Pratap v Motor Accidents Authority of NSW & ors

Motor Accidents Compensation Act 1999 LEGISLATION CITED : Supreme Court Act 1970 Workplace Injury Management and Workers Compensation Act 1998

Campbelltown City Council v Vegan [2004] NSWSC 1129 Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 CASES CITED : George v Rockett [1990] HCA 26; 170 CLR 104 Manns v Kennedy [2007] NSWCA 217 McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWCA 149

TEXTS CITED : Oxford English Dictionary 2nd ed 1989 The Macquarie Dictionary

Mehander PRATAP (Plaintiff) PARTIES : Motor Accidents Authority of New South Wales (First Defendant) Josephine Redmond in her capacity as the Acting Proper Officer of the Motor Accidents Authority of NSW(Second Defendant) Suncorp Metway Insurance Limited (Third Defendant)

COUNSEL : Ms B K Nolan (Plaintiff) Mr W M Fitzsimmons (Third Defendant)

SOLICITORS : NSW Compensation Lawyers Sparke Helmore

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30016/09 Mehander PRATAP v Motor Accidents Authority of New South Wales & 2 ors

JUDGMENT 1 HIS HONOUR: The plaintiff is a 55 year old man who was injured in a motor accident on 13 March 2005. He has made a claim for compensation under the Motor Accidents Compensation Act 1999 ("the Act"). An issue has arisen as to the degree of whole person impairment ("WPI") that he has suffered and whether he is entitled to recover for non-economic loss.

2 The assessment that has been made is that the degree of such impairment is not greater than 10 percent. The Act thereby precludes damages for non-economic loss. He sought a referral of that assessment to a review panel of medical assessors but the second defendant, the Acting Proper Officer of the Motor Accidents Authority of NSW, refused that application. By summons filed on 13 March 2009 Mr Pratap seeks orders in the nature of certiorari and mandamus (or pursuant to s 65 of the Supreme Court Act 1970) in respect of that refusal.

3 Ms B Nolan of counsel appeared for the plaintiff and Mr W Fitzsimmons appeared for the third defendant insurance company ("the insurer"). The first and second defendants filed appearances submitting to the orders of the Court save as to costs.

4 There was no dispute between the parties as to the nature and availability of the relief sought. The only matter in issue was whether there was error in the manner in which the second defendant approached the task of considering the application for review. It is contended by the plaintiff that she misdirected herself, asked herself the wrong question and/or applied the wrong principle as to what was required of her. Alternatively it was contended that she so misdirected herself as to form an opinion that was not reasonably open to her.

5 Before turning to the facts of the matter it is appropriate to say something about the legislative scheme that is relevant to the issues raised. 6 The Act provides a scheme of compulsory third-party insurance and payment of compensation relating to the death of or injury to persons as a consequence of motor accidents. Included in its stated objects are the encouragement of early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries and the appropriate provision for future needs of those with ongoing disabilities (s 5(1)(a)); the provision of compensation for compensable injuries sustained in motor accidents and the early resolution of compensation claims (s 5(1)(b)); and keeping premiums affordable, in particular by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities ( s 5(1)(e)). 7 S 5(2) provides that certain things "must be acknowledged in the application and administration" of the Act. They include that the law (both enacted law and common law) relating to the assessment of damages in claims made under the Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries (s 5(2)(b)).

8 Section 6 provides that in interpreting a provision of the Act (or the regulations) a construction that would promote the objects of the Act or the provision is to be preferred to one that would not (s 6(1)).

9 The Motor Accidents Authority of New South Wales ("MAA") is constituted by the Act (s 198). It may issue guidelines ("MAA Medical Guidelines") with respect to the appropriate treatment, rehabilitation or attendant care services for injured persons, the assessment of the degree of permanent impairment of an injured person, and the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments (s 44). The MAA Medical Guidelines may adopt the provisions of other publications (s 44(3)).

10 Chapter 4 of the Act makes provisions for the making of claims in respect of death or injury arising from motor accidents and the assessment and resolution of such claims. The Motor Accidents Claims Assessment and Resolution Service ("CARS") is created for this purpose. In certain limited circumstances a claim may be resolved by a court. Chapter 5 makes provisions for awards of damages, with Part 5.3 being concerned with damages for non-economic loss. No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person is greater than 10 percent (s 131). This is relevant both to court resolution of a claim and resolution by a claims assessor (s 122(3)).

11 Particularly relevant to the instant case are the provisions of s 133(2): (2) The assessment of the degree of permanent impairment is to be made in accordance with: (a) MAA Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force - the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition.

12 Part 3.4 of the Act makes provision for medical assessments. It applies where there is a disagreement between a claimant and an insurer as to certain things including whether the degree of permanent impairment of the injured person as a result of the injury caused in a motor accident is greater than 10 percent (s 58). The Authority is required to establish a Motor Accidents Medical Assessment Service ("Medical Assessment Service") consisting of medical assessors and other officers of the MAA as it determines (s 57A). Where there is a dispute between a claimant and an insurer an arrangement is made for it to be referred to one or more medical assessors (s 60). The medical assessor is to provide a certificate as to the matters referred for assessment (s 61(1)) and such a certificate is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim (s 61(2)). The certificate must set out the reasons for the finding by the medical assessor as to any matter certified (s 61(9)).

13 There is provision for referral of a matter for further medical assessment in certain circumstances (s 62). A certificate as to a matter referred again for assessment prevails over any previous certificate to the extent of any inconsistency (s 62(2)).

14 Section 63 makes provision for the review of a medical assessment by a review panel. It is obviously important that there is a provision for a medical assessment to be reviewed because of the provision just referred to that the certificate of the assessor is conclusive evidence as to the matters certified. A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment to a review panel of medical assessors for review (s 63(1)). Such an application can only be made on the grounds that the assessment was incorrect in a material respect (s 63(2)).

15 It is the following provision that is at the heart of the dispute between the parties to the present matter: 63(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 . (Emphasis added).

16 Upon referral under s 63, the review panel is not limited to a review of only 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 (s 63(3A)). The review panel may confirm the certificate of assessment, or revoke it and issue a new certificate (s 63(4)).

17 In McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609, Giles JA spoke of the importance of medical assessments in the scheme for compensation provided by the Act: [20] While s 60(1) provides that a medical dispute "may" be referred for assessment, referral is commonplace. Proceedings in respect of a motor accident claim may not be commenced unless the claim has been assessed by a claims assessor pursuant to Pt 4.4 of the Act or a certificate of exemption has been issued (s 108). A claims assessor can refer a medical dispute for assessment (s 60(1)), and there is often referral by the parties to a medical dispute or by a claims assessor. Further, there is a threshold degree of permanent impairment before damages for non-economic loss may be awarded (s 131), and if there is dispute about whether the degree of permanent impairment is sufficient for an award the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Pt 3.4 (s 132). There is often a practical necessity for medical assessment.

[21] Medical assessments are thus an important part of arriving at the claimant's entitlement to damages. Their importance is magnified by their status as conclusive evidence in some respects, including whether the degree of permanent impairment exceeds the threshold, (s 61(2)) and as evidence in other respects (s 61(3)). The court or a claims assessor may refer a matter for further assessment (s 62), but that prospect does not detract from the significance in the ordinary case of a medical assessment.

[22] Part 3.4 seeks to provide extra-curial resolution of medical disputes but, recognising the significance of a medical assessment, provides through s 63 that a dissatisfied party can obtain review of the medical assessment of a single medical assessor.

[29] ... A medical assessment can have a profound effect on a claimant's recovery, to the perceived detriment of the claimant or the insurer. The legislature has provided for a review by a review panel so that a dissatisfied party to a medical dispute can seek redress, as is appropriate given the significance ...

18 Giles JA (at [27]) described s 63(3) as providing a "filter mechanism".

19 A final matter to note is that whilst medical assessments, and reviews of such an assessments, are carried out by appropriately qualified medical professionals there is no statutory requirement for the proper officer of the Authority who determines an application for review under s 63 to have any particular qualifications.

20 There was a medical assessment of the plaintiff resulting in a certificate dated 24 March 2008. On 31 March 2008 the plaintiff sought a review of that assessment, presumably under s 63. It is not stated in the materials before me what happened to that application but there was then a request for a further medical assessment pursuant to s 62(1)(b) made in June 2008. That resulted in an assessment by Dr Richard Crane with a "Further Certificate of Determination of Assessment" dated 22 October 2008.

21 The injuries which were the subject of the assessment were: Musculo-ligamentous strain cervico-thoracic spine Musculo-ligamentous strain lumbo-sacral spine Soft tissue injury right shoulder Soft tissue injury right knee

22 Dr Crane issued a certificate that the injuries had stabilised, a certificate as to the WPI, and a Statement of Reasons. The upshot of his findings was that those injuries gave rise to a WPI which was in total not greater than 10 percent. The effect of such a finding is the plaintiff is not entitled to damages for non-economic loss. Specifically, the doctor found 5 percent WPI in the cervico-thoracic spine and zero percent in each of the other three sites.

23 On 19 November 2008 the solicitor acting for the plaintiff lodged an "Application for a Review of a Medical Assessment by the Medical Assessment Service". It set out, as was required, a number of grounds upon which it was contended that the further medical assessment by Dr Crane was infected by error. Submissions in support of the grounds were incorporated in the application. Annexed to the application were the written submissions that had been filed in support of the earlier application for a further medical assessment, extracts from the Motor Accidents Authority Permanent Impairment Guidelines, and extracts from the Code of Conduct for Medical Assessors.

24 The asserted errors in the statement of reasons for the assessment of Dr Crane were set out at some length but can be summarised: 1 In relation to the cervico-spine the assessment failed to record the degree of movement on flexion, extension, rotation and lateral flexion of the neck. Rather, the findings were expressed in general terms. The plaintiff did not dispute the finding of 5 percent WPI but nevertheless contended that the assessor should be more transparent in the assessment process.

2 In relation to the lumbar spine, the doctor did not report a "range of motion" and did not refer to "muscle guarding".

3 The doctor found multiple "Waddell tests" (a broad guide as to whether symptoms might be exaggerated) were positive which suggested "non organic reasons for complaints of low back discomfort". He did not describe the tests he performed and failed to address a number of "accepted" Waddell tests at all. A number of other arguments were raised on this topic, most relating to inadequacy of disclosed reasoning.

4 The doctor reported measures of range of motion of the shoulders, concluding 8 percent WPI but he was in error in concluding that this should be reduced to zero percent because of his opinion that the plaintiff was not exerting maximum effort.

25 The solicitors for the insurer filed a "Reply to an Application for a Review of a Medical Assessment by the Medical Assessment Service" on 10 December 2008. The application was opposed and the form included submissions in support of that opposition.

26 On 2 February 2009, Acting Proper Officer Josephine Redmond of the Medical Assessment Service refused the application and provided written reasons for her decision. It is this decision that is the subject of the present proceedings.

27 The challenge to the decision of the second defendant ("the proper officer") is that she erred in the exercise of her "power" under s 63(3) of the Act by failing to perform the statutory task incumbent upon her. In particulars that are provided in the summons it is contended that s 63(3) requires a proper officer in dealing with an application under that section to "have regard to the particulars set out in the application". There is then an assertion that she had regard to all of the "documentary material" and engaged in an assessment of that material, rather than confining her decision to the particulars in the application as required by s 63(3). In this way, so it is contended, she misdirected herself, and/or asked herself the wrong question, and/or applied the wrong principle as to what was required of her under s 63(3). Alternatively it is contended that she took into account an irrelevant consideration. Further, or alternatively, it is contended that by failing to construe s 63(3) correctly she formed an opinion not reasonably open to her under the Act.

28 The plaintiff's case boils down to two contentions. The first is that the proper officer erred by taking into account material beyond the "particulars set out in the application". The second is that she examined the errors asserted in the application and came to a conclusion in respect of each of them that there was no error. It is contended that this was beyond the scope of her task which was only to determine whether there was "reasonable cause to suspect that the medical assessment was incorrect in a material respect".

Error in having regard to more than "the particulars set out in the application"

29 The error alleged is that the proper officer had regard to the MAA Medical Guidelines and the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (the "AMA Guides") whereas she should only have had regard to the "particulars set out in the application". For example, in an introductory phase of her Statement of Reasons for Decision she said, "Having reviewed all the documentary material, I am not satisfied that there is reasonable cause to suspect that the assessment is incorrect in a material respect" (emphasis added). In the concluding phase of her statement of reasons she itemised the documents she had taken into account. They included the application, the reply, the certificate and statement of reasons by Dr Crane, s 63(3) and s 133(2) of the Act, and the MAA Permanent Impairment Guidelines and the AMA Guides.

30 In written submissions and, at times, in oral submissions, it was contended that she was wrong to consider any more than the "particulars set out in the application". For example, in the written submissions it is asserted: First, the proper officer has taken into account considerations, beyond those provided for by s 63(3) of the Act and made relevant by the objects, scope and purpose of the Act, namely the MAA Guidelines and the AMA Guides. In so doing, the proper officer has taken into account irrelevant considerations and has formed an opinion which was not reasonably open to her under the Act.

31 In oral submissions there was an assertion that s 63(3) required the proper officer to determine the application on "just" the application (T13.3 and 13.17). Ms Nolan confirmed at that point that her first argument was that the role of the proper officer was to confine herself to what was in the application and not to consider anything else (T13.22).

32 Such a strict construction of s 63(3) is incorrect. It would entail that the proper officer is not permitted to consider anything put in reply to the application for review (which Ms Nolan contended was the case (T14.1)) but that would make a mockery of there being a reply at all, a concept that would deny procedural fairness to the relevant insurer. It would also entail that the proper officer is not to have regard to the statement of reasons of the medical assessor itself which, of course, would be a nonsense. A matter of irony in the contention the plaintiff sometimes made in this respect is that in the application for review there was reference to other documents and an extract from the MAA Medical Guidelines was annexed.

33 At other stages of her oral submissions Ms Nolan retreated from the above proposition. In fact, she referred to the judgment of Campbell JA, with whom the other members of the Court agreed, in Manns v Kennedy [2007] NSWCA 217 as to the meaning of "having regard to": [112] It is a common legislative drafting device to empower a particular type of decision-maker to make a particular type of decision "having regard to" certain factors. Cases that have considered such legislation have come to differing answers concerning the role that the listed factors play in the decision-making process. Some cases have concluded that the listed factors are the only matters on which the decision-maker can rely in reaching a decision: eg Howard Hargrave Pty Ltd v Penrith Municipal Council (1958) 3 LGRA 260; Andrews v Diprose (1937) 58 CLR 299 at 313 per Evatt J (dissenting). Others have concluded that the listed factors are to be given weight as a fundamental element in arriving at a decision but are not the only matters that can be relied upon: eg Andrews v Diprose (at 304-305, 308, 312, 315); R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J; Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 at 260; R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333; Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 145; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 623; James Hardie & Coy Pty Ltd v Roberts and Another [1999] NSWCA 314; (1999) 47 NSWLR 425 at [89], 446. Others have concluded that the listed factors are matters that the decision-maker must turn his or her mind to in the course of reasoning towards a decision but is free to then disregard in the actual decision reached: Ishak v Thowfeek [1968] 1 WLR 1718; Rathborne v Abel (1964) 38 ALJR 293 at 294-295, 301, 303; R v Police Complaints Board; ex parte Madden [1983] 2 All ER 353 at 374; [1983] 1 WLR 447 at 471. Each of these shades of meaning is within the scope of the expression, as a matter of ordinary English usage. Which shade of meaning is the appropriate one to adopt for the purpose of any particular statutory provision is to be decided as a matter of construction of that particular statutory provision, in the light of its purpose, history and context.

34 Ms Nolan accepted that it was the second of the three possible ways in which "having regard to" has been construed that is apt to s 63(3), that is that "the listed factors are to be given weight as a fundamental element in arriving at a decision but are not the only matters that can be relied upon" (T3.10).

35 In the instant case the proper officer is required to "have regard to" the particulars set out in the application. One point is immediately obvious and that is that the subsection does not include the words "only" or "just". There is no explicit stricture that the proper officer must have regard to the particulars set out in the application and not to anything else.

36 In my view, unless the proper officer had regard to other relevant material the task to be performed under s 63(3) would be incapable of fulfilment. The subsection should be construed as requiring the proper officer to have regard to the matters (the "particulars") raised in the application but to permit them to be considered in the light of all relevant material. Such material would obviously include the statement of reasons by the medical assessor and the reply by the insurer. Because the medical assessment is required to be carried out with reference to the MAA Medical Guidelines and the AMA Guides, any consideration of whether the assessment might be incorrect in a material respect must also be carried out with regard to those guidelines. A construction of s 63(3) in this manner is consistent with the objects of the Act in s 5. It also reflects common sense and logic.

37 Although the plaintiff's submissions have vacillated on this issue, I have considered it as put in the particulars in the summons. I am not persuaded that there was any error in the proper officer having regard to the MAA Medical Guidelines and the AMA Guides. The first basis of the challenge to the decision of the proper officer fails.

Error in concluding that the medical assessment was not incorrect

38 This ground of challenge seems to be the more substantial one advanced on behalf of the plaintiff.

39 The proper officer examined each of the assertions of error contained in the application for review. In respect of each of them she concluded that there was no error. It is asserted that this was beyond the scope of her statutory task. She was only to determine whether it was reasonable to suspect the assessment was incorrect, not to determine for herself that it was in fact incorrect.

40 This was an alternative way in which it was asserted there was error in having regard to the MAA Medical Guidelines and the AMA Guides because it was contended that the proper officer used them in aid of her conclusions that there was no error in the medical assessment.

41 In examining each of the asserted errors, the proper officer expressed her conclusions in the following terms: I am not satisfied of material error here (page 2.10).

So ... I am not satisfied that this would be material to the assessment (page 3.4).

The fact that the applicant disagrees with the medical assessor's findings does not indicate that the assessment is incorrect (page 4.7).

Assertions as to the Assessor's Code of Conduct do not point to a material error in the assessment (page 4.9).

42 True it is that the statutory task was for the proper officer to determine whether she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. In performing that task, she needed to look at the assessment to determine if she could identify any possibility of error. If she identified that there was a possible error in a material respect, and was thus satisfied that there was reasonable cause to suspect the assessment was incorrect in that material respect, then she had a statutory obligation to refer the matter to a review panel. In the present case it is clear that the proper officer was unable to identify any possible error and she said as much.

43 It is abundantly clear that the proper officer was aware of the correct test. Her statement of reasons includes the following: "... I am not satisfied that there is reasonable cause to suspect that the assessment is incorrect in a material respect" (page 1.8).

"In considering whether this matter should be referred to a review panel of medical assessors, I must be satisfied that there is reasonable cause to suspect that the assessment was incorrect in a material respect " (underlining in original)(page 4.9).

"Accordingly, as to this application, I am not satisfied that there is reasonable cause to suspect that the assessment is incorrect in a material respect" (page 5.2).

44 I can see no basis to conclude that the proper officer misdirected herself as to the correct test to apply to the task at hand. So much was conceded by Ms Nolan.

45 Despite these correct statements of the statutory test it was submitted that the proper officer nevertheless overstepped her function. Ms Nolan pointed to some examples of this occurring. The first related to a complaint made on the plaintiff's behalf that in relation to Dr Crane's findings concerning the lumbar spine the doctor made no reference to muscle guarding. In order to assess the level of impairment as DRE I (which results in a zero percent level of whole person impairment) the AMA Guides require findings that include that the patient has no muscle guarding. Dr Crane made the assessment of DRE I but said nothing about the presence or absence of muscle guarding. In relation to this complaint the proper officer stated: I note the applicant submits the medical assessor did not include comment on the differentiator 'guarding'. However I note the applicant does not point to any evidence of guarding and the two assessments within the documentation provided that mention guarding (Dr Noll and Dr Pierides) both exclude the presence of guarding. So whilst the medical assessor has not specifically reported on guarding, I am not satisfied that this would be material to the assessment.

46 It was submitted that the proper officer was wrong to "foreclose" on this issue because a finding of no muscle guarding was essential to an assessment of DRE I and the doctor made that assessment in the absence of that finding. In other words, without the finding, the assessment of DRE I was not available. It was repeatedly emphasised that the proper officer was not required to be medically qualified and it cannot be assumed that she was. As a consequence, it was not open to her to conclude that the absence of reporting on guarding was not material to the assessment.

47 Another example cited was in relation to a complaint that the doctor had not provided adequate reasons for concluded zero percent WPI in respect of the right shoulder when his measurements of the range of motion was suggestive of eight percent WPI. In respect of this complaint the proper officer stated: The applicant submits the medical assessor failed to provide reasons for modifying the right shoulder impairment. However, he states several times he was unable to rely upon range of motion measurements due to inconsistencies between observed motion, and his opinion that there were abnormal pain reaction and maximal effort was not applied by the claimant.

48 It was submitted that the proper officer erred in purporting to exercise for herself clinical skill and judgment. Again it was submitted that she must be assumed not to be medically qualified and so it was not open to her to conclude that what the doctor had said was a sufficient explanation for his finding.

49 Mr Nolan submitted that where there is a complaint of inadequate reasons being given by the medical assessor it is not open to the proper officer to make any assessment for him or herself. The only course open to the proper officer is to simply accept the assertion and refer the matter to a review panel. I asked, "She is not permitted to assess it for herself at all?" and Ms Nolan's response was "No, not at all. She is not permitted to engage in any assessment at all" (10.40). I find this proposition to be untenable. It would have it that whenever there is a complaint of inadequate reasons being given by the medical assessor the proper officer has no function whatsoever except to automatically refer the matter to a review panel.

50 It was common ground that the threshold for a proper officer to find there is reasonable cause to suspect that the medical assessment is incorrect in a material respect is a relatively low one. Reference was made to the test for the Registrar of the Workers Compensation Commission in considering an appeal pursuant to s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (the "WIM Act"). The WIM Act contains provisions that are similar, but not identical, to those in the Act presently under consideration for the determination of medical disputes in respect of workplace injuries. Certificates of medical assessments are conclusively presumed to be correct (s 326 WIM Act). Section 327 makes provision for an appeal against a medical assessment to an appeal panel. It provides that an "appeal is not to proceed unless the Registrar is satisfied that, on the fact of the application and any submissions made to the Registrar, at least one of the grounds for appeal ... has been made out". In a previous form the section provided "the appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal ... exists".

51 It was observed by Wood CJ at CL in Campbelltown City Council v Vegan [2004] NSWSC 1129 at [74] that this provided a "gatekeeper role" for the Registrar. His Honour was dealing with the section in its earlier form, as was Campbell JA in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWCA 149. Campbell JA referred to Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 where Handley JA expressed the view that whether a ground of appeal "exists" means "that the ground is, on its face, valid and apparently credible". He then referred to the competing view expressed by Basten JA and indicated preference for that of Handley JA. He continued: [74] ... It seems to me that section 327(4) requires the Registrar to form an opinion, bona fide, about whether one of the grounds for appeal specified in sub-[section (3) exists. While the ground must be alleged, I doubt that it could be said that it "appears to the Registrar" that one of the grounds "exists" unless the Registrar had actually formed an opinion that it existed.

52 There are obvious differences between the legislation there under consideration and that in the present case. What can usefully be drawn from those judgments, however, is that the "gatekeeper" under the WIM Act is engaged in an intellectual exercise and is required to form an opinion. It is not a matter of receiving an appeal and dealing with it by automatic referral to the appeal panel. The role of the "filter" as Giles JA referred to the role of the proper officer under s 63(3) in McKee v Allianz Australia Insurance Ltd, supra, should be similarly regarded.

53 The requirement of s 63(3) that the proper officer be "satisfied that there is reasonable cause to suspect" is a requirement that he or she consider the matter and form a view about it. The proper officer is not required to decide that the medical assessment is incorrect in a material respect, but merely to decide whether there is reasonable cause to suspect that it is. Accordingly I do not accept the submission that the proper officer is not required to make an assessment of the application at all.

54 Reference was made to dictionary definitions of "suspect" which included "to imagine something, especially something evil, wrong, or undesirable, to be the case" (The Macquarie Dictionary) and "to imagine something evil, wrong, or undesirable in (a person or thing) on slight or no evidence; to believe or fancy to be guilty or faulty, with insufficient proof or knowledge: to have suspicions or doubts about, be suspicious of" (Oxford English Dictionary 2nd ed 1989).

55 I find more useful what all seven members of the High Court of Australia said about suspicion in George v Rockett [1990] HCA 26; 170 CLR 104. The Court was considering the phrase "reasonable grounds for suspecting" used in the context of an application for a search warrant under The Criminal Code (Qld). Their Honours stated (at 112): When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

56 A distinction was drawn between suspicion and belief (at 115 - 116): Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942, at 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay [its] debts as they became due" as that phrase was used in s95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at 303): "A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in subs(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors." The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

57 In my view the task of the proper officer under s 63(3) is one of considering the matters raised in the application, that is, the grounds upon which it is contended that the assessment was incorrect in a material respect, having regard to all matters relevant to those contentions, and to consider whether there exist facts sufficient to induce in the mind of a reasonable person suspicion (in the sense of any conjecture, surmise, apprehension or slight opinion) that the assessment was incorrect in a material respect. Error in a "material respect" involves an error that would or could have a bearing upon the conclusions reached by the assessor.

58 In relation to the asserted error relating to the absence of mention by Dr Crane of muscle guarding it must be noted that there is no suggestion in the application for review that the doctor should have made such a finding. There might be reasonable cause to suspect error if the plaintiff had been observed to exhibit muscle guarding on other occasions and/or was likely to have done so during Dr Crane's examination. The proper officer referred to the absence of any such suggestion as well as to the fact that Dr Crane had before him the reports of two doctors in which there was specific mention of an absence of guarding. In these circumstances it was open to the proper officer to conclude that the omission of reference to muscle guarding was not material to the assessment.

59 In relation to the complaint of inadequate reasons for finding zero percent WPI in the right shoulder, the proper officer's reasons include that the doctor stated "several times that he was unable to rely upon range of motion measurements due to inconsistencies between observed motion, and his opinion that there were abnormal pain reaction and maximal effort was not applied by the claimant". In fact, the doctor made mention of matters such as these throughout his statement of reasons culminating with a statement that it was for these reasons that he made the assessment of zero percent. The conclusion of the proper officer on this topic was one that was open to her.

60 In relation to an assertion that there was an inadequacy in the reasons given by Dr Crane, reference was made to a complaint that was set out in a letter sent to the proper officer by the plaintiff's solicitor on 16 February 2009: You state in response to my Application concerning the Assessors failure to provide a transparent assessment in which he records the degree of motion in order to assess asymmetry that he is not required to do so and the range of motion model is specifically excluded at paragraph 4.5 of the MAA Guidelines. The range of motion method is irrelevant in this case and deserves no mention. The range of motion method is a completely separate way of assessing impairment. We do not rely upon the range of motion method in making our argument. Our argument is that it is quite impossible for a Medical Assessor to determine asymmetry unless he measures range of motion. To do anything other than this is to apply guess work. Kindly advise, how it is possible for Medical Assessor to assess asymmetry on all of the cervical plains (sic) without conducting measurements? We are rather curious.

61 This was in respect of the following in the proper officer's Statement of Reasons for Decision: The applicant does not dispute the cervical impairment, but argues that the medical assessor should record the degree of spinal motion recorded. This overlaps with some of their arguments in regard to the lumbar spine. As pointed out by the respondent, the Guides and Guidelines do not require the medical assessor to provide the degree of spinal motion recorded.

The Range of Motion model is specifically excluded at paragraph 4.5 of the MAA Guidelines. The Injury model (or DRE method), which must be used, relies especially on evidence of neurological deficits and uncommon, adverse structural changes (para. 4.2). This method relies upon several 'differentiators', of which dysmetria considers the comparative assessment of range of motion. The MAA Guidelines (p. 24) define motion dysmetria as 'nonuniform loss of spinal motion', noting that true nonuniform loss of motion must be reproducible and consistent and the assessor must be convinced the individual is cooperative and giving full effort . Neither the MAA Guidelines of (sic, or?) the AMA 4 Guides direct the assessor to record the degree of range of motion. (Emphasis in original).

62 The submission that was made in relation to this was to the following effect. Whilst the MAA Guidelines did not require the doctor to measure the range of motion, it would have been more transparent if he did - "there may be a requirement in order to give a decision that is transparent to perhaps engage in some form of measurement, because the responsibility incumbent upon the medical assessor is to make findings that are reproducible and consistent". For the proper officer to say that the medical assessor did what he had to do and that she was "not satisfied of material error" was to overstep her function. It was also submitted that in coming to this conclusion the proper officer had purported to engage in an exercise of clinical skill and judgment, something she was not qualified or called upon to do.

63 I can discern no error in the approach taken by the proper officer in relation to this or any of the other issues raised. What she did was to look at the reasons given by the medical assessor, look at what the guidelines said as to what the medical assessor was required to do and determine by reference to them whether there was any possibility of error. She determined that there was not. This was not to engage in the purported exercise of "clinical skill and judgment".

64 The submissions on behalf of the plaintiff repeatedly emphasised the assertion that the proper officer "foreclosed" on the issues raised. It was put that she "was only required to reach a state of satisfaction as to whether there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, not whether material error existed" (Written submissions at [33]. See also, for example, T17.50)(Emphasis in original).

65 I accept that it was beyond the task of the proper officer to determine if material error existed. That task was one for the review panel to determine if the proper officer was satisfied that there was reasonable cause to suspect error in a material respect. But the proper officer in this case did not determine that material error existed. She expressed the correct statutory task that she was called upon to perform, considered the various assertions of error and, in respect of each of them, stated her conclusion that she could not see that such error existed. It would have been to "foreclose" on an issue if the proper officer had determined that there was reasonable cause to suspect error in a material respect and had then gone on to consider and determine whether such error was in fact made out. However, that is not what she did.

66 I am not satisfied that any error of the type alleged in the initiating summons has been made out. The conclusions reached by the proper officer were ones that were open to her in the exercise of her statutory function.

The plaintiff is to pay the costs of the third defendant. **********

09/12/2009 - Typo in case title - Paragraph(s) Coversheet

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