QBE Insurance (Australia) Ltd v Henderson

Judgment 1Mr Paul Henderson, the defendant, was involved in a motor accident on 24 September 2008 when a vehicle travelling in the opposite direction veered in front of the lorry that he was driving and the two vehicles collided. The driver of the other vehicle was killed in the accident. 2QBE Insurance (Australia) Ltd, the plaintiff, was the third party insurer of the other driver and it admitted liability for the accident by a notice given under s 81 of the Motor Accidents Compensation Act 1999 (all references to sections in the balance of these reasons are to this Act unless otherwise specified). The Motor Accidents Authority is the second defendant in these proceedings and has filed a submitting appearance. 3Mr Henderson was medically assessed pursuant to Pt 3.4, s 61 by Dr Lana Kossoff, an assessor from the second defendant's Medical Assessment Service ("MAS"). Dr Kossoff found Mr Henderson to be suffering from psychiatric injuries assessed at 16 per cent whole person impairment. 4QBE lodged a MAS application for further medical assessment pursuant to s 62. This application was said to be based on additional relevant information about the injury within the meaning of s 62(1)(a) in the form of a report of Dr Klaas Akkerman dated 6 February 2012 ("Dr Akkerman's third report"). 5Mr Henderson lodged a reply which is in the Tender Bundle at p 77 (all page references hereafter are to the Tender Bundle). Written submissions were provided to the MAS as part of the reply. 6By letter of 17 April 2012 (p 90) the "acting proper officer" ("the proper officer") gave her decision and stated: "The applicant seeks to rely on the report of Dr Akkerman as evidence that the claimant's condition has significantly improved. I note that in his previous report dated 17 December 2010, Dr Akkerman assessed the claimant as being Median Class Value 2, with an Aggregate Score of 12, and a whole person impairment of 6%. This report was considered by Assessor Kossoff in her previous determination and the Assessor came to a different conclusion. In terms of assessment, Dr Akkerman's 2010 report does not differ significantly from his most recent report which assesses the claimant as being Median Class Value 2, with an Aggregate Score of 10, and a whole person impairment of 5%. The issue of causation was considered by Assessor Kossoff and was addressed in her previous determination. Whilst Dr Akkerman comes to a different conclusion in his most recent report, this is not "additional relevant information" as it is an issue that has previously been canvassed and considered by the Assessor." 7QBE made a number of complaints about the decision: (1)The application for further medical assessment made under s 62, it said, "plainly contained" additional relevant information about the injury. This involves consideration of Dr Akkerman's third report. It is asserted: "This was a new medical report from an expert psychiatrist containing radically new information that had never been before the medical assessor and was entirely new" (par 49 of the plaintiff's outline of submissions ("POS")) It is said that the characterisation by the proper officer that the report "is not additional relevant information" demonstrates that the proper officer "misconstrued or misunderstood her powers". (2)The proper officer took into account an irrelevant consideration, namely the 2010 report of Dr Akkerman, when this report was not part of the plaintiff's further application (see POS at par 52). (3)The proper officer "in determining that since the subject injuries had already been assessed as being related to the subject motor accident, the plaintiff's application could not succeed under s 62" demonstrates a misunderstanding of s 62 and shows that she did not make her own assessment and determination (see POS at par 57). (4)The proper officer failed to set out necessary or lawful reasons. 8QBE submits that, for each of these reasons, this court should intervene and quash or set aside the decision of the proper officer as ultra vires or for jurisdictional error. Another ground relating to the status of the acting proper officer was abandoned at the hearing. 9In relation to the question as to the proper officer's reasons, Ms B Nolan, who appears for the defendant, contends that the proper officer's reasons must be taken to include the argument advanced on behalf of Mr Henderson. This is said to arise by virtue of the reference, in the proper officer's reasons, to "I have considered the application for further assessment, the reply and all supporting documentation in this matter". Mr M Robinson SC, who appears with Mr I Cullen for the plaintiff, contends that the Court cannot treat that statement as embracing the contentions of Mr Henderson and I agree with that submission. The reasons provided by the proper officer are those set out in her letter of 17 April 2012. I do not accept that ss 69(3) - (5) of the Supreme Court Act 1970 or what was said in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 60 MVR 194 per McColl, Basten and Macfarlan JJA, support Ms Nolan's contentions. 10The only material on which attention needs to be focused (in addition to Dr Akkerman's third report) are the reports of Dr Akkerman of 9 November 2009 ("Dr Akkerman's first report") and 13 December 2010 ("Dr Akkerman's second report") and the reports of Dr Stephen Allnut of 24 May 2010 and 28 April 2011, which were reports considered by Dr Kossoff. 11Dr Allnutt's assessment was that Mr Henderson manifests "a constellation of depressive and anxiety symptoms consistent with post-traumatic stress disorder with associated depressive symptoms that appear to have been present since three months after the accident and persist to date", that the accident "contributed substantially to his current presentation" (see Dr Allnut's report of 24 May 2010 at p 40) and that prognosis for the future "is guarded" (p 42). In his supplementary report, Dr Allnutt said that his previous opinion remained "essentially unchanged...however, there does appear to be some amelioration since my last interview with him but I would regard this as relatively marginal" (p 46). 12Dr Akkerman, in his first report, diagnosed "post-traumatic stress disorder with major depressive and alcohol use" (p 18) and said "the accident has caused all this" (p 19). The prognosis for the future was "very guarded" (p 19). In his second report, Dr Akkerman expressed the same view as before except "possibly the alcohol abuse is pre-existing" (p 24) and the prognosis "is guarded" and "[h]is condition has stabilised" (p 25) (compare to his first report at p 19). Dr Akkerman then expressed his views on whole person impairment, utilising the "area of function" and "class", "median class value" and "aggregate score" to arrive at a percentage of whole person impairment of six per cent (see p 25). 13In his third report, Dr Akkerman said of Mr Henderson's claimed injuries and disabilities: "They are not consistent with the accident. I believe he has recovered from his initial condition and he now suffers from a condition that is unrelated to the accident." (p 63) I set out Dr Akkerman's summary of the Mr Henderson's history (p 62) and Dr Akkerman's response to questions four to nine (p 64): "Background History He is now 42, his wife is 40 and they have moved to Merimbula. They have lost their business. They have lost their house. Their children are now 16 and 2. They are both well. His general practitioner is still Dr Steiner. The accident has been described in my earlier reports and he agreed that it was adequately described. I inquired as to how he is now. He said he is a bit worse. He has initial and middle insomnia. He has headaches. His left arm gets numb. These were the only symptoms he could volunteer. On questioning he said his concentration is down. His short term memory is down. His long term memory is normal. His level of interest is down. His level of energy is down. His appetite is normal. His libido is down. He is irritable. He is not tearful. He no longer gets upset. There is no avoidance. There are no nightmares. He has the occasional flashback. He still startles easily. He is no longer hyper-vigilant. There is no sense of a shortened future. He does not feel different from others. There is no restricted affect. There is no psychogenic amnesia. I inquired as to what treatment he had. He sees the general practitioner. He has not had any other treatment. He takes Lovan one per day and Endep 10 mgs one per day. ... 4. Diagnosis, if any, including severity of the psychiatric condition and the current state of the psychiatric condition. The diagnosis is now Major Depression and alcohol abuse. He no longer suffers from Post-Traumatic Stress Disorder. His condition is fairly moderate. 5. Whether or not any psychiatric diagnosis is related to the accident on 24 September 2008? His condition is no longer related to the incident of 24 September 2008. In my opinion he has recovered from the previous condition. He now suffers from alcohol abuse and secondary Major Depression. This has a constitutional basis. 6. Whether a person of normal fortitude, in the claimant's position, would have suffered a psychiatric illness as a result of the subject accident. Whether or not a person of normal fortitude would suffer a psychiatric illness as a result of the subject accident, this is a difficult question because the diagnosis of "normal fortitude" is not clear. However, only a minority of people would suffer from a condition like this after an accident. Therefore, I would say a person of normal fortitude would not develop this. 7. Details of the psychiatric treatment received. Has this treatment been reasonable and necessary? I have outlined what treatment he has received. The treatment he has had is reasonable and necessary. 8. What was the psychiatric status of the claimant prior to the accident? He was well before the accident. 9. Please comment on any factors since the motor vehicle accident that may have contributed to the claimant's current psychiatric status. The alcohol intake, the other factor since the motor vehicle accident, his condition now relates to this alcohol intake." Dr Akkerman assessed Mr Henderson as having a whole person impairment of five per cent (p 66). 14Section 62 is in these terms: "62 Referral of matter for further medical assessment (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 of the Authority who is 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." (emphasis added) 15The Act and its operation have been described in considerable detail in a number of cases. It was agreed that the outline provided by Schmidt J in Insurance Australia Ltd t/as NRMA Insurance v Hutton-Potts [2010] NSWSC 1446; (2010) 57 MVR 194 at [13] - [28] was a helpful guide and description. 16In considering s 62 it is useful to observe that s 62(1)(a) provides two separate bases for further referral - "deterioration of injury" and "additional relevant information about the injury". We are not here concerned with the first category. It can be seen that the section does not impose any limit on the number of "further" assessments. Subsection 62(1A) makes it clear that it is not sufficient that the information be additional relevant information for it to lead to the need for further assessment, it must also be "capable of having a material effect on the outcome of the previous assessment". There are then three questions which need to be considered by the proper officer in reaching a determination as to whether or not to refer again: (1)Is the information proffered by the claimant or insurer relevant information? (2)If so, is it "additional" relevant information? (3)If it is additional relevant information, is it information that is capable of having a material effect on the outcome of the previous assessment? 17In Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 at [38] - [41], Rothman J held that a medical opinion not previously expressed by an expert was additional relevant information. In Glover-Chambers v Motor Accidents Authority of New South Wales [2010] NSWSC 17 at [37], McCallum J cited Garcia at [38] and accepted that an opinion will only be "additional" to the extent that it has not previously been expressed in material put before the assessor. 18In Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 at [60], Rothman J, in considering whether a DVD of surveillance of the plaintiff and a report of a psychiatrist (Dr Smith), who had seen the film, constituted additional relevant information, held that the information was not "additional to Allianz" because they were both available to Allianz at the time of the review and Allianz had decided to hold back that information. His Honour went on to say at [63]: "Moreover, the combined effect of the DVD, surveillance report and the opinions of Dr Selwyn Smith is to provide material of the same kind as had already been considered. A further medical opinion is only additional information if it is of a different kind (i.e. deals with different issues) than opinions already expressed and considered: Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 at [38]; (2009) 54 MVR 102." 19In Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182, Davies J held that there was no additional relevant information and at [34] - [35] and [43] said: "[34] With respect, I agree with what his Honour has said in those paragraphs [that is, Garcia at [40] - [41] per Rothman J]. I understand him not to be saying that any further opinion of an expert would be additional relevant information. Rather, if no expert has already expressed an opinion about a particular aspect of the matter then it would be additional. [35] It seems to me that if material before the Assessor has expressed an opinion that particular injuries were caused by the accident, the fact that another expert says the same thing but using different or greater analysis will not mean the information is additional. This is because there was an opinion to that effect before the Assessor which, on the face of the Assessor's report, was considered. If the opinion has been expressed, as here, that particular injuries are related to the accident, the precise way the doctor explains why he thinks that that is so, cannot amount to additional relevant information. The important matter is the opinion about causation. ... [43] Even if Rothman J had not expressed the opinions he did in Garcia, I should have had great difficulty accepting that a party was entitled to refer a matter for further assessment simply because they obtained a medical report which said something different from previous reports that had been considered by an assessor. If that was so, there may never be an end to the assessment process. It would be inconsistent with the objects of the Act particularly the object set out in s 5(1)(b) of encouraging early resolution of compensation claims." 20I draw from the approach of Rothman J in Garcia, McCallum J in Glover-Chambers and Davies J in Alavanja the following principles in relation to expert reports: (1)if no report on a subject has been provided to an assessor, a later report on that subject will be additional relevant information; and (2)if a report on that subject has been provided previously to an assessor, a new report from another expert will not be additional relevant information even if the new report provides different or greater analysis to reach the same conclusion. 21Neither Garcia, Glover-Chambers or Alavanja deal with reports which reach a different conclusion based upon a change in the symptoms of a claimant. Were Dr Akkerman to have provided a report which was based on some reappraisal of views based on no change in the history or symptoms or expression of feelings by the patient, I would not regard that as additional relevant information within the meaning of s 62. 22I accept that the passage from Singh (No 2) at [63], set out at [18] above, is capable of being construed as meaning that if the topics covered are the same as an earlier report, the report cannot be additional information but his Honour was clearly referring to what he had said in Garcia. Of course, in Singh (No 2) his Honour held that the information relied on was not additional because it had been obtained prior to the time of the s 63 review. When regard is had to Garcia, I do not take his Honour to be saying that an opinion based on new information is never capable of being additional information merely because that topic has been previously considered. Thus, for example, if a patient who had always been seen in a wheelchair and who claimed to be unable to walk admitted in a subsequent interview that he had not had to use a wheelchair since the date of the review, that would be additional information and an expert opinion based on that admission would, in my opinion, be additional (and relevant) information. 23Dr Akkerman has changed his opinion on whether Mr Henderson is now suffering from post-traumatic stress disorder ("PTSD") and he has done so, he says, on the basis of what Mr Henderson has told him in an examination occurring after the MAS assessment conducted by Dr Kossoff (and implicitly on a comparison to what he had told him before). The question that I think needs to be considered is: is the factual material provided to Dr Akkerman and recorded in his third report different to the material provided and recorded in the earlier reports? 24Mr Robinson, emphasised that the certificate of assessment describes the condition as "post-traumatic stress disorder/post-traumatic stress disorder with associated depressive and anxiety symptoms" and he submits that if it be correct that Mr Henderson is no longer suffering from PTSD, it is likely to have a significant impact on the degree of impairment attributable to the motor accident (as opposed to some underlying problem of alcohol abuse which may or may not be a consequence of the motor accident). There are differences between what is recorded under the mental status examination section of the third report in contrast to the second report and first report of Dr Akkerman. To the extent that there are differences, they may support the conclusion that Mr Henderson is no longer suffering from PTSD. 25It is a curious feature of Dr Akkerman's report that he classified Mr Henderson as having a six per cent whole person impairment when he had, in Dr Akkerman's view, PTSD and major depression and alcohol abuse and classified him as having a five per cent whole person impairment when he, on Dr Akkerman's assessment, no longer had PTSD. It may well be that anomaly that has caused some difficulty. 26It was asserted by Mr Robinson and accepted by Ms Nolan that the only question which the proper officer in fact addressed was: was the material relied on additional relevant information? If the proper officer was correct in holding that Dr Akkerman's third report was not additional relevant information, then she was not required to proceed to determine whether the material was capable of affecting the outcome. 27The proper officer seems to have decided that Dr Akkerman's report was not additional relevant information because: (1)Dr Akkerman's second report had been considered by Dr Kossoff; (2)Dr Akkerman's third report does not differ significantly from his second report; and (3)"causation" was considered by Dr Kossoff. 28I am conscious of the legislative requirement that reasons given by the proper officer are to be brief. 29The fact that Dr Akkerman's second report had been considered by Dr Kossoff does not of itself provide an answer to the question of whether the third report has anything new but (1) and (2) at [27] above are coupled. If it be correct that the third report does not differ significantly from Dr Akkerman's second report then the fact that Dr Akkerman's second report was considered by Dr Kossoff is, in my view, relevant. 30The proper officer has placed weight on the fact that causation was considered by Dr Kossoff. I accept that "causation" was considered by Dr Kossoff but I do not think that the mere fact that causation was considered by the medical assessor means that there can be no additional relevant information which deals with causation. It would only be in a case where no symptoms and no extant condition, physical or psychological, were found in which there would be no need to consider the issue of causation. I accept further that both Dr Allnut and Dr Akkerman, in the reports that were provided to the assessor, considered causation and expressed their views on that topic. There will be cases where the subsequently expressed views of a medical expert by whomever he or she is retained will not be additional relevant information (Alavanja being such an example). 31I do not accept QBE's contention that the proper officer erred by having regard to the second report of Dr Akkerman - I think she was required to have regard to what was placed before Dr Kossoff in order to determine whether the report now relied on meets the description of additional relevant information. 32Ms Nolan in her written submissions of 28 September 2012 prepared a table in which she contrasted Dr Kossoff's reasons for class allocation within the medical assessment guidelines with those of Dr Akkerman's third report and claimed that the differences were not differences as to the information relied on but rather only a differing view about the appropriate class to allocate. This description is not entirely accurate given that, for example, in the first highlighted section, the MAS assessor notes that Mr Henderson "is not as meticulous in his self care and sometimes can't be bothered showering and presented unshaven" but Dr Akkerman (see p 65) stated "[h]e is adamant there were no restrictions. He mentions he showers daily". Ms Nolan contended that Dr Akkerman's observation was not supported anywhere else in his report and "was insufficiently premised to undermine the observations of the MAS Assessor". This is not the appropriate forum in which to determine whether Dr Akkerman's statement of what Mr Henderson told him is inaccurate and as it stands this is an example of a difference in the plaintiff's description of his position at a later period compared to an earlier period. 33In my view, the focus for determining whether Dr Akkerman's third report contains additional relevant information should be on comparing the symptoms which Dr Akkerman records were described to him in more recent times to the symptoms which were described to him for the purposes of his first and second report. 34I have compared the contents of Dr Akkerman's three reports. The third report records differences from the second report. I set out those differences: (1)middle insomnia (in addition to initial insomnia previously noted); (2)level of interest down; (3)libido down; (4)no longer gets upset when he thinks about the accident; (5)no avoidance; (6)occasional flashbacks; (7)no hypervigilance; (8)no nightmares; (9)left arm gets numb and headaches; (10)on Endep, Panadol and Celebrex (in addition to Lovan, Natrilix and Pariet). In relation to (1), (2) and (3), these indicate a worsening. Items (4) to (8) indicate improvement. In relation to (9), numbness and headaches, these are physical and not psychological. In relation to (10), two of the new medications are for pain relief. 35In my view, the fact that Mr Henderson no longer gets upset when he thinks about the accident, does not have nightmares, does not utilise avoidance, is no longer hypervigilant, has only occasional flashbacks, all being matters considered by Dr Kossoff in forming the view that she formed, is material and is additional relevant information. The question of whether that additional relevant information is of a type, when coupled with the fact that he has middle level insomnia, that his level of interest is down, that his libido is down and any changes in his medication, capable of having a material effect on the outcome of the previous assessment is a different question and one that must be answered in the affirmative before the assessor can refer the matter for a further assessment. That question, as I have noted, is not one which the assessor addressed and will need to be. It is not appropriate that I express any opinion on that question. 36It follows, in my view, that the assessor is required to treat the third Akkerman report as additional relevant information and to now proceed to consider whether the information is of a character that is capable of having a material effect on the conclusion that the claimant suffers from PTSD as a result of the motor vehicle accident. 37I raised with the parties the question of whether or not the Court was empowered by virtue of s 62(1)(b) to refer again a matter for assessment in the context of the present proceedings which are for judicial review. As Mr Robinson submitted, there are no express words limiting the Court but having regard to the very detailed and comprehensive scheme introduced by the Act, I do not think it would have been intended by the legislature that a court which was not seised of jurisdiction to deal with the motor accident and its consequence would be empowered to make directions for a further assessment in the course, not of dealing with determining issues of liability of damage, but of determining whether an administrative decision has been validly made or not. That provision, I think it is clear, was designed to enable the District Court in dealing with a case which had been diverted out of the principal assessment process, to be able to obtain a fresh medical assessment by MAS (when either the passage of time or other reasons have led to doubts about the applicability of an earlier assessment). If I am wrong in that conclusion and this court does have a discretion to so order, I would nevertheless decline to exercise that discretion on the basis that the appropriate course is for the proper officer to reconsider the matter and no sufficient reason as to why that step should not occur has been advanced. Conclusion 38I therefore order that: (1)the decision of the acting proper officer of the second defendant, namely the determination dated 17 April 2012 to refuse to refer the first defendant for a further medical assessment made purportedly pursuant to s 62, be set aside; and (2)the defendants or any of their officers, servants or agents be prohibited from acting on or taking any further step in reliance on the decision. 39I make a declaration that the plaintiff's application made pursuant to s 62 contained "additional relevant information about the injury" within the meaning of that expression in s 62(1)(a). 40I remit the plaintiff's s 62 application to the second defendant for reallocation of the matter for determination according to law. 41The first defendant is to pay the plaintiff's costs of these proceedings on the ordinary basis. 42Mr Robinson in his submissions indicated that the Court could grant a certificate to the defendant under the Suitors' Fund Act 1951. In Allianz v Ward [2010] NSWSC 720 at [82] Hidden J held that a claims assessor exercising jurisdiction under the Motor Accidents Compensation Act constitutes a "court" for the purposes of s 6(1) of the Suitors' Fund Act, citing Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497, per Kirby P at 511 - 14 and McHugh JA at 515 - 6, and this approach was followed by Hoeben J in GIO General Ltd v Smith; Insurance Australia Ltd t/as NRMA Insurance v Smith (No 2) [2011] NSWSC 998. Justice Hoeben noted that Rodger v De Gelder [2011] NSWCA 97 had been relied on but, as his Honour pointed out, that was an appeal from a judge of this court. I must say, with respect, that I have some doubt that a medical assessor or panel could qualify as a court, even on a liberal interpretation of the kind adopted in Australian Postal Commission v Dao (No 2), but even accepting that the medical assessment panel or even a single assessor is treated as a court, I do not think the approach can be extended to a person exercising power under s 62 of the Motor Accidents Compensation Act and I decline to make an order of the kind suggested by the plaintiff.