Mandoukos v Allianz Australia Insurance Limited

Court of Appeal (NSW)|2024-03-13|Before: Leeming JA, Kirk JA, Stern JA, Chen J

The Application for Medical Review

On 12 July 2022 Mr Mandoukos filed an application for review of the Medical Assessor's decision pursuant to s 7.26(1) of the Act, which was in a relevantly identical form between June 2022 and November 2022). In the online portal application, Mr Mandoukos referred to "submissions attached" as setting out the error he alleged that the Medical Assessor had made. In the attached submissions, Mr Mandoukos contended that the Medical Assessor had fallen into legal error as: "[t]he issue in the current proceedings is whether the claimant suffered from radiculopathy as established by Clause 5.8 of the Guidelines, not whether the claimant had radiculopathy at the time of the assessment of the medical assessor."
Mr Mandoukos submitted that the Medical Assessor had not considered Dr McKechnie's reports, and that he satisfied the definition of radiculopathy as recorded by Dr McKechnie.
On 10 August 2022, Mr Mandoukos submitted late additional documents "lodged in the interests of justice". These included further submissions in which he contended : "4. The surgery performed (a Foraminotomy) alone qualifies the claimant as having a non-minor injury as this type of surgery involves removing a small portion of bone to relieve pressure on the spinal nerve. This must be a non-minor injury as it is more than just a soft tissue injury as outlined in S.1.6 of the Act. … 7. Dr Assem [the Medical Assessor] has failed to consider the laceration/scarring from the surgery as capable of being non-minor injury caused by the [motor vehicle accident]. 8. The claimant submits that because of that surgery, the claimant has sustained a non-minor injury in the form of a laceration and/or scarring to his cervical spine. … 12. The claimant therefore satisfies the definition of non-minor injury, either due to the presence of radiculopathy since the motor vehicle accident or due to a laceration/scarring because of surgery to the cervical spine directly consequential upon the motor vehicle accident." (Emphasis in original.)

The primary judgment

Mr Mandoukos contended before the primary judge that the decisions of each of the Medical Assessor and the Delegate suffered from jurisdictional error and/or errors of law on the face of the record.
The primary judge accepted Mr Mandoukos' contention that the Medical Assessor did not address whether the foraminotomy was itself an injury, but found that this was because Mr Mandoukos "never advanced a submission, or case, to that effect - nor anything remotely approaching it": J[108]; see also J[112], [117]. Moreover, other than the operation report of Dr McKechnie, the primary judge found that there was no evidence before the Medical Assessor, nor before the Court, as to what is physically involved in a foraminotomy: J[112], and his Honour found that the operation report said "nothing about the specifics of what was involved, and the plaintiff did not submit to the contrary": J[113]. Having regard to both of these factors, the primary judge found that the Medical Assessor's failure to consider whether the surgery itself meant that Mr Mandoukos' injury was not a minor injury was not a jurisdictional error and the Medical Assessor did not fail to apply the lawful test of causation: J[118], [120], [130]. The primary judge also held the reasons were legally sufficient given the case Mr Mandoukos ran before the Medical Assessor: J[134].
As the primary judge had found that the decision of the Medical Assessor was in accordance with law and it would not have been open for any delegate to arrive at a decision inconsistent with that conclusion, it would not have been open to the Delegate to find that the decision of the Medical Assessor "was incorrect in a material respect" as required by s 7.26(2) of the Act. Thus, the primary judge held in these circumstances, it would be futile to remit the matter to the Delegate: J[138]-[139].
The primary judge thus dismissed the amended summons.

The issues on appeal

The grounds advanced in the amended notice of appeal filed by Mr Mandoukos on 6 December 2023 are: "1. The primary judge erred in finding that it was not incumbent upon the medical assessor, in discharging his statutory function of determining whether the applicant's injury was "minor" or "non-minor", to take into account the nature and consequences of the surgery reasonably undertaken by the applicant to treat the medical consequences of his motor accident. 2. The primary judge erred in concluding that, upon the material and submissions before the assessor, he was not lawfully required to take account of the nature and consequences of the surgery in making his determination. 3. The primary judge erred, having correctly found that there is no discrete concept of "consequential injury" to be found in the Act, in failing to go on to hold that the nature and consequences of the surgery were to form part of the consideration of what "injury" had been sustained as a result of the motor accident and therefore the consideration of whether that injury was "minor" or "non-minor". 4. The primary judge erred in differentiating between the concepts of "injury" and a "condition" that has resulted from that injury in a case where the surgery was aimed directly at addressing the medical consequences of the injury originally sustained. 5. The primary judge erred in treating the absence of specific evidence that the foraminotomy involved the disturbance and removal of bone as decisive against the applicant's claim for relief. 6. The primary judge erred in treating the dismissal of the application for judicial review of the medical assessor's decision as necessarily dispositive of the application for the orders sought in relation to the delegate's decision, given that the delegate's role was to determine whether there was reasonable cause to suspect that the medical assessment was incorrect in a material respect with such determination was not limited to a consideration of whether the medical assessor's decision was affected by jurisdictional error."
As was accepted by senior counsel for Mr Mandoukos, there is significant overlap as regards the matters of substance advanced in these six grounds. Consistent with the way in which oral submissions were advanced, the substance of those grounds is: 1. The primary judge erred in finding that the Medical Assessor was not required to take into account the nature and consequences of the foraminotomy procedure when considering whether Mr Mandoukos' injury was a soft tissue, and thus a minor, injury (grounds 1-5). This ground encapsulates both of the issues that senior counsel for Mr Mandoukos identified, in oral submissions, as arising from the grounds: what constituted injury for the purpose of the Medical Assessor's assessment, and was the Medical Assessor bound to take into account the removal of bone during the surgery as part of Mr Mandoukos' injury; and 2. The primary judge erred in finding that dismissal of the grounds of review as regards the decision of the Medical Assessor were dispositive of the application for review as regards the decision of the Delegate (ground 6).
It is convenient to address Mr Mandoukos' contentions by reference to these two substantive grounds. The key contention underlying both of these grounds is that the Medical Assessor had a duty under the Act to consider, and determine, whether the nature and consequences of the foraminotomy procedure which Mr Mandoukos underwent on 1 July 2020, which involved the removal of bone, was such that his injury was not a soft tissue, and thus not a minor, injury within the meaning of s 1.6 of the Act.
Before this Court, there was no dispute about the following matters.
First, that the foraminotomy procedure was undertaken, with Mr Mandoukos' consent, on 1 July 2020 on account of the symptoms he was then suffering, which symptoms were caused by the motor accident. In that sense, there was a causal link between the motor accident on 8 January 2019 and the foraminotomy procedure on 1 July 2020. As submitted by Mr Mandoukos, and not contested by the Insurer, this flowed from the finding of the Medical Assessor that the motor accident rendered his pre-existing degenerative cervical pathology symptomatic and that: "Dr McKechnie proceeded to perform a C5/6 foraminotomy on 1 July 2020 for "radicular symptoms"." (Emphasis in original.)
Second, unlike the position before the primary judge, that it is apparent from the operation note prepared by Dr McKechnie (the treating surgeon) in respect of the foraminotomy on 1 July 2020 that bone was removed in that procedure. Having regard to this, ground 5 in the amended notice of appeal fell away.
Third, that if the removal of bone in the foraminotomy procedure were part of the "injury" resulting from the motor accident, it would not be a soft tissue, and would thus not be a minor, injury under s 1.6 of the Act.

Construction of the relevant statutory scheme

Having regard to the issues on appeal, it is necessary to give close consideration to the relevant elements of the statutory framework. In the course of doing so, I will deal with some the key issues arising as to statutory construction.
The relevant statutory framework at the relevant time comprises the Act, the Regulation and the Motor Accident Guidelines (version 8.2) effective from 8 April 2022 (which again was the version agreed on by the parties) (the "Guidelines"). This legislative scheme applies as regards motor accidents occurring after the commencement of the Act, on 1 December 2017: s 1.8. Motor accidents that occur before that date remain subject to the Motor Accidents Compensation Act 1999 (NSW) (the "1999 Act").
As is apparent from the objects in s 1.3(1), the Act establishes a scheme of compulsory third-party insurance and provision of benefits and support relating to injuries sustained as a consequence of motor accidents.

Injury and minor injury

Section 1.4(1) of the Act includes a definition of injury: injury means personal or bodily injury and includes - (a) pre-natal injury, and (b) psychological or psychiatric injury, and (c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Neither personal nor bodily injury is itself defined. During the hearing of the appeal senior counsel for Mr Mandoukos submitted that any detrimental alteration to a person's body "should comfortably meet the definition of injury in the Act". He submitted, further, that "[i]njury necessarily connotes some harm, in ordinary English language". In this regard he relied upon the decision of this Court in Dean v Phung [2012] NSWCA 223 at [30] (Basten JA, Beazley JA (as her Excellency then was) and Macfarlan JA relevantly agreeing). There, his Honour held that, in ordinary language, "an injury is a harmful consequence". That was in a factual context in which the dispute was whether extensive dental surgical procedures could themselves be an act done "with intent to cause injury (for the purposes of s 3B(1)(a) of the Civil Liability Act 2002 (NSW)) in circumstances in which it was admitted that treatment was unnecessary but had been presented as necessary and the plaintiff suffered from significant pain, concern and disruption of his life. It should not, in my judgment, be construed as suggesting that any harmful consequence will, itself, necessarily be an injury. Read in context, that was plainly not what his Honour was intending to suggest. His Honour went to on observe that a harmful consequence would not ordinarily be used to describe "[s]omething which is done with a therapeutic intent, that is, to prevent, remove or ameliorate a disability or pathological condition, would not ordinarily be described": at [30].
In the context of workers compensation legislation, the "ordinary sense" of the word "injury" has been held to mean "some definite or distinct 'physiological change' or 'physiological disturbance' for the worse which, if not 'sudden', is at least 'identifiable'": Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 at [75] (Gageler J); see also at [45] (French CJ, Kiefel, Nettle and Gordon JJ). In my judgment, whilst this definition was arrived at in a different legislative context, that understanding of the word "injury" provides guidance as to the ordinary meaning of "personal or bodily injury" in s 1.4 of the Act, at least as regards physical, as opposed to psychological or psychiatric, injury.
Ultimately, the submission advanced by senior counsel for Mr Mandoukos was that the foraminotomy procedure fell within the definition of injury in the Act because: "in circumstances where surgery brings about an alteration in the claimant's body, and that alteration has only been brought about not through the choice of the claimant in any real sense but, but by reason of someone else having wronged them, then it is in ordinary parlance in our submission to be regarded as injury."
In circumstances in which, as here, the particular surgical procedure is not contended to have been other than reasonably necessary, and the Court was not taken to any evidence showing an identifiable detrimental impact upon Mr Mandoukos' symptoms or functioning arising from the foraminotomy procedure, it may be doubted whether this submission should be accepted. That is particularly so given that the scheme of the Act is to provide treatment, care, compensation and financial support to those injured in motor accidents. However, having regard to my conclusions as to the ambit of the medical dispute referred to the Medical Assessor, as set out below, it is unnecessary to decide whether or not Mr Mandoukos' contention is correct. Moreover, given that this is a matter which may ultimately turn upon a detailed factual assessment, it is undesirable for this Court to express any concluded view in circumstances in which there has not been any medical assessment of the impact of the surgery upon Mr Mandoukos.
Minor injury is defined in s 1.6: 1.6 Meaning of "minor injury" (1) For the purposes of this Act, a minor injury is any one or more of the following - (a) a soft tissue injury, (b) a minor psychological or psychiatric injury. (2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. … (4) The regulations may - (a) exclude a specified injury from being a soft tissue injury or from being a minor psychological or psychiatric injury for the purposes of this Act, or (b) include a specified injury as a soft tissue injury or as a minor psychological or psychiatric injury for the purposes of this Act. (5) The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a minor injury for the purposes of this Act. (6) Subsection (5) does not enable the Motor Accident Guidelines to make provision for or with respect to the resolution of disputes by the Commission or medical assessor.
Regulation 4(1) of the Regulation, headed "Meaning of "minor injury"" (which has not changed between the relevant times) provides: An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.
The Guidelines provide guidance as to what amounts to radiculopathy, requiring that two or more of a list of clinical signs be apparent. Given the issues arising in this appeal, it is unnecessary to consider whether or not the Guidelines go beyond the power conferred in s 1.6(5) of the Act.

The significance of an injury being a minor injury

Part 3 of the Act makes provision for the payment of statutory benefits by the "relevant insurer" in respect of the death or injury to a person resulting from a motor accident in NSW: ss 3.1-3.2. Section 3.11(1)(b) provides that an injured person is not entitled to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if: the person's only injuries resulting from the motor accident were minor injuries.
Section 3.28 makes equivalent provision as regards statutory benefits for treatment and care expenses.
Part 4 of the Act includes provision for damages to be assessed by the Commission in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle. It applies both as regards the award of damages by a court and the assessment of the amount of damages by the Commission. Section 4.1 provides that a reference in Pt 4 to the "award of damages" includes reference to any such assessment of the award of damages. Section 4.4 provides: No damages may be awarded to an injured person if the person's only injuries resulting from the motor accident were minor injuries.
It is apparent from these provisions that the Act contemplates that two or more "injuries" may result from one motor accident. It will necessarily be a matter of fact and degree in each case whether what results from a motor accident is properly regarded as one, or more than one, injury. A range of matters may be relevant to, but not necessarily determinative of, that question. Such matters would include the nature of any harm or damage, the identifiable physiological change or disturbance relied upon, whether it is physical or psychiatric/psychological, the body part(s) involved (if any), and whether the harm or damage was sustained by reason of the immediate impact of the motor accident or from some later event, such as medical or surgical treatment or a fall, which itself resulted from the motor accident.

Claims under the Act

Claims for statutory benefits or damages may be made under the Act: s 6.12, and "claim" is defined as either such claim: s 1.4(1). Under s 6.3(2), the general duties of claimants to act with good faith includes a duty to "promptly do all things reasonably necessary to facilitate the resolution of any dispute involving the claim": s 6.3(2)(c). Under s 6.4(1), it is the duty of both "an insurer and a claimant to endeavour to resolve a claim as justly and expeditiously as possible". Under s 6.20, liability for a claim may be admitted or denied, whether in full or "for only part of the claim". As regards a claim for damages, under s 6.25(2), it is the duty of the claimant to give relevant particulars including full details of: (b) the injuries sustained by the claimant in the motor accident, and (c) all disabilities and impairments arising from those injuries
It is apparent from these provisions that the scheme of the Act is to encourage resolution of claims, and of disputes that have arisen about claims, as between a claimant and an insurer.
It is also apparent that the Act is premised on a distinction being drawn between injuries sustained in the motor accident on the one hand (of which there may be more than one), and permanent impairment arising from those injuries, on the other. That distinction is also reflected in the provisions in the Act which are predicated upon "the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident" being greater than 10%: see eg s 1.7(1). Again, many factors may potentially be relevant to the distinction between an injury and permanent impairment arising from the injury.

Medical assessors

The Commission is established under Personal Injury Commission Act 2020 (NSW). Section 18 provides for delegation of the functions of the President. Section 33(1)(b) provides for the appointment of medical assessors for the purposes of the Act. Section 65(2)(a) provides that regulations may make provision for or with respect to the qualifications or criteria for the appointment of medical assessors. Regulation 6 of the Personal Injury Commission Regulation 2020 (NSW) provides: For the purposes of section 65(2)(a) of the Act, a person is eligible for appointment as a medical assessor if the person is - (a) a registered health practitioner or a medical practitioner within the meaning of the Health Practitioner Regulation National Law (NSW), but only if the practitioner does not have a condition imposed against the practitioner's registration as a result of disciplinary proceedings under that Law, and (b) a member of an Australian or Australasian medical college, faculty or other Australian or Australasian health profession body, and (c) in the opinion of the President, suitably qualified and has the necessary skills and expertise to exercise the functions of a medical assessor in relation to the Act or the enabling legislation.
Having regard to this it may be assumed that any medical assessor is medically qualified. Beyond that, however, there is no statutory requirement for a medical assessor to hold any particular qualification to be able to act as medical assessor in any particular case. Thus, whilst senior counsel for Mr Mandoukos on appeal submitted that "one may assume…that the matter is being referred to someone appropriately qualified", there was no evidence before the Court as to the specific qualifications either of the medical assessors to whom the dispute about Mr Mandoukos' claim was referred.

The ambit of a medical dispute under Part 7 of the Act?

Part 7 of the Act is headed "Dispute resolution". Division 7.5, within Pt 7, is headed "Medical Assessment".
Section 7.17 provides: In this Part - medical assessment means an assessment of a medical assessment matter under this Division. medical dispute means - (a) a dispute between a claimant and an insurer about a medical assessment matter; or (b) an issue arising about a medical assessment matter in proceedings before a court for damages or in connection with the assessment of a claim by the Commission
Section 7.17 was in the same form as at 19 September 2019 when Mr Mandoukos first referred a medical dispute about a claim for assessment.
Schedule 2, cl 2 declares a number of matters "to be medical assessment matters for the purposes of Part 7" of the Act. These include, at cl 2(e): whether the injury caused by the motor accident is a minor injury for the purposes of the Act.
The proper construction of subparagraph (a) of the definition of "medical dispute" in s 7.17 (sub-paragraph (b) not being relevant as to date there has been no assessment of Mr Mandoukos' claim for damages) is at the heart of the issues arising on appeal.
Senior counsel for Mr Mandoukos submitted that "a dispute … about a medical assessment matter" in s 7.17 necessarily entailed that the medical dispute comprised "the whole of the relevant medical assessment matter" as regards the particular body part involved, here Mr Mandoukos' cervical spine. Thus, he submitted, in the present case the "medical dispute" referred to the Medical Assessor on 22 November 2021 was as to whether any matter that in fact could be characterised as an injury to Mr Mandoukos' cervical spine resulting from the motor accident on 8 January 2019, including the removal of bone during the foraminotomy on 1 July 2020, meant that the injury to his cervical spine resulting from the motor accident was not a minor injury for the purposes of the Act. This was so irrespective of the fact that as at the time of the Medical Assessment, Mr Mandoukos had not raised any dispute as to whether or not the injury to the cervical spine included the removal of bone during the foraminotomy procedure.
That contention should be rejected. The phrase "about a medical assessment matter" in s 7.17 does not mean that the medical dispute necessarily encompasses the whole of the medical assessment matter. Rather, a dispute between a claimant and an insurer about a medical assessment matter, in s 7.17, is a reference to the dispute which has in fact arisen between a claimant and an insurer, albeit that, to fall within the definition of "medical dispute" in s 7.17, that dispute must relate to the subject matter of a medical assessment matter. That construction is consistent with one of the objects of the Act being to encourage "the quick, cost effective and just resolution of disputes": s 1.3(2)(g). It is also consistent with the provisions set out above imposing an obligation upon the parties to do all things reasonably necessary to facilitate the resolution of any dispute involving the claim and providing for part only of a claim to be admitted.
Were Mr Mandoukos' proposed construction to be accepted, it would be incumbent upon a medical assessor under the Act to trawl through all material provided to identify whether there is any matter which, albeit not complained of or identified as such by a claimant, could fall within the ambit of personal or bodily injury as defined in the Act. Each and every instance of medical or surgical treatment would need to be interrogated by the medical assessor to ascertain whether it could itself be characterised as such an injury. Such a construction of the Act should not be adopted absent clear statutory language in support. The language of the Act falls well short of meeting that threshold.
This is all the more apparent having regard to the breadth of the medical assessment matters declared under cl 2 of Sch 2. Thus, for example, cl 2(b) declares as a medical assessment matter: whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)
It is unlikely that Parliament intended that the whole of that matter be referred for medical assessment in circumstances where the dispute between the parties related only to only a limited aspect of that treatment or care.
My conclusion as to the proper construction of s 7.17 is also consistent with the use of the word "about" in Pt 7 more generally. Thus, under s 7.19(2) a "medical dispute about a decision of an insurer may be referred for assessment" and under s 7.20(1) a "medical dispute about a claim" may be referred for assessment (whilst ss 7.19 and 7.20 were in a somewhat different form as at 19 November 2019 when the medical dispute was referred for assessment, those differences are not relevant to the issues arising in this appeal). In both instances, it is apparent that the medical dispute will not necessarily encompass the whole of the "decision" or "claim". Rather, the word "about" denotes the subject matter in respect of which the medical dispute in fact arises.
Thus, the medical dispute "about a medical assessment matter" will, in each case, be a question of fact depending upon the ambit of the dispute between the parties at the relevant time having regard to the competing claims made. Whilst it is of course possible that a dispute about a medical assessment matter might comprise the whole of the relevant medical assessment matter, that is not necessarily so.
My preferred construction is also consistent with the construction of the somewhat analogous, and similarly worded, s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) reached by this Court in Skates v Hills Industries Ltd [2021] NSWCA 142 and Scone Race Club Ltd v Cottom [2024] NSWCA 34. Section 319 provides: medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim - (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable.
In Skates v Hills Industries Ltd, Basten JA held that the form for an application to resolve a dispute and the material submitted with it "defined the proper scope of the referral": at [30]. Leeming JA (in additional reasons agreeing with the reasons and orders of Basten JA) observed: "44 The starting point is a 'medical dispute'. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). … It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims. … 46 The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates' application; indeed, it was why the documents setting out both sides' claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a "medical dispute" because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute. 47 Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences "Referral of medical dispute" and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate. … 50 …the purpose of the statutory regime [is] to resolve a medical dispute and … a dispute is identified by the disputants' competing claims." (Emphasis in original.)
In Scone Race Club Ltd v Cottom, Basten AJA (Gleeson and Mitchelmore JJA agreeing) relied upon the reasoning of Leeming JA in Skates v Hills Industries Ltd at [44]. The Application to Resolve a Dispute had been amended such that it was limited to a right knee injury and did not extend to a claimed injury to the lumbar spine which the worker contended to be consequential upon the knee injury: at [36], [38]. The Court accepted the appellant's contention, in those circumstances, that the claimed lumbar spine injury was not part of the medical dispute referred for assessment and that an Appeal Panel would have erred if it had considered documents which purported to rely upon the consequential spine injury: at [47]-[48], [53].
Further, contrary to the contention of senior counsel for Mr Mandoukos, the conclusion I have reached as to the proper construction of s 7.17 of the Act, is not inconsistent with what was said by Allsop P and Giles JA (Basten JA dissenting) as regards the ambit of the jurisdiction of a review panel under s 63 of the 1999 Act in McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 ("McKee"), which he submitted applied "with equal force…to the parameters of a referral to a medical assessor". Section 63 of the 1999 Act relevantly provided (at the material time): (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. … (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.
The question for the Court was whether review by the review panel of a medical assessment on the issue of permanent impairment was limited to the grounds on which the assessment was said to be incorrect in the application for review: at [5]. Allsop P held that it was not and that the "matters concerned" in s 63(4) of the 1999 Act are "the matters referred for assessment, being the medical dispute referred for assessment": at [7], see also at [27]-[30] (Giles JA). His Honour added that if consideration of the matters referred for assessment went beyond the evident dispute thrown up by the application for review procedural fairness would require "any and all necessary steps to ensure a fair hearing": at [8].
As is apparent, McKee does not support Mr Mandoukos' contention that the ambit of a "medical dispute" in s 7.17 of the Act is not limited to the actual medical dispute between the parties which is referred for assessment. Rather, the analysis of the powers of the review panel is premised upon the desirability of the review panel reviewing the entirety of the "medical dispute" referred to the medical assessor, being (under the 1999 Act) the "disagreement between the claimant and the insurer" about particular matters: at [7] (Allsop P) and [24] (Giles JA), before confirming or revoking the medical assessor's certificate.

Medical assessments

Section 7.20 of the Act relevantly provides: (1) A medical dispute about a claim may be referred to the President for assessment under this Division by - (a) either party to the dispute, or (b) a court or the Commission, or (c) a merit reviewer. (2) The President is to arrange for the dispute to be dealt with by one or more medical assessors.
Under s 7.23(1) and (7) of the Act the medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate "as to the matters referred for assessment" and the 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." Certificates of a medical assessor are of considerable significance given that, under s 7.23(2), in any court proceedings or in any proceedings in connection with a merit review or claims assessment under the Act, they are: (a) prima facie evidence of any matter certified as to the degree of impairment of earning capacity of the injured person as a result of the injury concerned, and (b) conclusive evidence of any other matter certified.
Section 7.24 provides for "a medical dispute referred for assessment" at any time to be referred again for assessment by a court, a merit reviewer or by the Commission or to be referred again for assessment by the claimant or insurer on grounds prescribed by the regulations, which is to be done by application to the President: s 7.24(4). It was in a relevantly identical form as at 21 November 2021 when the medical dispute in this case was referred again for medical assessment. Under s 7.24(5): The President is to arrange for the medical dispute to which the application relates to be referred to one or more medical assessors for a further medical assessment, but only if the President is satisfied that the application meets the requirements for referral under (2).
In Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 the Court considered s 62(1) of the 1999 Act which at the time provided that a "matter referred for assessment under this Part may be referred again on one or more further occasions …". Giles JA (Tobias and Handley JJA agreeing) held that the "matter" referred again under s 62(1) was necessarily the matter that had been initially referred for assessment under the Act: at [74]. Thus, a different, or lesser, matter could not be referred under s 62(1). Given that s 7.24(1) of the Act provides that a "medical dispute referred for assessment…may be referred again for assessment", which is relevantly similar language to that considered by the Court in Motor Accidents Authority of NSW v Mills, the decision in that case is highly persuasive authority to the effect that the medical dispute referred back to a medical assessor under s 7.24(1) is the medical dispute that had previously been referred for assessment under Div 7.5 of the Act. Moreover, that reflects the language of a medical dispute being referred "again" for assessment. That construction should be adopted. If a new medical dispute arises, that would need to be by further referral under s 7.20(1) of the Act.
Further, a second referral of a medical dispute under s 7.24 is subject to s 7.25, which provides that the assessment of a medical dispute by way of a further medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment or whether a particular injury was caused by the motor accident. It is of some significance as to construction that there is no provision equivalent to s 7.25 when a medical dispute is referred for assessment for the first time under s 7.20. Again, this is consistent with the definition of medical dispute in s 7.17(a) only encompassing that which is actually in dispute between the parties. Thus, s 7.25 recognises that the ambit of a medical dispute may be diminished by agreement between the time of a first, and second, referral for assessment.

The Guidelines

A submission was advanced in writing on behalf of Mr Mandoukos to the effect that cll 6.5-6.7 of the Guidelines, contained in Pt 6 relating to "Permanent Impairment" and/or the common law principles of causation supported a construction that the Medical Assessor was statutorily obliged to consider for himself whether or not the foraminotomy was itself an "injury" resulting from the motor accident even if this was not in any way raised by Mr Mandoukos. Having regard to my preferred construction of "medical dispute" in s 7.17 of the Act (and even if, as submitted by Mr Mandoukos relying on Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35], those clauses of the Guidelines were relevant to the assessment of minor injury, as opposed to impairment) this submission should be rejected. Unless a matter falls within the ambit of the medical dispute referred to the medical assessor, there was no obligation upon the medical assessor to consider it as part of his assessment.

Review of a medical assessment

Section 7.26 of the Act relevantly provides: (1) A claimant or an insurer may apply to the President to refer a medical assessment under this Division by a single medical assessor to a review panel for review. (2) An application for made only on the grounds that the assessment was incorrect in a material respect. … (5) The President is to arrange for the medical assessment to be referred to a review panel, but only if the President 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.
In Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 ("Meeuwissen"), considering s 63(3) (now s 63(2B)) of the 1999 Act which is in relevantly similarly language to s 7.26(5), Basten JA (Beazley JA and Sackville AJA agreeing) described the role of the proper officer under s 63(3) of the 1999 Act as "that of a gate-keeper": at [23], and held that the language of then s 63(3) was "inconsistent with the proper officer being expected (let alone required) to carry out an assessment or calculation, as opposed to identifying possible error": at [22]. His Honour also identified that "what must be incorrect in a material respect is "the medical assessment" and not the certificate which results from the assessment": at [19].
The language of s 7.26(5) also requires consideration of what are, in a particular case "the particulars set out in the application". In Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [43] ("Marsh"), White JA (Basten and Macfarlan JJA agreeing) held that the "particulars set out in the application" referred to in (the relevantly similar) s 63(3) of the 1999 Act were "those matters stated in the attached submissions": at [43]. White JA held that it is not reasonably arguable that the words in s 63(3) "having regard to the particular set out in the application" should be read as "having regard to all the materials before (or available to) the proper officer", as was submitted by the respondent in this case: at [45]. His Honour added that this 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…[b]ut 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": at [45].

Conclusion on statutory construction

The key matter arising out of the analysis set out above, in the context of this case, is that the medical dispute referred for assessment under s 7.20, or referred again for assessment under s 7.24 of the Act, is the actual medical dispute between the claimant and the insurer about the relevant medical assessment matter. That conclusion is fatal to Mr Mandoukos' appeal since all of his contentions are premised upon the Medical Assessor being obliged to consider whether the removal of bone during the foraminotomy meant that the injury to his cervical spine resulting from the accident was not a minor injury. There was no dispute as to that between Mr Mandoukos and the Insurer at the time of either the first, or second, referrals for medical assessment. It was no part of the medical dispute referred for assessment on either occasion.

Did the primary judge err in finding that the Medical Assessor was not required to take into account the nature and consequences of the foraminotomy procedure when considering whether Mr Mandoukos' injury was a minor injury (grounds 1-5).

As set out at [41] above, the essence of Mr Mandoukos' contention is that, under the Act, it was incumbent upon the Medical Assessor to give consideration to the foraminotomy procedure when assessing whether Mr Mandoukos had sustained only a minor injury. This was because a foraminotomy involved the removal of bone, and in those circumstances the medically qualified Medical Assessor was obliged to consider whether that meant that the injury to Mr Mandoukos' cervical spine resulting from the motor accident was not a soft tissue, and thus not a minor, injury.
It follows from my analysis of the Act, as set out above, that this contention must be rejected. The medical dispute referred "again for assessment" to the Medical Assessor under s 7.24 of the Act was the medical dispute which had been initially referred for medical assessment under s 7.20 of the Act on 19 September 2019. I have set that out at [15] above. It was aptly summarised in the referral for further medical assessment on 22 November 2021 as whether "cervical spine injury - radiculopathy caused by the motor accident" was a minor injury. It manifestly did not include any medical dispute as to whether the disturbance or removal of bone constituted part of the injury to Mr Mandoukos' cervical spine resulting from the motor accident on 8 January 2019.
In these circumstances, under the Act there was no obligation upon the Medical Assessor to consider whether the removal of bone during the foraminotomy procedure was such that Mr Mandoukos' injury could not be a soft tissue, or minor, injury. As set out by White JA in Marsh at [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."
It follows that grounds 1 to 5 of Mr Mandoukos' amended notice of appeal should be dismissed.
In any event, even on the assumption that the removal of bone during the foraminotomy procedure could be a personal or bodily injury as defined in the Act (a question which, as set out at [54] above, it is unnecessary and inappropriate for this Court to determine) my provisional view is that that would be a "different" injury from the injury to Mr Mandoukos' cervical spine sustained at the time of the motor accident. The foraminotomy procedure occurred some 18 months after the motor accident. It involved a mechanism, consensual surgical removal of bone, entirely separate from the impact of the motor accident. That is so even though it was performed by reason of Mr Mandoukos' symptoms resulting from the motor accident. It is also of a different character from an assault or impact upon the body consequent upon the forces of the motor accident. Ultimately, however, if Mr Mandoukos seeks referral of a medical dispute as to whether the foraminotomy procedure has the consequence that the cervical spine injury he sustained in the motor accident is a minor injury, that question can be assessed by a medical assessor.

Did the primary judge err in dismissing the application as against the Delegate's decision (Ground 6)?

In ground 6, Mr Mandoukos contends that the primary judge erred in treating the rejection of the grounds of review as against the Medical Assessor's decision as dispositive of the application for judicial review as regards the Delegate's decision. In this regard, Mr Mandoukos contends that the primary judge erred in concluding: "138 In my view, having rejected all grounds of review, there is no basis upon which the matter could be the subject of a different outcome by a delegate. That is because, even if error was demonstrated in the reasons of the delegate that warranted it being returned for reconsideration under s 7.26(1) according to law, this Court has determined that the decision of the medical assessor was in accordance with law. In those circumstances, and contrary to what the plaintiff submitted, it is simply not open for any delegate, to arrive at a decision that would be inconsistent with that conclusion; it would thus not be open for any delegate to conclude that the assessment by the medical assessor "was incorrect in a material respect": s 7.26(2) of the Act. 139 It follows that this is a case where it would be futile to remit the matter to the delegate (or even another delegate) for redetermination in light of my reasons."
I would accept Mr Mandoukos' contention that the primary judge erred in this analysis. The question for the primary judge was whether, under the Act, it was open to the Delegate not to be "satisfied that there [was] reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application", as provided in s 7.26(5) of the Act. That was not a question which turned on whether or not there was jurisdictional error in the decision of the Medical Assessor. As Basten JA held in Meeuwissen at [23] (Beazley JA and Sackville AJA agreeing) as regards equivalent provisions in the 1999 Act: "The power under s 63 [of the 1999 Act] is that of a gatekeeper, not a decision-maker. Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts: where an important fact has been ignored, the assessment has not been properly undertaken and the statutory right subverted."
However, Mr Mandoukos' challenge to the decision of the Delegate must fail in any event. Given that the ambit of the referral to the Medical Assessor was confined by the parameters of the "medical dispute", and the medical dispute referred did not include any question as to whether the disturbance or removal of bone during the foraminotomy was part of Mr Mandoukos' injury, there can be no possible jurisdictional error in the Delegate's conclusion under s 7.26(5). Indeed, senior counsel for Mr Mandoukos accepted during the hearing of the appeal that this would follow if the referral to the Medical Assessor was so confined.
In these circumstances, ground 6 of the amended notice of appeal should be dismissed.

Conclusion

Mr Mandoukos' appeal must be dismissed. As neither party made submissions as to costs, there is no basis to do anything other than make the usual order that costs follow the event.
Thus, the orders I propose are: 1. The appeal is dismissed. 2. Appellant to pay the first respondent's costs of the appeal.

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: 04 April 2024

Motor Injuries Regulation 2017(NSW)

Solicitors: Garling & Co Lawyers (Appellant) Hall & Wilcox Lawyers (First respondent) Crown Solicitor for NSW (Second and third respondent) File Number(s): 2023/297678 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2023] NSWSC 1023 Date of Decision: 28 August 2023 Before: Chen J File Number(s): 2022/369396

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