Meeuwissen v Boden & Anor

Supreme Court of NSW|2009-09-21|Before: Latham J, Howie J

CITATION : Meeuwissen v Boden & Anor [2010] NSWSC 106

DECISION : Plaintiff's summons is dismissed with costs

CATCHWORDS : ADMINISTRATIVE LAW - whether jurisdictional error in refusing to refer medical assessment to review panel - Motor Accidents Compensation Act 1999, Part 3.4, s63 - error in a material respect.

Motor Accidents Compensation Act 1999 LEGISLATION CITED : Supreme Court Act 1970 Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 Workplace Injury Management and Workers Compensation Act 1998

McKirdy v McCosker & Anor. [2002] NSWSC 197 McKee v Allianz Australia Insurance Ltd [2007] NSWSC 1067 CASES CITED : McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 ; 110 ALR 367 R v Maslen & Shaw (1995) 79 A Crim R 199

Steven Meeuwissen - (Plaintiff) PARTIES : Carolyn Boden - (1st Defendant) Motor Accidents Authority of NSW - (2nd Defendant)

D Shoebridge - (Plaintiff) COUNSEL : C Allan - (1st Defendant) Submitting appearance - (2nd Defendant)

Firths - The Compensation Lawyers - (Plaintiff) SOLICITORS : Alex Bolton, Moray & Agnew - (1st Defendant) Crown Solicitor' - (2nd Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13191/09 STEVEN MEEUWISSEN v CAROLYN BODEN & MOTOR ACCIDENTS AUTHORITY OF NSW

JUDGMENT 1 HER HONOUR : The plaintiff was injured in a motor vehicle accident on 22 May 2000. He sustained fractures to the left ulna and radius. He was assessed by the Medical Assessment Service (MAS) in 2004 for the purposes of ascertaining his entitlement, if any, to general damages. That assessment determined the plaintiff's whole person impairment (WPI) at 10%, which was insufficient to justify any damages. No issue was taken by the plaintiff with this assessment. 2 The plaintiff lodged an application on 18 August 2009 under s 62 of the Motor Accidents Compensation Act 1999 (the Act) for a further assessment, on the grounds that the injury had deteriorated. The plaintiff relied upon an assessment carried out in June 2008, which assessed his whole person impairment at 12%. This degree of impairment would have entitled the plaintiff to damages. 3 The plaintiff's application was granted and the plaintiff was assessed by a Dr Boyce, who issued a certificate on 31 March 2009 which stated that the plaintiff's WPI was 4%. 4 The plaintiff then sought a review of Dr Boyce's assessment under s 63 of the Act. Section 63 provided that an application for the referral of an assessment to a review panel could only be made on the grounds that the assessment was wrong in a material respect. The plaintiff claimed that Dr Boyce had failed to assess one aspect of his injuries, that is, an impairment arising from the resection arthroplasty of the radial head in the left arm. 5 Section 63 also provided that an assessment would not be referred to a review panel unless there was reasonable cause to suspect that the assessment was wrong in a material respect. Whilst the insurer conceded that Dr Boyce had not assessed the impairment arising from the resection arthroplasty, the "proper officer" of the MAS nevertheless concluded that there was no reasonable cause to suspect the assessment was wrong in a material respect, because, even if the omitted injury was included in Dr Boyce's assessment, the plaintiff's whole person impairment would fail to exceed 10%. 6 The plaintiff's contention is that the decision of the MAS (that is, the proper officer) is wrong in law and amenable to review under s 69 of the Supreme Court Act 1970. 7 Paraphrasing what Howie J said of the approach to an appeal by way of s 69 of the Supreme Court Act 1970 in McKirdy v McCosker & Anor. [2002] NSWSC 197 :- [4] The question for this Court is not whether the [Medical Assessment Service] was wrong in [determining that there was no reasonable cause to suspect the assessment was incorrect in a material respect], even if this error involved a misconstruction of the section, but whether [it] failed to exercise the jurisdiction conferred upon [it] by the section or so misconceived the nature and extent of the jurisdiction or the manner in which it was to be exercised that [its] purported exercise of the jurisdiction was in truth no exercise at all; Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420; Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 418. There will be a constructive failure to exercise jurisdiction …. if the [MAS] has applied the wrong test in determining whether [there was reasonable cause to suspect the assessment was wrong in a material respect]. 8 The issue raised by these proceedings is whether the MAS applied the wrong test in making the determination it did. The resolution of that question turns on the construction of ss 62 and 63 of the Act. 9 Sections 62 and 63 relevantly provide :- Referral of matter for further medical assessment S 62 (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the member of staff designated by the Authority for the purpose (in this Part referred to as the " proper officer of the Authority "). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.

Review of medical assessment by review panel S 63 (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. (2A) If a medical assessment under this Part (a " combined certificate assessment ") is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. 10 It is relevant to note at the outset that s 62(1A), (1B) and s63(3A) were introduced by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007. These provisions came into effect at the beginning of 2008. When James J determined, in McKee v Allianz Australia Insurance Ltd [2007] NSWSC 1067, that a review under s 63(4) was not limited to the particular aspect of the assessment that was said to be incorrect, he did so after an extensive analysis of the Act, including a comparison with the scheme under the Workplace Injury Management and Workers Compensation Act. That analysis properly ignored the Medical Assessment Guidelines, made under s 44(1)(d) of the Act, which provided that a review panel is to consider afresh all aspects of the assessment under review. That the Guidelines as delegated legislation made under the Act could not be taken into account for the purpose of interpreting the Act itself was confirmed on appeal : McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163. 11 The introduction of s62(1A), (1B) and s63(3A) put paid to the argument, advanced before James J, that the Guidelines were inconsistent with the Act. Thus, the Act was brought into line with the Guidelines for the avoidance of doubt. 12 There is no provision in the Act that elucidates the meaning of "material" in s 63(3). Clause 16.13 of the Guidelines defines "material" for the purposes of s 63 to include "relevant and capable of altering the outcome of a dispute" about permanent impairment, amongst other things. I have already noted that the Guidelines cannot be taken into account in interpreting the Act. 13 The use of the term "material" in s 62(1A) and s 63(3) occurs in different contexts. 14 Section 62(1A) is concerned with whether the deterioration of an injury is capable of having a material effect on the outcome of the previous assessment. The previous assessment is the assessment that was last made (the 2004 assessment), and which, in the circumstances of this case, failed to accord a whole person impairment above 10% to the plaintiff. The plaintiff was able to demonstrate that the deterioration in his left arm met that criteria. Hence a fresh assessment was carried out (Dr Boyce's assessment). It was that assessment that the plaintiff sought to have referred to the review panel. 15 Section 63(3) is concerned with a belief in the proper officer, on reasonable grounds, that the medical assessment, which is the subject of the application to review, was incorrect in a material respect. Thus, "material" qualifies the nature of the error contained within the assessment that is sought to be reviewed. In that regard, it may be contrasted with s 62(1A), where "material" qualifies the extent to which the deterioration of the injury may influence the previous assessment. 16 In both provisions, "material" means "of consequence", not trivial. The terms of s 63(3) suggest on their face that an error is material for the purposes of the application to review if it influenced the outcome of the assessment which was infected by the error. It is not directed to the outcome of a fresh assessment that may be conducted after a review has been granted by the proper officer.

17 Subsection 3 has been interpreted as establishing a "filter mechanism" or "gatekeeper role" : see McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 at [27] and [67]. Basten JA, who dissented on the outcome of the appeal, considered the statutory construction of s63 at [67] and [68] :- the natural role for a "gatekeeper", who is not required to determine the outcome of an application, is to avoid waste of resources, including the time of medical assessors and the concomitant expense which would result from the need to consider appeals which appeared to be frivolous or without substance.

the matters particularised are required to be "material", which should be understood to mean, in the context, that if made good they will result in a variation to the certificate. 18 The first aspect of Basten JA's remarks above is consistent with the judgment of Giles JA (with whom Allsop P agreed). As to the second, it was never in issue in McKee that a review of the assessment was warranted. Basten JA appears to be referring to the fresh certificate issued after the review has been granted, since there is no power in the proper officer to vary an assessment unilaterally. The only power vested in the proper officer by s 63(3) is to grant the review.

19 In Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 ; 110 ALR 367, the Federal Court (Black CJ, Davies and Neaves JJ) made the following remarks in the course of a judgment allowing an appeal against an applicant for a visitor's visa. The first instance judge had determined that a false statement by the applicant was not "false in a material particular" :- The expression "false in a material particular" appears in many statutes, both in this country and overseas. It has been discussed in R v Lord Kylsant [1932] 1 KB 442; Murphy v Griffiths [1967] 1 WLR 333; R v Mallett [1978] 1 WLR 820; R v M [1980] 2 NSWLR 195; R v Brott [1988] VR 1 . In the last mentioned case, Brooking J pointed out that the concept is well understood. As his Honour said at 11: "an assertion that a document is false is to be taken as an assertion that it is false in a material particular." The term "material" requires no more and no less than that the false particular must be of moment or of significance, not merely trivial or inconsequential. Section 20(1) does not apply to statements that are merely false or misleading; there is the added requirement that the statement must be false or misleading in a material particular. In the context of s 20(1), a statement will be false or misleading in a material particular if it is relevant to the purpose for which it is made: see Jovcevski v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, Lockhart J, 12 October 1989, unreported). A statement will be relevant to that purpose if it may - not only if it must or if it will - be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made.

20 These remarks were applied in R v Maslen & Shaw (1995) 79 A Crim R 199.

21 I would construe s 63(3) as requiring a belief on reasonable grounds that the assessment involved an error, which was a relevant error having regard to the purpose of the assessment, namely, to determine whether the plaintiff had a WPI above 10%, and that it affected the outcome of the assessment in that respect. In this case, that outcome was that the plaintiff was not impaired to the requisite degree. In order for the plaintiff's application to pass through the filter mechanism of s 63(3), it must be open to the proper officer to form a belief or suspicion that the error influenced the assessment to the extent that a WPI of less than 10% was attributable to that error. 22 It should be reasonably clear from this analysis that the proper officer is not concerned with the prospective outcome of a review, on the assumption that the error is corrected and factored into the fresh assessment. Section 63(3) did not permit the proper officer in this case to undertake an enquiry into the possibility that the corrected error might influence the review panel to issue a whole person impairment assessment above 10%. 23 I turn to the reasons provided by the proper officer in declining the review. 24 The substance of the reasons were as follows. After noting that Dr Boyce failed to assess the value of the impairment arising from the resection arthroplasty of the radial head of the plaintiff's left arm, :- On page 3 of his report, the assessor [Dr Boyce] records a history of open reduction and internal fixation of the left arm with insertion of a prosthesis in the left radial head. The … prosthesis [was] removed (9/11/00). Further surgical intervention has entailed bone graft to the ulna with replating of the fracture. I note the applicant describes Assessor McLeod found 8% UEI [upper extremity impairment] for resection arthroplasty and that Dr Tai Tak Wan assigns 10% UEI for isolated radial head implant arthroplasty. …………………………………. Taking the higher value, that is the value for implant arthroplasty, this would equate to 10% UEI. When combined with the other upper extremity impairments as determined by the assessor, this would equate to 13%[UEI]. 13% UEI converts to 8% WPI. When combined with the assessor's scarring impairment of 2% WPI which has not been disputed, this results in 10% WPI. Accordingly I am satisfied that whilst there may have been an error in the assessment of the claimant's elbow impairment, this error is not material to the assessment. (underlining in original) 25 It is evident from the above that the proper officer accepted that an error was made, factored into Dr Boyce's assessment the impairment value most favourable to the plaintiff corresponding to that error, and arrived at the conclusion that, even after making allowance for that error, the whole person impairment remained below the relevant threshold. Therefore, the omission was not material to the outcome of Dr Boyce's assessment. 26 The plaintiff's argument maintained that the error was material, because if one had regard to the 2004 assessment, it was possible to ascertain that various combinations of UEI scores from that time and from more recent examinations of the plaintiff might amount to a WPI of more than 10%. That approach to materiality would require the proper officer to go well beyond the remit of s 63(3). In my opinion, the proper officer applied the correct test and there has been no jurisdictional error. 27 The plaintiff's summons is dismissed with costs. **********

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