Golijan v Motor Accidents Authority of New South Wales

Supreme Court of NSW|2012-08-10|Before: Beech-Jones J

Background 10The injuries said to have been suffered by Mr Golijan in his accident included injuries to his neck, left and right shoulders and back. At some point Mr Golijan commenced proceedings in the District Court of NSW. They were commenced after his claim had been assessed by a Claims Assessment and Resolution Service Assessor ("a CARS assessor") (see AAMI at [12]-[17]). While Mr Golijan's claim for compensation was before a CARS assessor, the assessor determined pursuant to s 62(1)(b) of the MAC Act to refer for medical assessment the injuries said by the plaintiff to have been suffered as a result of the accident, namely, injuries to his neck, left arm, left shoulder, back, right arm and psychological injury. 11On 4 April 2008, a MAS assessor, Dr Thomas Rosenthal, issued a certificate under s 61 in respect of his assessment of the injuries to Mr Golijan's neck, left arm, left shoulder, back and right arm. He certified that only the soft tissue injuries to his neck and back were caused by the motor accident and they did not give rise to a whole person impairment which was greater than 10%. 12On 14 April 2008 another assessor certified that Mr Golijan did not have a psychiatric disorder as a result of the motor accident. 13On 22 November 2010, an application was made under s 62(1)(a) of the MAC Act on behalf of Mr Golijan for a further medical assessment of the soft tissue injuries to his neck, right shoulder and left shoulder, as well as what was described as a "C5/6 and C6/7 disc bulge" to his cervical spine. Enclosed with his application were three reports from an orthopaedic surgeon, Dr David Duckworth, and an MRI scan. 14The MRI scan indicated, inter alia, that there was a disc protrusion at C5/6 and posterior bulging of the disc annulus at the C6/7 level. 15In view of the significance attached by the plaintiff to Dr Duckworth's reports, it is necessary to consider them in some detail. 16Dr Duckworth's first report was issued on or about 29 July 2008 (although wrongly dated 29 July 2007). He had examined Mr Golijan on 23 May 2008. 17The plaintiff emphasised the opening paragraph of Dr Duckworth's first report: "[The Plaintiff] presented to my rooms on one occasion dated the 23rd May 2008. He ... presented with an unusual problem affecting his neck and shoulder region. He was apparently involved in a motor vehicle accident on 4 December, 2003 ... Ever since this injury he has had ongoing neck problems, pain and discomfort affecting both shoulders and wasting around his shoulders, headaches and pain radiating down his arms ... He was extensively investigated by Professor Sheridan the Neurosurgeon who was [sic] diagnosed a neurological lesion but does not believe that surgery is necessary for his neck." 18This should be read with the next two paragraphs: "On examination 23rd May, 2008 his shoulder joints were quite smooth. He could elevate both shoulders to 170 degrees, externally rotate to 70 degrees and internally rotate to T8. He had some definite wasting of the muscles around his supraspinatus region. His trapezius was intact. He had reasonable strength within his supraspinatus and his infraspinatus was intact as was his subscapularis. He had no localizing pain around his shoulders. Apparently he had a nerve conduction study which showed denervation of the shoulder muscles but I did not have that study in front of me. He has had an ultrasound of his right shoulder which was normal. An MRI scan of his neck showed some disc pathology. X-rays of his shoulders were normal. My recommendations to Mr Golijan was that he presented with an extremely difficult problem affecting his neck and shoulder region. I could not elicit any actual rotator cuff pathology on that day apart from some wasting of his supraspinatus muscles bilaterally. Despite this he had a normal infraspinatus, subscapularis and reasonable strength around his shoulder. He had no other shoulder pathology. It appeared that Mr Golijan's problem was neurological in nature and I was wondering whether he should be seeing a Neurologist rather than a shoulder specialist. The other option due to his pain was that he attended a pain clinic. I did not believe that any further investigations were necessary for his shoulder and I did not believe that anything could be done by myself as a shoulder Surgeon to his shoulders. I have not seen him since this consultation and am unaware of his ongoing management." (emphasis added) 19Later in his report Dr Duckworth stated that "... in terms of his shoulders, [the plaintiff] has no permanent impairment due to the fact that he has a full range of motion of his shoulders". 20Dr Duckworth examined Mr Golijan again on 21 July 2010. Dr Duckworth was provided with the MRI scan which I have referred to above. Dr Duckworth provided two reports dated 23 July 2010. In one of those reports (the "second report") and under the heading "Examination", Dr Duckworth stated: "On examination today Mr Golijan continues to have limited use of his shoulders. Once again he had wasting of the supraspinatus region, the left supraspinatus being more significantly wasted than the right. He had a chronic pain picture around his shoulders and neck region. He had much more limited use of his arms today compared to the previous examination. He could elevate both arms to 100 [degrees]. External rotation was to 40 [degrees]. Extension was to 40 [degrees]. Abduction on external rotation was to 60 [degrees] bilaterally and abduction on internal rotation was to 50 [degrees] bilaterally. Abduction was to 70 [degrees] and adduction to 30 [degrees]." (emphasis added) 21The balance of Dr Duckworth's second report consisted of him addressing various questions that were posed by Mr Golijan's solicitors. They included the following questions and answers: "1. Please advise of the reasons you would consider Mr Tom Golijan's condition has deteriorated to the extent it relates to his cervical spine. As stated in previous reports, and again today, Mr Golijan has unusual neck pathology affecting his suprascapular nerve causing wasting of his supraspinati. Unfortunately this appears to be related to his neck. Why it is isolated to the supraspinati muscles I am unsure. This question is best addressed by a neurologist or neurosurgeon. 2. What changes do you find on the current radiology and are those changes consistent with a worsening/deterioration of the left and right shoulders of Mr Golijan's condition to the extent that it relates to the cervical spine? There is no real difference on the radiology of 2010 to that seen previously in 2007. It does not explain the deterioration of his condition. ... 8. Prognosis The prognosis for Mr Golijan is guarded. He has deteriorated since his last review. He has further limitation of movement of his shoulders. He has ongoing pain and wasting of his supraspinati. He has to remain under the care of the pain clinic and the neurologist. He will be unable to perform heavy manual work in the future." (emphasis added) 22In his other report dated 23 July 2010 (the "third report"), Dr Duckworth provided an assessment of Mr Golijan's level of impairment having regard to the Impairment Guidelines and AMA 4. He quantified the limitations on the range of motion of Mr Golijan's left and right shoulders and concluded that he had a whole upper limb impairment of 28%, which corresponded to a whole person impairment of 17%. 23Dr Duckworth's reports were the foundation for the contention being made on Mr Golijan's behalf that there had been a deterioration of the injury, at least so far as his shoulders were concerned, since the previous assessment undertaken by Dr Rosenthal in April 2008. 24Three matters should be noted about Dr Duckworth's reports. First, in both his first and second reports Dr Duckworth described Mr Golijan as having wasting of the supraspinatus region. While it is not clear it appears that there was more at the time of his second report in that, in contrast to the first report, he described the supraspinatus as being more significantly wasted on the left side than the right. 25Second, in his written submissions the plaintiff contends that Dr Duckworth's report supported the contention that (a) he suffered neck injuries in the motor vehicle accident; (b) causing neurological lesions; and (c) in turn causing injury to the shoulders, as evidenced by wasting of the musculature. I do not agree. Dr Duckworth was unclear as to exactly what was causing the wasting of the supraspinati, although he accepted that "it appears to be related to [Mr Golijan's] neck". He could not explain why soft tissue injuries to Mr Golijan's neck would have a consequential effect on the supraspinati muscles only. Dr Duckworth did not relate it to the neurological lesion. 26Third, Dr Duckworth did not state that there was any connection between the deterioration in Mr Golijan's left and right shoulders between the two examinations and the condition of his cervical spine ("it did not explain the deterioration of his condition"). 27Finally, Dr Duckworth states in his report that: "My opinion with regard to Mr Golijan remains the same as previously. He has an unusual neurological condition affecting his upper limbs." 28On 8 December 2010 QBE provided material in response to the application. It included a report from an orthopaedic surgeon, Dr F.J. Harvey, dated 20 May 2009 concerning his examination of the plaintiff. Dr Harvey noted that the plaintiff complained of "tenderness in the muscles down the side of the neck and over the top of both shoulder blades", that there was "no muscle wasting in either upper extremity" and that the plaintiff was "reluctant to move his shoulders through full range complaining of widespread pain". Dr Harvey was of the opinion that the plaintiff's "continuing symptoms are largely unrelated to physical injury" and that those symptoms did not "have a significant physical basis". Dr Harvey concluded: "I note that the imaging has showed degenerative changes in the cervical spine. Such degenerative changes would be a common finding in a person of this age and have no significance in the absence of appropriate clinical correlation. Mr Golijan does complain of pain in the shoulders and it is difficult to demonstrate a full range of movement. However, I do not consider that he has suffered any significant injury to the shoulders and the apparent limitation of movement in the shoulders is related to his abnormal pain responses. I note that Dr Duckworth, a shoulder specialist reporting on the 29/07/07, expressed the opinion that he should be seeing a 'neurologist rather than a shoulder specialist'. Clearly, he did not believe that his pain was related to shoulder pathology." 29On 7 February 2011 QBE provided further material including another report from Dr Harvey dated 19 January 2011. Dr Harvey noted that "[t]he muscles development around the shoulder girdles was poorly developed and there did appear to be some wasting of the spinati on both sides". For present purposes, it is only necessary to note his comments concerning the wasting of Mr Golijan's supraspinatus muscles as follows: "There has been no significant change in this patient's condition since I last saw him [in May 2009] and my opinions remain completely unaltered. I note that some comment has been made on the apparent wasting of the spinati muscles on each side. Mr Golijan is on continuing doses of Norspan and he has lost weight since I last saw him. He now has a [body mass index] of 19 and would have to be regarded as malnourished. He reports that he is 'very tired' and spends 12 to 15 hours a day in bed. I think that under these circumstances, it would be anticipated that there could be some wasting of the muscles about the shoulder girdle from lack of use. I think that it is unlikely that it is due to any specific neural compression. The recent MRI scan showed no evidence of neural compression in the neck and it would be extraordinary if he developed some type of peripheral nerve lesion compression on each side to account of this wasting... I note that Dr Griffith who saw him in September 2009 did carry out investigations to elucidate the nature of the wasting. He came to the conclusion that 'There was no evidence of a primary neurological disturbance'." (emphasis added) 30Thus Dr Harvey appears to accept that there was some wasting of Mr Golijan's spinati muscles. He opines, however, that it was due to their lack of use and malnourishment. 31On 21 March 2011, the proper officer determined pursuant to s 62(1)(a) of the MAC Act that Mr Golijan's neck, arms, shoulder and back injuries would be referred for further assessment. The proper officer considered that the additional information provided, namely, the material from Dr Duckworth, was such as to be "capable of having a material effect on the outcome of the previous assessment" of Mr Golijan's injuries for the purposes of s 62(1A) of the MAC Act. 32A further assessment was undertaken by Dr Rosenthal. Dr Rosenthal did not alter his previous assessment. Section 4 of Dr Rosenthal's report is headed "Findings on Clinical Examination". Dr Rosenthal noted that there was "generalised muscle wasting around his upper shoulder girdles and upper arms and also forearms". In section 5 of his report, Dr Rosenthal reviewed the documentation that had been provided to him. In particular, he noted the reports of Dr Duckworth. Section 6 was headed "Conclusions". Dr Rosenthal noted that the injuries to the back and neck were confirmed by contemporaneous medical documents around the time of the accident. However, with the injuries to both arms and shoulders he noted that there was "no contemporaneous medical evidence that these body parts were injured in the motor vehicle accident" and twice noted that Dr Duckworth was in effect describing the symptoms complained of by Mr Golijan in his shoulders as being "referred from the neck". 33Dr Rosenthal cited a newsletter issued by the MAA which appeared to convey that his assessment should be limited to the direct injuries caused contemporaneously at the time of the accident. Accordingly, he concluded that the left and right arm strain and left and right shoulder strain were not caused by the accident. He proceeded to give a whole person impairment rating of 0% in respect of the neck and back injuries. 34This approach to the assessment of injuries consequent upon the accident was unduly narrow. On 3 May 2011, Hall J published his judgment in Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351; 58 MVR 296. His Honour set aside, inter alia, a certificate issued under Pt 3.4 of the MAC Act because the assessor had adopted an unduly narrow approach to determining the degree of permanent impairment of the injured person "as a result of the injury caused by the motor accident", as referred to s 58(1)(d), s 131 and s 133(1) of the MAC Act (at [96] to [101]). His Honour found that any such assessment was not limited to the part of the body that was immediately injured in the accident, but could extend to "other parts constitutionally associated or linked to" such parts (at [99]). 35On 9 June 2011, Mr Golijan applied under s 63(1) of the MAC Act to the proper officer to have his medical assessment referred to a review panel. It was contended that Dr Rosenthal's exclusion of the approach adopted by Dr Duckworth involved a repetition of the error identified by Hall J in Nguyen. It was contended that Dr Rosenthal had excluded the possibility that referred pain from Mr Golijan's neck to his shoulders was capable of satisfying a statutory test because it was not an injury that occurred immediately at the time of the accident. 36On 15 July 2011, QBE responded to the application under s 63(1) made on behalf of Mr Golijan. QBE conceded that, following the decision in Nguyen, Dr Rosenthal's second report required review. However, they added that that did not necessarily mean that Mr Golijan's complaint of shoulder pain and restriction would result in an assessment of impairment. They submitted that, as there was no recorded complaint of neck pain for ten months after the accident, then it was "open to find that [Mr Golijan's] ongoing complaints are unrelated to the motor accident". They enclosed further copies of Dr Harvey's reports. 37On 9 September 2011, the proper officer determined to refer Mr Golijan to a further assessment before a medical review panel. The letter from the MAA to the parties advising of the referral to the panel stated, inter alia: "The parties are advised that the Review Panel must consider afresh all aspects of the assessment under review and may confirm or revoke any or all of the certificates issued by the Assessor whose assessment is under review. In this matter Assessor Thomas Rosenthal issued the following certificate/s:  the degree of permanent impairment of the injured person as a result of each of the injuries referred that were found to be caused by the motor accident.  whether the degree of permanent impairment of the injured person as a result of the injuries caused by the motor accident, is greater than 10%. It is possible that the review might result in findings more adverse to the review applicant than the findings of the original assessment. Should the applicant wish to withdraw the application, they should advise the Proper Officer immediately. The Review Panel will be provided with a review application, reply, supporting information and any other applications, replies or MAS certificates in relation to the claimant. Note that in accordance with clause 16.12.2 of the Guidelines, copies of these documents have been provided to both parties. Further details will be provided when the Review Panel has been convened." (Emphasis in original) 38There is no evidence that any further details were provided when the review panel was convened. The parties did not provided any further material or submissions to the review panel.

The Review Panel's Decision 39On 5 May 2011 a review panel consisting of three assessors issued a certificate with accompanying reasons. They found that the only injury caused by the accident was "neck/soft tissue injury" and that the whole person impairment arising from that was not greater than 10%. 40The review panel's reasons recite that they had been provided with all the documents supporting the application for review, as well as "all the documents which were provided to Assessor Rosenthal prior to the assessment under review". The reasons record that the "Panel considered all of the available evidence and decided that a re-examination of [Mr Golijan] was necessary in order to reach a decision, because of the issues raised by the parties and to allow a de novo examination of all injuries". 41It seems that an examination by two of the assessors of Mr Golijan occurred on 4 November 2011. The review panel's reasons record the result of that clinical examination, including the following observation: "There was wasting of all the shoulder girdle muscles consistent with his asthenic build. The panel considered that these findings were a reflection of Mr Golijan's body habitus rather than representing any pathology." 42Under the heading "Panel Deliberations" they stated as follows: "Neck After reviewing the various documents on file the Panel found that there was sufficient contemporaneous evidence to confirm that the claimant did sustain a neck injury as a result of the subject motor accident. Left Arm There was no indication of any specific injury to the left arm. Examination revealed n o abnormality. The Panel was in agreement with Assessor Rosenthal's finding that there was no injury to the left arm resulting from the subject motor accident. Left shoulder The Panel reviewed all the documents available on file. It was noted that the first mention of any problems involving the left shoulder was by Dr Yenson, Mr Golijan's treating family doctor. This was in October 2004 and stated that Mr Golijan had complained of pain for the past two months. This would make the onset of pain in the left shoulder some eight months following the subject motor accident. Consequently, the Panel considered that there was no contemporaneous evidence of any left shoulder injury related to the subject motor accident. There was mention in other reports on file of wasting of both supraspinatus muscles. The Panel could not suggest any pathological basis for such a finding which would be associated with a low impact injury. Following re-examination, the Panel accepted that this bilateral finding of loss of muscle bulk around the shoulder girdle region was most likely related to the claimant's body habitus. In addition to finding that there was no causal connection between the subject motor accident and any isolated injury to the left shoulder, the Panel also was of the opinion that assessment of the neck had not identified any evidence that such soft tissue injury of the neck would have any direct, or indeed indirect, effect on any related areas including the left shoulder. Back The Panel found no mention in any of the reports on file relating to back problems until a note from Dr Yenson in October 2005 stating that the claimant complained of low back pain over the previous six months. This would mean that the onset of low back pain was some 18 months after the subject motor accident. The Panel concluded that there was insufficient contemporaneous evidence of any injury to the low back resulting from the subject motor accident. Right arm The Panel concurred with Assessor Rosenthal's conclusion that there was no evidence of any separate injury to the claimant's right arm as a result of the subject motor accident. Right shoulder The Panel reviewed documents on file and found that there was no mention of any pain involving the right shoulder until October 2006. Again, this was first mentioned by Dr Yenson. This is nearly three years after the subject motor accident. The Panel therefore concluded that there was no contemporaneous evidence of any causal relationship between any injury to the right shoulder and the subject motor accident. The Panel again found that assessment of the neck had not produced any evidence that such neck injury would have any direct or indirect effect on related areas including the right shoulder. 43Accordingly the panel concluded that the only injury caused by the motor accident was soft tissue injury to the neck. They assessed the level of whole person impairment resulting from that injury as 0%.

Failure to consider the radiological studies 44A number of grounds of judicial review were pleaded in the amended summons. They did not all directly relate to the grounds developed in the plaintiff's written and oral submissions. 45The first contention developed by the plaintiff contended that: "The Review Panel's failure to make any reference to the radiological findings, which showed pathology in the Plaintiff's cervical spine, was a failure to consider relevant material, particularly in light of the thesis advanced by Dr Duckworth that the cause of the wasting of the Plaintiff's shoulders was due to neurological injuries to the cervical spine." 46The nature and extent of any obligation of CARS assessors to consider the evidentiary material placed before them was considered by the Court of Appeal in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [19] to [22], per Basten JA (McColl and Macfarlan JJA agreeing): "[19] Although this ground must be dismissed for the reasons given above, it is desirable to return to the first step in the reasoning, namely identifying the legal obligation to take particular evidence into account. No case was referred to which supported a proposition expressed in these terms. In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, at [24], Gummow and Callinan JJ stated: To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. [20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [81] where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued: However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of 'refugee'. [21] Two propositions may be drawn from these statements. First, although not articulated in these terms, a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms. Thus, in the present case, s 94 of the Compensation Act requires that a claims assessor 'is, in respect of a claim referred to the assessor for assessment, to make an assessment of ... the amount of damages': s 94(1)(b). It is, therefore, mandatory that the assessor address the claim and carry out the statutory function. [22] The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [35]." 47In the case of a review panel one potential source of an obligation to "consider" material is the various Guidelines and AMA 4. In this case the plaintiff referred to the extract from AMA 4. I have already rejected the proposition that it imposes an obligation to refer to this material in any report produced. However, it may be that cl 1.20 of AMA 4 might form a basis for importing a requirement on an assessor and a review panel to "consider" the material listed, although that would depend upon, inter alia, the nature of the condition being assessed and potentially what the substantive part of the Impairment Guidelines and AMA 4 provided for in respect of that form of condition when assessing whole person impairment. 48In this case the review panel stated that it had "considered all of the evidence". A statement to that effect does not preclude a contention such as that made by the plaintiff being accepted. However the principal difficulty with the plaintiff's contention is that it misstates Dr Duckworth's reports. He did not advance a "thesis ... that the cause of the wasting of the Plaintiff's shoulders was due to neurological injuries to the cervical spine". I address below the effect of Dr Duckworth's reports but, at its highest, he only speculated that there was some connection between his neck injury and shoulder wasting which might be "neurological in nature" (see [18] above). Of present relevance, Dr Duckworth stated that the radiological reports for 2007 and 2010 did not explain the deterioration of his condition (see [21] above). No other medical practitioner, including a neurologist, attributed any significance to the radiological reports. 49Given the marginal relevance of the radiological reports, no relevant form of error can be inferred from the absence of any specific reference to them in the review panel's report. 50The fifth defendant characterised the plaintiff's submission as contending that the content of the radiological studies per se warranted a different outcome to the determinations made by the review panel concerning the plaintiff's upper extremities. I did not apprehend the plaintiff to have put an argument in those terms. For the sake of completeness, I do not accept it. It appears to involve a merits review. Moreover it is an approach that does not find support in Dr Duckworth's reports.

Failure to provide adequate reasons 51The second matter developed by the plaintiff was a complaint that the review panel failed to provide adequate reasons for "(a) not accepting the opinion of Dr Duckworth that the injuries to the Plaintiff's upper extremities were related to his accident and (b) finding that the wasting in the Plaintiff's shoulders was due to his physical stature". 52The plaintiff referred to the obligation imposed on the review panel by s 61(9) of the MAC Act (above at [4]) and the following passage from Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [121] per Basten JA (McColl JA agreeing): "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." 53This statement was made in the context of a challenge to a decision of an appeal panel established under the Workplace Injury Management and Workers Compensation Act 1998 which was not under any express statutory obligation to provide reasons of the kind expressed in s 61(9) of the MAC Act. In Vegan the panel was found to have failed to comply with an obligation to give adequate reasons that was implied from the legislative regime (Vegan at [26] per Handley JA and [117] per Basten JA, McColl JA agreeing). This was found to be an error of law on the face of the record (Vegan at [130]). Both parties proceeded on the premise that the statements in Vegan were equally applicable to this matter, notwithstanding the different statutory contexts. 54The complaint that there was no explanation by the review panel for its rejection of the "competing opinion" of Dr Duckworth as to the cause of the plaintiff's upper extremity complaints cannot be sustained for two reasons. First, the contention suffers from a similar difficulty to the ground I have rejected above at [44] to [49]. It is an overstatement to refer to Dr Duckworth as having a "competing opinion". Dr Duckworth did not provide any firm opinion as to the cause of the difficulties with the plaintiff's upper extremities. Instead he noted the wasting of the supraspinatus muscles which he stated "appeared" to be "neurological in nature" but considered that to be outside his area of expertise and noted that he was "wondering whether he should be seeing a Neurologist rather than a shoulder specialist" (see [18] above). Basten JA's description in Vegan of the obligation to give reasons does not go as far as to require a detailed response to conjecture of the kind that Dr Duckworth engaged in. 55Second, the response of the review panel to this aspect of Dr Duckworth's report was to reject the premise of Dr Duckworth's concerns, namely that there was muscle wasting which was somehow connected to or a sequelae of the accident. Instead the review panel found: "There was wasting of all of the shoulder girdle muscles consistent with his asthenic build. The panel considered that these findings were a reflection of Mr Golijan's body habitus rather than representing any pathology." 56There was considerable debate before me as to exactly what the review panel was stating in this passage. "Asthenic" is derived from "asthenia" meaning an absence or loss of muscular strength. "Habitus" is a Latin phrase referring to "state" or "condition". "Pathology" means the area of science which deals with the causes of and changes produced in the body by disease. Read literally, the review panel opined that the plaintiff's physical presentation of wasted muscles in his upper extremities was an aspect of his weak physical stature and causally unrelated to any disease (or injury). 57There remains the other aspect of the plaintiff's complaint under this ground, namely that the panel failed to explain why the view as to the cause of wasting revealed by the passage extracted in [55] above was preferred to that of Dr Duckworth, and that there was a failure to refer to the evidence on which it was based. The short answer to the latter part of that contention is that the review panel's report makes it clear that its finding was based upon the physical examination of the plaintiff conducted by two of the three assessors who constituted the review panel. 58The former part of that contention overstates Dr Duckworth's opinion. As I have said, at its highest, Dr Duckworth's opinion was only that there was an "unusual neck pathology" causing "wasting of the supraspinati" muscles, but he could not explain how or why and considered that was a matter for neurologist and not a shoulder surgeon (see [18] above). The effect of the review panel's own examination was to disagree with the observation that there was some connection between the neck and the shoulder wasting which was the premise of Dr Duckworth's conjecture. Given the tentative nature of Dr Duckworth's assessment that was all that was necessary in this case.

Failure to afford natural justice 59During oral argument, counsel for the plaintiff submitted that the reasoning process of the review panel for rejecting the claim that the injuries to the plaintiff's upper extremities were causally related to his motor vehicle accident involved a breach of natural justice. He submitted that the parties had put forward to the review panel two competing opinions from Dr Duckworth and Dr Harvey but the review panel had, without notice, provided a third opinion. 60It follows at least in part from the observations that I have made above, that I would not accept this characterisation of what occurred. However, in deference to the careful submissions that were put by counsel for the plaintiff, it is necessary to consider the argument in some detail. 61The initial difficulty with the submission was that it was not pleaded. However, application was made to amend and I granted the plaintiff leave to file a Further Amended Summons raising this complaint. I made directions providing for a regime for supplementary written submissions. After the hearing, I requested that the parties address in their submissions the terms of the letter of 9 September 2001 (see [37] above), and the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152. 62In SZBEL an Iranian national had sought review by the Refugee Review Tribunal ("RRT") of a decision of a delegate of the Minister for Immigration denying him a protection visa on the basis that he did not satisfy the definition of refugee in the Convention Relating to the Status of Refugees. In support of his original application for a protection visa, the applicant had provided a statutory declaration which described his experiences as a sailor on a merchant ship with an Iranian crew and captain. He contended that these experiences meant that there was a likelihood that the Iranian authorities would impute to him religious beliefs or a political opinion involving adherence to Christianity. He described three events which were of particular importance to that contention (SZBEL at [9]-[12]). The Minister's delegate had refused the application on the basis that he was not satisfied that the applicant had "a genuine commitment to Christianity". The delegate had concluded, in relation to the third incident described by the applicant which involved his leaving the ship to seek medical treatment in Australia, that his conduct in returning to his ship was inconsistent with his claimed fear of persecution. The delegate had not addressed the first two incidents. 63On review, the RRT refused his application. Without notice to him the RRT had rejected his evidence as to the first two incidents which had not been addressed by the delegate. In the joint judgment of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, the High Court found that the failure of the RRT to give the applicant a sufficient opportunity to give evidence and make submissions about those two incidents occasioned a breach of procedural fairness (SZBEL at [44]). 64Critical to the outcome in SZBEL was the statutory context in which the RRT made its decision. In conducting its review the RRT was not confined to only considering the issues that had been addressed by the delegate (SZBEL at [35]). However s 425(1) of the Migration Act 1958 (Cth) conferred on the applicant for review an entitlement to be invited to "give evidence and present arguments relating to the issues arising in relation to the decision under review" (SZBEL at [33]). The phrase "issues arising" was construed as meaning more than the satisfaction of the statutory criteria for a protection visa, but instead at least commenced with the reasons given in the delegate's decision at first instance (SZBEL at [35]). The High Court found that, if the RRT had wished to go beyond those issues, it had to put the appellant on notice (SZBEL at [34]-[35]), although it may be that its statements or questions during a hearing "sufficiently indicate to an applicant that everything he or she says in support of the application is in issue" (SZBEL at [47]). 65The decision in SZBEL addresses the obligation of procedural fairness imposed upon a body exercising a review function in a statutory scheme, in that case the RRT. Superficially at least one can see similarities between such a body and a review panel exercising functions under s 63 of the MAC Act. However, the statutory context and the nature of the decisions being made are critical. One similarity between the RRT and a review panel is that both involve a full, de novo review (see s 63(3A) confirming the position of Allsop P and Giles JA in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609). While the MAC Act does not contain any equivalent to s 425(1) of the Migration Act, the plaintiff pointed to two parts of the Medical Assessment Guidelines as performing a similar function, namely: "Assessor's role 11.1 In conducting an assessment an Assessor, including a member of any Review Panel, may determine the Assessor's own procedure and is not bound by the rules of evidence and may enquire into any issue in such manner as they think fit. 11.2 The Assessor is to take such measures as are reasonably practicable to: 11.2.1 ... ensure that the claimant understands the nature of the application and the issues to be considered, the role of the assessor as an independent decision maker, and the conclusive nature of any certificate that is to be issued; and 11.2.2 explain to the claimant any aspect of the procedure of any medical examination that the claimant does not apparently understand. 11.3 The Assessor is to inform him or herself on any issue as they see fit. ... Review Panel Assessment 16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; ... 16.22 In the case of clause 16.21.2 where there is to be a re-examination, clause 9.11.4 and clause 9.11.5 and Chapters 10, 11, 12 and 18 apply to the re-examination. ..." (Emphasis added) 66The plaintiff emphasised that part of cl 11.2.1 which imposed a requirement upon an assessor, including one who was a member of a review panel, to "take such measures as are reasonably practicable to ... ensure that the claimant understands ... the issues to be considered". To the extent necessary, he also relied on clauses 16.21.2 and 16.22 as imposing the same obligation where a medical examination was conducted by one or more members of a review panel. 67Nevertheless, the analogy between review panels and the RRT is necessarily an incomplete one by reason of the different nature of the subject matter upon which they are addressing. In determining claims for protection visas members of the RRT will rarely, if ever, have first hand knowledge of the factual assertions put forward by an applicant other than perhaps some aspects of the prevailing circumstances in that person's country of origin. However medical assessors, including members of review panels, are sometimes placed in a different position by reason of knowledge they acquire from their own examination of a claimant. 68This is illustrated by the judgment of Johnson J in Vitaz v Westform (NSW) Pty Ltd [2010] NSWSC 667. In Vitaz, the plaintiff submitted that an assessor under the workers compensation legislation was required to afford procedural fairness by giving him notice of "informal observations" made by the assessor of his physical condition during an examination; i.e. his observing of the plaintiff entering and leaving the room etc. Johnson J rejected that contention: "[90] In my view, the above wording emphasises the fact that an assessment of permanent impairment under Ch 7 Pt 7 [Workplace Injury Management and Workers Compensation Act 1998] is to be conducted by a qualified and independent medical specialist within a clinical setting, and whose professional and clinical judgment is presumed to be correct. It is not a quasi-judicial inquiry where a claimant has the right to advocate their interests. It is a medical examination first and foremost. It is an examination conducted in the context of various and often extensive documentation in support of the applicant's claim having already been made available to the approved medical specialist. In practical terms it would seem that, at least on its face, having to ask for and take into account a person's subjective response to informal observations made by a medical practitioner could undermine the clinical utility of those observations and the intended independence of the assessment process. The final requirement of para 1.32 of the WorkCover Guides reinforces this view. [91] I reject the Plaintiff's submission that informal observations made by an approved medical specialist rise above the status of a mental process or provisional view, or that they are in some way material from another source such that they must be put to a person during an examination: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (at [80], [82] above). Again, it is a medical examination, not a hearing. [92] I am not persuaded that procedural fairness required Dr Giblin to disclose to the Plaintiff, his observations made during the informal examination. ..." 69Vitaz does not stand for the general proposition that members of review panels do not have to disclose any opinions they form or information they obtain during a medical examination. SZBEL illustrates that the principles discussed in Alphaone (cited by Johnson J in Vitaz) yield to cases where the circumstances reveal that a new "issue" arose before the review body of which the applicant was not given adequate notice. Thus, it cannot be definitively stated that procedural fairness would never require the disclosure of the views or observations of a medical examiner or members of a review panel which derived from a medical examination. In the end result, everything will depend upon the context and, in particular, what the parties could reasonably have anticipated would be "in issue" and determined by the appeal panel in its deliberations, bearing in mind the parties' knowledge of the panel's expertise and their ability to conduct examinations themselves. As Allsop P stated in McKee at [8]: "No doubt, if [the appeal panel's] consideration of the matters referred for assessment went beyond the evident dispute thrown up by the claimant and the insurer, procedural fairness would require any and all necessary steps to ensure a fair hearing." 70The plaintiff submitted that a breach of procedural fairness is demonstrated in circumstance where the parties put forward to a review panel competing medical opinions but the panel, based on its own medical examination of the plaintiff or otherwise, has without notice to the applicant, provided a third opinion. Such a proposition may well be correct, but I do not accept it as the proper characterisation of what occurred in this case for two reasons. 71First, for the reasons I have stated, I do not accept that the review panel was confronted with competing medical opinions between Dr Duckworth and Dr Harvey. Both doctors had observed that the plaintiff had musculature wasting in his upper extremities. Dr Duckworth had speculated as to whether there was a neurological connection to his neck injury, but stated no more. He is not a neurologist and no neurologist filled in this gap. Dr Harvey discounted any connection and considered it most likely arose from malnourishment and lack of use. 72Second, I do not consider that the review panel's assessment was in substance any different to that of Dr Harvey. The plaintiff contended that Dr Harvey's opinion "observed wasting [that] was caused by pathological processes, albeit causes which Dr Harvey did not relate to the accident" namely malnourishment and lack of use whereas the review panel found that the wasting did not "represent ... any pathology". I disagree. Both found the plaintiff's apparent muscle wasting was an aspect of his weak physique that was unrelated to any underlying disease or injury, including any which was relevantly caused by the plaintiff's motor vehicle accident. Dr Harvey attributed the wasting to lack of use and malnourishment but that is not to ascribe a "pathology" to its wasting in the sense that phrase was used by the review panel, namely, by attributing some underlying cause connected to injury or disease much less one related to the plaintiff's car accident. Thus, in the end result the review panel did not travel "beyond the evident dispute thrown up by the claimant and the insurer" (cf McKee at [8] per Allsop P). 73One aspect of the plaintiff's complaint was that, if he had been given notice of the review panel's assessment of his wasting being consistent with his body habitus, he would have adduced evidence as to the absence of any wasting prior to or immediately after the accident. The fact that a party can point to something they might have submitted had the reasoning of the decision maker been disclosed to them in advance does not demonstrate a lack of procedural fairness (although it may assist in demonstrating that a departure from a promised course of action was unfair: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [36] per Gleeson CJ). The obligation to disclose has to first be identified. In any event, the fact that there was no significant wasting prior to or in the immediate aftermath of the accident is not inconsistent with the review panel's findings. In my view, their findings are consistent with the opinion of Dr Harvey. His opinion accommodates ongoing wasting that is not causally related to the accident. 74I reject this ground.

The plaintiff's back 75The final ground of review developed by the plaintiff in his submissions addressed the review panel's reasoning concerning his back injury, extracted in [42] above. The plaintiff points to that part of the review panel's finding in which they record that there is "no mention in any of the reports on file relating to back problems until a note from Dr Yenson in October 2005 stating that [the plaintiff] complained of low back pain over the previous six months". The plaintiff contends that this was erroneous because the material before the panel included a report from Dr Yenson dated 13 November 2006 which stated the following: "Mr Golijan consulted me on 5/12/03 with a history of a motor vehicle accident on the 4/12/03. His car was stationery when it was hit from behind at a round-about. When seen at the time he complained of neck and back pain and had some tenderness at the back of his neck. ... When seen on the 4/10/05 he complained of low back pain for the past 6 months with tingling sensation in the legs. There was asymmetry of his upper back with the right shoulder blade at a lower level." (Emphasis added) 76The plaintiff complains that the panel overlooked the first extract of this report concerning the consultation on the day immediately following the car accident. He submits that was a failure to consider or properly consider relevant evidence and that the conclusion that there was no contemporaneous evidence of a back problem is "an error on the face of the record". 77The fifth defendant referred to the finding of the panel in this section of its reasons that there was "insufficient contemporaneous evidence of any injury to the low back resulting from the subject motor accident". She submits that the panel considered the whole of the material before it and concluded that the material before it was not sufficiently persuasive as to the existence of an injury to the low back. 78This part of the panel's reasons refers to the "reports on file" and a "note from Dr Yenson". There is only one report from Dr Yenson, which is extracted in [75] above. However there are copies of the treating general practitioner's notes for the period 7 December 1982 to 3 October 2007 which were supplied by QBE in December 2010 as an attachment to the reply to the plaintiff's application for a further assessment. Those notes reveal that the plaintiff attended on his general practitioner on the day after his accident, 5 December 2003, and then at regular intervals thereafter. 79The entry for 5 December 2003 contains the following "neck [indecipherable, but appears to be "slight"] tenderness at back, good movements", and an entry for 4 October 2005 contains an entry "low back pain 6/12". It is clear that the note the panel is referring to is the entry for 4 October 2005, which is indicative of low back pain for the last six months. The entry for 5 December 2003 might have been considered ambiguous, although it is clarified by Dr Yenson's report. 80The treating notes reveal that between December 2003 and 4 October 2005, there were a number of consultations between the plaintiff and his treating doctors. There is no other entry in those notes recording any complaint of back pain. At its highest, Dr Yenson's report is consistent with an initial complaint of back pain and then no further emergence of low back pain until the time stated by the panel, being eighteen months after the subject motor vehicle accident. 81I suspect that the reference to "back problems" in the first sentence of this part of the panel's reasons extracted in [42] is in substance meant to refer to some form of continuous complaint of low back pain. It is immediately followed by three references to "low back pain" and the panel expressed itself as being ultimately not satisfied that any "injury to the low back" resulted from the motor accident. On this approach the statement by Dr Yenson as to the complaint of back pain on 5 December 2003 does not undermine the panel's reasons, because it did not identify a complaint of low back pain and there was no further reference to any form of back pain for another eighteen months. 82Nevertheless I will proceed on the basis that the plaintiff has persuaded me that the panel misread the first part of Dr Yenson's report dated 13 November 2006. On this basis, all the plaintiff has established is a factual error in the review panel's reasons. Although the plaintiff's submissions assert that this would have resulted in a failure to "properly consider relevant evidence", no attempt was made to demonstrate what the source of that obligation was or how that would manifest itself into a jurisdictional error (see above at [46]). The plaintiff also asserted that it amounted to an "error on the face of the record". However, it is not apparent on the face of the record because it can only be discerned by considering the evidentiary material before the review panel. Further, the plaintiff's formulation omits the critical words "of law" between "error" and "on the face of the record". At most this appears to be an error of fact which, albeit regrettable, is a matter that was within the jurisdiction of the panel to make. 83I reject this ground.

Conclusion 84As I have rejected all of the grounds of review that were developed in argument by the plaintiff it follows that his Further Amended Summons must be dismissed. It is not necessary to address the further submission made on behalf of the fifth defendant that, even if a ground of review was made out, relief should be refused as a matter of discretion. 85I will order the plaintiff to pay the fifth defendant's costs of the proceedings. If, for some reason, either party wishes to apply to vary this order, then they should do so within the time stipulated in Uniform Civil Procedure Rules 2005 r 36.16(3B). They should provide a copy of any notice of motion that is filed to my associate. 86Accordingly, the Court orders: (1)The Further Amended Summons be dismissed. (2)The Plaintiff pay the Fifth Defendant's costs of the proceedings.

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: 19 September 2012

The MAC Act 2I described aspects of the operation of the MAC Act in AAMI v Ali [2012] NSWSC 969 at [3]-[17]. A more complete description of the operation of the MAC Act is to be found in Rodger v De Gelder [2011] NSWCA 97 at [7]-[15]. It is only necessary for me to note two matters. 3First, s 63 of the MAC Act addresses the role of review panels. It provides: "Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (2A) If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. (5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review. (6) Section 61 applies to any new certificate or new combined certificate issued under this section. (7) The MAA Medical Guidelines may limit the time within which an application under this section may be made." 4Second, s 63(6) provides that s 61 "applies" to any "new certificate" issued by the review panel under that section. One of the aspects of s 61 that is rendered applicable is s 61(9), which specifies an obligation to provide reasons as follows: "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."

The Guidelines 5One aspect of the plaintiff's case concerns the extent of the obligation, if any, imposed on the review panel by cl 2.4 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Ed (1995) ("AMA 4"). 6Their relevance derives from s 44 of the MAC Act. Section 44 empowers the MAA to issue guidelines, known as MAA Medical Guidelines, with respect to, inter alia, the "assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident" (s 44(1)(c)). Although the MAC Act uses the phrase "Guidelines", documents issued by the MAA under this section have been described as delegated legislation (see Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881; 75 NSWLR 482 at [83] per Johnson J). 7On 1 October 2007 guidelines under this provision were issued, the Guidelines for the Assessment of Permanent Impairment of a Person Injured as a Result of a Motor Vehicle Accident (the "Impairment Guidelines"). The explanatory note to the Impairment Guidelines states that AMA 4 was the "basis" for their preparation but they involve significant changes. However cl 1.2 states, inter alia: "These [Impairment Guidelines] are definitive with regard to the matters they address. Where they are silent on an issue, the AMA 4 Guides should be followed. In particular, Chapters 1 and 2 of the AMA 4 Guides should be read carefully in conjunction with this Chapter of the MAA Guidelines." 8Chapter 2 of AMA 4 is entitled "Records and Reports". This is a topic on which the Impairment Guidelines are generally "silent". The relevant section relied on by the plaintiff is Part 2.4 which provides, inter alia, as follows: "Preparing Reports A clear, accurate, and complete report is essential to support a rating of permanent impairment. The following kinds of information are expected. Medical Evaluation (1) Medical evaluation includes a narrative history of the medical condition(s) with specific reference to onset and course of the condition, symptoms, findings on previous examination(s), treatments, and responses to treatment, including adverse effects. Information that may be relevant to onset, such as an occupational exposure, should be included. (2) It also includes results of the most recent clinical evaluation, including any of the following:  physical examination  laboratory tests  electrocardiograms  radiographic studies  rehabilitation evaluation  mental status examination, including testing of intellectual functioning and evaluation of character traits  other tests or diagnostic procedures (3) Current clinical status is assessed, and a statement of plans for future treatment, rehabilitation, and re-evaluation is included. (4) Diagnoses and clinical impressions are reported. (5) The expected date of full or partial recovery is estimated." (emphasis added) 9I will address the precise argument concerning this part of AMA 4 below. However at this point I make one observation. Through the path that I have just described AMA 4 has some force of law in its application to assessors and review panels. However a statement that some "kinds of information are expected" in assessment reports found within a document that carries the description "Guidelines" falls a long way short of imposing an obligation to address each and every aspect of the listed information in their reasons. A fortiori it does not impose an obligation on an assessor or review panel which, if not complied with, has the necessary consequence that their determination is invalid (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355).

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