McIntosh v Zobouian

Legislative provision for medical assessment in the event of dispute 8Part 3.4 of the Act (ss 57-65) provides for medical assessments if there is a dispute about whether the degree of permanent impairment is sufficient for an award of damages for non-economic loss: s 132. Part 3.4 provides for assessment by a medical assessor and also for reviews of such assessments. In relation to reviews, the provisions of s 63 are relevant and they include: A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment by a single medical assessor to a review panel for review (s 63(1)). The proper officer may only refer a matter for review if satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect (s 63(3)). The review panel is not to confine itself to the matter(s) suspected to be incorrect but is to make a new assessment of all of the matters with which the medical assessment is concerned (s 63(3A)). The review panel may confirm the original certificate or revoke it and issue a new one (s 63(4)).

The original assessment 9Dr McGroder found that injuries to Ms McIntosh's cervical spine, lumbar spine, right hip and abdomen were caused by the motor accident but that the degree of permanent impairment was not greater than 10 per cent. 10In his reasons for reaching that conclusion, Dr McGroder listed ten injuries that he had been asked to assess. Of those, the ones that he found were not caused by the motor accident included injuries to the left and right shoulder. The doctor's reasons include the following: Dr P Conrad, Surgeon ... estimated impairment for restriction of range of movement of the right shoulder although I did not feel that the right shoulder was injured in the accident and that impairment could not be assessed today because of the variable range of movement. ... Temporality would suggest that there was no injury to the right shoulder as the first mention of this was some 8 months after the accident.

The decision in Nguyen v Motor Accidents Authority of NSW 11The proper officer's decision to refer the matter for review was based upon the judgment of Hall J in Nguyen v Motor Accidents Authority (NSW) [2011] NSWSC 351; (2011) 58 MVR 296. 12In that case, Hall J was concerned with the meaning of the statutory term "the degree of permanent impairment ... as a result of the injury caused by the motor accident". The term is to be found in ss 58, 131 and 133, provisions which are all relevant in the present case. His Honour found (at [119]) that the words should be accorded their ordinary meaning. 13The facts of that case are similar to the present. Immediately after a motor accident the claimant reported symptoms of a soft tissue injury to the neck (it was not disputed that there was a cervical spine injury). It was not until four months later that right shoulder symptoms were noted. At some stage within that four month period there was an entry in hospital notes of "neck pain passing to left shoulder". 14A medical assessor (Dr Menogue) accepted that there was a "significant range of movement involving the right shoulder ... [which] is directly related to her cervical injury". However the assessor also said: There is no evidence whatsoever supporting causation between the subject accident and any primary and isolated injury to either the right or left shoulder in the subject motor vehicle accident. 15An application for referral for review was rejected by the proper officer of the Authority on the basis that there was no error in the approach taken by the medical assessor. Ms Nguyen sought judicial review of the decision of the proper officer. 16The proceedings turned on the construction of ss 131 and 133(1) of the Act. They provide: 131 No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (Emphasis added) 131(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part. (Emphasis added) 17After referring to these and certain other provisions, Hall J stated: [92] It is trite to say, and in accordance with ordinary human experience, that injury to one part of a person's body can affect or lead to impairment in both the part directly injured and in a related or connected part. [93] In the present case, there was no dispute as to the following facts:- (1) The plaintiff was injured in a motor accident. (2) That as a result of the accident, she suffered an injury to the cervical/neck area: "cervical injury". (3) The injury to the neck has led to permanent impairment (assessed at 5%). (4) The plaintiff has, as a consequence of the neck injury, also suffered an impairment in her right shoulder ("... the right shoulder noted today is directly related to her cervical injury" - Dr Menogue at p.12 of the Certificate). [94] Application of common law causation principles would, in my opinion, support the conclusion that impairment in one or both of the plaintiff's upper limbs consequent upon injury to the cervical spine would be compensable as the natural and direct consequence of spinal injury. [95] The question, however, in the present case is whether the provisions of the Act operate to alter, constrain or limit common law principles so as to disentitle an injured person to have what might be described as consequential impairment taken into account in the assessment of "permanent impairment". 18Hall J considered, as I have foreshadowed earlier, that the expression "as a result of" in ss 131 and 133(1) should be given its ordinary meaning: [119] ... [I]t is unnecessary for the requisite causal connection to be established to give the expression "as a result of" some broad or artificial meaning. It is, in my opinion, in context, to be given its ordinary meaning. The medical assessment that was required to be carried out in the present case pursuant to s.60 of the Act was to establish the plaintiff's permanent impairment (as an injured person as a result of the motor accident) that required an assessment of the injury to the cervical spine and its direct effects on related areas including, in particular, the plaintiff's right shoulder. [120] It follows that, in my respectful opinion, the medical assessment undertaken pursuant to s.60 of the Act was affected by legal error, in that the medical assessor proceeded upon a different basis, namely, that there needed to be a causal connection between the motor accident and a "primary and isolated" injury to the right and/or left shoulder(s). 19His Honour's conclusion on the facts of the case was: [125] The opinion of Dr Menogue assumes that there is a statutory requirement that in order for there to be a causal relationship between the accident and impairment in this case there must be a "primary and related injury" to the shoulders themselves, as well as, separately to the cervical spine from the motor accident. [126] That, with respect, involves an approach to statutory construction by the medical assessor which does not accord with the terms of the relevant statutory provisions nor with common law principles concerned with the concept of proximate causation. [127] In those circumstances, I have concluded that the Certificate of the medical assessor was vitiated by an error of law, as was the decision of the proper officer made on 19 July 2010.

The decision to refer for review 20In the present case, the application to the proper officer for a review was supported by submissions that the original assessment was erroneous in five respects. One of the asserted errors was that Dr McGroder had "incorrectly concluded that the claimant's right shoulder injury was not caused by the motor accident". 21The proper officer noted that Dr McGroder could not assess permanent impairment of the right shoulder because of the variable range of movement exhibited by the plaintiff on clinical examination. According to cl 2.4(iv) of the MAA Permanent Impairment Guidelines, the assessor was entitled to decline to assess permanent impairment on the basis of range of motion in the event of such inconsistency in the range of motion. But cl 2.4(v) provided, in effect, that in such circumstances the assessor should use his or her discretion in considering what weight to give to other available evidence to determine if an impairment was present. 22The proper officer's conclusion is encapsulated in the following paragraph of her reasons: Whilst the Assessor has recorded that the claimant sustained an injury to the cervical spine, and that there is radiating pain into the shoulder junction, he has not determined whether or not the recorded range of motion findings, albeit inconsistent, were a result of referred pain from the neck, in accordance with the findings in Nguyen. As the Assessor has not addressed this issue I am satisfied there is reasonable cause to suspect the assessment could contain an error. 23The proper officer determined that the suspected error was "material" and concluded that there should be a referral to a review panel. It was unnecessary for her to make a determination in respect of the other respects in which it had been contended that the original assessment was erroneous because of the requirement of s 63(3A) that a review panel conduct "a new assessment of all the matters with which the medical assessment is concerned".

Consideration by the review panel 24The review was carried out by Doctors Dowda, Marsh and Crane on 3 October 2012. A certificate and reasons were issued on 10 October 2012. The conclusion was to confirm the conclusion of Dr McGroder that the "injuries caused by the motor accident give rise to a whole person impairment which, in total, is not greater than 10%". 25Because the challenge by the plaintiff asserts error by the review panel, it is necessary to refer to the review panel's reasons in some detail. They included the following: The review panel members had each received and considered: · the documents which had been provided to Dr McGroder; · the certificate and reasons of Dr McGroder; · the application for review and attached documents; · the reply by Allianz to the application for review and attached documents; and · the determination of the proper officer referring the matter for review. The review panel considered afresh all aspects of the assessment under review. The review panel considered all of the available evidence and decided that a re-examination of the claimant was not necessary; the information provided by Dr McGroder was sufficient to make a determination. The review panel reached the same conclusion as Dr McGroder that there was a total of 8 per cent impairment in respect of injuries to the cervical spine, lumbar spine, right hip and abdomen. The review panel found that the motor accident was the cause of the four injuries just mentioned. The review panel found that the accident "was NOT a cause of the following claimed injuries"; six injuries then being listed including to the left and right shoulder. 26The reasons of the panel for the last-mentioned conclusion were expressed as follows: Because none of the contemporaneous documentation supports there being such diagnoses as listed above arising from the subject accident and the description of the clinical findings made by Assessor McGroder at the time of his examination of the injured person, with the absence of objectively identifiable thoracic spine, left and right shoulder, left hip or right lower limb abnormality leads the Panel to conclude that none of the injuries listed immediately above was caused by the subject accident.

Error asserted in the amended summons 27The amended summons pleads four errors on the part of the review panel: "Legal error on the face of the record" as well as "jurisdictional error" in approaching the assessment of permanent impairment in respect of the plaintiff's right shoulder injury on the basis that there needed to be a causal connection between the motor accident and a primary and isolated injury to the right shoulder. "Jurisdictional error" and "error of law on the face of the record" in ignoring relevant material, namely the plaintiff's complaints of pain radiating from the cervical spine to the right shoulder. "To the extent that it is necessary" there was "jurisdictional error" in ignoring relevant material and making an erroneous finding in relation to the issue as to whether the plaintiff had sustained a primary and isolated injury to her right shoulder. Failure to provide adequate reasons for not assessing permanent impairment of the right shoulder.

Considering whether there was an injury to the right shoulder caused by the motor accident and not whether there was impairment to the shoulder caused by an injury elsewhere 28The plaintiff contended that the review panel fell into error of law in identifying the wrong issue; that is, whether or not there was a causal connection between the motor accident and a primary and isolated injury to the right shoulder. That, it was submitted, was evident from the brief statement of the panel's conclusion set out above, that none of six injuries listed, which included the shoulder injury, was caused by the motor accident. 29The manner in which the conclusion was expressed indicated that the review panel failed to consider whether or not pain and restricted range of movement of the right shoulder, as recorded by Dr McGroder, were a consequence of the injury to the plaintiff's cervical spine. 30The issue to be determined was whether the right shoulder was permanently impaired, either as a consequence of a primary and isolated injury to the right shoulder or as a consequence of an injury to the cervical spine. The review panel considered the first but not the second aspect of this issue. Reliance was placed upon the statement in Nguyen at [119]-[120] which I have extracted earlier.

Failure to consider relevant material, namely the plaintiff's complaint of pain radiating from the cervical spine to the shoulder 31It was also submitted that the review panel erred by ignoring relevant material; namely the plaintiff's complaints of pain radiating from the cervical spine to the right shoulder. 32So, it was submitted, there was jurisdictional error by failing to consider relevant matters. There was also error of law on the face of the record for the purposes of s 69(3) of the Supreme Court Act 1970 (NSW).

Erroneous statement of there being an absence of objectively identifiable abnormality 33It was submitted that further jurisdictional error and error of law on the face of the record could be identified in the statement by the review panel that there was an "absence of objectively identifiable ... right shoulder abnormality". That statement flew in the face of there being two radiological assessments (in July and August 2011) that did objectively identify right shoulder abnormality.

Failure to give adequate reasons 34A failure by the review panel to give adequate reasons was submitted as an alternative basis for relief. 35Section 61 of the Act (within Part 3.4) provides for the "Status of Medical Assessments". Importantly, it provides in sub-s (2) that the certificate of a medical assessor, or assessors, as to a medical assessment is conclusive evidence as to the matters certified in relevant proceedings for damages for injuries sustained in a motor accident. The plaintiff's submissions drew attention to s 61(9): A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. 36The plaintiff referred to Allianz Australian Insurance Limited v Francica [2012] NSWSC 1577 as to the adequacy of reasons. In that case, Hall J provided a convenient reference to Court of Appeal authorities: [17] It is necessary, before turning to Dr Bodel's assessment, to say something very briefly about the principles that apply on the question of the obligation to provide reasons. The decision of the Court of Appeal in Campbell City Council v Vegan (2006) NSWCA 284 is the leading authority in relation to the principles that apply to a case such as the present. His Honour, Basten JA, with whom the other members of court agreed, at paragraph 121 stated that: "Where it is necessary for the panel to make findings of fact in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment it may be expected that the findings and material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the panel to give some explanation for its preference of one conclusion over another. That aspect may have particular significance in circumstances where the medical members of the panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners as set out in reports provided to the panel." [18] In determining the adequacy of reasons, which is the focus in Vegan, it is important to determine what was the issue; in other words, what was the precise battle ground between the parties before the determining tribunal. In the decision of Alchin v Daley (2009) NSWCA 418, Sackville AJA, with whom McColl JA and Young JA agreed, stated: "The extent and content of the reasons will depend on the particular case and the issues under consideration but it is essential to expose the reasoning on the point critical to the contest between the parties. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute." 37In the present case, the "very clear battle" between the parties concerned the question of permanent impairment of the right shoulder. The review panel was obliged to provide adequate reasons in relation to that contentious issue. This issue must have been readily apparent to the review panel as it had before it the certificate and reasons of Dr McGroder, the various medical assessments and reports he had before him, and the application for review and submissions alHaHfor and against that application. Most pertinently, the review panel had the reasoning of the proper officer for granting the application for review. 38In short, the submission was that the "issue" was readily apparent but was not dealt with. The review panel's reasons in relation to the issue of right shoulder impairment was dealt with, in conjunction with five other claimed injuries, in a single paragraph. It was submitted that "it was necessary for the [review panel] to refer to and analyse the evidence and submissions concerning the allegation that the injury to the plaintiff's cervical spine had resulted in permanent impairment to the right shoulder". The failure to analyse "the evidence and submissions dealing with the issue of referred pain from the cervical spine causing permanent impairment to the right shoulder" constituted a failure to provide adequate reasons; another error of law on the face of the record.

Determination 39Putting aside the adequacy of reasons issue for the moment, the issues in this case boil down to two questions. Did the review panel apply itself to the task of considering whether there was a right shoulder injury involving a degree of permanent impairment? If the review panel was satisfied that there was, did it also consider and determine whether (a) that injury was directly caused by the motor accident, or (b) it was a consequence of the cervical spine injury that was directly caused by the motor accident? 40It is clear enough from the review panel's reasons that there was an awareness of the Nguyen issue: that "injury caused by the motor accident" does not have to be one that was directly caused. As noted earlier, the reasons of the review panel include that each member "had received and considered" various documents including the application form seeking review, the reply by the insurer, and the determination of the proper officer. The reasons that followed should be read in that light. The proposition implicit in the plaintiff's submissions that the panel members considered that material but then ignored it is untenable. 41Included in the reasons that must be read in that light is the following: "The Review Panel found that the accident was NOT a cause of the following claimed injuries: ... Right shoulder - soft tissue injury / orthopaedic injury / aggravation and acceleration of degenerative changes" 42That was sufficient and nothing more was required. But the reasons continued with the explanation as to why the panel had come to the view in relation to the claimed right shoulder injury and five other claimed injuries that they were not "caused by the subject accident". The review panel referred to three matters: none of the contemporaneous documentation supported the diagnosis contended for; nor did the clinical findings of Dr McGroder; and there was an absence of objectively identifiable abnormality. 43I do not accept the submission for the plaintiff to the effect that the panel's statement that "none of the injuries listed immediately above was caused by the subject accident" should be interpreted as a conclusion that "none of the injuries listed immediately above were primary and isolated injuries caused by the subject of the accident". 44The review panel was not even satisfied that there was such an injury to the plaintiff's right shoulder. The occasion to consider whether it was caused, directly or indirectly, by the motor accident simply did not arise. 45The contention that the review panel failed to have regard to a relevant matter, namely the plaintiff's complaint of pain radiating from the spine to the shoulder, must also be rejected. Dr McGroder recorded in his reasons that the plaintiff complained of "pain radiating into the neck/shoulder junction". Included in the documentation that the review panel members said that they had "received and considered" was "the reasons issued by Assessor McGroder". The reasons of the review panel did not include any specific mention of this topic; nor was there a necessity to mention it. But it cannot be said that the matter was ignored or overlooked when it was encompassed in the material that had been "considered". 46Next, there was the claim that there was error in the statement that there was an "absence of objectively identifiable ... right shoulder ... abnormality". That statement must be read in the context of the reasons being concerned with "injuries ... caused by the subject accident". Whatever could be gleaned from the two radiological assessments carried out a considerable time after the motor accident, the panel members did not interpret them as supporting the proposition that there was a right shoulder injury caused, directly or indirectly, by the accident. Further, included in the material considered by the review panel was Dr McGroder's assessment that the radiological reports were "not consistent with her clinical presentation". It is not open to this Court to second guess the unanimous opinions of the four medical experts. 47The final complaint advanced for the plaintiff was an asserted failure to give adequate reasons. Counsel for the defendant referred to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex part Palme (2003) 216 CLR 212 as support for a proposition that no reasons are required to be given in relation to injuries that are not found to have been caused by the motor accident. Here, the statutory obligation to give reasons (s 61(9) and s 63(6)) related to "any matter certified in the certificate". So, the obligation was to give reasons why the review panel confirmed Dr McGroder's conclusion that four named injuries (cervical spine, lumbar spine, right hip and abdomen) were "caused by the motor accident" and "give rise to a permanent impairment which is not greater than 10%". 48But the absence of a statutory obligation to give reasons about a matter does not necessarily mean there is no requirement otherwise to give reasons: see the discussion of Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 by Beech-Jones J in Golijan v Motor Accidents Authority of NSW [2012] NSWSC 1106; (2012) 62 MVR 286 at 297-8; [51]-[53]. 49The extent of reasoning required by an administrative decision-maker depends upon the nature of the decision, the context in which it is being made and any statutory obligations that apply: as an example, see Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281; (2012) 81 NSWLR 626 at 636; [42] per Barrett JA. 50It is a "reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. This was referred to and described as a "fundamental principle" in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 by Gaudron and Gummow JJ at 628. 51In a review of a medical assessment under the Act it seems to me to be desirable for there to be some reasoning exposed as to why injuries claimed to have arisen from the motor accident were not found to have been so caused. That is particularly so where the very reason for the review is that there is a question about whether a certain injury had been properly considered in the original assessment. It is at least arguable that natural justice alone is justification for that. In the present case the issue was of sufficient importance to warrant some reasons, given that it related to the plaintiff's entitlement to damages for non-economic loss. But it is unrealistic in a case such as the present to expect detailed reasons as to negative findings by the review panel, particularly when they were confirming the original medical assessment. 52In my view, sufficient reasoning as to the issue raised by the plaintiff would demonstrate two things. First, that the review panel had considered the plaintiff's claim that she experienced a degree of permanent impairment to her right shoulder as a result of the cervical spine injury sustained in the motor accident. Second, if satisfied that there was any such impairment, that it was a direct or indirect consequence of the accident. There was sufficient in the reasons given by the panel to show that they had considered the first matter. Given that they were not satisfied of the first matter, it was not necessary for any reasons to be provided as to the second. 53I am not satisfied that any of the asserted errors contended for by the plaintiff have been made out.

Orders 54I make the following orders:

1. The plaintiff's amended summons filed on 25 July 2013 is dismissed.
2. The plaintiff is to pay the costs of the first defendant.

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: 27 September 2013