a "complexity" to the argument concerning the assessment of impairment. That complexity arises from the adhesive capsulitis from which the appellant now suffers. That is the relevance of cl 1.36 of the Guidelines, which provide for assessment of injuries caused by a motor accident that are affected by subsequent injuries or conditions. The application of cl 1.36 would have involved an assessment of the appellant's shoulder condition from the date of the motor accident to the date (if known) of the onset of the adhesive capsulitis. Clause 1.36 was invoked by Allianz in its application for review of Dr Assem's assessment. It has not been invoked on behalf of the appellant. The appellant does not now contend that the Review Panel was asked to make an assessment under that clause, nor that it was under a duty to do so, and failed to discharge that duty.

(ii) error of law on the face of the record

1. The second strand of the appellant's argument depends upon a proposition that the Review Panel made findings of fact for which there was no evidence. The findings of fact were said to be: • "… pain and restriction in the left shoulder did not present until March 2011" • "there was no radiation of cervical pain documented and left shoulder restriction was not evident in the documents until March 2011." • "Ms D'Ament is reported after March 2011 to have left shoulder pain. However there is no information about such pain prior to this."
2. These statements, it was argued, were not only factually incorrect, they failed to have regard to certain aspects of the evidence which, it was argued, recorded pain in the left shoulder prior to March 2011. The argument then delved into the physiotherapy and medical records to support the proposition that there was evidence of pain in the left shoulder prior to March 2011. Reference was made to the pictogram in the physiotherapy notes, and to the record of the physiotherapist dated 18 May 2011: "Ⓛ shoulder pain again" (emphasis added) and the report of Dr Bodel which recorded (after the event) that the appellant was "adamant" that she had suffered injury of the left shoulder in the motor accident. Senior counsel for the appellant asserted that: "Whether there is evidence of fact is a question of law. There was, therefore, an error of law on the face of the record." In the consideration of this argument a preliminary question arises.
3. Allianz did not take issue with the proposition that a finding of fact for which there was no evidence constitutes error of law on the face of the record. The proposition, however, cannot be allowed to pass unexamined.
4. It may be accepted that a finding of fact for which there is no evidence constitutes an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]. That is not the same as saying that such a finding constitutes an error of law on the face of the record. The parameters of "error of law on the face of the record" have not been authoritatively defined. There is no clear line that marks out an error of law as one that is "on the face of the record".
5. While, by s 69(4), "the record" includes the reasons for the decision in question, it is clear that "the record" does not include the transcript of the proceedings, the evidence, or the submissions: Craig v The State of South Australia (1995) 184 CLR 163 at 180 ff; [1995] HCA 58; Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [29]-[30]; Geftlic v Merhi [2011] NSWCA 241.
6. The question was again adverted to in McGiffen. The Court said: "89 Further, whether any such error of law was one appearing 'on the face of the record' as required by s 69 of the Supreme Court Act was not explored by the parties on the appeal. The extent to which, when considering a 'no evidence' finding, it is open to consider material beyond the reasons of the review panel is unclear. It is true that s 69(4) of the Supreme Court Act makes the reasons part of the record, assuming, in the absence of argument to the contrary, that the review panel is a 'tribunal'. It is not, however, permissible to review the whole of the evidence before the review panel to discern whether there is an error of law on the face of the record."
7. The appellant's submissions trawled through the medical and physiotherapy evidence in order to establish the proposition that there had been complaints by the appellant of pain in the left shoulder prior to March 2011. The argument also required interpretation of that evidence - for example, the physiotherapy note of "left shoulder pain again" and of the pictogram in the notes. That exercise is beyond the scope of a determination of whether there has been "error of law on the face of the record". I am satisfied, however, that the error of law for which the appellant contends (even if it is error of law) falls on the wrong side of the divide referred to in [74] above. No error of law on the face of the record has been established.
8. The appellant has not demonstrated any entitlement to relief under s 69 of the Supreme Court Act. The primary judge was correct to dismiss the summons.
9. The orders I propose are: 1. Appeal dismissed. 2. Appellant to pay the costs of the appeal.

Amendments 03 September 2019 - [40] - "accident" substituted for "injury" [72] - "argued" substituted for "agreed" 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: 03 September 2019