Goodwin v Motor Accidents Authority of New South Wales [2014] NSWSC 40 | Case summary

THE RELEVANT STATUTORY PROVISIONS 20Section 61 of the Act deals with the status of medical assessments and requires (inter alia) an assessor to whom a medical dispute is referred to issue a certificate as to the matters referred for assessment. Section 61(11) provides: "If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error." 21Section 63 of the Act, pursuant to which the third defendant's application to the Proper Officer was made, is in the following terms: 63 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. 22Chapter 16 of the guidelines includes the following provisions applicable to an application under s. 63: Proper Officer Determination 16.11 The Proper Officer is to consider the application for review within 10 days of the due date for compliance with the requirements of clause 3.15. 16.12 The Proper Officer may only refer a matter to a Review Panel if satisfied of the factors set out in s. 63(3), that there is reasonable cause to suspect the assessment of the single Medical Assessor is incorrect in a material respect, having regard to any relevant information submitted including: 16.12.1 The review application, and any reply to it, and the particulars and any supporting information set out in those documents; 16.12.2 Any other applications and replies and / or MAS Certificates in relation to the same claimant, not limited to the same matter, after the parties have been provided with copies of these documents; and 16.12.3 The object of the Act and the object of MAS. 16.13 For the purposes of s. 63 the word "material" includes that it is relevant and capable of altering the outcome of a dispute about: 16.13.1 Reasonable and necessary treatment, from "not reasonable and necessary" to "reasonable and necessary" or vice-versa; 16.13.2 Related treatment from "not related" to "related" or vice-versa; or 16.12.3 Permanent impairment, from "not greater than 10 percent whole person impairment" to "greater than 10 percent whole person impairment" or vice-versa. 16.14 If the Proper Officer is not satisfied that there is reasonable cause to suspect the assessment of the single Medical Assessor is incorrect, in a material respect the Proper Officer may dismiss the application. 16.15 The Proper Officer shall advise the parties as to whether the application is accepted and will be referred to a Review Panel or is dismissed, supported by a brief statement of reasons, within 5 days of considering the application. 23Chapter 17 of the guidelines deals with applications to correct a certificate issued by an assessor in a case where there is obvious error: Division 5 - Corrections and costs Chapter 17 - Corrections by Assessor 17.1 If a party to an assessment considers that an Assessor or Review Panel has made an obvious error in a certificate, that party may make an application to the Proper Officer to have the error corrected within 30 days after the date on which the certificate under either clause 13.3, 13.5, 13.9 or 16.24 was sent by MAS to the parties. (Note: This period is different to the obvious error correction period at CARS, which is set at 21 calendar days after the CARS certificate of assessment was issued, which is timed to be consistent with the period for accepting a CARS assessment. Instead, this MAS obvious error correction period is timed to be generally consistent with the period of time for lodging a MAS review as set out in Chapter 16 of these Guidelines). 17.2 Any such application is to be made in writing, setting out details of the obvious error and the terms of the suggested correction. 17.3 The party making the application is to send a copy of the application to the other party. 17.4 Examples of obvious errors in the certificate include, but are not limited to: 17.4.1 a clerical or typographical error in the certificate; 17.4.2 an error arising from an accidental slip or omission; 17.4.3 a defect of form; 17.4.4 an obvious inconsistency between the certificate and the reasons explaining the certificate. 17.5 Within 5 days of receiving the application the Proper Officer shall acknowledge the application by writing to both parties, and the Proper Officer may seek any further submissions from the parties. Proper Officer referral to Assessor 17.6 The Proper Officer shall consider the application within 10 days of acknowledging receipt of the application under clause 17.5 and, if satisfied that there may be an obvious error in the certificate, refer the matter back to the Assessor or Review Panel concerned. In considering whether or not there may be an obvious error in the certificate, the Proper Officer shall consider any submissions from the parties. 17.7 The Proper Officer shall within 5 days of making such a decision under clause 17.6: 17.7.1 write to the Assessor or Review Panel concerned, referring the matter back to them for consideration; and 17.7.2 write to the parties advising them of the Proper Officer's decision, providing brief reasons. 24Clause 1.6.11 of the guidelines provides that the term "certificate" means: "A certificate issued under section 61(1), including the reasons for any finding under section 61(9)". THE ERRORS ASSERTED BY THE PLAINTIFF 25The plaintiff submitted that the Proper Officer erred in two respects, namely: (i)refusing the application for correction of the assessor's certificate ("the first error"); and (ii)accepting the application for review and determining that there was reasonable cause to suspect that the assessment of the plaintiff's injuries was incorrect in a material respect ("the second error"). THE FIRST ERROR 26The starting point of the submissions of senior counsel for the plaintiff was the Proper Officer's conclusion that in order to be obvious, it was necessary for the asserted error to be apparent on the face of the certificate, such that it could be corrected by reference to the certificate alone. 27In short, senior counsel submitted that such conclusion reflected the fact that the Proper Officer had adopted an approach which was legally erroneous. The error, it was submitted, arose from the fact that such approach was generally inconsistent with the guidelines, and amounted to jurisdictional error, or error of law on the face of the record, because the Proper Officer had identified a wrong issue, or asked himself the wrong question. 28Senior counsel for the defendant submitted that what the plaintiff in fact sought was a review on the merits, a course which was not permissible. He further submitted that in order to be "obvious", it was necessary for the error to be readily apparent, clear and not merely arguable, and that there was no such error in the present case. Finally, senior counsel submitted that even if such an error was made out, a person in the position of the Proper Officer should not be burdened with the task of having to recalculate that which was more appropriately within the domain of a qualified medical practitioner. 29I accept that it is important not to blur the distinction between a merits review on the one hand, and judicial review on the other (see Kelly v Motor Accidents Authority of NSW [2006] NSWSC 1444; (2006) 46 MVR 553 at [59]). It is not my function, in determining the present application, to engage in a review of the merits of the Proper Officer's decision, nor is it my function to determine whether there was, in fact, an obvious error in the certificate. However in my view, the third defendant's attempted categorisation of the present application as a merits review fails to appreciate the true nature of the plaintiff's position. The plaintiff contends that in determining the application for correction of the certificate, the Proper Officer adopted an approach which was legally erroneous because he identified the wrong issue or asked himself the wrong question (see Craig v The State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]; 351. That position does not, in any way, reflect a merits review. 30For the reasons that follow, I consider that the Proper Officer erred in the manner for which the plaintiff contends. 31The Proper Officer, having concluded (in paragraph 10 of his reasons) that the assessor had miscalculated the total impairment related to the plaintiff's right shoulder injury, proceeded to find that this was not an obvious error. In particular, he said (at paragraph 11 of his reasons): "...the respondent submits that this error should be considered an "obvious error" and be corrected accordingly. However, in accordance with the MAS Guidelines, an obvious error must be apparent on the face of the certificate". 32He then went on to say: "Correction of this error requires reference to the AMA 4 Guidelines and calculations to be made. As more than the certificate alone is required to confirm this error, the error cannot be considered an obvious error". 33In my view, there are a number of difficulties arising from these conclusions. 34Firstly, it is not clear what the assessor meant by his references to the "face of the certificate" or "the certificate alone". The certificate issued by the assessor certified (inter alia) that the plaintiff's injuries (which included her right shoulder injury) gave rise to a whole person impairment which was greater than 10%. Accompanying the certificate, and in fact incorporated in the same document, were the assessor's reasons. As I have noted, the guidelines define a "certificate" to include the reasons of the assessor. The Proper Officer's reference to "the certificate alone" leaves me to conclude that he drew some distinction between the certificate on the one hand, and the reasons of the assessor on the other. That approach was one which was not consistent with the definition of the term "certificate" as it appears in the guidelines. 35The Proper Officer did not identify the particular provision(s) of the guidelines upon which he relied to conclude that in order to be obvious, an error must be apparent on the face of the certificate. I was not referred to any such provision(s) in the course of argument. Chapter 17 of the guidelines deals with applications for correction of certificates. In my view, there is nothing within that Chapter, nor within the guidelines as a whole, which would support the approach taken by the Proper Officer. 36The reference, by the Proper Officer, to the necessity for the error to be apparent on the face of the certificate suggests that he may have had in mind the decision of Johnson J in Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266; (2006) 47 MVR 74; [2006] NSWSC 1090. In that case, his Honour was dealing with the meaning of the term "obvious error" in the context of s. 94(6) of the Act. Section 94(4) imposes an obligation upon a claims assessor to issue a certificate as to an assessment of a claim under the Act as soon as practicable after the assessment is made. Section 94(6) is in the following terms: "If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error". 37It will be apparent that s. 94(6) is directed not to errors in certificates of medical assessors, but to errors in certificates of claims assessors. It will also be apparent that in order to issue, or to approve of the issue, of a replacement certificate, the Principal Claims Assessor must be satisfied that the original certificate contains an obvious error. This may be compared with the provisions of Chapter 17 of the guidelines, which provides that the Proper Officer be satisfied that the certificate may contain such an error. 38More importantly however, Johnson J observed (at [144]) that the proper construction of the term "obvious error" as it appeared in s. 94 required identification of its meaning in the relevant statutory context. It was in those circumstances that his Honour went on to observe that errors caught by that provision must be readily apparent on the face of the certificate and/or the accompanying statement of reasons. He concluded that the words of s. 94(6) confined the attention of the principal claims assessor to the certificate and/or accompanying reasons in order to determine if there was an obvious error. 39In the present case, part of the relevant statutory context in which the meaning of the term "obvious error" is to be considered are the provisions of Chapter 17 of the guidelines. There is nothing within that Chapter which confines the attention of the Proper Officer to the certificate alone, as opposed to the accompanying reasons. In fact, the definition of the term "certificate" suggests the contrary. 40Moreover, clause 17.4 of the guidelines cites examples (which are not exhaustive) of what may constitute an obvious error. Those examples include (at 17.4.4) where there is "an obvious inconsistency between the certificate and the reasons explaining the certificate". The guidelines therefore contemplate that in determining whether there may be an obvious error, the decision maker may go beyond the contents of the certificate itself, and consider the accompanying reasons. The Proper Officer's conclusion that an obvious error must be apparent on the face of the certificate reflected an approach which was at odds with the provisions of clause 17.4.4. 41For these reasons, the first error is made out. THE SECOND ERROR 42It was submitted on behalf of the plaintiff that in the event that I were to find that the first error was made out, it would not be necessary to consider the second. However as the matter was fully argued, it is appropriate that it be considered. 43Senior counsel for the plaintiff submitted, in effect, that the second error came about as the result of the Proper Officer addressing the wrong issue. He submitted that for the purposes of an application under s. 63, what must be incorrect in a material respect is the medical assessment, not the certificate which is issued as a consequence of that assessment. He submitted that in the present case there was nothing to suggest that there was any error in the actual assessment process, and that the error identified by the Proper Officer was an error in the calculation which resulted from that assessment. He submitted that this reflected the Proper Officer having placed emphasis upon the result of the assessment, rather than the process of assessment itself, and that such an approach was erroneous because it reflected the fact that the Proper Officer had identified the wrong issue, or asked himself the wrong question. 44In summary, senior counsel for the third defendant again submitted that the plaintiff's application amounted to a review on the merits, and that no legal error was discernable. He further submitted that even if error were found, it was not of sufficient significance to warrant intervention by this court and that, in any event, there were other avenues open to the plaintiff pursuant to which it was open to her to challenge the medical assessment. 45Senior counsel for the third defendant also submitted that inherent in the plaintiff's complaint, was the necessity to subject the reasons of the Proper Officer to detailed analysis and scrutiny. He submitted that such an approach was impermissible in a matter of this nature. 46I have set out, in paragraph [9] above, that part of the assessor's reasons which relates to his examination of the plaintiff's right shoulder. Against that background, the Proper Officer reached the following conclusion (at paragraph 10 of his reasons): "Accordingly, as submitted by the applicant, it would appear that the Assessor has miscalculated the total impairment related to the claimants right shoulder injury. While a difference of 1% may not change the present assessment from greater than 10% to not greater than 10%, it is nevertheless an error and the parties are entitled to an accurate assessment. As such, I am satisfied of reasonable cause to suspect a material error". 47In Meeuwissen v Boden (2010) 78 NSWLR 143; 2010] NSWCA 253; (2010) 56 MVR 453, Basten JA (Beazley JA and Sackville AJA agreeing) identified (commencing at [19]) a number of matters which supported the conclusion that the phrase "in a material respect" as it is used in s. 63 refers to the process by which the relevant outcome is achieved. In particular, his Honour said: "First, what must be incorrect in a material respect is the "medical assessment" and not the certificate which results from the assessment. The subject matter of a medical assessment is a "medical dispute": s. 63(1). A "medical dispute" is defined to mean "a disagreement about one of the matters (referred to as "medical assessment matters") set out in s. 58(1). These include whether the degree of permanent impairment is greater than 10%: s. 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s. 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error". 48In determining the application under s. 63 in the present case, the Proper Officer was required to consider whether there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. The error identified by the Proper Officer, according to his reasons, was an error made by the assessor in the process of calculating the degree of whole person impairment. That calculation was based on the findings made on assessment. The nature of the error identified by the Proper Officer which led him to reach the conclusion set out in [46] above was one which went to the outcome, as opposed to the process, of assessment. There is nothing contained in the Proper Officer's reasons in which he identified any error in the process of the assessment itself. 49In these circumstances the Proper Officer erred. In my view, that error is apparent on the face of the Proper Officer's reasons. Its identification is not dependent upon such reasons being subject to minute and detailed scrutiny. 50For all of these reasons, the second error is also made out. CONCLUSION 51I make the following orders: (1)The decisions of the second defendant of 6 June 2013: (a)refusing the plaintiff's application for correction of the Certificate issued by Assessor David Johnson on 2 April 2013; and (b)referring the assessment made by Assessor David Johnson to a Medical Review Panel pursuant to s. 63 of the Motor Accidents Compensation Act 1999 are each set aside. (2)The matters are remitted to the first defendant to be dealt with according to law. (3)The third defendant is to pay the plaintiff's costs.

Goodwin v Motor Accidents Authority of New South Wales

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