Marsh v Insurance Group Limited t/as NRMA Insurance Limited

Supreme Court of NSW|2021-03-03|Before: Simpson AJ

Solicitors: Michael Evers & Co (Plaintiff) Hall & Wilcox (First Defendant) Crown Solicitor for NSW (Second Defendant) File Number(s): 2020/192983

Judgment

SIMPSON AJ: By summons filed in this Court on 30 June 2020, the plaintiff (Mr Robert William Marsh) seeks judicial review pursuant to s 69(1) of the Supreme Court Act 1970 (NSW) and declaratory relief pursuant to s 75 thereof in respect of a decision made on 11 May 2020 under s 63 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act").

Factual background and history

The plaintiff was born in March 1957. Until 2011 he worked in the stevedoring industry. On 12 September 2010 and 5 March 2011, in workplace accidents, he suffered injuries to his left knee, left leg and both shoulders as a result of which he had, by August 2012, ceased work. Medical examinations were conducted, presumably for the purpose of claims for compensation under the relevant workers' compensation legislation (the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act")).
On 7 or 8 August 2012 (both dates are given in the documents; the precise date is immaterial) the plaintiff was a passenger in a motor vehicle which was involved in a collision with another vehicle. It was and is not in dispute that the collision was caused by the fault of the driver of the other vehicle, which was subject to a policy of third party insurance issued by the first defendant. Nor was it in dispute that the plaintiff sustained some injury in the collision, for which he was entitled to claim compensation from the first defendant under the provisions of the Act.
On 8 May 2013 the plaintiff was examined by Dr Ian Meakin, an orthopaedic surgeon to whom he was referred for assessment by the first defendant. Dr Meakin reported on the same day. The precise purpose of the referral is not stated, but it is a reasonable inference that the plaintiff had made a claim for compensation under the Act. It is possible that the claim was for the cost of surgery to the plaintiff's left shoulder, a claim which was ultimately rejected (Aff 48) on the basis that the shoulder condition for which the surgery was proposed pre-existed and was not caused by the motor accident (Aff 54) ("Further Certificate" of Dr Frank Machart, 10 June 2013, Aff 48 ff).
In any event, in his report Dr Meakin recorded complaints by the plaintiff of discomfort in his "posterior cervical neck", which was present all of the time and related to the extremes of range of motion, and lesser pain in the midline of his "lower lumbar back" (Aff 36).
Dr Meakin summarised the results of radiological investigations that predated the motor accident, none of which included investigation of the cervical spine and none of which gave any indication of concerns about the plaintiff's cervical spine. He noted a subsequent CT scan of the plaintiff's cervical spine dated 23 October 2012 (that is, post-dating the motor accident), as to which the radiologist reported: "No acute vertebral abnormality noted - no focal disc protrusion or neural compromise; - posterior spurring and uncovertebral spurring at multiple levels is compromising the foramina particularly at C5/6 bilaterally out of the C6/7 left on the left side. Milder changes also involve the C3/4 level on the right." (Aff p 39) Dr Meakin considered that the plaintiff had, in the motor accident, suffered: "a flexion/extension injury to his cervical neck and lumbar back with some continued discomfort and an asymmetrical loss of active range relating to the lumbar back". He concluded: "The cervical spine has maintained a full range of movement with no evidence of paravertebral muscle spasm or guarding." (Aff 39) He further stated: "It is my opinion that the Claimant's current, clinical status relating to the cervical neck and lumbar back relate entirely to the effects of the motor vehicle accident … ." (Aff 40)
He finally expressed the opinion that the plaintiff suffered a permanent impairment as a result of the motor accident (but this related to the lumbar spine injury). As to the plaintiff's cervical spine, Dr Meakin found: "… 0% Whole-person impairment with no clinical issues to be considered. The Claimant has remained symptomatic since the motor vehicle accident with a symmetrical, normal, active range of motion with no evidence of paravertebral muscle or guarding; also no clinical symptoms and signs that would satisfy the definition of radiculopathy as set out under 4.2 of the Guides and there are no symptoms that would satisfy the definition of a non-verifiable radicular complaints [sic]." (Aff 45) My medical dictionary defines "radiculopathy" as "any diseased condition of roots of spinal nerves".
It seems that, at some time in 2018, the plaintiff made a claim for damages for non-economic loss. By s 131 of the Act no damages for non-economic loss may be awarded unless the degree of permanent impairment suffered is greater than 10%. The plaintiff was referred to a medical assessor appointed under s 59 of the Act, Dr Home. Dr Home's task was to determine, pursuant to s 131, and in accordance with the Motor Accidents Medical Guidelines, whether the plaintiff's degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10%. In a Medical Assessment Certificate issued on 17 October 2018, Dr Home found that the plaintiff's degree of permanent impairment was 5%. This was directly referable to the cervical spine. By reason of that assessment, the plaintiff was not entitled to damages for non-economic loss. The certificate issued by Dr Home is, however, of some significance. In the course of giving his reasons for his conclusion, Dr Home made some observations and assessments of present relevance, although, it must be said, the reasons are somewhat confusing. With respect to the plaintiff's cervical spine, Dr Home found "dysmetria during cervical extension." (Aff 60) ("Dysmetria" is the inability to fix the range of motion). Dr Home also referred to the CT scan of the cervical spine of 23 October 2012, on which Dr Meakin had commented, and noted that it demonstrated degenerative changes, as did a subsequent CT scan of the lumbar spine of 6 February 2013, and a cervical spine MRI of 3 September 2014.
Under the heading "Diagnosis and Causation", Dr Home wrote: "I am unable to confirm that the claimant suffers from any ongoing condition arising from the effects of the motor vehicle accident". (Aff 66) It may be that that was intended to refer to the plaintiff's left hip and thigh, which Dr Home had discussed in the immediately preceding paragraphs, because Dr Home then went on to say that he was satisfied that the plaintiff's cervical spine injuries were caused by an aggravation, arising from the motor accident, of underlying degenerative change. He did not detect any objective clinical signs of cervical radiculopathy by the application of the Permanent Impairment Guidelines. He certified that injuries to the plaintiff's cervical spine, left shoulder, left hip and lumbar spine "WERE caused by the motor accident" (Aff 67). As mentioned above, Dr Home found the plaintiff to have, by reason of the injury to the cervical spine, whole person impairment of 5% (Aff 68).
It can be gleaned from the documentary material presented to this Court (Aff 70) that in April 2019 the plaintiff claimed from the first defendant compensation for the costs of proposed treatment and domestic assistance. The treatment for which he sought compensation was cervical fusion and "1 - 12 general practitioner consultations" per year for the remainder of his life. He also claimed an allowance for "0 - 60 minutes of future paid domestic assistance per week", also for the remainder of his life. The need for general practitioner consultations and domestic assistance were said to arise from the cervical spine injury in respect of which the plaintiff claimed the cost of surgery. The first defendant disputed the claim. This gave rise to a treatment dispute within the meaning of s 58(1)(a) and (b) of the Act (see at [6] above). On 15 August 2019 the first defendant filed with the Authority an application for assessment of the dispute. The application identified "cervical fusion", "general practitioner consultations" and "future paid domestic assistance" as the subject matters of the dispute. Appended to the application form were a number of radiological and medical reports. The reports appended did not include any report of any medical practitioner proposing or recommending cervical fusion. The application did include submissions by the first defendant as to why the costs sought should not be allowed.
On behalf of the plaintiff, a Reply to the first defendant's application was filed. It identified 33 documents that were attached. Included in the list were, importantly, two reports of Dr Richard Ferch, a neurosurgeon, dated, respectively, 5 November 2013, and 14 July 2015. Many other medical and radiological reports were included in the list. However, although the Reply document is included in the documents annexed to the affidavit of the plaintiff's solicitor in these proceedings, none of the attachments has been provided.
The application was referred for assessment to a medical assessor, Dr Truskett. Dr Truskett was required, pursuant to s 58(1) of the Act, to determine:

whether the proposed treatment was reasonable and necessary in the circumstances; and
whether the treatment related to the injury caused by the motor accident, and, pursuant to s 61(1), to give a certificate as to the matters referred to him for assessment.

Dr Truskett took a history from the plaintiff and examined him, and considered a variety of medical and radiological reports with which he had been provided.
These included two reports from Dr Ferch dated 15 November 2017 and 14 July 2015, and four reports of Associate Professor Leon Kleinman, an orthopaedic surgeon, dated 16 March 2012, 2 April 2014, 30 January 2018 and 27 March 2018. (It is likely that one of the reports of Dr Ferch is misdescribed in one of the documents, probably in the plaintiff's Reply). Dr Truskett noted that the 2017 report of Dr Ferch described only degenerative changes in the plaintiff's cervical spine. He noted a report of A/Prof Kleinman dated 30 January 2018 in which A/Prof Kleinman recorded that Dr Ferch wished to operate on the plaintiff's neck and have "some sort of fusion". Dr Truskett noted that "he assessed [the plaintiff] as having … 15% Whole Person Impairment due to radiculopathy" (which, Dr Truskett observed, could not be demonstrated on his examination). It is not clear to me whether "he" (referred to as having assessed the plaintiff) is Dr Ferch or A/Prof Kleinman; it probably does not matter. Dr Truskett also noted a subsequent report of A/Prof Kleinman, dated 27 March 2018, in which he (A/Prof Kleinman) stated that he believed that the proposed surgery was necessary as a result of the motor accident due to the aggravation of pre-existing asymptomatic degenerative change in the plaintiff's cervical spine.
None of the reports of Dr Ferch or A/Prof Kleinman was included in the materials provided for the purposes of the present application. It has been necessary to rely on the summaries provided by Dr Truskett.
In a certificate issued on 5 February 2020, Dr Truskett recorded the following 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 [sic - as] 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 [sic] that occurred in 2010 and 2011 respectively. … 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 that 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 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." (Aff 107)

The application for review

Pursuant to s 63(1) of the Act, the plaintiff applied for review of Dr Truskett's assessment. By subsection (3) the proper officer was therefore required to arrange for the application to be referred to a panel of at least three medical assessors, but only if 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.
The plaintiff identified three grounds on which he contended that Dr Truskett's assessment was "incorrect in a material respect". These were: 1. Dr Truskett's approach to the question of causation; 2. that Dr Truskett denied the plaintiff procedural fairness in failing to draw to his attention differences in findings made at the time of his assessment and previous findings made by Dr Home and A/Prof Kleinman in 2018; 3. asserted illogicalities in Dr Truskett's reasoning. (Aff 117)
A not insubstantial aspect of the plaintiff's argument in support of his application for review relied on what he asserted to be the erroneous failure by Dr Truskett to make his assessment in accordance with Permanent Impairment Guidelines issued under s 44 of the Act. He now abandons reliance on those Guidelines, accepting (it seems) that they are applicable to the assessment of permanent impairment for the purposes of claims under, for example, s 131 of the Act, but not to the determination of treatment disputes. He nevertheless maintains that error in Dr Truskett's assessment can be identified, such as to generate satisfaction in the proper officer that there was reasonable cause to suspect that Dr Truskett's medical assessment was incorrect in a material respect.
The plaintiff provided written submissions in support of his application for review.
With respect to ground (a), causation, after citing a definition of causation in the Permanent Impairment Guidelines (which he now accepts are inapplicable), and a largely irrelevant discussion of causation under the Civil Liability Act 2002 (NSW) and cases decided at common law, the plaintiff submitted: "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 [motor accident]. There is no evidence at all, on which the Assessor could rely, that these radicular signs were present before the subject [motor accident]. 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 before and after comparison the applicant did not have radicular neck symptoms until after the [motor accident]; (b) There is a temporal connection that the applicant had chronic neck pain after the subject [motor accident]. 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 [motor accident]. In those circumstances and [in] accordance with section 58(1)(a)-(b) of the [Act], this should have been the Assessors determination." (underlining in original)
With respect to ground (b), denial of natural justice, the plaintiff submitted: "21. The applicant was not afforded "natural justice' to proffer an explanation for the his [sic] changed 'asymmetry', between the reported findings of Dr Alan Home on 17 October 2018 and his presentation on the date of the assessment by Assessor, Dr Truskett. 22. There is no evidence, on the face of the [medical assessment certificate], that Assessor brought the content of the reports of Dr Home to his attention at any time, although Dr Truskett had the report in his possession and intended (and did in fact) rely on its content (albeit erroneously) in his opinion. 23. The applicant also submits the applicant was not afforded natural justice to proffer an explanation for the his [sic] changed level of 'impairment' of his neck, between the reported findings of Dr Leon Kleinman dated 30 January 2018, and his presentation on the date of the assessment by Dr Truskett. 24. There is no evidence that the Assessor brought the contents of the report of Dr Kleinman to his attention at any time, although Dr Truskett had the report in his possession and intended (and did in fact) rely on its content (albiet [sic] erroneously) in his opinion. 25. In denying the applicant these opportunities, there has been procedural unfairness and the opinion and findings of the Assessor relating to the neck and cervical spine 'were manifestly deficient and did not constitute compliance with the minimum obligation' of his delegated statutory power: [a number of authorities were then cited]."
With respect to ground (c), illogicality of reasoning, it was submitted: "28. The Assessor's own findings in paragraph 3, 5 and 6 do not contain any history, assessments, and evidence on which he could conclude the neurological symptoms arising from C5/6 and C6/7 pathology existed before the [motor accident]. The only pathology demonstrated and relied on, was after the [motor accident].

The determination of the proper officer

On 11 May 2020 the second defendant, as the proper officer, considered and rejected each contention. He gave reasons for doing so. With respect to causation, he wrote: "9. Causation is not simply a matter of a before and after comparison and the suggestion that the Assessor needed evidence of the radicular signs predating the accident in order to find them unrelated to the accident effectively reverses the onus of proof. … 13. … The Assessor has found that the current condition is unrelated to the motor accident and is simply the natural progression of the underlying degenerative disease. 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."
With respect to the complaint of failure to provide natural justice, the proper officer wrote: "16 The Assessor does not indicate that he felt the report of Dr Home or Dr Kleinman when compared to his own examination findings taken more than a year later, was indicative of inconsistency on the claimant's behalf. No negative finding of credit was made by the Assessor based on this, nor has there been any effect on the assessment. Contrary to the submissions of the applicant, this is not something which should have been put to the claimant by the Assessor."
The proper officer went on to refer to and quote from the judgment of Harrison AsJ in Insurance Australia Limited (t/as NRMA Insurance) v Warren [2019] NSWSC 1126 at [112], and, finally, to reject the submission of an illogical process of reasoning by Dr Truskett. He was not satisfied that there was reasonable cause to suspect that Dr Truskett's assessment was incorrect in a material respect.
The proper officer therefore declined to refer the application to a review panel. It is that decision that is the subject of the present judicial review proceedings.

The grounds of the present application

What were identified as eight "grounds for appeal and relief" were set out in the summons commencing the present proceeding. The grounds as stated are discursive, argumentative, repetitive and obscure. The ground numbered 5 will serve to illustrate the difficulty created in comprehending the case sought to be made on behalf of the plaintiff. It reads, in full: "5. The Second Defendant [The Proper Officer] incorrectly rejected the Plaintiff's submissions in support of the application under section 63, that Dr Truskett unreasonably fixated on presence of asymptomatic 'degenerative' changes in the Plaintiff's cervical spine. He should have, in the proper exercise of his delegated power, found 'reasonable cause to suspect' error by Dr Truskett in the application of the common law test of causation. In failing to so find, his decision and therefore made a material error in the application of the common law [sic]. The exercise of his delegated power was, therefore, ultra vires: Meeuwuissen v Boden (2010) 78 NSWLR 143 [per Basten J at 148] and/or legally unreasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [[2013] HCA 18]."
In other grounds reference was made to the decision of the Court of Appeal in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [129], Allianz v Rutland [2015] NSWCA 328 and Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 and this Court in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [131], Ryder v Sundance Bakehouse [2015] NSWSC 526 at [28] and Phillips v JW Williamson and RW Williamson trading as Williamson Bros [2016] NSWSC 1681. It is difficult to see the relevance of these authorities. The passage referred to in Vegan is directed to the obligation of a decision-maker to give reasons for a decision. Further, there is no [131] in Cole v Wenaline, which was a decision with respect to the assessment of permanent impairment under the Workers Compensation legislation mentioned above.
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).
Ground 3 as pleaded complained of the failure by Dr Truskett to apply the Permanent Impairment Guidelines issued under s 44 of the Act. As mentioned above, I understand this ground to have been abandoned.
As required by r 59.6 of the Uniform Civil Procedure Rules 2005 (NSW), the first defendant filed a response to the summons, stating its opposition to the relief sought by the plaintiff, and identifying numerous grounds for its opposition. The document extended to 6½ pages and 46 paragraphs, and recounted a great deal of historical material. Essentially, the first defendant's opposition was based on what it contends to be the correctness of Dr Truskett's assessment, with the consequence that the proper officer was correctly unsatisfied that there were reasonable grounds to suspect that the medical assessment was incorrect in a material respect. The first defendant sought to support Dr Truskett's assessment by reference to the medical opinions in evidence.

The plaintiff's submissions

The plaintiff's written submissions began with a proposition, drawn from the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [47] and [63], to the effect that "every statutory discretionary power has attached to it by the common law a requirement that it be exercised reasonably, having regard to the statutory purpose of the power".
It is convenient here to interpolate two observations in respect of this submission. First, no ground pleaded in the summons asserts the unreasonable exercise of a discretionary power. Second, the power in question, conferred by s 63(3), is not a discretionary power. It is a power that requires the evaluation, by the proper officer, of such material as is provided to him or her, in order to determine whether there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. Once the proper officer has reached the requisite state of satisfaction it is his or her obligation to refer the application to a review panel: Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 at [21].
Section 63(3) of the Act may be contrasted with s 62(1) which provides for further medical assessment in certain circumstances. The exercise of that power, given the language in which subs (1) is framed, is subject to a residual discretion: Jubb v Insurance Australia Ltd [2016] NSWCA 153 at [36].
As was (correctly) pointed out on behalf of the plaintiff, the satisfaction must be that of the proper officer; it is not the satisfaction of this Court: QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 at [8], [64].
The plaintiff then submitted that the decision of the proper officer was "legally unreasonable and ultra vires". That, it seemed to be submitted, was because the proper officer went beyond the determination of whether there was "reasonable cause to suspect" material error in the medical assessment and determined that the assessment of Dr Truskett was in fact correct. The plaintiff also submitted that any analysis made by the proper officer was selective in that it disregarded the assessment made by Dr Home on 17 October 2018.
Another submission (reflected in Ground 5) was that there was an "apparent fixation" by the proper officer on the word "degenerative" and that the proper officer failed to address "clearly articulated and accepted findings" by Dr Truskett, that "the cervical spine remained symptomatic for [sic] which the claimed surgery was devised to ameliorate". (No such findings by Dr Truskett are to be found in his Reasons; it is possible, however, to derive findings of the kind in some of the reports of other medical practitioners to which he referred, although without comment or adoption).
A final complaint was that the proper officer highlighted various passages in extracts from medical reports to which he referred. It was asserted that a proper reading of Dr Truskett's certificate would have informed the proper officer that the extracts were "not verbatim of the primary reporters, but Dr Truskett's narrative of them".
With reference to Ground 6, by which the plaintiff asserted that the proper officer incorrectly rejected his contention that he was denied procedural fairness by Dr Truskett, it was submitted that Dr Truskett ought to have given but did not give the plaintiff the opportunity to explain any variation in his condition or symptoms between the assessment by Dr Home and the assessment by Dr Truskett. That submission can be disposed of now. 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.

The first defendant's submissions

The first defendant chose not to address any of the arguments (other than that relating to procedural fairness) advanced by the plaintiff, taking a quite different approach. It set out what it asserted were 11 "essential findings" made by Dr Truskett. No reference was made to the location of these so called "findings" in Dr Truskett's reasoning, and I have been unable to find many of them in Dr Truskett's Reasons. By way of example, it was asserted that Dr Truskett found that "there was no objective sign of radiculopathy on clinical examination". That is something of an overstatement. In recording A/Prof Kleinman's January 2018 report, finding 15% whole person impairment "due to radiculopathy" (see [21] above), Dr Truskett merely said "This could not be demonstrated today". Similarly, it was asserted that Dr Truskett found that there was "no objective sign of any neurological deficit". I can find no observation to that effect in Dr Truskett's record of his clinical examination.
A third claimed "finding" was that "there is no indication for surgery to the cervical spine". This appears to be a misrepresentation or an overstatement of the opinion expressed by Dr Truskett, which (to repeat) was: "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."
With respect to the decision of the proper officer, the subject of the present application, the submissions of the first defendant concentrated on what it claimed to have been the findings of Dr Truskett to the effect that the motor accident had caused no more than temporary soft tissue injury to the plaintiff's cervical spine.
With respect to the claim of procedural unfairness, the first defendant submitted that it was not Dr Truskett's task to question the plaintiff about any variation in clinical findings. As I have already indicated that this ground should fail for lack of evidence about what took place during the clinical examination it is sufficient to say that I do not, as a general proposition, accept this submission. If - and it is not clear to me that this is the case - Dr Truskett's assessment was in any substantial part based on discrepancies in the plaintiff's presentation, it may well have been obligatory for him to provide the plaintiff with the opportunity to explain variations (to the extent that they involved information other than specialised medical assessment or examination): see Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41]; Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 338 at [35].

Applicable principles

The starting point in the consideration of the application lies in the identification of the role of the proper officer. That has frequently been described as that of a "gatekeeper": Dominice at [5] per Basten JA. The role of the proper officer is to determine whether a proposed challenge to a medical assessment will be permitted to proceed to an appeal panel. In Dominice Basten JA said that the role provides protection for a party satisfied with the initial assessment from frivolous or insubstantial challenges to that assessment.
Two things are important to emphasise: first, that the proper officer, who is not a medical assessor, is making a determination as to whether a proposed challenge to a medical assessment made by a medical assessor should be permitted to proceed to a reassessment by a panel of three medical assessors. That determination is not a medical one: see the discussion of Bell P and Payne JA in Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [59]-[67]. That discussion was in relation to comparable provisions in the WIM Act, but is also apposite to the Act.
Second, the threshold is relatively low: the proper officer is not required, before referring the application to a review panel, to reach satisfaction that the medical assessment was incorrect in a material respect; he or she is to reach satisfaction that there are reasonable grounds to suspect that the assessment was so incorrect: Meeuwissen at [22]. Different legal consequences apply where the decision of the proper officer is to refuse referral: Dominice, per Basten JA, at [7]. That is because refusal to refer terminates the proceedings so far as the applicant seeking review is concerned; where the assessment is referred to an appeal panel, any misconception could be expected to be identified by the appeal panel.
That the decision depends on the formation of an opinion, or of satisfaction, of the proper officer does not render it immune from judicial review: Jubb at [34] and the cases there cited. It is reviewable on conventional administrative law grounds: AAI Ltd (t/as AAMI) v Chan [2021] NSWCA 19 at [27]-[28]. Those grounds include taking into account irrelevant considerations, failing to take into account relevant considerations, and failure to address the question entrusted to the decision-maker.
In Meeuwissen Basten JA said at [23], with respect to s 63(3): "…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. Where a construction is available which would allow a full and proper assessment to occur, in place of a flawed assessment, that construction should be preferred."
The question that arises under s 63(3) is whether the proper officer's opinion has been formed according to law: Jubb, at [34], citing Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 at 118-119. In QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [36] Basten JA framed the question as follows: "… whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds."

Application of principles

It will be remembered that, in Dr Truskett's medical assessment, two questions arose for consideration: 1. whether the proposed treatment (that is, cervical fusion, and a consequent asserted need for general practitioner consultations and domestic assistance) was reasonable and necessary in the circumstances; and 2. whether (presumably on the assumption that it was reasonable and necessary in the circumstances), the proposed treatment related to the injury suffered by the plaintiff in the motor accident.
Dr Truskett addressed each of those questions, in reverse order. Without answering the second question definitively, he considered "the role of spinal fusion" to be "questionable" because of the plaintiff's "widespread degenerative disease". Dr Truskett was more explicit in relation to the causation question; it is clear, in his Reasons, that he considered that the cause of the plaintiff's then current cervical-related symptoms was degenerative change, not attributable to the motor accident.
The plaintiff's application for referral to an appeal panel focused, in the first instance, on the causation question. He relied heavily on what he called "a before and after comparison" of his symptoms pre-dating and post-dating the motor accident - there was no evidence of symptomatology prior to the motor accident and considerable evidence of symptomatology after the motor accident. Ergo, the plaintiff submitted, the "only available conclusion" was that the motor accident caused the post-accident symptoms. The proper officer correctly rejected that reasoning, at [9]. There is no need to say more about that.
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.
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.
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.)
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.
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.
The question then arises what orders or declarations should be made as a consequence of these conclusions. The plaintiff sought, alternatively or cumulatively:

a declaration of jurisdictional error;
a declaration of error of law on the face of the record;
an order in the nature of certiorari;
an order that the second defendant deal with the application for review of the medical assessment certificate in accordance with law;
an order in the nature of mandamus remitting the matter to the second defendant for referral to a review panel for determination according to law;
an order that the first defendant pay the plaintiff's costs of the proceedings.

By s 69(3) of the Supreme Court Act, where the error appears on the face of the record, the jurisdiction of this Court extends to quashing the decision of the proper officer, and, where as a matter of law only one determination should have been made by the proper officer, making such orders as are required for the purpose of finally determining the proceedings.
Accordingly, the orders and declarations I make are: (i) declare that the decision of the second defendant to decline to refer the medical assessment of the medical assessor of 5 February 2020 to a review panel is quashed; (ii) in lieu thereof, the medical assessment of 5 February 2020 be referred, pursuant to s 63(3) of the Motor Accidents Compensation Act 1999 (NSW) to a review panel of at least three medical assessors; (iii) the first defendant to pay the plaintiff's costs of the proceedings.

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 June 2021

Motor Accident Compensation Act 1999(NSW)

(2020) 102 NSWLR 783

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