(2003) 197 ALR 389
Mason v Demasi [2009] NSWCA 227
Meeuwissen v Boden [2010] NSWCA 253
78 NSWLR 143
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
185 CLR 259
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
Source
Original judgment source is linked above.
Catchwords
(2003) 197 ALR 389
Mason v Demasi [2009] NSWCA 227
Meeuwissen v Boden [2010] NSWCA 25378 NSWLR 143
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6185 CLR 259
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
Judgment (10 paragraphs)
[1]
The application for review
The court was taken to the application by QBE for review. The document headed "Insurer's Submissions and Schedule of Damages" signed by the solicitor for QBE was said to comprise "a fair summary of both the application to the MAA for a review panel to be established and our case in these proceedings". (T11.33)
Within those submissions it was contended that the decision of the medical assessor was incorrect in a material particular. Reference was made to cl 7.18 of the Permanent Impairment Guidelines and it was submitted that the medical assessor "has failed to estimate the claimant's pre-existing impairment and subtract this value from the current impairment rating".
The submissions referred to the assessor having obtained a detailed history which he set out in his reasons under the heading "Past Psychiatric History" but noted that the history was "significant and well documented". In that regard, reference was made to the records of Dr Nigro and Dr Makary and the report by Dr Apler.
After setting out the terms of cl 7.18 of the Permanent Impairment Guidelines, the submission continued:
"The assessor, on this occasion, has declined and/or refused to carry out an assessment of a claimant's well documented pre-existing psychiatric condition. The insurer notes that Clause 7.18 imposes a mandatory obligation on an assessor undertaking an assessment where pre-existing conditions exist. The language of the clause is clear in that the word 'must' is used as opposed to 'may'. It appears the assessor has refused to assess the claimant's pre-existing impairment on the basis that the claimant's general practitioner, Dr Nigro, 'makes no comment on impairment'. The fact [that] Dr Nigro has not made any comment on impairment does not release the assessor from his statutory obligation pursuant to Clause 7.18. It is for these reasons that the insurer submits that the assessor has fallen into error and the matter needs to be re-assessed."
The submission concludes with an assertion that "a proper assessment of the claimant's pre-existing psychiatric impairment is material to the outcome of the assessment because, once subtracted from the impairment assessment with respect to the subject accident it may result in a whole person impairment of less than 10%".
The proper officer dismissed the review application. His reasons are encapsulated in the following:
"6 [QBE's submission is quoted.]
7 As noted by the Applicant it is apparent the Assessor was satisfied the claimant suffered from a psychiatric condition around the time of the motor vehicle accident. However, as noted by the respondent, the presence of a psychiatric condition does not automatically mean there was pre-existing impairment. The Assessor at various stages throughout his reasons makes it clear that there is no objective evidence of impairment that pre-dated the accident.
8 [clause 1.33 of the Permanent Impairment Guidelines is quoted.]
9 The Assessor has clearly indicated that there was no objective evidence which he could have relied upon to calculate pre-existing impairment. While Clause 7.18 provides that the Assessor is required to calculate pre-existing impairment using the PIRS if he is satisfied that a pre-existing psychiatric condition existed, it is apparent that this was not possible based on the lack of any evidence on which to rely on for the PIRS categories. Accordingly, the Assessor has had to ignore the possible presence of pre-existing impairment, in accordance with Clause 1.33. I am not satisfied there is reasonable cause to suspect he has erred in this regard." (CB 75)
QBE submitted that the proper officer misconstrued the meaning and effect of the Permanent Impairment Guidelines in the same or a similar way to the error made by the medical assessor in applying cl 1.33. This was said to be capable of being characterised as an error in the proper construction of the Permanent Impairment Guidelines which was an error law on the face of the record justifying the proper officer's determination being set aside.
[2]
Determination
I will address each of the grounds in the amended summons but it was clear from the argument presented at the hearing that the "nub of the case" was the asserted failure of the medical assessor to make a finding of pre-existing impairment. There were five grounds referrable to the task of the medical assessor.
[3]
(a) failure to provide reasons as required by s 61(9)
It has been said that the task such as that which befell the medical assessor was not to arbitrate or adjudicate upon competing medical opinions (to which I would add in this case the claimant's history), nor to opine on the correctness of other opinions on the instant medical question. The task for the medical assessor was to form his own opinion by applying his own medical experience and expertise and to provide a statement of reasons which is the actual path of reasoning by which the opinion was formed: a paraphrase from Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [47]-[48].
The reasons of the medical assessor are not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which they are expressed: Minister for Immigration and Ethnic affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.
I am satisfied that the medical assessor provided adequate reasons for the decision he arrived at. Submissions to the effect that he did not address material considerations cannot be sustained; the complaint really amounts to a disagreement as to the weight he gave to various matters. Where the complaints are concerned with statements of conclusion, it seems clear to me that such statements are based upon the earlier discussion of the oral and documentary material throughout a very detailed statement of reasons.
The criticism of what the medical assessor wrote under the heading "Causation" (p 19 of reasons) is a particular example of the latter. It appears in a segment of the reasons under the heading "Conclusions" and it is based upon what precedes it. It was unnecessary for him to provide a lengthy explanation for a diagnosis of Posttraumatic Stress Disorder as the fact that Ms Alawia suffered from such symptoms was accepted by Dr Apler; the only controversial aspect being their extent and persistence which was earlier discussed by the medical assessor (p 17 of reasons).
[4]
(b) failure to take into account certain relevant considerations and denial of natural justice by failing to take into account and respond to a substantial argument
A failure to take into account a relevant consideration in the judicial review context is a reference a failure to take into account a consideration that the decision-maker is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39. How the matter is taken into account is a matter for the decision-maker. It may be dismissed, given little weight, or decisive weight. The burden for QBE in the present case is to establish that the subject matter was not taken into account by the medical assessor at all: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [16]-[17] (Basten JA).
The contention stated within this ground is that the medical assessor erred in his regard (or lack thereof) to the medical evidence of the three doctors as to Ms Alawia's pre-existing psychiatric symptomology and impairment and the evidence of Dr Apler that she had "significant impairment before the accident".
The complaint here, in reality, is a disagreement with the conclusions reached by the medical assessor. The suggestion that he "failed to take into account" such material cannot be sustained. It was discussed within the statement of reasons; for example at p 17 where reference was made to the report of Dr Apler and his various opinions, including that Ms Alawia had "significant impairment before the accident". (Reasons at p 17)
It was not controversial that the Permanent Impairment Guidelines are obligatory in character; they were required to be applied by the medical assessor in their terms. At issue in this case was whether the medical assessor complied with the requirements of cl 1.33 and cl 7.18 to make an assessment of pre-existing impairment. Clause 1.33 mandates this "if there is objective evidence of pre-existing symptomatic permanent impairment". Clause 7.18 requires that this assessment be carried out using the Psychiatric Impairment Rating Scale (PIRS) set out in Chapter 7. Clause 7.17 provides that "clinical judgment will be the most important tool in the application of the scale".
The PIRS provides for evaluation of functional impairment in six areas:
Self-care and personal hygiene
Social and recreational activities
Travel
Social functioning (relationships)
Concentration, persistence and pace
Adaptation
A particularly valid point made in the submissions for Ms Alawia is that pre-existing symptomatology and pre-existing psychiatric conditions do not necessarily equate to pre-existing impairment. There was reference in the medical records to the former but hardly any to the latter (as to which see below at [74]-[77]).
The submissions for QBE stressed, repeatedly, that with evidence of a "pre-existing psychiatric diagnosis or condition" it was incumbent for the medical assessor to estimate "pre-existing impairment" (cl 7.18). That is what he did but he was limited to the evidence that he had - the documents and the history. He addressed that issue and provided a determination.
It was submitted in the first version of written submissions for QBE (at [36]) that the medical assessor failed to take into account and engage with relevant medical documentation and the plaintiff's substantial argument in making his decision, in particular the medical evidence of Dr Apler, Dr Nigro and De E Makary and the plaintiff's submissions as to the first defendant's pre-existing psychiatric condition. It emerged at the end of the hearing that there were in fact no submissions made by QBE to the medical assessor. (T33.45)
It is clear that the medical assessor was aware that he had documentary material from the three doctors mentioned; he discussed it at various points in his reasons (see above). If the issue is whether they represented a "substantial, clearly articulated argument" (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ); [86]-[88] (Kirby J)) then QBE's claim in this respect must fail. There was nothing that could amount to a clear articulation of an argument. As was put succinctly in oral submissions by senior counsel for Ms Alawia:
"It is a bit rich to hand to a medical assessor a bundle of material with no particular articulation of points you want to make and then say down the track … that the medical assessor was wrong to conclude that the documents did not reveal enough about matters relevant to the PIRS and he should have done something about it because we had served a medico-legal report that raised a pre-existing condition". (T28)
Senior counsel for QBE made a valiant response to this which was to the effect that "we do not have to join the dots" for a medical assessor; "they must assess the evidence themselves". However, without having made any attempt by QBE to "join the dots", it is clear that the medical assessor did all that he was invited to do: take into account the documents he was given in the course of his making his assessment and this he clearly did.
[5]
(c) failure to consider and apply cl 1.33 and cl 7.18 of the Permanent Impairment Guidelines
[6]
(d) error in the medical assessor deciding that he was entitled to not assess pre-existing impairment in accordance with Ch 7 of the Permanent Impairment Guidelines
The complaint by QBE that the medical assessor "failed to consider and apply clause 1.33 and [7.18] of the Permanent Impairment Guidelines" (1st written submissions at [47]; similarly [34] of the 2nd written submissions) cannot be sustained. It is abundantly clear that he was aware of the requirement and addressed it. He discussed Ms Alawia's "Past Psychiatric History" (pp 3-4); "Psychiatric Injuries or Psychiatric Conditions that Predated the Motor Vehicle Accident" (p 4); "Objective Evidence that these Pre-existing Injuries or Disabilities were Symptomatic at the Time of the Motor Vehicle Accident" (pp 4-5); and "Function Prior to the Motor Vehicle Accident" (p 7). He commented on "Medical Reports that Differ From Your Findings" with reference to the report of Dr Apler and the records of Drs Makary and Nigro (p 17-18). Finally, he expressed a conclusion as to "Pre-existing Psychiatric Impairment" and rated it "as 0%" (p 23).
In short, Ms Alawia had, according to the medical documents, a "pre-existing psychiatric diagnosis or condition". The medical assessor was therefore required by cl 7.18 to estimate the overall pre-existing impairment. He did so.
The complaint by QBE that the medical assessor "failed to obtain from the first defendant a history of the injured person's pre-accident lifestyle, activities and habits and then assess the extent to which these have changed as a result of the psychiatric injury so that he may adequately score the pre-existing impairment using the Psychiatric Impairment Rating Scale" (1st written submissions at [48]) also cannot be sustained. The history obtained by the medical assessor of Ms Alawia's pre-accident lifestyle, activities and habits were summarised in the reasons under the headings, "Psychosocial History Prior to the Motor Vehicle Accident" (p 5); "Work History" (p 6); and "Function Prior to the Motor Vehicle Accident" (p 7). In the latter, the medical assessor was clearly applying the PIRS criteria to what he derived from the history given by Ms Alawia (and from the medical documentation).
The most significant indication of pre-existing impairment was said to be found in the certificate issued by Dr Nigro to Centrelink on 15 April 2013 stating that Ms Alawia was unfit for work for three months from that date and in another certificate dated 21 June 2013 (five days before the accident) in which it was stated that she "is/was unfit for normal work for many years". Whether Dr Nigro was stating that this was her condition for many years in the past, or would be in the future, is unclear but it may be the former given the diagnosis ("Major depression, chronic since 2007"). In any event, on their face, QBE argued that these constituted objective evidence of Ms Alawia's pre-existing impairment.
The history provided by Ms Alawia to the medical assessor included that she had been in employment in the past, including in the period July 2008 until early 2011. She lost her job in early 2011 when she asked to take some sick leave following a workplace accident. She then received parenting payments. She was performing unpaid work experience in the two weeks before the motor accident (that is, at the time Dr Nigro's certificate) and was due to start working the week after. It is not clear for what purpose Dr Nigro issued the certificate on 21 June 2013. It is not addressed to anyone. But it is abundantly clear from the reasons of the assessor that he was aware of this certificate and generally of the conflict between the medical records and the history she provided: see reasons at p 18. Generally as to the care in comparing a patient's account with apparently conflicting medical records, see, for example, Mason v Demasi [2009] NSWCA 227 at [2] (Basten JA).
Senior counsel for Ms Alawia referred to a passage in the report of Dr Apler as indicating that he too accepted some difficulty in identifying and assessing pre-existing impairment:
"Further information from her previous doctors, the Family Court, Centrelink or any other sources concerning her pre-accident functioning and symptoms would help to understand the nature of her problems before the accident." (Exh A p 17)
The medical assessor in this case was required to exercise clinical judgment (cl 7.17) and this appears to be what he has done. It was open to him not to regard Dr Nigro's bald statement that Ms Alawia "is/was unfit for normal work for many years" as "objective evidence of pre-existing symptomatic permanent impairment" (cl 1.33).
These grounds are not made out. The provisions of the guidelines referred to required the medical assessor to estimate the overall pre-existing impairment. He did so.
[7]
(e) there was legal unreasonableness in failing to give adequate weight to relevant factors; giving excessive weight to irrelevant factors; reasoning illogically or irrationally; and making a decision that lacked evident and intelligible justification
There is enough in what I have written above (and it does not bear repeating) to indicate that this complaint cannot be sustained as well.
[8]
Conclusion
I am not satisfied that any jurisdictional error has been made out, or that there is any error of law on the face of the record in the determination of the medical assessor.
Comparatively little was said in writing and orally about the decision of the proper officer refusing the referral application. Essentially the complaint was that he failed to appreciate and uphold complaints advanced in this Court about the medical assessment. They fail and so too must the complaints about the proper officer's determination.
[9]
Orders
I make the following orders:
1. Extend time for the filing of initiating summons pursuant to UCPR r 59.10(2) to 15 March 2016.
2. Amended summons filed on 26 October 2016 dismissed.
3. The plaintiff is to pay the costs of the first defendant.
[10]
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: 23 December 2016
The provisions relating to medical assessments are in Pt 3.4 of Ch 3 of the Act (ss 57 to 65). It applies to disagreements between a claimant and an insurer about certain matters including whether the degree of impairment of the injured person as a result of the injury caused by a motor accident is greater than 10% (s 58(1)(d)).
A party to such a medical dispute may refer it to the SIRA for assessment under Pt 3.4. The SIRA is then to arrange for it to be referred to one or more medical assessors (s 60).
Following assessment, the assessor(s) are to provide a certificate as to the matters referred for assessment which then becomes conclusive evidence as to the matters certified (s 61).
Provision as to the content of a certificate is made in 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."
Section 63 allows for a party to a medical dispute to apply to the proper officer of the SIRA to refer a medical assessment by a single medical assessor to a review panel of medical assessors for review (s 63(1)). An application can only be made on the grounds that the assessment was incorrect in a material respect (s 63(2)). Sub-section (3) provides:
"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."
The role of the proper officer in relation to applications for referral to a review panel has been described as that of a "gatekeeper, not a decision-maker": Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 at [23].