(2016) 75 MVR 502
Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356
[2018] NSWCA 22
Brimelow v Sharpe [2012] NSWCA 345
Campbelltown City Council v Vegan (2006) 67 NSWLR 372
[2006] NSWCA 284
(2006) 235 ALR 342
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Source
Original judgment source is linked above.
Catchwords
(2016) 75 MVR 502
Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356[2018] NSWCA 22
Brimelow v Sharpe [2012] NSWCA 345
Campbelltown City Council v Vegan (2006) 67 NSWLR 372[2006] NSWCA 284(2006) 235 ALR 342
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26(2003) 77 ALJR 1088(2003) 197 ALR 389
AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229(2016) 77 MVR 348
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259[1996] HCA 6
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323[2001] HCA 30
Raibevu v Minister for Home Affairs [2020] FCAFC 35
Rodger v De Gelder [2015] NSWCA 211(2015) 71 MVR 514
Wingfoot Australia Partners Pty Ltd v Kocak (2003) 252 CLR 480
Judgment (19 paragraphs)
[1]
Solicitors:
R. J. O'Halloran & Co (Plaintiff)
Moray & Agnew (First Defendant)
Crown Solicitor for NSW (Second and Third Defendants)
File Number(s): 2019/381609
[2]
Background
Ms Montana Richardson, the plaintiff, suffered injuries in a motor vehicle accident on 3 January 2016 in Tamworth, New South Wales, when she was about two and a half years old. QBE Insurance (Australia) Ltd (QBE), the first defendant, was the licensed compulsory third-party insurer in respect of the vehicle at fault in that motor accident and was the only active defendant. The other defendants, the State Insurance Regulatory Authority (SIRA) and the Medical Assessors Review Panel, entered submitting appearances.
On 8 March 2019, as a result of a medical dispute being referred to him in accordance with Part 3.4 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act), medical assessor, Dr Geoffrey Curtin, conducted a medical assessment of the plaintiff. On 10 March 2019, Dr Curtin certified that the plaintiff's injuries caused by the motor accident gave rise to a whole person impairment (WPI) which was not greater than 10%, having regard to her "bodily scarring-left arm and back" and "left cheek-scarring".
On 18 April 2019, the plaintiff applied for a review of the medical assessment, under s 63(1) of the MAC Act.
On 25 June 2019, the proper officer decided that he was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and, in accordance with s 63(3) of the MAC Act, the review application was referred to a medical review panel.
On 5 September 2019, the review panel revoked the previous certificate of Dr Curtin and issued a review panel certificate determining that both aspects of the plaintiff's scarring caused by the motor accident gave rise to a WPI which in total was not greater than 10%.
On 4 December 2019, the plaintiff, by her tutor, filed a summons in this Court seeking to have the medical review panel's certificate set aside and a further review carried out.
For the reasons set out below, I have decided that the medical review panel's certificate of 5 September 2019 should be set aside and the application for review should be referred again to a review panel for determination in accordance with law.
[3]
The review panel certificate and reasoning
As noted above, on 25 June 2019, the review application was referred to a review panel. On 5 September 2019, the review panel revoked the previous certificate of 10 March 2019 and determined that the plaintiff's injuries caused by the motor accident of: bodily scarring - left arm and back ("the Skin"); and scarring - left cheek ("the Face"), gave rise to a WPI of 5% and 1% respectively, making a total WPI of not greater than 10%. For present purposes, only the Skin aspect of the review panel's reasoning is relevant.
As required by ss 63(6) and 61(9) of the MAC Act, the review panel set out its reasons in its certificate. There, it was recorded that the panel had reviewed: Dr Curtin's certificate which included his reasons; the application for review with attached documents and the reply with attached documents; the proper officer's determination; all the documents provided to Dr Curtin prior to his assessment; and, the statement dated 29 October 2018 from the plaintiff's mother, Ms Richardson.
The certificate also noted that, after considering all the available evidence referred to above, the review panel determined that a re-examination of the plaintiff was necessary in order to reach a decision, because they wanted to obtain further information about "the effect the scars were having on the normal activities of [the plaintiff's] life" and this could not be done without examining the scars.
The review panel's record of the additional evidence and its reasoning, in the certificate, were as follows:
"B. Additional Evidence
[The plaintiff] is still being seen regularly by a Burns Therapist at Tamworth Base Hospital where she is measured for new pressure garments as they minimise and hasten the maturation of hypertrophic or keloid scars. She receives new garments about every four months.
Ms Richardson is very concerned about [the plaintiff's] scars because they are prominent, the skin is more fragile than normal skin and there is both heat and cold intolerance. The Panel was told that should [the plaintiff] fall, the skin around her left elbow, being so fragile, damages easily and then take some weeks to heal. Because of this, her arm is kept covered in its Jobst garment at all times as, in addition to helping with her scar maturation, it also protects her skin. [The plaintiff] is now playing water polo and she wears a sleeve over the pressure garment to protect the skin elsewhere on her arm. Her mother also uses soft kneepads on her left elbow when [the plaintiff] plays any contact sport.
The Panel were told that [the plaintiff's] scars are very susceptible to changes in temperature and, should she become hot or feverish, such as with tonsillitis or influenza, they go very red. Similarly, if she swims in cold water, they go purple and then take some time to go back to their normal colour.
Ms Richardson rubs Vitamin A into the scars every day, occasionally also uses Jojoba oil and Frankincense oil on them and, because she is worried about the effects of the sun on [the plaintiff's] scars, she applies a 50+ Ultra-violent whenever she is out in the sun."
Findings on examination: [The plaintiff] was a pleasant, cooperative young girl who had fair hair and a very pale complexion; she was wearing a pressure garment on her left arm but it was removed prior to the examination. She had the following scars,
… [this material related to the Face aspect of the scarring which was not the subject of any challenge in these proceedings]
3. There was also a barely visible, oblique line, 130 mm long, on her back, but the skin texture was normal and it would not normally be seen.
4. There was extensive, prominent, but mobile scarring on the outer aspect of her left upper arm, from the shoulder to the elbow, and which then extended onto the dorsal aspect of the proximal two-thirds of her left forearm …
[The photographs reproduced in the certificate] clearly show four obvious bands of pink, raised, resolving hypertrophic scars on the outer aspect of [the plaintiff's] left upper arm [and measurements for four scars were given]
Then, across the lateral aspect of her left elbow and extending onto her left forearm, there was a very prominent and unsightly band of hypertrophic/resolving keloidal scarring which measured 150 x 60 mm. There were, however, no contractures and [the plaintiff] had a full range of elbow movement.
In addition to her scarring, the Panel also detected a slight discrepancy in the fullness of [the plaintiff's] left upper limb [and comparative measurements were given]
The Panel's attention was not drawn to any other areas of scarring and the clinical findings are consistent with [the plaintiff's] history.
C. Panel Deliberations
There are two areas of scarring which the Panel had to consider, namely 'the face' and 'the skin' elsewhere.
…
[The plaintiff] is conscious of her scars on her left arm and back. There is a distinct colour contrast between her scars and the surrounding skin, she can easily locate the scarring, hypertrophic changes are visible, no stich or staple marks are visible, the anatomical site is clearly visible in normal summer wear, there are easily visible contour defects, there is limitation in few of the normal activities of her daily life, there is no scar adherence but exposure to physical agents, such as heat and cold, may temporarily increase the limitation and intermittent treatment is required.
Seven of the ten TEMSKI scar criteria fit the 5-9% WPI zone; however, because there is no scar adherence, the Panel's opinion is that the "best-fit" for her impairment is at the low end of this range 5% WPI."
[4]
Judicial review application
On 4 December 2019, the plaintiff, by her tutor, filed a summons, invoking the supervisory jurisdiction of this Court, confirmed by s 69 of the Supreme Court Act 1970 (NSW), seeking to have the Review Panel's decision set aside. The relevant orders sought in this summons were as follows:
"1. A declaration that the making of the decision of the third defendant dated 5 September 2019 was attended with jurisdictional error and/or error of law on the face of the record and is quashed.
2. In alternative, an order in the nature of certiorari removing the determination of the third defendant dated 5 September 2019 into the Supreme Court of NSW and quashing that determination.
3. An order in the nature of prohibition restraining the defendants from acting or relying on the decision of the third defendant dated 5 September 2019.
4. An order in the nature of mandamus remitting the plaintiff's application for review of Assessor Curtin's assessment dated 10 March 2019 to the second defendant for reallocation and determination according to law.
Costs.
…"
In her summons, the plaintiff indicated, in effect, that she did not challenge the medical review panel's decision in relation to the 1% WPI attributable to scarring to her left cheek as a result of the accident, the Face aspect of the certificate. Her challenge was focused upon the assessment of 5% WPI in relation to the scarring to her left arm and back, the Skin aspect.
The grounds of review set out in the summons can be adequately summarised as follows:
1. The review panel failed to make the required determination under the MAC Act because it failed to classify the plaintiff's impairment under Table 2 of the American Medical Association Guides Fourth Edition as required by the guidelines applicable under the MAC Act before moving on to the TEMSKI criteria relevant to class 1 in Table 2.
2. The review panel applied the wrong legal test, identified the wrong legal issue or asked itself the wrong question.
3. The review panel failed to respond to a substantial clearly articulated argument relying on established facts.
4. The review panel failed to give sufficient reasons for classifying the plaintiff's impairment as class 1 under Table 2 rather than class 2 (or higher).
[5]
The MAC Act: objects and assessment of impairment
The MAC Act provides for the medical assessment of injuries and impairment which result from a motor vehicle accident, such as were suffered by the plaintiff in the present case.
The objects of the MAC Act are set out in s 5(1), with the following paragraphs of potential relevance in this case:
"(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims,
…
(e) to keep 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,
…"
Under s 6(2), any person exercising a discretion conferred by a provision of the Act must do so in a way that best promotes the objects of the Act or of the provision concerned.
Consistently with the object in s 5(1)(e), s 131 of the MAC Act provides that no damages for non-economic loss are to be awarded unless the degree of permanent impairment of the injured person as a result of the motor accident is greater than 10%. Section 132 provides that if there is a dispute about whether the degree of permanent impairment exceeds the 10% threshold, a court may not award any such damages unless the degree of impairment has been assessed by a medical assessor under Pt 3.4 of the MAC Act. Part 3.4 will be considered below.
The method of assessing the degree of impairment is governed by s 133 of the MAC Act. That section requires that the degree of permanent impairment is to be expressed as a percentage and is to be assessed, in a case such as the present, in accordance with the Motor Accidents Medical Guidelines issued for that purpose. Section 44 empowers SIRA to issue Motor Accidents Medical Guidelines.
[6]
The Motor Accident Permanent Impairment Guidelines
The relevant guidelines for present purposes are the Motor Accident Permanent Impairment Guidelines issued by SIRA under s 44(1)(c) of the MAC Act, effective from 1 June 2018 and applicable to motor accidents occurring between 5 October 1999 and 30 November 2017 (the Guidelines).
It is noted in cl 1.2 of the Guidelines that they are based on the American Medical Association's Guides to Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). That clause also states:
"A medical assessor undertaking impairment assessments for the purposes of the Act must read these Guidelines in conjunction with the AMA4 Guides. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA4 Guides should be followed."
Clauses 1.8 to 1.9 and 1.10 to 1.13 of the Guidelines are relevant in the present case, since they establish that the otherwise important distinction between impairment and disability is not applicable in relation to scarring. In addition, these clauses indicate that, in the case of scarring, disability is used as an indicator of severity of impairment. It can be noted that the review panel's approach appeared to be inconsistent with this, because it said in its certificate that "the percentage whole person permanent impairment is not a direct measure of disability".
Clauses 1.8 to 1.9 and 1.10 to 1.13 provide:
"1.8 It is critically important to clearly define the term impairment and distinguish it from the disability that may result.
1.9 Impairment is defined as an alteration to a person's health status. It is a deviation from normality in a body part or organ system and its functioning. Hence, impairment is a medical issue and is assessed by medical means.
…
1.11 Disability, on the other hand, is a consequence of an impairment. The WHO definition is 'any restriction or lack of ability to perform an activity in the manner or within the range considered normal for a human being'.
1.12 Confusion between the two terms can arise because in some instances the clearest way to measure an impairment is by considering the effect on a person's activities of daily living (that is, on the consequent disability). The AMA4 Guides, in several places, refer to restrictions in the activities of daily living of a person. Hence the disability is being used as an indicator of severity of impairment.
1.13 Where alteration in activities of daily living forms part of the impairment evaluation, for example when assessing brain injury or scarring, refer to the 'Table of activities of daily living' on page 317 of the AMA4 Guides. The medical assessor should explain how the injury impacts on activities of daily living in the impairment evaluation report.
…
1.16 It must be emphasised, in the context of these Guidelines, that it is not the role of the medical assessor to determine disability, other than as described in clause 1.12 (above)." (emphasis added)
[7]
Medical disputes and the review panel's task
As noted above, under s 132(1) of the MAC Act, the degree of impairment is to be assessed by a medical assessor in accordance with Pt 3.4 of the MAC Act, which is headed "Medical Assessment". Part 3.4 consists of ss 57 to 65.
Under s 57, a "medical dispute" means a disagreement or issue to which Pt 3.4 applies. By virtue of s 58(1)(d), that part relevantly applies to a disagreement between a claimant and an insurer about whether the degree of permanent impairment of the injured person caused by the motor accident is greater than 10%. In the present case there was such a dispute between the plaintiff and QBE.
Sections 57A, 59, 59A and 60 provide for the establishment of a Motor Accidents Medical Assessment Service, the appointment of medical assessors and the referral of medical disputes to those assessors.
Under s 61(1) and (2), the medical assessor to whom a medical dispute is referred must give a certificate as to the matters referred for assessment and any such 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 concerned", subject to certain exceptions that are not presently relevant.
Section 61(9) provides:
"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."
Dr Curtin gave such a certificate on 10 March 2019, which stated that the plaintiff's injuries caused by the motor accident gave rise to a WPI which was not greater than 10%. As a result of the successful application for review under s 63 of the MAC Act made on the plaintiff's behalf, the dispute was referred to the medical review panel.
The statutory task that the medical review panel was to carry out is governed by s 63 of the MAC Act. Subsection (3A) of that section provides that the panel's review is not limited only to a review of that specific aspect of the previous assessment or finding that was alleged to be incorrect but rather is to be by way of a new assessment of all the matters with which the original assessment is concerned. In addition, s 63(6) picks up s 61 and applies it to reviews by medical review panels under s 63. Section 63(6) provides:
"Section 61 applies to any new certificate or new combined certificate issued under this section."
[8]
Relevant principles in relation to grounds of review
By her summons filed on 4 December 2019, the plaintiff seeks to have the review panel's certificate set aside. In that certificate, the medical review panel found that the injuries caused by the motor accident gave rise to a WPI which, in total, was not greater than 10%. Accordingly, under s 131 of the MAC Act, no damages for non-economic loss are to be awarded to the plaintiff.
The types of grounds of review potentially available in a case such as the present are jurisdictional error and error of law on the face of the record: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (Wingfoot); [2013] HCA 43 at [26]-[27] (French CJ, Crennan, Bell, Gageler and Keane JJ).
Jurisdictional error embraces a number of different kinds of error including:
1. failing to exercise a statutory function: Ali v AAI Limited [2016] NSWCA 110 at [42] (Basten JA); 75 MVR 502;
2. identifying a wrong issue or asking a wrong question in a way that affects the exercise of power resulting in the decision‑maker exceeding the authority or powers given by the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82] (McHugh, Gummow and Hayne JJ); and
3. failing to address a substantial, clearly articulated argument relying on established facts: Raibevu v Minister for Home Affairs [2020] FCAFC 35 at [87] (Perram, Markovic and Charlesworth JJ) citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] and [95]; (2003) 77 ALJR 1088; (2003) 197 ALR 389.
A claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 (McGiffen) at [45].
On the other hand, a claim for relief based upon an error of law within jurisdiction must identify the error "on the face of the record": McGiffen at [69].
[9]
Grounds of review
As noted above, the grounds of review relied upon by the plaintiff can be summarised as follows:
1. The review panel failed to exercise a statutory function by making the required determination under the MAC Act because it failed to classify the plaintiff's impairment under Table 2 of the AMA4 Guides as required by the Guidelines before moving on to the TEMSKI criteria relevant to class 1 in Table 2.
2. The review panel applied the wrong legal test, identified the wrong legal issue or asked itself the wrong question.
3. The review panel failed to respond to a substantial clearly articulated argument relying on established facts.
4. The review panel failed to give sufficient reasons for classifying the plaintiff's impairment as class 1 under Table 2 rather than class 2 (or higher).
The first, second and third grounds were said to be both errors of law on the face of the record and jurisdictional errors. The fourth ground was said to be an error of law on the face of the record.
In situations where there has been a failure to give adequate or sufficient reasons, it can be difficult to form a proper assessment of the reasoning of the decision maker and to determine whether or not the reasoning involved relevant error. Accordingly, I shall deal with the fourth ground concerning adequacy of reasons first and then only address the other grounds to the extent necessary.
[10]
Ground 4 - failure to provide adequate reasons for assessment of impairment
[11]
Submissions
There was a degree of overlap in relation to the facts and circumstances relied upon in support of the plaintiff's four grounds of review. Nonetheless, the plaintiff's principal submission in relation to the fourth ground was, as I understood it, that the reasons of the medical review panel were insufficient or inadequate because they failed to explain the actual path of reasoning by which the panel in fact arrived at the opinion that the WPI in respect of the Skin was 5% and failed to explain the reasons in sufficient detail to enable the Court to see whether the opinion did or did not involve any error of law.
In addition and in particular, Mr King of Senior Counsel who appeared with Mr O'Connor for the plaintiff contended in effect that:
1. the reasons failed to disclose the basis on which the review panel had found that the scarring fell within class 1 in Table 2, which was a necessary step if the panel was to evaluate the scarring with reference to the five criteria and ten descriptors in the TEMSKI, as it did;
2. more than one conclusion was open as to which class in Table 2 applied to the scarring in the present case, but the review panel failed to give an adequate explanation of its preference for one conclusion over another;
3. even if the scarring did fall within class 1, there was more than one conclusion open as to what percentage WPI in the range of 5-9% should be applied and the review panel failed to give an adequate explanation for its preference for 5% over other conclusions; and
4. the panel failed to comply with the requirements of the Guidelines, for example in cll 1.260 and 1.262, to provide the factual basis and reasons for its decision.
Ms Gumbert of counsel, who appeared for QBE, relied upon the well-known comments in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6, concerning the proper approach to reviewing the reasons of administrative decision makers and also drew attention to the statement by Kirby J in that case (at 291):
"The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law."
[12]
Consideration
By virtue of s 63(3A) and (4) of the MAC Act, the review panel was required to carry out a new assessment of all the matters which were the subject of the original assessment by Dr Curtin and either confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.
In the present case, the review panel decided to revoke Dr Curtin's certificate and issue a new certificate. In these circumstances, s 61 of the MAC Act applied to the new certificate issued under s 63, by operation of s 63(6). Consequently, the review panel's certificate was required to set out the reasons for any findings as to any matter certified, as required by s 61(9) of the MAC Act.
Since there is a duty to give reasons in the certificate in this case, a failure to provide adequate reasons will constitute an error of law on the face of the record: Wingfoot at [28] (French CJ, Crennan, Bell, Gageler and Keane JJ); Rodger v De Gelder [2015] NSWCA 211 at [73] (Gleeson JA); (2015) 71 MVR 514.
Nonetheless, it must be borne in mind that the reasons of an administrative decision-maker, such as the medical review panel in the present case, are meant to inform and are not to be scrutinised by over-zealous judicial review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.
In order for the reasons in the certificate of the review panel to be sufficient or adequate:
1. they must explain the actual path of reasoning by which the medical review panel actually arrived at the opinion in fact formed on the medical question referred to it and do so in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law: Wingfoot at [55]; and
2. where more than one relevant conclusion is open, there must be some explanation of the panel's preference for one conclusion over another: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121] (Basten JA).
In this case, the process that the medical review panel was required to follow in arriving at its opinion on the medical question referred to it and the specific information and the specific reasons the panel was required to provide in doing so were governed by the Guidelines (and the AMA4 Guides, where relevant): s 133(2) of the MAC Act. Consequently, the Guidelines and AMA4 Guides will properly inform an assessment not only of whether the panel's reasons explained the actual path of reasoning by which it arrived at the opinion in fact formed on the medical question to which it was referred, but also of whether the panel's reasons were in sufficient detail to enable the court to see whether the opinion involved any error of law.
[13]
Conclusion on the fourth ground
Taking into account each of these deficiencies, especially those relating to classification in accordance with Table 2, I am satisfied that the medical review panel failed to give adequate reasons for its decision. Thus, the plaintiff has established that there has been an error of law on the face of the record.
[14]
Submissions
Counsel for QBE submitted that even if an error of law were found to have been made in relation to the review panel's decision and its resulting certificate, it would still need to be established that such an error had a bearing on the outcome of the matter in order to justify the Court exercising its discretion to grant relief based on error of law on the face of the record. In the present case, it was contended that the effect of any error would be so minor as not to warrant relief, and that there was no evidence that another trained medical assessor would reach a different view from that of the review panel as to within which class in Table 2 the Skin scarring fell. Indeed, it was submitted that the only other evidence was that of the original assessor, Dr Curtin, that the scarring "clearly falls into the class one category".
The plaintiff submitted that granting relief would be far from futile. If the outcome of a further review by a medical review panel in this case found that the plaintiff's scarring fell within class 2 or a higher class in Table 2, the plaintiff would be entitled to recover damages for non-economic loss in respect of the permanent scarring.
[15]
Consideration
An order in the nature of certiorari for error of law on the face of the record is a discretionary remedy and it is well-established that the Court can properly refuse relief where granting relief would be useless or futile: Brimelow v Sharpe [2012] NSWCA 345 at [33]-[34] (Macfarlan JA, Meagher JA and Tobias AJA agreeing) and the authorities there cited.
In the present case, there were a number of respects in which the review panel failed to give adequate reasons for its decision and, thus, there was an error of law on the face of the record. In my view, a review panel, properly considering all relevant aspects of the three "components" in Table 2 in accordance with the requirements of the Guidelines and AMA4 Guides would not inevitably come to the conclusion that the plaintiff's scarring was only properly characterised as coming within class 1 and not class 2 or a higher class.
Thus, in my view, it would not be useless or futile to set aside the review panel's certificate so that a review of the plaintiff's scarring could be conducted and a certificate as to WPI could be given, in accordance with law.
Accordingly, I propose to order that the medical review panel's certificate of 5 September 2019 be set aside.
[16]
Grounds 1, 2 and 3 - unnecessary to address
The conclusions having been reached that:
1. the review panel failed to give reasons, in its certificate, as required and that the reasons given were inadequate;
2. there was, thus, an error of law on the face of the record; and
3. the panel's certificate is to be set aside,
it is unnecessary to address the remaining grounds.
Furthermore, some of the bases upon which it has been found that the reasons were not given or were inadequate overlap with the circumstances which were said to give rise to errors of law, which were the subject of the other grounds. In these circumstances, the absence or inadequacy of reasons made it somewhat problematic properly to consider and determine whether the review panel made the errors referred to in the remaining grounds since the reasons did not adequately explain what the panel's reasoning actually was.
[17]
Costs
There were no submissions from either party inviting the Court to depart from the general position, established by r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), that costs follow the event. Nor am I aware of any circumstances which would render it appropriate to make a different order as to costs. Consequently, I propose to order that the first defendant pay the plaintiff's costs of the proceedings.
[18]
Conclusion and orders
For the reasons set out above, the Court orders:
1. The certificate issued in relation to the plaintiff by the third defendant on 5 September 2019 is set aside.
2. The plaintiff's application for review dated 17 April 2019 is remitted to the second defendant to be referred to a panel of at least three medical assessors, as provided by s 63 of the Motor Accidents Compensation Act 1999 (NSW), for determination in accordance with law.
3. The first defendant is to pay the plaintiff's costs as agreed or assessed.
[19]
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: 07 April 2020
After finding that the accident was a cause of the left cheek scarring and the left arm and back scarring and that those injuries gave rise to a permanent impairment, the review panel said the "degree of whole person impairment of the injuries caused by the accident was calculated" as set out in a table, which is reproduced below:
There were no other substantive reasons or findings in the certificate, although it did contain the assertion that the determination as to permanent impairment was made in accordance with the "American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition)" and the "Impairment Assessment Guidelines". It was also expressly noted that:
"Permanent impairment ratings take symptoms into account, however the percentage whole person permanent impairment is not a direct measure of disability. …"
The activities of daily living included in the table in the AMA4 Guides (p 317) are as follows:
In relation to assessing the WPI based on the impact of scarring on activities of daily living, QBE submitted that cl 1.21 of the Guidelines required that the evaluation be based only on the impacts on activities of daily living at the time of the assessment and without regard to what effect the scarring might have on the person's activities of daily living prospectively.
I do not accept that this is so.
Clause 1.21 is found in the section of the Guidelines headed "Permanent impairment", which includes cll 1.19 to 1.23. Clause 1.19 relevantly states:
"Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment.
… If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to these Guidelines."
In this context, cl 1.21 provides:
"The evaluation should only consider the impairment as it is at the time of the assessment."
From the terms of cll 1.19 and 1.21 and their context, it appears that what must be permanent, and what must be considered in the evaluation, is the "impairment" in the sense of the "deviation from normality in a body part or organ system and its functioning", as explained in cl 1.9. In the case of scarring, when the deviation from normality of the skin and its functioning has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment, it is permanent. This being so, cl 1.19 has the effect that it is appropriate to evaluate the impairment resulting from the permanent scarring in accordance with the Guidelines.
When evaluating scarring, cl 1.21 requires that an assessor should only consider the impairment, that is, the deviation from normality of the skin and its functioning, as it is at the time of the assessment. In other words, the assessment of WPI should only be based on the nature and extent of the permanent scarring at the time the assessment is being carried out.
It does not follow from this, however, that the extent to which the permanent scarring alters the activities of daily living of the person, is to be considered only by reference to the person's activities of daily living at the date of the assessment. When the Guidelines are read as a whole, cl 1.21 is to be understood as requiring the evaluation to be carried out having regard to the effect of the permanent scarring, as it exists at the date of assessment, but in relation to the activities of daily living, such as those in the Table: Activities of Daily Living with Examples on p 317 of the AMA4 Guides. This is so whether those activities are activities of daily living in which the person would normally engage given their age at the time of the assessment or activities which the person would normally engage in the future. The permanence of the scarring is prospective and, consequently, the effect of the scarring on daily living activities is also prospective.
The provisions of the Guidelines dealing specifically with the skin and scarring are found, under the heading "Skin", in cll 1.258 to 1.267 of the Guidelines. Those clauses relevantly provide:
"Introduction and assessment of the skin
1.258 Chapter 13 (pages 277-289, AMA4 Guides) refers to skin diseases generally. In the context of injury, Sections 13.4 'Disfigurement' (page 279, AMA4 Guides) and 13.5 'Scars and skin grafts' are particularly relevant.
….
1.260 … scars … may be assessed as causing significant permanent impairment when the skin condition causes limitation in performance of activities of daily living. Assessment should include a history that sets out any alterations in activities of daily living. The AMA4 Guides (page 317) contain a table of activities of daily living. Any impairment secondary to severe scarring, such as contracture or nerve damage, is assessed using other chapters and combined with the assessment for scarring.
1.261 A scar may be present and rated 0% WPI.
1.262 Table 2 (page 280, AMA4 Guides) provides the method of classifying impairment due to skin disorders. Three components - namely signs and symptoms of skin disorder, limitation of activities of daily living and requirements for treatment - define five classes of impairment. Determining which class is applicable is primarily dependent on the impact of the skin disorder on daily activities. The medical assessor must derive a specific percentage impairment within the range described by the class that best describes the clinical status of the injured people. All three criteria must be present. Impairment values are WPI.
1.263 When using Table 2 (page 280, AMA4 Guides), the medical assessor is reminded to consider the skin as an organ. The effect of scarring (whether single or multiple) is to be considered as the total effect of the scar on the organ system as it relates to the criteria in Table 2 'Table for the evaluation of minor skin impairment' (TEMSKI). Multiple scars must not be assessed individually. The medical assessor must not add or combine the assessment of individual scars, but assess the total effect of the scarring on the entire organ system.
[Note: The description of Table 2 as "'Table for the evaluation of minor skin impairment' (TEMSKI)" is an error. That description is the heading to Table 18 which is referred to in cl .264. Both Table 2 and Table 18 are set out below.]
1.264 The TEMSKI (Table 18) is an extension of Table 2 (page 280, AMA4 Guides). The TEMSKI divides class 1 into five categories of impairment. When a medical assessor determines that a skin disorder falls into class 1, they must assess the skin disorder in accordance with the TEMSKI criteria. The medical assessor must evaluate all scars either individually or collectively with reference to the five criteria and 10 descriptors of the TEMSKI. The medical assessor should address all descriptors.
1.265 The TEMSKI is to be used in accordance with the principle of best fit. The medical assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. The skin disorder should meet most, but does not need to meet all, of the criteria within the impairment category in order to satisfy the principle of best fit. The medical assessor must provide reasons as to why this category has been selected.
1.266 Where there is a range of values in the TEMSKI categories, the medical assessor should use clinical judgement to determine the exact impairment value and provide reasons that clearly link their clinical judgement to the impairment value selected.
…"
Table 2 of the AMA4 Guides referred to in that passage and in section 13.5 of the AMA4 Guides, provides the following five classes in tabulated form for the classification of skin disorders:
Table 18 is headed "Table for the evaluation of minor skin impairment (TEMSKI)" and is as follows:
Another potentially relevant provision of the AMA4 Guides is section 13.5 which includes:
"…
If a scar involves the loss of sweat gland function, hair growth … or pigment formation, the effect of such a loss on the performance of daily living activities should be evaluated.
… [S]cars may be evaluated according to the criteria in this chapter, with special consideration of the impact of the injury on the patient's daily activities. …"
Ms Gumbert contended that the reasons were sufficient, when viewed as a whole, to elucidate a path of adequate reasoning and that, where the review panel had not reached a conclusion, it was under no obligation to explain why it had not done so, citing Wingfoot at [56]. It was also submitted that, even if there was evidence before the panel that would have supported a finding that the scarring fell within class 2 or a higher class, that was a matter that went to the merits of the decision and was not a basis for judicial review. It was observed that the plaintiff did not submit that there was no evidence to support a finding that the scarring fell within class 1 and, in any event, such a finding was open on the evidence.
In relation to whether the reasons were inadequate because they did not contain a history as referred to in cl 1.260, QBE submitted that this clause in the Guidelines only stated that the assessment "should" rather than "must" include a history of alterations in activities of daily living. Having regard to the language of cl 1.260, it was submitted that it was "not directive" and the plaintiff had not shown that a failure to include a history vitiated the decision. It was further submitted that, in any event, the reasons did, in fact, set out the required history in the panel's reasons and attention was drawn to the passages which have been quoted above in these reasons.
As noted above, in this context, QBE's counsel in effect submitted that "should", as used in the sentence in cl 1.260 of the Guidelines: "Assessment should include a history that sets out any alterations in activities of daily living"; was not mandatory. This submission should not be accepted. In Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 (which considered an earlier, different version of the Motor Accident Permanent Impairment Guidelines), Basten JA described a provision of those earlier Guidelines, that "[t]he evaluation should not include" a certain matter, as "in its terms mandatory". Similarly, in my view, "should" in its context in cl 1.260 should be seen as mandatory.
The Guidelines provide that the scarring, in the present case, is to be assessed as a skin disorder. Pursuant to cll 1.260 to 1.266, but also having regard to cll 1.12, 1.13 and 1.16, the process of assessing, and providing reasons in relation to, the plaintiff's scarring should have involved the review panel:
1. assessing the degree of impairment by reference to the extent to which the scarring caused limitation in performance of activities of daily living and including in the assessment an explanation or "a history that sets out any alterations in activities of daily living" of the types listed in the AMA4 Guides Table on p 317: cll 1.13 and 1.260;
2. classifying the degree of impairment into one of the five "classes" in Table 2 by reference to three "components" each of which must be present: (1) signs and symptoms of skin disorder; (2) limitation of activities of daily living; and, (3) requirements for treatment, as described in Table 2 but primarily depending on the impact on daily activities: cl 1.262;
3. if the scarring was found to fall into class 1 in Table 2, assigning it to one of the five "categories" or sub-classes in Table 18 (or TEMSKI), namely 0% WPI; 1% WPI; 2% WPI, 3-4% WPI or 5-9% WPI by reference to:
1. the "criteria" in TEMSKI which are: (1) description of the scar; (2) location of the scar; (3) contour defect visibility; (4) effect on activities of daily living and extent of treatment required; and (5) whether there is adherence to underlying structures: cl 1.264; and
2. all of the "10 descriptors" in TEMSKI, which are more detailed descriptions of the facts or circumstances relevant to each of the five "criteria", noting that there are five descriptors in relation to the first criterion, two in relation to the fourth criterion and one in relation to the second, third and fifth criteria: cl 1.264; but
3. while the scarring is to be assessed using the principle of best fit, it does not need to meet all of the "criteria" within the chosen "category" or subclass in order to satisfy that principle: cl 1.265;
and then:
1. providing:
1. reasons as to why this "category" or sub-class was selected: cl 1.265; and
2. reasons that clearly linked their clinical judgement to the impairment value selected (from the range of values available in the TEMSKI "category"): cl 1.266.
The relevant parts of the review panel's certificate and reasoning have been set out above. There are a number of areas where, in my view, the panel's reasons were deficient.
First, although the panel recorded, under the heading "B. Additional Evidence", information concerning the plaintiff's life and activities, and it can be inferred that some of the information indicated that there were substantial alterations to her activities of daily living, there was nothing in the panel's reasons that could properly be described as "a history that sets out any alterations in activities of daily living" including the activities of daily living listed in the AMA4 Guides.
Nor was there anything to indicate that the panel had undertaken a comprehensive assessment of how the scarring, which was understood to be permanent, would have an impact on the activities of daily of the plaintiff. In this regard, although the review panel said that it had considered Ms Richardson's statement of 29 October 2018, the panel did not explain whether it accepted or rejected this evidence. The information provided by Ms Richardson was not incorporated in a history of the type required to be included in an assessment, under cl 1.260 of the Guidelines. Nor did the panel explain how, in light of that information, the scarring would have an impact on the activities of daily living, as required by cl 1.13. In particular, the panel did not specifically refer to, or evaluate, any loss of sweat gland function, hair growth or pigment formation on the performance of daily living activities, as required by section 13.5 of the AMA4 Guides.
Thus, an important foundational element of the panel's assessment and a key part in explaining its path of reasoning by which it reached the opinion that it formed was not included in the panel's reasons. To this extent, the reasons were inadequate to meet the standard required.
Secondly, under the heading "C. Panel Deliberations" and in relation to the Skin aspect of the plaintiff's scarring, the panel's reasons only relate to a consideration of the "10 descriptors" in Table 18, the TEMSKI. These descriptors, and Table 18 as a whole, are, however, only relevant if the scarring has already been classified as falling into class 1 in Table 2: cl 1.264.
Clause 1.262 establishes that Table 2, not Table 18, provides "the method of classifying impairment due to skin disorders [including scarring]". In Table 2, there are five classes defined by three "components", each of which must be present for a determination of the appropriate class. The three "components" are: (1) signs and symptoms of skin disorder; (2) limitation of activities of daily living; and, (3) requirements for treatment. They are more fully described for each class in Table 2. The panel's reasons contain no express explanation of whether or how it carried out the classification exercise in accordance with Table 2.
Put another way, the review panel was required first to classify the scarring in accordance with Table 2 and then, if it was determined that it fell within class 1, the panel was required to apply Table 18 to determine the appropriate WPI. The panel's reasons dealt only with the last part of what it was required to do. In this way, the reasons were incomplete and defective.
It was submitted, in effect, that it was necessarily inherent in the panel's approach that it had formed the opinion that the scarring fell within class 1 and this was supported by the table included in the panel's certificate, which has been reproduced above. That table included, under the heading "AMA Guides/Guidelines References (chapter/page/table)", the following entry, in respect of the Skin aspect of the plaintiff's scarring:
"Chapter 13.5
pages 279,280 Table 2
Class 1 & TEMSKI".
All this entry amounts to, in my view, is an identification of the some of the parts of the Guidelines and AMA4 Guides which the panel identified as being relevant to the task it was required to carry out. It does not establish that the review panel actually considered the correct classification of the plaintiff's scarring under Table 2 before applying the TEMSKI.
In any event, even if the review panel did form the opinion that the plaintiff's scarring fell within class 1 in Table 2, the path of reasoning by which the panel came to that opinion and, in particular, how it was based on a proper application of the Table 2 and the three "components", was not explained at all in the panel's reasons.
Thirdly, it was far from obvious or self-evident that the plaintiff's scarring must fall within class 1. Consequently, it could not be concluded that the panel's process of reasoning in that regard, although not disclosed at all, did not need to be disclosed and that the reasons were, therefore, adequate.
The three "components" to be addressed when applying Table 2 are (1) signs and symptoms of skin disorder; (2) limitation of activities of daily living; and, (3) requirements for treatment. The distinctions intended to be made between the descriptions of the three components for the different classes in Table 2 are not pellucidly clear. Nonetheless, the path of reasoning leading to the opinion that the scarring fell within class 1 and not a higher class would, in the present case, require at least the following:
1. in relation to the first "component" in Table 2, "signs and symptoms of skin disorder", some explanation of why the plaintiff's permanent "extensive, prominent, but mobile scarring on the outer aspect of her left upper arm, from the shoulder to the elbow" and "very prominent and unsightly band of hypertrophic/resolving keloidal scarring which measured 150 x 60 mm" which extended "across the lateral aspect of her left elbow and extending onto her left forearm" fall within the description:
1. "Signs and symptoms of skin disorder are present or only intermittently present" as specified for class 1;
and not:
1. "Signs and symptoms of skin disorder are present or intermittently present" as specified for classes 2 and 3;
or:
1. "Signs and symptoms of skin disorder are constantly present" as specified for classes 4 and 5;
1. in relation to the second "component" in Table 2, "limitations on activities of daily living", some explanation of what the alterations to the plaintiff's activities of daily living as a result of the scarring are and why they fall within the description:
1. "There is no limitation or limitation in the performance of few activities of daily living, although exposure to certain chemical or physical agents might increase limitation temporarily" as specified for class 1;
and not:
1. "There is limitation in the performance of some of the activities of daily living" as specified for class 2;
or:
1. "There is limitation in the performance of many of the activities of daily living" as specified for class 3.
1. in relation to the third "component" in Table 2, "requirements for treatment", some explanation of why the plaintiff's need to be seen regularly by a burns therapist at Tamworth Base Hospital to be measured for new pressure garments every four months, to keep her arm covered in its Jobst garment at all times and to have vitamin A rubbed into her scars daily, as well as intermittent treatment with oils, fall collectively within the description:
1. "No treatment or intermittent treatment is required" as specified for class 1;
and not:
1. "Intermittent to constant treatment may be required" as specified for classes 2, 3, 4 and 5.
There were no such explanations at all in the panel's certificate.
Put another way, since there was manifestly more than one conclusion open as to which class in Table 2 applied to the plaintiff's scarring, the panel was required to give some explanation of the panel's preference for one conclusion over another. No explanations were included in the reasons.
Fourthly, even if the path of reasoning in relation to the classification of the Skin aspect of the plaintiff's scarring as class 1 had been adequately disclosed, the review panel's further path of reasoning in relation to the application of Table 18, the TEMSKI, to form the opinion that the WPI was 5%, was not disclosed as required.
The panel's reasoning in this regard amounted to a repetition in substance of the words or phrases used for the "10 descriptors" in the column of the TEMSKI headed "5-9% WPI". The relevant part of the "Panel Deliberations" is set out below with the words or phrases directly based on those "10 descriptors" italicised:
"[The plaintiff] is conscious of her scars on her left arm and back. There is a distinct colour contrast between her scars and the surrounding skin, she can easily locate the scarring, hypertrophic changes are visible, no stich or staple marks are visible, the anatomical site is clearly visible in normal summer wear, there are easily visible contour defects, there is limitation in few of the normal activities of her daily life, there is no scar adherence but exposure to physical agents, such as heat and cold, may temporarily increase the limitation and intermittent treatment is required."
While some of these conclusions were observational and required no further explanation, there were at least two issues, which derived from the failure to undertake the requisite classification under Table 2 before seeking to apply the TEMSKI "criteria" and "10 descriptors" and which required explanation. These were the conclusions that:
1. "there is limitation in few of the normal activities of her daily life". This was not based on "a history that sets out any alterations in activities of daily living", as required by cll 1.13 and 1.260, nor was it otherwise explained why "few" rather than "some" or "many" was the applicable descriptor; and
2. "intermittent treatment is required" rather than the conclusion that "Intermittent to constant treatment may be required" (as referred to in classes 2, 3, 4 and 5 in Table 2). The additional evidence and Ms Richardson's statement appeared more consistent with the latter rather than the former and, thus, an explanation for the panel's conclusion in this regard was required, but none was given.
Further, the panel then said that:
"Seven of the ten TEMSKI scar criteria fit the 5-9% WPI zone; however, because there is no scar adherence, the Panel's opinion is that the "best-fit" for her impairment is at the low end of this range 5% WPI."
When determining the exact impairment value when there was a range of values in the TEMSKI category, the panel was required to use clinical judgement but was also specifically required by cl 1.266 of the Guidelines to "provide reasons that clearly link their clinical judgement to the impairment value selected".
The review panel's reasons contain a factual error. Eight and not seven of the "10 descriptors" fitted the 5-9% category. This, however, may not be of direct relevance on a judicial review application. Nonetheless, it does call into question whether the panel's reasons "clearly link[ed] their clinical judgement to the impairment value selected", as required by cl 1.266. The panel's conclusion was said to be based on the fact that one of the descriptors for the category of 5%-9% WPI, whether there was "some adherence", had not been satisfied and, thus, the "best fit" was a WPI at the low end of the range, 5%. There was no explanation of how that descriptor related to, and could be weighed against, the other eight descriptors that had been satisfied and the other descriptor that had not. Nor was any clear link between their clinical judgement and a WPI of 5% disclosed. For those reasons, the actual path of reasoning adopted by the panel to form the opinion was not explained.