Insurance Australia Ltd t/as NRMA Insurance v Atkins

Supreme Court of NSW|2019-11-29|Before: Wright J

Solicitors: Hall & Wilcox Lawyers (Plaintiff) Gerard Malouf & Partners (First Defendant) Crown Solicitor for NSW (Second, Third and Fourth Defendants) File Number(s): 2019/199227

Judicial review application

On 27 June 2019, NRMA filed a summons, invoking the supervisory jurisdiction of this Court, confirmed by s 69 of the Supreme Court Act 1970 (NSW), seeking to have the medical assessor's and the proper officer's decisions set aside. An amended summons was filed on 11 July 2019 in which the orders sought were relevantly as follows: "1. An order in the nature of certiorari, or alternatively a declaration, setting aside or declaring invalid the Certificate of the Third Defendant [Dr Truskett] dated 4 January 2019 issued under Part 3.4 of the Motor Accidents Compensation Act 1999. 2. An order in the nature of certiorari, or alternatively a declaration, setting aside or declaring invalid the decision of the Fourth Defendant [Mr Lum] made 8 April 2019 dismissing the [NRMA's] application under s.63 of the Motor Accidents Compensation Act 1999 for review by a Review Panel of [Dr Truskett's] Certificate. 3. An order that the matter be remitted to the Second Defendant [SIRA] for allocation of the impairment dispute to a different medical assessor, or alternatively, for allocation of [NRMA's] application for review of [Dr Truscott's] Certificate to a different Proper Officer, for determination according to law. 4. An order that the first Defendant [Mr Atkins] pay [NRMA's] costs of these proceedings. 5. An order under r.59.10(2) of the Uniform Civil Procedure Rules 2005 that the time for commencing these proceedings against [Dr Truskett] be extended to the date of filing of this Summons."
All defendants other than Mr Atkins entered submitting appearances.
Mr Atkins did not oppose the Court extending the time for commencement of the proceedings in respect of Dr Truskett's certificate and it is, in my view, appropriate to do so in the circumstances.
In order to consider the application for judicial review of the two decisions, it is necessary to understand the circumstances and material relating to Dr Truskett's assessment and Mr Lum's refusal of the review application.

Dr Truskett's Assessment

On 18 September 2018, Mr Atkins lodged an application for assessment of a permanent impairment dispute. In section 6 of the application form, the "injuries information" section, he listed, among others: 1. an injury to the right shoulder: "biceps tendonopathy, supraspinatus tear"; and 2. an injury to the thoracic spine: "T12 compression fracture".
The aspect of each injury in dispute was said to be "degree of impairment". Although "causation" was given as another example of an aspect of the injury in dispute that might be included in the form, it was not selected in the case of any of the injuries.
Mr Atkins's supporting documentation included: 1. the discharge summary from Nepean Hospital dated 18 July 2017 in relation to Mr Atkins's admission on the date of the accident, 17 July 2017; and 2. clinical notes from Astley Medical Centre.
On 22 October 2018, NRMA provided its reply to the application. In that reply, NRMA checked the box indicating that the information given by Mr Atkins in section 6 of his application was correct. NRMA did not provide any additional documentation.
The discharge summary from Nepean Hospital dated 18 July 2017 was a somewhat repetitive 10 page document that contained, among other things, pathology results and medical imaging, or radiological, results. After stating formal matters, the summary commenced with the following: "Presenting Complaint Dear Doctor, Thank you for your ongoing management of John ATKINS, a man who was hit by a car and came off his motorbike. He sustained injuries to his rotator cuff, had a thoracic spine fracture and rib fractures. The management plans for these are in the next section. He was cleared for discharge on 18/07/2017 and was discharge with analgesia. He has multiple follow up appointments as follows."
On both the first page and the last page of the discharge summary, under the heading "PLAN", it was stated: "… THORACIC SPINE FRACTURE Repeat CT thoracic spine prior to neurosurgical follow up - referral has been provided. Follow up in neurosurgical clinic in 3 months time. ROTATOR CUFF INJURY Will need MRI shoulder - have provided referral for this. Is to see Dr Gupter in rooms after discharge with MRI."
Under the heading "Background History", the following appeared in the discharge summary: "… allegedly driving around 30 km/h through a round about car came from left side about 20 km/h pt got hit on left side, pt flung off the bike onto right side pt fell on right shoulder first, right side of helmet hit ground was helped by bystanders onto his feet, moved to curb complained of pain in right shoulder, ribs, clavicle, neck no loc, has minor scratches on helmet no retrograde/anterograde amnesia … CT reported - … T12 anterior wedge fracture indeterminate age. Patient does not recall any prior significant trauma to back/t-spine. …"
Under the heading "Clinical Summary", the discharge summary included: "TRAUMA Identified injuries which were managed as follows - rib fractures, thoracic spine fracture, rotator cuff injury. … THORACIC SPINE FRACTURE Imaging reviewed by neurosurgery. Minor T12 compression fracture identified.. Nil focal neurological deficits. Repeat CT thoracic spine - referral has been provided. Follow up in neurosurgical clinic in 3 months time. … ROTATOR CUFF INJURY Consulted orthopaedics given mechanism of injury and findings on x-ray. X-Ray: ACJ shows degenerative changes consistent with osteoarthritis. CC interval normal. Nil other fracture/dislocation identified. Reviewed by orthopaedics. Will need MRI shoulder-have provided referral for this. Is to see Dr Gupta in rooms after discharge with MRI…".
Under the heading "Medical Imaging Results" it was recorded [1] that a CT scan of the abdomen and pelvis was performed on 17 July 2017 and under the heading "Abdomen and pelvis" the discharge summary relevantly included the following: "There is anterior wedging of the T12 vertebra consistent with a fracture of indeterminate age - appears old .//. Degenerative changes of the spine are also noted in this region. /… Conclusion: … There is anterior wedging of the T12 vertebra suggestive of a fracture of indeterminate age - appears old .. "
NRMA drew particular attention to the references to the fracture being of "indeterminate age - appears old".
The Astley Medical Centre clinical notes before Dr Truskett included, relevantly, a report by Dr Shaun Quigley, a radiologist, dated 3 October 2017, to a doctor at the medical centre concerning a CT scan of Mr Atkins thoracic spine carried out on 3 October 2017. This appears to be the repeat CT scan of the thoracic spine prior to neurosurgical follow up recommended in the discharge summary from Nepean Hospital. The report was as follows: "CT THORACIC SPINE History: Previous T12 fracture ? Progress No previous images available for comparison Findings: The compression fracture at T12 is noted with approximately 25% loss of height and resultant thoracolumbar kyphosis Vertebral bodies above and below are intact as are the respective intervertebral discs There is no retropulsion of fragments demonstrated Normal vertebral body height is otherwise maintained Normal alignment of the facet joints There is no significant facet joint arthropathy No other bone abnormality is identified. The image lungs are normal. Conclusion: T12 a wedge compression fracture with approximately 25% loss of height and resultant thoracolumbar kyphosis."
Mr Atkins was examined by Dr Truskett on 21 December 2018. In his reasons for decision which formed part of the assessor's certificate, Dr Truskett recorded the following background information, under the heading "History of Symptoms and Treatment Following the Motor Accident": "Mr Atkins was assessed at Nepean Hospital. He was advised he had a significant injury to his right shoulder and had some fractures of the second and third ribs on the right side. He was advised he would need treatment for his right shoulder and was discharged the following day. … However, after one-and-a half weeks or so, Mr Atkins' right shoulder became so acutely painful he attended Nepean Hospital and was admitted under the care of Dr Gupta on 26 July 2017. The following day, Dr Gupta performed a repair arthroscopically of his right rotator cuff and he was discharged the following day with his right arm in a sling. He subsequently had physiotherapy performed at Penrith following removal of the sling after approximately one month. He still attends for physiotherapy to his shoulder approximately once per month and has apparently two more physiotherapy sessions to go. It was also followed up by a cardiac surgeon in relation to his fractured ribs. He also attended the Nepean clinic in relation to his T12 vertebral body fracture. He was advised no further treatment would be required. …".
The certificate also recorded that, on clinical examination, the assessor did not find any abnormality in relation to Mr Atkins's neck or back. There was, however, reduction of right shoulder movement (as recorded in the table on page 5 of the assessor's reasons for decision).
The documentation referred to in Dr Truskett's certificate included: 1. Dr Quigley's CT imaging of the thoracic spine, which was the subject of his report referred to above; and 2. the discharge summary from Nepean Hospital, about which the assessor said in his reasons for decision: "Management is described and is in keeping with this summary. A CT scan demonstrated fracture of the right posterior second and third ribs, to be followed by Dr Flynn, cardiothoracic surgeon. The T12 compression fracture was also noted of the vertebral body. His shoulder injury was to be followed by Dr Gupta."
On 4 January 2019, Dr Truskett issued his certificate which included the conclusion that: "The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%: Cervical spine - soft tissue injury. Thoracic spine - T12 compression fracture. Right shoulder - biceps tendon injury and supraspinatus tear. Right ribs - fracture of third and fourth ribs posteriorly."
Of those injuries, however, only those to the thoracic spine and the right shoulder were found to have led to any degree of current whole person impairment (WPI) as follows: 1. thoracic spine - 5%; 2. right shoulder - 8%, making a total WPI of 13%.
Dr Truskett's reasons for decision concerning causation of the injuries were as follows: "6. Conclusions Diagnosis and Causation Mr Atkins was involved in a motor vehicle accident on 17 July 2017 as described. As a result of that accident, he sustained soft tissue injuries to the neck, a compression T12 fracture, supraspinatus tear and biceps injury of his right shoulder, and fractured right third and fourth ribs. This is all in keeping with the description and documentation provided. …".
There was essentially no other reasoning dealing with causation in Dr Truskett's statement of reasons that formed part of his certificate.
After summarising the relevant degrees of permanent impairment found by him, Dr Truskett said the following under the heading "Comments": "… Thoracic Spine - Reason for Assessment: A 5% Whole Person Impairment has been assigned as there is a 20% reduction of the vertebral body of T12. The advised methodology according to paragraph 1.148, page 34 of the Motor Accidents Authority Whole Person Impairment Assessment is that the height of vertebra above and below the compressed of vertebra is measured. These are added and halved to define the average height of a vertebra. The fractional reduction of the affected vertebra is then calculated. It is preferred that this be performed with a lateral X-ray of the spinal region with beam parallel to the disk space but such imaging has not been provided. It then states that a CT scan can be used but cautions that this may cause inaccuracy. By this process the height of T11 and L1 vertebral body was calculated as 5 mm. The minimal height of T12 was 4 mm, which equates to a 20% reduction of body height of T12. Right shoulder Reason for Assessment: An 8% Whole Person Impairment has been assigned as according to the quoted Pie charts, he has a 13% impairment of his right upper limb. When Table 3, Page 29 is consulted, this equates to an 8% Whole Person Impairment. …"
NRMA was not satisfied with Dr Truskett's determination in his 4 January 2019 certificate.

Refusal of review application

On 24 January 2019, NRMA applied to the proper officer of SIRA to refer the medical assessment by Dr Truskett to a review panel of medical assessors for review, under s 63(1) of the of the MAC Act.
In its submissions dated 23 January 2019, NRMA identified the following grounds of review: "i) The Assessor erred in the methodology assessing the right shoulder impairment ii) Of the Assessor failed to consider causation of the thoracic spine injury as per 1.5 of the Guidelines iii) The Assessor failed to consider all medical evidence supplied and adequately address causation in line with Alianz Australia V Francic [2012] iv) The Assessor failed to provide proper reasons as to his determination or show a clear path of reasoning".
NRMA also submitted that the error was material to the outcome.
In particular, as to the right shoulder impairment, NRMA submitted that a review of the measurements relating to the right shoulder found in the table on page 5 of the Assessor's reasons for decision together with the finding of 8% WPI indicated that the Assessor rounded the internal and external rotation measured to be 45° down to 40° rather than rounding them up to 50°, despite the methodology described "in page 42 of the Guides, Guidance Note 12, and AS2706:2003 Australian Standard: Numerical values - Rounding and interpretation of limiting values." This was contended to be an error of methodology. Further it was said that the Assessor did not provide reasons for his decision in this regard.
As to the thoracic spine, it was submitted that the CT scan conducted on the day of the accident showed that the anterior wedging of the T12 vertebra was consistent with a fracture "of indeterminate age" and "appear[ed] old". It was also noted that there was no mention of swelling in relation to the CT scan taken on the day of the accident. NRMA contended that the assessor had failed to consider appropriately all the available medical evidence before him at the time of the assessment and failed to comply with part 1.5 of the Guideline in that there was a failure to determine "whether the injured person's impairment is related to the accident in question". In addition, it was submitted that the assessor's reasons in this regard were not adequate nor had he provided a clear path of reasoning for his determination on the causation of the thoracic spine compression fracture.
On these bases, NRMA contended that the medical assessment was incorrect in a material aspect and should therefore be referred for a review.
Mr Atkins submitted, in relation to the right shoulder impairment, that any different rounding would merely decrease the total whole person impairment by 1% and the assessor's assessment would still be greater than 10% WPI overall. As to the thoracic spine, Mr Atkins submitted that Dr Truskett did take into account all the relevant documentation, including the CT scan, taken on 3 October 2017 by Dr Quigley, the discharge summary and did refer to the compression fracture being sustained following the motorbike accident, and that it would be sufficient if the accident were a contributing cause which was more than negligible.
On 8 April 2019, Mr Lum, the proper officer, determined that he was not satisfied "there is reasonable cause to suspect that the medical assessment is incorrect in a material respect. Accordingly, the review application is dismissed." He also provided reasons for his decision.
As to the right shoulder, Mr Lum noted that although the assessor had rounded down to the nearest 10% giving a higher impairment with respect to internal rotation motion of the right shoulder, there was nothing in the Act or Guidelines that required the assessor to round up rather than round down. Neither was there anything that required the assessor to apply the Australian Standard for rounding numerical values. Thus, he said, that he was not satisfied that there was reasonable cause to suspect any material error in this regard.
As to the thoracic spine, Mr Lum acknowledged that there were comments in the discharge summary that the fracture of T12 was "consistent with a fracture of indeterminate age - appears old". However, he noted that Dr Quigley's report of 3 October 2017 did not state that the fracture was old or pre-existed the motor accident. The comments in the discharge summary were not, in Mr Lum's view, "a definitive finding that the fracture pre-existed the motor accident" and, where a follow-up CT was recommended: "with that CT scan giving no indication of the fracture and compression pre-existing the motor accident, I'm not satisfied of reasonable cause to suspect the Assessor's causation finding is incorrect in a material respect."
NRMA now seeks to have both the assessor's certificate and Mr Lum's decision set aside on the basis of jurisdictional error and/or error of law on the face of the record as identified in the amended summons.

Relevant provisions and principles

It is appropriate, at this point, to review relevant statutory provisions governing the medical assessment of injuries under the MAC Act in cases such as the present.
The objects of the MAC Act are set out in s 5(1), and the following paragraphs can be seen as potentially relevant in this case: "(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, … (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities, … (g) to deter fraud in connection with compulsory third-party insurance."
Section 6(1) of the MAC Act requires the Court, when interpreting a provision of the Act, to prefer a construction that would promote the objects of the Act rather than one that would not do so. Similarly, under s 6(2), any person exercising a discretion conferred by a provision of the Act must do so in a way that would best promote the objects of the Act or of the provision concerned.
Consistently with the object in s 5(1)(e), s 131 of the MAC Act provides that no damages for non-economic loss are to be awarded unless the degree of permanent impairment of the injured person as a result of the motor accident is greater than 10%. Section 132 provides that if there is a dispute about whether the degree of permanent impairment exceeds the 10% threshold, a court may not award any such damages unless the degree of impairment has been assessed by a medical assessor under Pt 3.4 of the MAC Act.
The method of assessing the degree of impairment is governed by s 133 of the MAC Act. That section requires that the degree of permanent impairment is to be expressed as a percentage and is to be assessed, in a case such as the present, in accordance with the Motor Accidents Medical Guidelines issued for that purpose. Section 44 empowers SIRA to issue Motor Accidents Medical Guidelines.
The relevant guidelines for present purposes were the Motor Accident Permanent Impairment Guidelines issued by SIRA under s 44(1)(c) of the MAC Act effective from 1 June 2018 and applicable to motor accidents occurring between 5 October 1999 and 30 November 2017 (the Guidelines).
Paragraphs 1.5 to 1.7 of the Guidelines concern causation and provide: "1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a non-medical informed judgement. 1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."
Rounding is addressed in the Guidelines in a number of places but none of these deals specifically with rounding in relation to assessment of the shoulder. The references to rounding include pars 1.39, 1.55, 1.92 which are as follows: "1.39 The AMA4 Guides (page 9) permit (but do not require) that a final WPI may be rounded to the nearest percentage ending in 0 or 5. This could cause inconsistency between two otherwise identical assessments. For this reason, medical assessors must not round WPI values at any point of the assessment process. During the impairment calculation process, however, fractional values might occur when evaluating the regional impairment (for example, an upper extremity impairment value of 13.25%) and this should be rounded (in this case to 13%). WPI values can only be integers (not fractions). … 1.55 Measurements of radial and ulnar deviation must not be rounded to the nearest 10°. The measurement of radial and ulnar deviation must be rounded to the nearest 5° and the appropriate impairment rating read from Figure 29 (page 38, AMA4 Guides). … 1.92 When interpreting Table 62 (page 83, AMA4 Guides), if the articular cartilage interval is not a whole number, round to the higher impairment figure."
In accordance with s 132(1), the degree of impairment is to be assessed by a medical assessor in accordance with Pt 3.4 of the MAC Act, which is headed "Medical Assessment". Part 3.4 consists of ss 57 to 65.
Under s 57, a "medical dispute" means a disagreement or issue to which Pt 3.4 applies. By virtue of s 58(1)(d), that part relevantly applies to a disagreement between a claimant and an insurer about whether the degree of permanent impairment of the injured person caused by the motor accident is greater than 10%. In the present case there was such a dispute between Mr Atkins and NRMA.
Sections 57A, 59, 59A and 60 provide for the establishment of a Motor Accidents Medical Assessment Service, the appointment of medical assessors, such as Dr Truskett, and the referral of medical disputes to those assessors.
Under s 61(1) and (2), the medical assessor to whom a medical dispute is referred must give a certificate as to the matters referred for assessment and any such certificate 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", subject to certain exceptions that are not presently relevant.
Section 61(9) provides: "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."
As noted above, Dr Truskett gave a certificate assessing Mr Atkins's degree of permanent impairment for injuries to his cervical spine and right and left shoulders that were caused in the accident at 13% and provided reasons for the determination.
Section 63 relevantly provides that: "(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. … (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. …".
As already observed, after considering NRMA's application for review of the assessor's decision, Mr Lum, as the proper officer, stated that he was not satisfied of the matter in s 63(3) and accordingly refused the application for referral for review. Mr Lum also gave reasons for his decision.
NRMA has sought judicial review of both Dr Truskett's certificate and Mr Lum's refusal of a review.
The grounds of review potentially available in a case such as the present are jurisdictional error and error of law on the face of the record: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (Wingfoot) at [26]-[27] (French CJ, Crennan, Bell, Gageler and Keane JJ); [2013] HCA 43.
A claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose while a claim for relief based upon an error of law within jurisdiction must identify the error "on the face of the record": AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [45].
Failure to give adequate reasons for decision will constitute an error of law on the face of the record: Wingfoot at [28].
It was implicitly accepted for the purposes of the present proceedings that "the record" included the assessor's and Mr Lum's reasons for decision, which in both cases were incorporated into the certificate or determination given by each of them, respectively.
No particular attention was directed to the terms of s 69 of the Supreme Court Act 1970 (NSW) or whether s 69(3) and (4) applied in respect of the assessor and the proper officer, and their decisions. In these circumstances and given the basis on which the parties conducted the proceedings, the fact that the certificate itself under s 61(9) is expressly required to set out the reasons for relevant findings and the limited circumstances in which the proper officer can arrange for an application to be referred to a review panel in s 63(3), I shall proceed on the basis that in this case the "record" relevantly includes the reasons for decision of the medical assessor and of the proper officer.

Grounds of review

In seeking substantive relief by way of judicial review, NRMA relied upon the following 5 grounds: 1. Dr Truskett failed to provide adequate reasons for his finding on causation of the injury to the thoracic spine. 2. Dr Truskett erred in his approach to assessment of impairment of the right shoulder. 3. Dr Truskett failed to provide adequate reasons for his assessment of impairment of the right shoulder. 4. Mr Lum erred in failing to be satisfied of material error in Dr Truskett's Certificate as to the thoracic spine. 5. Mr Lum erred in failing to be satisfied of material error in Dr Truskett's Certificate as to the right shoulder.
Grounds 1, 2 and 3 in the amended summons all relate to Dr Truskett's certificate. If one or more of those grounds are made out and it is appropriate to set aside Dr Truskett's certificate, it will not be necessary to consider grounds 4 and 5. Grounds 4 and 5 concern Mr Lum's refusal to refer Dr Truskett's assessment to a review panel and have no relevance if Dr Truskett's assessment certificate is set aside.

Grounds 1, 2 and 3 - Dr Truskett's certificate

Grounds 1 and 3 raise the issue of whether the assessor gave adequate reasons for his decisions concerning causation of the T12 compression fracture and for his assessment of impairment of the right shoulder, respectively.
Ground 2 concerns whether it was an error to round the measured range of internal and external rotation down from 45˚ to 40˚, for the purposes of the assessor's determination in relation to the right shoulder injury.
It is appropriate to deal first with the grounds 1 and 3 which both concern the adequacy of reasons. It will only be necessary to consider ground 2, if ground 3 is not made out.

Adequacy of reasons generally

The extent of reasons required to be given in respect of a decision depends on the statutory context and factual circumstances in which the decision is made: Wingfoot at [45].
As noted above, s 61(9) of the MAC Act imposes a duty on a medical assessor in the position of Dr Truskett to set out in the certificate the reasons for any finding made by the assessor "as to any matter certified in the certificate in respect of which the certificate is conclusive evidence". Section 61(2) establishes that "[a]ny such certificate as to a medical assessment matter is conclusive evidence as to the matters certified …". The "matters certified" are those mentioned in s 61(1) which relevantly provides: "The medical assessor … to whom a medical dispute is referred is … to give a certificate as to the matters referred for assessment."
Thus, a medical assessor must give reasons for any findings as to the matters referred for assessment in the particular case. Mr Atkin's application referred for assessment a dispute falling within s 58(1)(d) of the MAC Act, namely; "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%."
Consistently with this, Dr Truskett's certificate expressly noted that it was: "Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 (the Act) as to 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%".
Given the nature of what he was certifying, Dr Truskett was relevantly required to set out in the certificate his reasons for, among other things, his findings as to: 1. whether the injury to the thoracic spine was caused by the motor accident; and 2. the degree of impairment in respect of the injury to the right shoulder.
As to the nature and extent of the reasons required to satisfy the statutory duty in s 61(9), Basten JA in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121]-[122] held, in a similar context to the present: "121. Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. 122 On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis [v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247] at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required."
Similarly, in Wingfoot it was said, at [48], that: "What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself."
Applying these principles, it was necessary for the assessor to set out the actual path of reasoning by which he arrived at his relevant opinions and, where more than one conclusion was open, to give some explanation of his preference for one conclusion over the other.

Ground 1 - adequacy of reasons in relation to the T12 compression fracture

In relation to the question of causation of the compression fracture of the thoracic spine, the material before the assessor established that it was at least open to conclude that the fracture of the T12 vertebra occurred prior to the accident and was not caused by the accident. This material included: 1. the discharge summary from Nepean Hospital which contained: 1. the notation in the "Background History" that CT reported that the T12 anterior wedge fracture was of "indeterminate age"; 2. under the heading "Medical Imaging Results", the report that there was "anterior wedging of the T12 vertebra suggestive of a fracture of indeterminate age - appears old" as well as degenerative changes of the spine also being noted in that region; and 1. the absence of any record in the discharge summary or other documents after the accident of complaint of pain or other problems in, or associated with, the T12 region of thoracic spine or of swelling or other signs of recent injury to the T12 vertebra.
The alternative conclusion, reached by Dr Truskett, that the T12 fracture was caused by the accident, is supported by the statement in the opening paragraph of the discharge summary that Mr Atkins "was hit by a car and came off his motorbike. He sustained injuries to his rotator cuff, had a thoracic spine fracture and rib fractures". Nonetheless, it can be noted that this form of expression is somewhat equivocal. It was the case that Mr Atkins "had a thoracic spine fracture" on admission to Nepean Hospital on 17 July 2017, whether that fracture had occurred before the accident or in the accident. The alternative conclusion is also supported by the observation in the discharge summary that Mr Atkins did "not recall any prior significant trauma to back/t-spine".
As has been noted above, Dr Truskett certified in effect that the T12 compression fracture was caused by the accident in question. His only reasoning as to how he reached this conclusion was: "As a result of that accident [on 17 July 2017], he sustained soft tissue injuries to the neck, a compression T12 fracture, supraspinatus tear and biceps injury of his right shoulder, and fractured right third and fourth ribs. This is all in keeping with the description and documentation provided."
In light of what is contained in, and absent from, the discharge summary referred to above, I do not accept that Dr Truskett's conclusion concerning the causation of the T12 compression fracture was "all in keeping with the description and documentation provided." The material contained in and absent from the discharge summary clearly raised the issue of whether the T12 fracture was "old" in the sense of pre-dating, and not being causally related to, the accident of 17 July 2017.
The additional documentation available to Dr Truskett concerning the thoracic spine fracture included the report of the radiologist, Dr Quigley, who conducted the follow up CT scan on 3 October 2017, which has been quoted in full above. This report, however, provided no basis for determining when the T12 fracture occurred and whether it was causally related to the accident on 17 July 2017. Dr Quigley accepted that there was a "[p]revious T12 fracture" but noted there were "[n]o previous images available for comparison". His conclusion was simply that there was a "T12 a wedge compression fracture with approximately 25% loss of height and resultant thoracolumbar kyphosis". Dr Quigley expressed no opinion as to how old the fracture appeared, when it may have occurred or what had caused it.
Dr Truskett has not disclosed the actual path of reasoning by which he arrived at his opinion that the T12 compression fracture resulted from the 17 July 2017 accident. He has failed to explain, adequately or at all, why he reached the conclusion that the T12 compression fracture was caused by the accident rather than being a pre-existing fracture. It was not adequate merely to say that this conclusion was "in keeping with the description and documentation provided". This was especially so when the documentation contained significant material indicating that such a conclusion may not be correct and the description of the accident and subsequent symptoms and treatment given in Dr Truskett's certificate under the headings "History of Motor Accident" and "History of Symptoms and Treatment Following the Motor Accident" and in Dr Quigley's report make no mention of any specific injury to, or treatment required in relation to, the thoracic spine as a result of the accident on 17 July 2017.
At this point, it is necessary to address the argument, put forward on Mr Atkins's behalf, that his application for assessment form read together with NRMA's reply meant that it was not in issue that the T12 compression fracture was caused by the accident and the only contest was as to the degree of impairment and thus Dr Truskett was not required to give reasons as to why he was satisfied that the T12 fracture was causally related to the accident.
NRMA accepted that on the application form Mr Atkins did not indicate that "causation" was in dispute and in its reply form NRMA checked the box indicating that the information given by Mr Atkins in section 6 of his application was correct. NRMA submitted, however, that the task of the assessor under s 61 of the MAC Act when dealing with a disagreement falling within s 58(1)(d), as in the present case, involves determining whether the degree of impairment found by the assessor was "as a result of the injury caused by the motor accident". The application form and the reply form should not be found to operate like pleadings, which have the specific function of limiting issues in dispute.
The NRMA's submissions should be accepted. The administrative forms used for the purposes of medical assessments under s 61 of the MAC Act should not be equated with formal pleadings in a court. One of the purposes of pleadings is to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings upon trial may be conducted in an orderly fashion by reference to those issues: Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 296 (Dawson J); [1990] HCA 11. For the purposes of Pt 3.4 of the MAC Act, it is not necessary to define the issues in this way, as they are defined by the very nature of the medical assessment matters that may be referred for assessment under that part. The function of a medical assessor under the MAC Act, like that of the review panel in Wingfoot, is not to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions: Wingfoot at [47].
Furthermore, the limiting of issues in court proceedings by pleadings is effectively achieved by provisions in the rules of court such as r 14.26 of the Uniform Civil Procedure Rules 2005, which provides that an allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless the opposite party traverses the allegation or there is a joinder of issue under the rules operating as a denial of the allegation. There is no similar formal structure of admissions, traverses and denials that operates in relation to applications for assessment of medical disputes under the MAC Act. The complexity and formality associated with pleadings should not be introduced into Pt 3.4 of the MAC Act, especially in the absence of express provisions mandating such a result.
As the wording of s 58(1)(d) of the MAC Act make clear, whether the degree of impairment was a result of the injury caused by the motor accident is always part of the matter to be determined by the assessor in such a case. This is confirmed by par 1.5 of the Guidelines which states, among other things: "An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. … A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. …" (emphasis added)
In the circumstances of this case, the medical assessor was required to explain, by reference to the specific evidence before him and his relevant expertise, his actual path of reasoning as to why he concluded that the T12 compression fracture was a result of the motor accident on 17 July 2017 and was not a pre-existing condition. Dr Truskett did not do so.
Accordingly, I accept that Dr Truskett failed to provide adequate reasons for his finding on causation of the injury to the thoracic spine and ground 1 has been made out.
This is a significant failure. If the 5% WPI in respect of the thoracic spine was not the result of the accident of 17 July 2017, the total WPI attributable to the accident would be less than 10% and the threshold for the awarding of damages for non-economic loss under s 131 of the MAC Act would not have been reached. Given the significance of the failure, the certificate of the assessor should be set aside in respect of the assessment of WPI for the thoracic spine.

Ground 3 - adequacy of reasons in relation to the assessment of impairment of the right shoulder

The heart of NRMA's third ground is that Dr Truskett chose to round down to 40%, rather than up to 50%, his assessment of the range of motion in Mr Atkins's right shoulder of 45%. The result was that the WPI impairment in respect of the right shoulder was assessed at 8% instead of 7%. By itself this difference of 1% would not affect the result in the present case. If the WPI in respect of the thoracic spine resulting from the accident is 5%, the total WPI will exceed 10%, being either 12% or 13%. If the T12 compression fracture was not the result of the 17 July 2017 accident, the total WPI resulting from that accident will not exceed 10%, being either 7% or 8%.
Nonetheless, if Dr Truskett's certificate is to be set aside on the basis of ground 1 in relation to the assessment of the degree of impairment as a result of the accident in relation to the thoracic spine, it is appropriate to consider whether there is also any relevant error in relation to the assessment of the degree of impairment of the right shoulder.
It was not in dispute in these proceedings that the applicable provision of the Guidelines required the range of motion measurement to be rounded to the nearest 10% and Dr Truskett rounded his assessment of mobility of the right shoulder of 45% down to 40% instead of rounding up to 50%: First Defendant's Outline of Written Submissions 22 November 2019, pars 43-45.
In addition, it was contended by Mr Atkins that it was open to Dr Truskett to decide to round the measurement of 45% up or down: First Defendant's Outline of Written Submissions 22 November 2019, par 48.
In these circumstances, it appears to me that it was incumbent upon Dr Truskett to explain his actual path of reasoning that led him to round the percentage of range of movement down rather than up. Since there were two options or conclusions open to Dr Truskett, he had to explain in his reasons which option he had adopted and why. He did not do so. Accordingly, his reasons for decision in relation to the right shoulder were inadequate.
For these reasons, I uphold NRMA's ground 3.
If Dr Truskett's only error had been a failure to give adequate reasons in relation to rounding of the percentage range of movement of the right shoulder, I would not have exercised my discretion to set aside the certificate in this regard as it would make no substantial difference to the outcome. However, since Dr Truskett's certificate is to be set aside in relation to the assessment of WPI in respect of the thoracic spine, it should be set aside in relation to the right shoulder, as well, so that both of those aspects of Mr Atkins's claim can be properly addressed.

Other grounds of review

For the reasons explained above, having found that grounds 1 and 3 have been made out and the certificate should be set aside in relevant respects, it is not necessary or appropriate to consider grounds 2, 4 and 5.

Conclusions and Orders

Dr Truskett's certificate of 4 January 2019 deals with injuries other than those to the thoracic spine and the right shoulder. These aspects of the certificate have not been challenged and it is not necessary to set aside the certificate in relation to those other injuries.
As NRMA has been successful in its claims and there do not appear to be any circumstances justifying departure from the usual rule that costs should follow the event, I propose to order that Mr Atkins pay NRMA's costs.
For all of these reasons, the orders of the Court are: 1. The time for commencement of these proceedings is extended to the date of the filing of the original summons on 27 June 2019. 2. The certificate issued by the third defendant, Dr Truskett, dated 4 January 2019 in respect of the assessment of the first defendant's impairment as a result of the motor accident on 17 July 2017 is set aside so far as it relates to the thoracic spine and the right shoulder. 3. The matter is remitted to the second defendant for the medical dispute as to the degree of impairment of the first defendant's thoracic spine and right shoulder as a result of the motor accident on 17 July 2017 to be referred, under s 60(2) of the Motor Accidents Compensation Act 1999 (NSW), to a different medical assessor. 4. The first defendant is to pay the plaintiff's costs as agreed or assessed.

Endnote

It appears that the report on the results of the CT scans of the chest, abdomen and pelvis was cut and pasted into the discharge summary twice (one immediately after the other) so that this material is repeated in the discharge summary provided to the assessor. A similar thing appears to have happened in relation to the report on the results of the CT scans of the head and brain. Nothing, however, appears to turn on this repetition. 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: 13 February 2020

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