Devic v NRMA Insurance Limited

Decision of the review panel 10As already noted, the proper officer of the Authority was prompted to refer the application to a review panel on the strength of an issue relating to the correctness of Assessor Wan's assessment the cervical spine. The issue was whether Ms Devic satisfied the requirements to be classified within "DRE impairment category rating I" or "DRE impairment category rating II". Assessor Wan determined that the impairment was classified as DRE category I, which corresponded to a whole person impairment of 0%. The doubt raised in that respect arose from an issue as to whether Ms Devic had an asymmetrical range of movement in the neck, which would be an indication that she might have qualified to be classified as DRE category II (corresponding to a whole person impairment of 5%). 11The review panel determined that, in order to reach a conclusion as to the correctness of Assessor Wan's decision on that issue, it was necessary for them to re-examine Ms Devic. The examination was undertaken by two of the three members of the review panel. Although the decision to re-examine Ms Devic arose from the need to assess the range of movement in the neck (for the purpose of considering the injury to the cervical spine), the panel decided to examine all injuries at that time. 12The decision of the review panel records that Ms Devic confirmed the previous pre-accident medical history and relevant personal details, the history of the motor vehicle accident and the history of symptoms and treatment following the motor vehicle accident from Assessor Wan's certificate of assessment dated 18 October 2009. Separately, the assessors recorded Ms Devic's history as to her current status and their observations upon physical examination. 13The review panel concluded that the degree of whole person permanent impairment due to the injuries caused by the accident was 5% for the lumbar spine, 0% for the cervical spine and 4% for the right shoulder, giving a total whole person impairment of 9%. The panel accordingly confirmed the certificate issued by Assessor Wan that Ms Devic's permanent impairment was not greater than 10%. Measurement of the range of movement in the shoulder 14The errors alleged by Ms Devic relate principally to the manner in which the Review Panel measured and assessed the range of motion in her right shoulder. It might readily be concluded that the undertaking of such a task would not easily lend itself to legal or jurisdictional error. Although characterised in different legal ways, the overarching complaint is that the panel used the range of movement in Ms Devic's left shoulder as the baseline for its calculation of the impairment in the injured right shoulder. In order to understand the grounds of review relied upon in respect of that aspect of the panel's decision, it is necessary to explain the approach it was required to undertake. 15Section 65(1) of the Motor Accidents Compensation Act provides that medical assessments are subject to relevant provisions of guidelines issued by the Authority. The assessment of "upper extremity impairment" (here, the shoulder) is addressed in chapter 2 of the Permanent Impairment Guidelines issued by the Authority. 16The approach nominated in the guidelines contemplates that impairment will be evaluated by a series of measurements of range of motion, but notes that such measurement can be subject to variation for a number of reasons. 17In the present case, based on measurements of the range of motion in the right shoulder alone, the panel assessed an upper extremity impairment of 9%. However, measurements on the "contralateral" or opposite side revealed an impaired range of movement of 3% in the left shoulder. The panel adopted the left shoulder as a baseline, and thus reached a final calculation of only 6% upper extremity impairment (which translates to a whole person impairment of 4%). 18In taking that approach, the panel had applied clause 2.5 of chapter 2 of the Authority's Permanent Impairment Guidelines , which states: If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision should be explained in the impairment evaluation report. 19It should be noted that clause 2.5 appears in bold font style. Clause 1.3 of the guidelines states a "convention" in the guidelines that if the text is in bold, it is "a directive as to how the assessment should be performed". Grounds of review relating to the right shoulder injury 20The substance of Ms Devic's complaint is that the use of the measurements for the left shoulder as a baseline represented a wrong approach, which led the panel to underestimate the degree of impairment in the right shoulder. 21The alleged error in approach is described in the summons, variously, as taking into account an irrelevant consideration, denial of procedural fairness, constructive failure to exercise jurisdiction, forming an opinion not reasonably open to the panel and a failure to make inquiries. Those allegations were developed further in submissions as revealing jurisdictional error based on the absence of certain matters alleged to be jurisdictional facts, namely, the fact that the contralateral uninjured joint has a less than average mobility and the existence of "a reasonable expectation the injured joint would have had similar findings to the uninjured joint before injury". 22Counsel for Ms Devic acknowledged that the application thus sought to place a number of different legal characterisations on what was essentially the same error. It was sought to draw support for that approach from the judgment of Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, where her Honour stated at [41] that there is said to be a constructive failure to exercise jurisdiction when a tribunal: misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. 23In that context, Gaudron J noted that a constructive failure to exercise jurisdiction might be disclosed by taking an irrelevant consideration into account or by a failure to take a relevant matter into account. 24In light of the approach taken by the plaintiff, I have to some extent addressed the errors alleged in respect of that part of the panel's decision in a global fashion, distinguishing between individual grounds where appropriate. Failure to make inquiries 25It was submitted on behalf of the plaintiff that the Review Panel was "empowered" under the guidelines (specifically, clause 2.5 set out above) to proceed as it did only if: (a) the contralateral uninjured joint had less than average mobility; (b) there was a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before the accident. 26Ms Nolan, who appeared for the plaintiff, submitted that it was accordingly necessary for the panel to make "proper inquiry" as to whether the uninjured joint genuinely had less than average mobility. Secondly, noting that the power could only have been exercised in circumstances where there was a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before the accident, Ms Nolan submitted that it was necessary for the review panel to reach a state of "reasonable satisfaction" that the left uninjured joint was not injured in (or subsequently impaired by reason of) the accident. 27It was submitted that the review panel was under a statutory duty to make a thorough investigation of all of the matters with which the assessment was concerned. Reliance was placed in that context on the decision of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13. 28When pressed as to the specifics of that contention in oral submissions, Ms Nolan submitted that, whilst examining Ms Devic, the assessors ought to have asked the following questions (at T17.16): What is the source of pain? Is it coming from your shoulder? Is it coming from your neck? Are you able to lift your arm any further with pain? When you feel that pain, where is it coming from? Your shoulder or your neck? Were you able to lift your arm up to your ear before the injury? 29Ms Nolan further submitted that, even if the panel was not under a duty to make a thorough investigation, the failure to make inquiries of the kind set out above meant that the decision was so unreasonable that no reasonable person would have so exercised the power in question. In support of that submission, reliance was placed on the well known remarks of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 170, where his Honour said: It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information. 30The contention that the panel ought to have made further inquiries of Ms Devic during the physical examination is critical to each of the grounds of review relied upon by the plaintiff. Upon analysis, it raises a number of difficulties. 31First, the plaintiff's submissions assume that no inquiries of the kind identified above (at [28]) were in fact made. Ms Nolan submitted that the failure to make such inquiries could be inferred from the fact that there is no reference to the making of any such inquiries in the reasons for decision. In that respect, she relied upon the decision of the High Court in Waterways Authority v Fitzgibbon [2005] HAS 57; (2005) 221 ALR 402 at [130] per Haine J: In the present case, however, reference to the "sufficiency" of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue. 32In assessing the plaintiff's contention, it is necessary to have regard to the kind of decision under review. The decision records the panel's reasons for reaching their conclusion on the basis of the material before them, including their physical examination of the plaintiff. It is not a report of the examination itself. I do not think it is reasonable to conclude, from the absence of specific reference to any particular question asked during the process of the examination, that no such questions were asked. One would expect the reasons to record the findings from the examination that were considered pertinent to the panel's conclusion, but there is no reason to expect that the reasons should have recorded every inquiry made along the path to those findings. 33As to the plaintiff's reliance on the decision of Wilcox J in Prasad , I do not think it is "obvious that material is readily available which is centrally relevant to the decision to be made". His Honour's remarks in that case were made in a very different context from the present case. They related to the availability of direct evidence in the form of statutory declarations concerning an issue central to the Tribunal's inquiry, namely, whether the applicant's marriage was genuine (or whether, conversely, it had been entered into for cynical migration reasons). The inquiries which it is said the review panel ought to have made in the present case fall into a very different class. The existence or availability of any information different from that in fact recorded by the panel is entirely speculative. 34Finally, the submissions in effect invite the Court to second-guess the performance of a medical examination. Such a request should be approached with circumspection, in my view. The measurement of range of movement in a body joint is essentially a clinical task. I do not think there is any basis for thinking that my armchair judgment as to the proper approach to such a task could sensibly be relied upon in preference to the judgments of a panel of medically qualified assessors employed by the Authority. 35In my view, those conclusions are fatal to the existence of any of the individual errors alleged by the plaintiff. One characterisation of the alleged error is that the panel constructively failed to exercise jurisdiction in that it took into account an irrelevant consideration. Specifically, it is alleged that the panel took into account measurements for the left shoulder "which were not an accurate measurement of [Ms Devic's] average range of motion for that joint". 36The particulars in the summons further allege that, in determining the measurements taken in respect of the left shoulder as the baseline measurement for the range of movement in the right shoulder, the review panel "pursued a line of questioning and method of examination such that it failed to elicit from the plaintiff the correct and true range of motion in her uninjured contralateral joint [the left shoulder]". 37Those allegations assume not only that inquiries should have been made but that the failure to make them produced incorrect (and therefore irrelevant) readings. For the reasons explained above, I do not think those premises are established. I am not persuaded that the panel failed to obtain accurate measurements of the range of motion in the plaintiff's left shoulder joint. 38The review panel's report of its assessment of the upper limbs includes the following: On examination of the shoulder girdle, there was no wasting or asymmetry in and about the shoulder girdle. There was localised reported tenderness over the tip of the right shoulder. Impingement tests were negative and there was no crepitus palpable in the shoulder joints. The range of shoulder movements was repeated to establish consistency and measured with a goniometer according to the MAA 4 Guides. Left shoulder movements were initially noted to be more significantly restricted. When requested to do her best she displayed an increased range of abduction of the left shoulder. She did indicate that there was no injury to the left shoulder as a result of the subject motor vehicle accident. 39Having regard to those remarks, it may be seen that the plainitff's argument invites the Court to conclude that, by reason of their failure to pose the questions set out above (at [28]), the assessors failed to elicit the "correct and true" range of motion in the left shoulder notwithstanding the fact that they obtained a history of tenderness in the right shoulder, repeated the measurements, undertook them with a goniometer and at some point pressed Ms Devic to "do her best", resulting in an increased range in the relevant movement of the left shoulder. 40Further, the argument requires the Court to conclude that the measurements, by reason of the failure to make the inquiries identified, were wrong and therefore irrelevant to be taken into account. I do not think there is any basis for me to reach that conclusion, which would require me to prefer my own view as to the proper conduct of a clinical medical examination to that of two qualified doctors. I do not think it is appropriate for me to venture such a task. 41Separately, Ms Devic contends that, by reason of the alleged failure accurately to measure range of movement in the left shoulder (including by failing to make the inquiries set out above), the review panel adopted an unfair procedure on assessment and thereby denied Ms Devic natural justice. For the reasons already explained, I am not persuaded that there is any basis to conclude that, in the absence of the inquiries identified by counsel for Ms Devic, the process of the assessment was unfair or that the panel denied Ms Devic natural justice. 42I do not think any different consideration is raised by the other ground of review relied upon in the summons (forming an opinion not reasonably open to the panel), which also turns on the contention that the measurements taken of the left shoulder are demonstrably wrong. I do not accept that premise, for the reasons already stated. 43As noted above, the plaintiff's submissions contended, alternatively, that the decision was vitiated for want of the existence of certain jurisdictional facts. Specifically, it was submitted that the Review Panel had no power to apply clause 2.5 unless first satisfied that the contralateral uninjured joint had a less than average mobility and, further, that there was "a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before the accident". It was submitted that, unless those "jurisdictional facts" existed, the decision was a nullity. 44The term "jurisdictional fact" was considered most recently by the High Court in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 where the Chief Justice said at [57] (footnotes omitted): The term "jurisdictional fact" applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be "a complex of elements". When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact. 45I do not think the requirement that the contralateral uninjured joint have a less than average mobility could on any analysis be construed as a jurisdictional fact. In my view, the determination of that issue is plainly part of the primary fact-finding task within the jurisdiction of the Panel. 46Further, in my view, it is doubtful whether the "reasonable expectation" referred to in clause 2.5 of the guidelines is properly to be construed as a jurisdictional fact. I do not think the fact that clause 2.5 is one of the clauses in bold is sufficient warrant for that conclusion and I do not think the statute otherwise lends itself to that construction. In any event, it is not necessary for me to determine that question. In my view, it is clear from the reasons of the Review Panel that its members were satisfied as to the existence of that expectation. The reasons for decision expressly recite the terms of clause 2.5 and state: Because there was no history of an injury to the left shoulder (confirmed by Ms Devic), the Panel considered that a baseline range of movement in the right shoulder would be that of the left uninjured shoulder. 47Accordingly, even if any of the requirements of clause 2.5 meets the test for a jurisdictional fact, I am not persuaded that the Review Panel determined the matter in the absence of any such fact. 48For those reasons, I am not persuaded that the Review Panel's decision in respect of the injury to the right shoulder entailed error. 49It was submitted on behalf of the defendant that, even if I had concluded otherwise, I ought not to have exercised my discretion to grant an order in the nature of certiorari, for the following reasons. It was acknowledged on behalf of the plaintiff that, even without the comparator of the left shoulder measurements as a baseline, the impairment to the upper extremity would have been 9%, which corresponds to a whole person impairment in respect of the shoulder of 5%. Since the only other impairment was also 5%, the total impairment would accordingly still have been "not greater than 10%", regardless of application of clause 2.5 of the guidelines. In those circumstances, it was submitted that the Court should have declined to remit the matter in any event, in accordance with the principles stated by the High Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. 50Ms Nolan submitted that, if a new assessment were ordered, the whole matter would be at large again and that, unless the Court could conclude, without equivocation, that there was no possibility of a different outcome upon further assessment, the plaintiff was entitled to have the matter remitted. 51With the utmost respect, I think that submission overstates the position. Whether the error in question is properly characterised as an error of law on the face of the record or jurisdictional error, the Court retains a discretion to refuse relief if that appears to be the proper course, although it may be acknowledged that, in the case of jurisdictional error, the discretion not to grant the relief sought would be exercised rarely. The relevant principles are discussed in the recent decision of this Court in NRMA Insurance Limited v Ainsworth [2011] NSWSC 344 at [96-106] per Rothman J. 52I am inclined to the view that, even if the plaintiff had established error of the kind alleged in the present case, I would not have exercised my discretion to grant the relief sought, for the reasons contended for by Mr Fitzsimmons on behalf of the first defendant. However, in the result, it has not been necessary for me to determine that question.

Grounds of review relating to the injury to the cervical spine 53The second ground of review relied upon in the summons is that: In assessing the extent of injury to the cervical spine the review panel employed a methodology which was not transparent and thereby denied the plaintiff procedural fairness. 54The matter was put perhaps slightly differently in the submissions on behalf of the plaintiff , where it was contended that the clinical findings of the review panel were "insufficiently transparent to fulfil the minimum legal standard of reasons incumbent upon the review panel to quell the controversy which gave rise to the referral of the review". 55As already noted, the Review Panel was constituted pursuant to a referral arising from the existence of reasonable cause to suspect that Assessor Wan was incorrect in respect of his assessment of the impairment occasioned by the cervical spine injury. Assessor Wan had recorded clinical findings relating to neck movement which appeared to be asymmetric and might have indicated dysmetria. The significance of those findings is considered below. 56It was uncontroversial in the proceedings before me that the Review Panel was under an obligation to give reasons for its decision: cf Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at [117] per Basten JA; McColl JA agreeing at [33]; Handley AJA agreeing with "much of [his Honour's] reasoning" at [1]. 57The decision in Vegan was concerned with medical assessment under the Workplace Injury Management and Workers Compensation Act 1998 but is plainly equally persuasive in the present context. In that case, Basten JA noted at [130] the well established proposition that a failure on the part of a tribunal exercising judicial functions to give reasons for its decision will constitute an error of law which will permit the decision to be set aside on appeal, where the right of appeal is limited to errors of law. His Honour did not consider it necessary to determine whether such a failure also constitutes jurisdictional error in relation to the statutory mandate of the relevant panel under that legislation. 58The plaintiff relied upon the discussion by Basten JA in Vegan as to what is required in order to fulfil a minimum legal standard of adequate reasons. On the subject of adequacy of reasons of an Appeal Panel under the workplace injury legislation, his Honour said (at [121-122]): 121 Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. 122 On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required. 59In its reasons for decision in respect of the cervical spine in the present case, the Review Panel said: On inspection of the neck, the posture, alignment and contour were normal. There was reported tenderness over the lower cervical spine centrally. There was no muscle spasm and no muscle guarding. There was no dysmetria - the Panel observed and also measured range of motion and found on repeat examination of the three principal planes: Flexion and extension - three quarter range; Lateral bending to the right and left - three quarter range; Rotation to the right and left - half normal range. 60The Panel concluded its deliberations as to the issue of the cervical spine strain in the following terms: As to the assessment of permanent impairment of the cervical spine, the Panel noted that clinical assessment had revealed a symmetrical range of neck movement (no evidence of dysmetria) and no evidence of muscle guarding or spasm (as defined in the MAA Guidelines page 24). The distribution of the left upper extremity symptoms were not confined to any specific dermatomal distribution which would satisfy the criteria for "non verifiable radicular pain" (as defined in the MAA Guidelines page 24). The Panel therefore concluded that the condition satisfied DRE Category 1 of the Cervicothoracic spine, which translates to a 0% Whole Person Impairment under Table 72, page 110, of the AMA Guides. There was no objective clinical features suggestive of radiculopathy which would satisfy the criteria for DRE III (as defined in the MAA Guidelines page 25). 61The assessment of the degree of permanent impairment arising from the strain to the cervical spine was to be made in accordance with the Authority's guidelines, as required by section 65 of the Act. In supplementary submissions filed after the conclusion of the hearing, the parties explained that those guidelines use the American Medical Association Guides to the Evaluation of Permanent Impairment, 4 th Edition, 3 rd printing (1995) as their basis. 62The approach required in the guidelines in respect of assessment of impairment of the spine is for the assessor to establish the Diagnosis Related Estimate or "DRE" category for the injury. Clause 4.1 of Chapter 4 of the Authority's guidelines provides: Only the Diagnosis Related Estimate (DRE) is to be used for the evaluation of impairment of the spine, as modified by this chapter. 63The task of the review panel was accordingly to determine the relevant DRE category in accordance with the American Medical Association Guides as modified in the guidelines issued by the Authority. 64The possibilities were DRE category I or II, defined as follows: DRE Cervicothoracic Category 1: Complaints and Symptoms Description and Verification: The patient has no significant clinical findings, no muscle guarding ..., no documentable neurologic impairment, no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness ... DRE Cervicothoracic Category II: Minor Impairment Description and Verification: The clinical history and examination findings are compatible with a specific injury or illness. The findings include significant intermittent or continuous muscle guarding that has been observed and documented by an assessor, non-uniform loss of range of motion (dysmetria, ...) or non-verifiable radicular complaints. There is no objective sign of radiculopathy and no loss of structural integrity. 65As noted on behalf of the defendant, the review panel expressly considered the criteria for classification in category II, being guarding, dysmetria and radicular complaints. The review panel found, following examination, that none of those criteria was evident and assessed the injury as falling within category I on that basis. 66In my view, as submitted on behalf of the defendant, the findings of the review panel addressed the relevant criteria and were clear and unequivocal. Further, in my view, once the nature of the relevant task (as prescribed in the relevant guidelines) is understood, it may be seen that the reasons given by the Review Panel were perfectly adequate. Ground 2 is not made out. 67For those reasons, the summons should be dismissed with costs.

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