Insurance Australia Ltd v Marsh

HEADNOTE [This headnote is not to be read as part of the judgment] On 7 or 8 August 2012 the respondent, Mr Robert Marsh, was a passenger in a motor vehicle that was repeatedly rammed by the driver of another motor vehicle in an episode of road rage. Insurance Australia Ltd (NRMA), was the insurer of the driver of the other vehicle under a third-party policy, and it admitted liability. A medical assessor, Dr Home, issued a certificate on 17 October 2018 stating that Mr Marsh had suffered 5% whole person impairment that was causally related to the motor vehicle accident. On 9 April 2019 Mr Marsh provided particulars to NRMA outlining his claims for future treatment and domestic assistance. The claims made were for one future cervical fusion surgery, one to twelve general practitioner consultations per year for Mr Marsh's life expectancy, and up to 60 minutes of future paid domestic assistance per week. NRMA's solicitors advised that the claims were disputed. The treatment dispute was referred to a medical assessor, Dr Truskett, who issued a certificate on 5 February 2020. As to causation, Dr Truskett determined that the treatments did not relate to the injuries caused by the motor accident: degenerative changes of the neck were present prior to the motor vehicle accident; although the motor vehicle accident aggravated the degenerative change, that aggravation would have abated over the ensuing six to twelve months; and Mr Marsh's disabilities predominantly related to work-related injury that occurred prior to the motor vehicle accident. Dr Truskett also determined that the treatments were not reasonable and necessary in the circumstances. Mr Marsh applied to the proper officer of the State Insurance Regulatory Authority to refer Dr Truskett's medical assessment to a review panel. The proper officer was not satisfied that there was reasonable cause to suspect that Dr Truskett's assessment was incorrect in a material respect, and accordingly dismissed the application. Mr Marsh sought judicial review of the proper officer's decision and commenced proceedings in the Supreme Court. On 4 June 2021, the primary judge, Simpson AJ, quashed the decision of the Proper Officer and ordered that Dr Truskett's medical assessment be referred to a review panel. NRMA sought leave to appeal from the primary judgment. The principal issues before this Court were: (i) whether the primary judge erred in finding that the proper officer mistook his function and determined the issue on its merits; (ii) whether the primary judge erred in finding that the proper officer exceeded his bounds of authority because there was significant material before him that demonstrated significant differences of opinion among medical practitioners; (iii) whether the primary judge erred in finding that when a proper officer is confronted with conflicting opinions of medical practitioners the inevitable result is that there must be reasonable cause to suspect that the medical assessment is incorrect in a material respect; (iv) whether the primary judge erred in ordering that the medical assessment be referred to a review panel. Held, allowing the appeal, (per Basten, Macfarlan and White JJA): As to issue (i), per White JA (Macfarlan JA agreeing): (1) The proper officer did not seek to decide the matter on its merits: at [21], [59]. As to issue (i), per Basten JA: (2) The proper officer's statement that a finding was "open to the assessor" provided no basis for challenging the legality of the opinion formed by the proper officer: at [15], [19]. As to issue (ii), per White JA (Macfarlan JA agreeing): (3) The existence of significant differences of opinion between the medical assessor and other medical practitioners does not mean that the proper officer mistook his function in not being satisfied that there was reasonable cause to suspect that the medical assessor erred in a material respect: at [21], [62]. As to issue (ii), per Basten JA (4) The existence of conflicting medical opinions cannot, by itself, constitute a ground for referral to a review panel: at [12]. As to issue (iii), per White JA (Macfarlan JA agreeing): (5) It is not correct to state that where there are conflicting opinions of medical practitioners specialised in their field, a proper officer must have reasonable cause to suspect that the medical assessment is incorrect in a material respect: at [21], [62]. As to issue (iii), per Basten JA: (6) The existence of conflicting medical opinions, far from providing an invariable basis for referral to a review panel, cannot, by itself, constitute a ground for referral to a review panel: at [12]. As to issue (iv), per White JA (Macfarlan JA agreeing) and Basten JA: (7) The conclusion that the assessment should be referred to a review panel rather than the proper officer, or to another proper officer, for redetermination, followed from Simpson AJ's conclusion that because of conflicting medical opinion only one course was open to the proper officer. That conclusion was wrong: at [6] - [8], [21], [68].

Judgment

1. BASTEN JA: In August 2012 the respondent, Robert Marsh, was involved in a motor vehicle accident. There was a dispute as to whether certain aspects of treatment proposed for Mr Marsh were causally related to an injury sustained in the accident and as to whether there were reasonable and necessary in relation to an injury sustained in the accident.
2. Under the Motor Accidents Compensation Act 1999 (NSW) ("the Act"), as in force when the claim was made, such matters were dealt with by the Medical Assessment Service which was part of the State Insurance Regulatory Authority. In December 2019 the treatment disputes were referred for assessment by a medical assessor, Dr Philip Truskett. On 5 February 2020 the assessor issued two certificates, both of which were unfavourable to Mr Marsh (hereafter "the claimant").
3. The Act provides for review of a medical assessment by a medical review panel. An application for referral to a panel may be made on the ground that the assessment "was incorrect in a material respect": s 63(2). However, the application will only be referred to a panel if "the proper officer of the Authority 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": s 63(3).
4. On 4 March 2020 the claimant's solicitor lodged an application for review of the medical assessment, under s 63(1) of the Act. The proper officer, not being satisfied as to the statutory criterion, on 11 May 2020, dismissed the application for review.
5. On 30 June 2020 Mr Marsh filed a summons seeking judicial review of the decision of the proper officer. On 4 June 2021 the primary judge, Simpson AJ, (i) quashed the decision of the proper officer and (ii) ordered that the medical assessment be referred to a review panel.
6. The latter order is significant. Generally, where a power depends upon the satisfaction of another body or tribunal, a court exercising judicial review, having set aside a decision of that body or tribunal, will remit the matter to be determined according to law. It is only where the court determines that, as a matter law, only one determination could have been made that it has jurisdiction to make such an order: Supreme Court Act 1970 (NSW), s 69(3)(b).
7. Simpson AJ was mindful of that constraint. [1] The order reflected the following finding: "[66] The inevitable result, when the proper officer is confronted with conflicting opinions of medical practitioners, is that there must be reasonable cause to suspect that the medical assessment is incorrect in a material respect."
8. This reasoning is founded on a misconstruction of the scheme of s 63 of the Act and, in particular, the specific function conferred on the proper officer. The exercise in construing the Act requires giving meaning to the term "incorrect" as applied to a medical assessment, within the statutory context. There are three aspects of the statutory context which are significant.
9. First, s 63 confers no right of appeal from a medical assessment. Rather, it confers a power to seek a review, conditioned upon satisfaction of the proper officer as to the statutory criterion. It is "only if" the proper officer is so satisfied that a review panel will be constituted and the assessment referred to it. This scheme does not envisage that referral will be the usual, let alone the inevitable outcome of an application. The opinion of the proper officer has been called a "gateway"; statutory gateways are there to deny a review as of right.
10. Secondly, the subject matter of a medical assessment is a "medical dispute" which may be referred for assessment under Pt 3.4 of the Act: s 60. The term "medical dispute" is defined to mean a "disagreement or issue to which this Part applies": s 57. Thus, the subject matter of the assessment will usually, if not invariably, entail a difference of opinion between medical practitioners. Accordingly, if the existence of differing opinions was sufficient to give rise to a reasonable cause to suspect that a particular assessment was incorrect, the gateway function conferred on the proper officer would be rendered nugatory.
11. Thirdly, as recognised by the High Court in relation to a similar statutory scheme in Victoria, the function of a medical assessor is to form his or her own opinion on the medical question in dispute; it is not to choose between competing opinions, nor to assess the correctness of such opinions. [2] As the High Court concluded, with respect to a medical panel: "The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise." [3]
12. If the proper officer were to find reasonable cause to suspect that an assessment was incorrect merely because conflicting medical opinions had been provided, that would reveal a misunderstanding of the function of the medical assessor. In other words, the existence of conflicting opinions, far from providing an invariable basis for referral to a review panel, cannot, by itself, constitute a ground for referral to a review panel.
13. Fourthly, while the term "proper officer of the Authority" is only used in relation to the referral of a matter for further medical assessment or for assessment by a review panel, [4] there is no basis for inferring that the officer will be medically trained. Accordingly, it would be wrong to construe the required state of satisfaction of the officer as involving medical reasons to suspect that the assessment was "incorrect in a material respect".
14. The function of the court undertaking judicial review of a decision of the proper officer is that identified by Leeming JA in AAI Ltd t/as AAMI v Chan: [5] "[27] Fourthly, while the prohibition in s 62(1A) turns on the opinion formed by the proper officer, that opinion is itself amenable to judicial review on conventional administrative law grounds. It was common ground, at first instance and on appeal, that review of the opinion formed by the proper officer would be conducted in accordance with what was said in QBE Insurance (Australia) Ltd v Miller at [36]: 'Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this Court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide".' [28] Despite that being common ground between the parties, and despite its being reproduced by the primary judge in his reasons for judgment, it is desirable to observe that the task for the court on review is confined to whether the opinion has been properly formed according to law. The issue is not whether the proper officer was right or wrong to hold the opinion, as it might be if an appeal lay by way of rehearing. The issue is whether the opinion has been shown to be vitiated on administrative law grounds. That might be because it is based on a misconstruction of the legislation, or because it paid regard to something to which a statute prohibited regard being had, or because it failed to pay regard to something to which statute insisted regard must be had, or because it was 'irrational, illogical and not based on findings or inferences of fact supported by logical grounds'. But it is not sufficient merely to establish 'error on the face of the record'."
15. Apart from the fact of conflicting opinions, the primary judge identified only one passage in the reasons of the proper officer supportive of a finding that he had failed to address the correct question. After noting the finding by the assessor that "the current condition [of the claimant] is unrelated to the motor accident and is simply the natural progression of the underlying degenerative disease", the proper officer continued: "Contrary to the submission of the applicant it is apparent that this finding was open to the assessor based on the evidence."
16. There are three difficulties in relying upon this last statement as indicative of legal error. First, it was not the conclusion of the proper officer's reasoning: the paragraph ended with him saying that he was "not satisfied there is reasonable cause to suspect the assessment is incorrect in a material respect based on this submission." That is, he expressed his conclusion in accordance with the statutory criterion.
17. Secondly, to describe a finding as "open" was consistent with finding an absence of the kind of error which would have rendered the opinion possibly incorrect in a material respect. It was not for the proper officer to say whether the assessor's medical opinion was correct or incorrect. He was neither qualified nor required to do so, and did not purport to do so.
18. Thirdly, the proper officer was addressing a submission that "[t]he only available conclusion on causation … is that causation was proved, viz, that the proposed surgery to treat the neck and cervical spine was reasonably necessary as a result of the [motor vehicle accident]". That submission, which may have been overstated, was rejected by describing the contrary finding as "open".
19. As is well-understood, taking one sentence out of a set of reasons, analysing it in isolation from its context, and purporting to identify error is fraught with danger. In the present case that risk came to fruition: the sentence said to reveal error provided no basis for challenging the legality of the opinion formed by the proper officer.
20. For these reasons, I agree with the orders proposed by White JA.
21. MACFARLAN JA: I agree with White JA.
22. WHITE JA: This is an appeal from orders of the Common Law Division, Marsh v Insurance Group Ltd t/as NRMA Insurance Ltd [2021] NSWSC 619 (Simpson AJ).
23. On 7 or 8 August 2012 the respondent, Mr Robert Marsh, was a passenger in a motor vehicle that was repeatedly rammed by the driver of another motor vehicle in an episode of road rage. There was no issue that he suffered injury as a result of the behaviour of the driver of the other vehicle. The appellant, Insurance Australia Ltd (NRMA), was the insurer of the driver of the other vehicle under a third-party policy issued under the Motor Accidents Compensation Act 1999 (NSW). It admitted liability (s 81).
24. Section 83 of the Motor Accidents Compensation Act provides that once liability has been admitted against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of a claimant in respect of, amongst other things, hospital expenses, medical expenses and, in respect of a claimant who is seriously injured and in need of constant care over a long term (as described in the section), attendant care services expenses. The insurer's liability applies to such expenses to the extent they are reasonable and necessary in the circumstances, properly verified, and relate to the injury caused by the fault of the owner or driver of the motor vehicle to which the third-party policy relates.
25. Chapter 4 of the Act contains elaborate provisions for the making of claims for damages in respect of injury caused by the fault of the owner or driver of the motor vehicle, including a requirement that a notice of the claim provided by the claimant provide particulars and information required by a form approved by the State Insurance Regulatory Authority (s 74).
26. On 15 August 2019, the solicitors for NRMA wrote to the solicitor for Mr Marsh referring to particulars provided on behalf of Mr Marsh dated 9 April 2019 outlining his claims for future treatment and future domestic assistance. The claims made were for one future cervical fusion surgery, one to twelve general practitioner consultations per year for Mr Marsh's life expectancy, and up to 60 minutes of future paid domestic assistance per week from the date of the MAS assessment for his life expectancy. NRMA's solicitors advised that the claims were disputed and that NRMA declined to make any payment in respect of them. They submitted that the need for treatment was not related to injuries caused by the accident and the treatment requested was not reasonable and necessary.
27. This was a medical dispute within the meaning of Pt 3.4 of the Act, being "…a disagreement or issue to which this Part applies" (s 57). Section 58, provides that Pt 3.4: "…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) (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, … (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%."
28. The medical dispute was required to be and was referred to the State Insurance Regulatory Authority for the dispute to be referred to a medical assessor (s 60).
29. There had been an earlier dispute as to the degree of permanent impairment suffered by Mr Marsh as a result of his injury caused by the motor accident. On 17 October 2018 a medical assessor, Dr Alan Home, issued a certificate under Pt 3.4 of the Act as follows: "The following injuries caused by the motor accident give rise to a permanent impairment which IS NOT GREATER THAN 10%: - Cervical spine - aggravation of degenerative change, soft tissue injury - Left shoulder - temporary exacerbation of symptoms related to underlying glenohumeral joint osteoarthrosis - resolved - Left hip - contusion - resolved - Lumbar spine - strain injury - resolved."
30. Dr Home determined that Mr Marsh had suffered 5% whole person impairment attributable to soft tissue injury to the cervical spine aggravating underlying degenerative change that was causally related to the motor vehicle accident. Dr Home's 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 (s 61(2)), viz. Mr Marsh's degree of permanent impairment from injuries caused by the motor vehicle accident. His reasons were not conclusive evidence in respect of the medical dispute concerning treatment issues under s 58(1)(a) and (b).
31. The treatment dispute was referred for assessment to a different medical assessor, Dr Philip Truskett.
32. The issues identified in NRMA's application for assessment of the treatment dispute were whether the proposed cervical fusion surgery, general practitioner consultations and claim for future paid domestic assistance were not related to injuries caused by the accident and were not reasonable and necessary. Numerous medical reports, X-rays and MRIs both preceding and subsequent to the accident were provided to Dr Truskett including the report of Dr Home, and reports of a Dr Ferch and Associate Professor Kleinman.
33. On 5 February 2020 Dr Truskett issued two certificates under Pt 3.4 of the Act certifying that: "The following treatments, namely: - future cervical fusion - consultations one to twelve per year with general practitioner and domestic assistance from the date of the assessment and 0-60 minutes per week of domestic assistance, DO NOT RELATE TO THE INJURIES caused by the motor accident." and "The following treatments, namely: - Cervical fusion. - One to twelve consultations per year. - Need for domestic assistance from the date of the MAS assessment for the claimant's life expectancy and 0 to 60 minutes per week of domestic assistance tasks arising from the injuries caused by the accident from the date of the MAS assessment and for the remaining of the claimant's life are NOT REASONABLE AND NECESSARY in the circumstances."
34. On 31 January 2020 Mr Marsh had attended on Dr Truskett and was examined by him. As part of the history taken from Mr Marsh, Dr Truskett recorded that Mr Marsh reported having attended Dr Ferch (spinal surgeon at Newcastle) and apparently cervical fusion had been offered but refused by the insurer. Dr Truskett recorded that Mr Marsh believed that his neck injury was entirely related to his motor vehicle accident and recorded his reported symptoms.
35. Dr Truskett carried out a clinical examination of Mr Marsh's neck. His findings on clinical examination differed in a number of respects from those recorded by Dr Home on 18 October 2018. Dr Home reported that on clinical presentation there was "spinal dysmetria and muscle guarding". Dr Truskett found that on his examination of Mr Marsh's neck there was no muscle guarding and no dysmetria.
36. Dr Truskett reviewed medical reports, including those of Dr Ferch and Professor Kleinman. Those reports were not in evidence before the primary judge. The primary judge relied upon Dr Truskett's summary of those reports. Dr Ferch's reports of 14 July 2015 and 15 November 2017 (as summarised by Dr Truskett) described degenerative changes over a number of levels (C5-6 and C6-7 of the cervical spine). Associate Professor Kleinman's reports, as summarised by Dr Truskett, included a report of 27 March 2018 in which Associate Professor Kleinman stated that he believed that surgery to the neck was needed as a result of the motor vehicle accident due to aggravation of pre-existing asymptomatic degenerative change in the cervical spine. Dr Truskett also referred to a report of Associate Professor Kleinman dated 30 January 2018 stating: "He documents [that] Dr Richard Ferch now wishes to operate on his neck and have "some sort of fusion". This has been rejected by the insurer and he apparently is on a waiting list for this to be done at John Hunter. He assessed him as having a DRE Category Ill of his neck with a 15% Whole Person Impairment due to radiculopathy. This could not be demonstrated today."
37. Dr Truskett's determination was as follows: "6. Determinations Treatment - Causation In relation to the cervical spine, on documentation reviewed it is clear that there was marked degenerative changes of his neck that were present prior to the motor vehicle accident. It is also noted when reviewed by Dr Meakin on 8 May 2013, he assessed his neck is having a 0% Whole Person Impairment. It is my view that the aggravation of degenerative change has occurred but would have abated over the ensuing six to twelve months. His ongoing neck pain as a result of his known degenerative disease is unrelated to his motor vehicle accident. In relation to his disabilities, these predominantly relate to injuries sustained to both shoulders and his left knee which are a result of the work-related injury that occurred in 2010 and 2011 respectively. It is also clear that he had not been working for a significant period of time prior to his motor vehicle accident. This period was for at least three years. These injuries tended to dictate his ability to work, his domestic difficulties. His degenerative neck pain does not play a major role in his domestic abilities. Treatment - Reasonable and Necessary In relation to Mr Marsh's cervical spine, the role of spinal fusion is questionable as he has widespread degenerative disease and I do not believe it is reasonable and necessary as a result of his motor vehicle accident of 7 August 2012. His frequency of attendance to his general practitioner at one to twelve consultations per year would not be considered due to his motor vehicle accident as his attendances are required for multiple other comorbidities and management. It did not relate to his motor vehicle accident of 7 August 2012. It is also apparent that he requires no domestic assistance at this time and appears to be able to perform house duties, shopping, cooking and other activities unassisted. Therefore, there appears to be no need of domestic assistance as requested. It is not considered reasonable and necessary."
38. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, the High Court dealt with the functions of a Medical Panel established under the Victorian Accident Compensation Act 1985 to certify the Panel's opinion on medical questions in respect of injured workers entitled to compensation under that Act and in relation to common law claims against the employer for damages. The certificate of the opinion of the Medical Panel on the medical question was to be final and conclusive. In relation to the functions of the Medical Panel, the High Court stated (at 498-499): "[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions (Cf Masters v McCubbery [1996] 1 VR 635 at 645). The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
39. Dr Truskett, as a medical assessor, had the same function (Insurance Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 at [42]-[43]).
40. A medical assessor's opinion is required to reflect his or her own professional judgment as to the medical dispute submitted for his or her assessment.
41. Mr Marsh sought a review of the medical assessment by a review panel. Section 63 of the Act then provided: "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."
42. The form of an "Application for a review of a medical assessment", Form 5A, stipulated that the applicant for referral should give detailed reasons in support of the application and, if it were said there was more than one error, the applicant should explain each error in a separate paragraph and should refer to particular sections or paragraphs of the medical assessment said to be incorrect. The solicitors for Mr Marsh stated that the whole of the MAS certificate was incorrect and referred to attached submissions dated 4 March 2020. In answer to the question: "What is the error or mistake?" they stated "Please see paragraph 6-31 of the attached submissions dated 4 March 2020".
43. The "particulars set out in the application" referred to in s 63(3) to which the proper officer of the Authority was required to have regard were those matters stated in the attached submissions.
44. On appeal, Mr Hart, who appeared for the respondent, submitted that the proper officer was required to have regard to all the material that was before him, including all the material that was before the assessor.
45. Whatever the scope for argument as to what may constitute the particulars set out in the application for referral of the medical assessment to a review panel (Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 at [29]), it is not reasonably arguable that the words in s 63(3) "having regard to the particulars set out in the application" should be read as "having regard to all of the materials before (or available to) the proper officer". That is not to say that s 63(3) is to be read as meaning that the proper officer is to have regard only to the particulars set out in the application. That question does not arise on the appeal. But it does mean that the proper officer's reasons will need to address the particulars set out in the application (in this case, the accompanying submission), and should be read in this light.
46. The submissions attached to the application for review of the medical assessment identified three alleged errors, namely: "(a) Failing to comply with the requirement, under clause 1.6 of the MAPIG, to apply the common law test for causation, to the material consideration of ''reasonable necessity" for treatment, caused by the MVA, claimed to be in the form of discectomy, foraminal decompression and cervical spinal fusion; and (b) Failing to comply with requirement, under clause 1.41 MAPIG, to afford natural justice to the applicant, in making critically adverse findings, based on reported histories and material that were not brought to his attention for explanation (Frost v Karouche [2014] NSWCA 89 [at 32]; and (c) Reasoning illogically, in his "non-medical determination" (see Rodger v De Gelder (2015) MVR 514 [at 109]) by, firstly acknowledging the absence of material neurological symptoms before the MVA, then failing to find the MVA was the cause (by way of aggravation or acceleration) [at 3, 5 and 6] in the presence of the evidence of operative pathology in the CT Scan of 23 October 2012, reporting: " ... compromising [of) the foramina particularly at CS/6 bilaterally and at C6/7 on the left" and the MRI dated 3 September 2014, reporting "narrowing to the right lateral recess of CS/6 and left lateral recess of C6/7, which would compromise the right C6 nerve root and the left C7 nerve root respectively"."
47. After referring to the definition of "causation" in cl 1.6 of the Motor Accident Permanent Impairment Guidelines and authorities at common law and under s 5D of the Civil Liability Act 2002 (NSW) in relation to causation, the submissions in support of the first ground continued: "16. The Assessor, on it [sic] the face of the record, did not find or take any history that would entitle a finding of the presence of these symptoms, prior to the MVA. There is no evidence at all, on which the Assessor could rely, that these radicular signs were present before the subject MVA. 17. He failed to properly consider his own findings and evidence the applicant had no prior radicular symptoms in his neck and incorrectly fixated on the (acknowledged) "degenerative changes", and in doing so, made material error in the application of the common law. It was not, on the applicant's case, a surgery for degeneration, but for decompression of the insulted nerve roots to provide "alleviation" of the effects of injury. 18. The applicant submits: (a) On a [sic] before and after comparison the applicant did not have radicular neck symptoms until after the MVA; (b) There is a temporal connection that the applicant had chronic neck pain after the subject MVA. 19. The only available conclusion on causation ("non-medical determination") is that causation was proved, viz., that the proposed surgery to treat the neck and cervical spine was reasonable and necessary as a result of the MVA. In those circumstances and accordance with section 58(1)(a)-(b) of the MACA, this should have been the Assessor's determination."
48. The role of the proper officer is not to decide, or be satisfied, that the medical assessor erred in a material respect, but only to be satisfied (or not) that there is reasonable cause to suspect such error. The proper officer's role is that of a gatekeeper, not a decision-maker (Meeuwissen v Boden at 148, [22]-[23]).
49. The proper officer determined that he was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and accordingly dismissed the application. In respect of the first ground of review (failing to apply correct test of causation) he quoted Mr Marsh's submissions including that the only available conclusion on causation was that causation had been proved and that the proposed surgery to the neck and cervical spine was reasonable and necessary as a result of the accident (para [19] of submission quoted at [28] above). The proper officer referred to the assessor's discussion of relevant medical evidence and aspects of the assessor's report and continued: "14. Contrary to the submission of the applicant it is apparent that this finding was open to the Assessor based on the evidence. The suggestion that the Assessor required evidence of radicular signs and symptoms pre-accident is unsupported by the case law relied upon and is medically unsound. Degenerative conditions by their very nature deteriorate over time, it was well within the Assessor's expertise to conclude that the claimant's current condition is the natural progression of this underlying condition and the accident has not had a more than negligible effect on the current state of that condition or the requirement for the proposed surgery. Accordingly, I am not satisfied there is reasonable cause to suspect the assessment is incorrect in a material respect based on this submission."
50. He then dealt with the applicant's second and third submissions under the headings "failing to provide natural justice" and "illogical reasoning for causation". In relation to the latter, he concluded: "20. ... There is no cause to suspect the Assessor has erred in the manner alleged. The Assessor has provided a clear path of reasoning which is logical and conforms to the common law principles of causation. I am not satisfied there is reasonable cause to suspect the assessment is incorrect in a material respect in this regard."
51. The proper officer identified the documents he had taken into account. These included all of the documents provided prior to Dr Truskett's assessment.
52. Mr Marsh sought judicial review of the proper officer's decision. He asserted that the proper officer's decision contained errors of law on the face of the record, demonstrated jurisdictional error, and was beyond power.
53. The primary judge was critical of the asserted grounds for relief stated in the summons (J [36]-[37]). The primary judge then said: "[38] Doing the best I can to untangle the substance of the plaintiff's complaint as expressed in these grounds, supplemented by written and oral submissions, it seems to me that the points sought to be made are: (i) that in declining to refer the application to a review panel, the proper officer went beyond the function conferred on him by s 63(3) (which, to repeat, is limited to determining whether there are reasonable grounds to suspect that the medical assessment was incorrect in a material respect), and decided that there was in fact no error (a determination that lies in the province of the review panel and not the proper officer) and therefore was in jurisdictional error (Grounds 1, 2, 4, 5, 7 and 8); and (ii) that the proper officer incorrectly rejected the plaintiff's claim that Dr Truskett had denied him procedural fairness (Ground 6)."
54. The primary judge rejected the second point but upheld the first. In respect of the second point her Honour said: "[48] … The short answer is that there is, and was before the proper officer, no evidence of what was put to the plaintiff by Dr Truskett in his history taking or clinical examination. Nor was there any identification of any credit-based finding by Dr Truskett that depended on a contrast between the observations of Dr Home and his own observations. Ground 6 is founded on a factual premise that has not been established and cannot succeed. It need not be considered further."
55. The respondent did not file a notice of contention to challenge this finding.
56. As to the first point, the primary judge's essential reasoning was as follows: "[62] There is, however, merit in the plaintiff's assertion that the proper officer mistook his function and determined the issues that would have arisen in a review by an appeal panel. In this respect it is fair to observe the somewhat delicate exercise the proper officer is required to undertake: to determine whether there is reasonable cause to suspect material error in the assessment. Refusal to refer to an appeal panel inevitably carries with it a determination of the putative appeal, in a way that referral to an appeal does not and cannot. [63] Even bearing that in mind I have concluded that, in this case, the proper officer did exceed the bounds of his authority. That is because there was significant material before him that demonstrated differences of opinion among medical practitioners. On behalf of the plaintiff, the argument focussed almost entirely on Dr Home's assessment, in October 2018 and for the purposes of a s 131 claim, that the plaintiff suffered a degree of permanent impairment of 5%, referable to his cervical spine. That was insufficient to justify a claim for the costs of surgery. But there was more than that. Dr Truskett's opinion was that any symptoms in the plaintiff's cervical spine were not caused by the motor accident (and probably did not call for surgery); but included in Dr Truskett's review of reports there was clear indication of contrary medical opinions by Dr Ferch and A/Prof Kleinman. The key to the differences of opinion appears to lie in whether there was, or was not, evidence of radiculopathy. Dr Truskett, having noted A/Prof Kleinman's (or Dr Ferch's) opinion that there was, simply observed that that could not be demonstrated on his examination. His conclusion suggests that he found that radiculopathy was not present. But the contrary opinion of Dr Ferch and/or A/Prof Kleinman, however unsatisfactorily they were presented (in the present application), cannot be dismissed or ignored. As indicated above (at [22]), I have found it necessary to rely on the accounts of the reports of Dr Ferch and A/Prof Kleinman given by Dr Truskett in his Reasons. That is unsatisfactory; the opinions of those two practitioners are a significant part of the reasons for the conclusion to which I have come. It would have been better had those reports, in their entirety, been part of the material provided to me. But it is clear enough that they were included in the materials provided to the proper officer. They show that there was a clear division of opinion between competent medical practitioners. [64] Both opinions (as to causation) could not be correct. Either the plaintiff's symptoms were caused (or contributed to) by the injury suffered in the motor accident or they were not. (I acknowledge that whether surgery is reasonable and necessary calls for an opinion of a different kind, one that may be neither correct or incorrect.) [65] To conclude, as the proper officer did (at [14]), that Dr Truskett's opinion was open to him based on the evidence did not address the correct question. When confronted with competing opinions from practitioners specialised in their field, it is not the role of the proper officer to choose between them; that is a role for medical assessors constituting an appeal panel. [66] The inevitable result, when the proper officer is confronted with conflicting opinions of medical practitioners, is that there must be reasonable cause to suspect that the medical assessment is incorrect in a material respect. The proper officer went beyond his statutory role in considering whether there was reasonable cause to suspect material error in the medical assessment and determined the asserted error on the merits. That was jurisdictional error. It was also an error that appears on the face of the record, as contemplated by s 69(3) of the Supreme Court Act."
57. Having reached this conclusion, the primary judge did not quash the proper officer's decision and remit the matter to him or to the Authority to be determined according to law, but rather quashed the decision and ordered that the medical assessment be referred to a review panel of at least three medical assessors pursuant to s 63(3) (at J [69]).
58. NRMA appealed on the grounds that the primary judge erred in

• finding that the proper officer mistook his function (J [62] and [66]) and determined the issue on its merits;
• finding that the proper officer exceeded his bounds of authority because there was significant material before him that demonstrated significant differences of opinion among medical practitioners (J [63]);
• finding that when a proper officer is confronted with conflicting opinions of medical practitioners the inevitable result is that there must be reasonable cause to suspect that the medical assessment is incorrect in a material respect (J [66]);
• ordering that the medical assessment be referred to a review panel.

1. As to the first ground, with respect to the primary judge, the proper officer did not seek to decide the matter on its merits. His finding that Dr Truskett's opinion was "open to him based on the evidence" did not address the correct question. But it did address the submission made to him. The submission was that: "the only available conclusion on causation … is that causation was proved, viz., that the proposed surgery to treat the neck and cervical spine was reasonable and necessary as a result of the MVA … this should have been the Assessor's determination."
2. The proper officer prefaced his statement with the words "Contrary to the submission of the applicant". He was addressing the submission of the applicant for review that the assessor's finding was not open to him and that the only available conclusion was that the proposed surgery was reasonable and necessary as a result of the motor vehicle accident.
3. This response to the submission put to him did not indicate that the proper officer mistook his function as a gatekeeper. He repeatedly applied the correct test, including in the same impugned paragraph, as to whether he was satisfied that there was reasonable cause to suspect that the assessment was incorrect in a material respect.
4. As to the second and third grounds of appeal, the existence of significant differences of opinion between the medical assessor and other medical practitioners does not mean that the proper officer mistook his function in not being satisfied that there was reasonable cause to suspect that the medical assessor erred in a material respect having regard to the particulars accompanying the application for referral to a review panel. Nor is it correct that where there are conflicting opinions of medical practitioners specialised in their field, a proper officer must have reasonable cause to suspect that the medical assessment is incorrect in a material respect.
5. Only a medical dispute is referred to a medical assessor. In the absence of conflicting medical opinion there is unlikely to be a medical dispute. If a proper officer would always have to have reasonable cause to suspect material error because there was medical opinion that differed from the opinion of the assessor, there would be no real gatekeeper function for the proper officer to exercise.
6. The existence of conflicting reputable medical opinions might well mean that the proper officer would inevitably have reasonable cause to suspect that a review panel might reach a different conclusion from the medical assessor. But that is not the question. The question is whether the proper officer is satisfied that there is reasonable cause to suspect material error by the assessor. Because the assessor's task is not to pronounce on the correctness of other medical opinion but to form his or her own opinion, it is necessary for an applicant under s 63(1) to persuade the proper officer of reasonable cause to suspect material error in the assessor's consideration, eg by the ignoring of important facts or not undertaking the assessment correctly, either procedurally or by not addressing the right questions (Meeuwissen v Boden at [22]).

Endnotes

1. See Marsh v Insurance Group Ltd t/as NRMA Insurance Ltd [2021] NSWSC 619 at [68].
2. See Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47].
3. Ibid.
4. Act, ss 62(1B) and 63(1) and (3).
5. [2021] NSWCA 19; 95 MVR 166. 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: 07 March 2022