Gonzalez v Allianz Australia Insurance Ltd

The Medical Assessment

1. As part of a challenge to the medical assessment and the certificate that followed involves a contention that the Assessor's reasons are inadequate, it is necessary to describe them in some detail.
2. The Assessor's certificate and reasons are 21 pages in length.
3. In her reasons, the Assessor recited the background to the application and set out in detail the history given by Ms Gonzalez concerning the circumstances of the accident as well as her pre and post-accident functioning. This recitation included reference to the fact that Ms Gonzalez had had spinal surgery a year prior to the accident from which she had substantially, but not fully, recovered.
4. Further, over two pages, the Assessor set out her findings on clinical examination and then reviewed the documentation that she had been provided with. The Assessor's conclusions section occupies four pages.
5. Under the heading "Conclusions" the Assessor stated: "PSYCHIATRIC DIAGNOSES: Post Traumatic Stress Disorder (PTSD), Chronic Major Depression (Chronic). OPINION The diagnosis of Post Traumatic Stress Disorder is made according to DSM-5 criteria. Ms Gonzalez described being involved in an incident where she was surrounded by young man [sic] and in which she thought she or her son's life was in danger. The history reveals symptoms of intrusive thoughts and nightmares of the event and flash backs of the aggressor's face. There was a history of marked avoidance of reminders of the event. For instance, the claimant avoided groups of men of Asian appearance to the present day and the account has led to extreme distress. Ms Gonzalez described persistent fear and cognitive distortion about the relative risks posed by leaving her house. She described features of hyper arousal such as vigilance."
6. The Assessor noted that those diagnoses were consistent with those of other psychiatrists who examined Ms Gonzalez, including the authors of the previous two certificates and her treating psychiatrist Dr Sringeri.
7. Next, the Assessor addressed the first question posed to her by the CARS assessor as follows: "With respect to the questions raised by Claims Assessor Holz: i. Did the impact itself (as opposed to the actions of the group of young males) give rise to any psychiatric injury? If so, what was the injury and was it permanent? Although the claimant described feeling shocked and distressed after the accident, the nature of the impact was, of itself, of insufficient severity to cause a post traumatic stress disorder as it did not fulfil Criterion A of posing a serious threat of death, serious injury or sexual violence. Ms Gonzalez described nightmares and flashbacks containing references to the impact in addition to the subsequent events. Given that the impact itself was of insufficient severity to result in a PTSD, the recollections of the impact are likely to be a recollection of the context of the subsequent trauma of being intimidated by the group of men, and one should not construe the recollections of the impact as being recollections of trauma. My impression was that Ms Gonzalez has formed a negative association between her traumatic experience with the group of men and driving and car travel. On the single occasion that she attempted driving after the accident, the sound of the keys jangling was a reminder of the men playing with their keys when they surrounded her. The context (driving or being in a car) in which the traumatic event (harassment by the group of men) took place is therefore avoided. It is likely that there was a non-permanent emotional reaction to the actual impact. The impact resulted in immediate shock and distress, and resulted in an increase in pain. The shock and distress of experiencing a car reversing into the claimant's car would be expected to resolve. The immediate concerns about requiring further surgery would have been subsequently alleviated. It is noted that the persisting psychiatric symptoms reflect Ms Gonzalez's experience of trauma, rather than an emotional reaction to pain." (emphasis in original)
8. Question 2 asked by the CARS assessor was whether: "If the answer to question (i) was yes, was the psychiatric injury aggravated by the actions of the group of young males?"
9. The Assessor noted that, as the answer to question (i) was "no", question did not arise.
10. The Assessor then addressed questions 3 and 4 posed by the CARS assessor as follows: "iii Would the claimant have experienced the same psychiatric reaction to the group of young males had she not just been involved in the motor vehicle accident, with whatever (if any)psychiatric symptoms [it] caused? In my opinion, the PTSD and Major Depression would have occurred even if the claimant had not been involved in the motor accident, and had only encountered the group of young males. It was dark, and Ms Gonzalez was alone. Ms Gonzalez described feeling threatened by the encounter, particularly when she saw one of the men returning to his car. She worried that her life was in danger. She feared that her son would be hurt by the men. These feelings and perceptions did not require the pre-requisite of the subject accident. iv Having regard to Chapter 1.9 of the Permanent Impairment Guidelines, is factual causation made out in relation to any psychiatric impairment arising from the actual impact? The impact alone was not capable of causing a post traumatic stress disorder and the associated major depression. It was not a partial contributor to the development of the psychiatric conditions."
11. The Assessor then stated that there was no whole person impairment as a result of the accident and also stated that Ms Gonzalez's "psychological reaction to the harassment was not wholly or partially caused or contributed to by any psychological vulnerability arising from the accident."
12. The Assessor concluded that Post Traumatic Stress Disorder, Major Depression (Chronic) and Anxiety were not caused by the accident. The Assessor stated "of the injuries referred to me for assessment none were related to the motor accident."

Challenge to the Medical Assessment

1. Ms Gonzalez invokes this Court's supervisory jurisdiction confirmed by s 69 of the Supreme Court Act 1970 (NSW) to challenge the Assessor's decision either by reason of a jurisdictional error or an error of law on the face of the record.
2. By an Amended Summons filed 28 October 2016, Ms Gonzalez in effect relied on six grounds of judicial review, namely, a failure by the Assessor to provide sufficient reasons; a failure to construe and properly apply DSM-5; a failure to construe or apply the lawful test of causation including a specific failure to take into account certain evidence of Ms Gonzalez concerning that issue; a failure to respond to an argument said to have been raised on her behalf and that the decision was affected by "legal unreasonableness". I will deal with each ground in turn.

Adequacy of Reasons

1. The written submissions filed on behalf of Ms Gonzalez referred to the following statement in Wingfoot Australia Partners Ltd v Kocak [2013] HCA 43; 252 CLR 480 ("Wingfoot") at [55]. "The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
2. This statement has been found to be applicable to review panels acting under s 63 of the MAC Act (see Rodger v De Gelder [2015] NSWCA at 211 at [108] per Gleeson JA where MacFarlan JA and Leeming JA agreed.)
3. Ms Gonzalez's main complaint in relation to the Assessor's reasons concern an alleged failure by the Assessor to explain an apparent inconsistency between Ms Gonzalez's recounting of the anxiety resulting from the impact of the motor vehicle accident and the Assessor's finding that it did not play any contributing role in the development of her PTSD.
4. The written submissions pointed to that part of the Assessor's reasons in which she recorded Ms Gonzalez stating that immediately after the accident she, "...experienced pain in the shoulders and neck," was, "worried about her back," and, "was quite particularly concerned about her back as it had taken a long time to recover from the operation."
5. The submissions also noted that the Assessor recorded Ms Gonzalez stating that she had suffered pain in the lower right back, pain to her right shoulder and neck and knees, as well as stating that for a period she could not sleep as she was in pain and, "...kept replaying the incident and the interaction with the Asian gentlemen."
6. The submissions then asserted that there is a, "wholly unexplained inconsistency," between those accounts, which the Assessor appears to have accepted, and the Assessor's later conclusion that, "[t]he nature of impact was of itself of insufficient severity to cause a post traumatic stress disorder as it did not fulfil criterion A of posing a serious threat of death, serious injury or sexual violence." The submissions complained that this had amounted to a statement of conclusion instead of a provision of actual reasons of the Assessor.
7. I do not accept this submission. The reference to "Criterion A" in this extract from the Assessor's reasons is to Criterion A listed in DSM-5 for PTSD. I will address shortly a dispute between the parties concerning the Assessor's use of DSM-5, rather than DSM-IV. However, it suffices to state that from the beginning to the end of the medical assessment whether or not a claimant satisfied the criteria for a recognisable psychiatric disorder and should be diagnosed as suffering from any such disorder was a matter of clinical judgment, exclusively for a medically qualified assessor to undertake. Most significantly it was solely a question of fact for the Assessor. This is especially the case for any assessment as to whether a particular event was sufficiently traumatic enough to have caused PTSD.
8. In this case the circumstances of the car accident and what followed were set out in detail in the Assessor's reasons, as was Ms Gonzalez's recitation of her physical injuries and psychiatric issues. A finding that the accident did not pose a sufficiently serious threat, that is, one of death, serious injury or sexual violence, was an exercise of an evaluative judgment that did not require much, if any, explanation. In this case the Assessor stated that it was so because of the, "nature of the impact." In circumstances where the facts surrounding the accident were set out, the relevant criteria was identified, to then refer to the "nature of the impact" was sufficient to satisfy the relevant statement of principle in Wingfoot, especially as this aspect of the Assessor's decision did not involve the application of any legal standard but instead purely concerned a question of fact.
9. It was also contended that the Assessor erred in failing to explain in her reasons why she applied the criteria enunciated in DSM-5 and not DSM-IV. As noted, clause 7.13 of the Permanent Impairment Guidelines specifically referred assessors to impairments being attributable to a recognised psychiatric illness, "[i]n accordance with 'DSM-IV'".
10. It was not contended, on behalf of Ms Gonzalez, that it was an error for the assessor to apply DSM-5 as to DSM-IV. It was also conceded that, at least in respect of the nature of the traumatic event said to give rise to PTSD, there was no relevant difference between the diagnostic criteria set out in either of them.
11. Nevertheless, it was submitted that it was incumbent on the assessor to explain why she chose DSM-5 as opposed to DSM-IV. I do not agree. The obligation of the Assessor was to set out the actual reasons for her decision. In this respect it was clear that one step in those reasons, albeit right or wrong, was that she relied on the diagnostic criteria in DSM-5. However, the Assessor was not obliged to specify the reasons why she did not adopt a matter that she did not rely upon, namely, DSM-IV (see Wingfoot at [56]).
12. This conclusion renders it unnecessary to resolve a dispute that arose at the hearing of this matter concerning the status of a statement issued by the Motor Accident Authority concerning the possible reliance on DSM-5 by medical assessors. On that issue, Senior Counsel for Allianz, Mr Rewell SC, sought to tender a "guidance note" issued by the Authority purportedly under s 65(2) of the MAC Act. The guidance note stated that the Permanent Impairment Guidelines were issued before DSM-5 was promulgated and suggested to medical assessors that they consider DSM-5 to be a "substantial body of peer review research literature", as referred to in clause 7.13 of the Permanent Impairment Guidelines.
13. In light of the conclusion that I have reached, the debate about the relevance of this material in an application for judicial review became moot. I simply record that for that reason I reject the tender.
14. In oral submissions three further complaints were made about the Assessor's reasons. The first concerns the answers to questions 3 and 4 as posed by the CARS assessor. It was contended that these answers, in effect, amounted to conclusions without any underlying explanation.
15. Again, I do not accept this complaint.
16. The Assessor's answer to the first question not only rejected the suggestion that the impact of the motor vehicle accident was capable of causing Ms Gonzalez's PTSD, it also concluded that the psychiatric effects of that accident were only temporary and gave reasons why. In answering question 3, the Assessor concluded that Ms Gonzalez's PTSD would have occurred without the impact of the accident and explained why that was so, specifically the frightening nature of the alleged threats and the circumstances in which they were made. The answer given to question 4 followed from those previous answers. These were all questions of fact. Most importantly for present purposes, the actual path of reasoning of the Assessor in these respects was clear.
17. Second, it was contended that overall the Assessor was distracted from her primary obligation of providing proper reasons by focussing exclusively upon the CARS assessor's questions. The questions posed by the CARS assessor to the Assessor sought to encompass the various permutations by which a causal connection might have been established between the motor vehicle accident and Ms Gonzalez's psychiatric injuries. No complaint was made on behalf of Ms Gonzalez about those questions. The answers to the questions that were given by the Assessor completely resolved the causation issue. They meant that Ms Gonzalez could not demonstrate that any whole person impairment was caused by the accident.
18. In these circumstances, the conduct of the Assessor in answering the questions did fulfil her obligation to provide reasons for her assessment of the medical dispute that was referred to her. Otherwise, it involved a complete discharge of the jurisdiction that was conferred upon her by the MAC Act. Of course, in a different case, depending on the answers that may have been given, it might have been incumbent on a medical assessor to take the matter further, such as possibly considering a further causation scenario or assessing the degree of whole person impairment. If that was required and not done, then it is doubtful that would involve a failure to give reasons, but it might involve a constructive failure to exercise jurisdiction. However, that is not this case and it need not be considered further.
19. Third, in oral submissions, Senior Counsel for Ms Gonzalez, Mr Robinson SC, referred the Court to clause 1.36 of the Permanent Impairment Guidelines which state as follows: "The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident should also be calculated. If there is no objective evidence of the subsequent impairment its possible presence should be ignored."
20. Mr Robinson SC submitted that, notwithstanding Ms Gonzalez did not establish that any of her psychiatric injuries were relevantly related to, or caused by, the motor vehicle accident, it was still incumbent upon the Assessor to calculate the "value" of her impairment from the events that were unrelated to the accident. Senior Counsel for Allianz, Mr Rewell SC, submitted that this involves a misconstruction of clause 1.36. He submitted that any obligation to make such a separate assessment only arose if it was first accepted that there was some impairment caused by the motor vehicle accident in question. If that were the case, so he submitted, then it would be necessary for a medical assessor to perform a determination of the value of the whole person impairment that is unrelated to the accident in order that an amount attributable to the motor accident could be determined. I agree. Clause 1.36 was not, therefore, engaged in this case.

Erroneously Construing DSM-5

1. Mr Robinson SC contended that the Assessor had erred in construing DSM-5 and specifically that part of diagnostic Criterion A for PTSD, which referred to a person being exposed to, "actual or threatened death, serious injury," or other such events. In his written submissions, Mr Robinson SC referred to various items of evidence before the Assessor setting out the injuries Ms Gonzalez had suffered and recording statements she had made to doctors about her recollection of both the accident and its aftermath. In his oral submissions, Mr Robinson SC laid great emphasis on his client's pre-existing back condition and the operation she underwent approximately a year prior to the accident. Mr Robinson SC contended that, in determining whether the relevant event, that is the motor vehicle accident, involved an exposure of Ms Gonzalez to, inter alia, serious injury, the assessor was required to take all this material into account.
2. Mr Rewell SC argued, by reference to the terms of DSM-IV and DSM-5, that the Assessor was only required to consider the potential consequences of the event itself. He referred to a passage in DSM-5 that described the type of events that could give rise to PTSD and which instanced such matters as war, but also extended to "severe motor vehicle accidents."
3. With respect to both Counsel, this debate is misconceived. The DSM is not a statute and is not given statutory force by Clause 7.13 of the Permanent Impairment Guidelines. Instead, it is only one of a number of sources of assistance for medical assessors who are resolving a medical dispute. In this case, the relevant dispute being resolved was purely a question of fact.
4. In resolving that question of fact, it is a matter exclusively for the Assessor to interpret and apply DSM-IV and DSM-5. It is not a matter for the Court. It is the wrong inquiry to ask as to whether an assessor has "wrongly construed" some part of DSM-IV or DSM-5. It follows that this complaint does not raise any allegation of legal error. I reject it.

Failure to Apply the Lawful Test of Causation

1. The written submissions in support of this complaint refer to the discussion in the Permanent Impairment Guidelines of causation, noted above (at [14] to [15]). They then extract various parts of the histories given by Ms Gonzalez to her doctors in which she recounted having intrusive thoughts about the car accident and the threatening behaviour that followed. The submissions refer to the finding of the Assessor that Ms Gonzalez's reaction to the impact to the vehicles was, "Non-permanent". It was contended that the Assessor failed to take into account Ms Gonzalez's evidence and history to the effect that, "[s]he continues to be psychiatrically disabled by the motor vehicle accident itself."
2. The complaint that the Assessor did not address the discussion of causation in the Permanent Impairment Guidelines is without substance. To the contrary, the questions posed by the CARS assessor for the Assessor, which in turn provide the context for the Assessor's conclusions, were drafted by reference to those guidelines as well as the common law principles applicable to causation. At least in this case the questions, as posed, provided a clear pathway for the resolution of the difficult causation issues posed by the assessment that was referred to the Assessor.
3. Otherwise the suggestion that the Assessor did not take into account Ms Gonzalez's evidence about the on-going effect of the impact of the accident is, in substance, an attack on the merits of the decision. The Assessor directly addressed this matter in the passage set out above (at [38]). In particular, the Assessor considered that the relevant intrusive thoughts of Ms Gonzalez, concerning the motor vehicle accident itself, took place, "[i]n the context of the subsequent trauma of being intimidated."
4. It follows that I reject this ground.

Failure to Address Dr Sringeri's Opinion

1. At the hearing of this matter, Ms Gonzalez was granted leave to file and rely upon an Amended Summons that contained the following additional ground: "The medical assessor failed to respond to a substantial, clearly articulated argument that was made by the plaintiff and in doing so failed to afford procedural fairness (Rodger v De Gelder [2015] 71 MVR 514; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088)."
2. In oral submissions, Mr Robinson SC clarified that the "argument" referred to in this ground was a reference to a medical opinion from Mr Gonzalez's treating psychiatrist, Dr Sringeri. In that respect, in her reasons the Assessor recorded as follows: "Letter of Dr Sujaya Sringeri, treating psychiatrist, dated 20 August 2012. He obtained a history of progressively increasing anxiety and depression in relation to a 'traumatic incident she experienced about four years ago'. He noted that the claimant felt extremely helpless and thought that the driver and passengers were going to kill her. He obtained a history of auditory hallucinations and passive suicidal ideation. Doctor Sringeri diagnosed post traumatic stress disorder and major depressive disorder 'precipitated by the traumatic incident involving her car was hit by another car and she was also threatened by the [driver] and his passenger'."
3. In written submissions it was contended that: "The assessor was required to have regard to this material and to provide reasons as to why the plaintiff's treating psychiatrist, who enjoyed a special position given his frequency of assessment of the plaintiff was wrong."
4. This was not the obligation of the Assessor. The function of the Assessor in this respect was no different to that of a medical review panel acting under s 63 of the MAC Act. In Allianz Australia Insurance Ltd v Mackenzie & Ors [2014] NSWSC 67 at [47], Hoeben CJ at CL stated, in respect of such a panel: "It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: It is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its only medical expertise."
5. Otherwise, the Assessor did "respond" to such argument as might be said to be supported by Dr Sringeri's letter. She did so by addressing the same topic, namely, the connection between the motor vehicle accident and Ms Gonzalez's psychiatric condition and providing her own conclusions.
6. I reject that ground.

Legal Unreasonableness

1. The final ground of review put forward in relation to the Assessor's certificate is that it was affected by "legal unreasonableness." The submissions in support of this ground state: "83. The medical assessor's decision is afflicted by legal unreasonableness in the sense established in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 in that: (a) no sensible medical assessor acting with due appreciation of her responsibilities would have so decided; (b) the medical assessor failed to give adequate weight to relevant factors of great importance (namely, those outlined above); (c) the medical assessor gave excessive weight to irrelevant factors of no importance (namely, those outlined above); (d) the medical assessor reasoned illogically or irrationally in that she obtained evidence of the significant shock, stress, physical pain and significant psychological sequelae resulting from the accident itself and then concluded that the plaintiff's PTSD was not caused/or contributed to by the accident."
2. It is not necessary to decide whether the concept of unreasonableness described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, which concerned the abuse of discretionary powers, is apposite to the power exercised by medical assessors to make an assessment of a medical dispute. It seems more likely that the form of review that may be available in respect of such assessments is that discussed by Gummow J in Minister for Immigration v Esheto [1999] HCA 21; 197 CLR 611 at [138ff].
3. It suffices to state that Ms Gonzalez has not established the basis for either form of review. There was nothing illogical or irrational in the Assessor's reasons and they are not unreasonable in any other relevant sense. Once the Assessor determined that the circumstances of the accident were not sufficiently serious to give rise to PTSD and that Ms Gonzalez's condition was only attributable to the post‑accident conduct of the driver and his associates, then the outcome of the assessment was inevitable. There was no real attempt to demonstrate that either of those two medical opinions was unreasonably formed.
4. It follows that the challenge to the Assessor's certificate dated 2 October, 2015, fails.

Proper Officer's Decision

1. Following receipt of the Assessor's certificate dated 2 October, 2015, Ms Gonzalez applied to a Proper Officer to have the assessment referred to a review panel pursuant to s 63 (1) of the MAC Act.
2. On 18 November, 2015, the Proper Officer refused the request and provided reasons. The Proper Officer's reasons reveal that each of the grounds put forward for referral to a panel were addressed and rejected, specifically Ms Gonzalez's complaint that Criterion A of DSM-5 was satisfied; her complaint that the Assessor did not consider all of the evidence concerning her susceptibility at the time of the accident; her complaint that Assessor did not consider Dr Sringeri's report and an alleged failure to consider the causal link between the motor vehicle accident and subsequent events.
3. Two matters are put forward on behalf of Ms Gonzalez seeking to challenge the Proper Officer's decision.
4. The first is that it was contended that, as the Assessor's decision was invalid, it must follow that the Proper Officer's decision is also invalid. As the premise for this ground has not been made out, it is not necessary to consider it further. It must be rejected.
5. The second basis is a bare assertion that the Proper Officer did not answer, or respond to, the application of plaintiff's application and, "failed to understand or appreciate and engage with and determine the plaintiff's application." There was no expansion on this assertion in writing or orally. For my part, I have reviewed the Proper Officer's assessment and no error of that kind is apparent.
6. It follows that the challenge to the Proper Officer's decision must be rejected.

Disposition

1. It follows that these proceedings will have to be dismissed.
2. I can only state that the outcome of what appears to be a prolonged administrative process is likely to leave Ms Gonzalez in a worse position than when she started, which is particularly unfortunate given that she is a completely innocent victim of the conduct of others.
3. I can only indicate that some consideration should be given by Allianz to her circumstances if any question of costs recovery should arise.
4. Accordingly, the orders of the court are:
5. The tender of MFI 1, being a Medical Assessment Guidance Note No 19, is rejected.
6. Pursuant to Uniform Civil Procedure Rule 59.10.2, the time in which the plaintiff may commence those proceedings be extended up to and including 17 February, 2016.
7. The proceedings be dismissed. [Counsel addressed on costs]
8. The plaintiff pay the first defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2016