Insurance Australia Limited t/as NRMA Insurance v Warren

Leave to extend time - UCPR 59.10

1. The insurer has sought leave to extend time to commence proceedings in respect of the decision of the medical assessor.
2. The insurer submitted that the reason for its delay was that it was proper and appropriate to attempt to exhaust its remedies below, before commencing proceedings in this Court. The plaintiff has commenced proceedings within three months of the date of the proper officer's decision, as required by UCPR 59.10.
3. In Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 ("De Gelger") at [91]-[92] per Beazley JA (with McColl and Macfarlan JJA agreeing), the Court of Appeal held that it may not be necessary to immediately challenge each medical assessor's decision by way of judicial review, and that it would be better for an applicant to first exhaust his or her existing remedies in the medical assessor scheme below before then troubling the Supreme Court in its supervisory jurisdiction.
4. The insurer submitted that it should be permitted to exhaust its available options below before commencing judicial review proceedings. The insurer accordingly does not acquiesce in the validity of the decision or approbate and reprobate, but merely sought to exhaust its other remedies first (De Gelder at [92]).
5. Mr Warren does not submit that he suffers any prejudice due to the delay, but argued that an important consideration on an application to extend time is whether the insurer has a fairly arguable case: Tomko v Palasty (No 2) [2007] NSWCA 369. Mr Warren contended that this proceeding does not enjoy sufficient prospects of success, and so the Court should decline to grant leave to extend time on that basis.

Conclusion

1. It is my view that the insurer's explanation for delay is satisfactory. Mr Warren does not suffer from any prejudice. In these circumstances, I grant an extension of time to commence judicial review proceedings against the medical assessor.

Statutory framework and guidelines

1. The insurer's claim for damages is governed by the MAC Act. The operation of Part 3.4 of the MAC Act underpins this proceeding. Relevantly, s 58 provides: "58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): … (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. …"
2. Pursuant to s 60 of the MAC Act, a "medical dispute" may be referred to SIRA for assessment under Part 3.4 of the MAC Act by either party to the dispute.
3. Section 61 sets out the status of medical assessments. It relevantly reads: "61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. … (4) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. … (9) 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. … (11) 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."
4. An assessment of the degree of permanent impairment must be expressed as a percentage, and must be made in accordance with the Motor Accidents Medical Guidelines: see s 133 of the MAC Act. Under s 131, damages may only be awarded for non-economic loss if the degree of permanent impairment as the result of the injury caused by the motor accident is greater than 10%. In this case, the medical assessor assessed Mr Warren as having a WPI of 11%.
5. As at 1 June 2018, the SIRA Motor Accident Permanent Impairment Guidelines ("Permanent Impairment Guidelines"), made pursuant to s 44(1)(c) of the MAC Act, apply to the assessment of permanent impairment disputes by virtue of s 133 of the Act. The Permanent Impairment Guidelines relevantly provide : "Pre-existing impairment 1.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored. 1.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 1.218 for the approach to pre-existing psychiatric impairment. 1.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident. … Consistency 1.40 Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of the injured person's efforts. The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report. 1.41 Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness."
6. As at 1 October 2008, the SIRA Medical Assessment Guidelines, made pursuant to s 44(1)(d) and s 65(1) of the MAC Act, apply to medical assessments conducted pursuant to the MAC Act.
7. Review of medical assessments by a review panel is set out in s 63 of the MAC Act. Section 63 relevantly reads: "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. … (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. … (6) Section 61 applies to any new certificate or new combined certificate issued under this section. …"
8. Finally, s 65 of the MAC Act relevantly states: 65 Authority monitoring and oversight (1) Medical assessments under this Part are subject to relevant provisions of Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment. …"

The decision of the medical assessor dated 20 July 2018

1. At the outset of the medical assessor's reasons for decision, he acknowledged that he had seen and considered both the application form and supporting documents, as well as the reply forms and supporting documents before him.
2. The medical assessor correctly noted the list of injuries to be assessed as the right shoulder - musculo-ligamentous; lumbar spine - soft tissue; thoracic spine - soft tissue; cervical spine - soft tissue; right knee - soft tissue; and left knee - soft tissue. He made a determination for the cervical spine at 5% WPI and the upper shoulder at 6% WPI. There is no need for me to address the thoracic and lumber spine or the left and right knees, as they each were assessed at 0% permanent impairment. It is only the medical assessor's determination concerning to the permanent impairment of the cervical spine and the upper right shoulder that are subject to this judicial review.
3. Under the heading "Pre-accident medical history and relevant personal details", the medical assessor recorded that Mr Warren had been involved in a number of previous motor vehicle accidents. Mr Warren stated that the first accident was more than 20 years ago but he could not remember the exact details. The most significant accident occurred in 2007, when 700 kilograms of load fell from a truck and struck him on the front area of his body. He suffered a crush injury and sustained damage to his neck, back, left shoulder and both knees. Mr Warren was treated by Dr Petrelis, an orthopaedic surgeon who performed surgery on his left shoulder. Mr Warren also reported having arthroscopies of both knees in approximately December 2007. He received ongoing treatment for several years. After treatment for these injuries, Mr Warren said he was approximately 75% better, but that he never fully recovered. He was able to return to physical activities. His claim in relation to those injuries was finalised in around 2010. The medical assessor recorded that Mr Warren had received minimal treatment for his cervical spine, thoracic spine or lumbar spine, no treatment at all for either knee, and that he had not undergone any investigations of any of these areas.
4. Under the heading "Review of Documentation", the medical assessor recorded that Mr Warren did not bring any investigations with him. He noted that the only investigations carried out since either motor vehicle accident were for his right shoulder. Mr Warren had not undergone any investigation for his cervical spine, thoracic spine, lumbar spine or either knee.
5. The medical assessor noted that Mr Warren's personal injury claim was dated 29 April 2013, less than two weeks after the motor vehicle accident. The injuries listed included Mr Warren's right shoulder, neck, back and left leg. There was no mention made of a discrete injury to either his left knee or right knee. The medical assessor referred to the medical certificate of Dr McQualter, a general practitioner, dated 22 April 2013, which listed the injuries as only including Mr Warren's thoracic spine and lumbar spine. He also referred to the medico legal report of Dr Watson dated 11 September 2015, which assessed injuries to the cervical spine, lumbar spine and right shoulder causally related to the motor vehicle accident. Dr Watson found no assessable impairment in the neck or back, but gave an assessment of 5% WPI for the right shoulder. The medical assessor observed that in Dr Watson's report dated 16 September 2016, he changed the right shoulder assessment from 5% to 3% WPI due to improvement in range of movement.
6. The medical assessor commented that the general practice records of Dr McQualter seemed to be incomplete and out of chronological order. There did not appear to be any initial mention of the injury to Mr Warren's right shoulder, and certainly no mention of an aggravation or re-injury of either knee. Within a matter of several months, there was mention to Dr McQualter of the right shoulder and that the referral to the physiotherapist was for Mr Warren's cervical spine and right shoulder.
7. The medical assessor referred to the clinical notes of Dr Petrelis, who had recommended that Mr Warren have arthroscopic surgery to the right shoulder before the second accident on 28 November 2014. Dr Petrelis reported that the MRI scan had revealed a possible rotator cuff injury as well as a possible SLAP lesion. The medical assessor noted that upon surgical intervention in 2016, there was no significant rotator cuff tear, but that there was evidence of biceps tendon injury as well as subacromial bursitis and impingement. Dr Petrelis listed that Mr Warren's range of movement following surgery in May 2016 had gradually improved but had never returned to normal. The medical assessor noted in the physiotherapy notes after the surgery that Mr Warren had flare ups of pain in the right shoulder, and that its range of movement appeared to go fairly much up and down.
8. The medical assessor noted the report of Associate Professor Kleinman, orthopaedic surgeon, dated 2 September 2014. It listed Mr Warren's injuries from the first motor vehicle accident as being his right shoulder, cervical spine and lumbar spine.
9. The medical assessor commented that the Notice of Commencement of Physiotherapy Treatment form, dated 19 August 2013, was for treatment for Mr Warren's cervical spine and right shoulder only and that this treatment program, which continued until 2014, included some treatment for Mr Warren's lumbar spine.
10. As to diagnosis and causation in relation to the motor accident on 13 April 2013, the medical assessor concluded that from the documentation provided, and also from the history obtained from Mr Warren, it was his determination that Mr Warren sustained soft tissue injury to his cervical spine, thoracic spine, lumbar spine and also to his right shoulder.
11. Finally, under the heading "Pre-existing/subsequent impairment", the assessor wrote "Not applicable".
12. As previously stated, the medical assessor assessed Mr Warren's WPI in relation to his cervical spine at 5% and his WPI in relation to his right upper shoulder at 6%. Mr Warren's WPI was assessed at 11%.

Judicial review generally

1. This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including both a medical assessor and proper officer, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).

Grounds of judicial review

1. The insurer argued that there are a number of jurisdictional errors and/or errors of law on the face of the record in the medical assessor's decision. Alternatively, the insurer argued that the medical assessor constructively failed to exercise his statutory power and jurisdiction in making his decision.
2. The grounds of judicial review relied on by the insurer in relation to the medical assessor's decision are set out at [2] of the amended summons. They raise similar issues but are expressed differently. Specifically, the insurer argued that the medical assessor erred in making his decision in the following respects: 1. The medical assessor failed to respond to substantial and clearly articulated arguments advanced by the insurer in its submissions dated 21 March 2017, which were before the medical assessor, namely that: 1. in respect of the alleged right shoulder injury, Mr Warren had substantially recovered from the right shoulder injury sustained in the subject accident, and that any ongoing injury in the right shoulder was attributable to the second motor accident; 2. in respect of the alleged injury to the lumbar and thoracic spine, there was a history of prior complaints regarding Mr Warren's back, including a prior injury in 2007, and that the insurer disputed that Mr Warren sustained any injury to his back in the subject accident; 3. in respect of the alleged injury to the cervical spine, there was a significant history of previous complaints to the claimant's neck and Mr Warren's cervical spine injury was primarily related to a previous motor accident in 1997 and a further injury in 2007; 4. in respect of the alleged injury to the left knee, Mr Warren had a history of problems with the left knee, and any left knee injury sustained in the subject motor accident had now resolved; and 5. in respect of the alleged injury to the right knee, Mr Warren had a history of problems with the right knee, and any right knee injury sustained in the subject motor accident had now resolved. 1. The medical assessor was obliged to set out lawful reasons for his determination pursuant to s 61(9) of the MAC Act and SIRA's Medical Assessment Guidelines. The medical assessor failed to set out proper or lawful reasons for his decision, particularly in light of the matters that were squarely put in issue by the insurer in its submissions that were before him. 2. In particular, the medical assessor failed to set out lawful reasons for his findings on causation in respect of the first accident and/or reasons as to why he determined that pre-existing impairment was "Not applicable". 3. The Permanent Impairment Guidelines dated 1 June 2018 applied to the assessment carried out by the medical assessor. In conducting his assessment, the medical assessor failed to consider and/or apply clause 1.31 of the Permanent Impairment Guidelines. In this respect, the assessor: 1. failed to consider the issue of pre-existing impairment; 2. failed to have regard to and/or to apply cl 1.31; 3. failed to consider whether cl 1.31 ought to result in a reduction for pre-existing impairment; and 4. failed to give adequate or lawful reasons regarding the issue of pre­existing impairment and/or his consideration of cl 1.31. 1. In conducting his medical assessment, the medical assessor failed to consider and/or apply cl 1.41 of the Permanent Impairment Guidelines. In this respect: 1. the medical assessor had before him reports from Dr Watson that contained findings on examination in respect of the claimant's neck and right shoulder; 2. the medical assessor failed to bring to Mr Warren's attention the inconsistencies between the assessor's own findings and the findings in the reports of Dr Watson, and he failed to give the claimant an opportunity to comment on those inconsistencies; and 3. in failing to comply with cl 1.41, the medical assessor failed to comply with the Permanent Impairment Guidelines, and failed to afford procedural fairness to the parties.
3. For these reasons, the insurer argued that the medical assessor committed errors of law, fell into jurisdictional error, and/or constructively failed to exercise its jurisdiction in respect of each, any or a combination of the above grounds of judicial review. As such, the plaintiff argued that the medical assessor decision and certificate is invalid and should be set aside.
4. I will consider grounds 2(a)-(e) in turn.

Ground 2(a) - Failure to respond to substantial and clearly articulated arguments

The insurer's submissions

1. In its submissions before the medical assessor, the insurer made the following arguments: 1. in respect of the alleged right shoulder injury, Mr Warren had substantially recovered from the right shoulder injury sustained in the first accident, and any ongoing injury in the right shoulder was attributable to the second accident; 2. in respect of the alleged injury to the lumbar and thoracic spine, there was a history of prior complaints regarding Mr Warren's back, including a prior injury in 2007, and the insurer disputed that Mr Warren sustained an injury to his back in the first accident; 3. in respect of the alleged injury to the cervical spine, there was a significant history of previous complaints to Mr Warren's neck and cervical spine injury was primarily related to a previous motor vehicle accident in 1997 and a further injury in 2007; 4. in respect of the alleged injury to the left knee, Mr Warren had a history of problems with the left knee and any left knee injury sustained in the first accident had resolved; and 5. in respect of the alleged injury to the right knee, Mr Warren had a history of problems with the right knee and any right knee injury sustained in the first accident had resolved.
2. The insurer said that despite the evidence it adduced in relation to its arguments, the medical assessor did not acknowledge or respond to them in his decision.
3. In Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443 ("Cervantes") at [19]-[20], Basten JA addressed the legal obligation of administrative decision makers to take particular evidence into account, stating: "19 ... In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] (Dranichnikov), Gummow and Callinan JJ stated: 24 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) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [81] (Miah) 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: 81 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'."
4. In Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 ("De Gelder"), Gleeson JA (with MacFarlan and Leeming JJA agreeing) held that the review panel in that case had failed to respond to a substantial argument raised by the claimant, stating at [109]: "[109] Here the Panel failed to respond to a substantial argument based on evidence relied upon by Mr De Gelder as to the causation of his thoracic spine injury by the motor accident. It may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under s 58(1)(d), because it misunderstood a significant body of evidence relevant to its non-medical determination. What the Panel did amounted to a jurisdictional error. The Panel's decision recorded in its certificate is to be regarded as a purported and not real exercise of its statutory function in s 58(1)(d), leaving that statutory function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge by way of judicial review: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 per Jordan CJ."
5. In De Gelder, the Court held that by failing to respond to the substantial and clearly articulated arguments advanced by the claimant, the review panel failed to afford procedural fairness.
6. The insurer in these proceedings submitted that any breach of the rules of procedural fairness is a serious matter. There is no such thing as a trivial denial of procedural fairness: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ("Aala") at [17] and [59].

Mr Warren's submissions

1. In relation to ground 2(a), Mr Warren argued that the insurer's submissions proceed upon a fundamental misapprehension of the process and the role of a medical assessor under the MAC Act. The ground is, in essence, an allegation that the plaintiff was denied procedural fairness before the medical assessor and it is accepted that such an error would be jurisdictional.
2. While it has been established, in a statutory context, that procedural fairness ought to be observed where a decision has the potential to affect rights or interests, the High Court has emphasised that the proper focus in any case is to be upon "what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made": see Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30]. That decision-making frameworks occupy a broad spectrum is axiomatic: see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ("Miah") at [31] per Gleeson CJ and Hayne J.
3. The framework in question involves the referral of "medical disputes", as defined in s 57 and Part 3.4 of the MAC Act more generally, to "medical practitioners and other suitably qualified persons to be medical assessors", appointed by SIRA under s 59 of the MAC Act. As such, while the process has been laid out by statute, its purpose is to entrust the resolution of medical disputes to those with medical training so that the "early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents", "to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims" and "to deter fraud in connection with compulsory third party insurance" (s 5(1)(a)-(b), (g) of the MAC Act).
4. Mr Warren accepted that it was true that by s 5(2)(b) of the MAC Act, "the law (both the enacted law and the common law) relating to the assessment of damages in claims made under the MAC Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries". However, Mr Warren argued that there is no tension between his intentions and those of the legislation. Rather, the medical assessment process, by entrusting medical practitioners exists to limit the ability of injured persons to claim compensation for non-economic loss because the assessors are well placed to judge their degree of impairment.
5. Mr Warren submitted that administrative decisions are sometimes made in contexts which are much less formal and extensive than, for example, what occurs in a court or tribunal. Here, the decision was made by a medical practitioner in light of a significant body of material that was submitted by the plaintiff. Mr Warren argued that as such, the Court should not approach its task in the way it might approach a decision of another administrative body, such as the Civil and Administrative Tribunal. The medical assessor recorded that he had "seen and considered the MAS application forms and supporting documents and the MAS reply forms and supporting documents".
6. Mr Warren argued that the insurer's submissions before the medical assessor did little more than record matters that were contained in the various medical reports that had been prepared by medico-legal doctors engaged by the plaintiff on their reviews of Mr Warren, reports prepared for Mr Warren in respect of a workplace injury sustained in 2007 and particular features of medical reports and records of his treating physicians. The medical assessor largely recited the gravamen of those matters in his assessment. The only matter in the insurer's submissions to which he did not refer was Dr Bodel's report. However, Mr Warren submitted that this omission is explicable in light of cl 1.31 of the Permanent Impairment Guidelines, which is the foundation for another of Mr Warren's grounds of error, because the report of Dr Bodel dated back to 2010. As such, it was open to the medical assessor to disregard it, which is the clear inference to be taken from its omission from the section headed "Summary of Relevant Documentation". Mr Warren contends that the reasons given by the medical assessor suffice in the circumstances of his assessment to have satisfied the obligation recognised in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 ("Dranichnikov") and other authorities.
7. For these reasons, Mr Warren submitted that ground 2(a) is not made out.

Consideration

1. As Mr Warren's knees and his lumbar and thoracic spine were assessed at 0% WPI, even if the insurer's submissions in relation to those injuries were accepted, it would not alter the assessment in a material way: see SZSSC v Minister for Immigration and Border Protection [2014] FCA 863. As stated earlier in this judgment, it is therefore the assessment of Mr Warren's injuries to his right shoulder and cervical spine are relevant to this review.
2. In its submissions before the medical assessor in respect of those injuries, the insurer stated (Aff Mark Joseph Malley 21 Feb 2019, 367-8): "RIGHT SHOULDER 8. The insurer accepts that the claimant suffered an injury to his right shoulder. However, the insurer submits that the claimant has substantially recovered from his right shoulder injury. 9. The insurer relies upon the opinion of Dr Watson and his reports of 11 September 2015, 16 September 2016 and 20 January 2017 (A6, A7, A8, A9). In his report of 16 September 2016, Dr Watson observed that after the right arthroscopic procedure, subacromial decompression and biceps tendonesis, performed by Dr Minas Petrallis, the claimant had some residual limitation of movement in his right shoulder. However, Dr Watson noted that he had seen the claimant some four months after the operation, and opined that after a further six weeks the claimant would be in a position to return to his normal occupation. 10. Dr Watson was also of the view that the claimant's effort at assessment was suboptimal, and that the claimant had a better range of movement than what was demonstrated. He equated the claimant's right shoulder injury to 3% WPI. 11. Additionally, and in the alternative, NRMA notes that the claimant, since the subject accident, claimed injury to his right shoulder as a result of his further car accident of 24 November 2014 (A23 to A25). As such, NRMA submits that any ongoing injury, if any, is related or attributable to this further accident. … CERVICAL SPINE 15. The insurer submits that the claimant's cervical spine injury is primarily related to a motor vehicle accident in 1997, in which the claimant sustained a fracture to the cervical spine. Additionally, the insurer submits that the claimant's cervical spine injury was exacerbated by or alternatively caused by a further workplace accident on 21 May 2007. 16. The insurer relies upon the reports of Dr Watson. In Dr Watson's report of 11 September 2015 (A6), he observed that whilst there was some minor tenderness at C5/6, the claimant had "full flexion and full extension and lateral flexion to the left and right were normal." 17. Additionally, NRMA notes that the claimant's previous history of complaints regarding the neck and cervical spine as follows: (a) On 28 March 2010 the claimant presented to John Hunter Hospital reporting chronic neck and back pain (A15). (b) The claimant reported to his general practitioner ongoing pain at C3/4 since the fracture to the cervical spine as a result of the 1997 motor vehicle accident on 6 April 2010 (A16). (c) Dr Bodel, in his report of 20 October 2010 (A19), noted an MRI of the Cervical Spine and x-rays of the cervical and lumbar spines, both dated 1 November 2008, which revealed degenerative disc disease at C5/6 and C6/7. Dr Bodel also noted that the claimant reported ongoing pain and stiffness in his neck, and that the claimant was left with ongoing disability in the neck."
3. In his assessment, the medical assessor stated under "Introduction": "I have seen and consider the MAS application forms and supporting documents and the MAS reply forms and supporting documents."
4. The medical assessor also addressed the substance of the insurer's submissions in his assessment as follows: "Pre-Accident Medical History and Relevant Personal Details Mr Warren reported a number of previous motor vehicle accidents. He stated that the original one was more than 20 years ago and he could not remember exact details. The most significant one occurred in 2007 when 700kgs of load fell from a truck and struck him on the front area of his body. This was a crush injury. He sustained injuries to his neck, back, left shoulder and both knees. He came under the care of Dr Petrelis, an Orthopoedic Surgeon who carried out surgery on his left shoulder. Additionally, he reported having arthroscopies of both knees in approximately December 2007. His ongoing treatment continued for several years. He reported that after his treatment for those injuries he was approximately 75% better but never recovered completely. He was though able to return to physical activities. His claim for these injuries he believes was finalised in around 2010. … Summary of Relevant Documentation I noted the Personal Injury Claim Form dated 29.04.13. This was less than 2 weeks after the motor vehicle accident. The injuries listed included his right shoulder, neck, back and his left leg. There was no mention made of a discrete injury to either his left knee or right knee. … I noted the medicolegal report of Dr Watson dated 1.09.15, which assessed injuries to the cervical spine, lumbar spine and right shoulder causally related to the motor vehicle accident. He found no assessable impairment in the neck or back but gave 5% whole person impairment for the right shoulder. I note the further medicolegal report of Dr Watson dated 16.09.16. He now changed the right shoulder assessment from 5% to 3% whole person impairment due to improvement in range of movement."
5. The medical assessor also referred to the records of Dr McQualter, Associate Professor Kleiman, and Mr Warren's Personal Injury Claim Form as relevant to his assessment of the first accident.
6. Under "Conclusions", the medical assessor wrote: "I believe that from the documentation provided and also from the history I obtained from Mr Warren that he did sustain soft tissue injury to his cervical spine, thoracic spine, lumbar spine and also to his right shoulder. Whilst the right shoulder was not initially recorded in the clinical notes of Dr McQualter it was reported in the Personal Injury Claim Form, which was only about 2 weeks after the motor accident."
7. The failure of a decision maker to respond to a substantial and clearly-articulated argument is a failure to accord procedural fairness and a jurisdictional error: see De Gelder at [89]-[94]; Cervantes; Dranichnikov as referred to earlier in this judgment. The content of the requirement to accord procedural fairness will depend upon the facts and circumstances of a particular case: see De Gelder at [93]; Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 at [28].
8. Counsel for Mr Warren submitted that what is required of a medical assessor is informed by the objects of the MAC Act, which is not a scheme "intended to be a paradigm of detailed reasoning processes" (T 27.27-28). It envisions instead a context in which there is no formal hearing, and an independent doctor makes an assessment informed by the available material and his or her own expertise and experience.
9. I accept that what constitutes sufficient reasons for the medical assessor differs from the standard required of a court: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64 ("Wingfoot") at [54]-[56]. I will address the sufficiency of medical assessor's reasons in more detail when I turn to the next two grounds of appeal. However, I also bear that standard in mind under this ground of appeal when I consider his obligation to address the parties' substantial and clearly articulated arguments.
10. In relation to the shoulder injury, the medical assessor noted the reports of Dr Watson. It was open to the medical assessor to disagree with earlier assessments and reports, and it is my view that with an eye not finely tuned for error, he may be understood to have done so by referring to such earlier reports and then reaching his own assessment of 5% WPI. As such, I am not satisfied that his assessment fails to respond to the insurer's argument that the right shoulder injury had healed by the time of the second accident.
11. I now turn to the insurer's submissions in relation to cervical spine. The medical assessor referred to Mr Warren's oral history of his prior accidents, including those which injured his neck. None of the documents which the medical assessor included under "Relevant Documentation" in his report pre-dated the 2013 accident. Instead, he noted the reports of Drs Watson, McQualter and Associate Professor Kleiman. Counsel for Mr Warren conceded that the medical assessor did not specifically refer to the report of Dr Bodel. However, he argued that as the report was attached to the MAS application form, the medical assessor's statement that he reached his conclusion "from the documentation provided" leads to the implication that Dr Bodel's report formed part of the evidence which he considered in making his decision (T 33.46-48).
12. The question for this Court is whether or not the assessor's reference to "the documentation provided" constitutes a response to the insurer's argument that Mr Warren's cervical spine injury, at least in part, pre-dated the subject accident. It is my view that it does not. Although the medical assessor's reasons refer to the reports of Mr Warren's treating practitioners after the accident, the medical assessor has failed to engage with the arguments advanced by the insurer that Mr Warren had a documented history of prior injury to the cervical spine. This was a substantial argument based upon evidence and was material the assessor's determination. This failure to respond is a failure to accord procedural fairness and constitutes a constructive failure to exercise jurisdiction and an error of law.

Grounds 2(b) and (c) - Failure to set out lawful reasons

The insurer's submissions

1. The insurer submitted that the medical assessor was obliged to set out lawful reasons for his decision pursuant to s 61(9) of the MAC Act and the Medical Assessment Guidelines.
2. In Wingfoot, the High Court considered a similar statutory regime which provided for medical panels to assess Victorian workers compensation claims. In relation to the duty of a medical panel to give reasons for its decision, the Court stated at [55]: "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, the 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."
3. Wingfoot has been repeatedly applied in New South Wales in relation to both medical assessors and claims assessors under the New South Wales scheme in the MAC Act: see Frost v Kourouche (2014) 86 NSWLR 214 at [2], [40]; Zahed v JAG Limited t/as NRMA Insurance (2016) 75 MVR 1 at [34].
4. In making its decision, the medical assessor in these proceedings was bound to set out his actual path of reasoning and to do so in terms sufficiently clear so as to enable a reader to determine whether or not he fell into legal error pursuant to s 61(9) of the MAC Act. The insurer submitted that the medical assessor failed to do this.
5. The medical assessor failed to set out lawful reasons for his findings on causation in respect of the first accident, and/or reasons as to why he determined that pre-existing impairment was "not applicable." These were statutory tasks that the medical assessor was required to consider pursuant to s 58(1)(d) of the MAC Act, as well as under the Permanent Impairment Guidelines, and he was required to give reasons for his decision on those matters.
6. Furthermore, the insurer argued that the medical assessor's duty to give reasons for his decision on those matters was heightened because the insurer had raised those specific areas of contention in its submissions.
7. In Allianz Australia Insurance Limited v Francica (2012) 63 MVR 1, Hall J stated at [17]-[18]: "17 ... The decision of the Court of Appeal in Campbell City Council v Vegan (2006) NSWCA 284 is the leading authority in relation to the principles that apply to a case such as the present. His Honour, Basten JA, with whom the other members of court agreed, at paragraph 121 stated that: 'Where it is necessary for the panel to make findings of 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 and 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 for its preference of one conclusion over another. That aspect may have particular significance in circumstances where the medical members of the 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.' 18 In determining the adequacy of reasons, which is the focus in Vegan, it is important to determine what was the issue; in other words, what was the precise battle ground between the parties before the determining tribunal. In the decision of Alchin v Daley (2009) NSWCA 418, Sackville AJA, with whom McCall JA and Young JA agreed, stated: 'The extent and content of the reasons will depend on the particular case and the issues under consideration but it is essential to expose the reasoning on the point critical to the contest between the parties. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute.'"
8. The insurer argued that medical assessor's reasons fell below the required legal standard, and as such, his decision is invalid.

Mr Warren's submissions

1. Mr Warren submitted that in the circumstances of this matter, the medical assessor's reasons are adequate and there is no error of law on the face of the record: see Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 ("Vegan") at [130] per Basten JA and Wingfoot at [28], [55].
2. Mr Warren argued that the medical assessor's process of reasoning met the criteria set out by the High Court in Wingfoot at [55]. The criteria outlined in Wingfoot are consistent with Vegan and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. These cases indicate that reasons in the present context need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment, at least where the medical science involved is not controversial, as in this case.
3. The medical assessor's reasons indicate that he was of the opinion that Mr Warren had been injured in 2007 but that he was "able to return to physical activities"; that at the time of the 2013 motor accident, Mr Warren was gainfully employed and after that accident experienced a number of symptoms; that Mr Warren has had certain treatment primarily in respect of the right shoulder, but that Mr Warren has had no investigations and minimal treatment of "his cervical spine, thoracic spine or lumbar spine and no treatment for either knee"; that he undertook a clinical examination of Mr Warren; that he had reviewed the material he had been provided; that on the basis of all of those matters he had formed views as to what impact the separate accidents had; and that he had assessed Mr Warren's permanent WPI at 11%.
4. Mr Warren argued that the mere fact that he had previously suffered injuries some years prior does not necessarily entail a conclusion that the impairments observed by the medical assessor were contributed to by them. The task with which the medical assessor was charged did not necessarily require that he traverse every medical report in respect of Mr Warren. If he considered, in the exercise of his professional skill, experience and clinical study that these matters were not relevant, then it was open to him to conclude that this was the appropriate approach to the pre-existing injury issue.
5. Moreover, the power exercised by the medical assessor under ss 58(1)(d) and 61(1) of the MAC Act was one which required a decision concerning whether Mr Warren's degree of permanent impairment was a result of "the injury caused by the motor accident". The reasons of the medical assessor, as contained in the certificate, reveal the path of reasoning by which he arrived at the decision to determine that Mr Warren's degree of impairment was 11% and thus no relevant error has been demonstrated.
6. Mr Warren submitted that this Court should be slow to conclude that an error in medical reasoning has occurred where the decision maker was a medical practitioner: see Telstra Corporation Limited v Warren [1997] FCA 102 per Tamberlin J. Such practitioners are entitled to bring their own medical expertise to bear upon the relevant issue: see Wingfoot at [47].
7. Furthermore, when considering the reasons of a decision maker like a medical assessor, it must be borne in mind that "the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 ("Wu Shan Liang") at 272. As such, Mr Warren submitted that the extent to which a medical assessor considered the significance of Mr Warren's injury history when assessing his WPI should be examined liberally.

Consideration

1. Section 61(9) of the MAC Act requires a medical assessor to provide reasons for any finding in his or her certificate. The standard by which those reasons are considered to have discharged the assessor's obligations is set out in Wingfoot at [55]. It is uncontroversial between the parties that the law required the medical assessor to set out the actual path of reasoning so as to enable a reader to determine whether he fell into error.
2. Counsel for Mr Warren submitted that when read as a whole and fairly, the medical assessor's reasons reveal his path of reasoning. Under the heading "History of Symptoms and Treatment Following the Motor Accident of 13 April 2013", the medical assessor wrote, "On questioning he reported that he has had minimal treatment for his cervical spine, thoracic spine or lumbar spine and no treatment at all for either knee. He also reported that he has had no investigations of any of these areas." Counsel for Mr Warren submitted that by including this statement, the medical assessor impliedly preferred Mr Warren's evidence that he had had no previous investigations into his cervical spine contrary to the insurer's submissions and medico-legal evidence. Counsel for Mr Warren argued that it was consistent with the medical assessor's statutory duty to form his own views in such a way.
3. In addition to excluding any reference to pre-accident medical reports, under the heading "Pre-Existing Impairment", the medical assessor wrote only "not applicable". Counsel for the insurer called the determination "incredible" in light of its submissions to the medical assessor (T 17.23). When asked about the sufficiency of the medical assessor's determination, counsel for Mr Warren cautioned against considering it in isolation. He argued that when understood in the context of the entire report, the words "not applicable" are a statement that the insurer's evidence has been disagreed with, not disregarded. The medical assessor was under no obligation to detail why he disagreed with other medical opinions: see Wingfoot at [47].
4. As stated earlier, I accept that the standard to which a medical assessor's reasons are to be held is not as onerous as that required of a Court. The assessment is not to be read with eyes "seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": see Martin at [16]; Wu Shan Liang at 271-2. However, although I agree with counsel for Mr Warren that the medical assessor was certainly not required to individually refer to all 500 pages of documents before him, his reasons fail to address any of the medical evidence of Mr Warren's prior injuries to his neck, recording simply Mr Warren's own recollection that he had not undergone such investigations. The medical assessor's reasons read exactly as they would if he had never seen the pre-accident medical evidence and the insurer's submissions which contradict Mr Warren's oral history. As such, although it is possible that the medical assessor simply favoured the evidence of Mr Warren, his reasons fail to reveal whether the absence of the insurer's evidence was a preference or an omission. In other words, his reasons do not enable this Court to see whether his opinion involved an error of law, as required: see Wingfoot at [55]. For these reasons, it is my view that this failure to respond is a failure to accord procedural fairness and it constitutes a constructive failure to exercise jurisdiction and an error of law.

Ground 2(d) - Incorrect application/failure to apply the Permanent Impairment Guidelines - cl 1.31

The insurer's submissions

1. Clause 1.31 of the Permanent Impairment Guidelines provides: "The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored."
2. The insurer submitted that given it had presented some objective evidence of pre-existing impairment, referred to in its submissions and annexed to its MAS 2A application, the medical assessor was obliged to at least consider cl 1.31 and the issue of pre-existing impairment.
3. The insurer argued that the requirement for the medical assessor to consider and apply cl 1.31 was heightened in circumstances where he took a history from Mr Warren and had been told that his pre-accident injuries had never completely resolved prior to the accident. The medical assessor stated: "He reported that after his treatment for his injuries he was approximately 75% better but never recovered completely."
4. The insurer argued that this history taken from Mr Warren gives rise to the inference that the objective evidence of impairment from several years before the accident might have in fact continued right up to the time of the accident, and at the very least this triggered the obligation to consider and apply cl 1.31.
5. The medical assessor failed to consider the issue of pre-existing impairment, and failed to have regard to or apply cl 1.31. In doing so, he failed to consider whether cl 1.31 ought to result in a reduction for pre-existing impairment.
6. Further, the insurer argued that the medical assessor failed to give adequate or lawful reasons as to the issue of pre-existing impairment and/or his consideration of cl 1.31. The insurer argued that the medical assessor's reasons were insufficient according to the legal standard set out in Vegan and Wingfoot extracted earlier in this judgment.

Mr Warren's submissions

1. Mr Warren submitted that grounds 3(d)-(e) are interrelated with ground 3(c) in that the alleged errors are said to lie in the failure of the medical assessor to expressly deal with, first, cls 1.31 and 1.41 and, secondly, Mr Warren's previous accidents and any impact they may have had on the clinical examination on which the medical assessor's conclusions were largely predicated.
2. To the extent that it is said that the medical assessor incorrectly applied cl 1.31, Mr Warren submitted that the clause does not provide what the insurer argues.
3. In Taylor v The Owners - Strata Plan 11564 (2014) 253 CLR 531, Gageler and Keane JJ stated at [65]-[66]: "[65] Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always'. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. [66] Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies."
4. Mr Warren submitted that cl 1.31, read plainly and in the context of the surrounding clauses under the "Pre-existing impairment" heading, is intended to highlight for medical assessors that where there is some objective evidence, such as a doctor's clinical note, showing that around (and necessarily prior) to the date of the subject motor accident there was some symptomatic injury or impairment in the same area of the body as the subject injury, then the medical assessor must try to calculate the pre-existing injury's effects and bring them to account in determining WPI. As cl 1.32 makes clear, this can be impacted by the available information about the pre-existing condition, and this is important in contextualising how cl 1.31 should be understood. The final sentence of cl 1.31 is entirely consistent with such a reading, in that it is the absence of objective evidence which should lead to the impact of the pre-existing injury being ignored in the assessment process. Mr Warren noted that the word "should" is importantly not "shall" or "must", suggesting that the issue remains a matter for the medical assessor's discretion having regard to their expertise and clinical skill.

Consideration

1. Clause 1.31 of the Permanent Impairment Guidelines states that if there is "objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident", the medical assessor must calculate its WPI value and subtract it from the current WPI value. As the recent case of IAG Limited t/as NRMA Insurance v Chahoud [2019] NSWSC 767 ("Chahoud") makes clear, cl 1.31 does not require the evidence of injury to be dated at the time of the accident. Instead, the clause requires that there be evidence that the injury existed at the time of the accident ([70]-[74]). In Chahoud, the proper officer was found to have erred by incorrectly focusing on the timing of the medical record, as distinct from the injury.
2. Counsel for Mr Warren argued that the language of cl 1.31 is discretionary, and that it was open to the medical assessor to determine that certain evidence was not convincing and should be ignored. Mr Warren again submitted that although the medical assessor never wrote a sentence to that effect in his reasons, his failure to refer to the insurer's evidence should be understood to be a deliberate exercise of that discretion.
3. Counsel for Mr Warren further noted that these proceedings can be distinguished from Chahoud, where the proper officer was concerned with a medical report dated only four months prior to the subject accident. By contrast, Dr Bodel's report in these proceedings was dated three years before the subject accident.
4. It was open to the medical assessor not to accept certain matters, and not to specify why he did not consider a matter to be relevant to the evaluation of impairment: see Dunbar v Allianz Insurance Limited [2015] NSWSC 119 at [78]. Clause 1.31 of the Permanent Impairment Guidelines itself envisions that where there is "no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored." However, as Chahoud makes clear, where there is objective evidence that the injury existed at the time of the accident, it must be assessed and its WPI value subtracted from the injury total.
5. Unlike Chahoud, this is not a case where the medical assessor's reasons clearly demonstrate that he misinterpreted the application of cl 1.31 of the Permanent Impairment Guidelines by focusing on the reports of injury rather than the presence of injury. This is not necessarily because the medical assessor properly applied cl 1.31, but because he failed to make any reference to the clause or its directive. As in relation to the previous three grounds, the medical assessor's written reasons do not reveal the path of reasoning by which he arrived at his determination in relation to the presence of pre-existing injury. In light of the evidence before him of pre-existing injury, and Mr Warren's own oral history in which he claims to have only recovered 75% after those injuries, the absence of any explanation as to why there is not considered to be evidence of pre-existing injury at the date of the accident does not meet the standard of reasons outlined in Wingfoot at [55]. Therefore although it is not clear that he failed to apply cl 1.31 of the Guidelines, it is my view that his reasons in relation to its application are insufficient and constitute a denial of procedural fairness, constructive failure to exercise jurisdiction and an error on the face of the record.

Ground 2(e) - Failure to apply the Permanent Impairment Guidelines - cl 1.41

The insurer's submissions

1. Clause 1.41 of the Permanent Impairment Guidelines states: "Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness."
2. In its submissions before the medical assessor, the insurer relied on a number of reports of Dr Watson. In his report dated 11 September 2015, Dr Watson had noted that Mr Warren's examination revealed 0% WPI for the cervical spine and 5% for the right shoulder. In another report, on 16 September 2016, Dr Watson re-assessed the right shoulder at 3% WPI. On both occasions, Dr Watson was of the view that Mr Warren's effort was sub­optimal.
3. Despite this history, the medical assessor seemed to base his calculation of WPI on the findings that he recorded on examination.
4. The insurer argued that cl 1.41 of the Permanent Impairment Guidelines required the assessor to put the inconsistent findings in Dr Watson's report to Mr Warren. In Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 ("Dominice"), Simpson JA stated at [61]: "Clause 1.43 offers a guard against the drawing, unfairly, of conclusions about inconsistencies detected in a claimant's presentation. It can also, as in the present case, act as a guard against conclusions that may be unfairly drawn in favour of a claimant, against the interests of an insurer, where the conclusions (as here) are unsupported by medical records or history. In order to make a proper assessment, Dr Ashwell needed to investigate the discrepancies between Ms Dominice's presentation to Dr Kenna 10 months earlier and her presentation to him, as well as the inconsistencies he noted in her presentation to him. It was the drawing of the conclusion, in the face of inconsistent medical records and without exploration or explanation, that caused the proper officer to have the requisite satisfaction that there was reasonable cause to suspect that Dr Ashwell's assessment was incorrect in a material respect..."
5. I note that cl 1.43 of the Guidelines as they applied in Dominice is now cl 1.41 of the Permanent Impairment Guidelines in these proceedings.
6. The insurer argued that in conducting his assessment, the assessor failed to consider and/or apply cl 1.41. The medical assessor failed to bring to Mr Warren's attention the inconsistencies between the medical assessor's own findings and the findings in the reports of Dr Watson, and he failed to give Mr Warren an opportunity to comment on those inconsistencies. In failing to comply with cl 1.41, the medical assessor failed to afford procedural fairness to the parties.
7. As stated in Aala, any denial of procedural fairness is a serious matter. The plaintiff argued that as a result of the denials of procedural fairness here, the decision is invalid should be quashed.

Mr Warren's submissions

1. Mr Warren relied on his submissions outlined above in relation to ground 2(d), adding that to construe cl 1.41 as requiring that any inconsistency, however minor, that exists between the clinical observations and the medical records must be put to an injured person at the time of the assessment would create an incredible burden. This is especially true in the context of an application, such as the present, which contained over 500 pages. To so construe the obligation on a medical assessor, having regard to the nature of the decision-making framework and to the statutory objects in s 5(1) of the MAC Act, would be to undermine the purpose of the Permanent Impairment Guidelines and the entire assessment scheme.

Consideration

1. The medical assessor at page 7 of his certificate stated: "I did note some mild inconsistencies in the way he carried out range of movement. He stated that he was unable to move either his thoracic spine or lumbar spine correctly unless his legs were wide apart. There is no organic reason for this particular problem. I do believe though that the range of movement I obtained in all joints was eventually the best that he could do."
2. The medical assessor stated that he believed that the range of movement Mr Warren obtained in all joints was the best he could do. It was the medical assessor's determination that his measurements of Mr Warren's presentation were a reliable indication of his abilities at the date of the assessment.
3. The insurer submitted that the inconsistencies between Dr Watson's earlier reports should have been put to Mr Warren in light of his different presentation at the date of the assessment. In one of those reports, Dr Watson had noted that Mr Warren's examination revealed 0% WPI for the cervical spine and 5% for the right shoulder. In another report a year later, Dr Watson re-assessed the right shoulder at 3% WPI. It was Dr Watson's belief that Mr Warren had made a sub-optimal effort in both assessments.
4. However, this is not a situation as in Dominice where the medical assessor reached a decision "in the face of inconsistent medical records and without exploration or explanation" or where his conclusions were "unsupported by medical records or history" [61]. It is conceivable, and even expected, that a claimant might present to a medical assessor with a variation in range of movement from the presentation months or, as in this case, years earlier. In my view, read as a whole and fairly, it can be implied from the medical assessor's reasons that he did not believe there was an inconsistency in the severity of Mr Warren's injuries which was not explicable, such that it needed to be brought to Mr Warren's attention. This ground of review fails.

The result

1. The result is that the medical assessor has constructively failed to exercise jurisdiction and made errors of law as it relates to findings on whole person impairment arising from the accident on 13 April 2013 ("the NRMA accident"). In the exercise of my discretion, the medical assessor's decision as it relates to the findings on whole person impairment arising from the accident on should be quashed and the proceedings remitted to SIRA to be determined in according to law.
2. The decision of the medical assessor dated 20 July 2018 as it relates to findings on whole person impairment arising from the accident on 28 November 2014 ("the Allianz accident") was not challenged in these proceedings and is unaffected by the reasons, judgment or order in these proceedings.
3. As I have quashed the medical assessor's decision, as it relates to findings on whole person impairment arising from the NRMA accident, is not necessary to consider the grounds of judicial review in relation to the proper officer. Although the plaintiff has sought that this matter be reallocated to another medical assessment officer, it is my view that this decision is one for SIRA.

Costs

1. Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs on an ordinary basis.

The Court declares that: (1) The decision of the medical assessor dated 20 July 2018 in matter number 2017/02/2760 as it relates to findings on whole person impairment arising from the accident on 13 April 2013 ("the NRMA accident") is vitiated by jurisdictional error.

The Court makes an order: (2) In the nature of certiorari removing into the Court the decision of the medical assessor dated 20 July 2018 in matter number 2017/02/2760 as it relates to findings on whole person impairment arising from the accident on 13 April 2013 ("the NRMA accident") and quashing that decision.

The Court further orders that: (3) Matter number 2017/02/2760 as it relates to findings on whole person impairment arising from the accident on 13 April 2013 ("the NRMA accident") is remitted to the State Insurance Regulatory Authority to be determined according to law. (4) The decision of the medical assessor dated 20 July 2018 as it relates to findings on whole person impairment arising from the accident on 28 November 2014 ("the Allianz accident") was not challenged in these proceedings and is unaffected by the reasons, judgment or order in these proceedings. (5) The first defendant is to pay the plaintiff's costs on an ordinary basis.

Amendments 18 September 2019 - Orders on cover sheet and page 39 of judgment varied by consent of the parties 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: 18 September 2019