Somyaying v AAI Limited t/as GIO

Medical chronology

1. A history of the of the plaintiff's medical history following the accident was provided in the Medical Assessor's Certificate dated 19 December 2018. Under the heading 'Summary of Relevant Documentation' the Medical Assessor summarises the plaintiff's medical consultations following the accident (CB135): "There was no annotation of any musculoskeletal problems prior to the motor vehicle accident on the 18/07/2016. At consultation on the 18 July 2016, he describes pain in the left side of the body and poor hearing on the left side, neck movements were noted to be normal and he was tender over the lateral chest wall, He had normal shoulder movements, elbow and wrist movements and no cranial nerve deficit. His local doctor recommended referral to Blacktown Hospital. He was seen on the 21/07/2016 where it was noted that he had had a CT brain, CT spine and x-ray of the left shoulder, as well as pain in the left ear and pain in the left shoulder. Shoulder abduction was noted to be limited. On 22 July 2016 he had complaints of pain in the neck and shoulders, neck movements were noted to be normal, straight leg raising was normal. He had lumber flexion to the mid-knee and lateral flexion to the knee and then the shoulders had limited abduction in the last few degrees of movement. He still had complaints of pain in the neck and upper back a month later on 22/08/2016. Neck and shoulder movements were noted to be normal. On 24/08/2016 he had complaints of numbness on and off in both arms. He was noted to have no sensory loss or motor deficit and no carotid bruit cranial nerve motor deficit or cerebellar deficit. Concurrently he was being evaluated for his hearing problems which fall outside my area of expertise. On 18 October 2016, he was noted to have pain, in the neck, lower back and pain along both arms, as well as pain in the right shoulder for the previous month. On 1 November 2016 he was reviewed for the result of his right shoulder ultrasound which demonstrated bursitis and a small tear in one of the rotator cuff tendons and he was referred for a steroid injection. He was noted to have ongoing pain on 22/11/2016 and referral was organised to Dr. Nair. On 14/02/2017 he was noted to have visual impairment in the left eye, hearing impairment and neck pain On 23/03/2017 he had complaints of low back pain and he was referred for an MRI scan of the lumbar spine. At the end of March, he was referred back to Dr. Nair for consideration of treatment of pars interarticularis defect demonstrated on the MRI scan. On 9/05/2017 he described neck and lumbar spinal pain at 10 out of 10. It was noted that he was seeing a pain specialist at consultation on 5/06/2017. On 23/06/2017 it was noted that he had seen a pain specialist, was continuing to take Amitriptyline and had seen Dr. Gupta who had advised shoulder surgery. I note at consultation on 11/09/2017 there was a report that Dr. Dowla had issued a letter to the insurer recommending conservative therapy and therefore, surgery was declined. I presume that this pertained to the surgery for the back and possibly, the shoulder. On 21/11/2017 he was noted to be still having back and shoulder pain. On 16/01/2018 he was reviewed following an L4/S anterolateral lumbar fusion."
2. Under the heading '5. Review of Documentation' the Medical Assessor summarises the relevant imaging studies and other medical investigations (CB132-133): "5. Review of Documentation … CT scan cervical spine dated 18 July 2016 No fracture is seen and no disc protrusions are demonstrated. Marked disc space narrowing is noted at CS/6 and CS/7 with marginal osteophyte formation. Significant changes are noted at C7/T1 and spondylitis lipping was also noted at C3/4, C4/5 and there is some anterior displacement of C3 relative to C4, There was osteoarthritic changes of facet Joints. CT Brain dated 18 July 2016 A small C5F space was noted to be tying laterally and inferiority to the middle cranial fossa on the left side, consistent with an arachnoid cyst. No other abnormalities were noted. X-ray Humerus Left dated 18 July 2016 No abnormalities were noted. X-ray shoulder and left scapula dated 18 July 2016 No radiographic evidence or fracture or subluxation is detected, CT temporal bones dated 25 July 2016 No temporal bone fracture was detected. The extra axial CSF space was again noted. MRI cervical spine dated 27 August 2016 This shows multi-level spondylitic changes to the cervical spine with right-sided foramina! stenosis at C3/4 and CA/5 with Impingement of the right C4 and C5 nerve roots, left sided foraminal stenosis at C5/6 with impingement of the left C6 nerve root end bilateral foraminal stenosis of C6/7 and C7/T1 with impingement of the C7 and C8 nerve roots bilaterally, I would add that the stenosis causing these compressions relate to disc osteophyte complexes and facet joint arthritis which are features of degenerative changes In the cervical spine, not acute trauma. MRI Brain dated 16 September 2016 This shows areas of encephalomalacia affecting the left temple lobe laterally and anteriorly as well as the left frontal lobe inferolaterally. No discrete arachnoid cyst was identified. Ultrasound right shoulder dated 21 October 2016 This shows a partial articular surface tear of the supraspinal with features of bursitis. No features of capsulitis. Carotid floppier ultrasound dated November 2016 Shows intimal thickening on the left side but no evidence of calcification or plaque. There was no hemodynamically significant stenosis. X-ray cervical spine dated 14 November 2016 This shows decreased disc height at G5/6, C6/7 and C7/T1 with bony spurring of the end plates. CT cervical spine 14 November 2016 Shows right-sided foraminal stenosis at C3/4 and C4/5 due to uncovertebral osteophytes and right sided facet changes with impingement of the right C4 and C5 nerve roots likely. Left sided foraminal stenosis at CS/6 with an Impingement of the left C6 nerve root and bilateral foraminal stenosis at C6/7 with likely Impingement of C7 nerve roots. Bilateral foraminal stenosis at C7/T1 with Impingement of C8 nerve roots likely. CT cervical spine dated 18 January 2017 This demonstrates the interval surgery, but it is noted that there are persistent bilateral foraminal osteophytes causing bilateral high grade foraminal stenosis and C7 neural Impingement. Multi-level degenerative changes are noted throughout the remainder of the spine, which are described as "similar to the previous study". X-ray cervical spine dated 16 March 2017 This shows satisfactory alignment of the C6/7 anterior internal fixation. Degenerative changes as described in previous x-rays are noted. Lumbar spine MRI dated 30 March 2017 This demonstrates bilateral L4 pars inter articularis defects with Grade 1 anterolisthesis at L4 on 5. There is marked reactive marrow oedema involving the end plates with disc obliteration. Fluid is noted in the pars suggesting instability. MRI right shoulder dated 15 May 2017 This demonstrates tendinopathy with torn subscapularis tendon and biceps tendinopathy and supraspinatus tendon with early glenohumeral Joint changes. CT cervical spine dated 13 June 2017 This report left paracentral disc osteophyte complex at C5/6, causing mild left neural foraminal stenosis, right sided neural foraminal stenosis at C6/7 and gross right sided facet arthropathy at C2/3, C3/4 and C4/5. EOS Imaging dated 11 July 2017 Shows minimal curvature of convex to the left of the lumbar spine, 7mm L4/S5 enterolisthesis, marked disc degeneration of foraminal stenosis. X-ray flexion, extension and lumbar dated 5 September 2017 No instability on flexion and extension was noted."

The grounds of judicial review

1. The plaintiff has raised three grounds of appeal for judicial review. They are: 1. The determination made by the Review Panel with regards to the cervical spine was vitiated by jurisdictional error and/or denial of procedural fairness. 2. The determination made by the Review Panel with regards to the lumbar spine was vitiated by jurisdictional error and/or denial of procedural fairness. 3. The Review Panel failed to provide adequate reasons for its determination.

The statutory framework

1. Part 3.4 of the MAC Act provides for the medical assessment of claimants injured in a motor vehicle accident, and Part 5.3 provides for damages for economic loss. Sections 57 to 58, 60 to 63, 131 and 133 are relevant here. They read: Part 3.4 Medical assessment 57 Definitions In this Part: medical assessment matters means any of the matters referred to in section 58. medical assessor means a person appointed under this Part to make an assessment under this Part. medical assessors review panel means a panel of medical assessors convened under this Part to review an assessment under this Part. medical dispute means a disagreement or issue to which this Part applies. 57A Motor Accidents Medical Assessment Service (now repealed) (1) The Authority is to establish in association with its operations a unit, to be known as the Motor Accidents Medical Assessment Service. (2) The Service is to consist of medical assessors and such members of staff of the Authority as the Authority determines. 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) (Repealed) (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (e) (Repealed) (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor. … 60 Medical assessment procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors. (3), (4) (Repealed) 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter 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. (3) (Repealed) (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. (5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings. (6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part. (7) Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter. … (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. 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. … 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the President to refer a medical assessment under this Part by a single medical assessor to a review panel for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (2A) If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (2B) The President is to arrange for any such application to be referred to a review panel, but only if the President 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. (3) The review panel is to be constituted by 3 persons chosen by the President as follows - (a) 2 medical assessors, (b) 1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (3B) To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. … (7) An application under this section must be made within 28 days after the parties to the medical dispute were issued with the original certificate for the medical assessment for which the review is sought. … Part 5.3 Damages for non-economic loss 131 Impairment thresholds for award of damages for non-economic loss No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. … 133 Method of assessing degree of impairment (1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part. (2) The assessment of the degree of permanent impairment is to be made in accordance with: (a) Motor Accidents Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force--the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition. (3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

The relevant guidelines

1. The SIRA Motor Accident Permanent Impairment Guidelines ("the Permanent Impairment Guidelines"), as at 1 June 2018, made pursuant to s 44(1)(c) of the MAC Act, apply to the assessment of permanent impairment disputes by virtue of ss 133(2) and 106(1) of the MAC Act (now repealed). The Court of Appeal has held that a failure to comply with these guidelines may constitute a constructive failure to perform a statutory duty. See: Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356 at [9], [16-22], [44], [49], [51], [56], [108].
2. Clauses 1.111-1.117 of the Permanent Impairment Guidelines refer to the assessment of the spine. They state: "Introduction 1.111 The spine is discussed in Section 3.3 of Chapter 3 in the AMA4 Guides (pages 94-138). That chapter presents several methods of assessing impairments of the spine. Only the diagnosis-related estimate (DRE) method is to be used for evaluating impairment of the spine, as modified by these Guidelines. The AMA4 Guides use the term injury model for this method. 1.112 The injury model relies especially on evidence of neurological deficits and uncommon, adverse structural changes, such as fractures and dislocations. Under this model, DREs are differentiated according to clinical findings that are verifiable using standard medical procedures. 1.113 The assessment of spinal impairment is made at the time the injured person is examined. If surgery has been performed, then the effect of the surgery, as well as the structural inclusions, must be taken into consideration when assessing impairment. Refer also to clause 1.20 in these Guidelines. 1.114 Medical assessors must consider whether any pre-existing spinal condition or surgery is related to the motor accident, is symptomatic and whether this would result in any or total apportionment. Where a pre-existing spinal condition, or spinal surgery, is unrelated to the injury from the relevant motor accident, the medical assessor should rely on clause 1.33. 1.115 The AMA4 Guides use the terms cervicothoracic, thoracolumbar and lumbosacral for the three spine regions. These terms relate to the cervical, thoracic and lumbar regions respectively. Assessment of the spine 1.116 The range of motion (ROM) model and Table 75 are not to be used for spinal impairment evaluation (pages 112-130, AMA4 Guides). 1.117 The medical assessor may consider Table 7 (below) to establish the appropriate category for the spine impairment. Its principal difference from Table 70 (page 108, AMA4 Guides) is the removal of the term motion segment integrity wherever it appears (see clause 1.123)."
3. Under the heading labelled "Table 7: Assessing spinal impairment - DRE category" the terms non-verifiable radicular complaints and radiculopathy are referred to. These terms are relevant in these proceedings and are defined by the Permanent Impairment Guidelines as: "Table 8: Definitions of clinical findings Non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes). … Radiculopathy 1.138 Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found: 1.138.1 Loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these guidelines) 1.138.2 Positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines) 1.138.3 Muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines) 1.138.4 Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution 1.138.5 Reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. 1.139 Spinal injury causing sensory loss at C2 or C3 must be assessed by firstly using Table 23 page 152 of AMA4, rather than classifying the injury as DRE cervicothoracic category III (radiculopathy). The value must then be combined with the DRE rating for the cervical vertebral injury. 1.140 Note that complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings do not by themselves constitute radiculopathy. They are described as non-verifiable radicular complaints in the definitions of clinical findings (Table 8 in these Guidelines). 1.141 Global weakness of a limb related to pain or inhibition or other factors does not constitute weakness due to spinal nerve malfunction. 1.142 Electrodiagnostic tests are rarely necessary investigations and a decision about the presence of radiculopathy can generally be made on clinical grounds. The diagnosis of radiculopathy should not be made solely from electrodiagnostic tests."

The Review Panel's decision

1. The Review Panel's certificate dated 16 January 2020 was issued under Part 3.4 of the MAC Act following a review under s 63 as to whether the treatment provided to the plaintiff related to the injury caused by the motor vehicle accident.
2. The Review Panel determined that the C6/7 anterior discectomy and fusion surgery performed by Dr Nair and the L4/5 anterior/anterolateral interbody fusion performed by Dr Nair were not reasonable and necessary in the circumstances.
3. To support this decision, the Review Panel provided the following reasons. Under the heading 'A. Evidence considered', the Review Panel's decision relevantly reads at pages 6 to 8 of its certificate: "… On 24 August 2016, Dr Gunasinghe noted intermittent numbness in both arms and occasional headaches but no clinical abnormality; no documentation of specific radicular symptoms and no complaints noted regarding the neck, back or left shoulder. CT noted with marked degenerative changes in the cervical spine. The Panel had reviewed the radiology and considered the changes to be long standing/pre-existing and without evidence of recent injury … Comment: The panel decided that considering the mechanism and early post-accident history and findings, any right shoulder injury was not caused by the motor accident. The left shoulder or low back was not noted to be symptomatic at that stage. … The reports of Dr Dowla, treating neurologist have been provided. His report dated 6 July 2019 noted 'whole body' pain with numbness of the upper and lower limbs and the left side. He stated that pain in the shoulder and lower back had not improved with medication. Dr Dowla found no clinical abnormality, with no focal neurological signs and no local tenderness. He suggested referral to a pain physician. Dr Gunasinghe, GP on 4 November 2016. Dr Dowla, neurologist, noted no neurological problem and to see a psychologist for pain management. Comment: The Panel found no clinical evidence for a referral for consideration of surgery to either the lumbar or cervical spine, on the medical evidence available. The Panel decided that the pattern and degree of symptoms, with no specific evidence of radicular symptoms with normal neurology and with no focal/specific investigative evidence, would not indicate a surgical solution to his presentation. … Comment: The Panel concluded that any minor soft tissue injury to the lumbar spine from the subject accident had resolved, on the medical evidence available. There are reports from Dr Nair, treating neurosurgeon. His letter dated 10 November 2016 noted cervical disc disease and he recommended reconstructive surgery on the basis of 'the failure of non-operative care,' with no documentation of radicular signs or consistent non-verifiable radicular symptoms. There were further reports from Dr Nair. … The report of Dr Coroneos, dated 5 October 2017, is a medicolegal neurosurgeon's report. He noted that Mr Somyaying continued to have significant pain following the surgical treatment. He stated that he "cannot determine any significant neurosurgical spinal surgery having occurred as a consequence of the motor vehicle accident on 18 July 2016… I would assess that a cervical, thoracic and lumbar soft tissue injury strain may have occurred as a consequence of the subject motor vehicle accident.. I would be unable to relate any symtoms thereafter from a neurosurgical perspective to be related to the effects of subject motor vehicle accident. He said that Mr Somyaying's current condition was consistent with the effects of the motor vehicle accident from the neurosurgical perspective. He stated that there should be a review by the treating neurosurgeon. The report of Dr Abraszko, neurosurgeon, dated 15 November 2017, 16 months post accident, noted the L4/5 spondyloisthesis and that 'he complains of severe pain in the lower back, cannot sit, cannot stand and cannot bend forward.' The Panel found this description in November 2017 inconsistent with the GP notes early post accident, with these lumbar symtpoms coming on distant from the accident. Dr Abraszko said that the spondylolisthesis was pre-existing but became more unstable and started to be symptomatic after the motor vehicle crash. Comment: The panel did not agree with Dr Abraszko's description of causation because there was significant displacement on x-ray of a longstanding probable 'lifelong' spondylolisthesis; on the medical documentation, there was a symptom free interval post accident; the activity reported on the lumbar MRI the Panel decided reflected longstanding chronic activity and would not be consistent with being caused, considering the mechanism of the accident and his early post-accident symptomatic pattern. The Panel decided the motor accident did not cause and did not materially contribute to the long standing lumbar spondylolisthesis or instability and that any effect of the motor accident was no more than negligible. Dr Abraszko agreed that there should be lumbar spinal decompression/stabilisation surgery. This was a second opinion about the lumbar spinal surgery."
4. Under the heading 'C. Panel Deliberations' the Review Panel relevantly stated at page 10 of its certificate: "… The Panel determined that there had been soft tissue injuries sustained to the cervical and lumbar spinal regions. Symptoms are documented soon after the motor vehicle crash that supports these diagnoses. However, based on the available information, there was no objective neurological deficit associated with these injuries. On the medical evidence available, the Panel decided that the soft tissue injury to the lumbar spine had resolved, with later onset of symptoms, distant from the motor accident, requiring surgical referral. With regards to the cervical spine, the Panel decided on the medical evidence available that there was a minor soft tissue injury and that with the pattern of symptoms and lack of radicular symptoms/signs associated with the injury that there was no indication for the cervical spinal fusion, that the motor accident did not cause, to any degree more than negligible, any requirement for cervical spinal fusion. There was no indication for the lumbar spinal fusion as a consequence of the motor accident."
5. The Review Panel determined that the surgery to the cervical spine and the lumbar spine was not casually related to the subject motor vehicle crash and hence permanent impairment related to that surgery was not related to the motor vehicle crash.

Procedural fairness

1. In Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1; [2004] HCA 6, Gleeson CJ said at [37]: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice".
2. In Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576, Northrop, Miles and French JJ said at [28] to [30]: "[28] It is a fundamental principle that, where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of the adverse material… [29] …The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material… [30] …The decision-maker is required to advise of any adverse conclusion which has been arrived which would not obviously be open on no material".
3. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot"), French CJ, Crennan, Bell, Gageler and Keane JJ stated at [47]: "The function of a medical panel is to form and give its own opinion on the medical questions referred for its opinion. In performing that function, the medical panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the medical panel with material which may be relevant to the formation of the opinion and to make submissions to the medical panel on the basis of that material..."

Failure to respond to substantial and clearly articulated argument

1. In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [19] - [22], Basten JA (with whom McColl and Macfarlan JJA agreed) said: [19] In Dramchmkov v Minister for Immigration and Multicultural Affairs (2003y321, 197 ALR 389, 77 ALJR 1088, [2003] HCA 26 at [24] (Dramchmkov), Gummow and Callinan JJ stated: [24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dramchmkov natural justice.
2. Also, in Rodger v De Gelder [2015] NSWCA 211 ("De Gelder"), Gleeson JA (with MacFarlan and Leeming JJA agreeing) held that the review panel in that case had failed to respond to a substantial argument raised by the claimant, by saying at [109]: "Here the Panel failed to respond to a substantial argument based on evidence relied upon by Mr De Gelder as to the causation of his thoracic spine injury by the motor accident. It may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under s 58(1 )(d), because it misunderstood a significant body of evidence relevant to its non-medical determination. What the Panel did amounted to a jurisdictional error. The Panel's decision recorded in its certificate is to be regarded as a purported and not real exercise of its statutory function in s 58(1 )(d), leaving that statutory function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge by way of judicial review Ex parte Hebburn Ltd, Re Kearsley Shire Council [1947] NSWStRp 24, (1947) 47 SR (NSW) 416 at 420 (Jordan CJ)."

Correct test of causation

1. Both parties referred to the recent decision of Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548 ("Norrington"). In Norrington, the plaintiff's principal contention was that the Review Panel committed jurisdictional error by treating the absence from the medical records of any complaint of a left shoulder injury for nine months after the accident as dispositive, thereby failing properly to discharge their statutory function to ascertain causation.
2. In Norrington, Brereton JA helpfully sets out a number of leading authorities with regards to this contention at [32]-[34]: "[32] The cases show that while the presence or absence of a contemporaneous record of a complaint is relevant in this context, it must not be treated as conclusive of the question of causation, not least because it is possible that causation may exist without a documented contemporaneous complaint. In Owen v Motor Accidents Authority (NSW), Campbell J said: "[52] Moreover, the juxtaposition between the statement that the material provided by the parties had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident with the following analysis of contemporaneous documentation persuades me that the review panel identified a wrong issue, namely, did treatment providers in the first month or so following the motor accident make a record of complaints of symptoms in the lumbar spine? Undoubtedly, it was relevant to consider that material in the process of determining the right question, but it was wrong to treat this consideration as decisive, not least because [e]xperience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]). … In my judgment the identification of this wrong issue was jurisdictional error." [33] In Bugat v Fox ("Bugat"), R S Hulme AJ said: [5] "[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff's claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff's statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered "pain in her neck going out to both shoulders". [32] While I accept that, as an administrative decision maker, the panel's reasons should not be subjected to "minute and detailed textual criticism in the hope of finding something on which to base an argument" - Allianz Australia Insurance Limited v Motor Accident Authority of NSW (2006) 47 MVR 46; [2006] NSWSC 1096 at [36] - in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record." [34] In Robson v QBE Insurance (Australia) Ltd, Wright J said: [6] "[114] From the comments in the "Review of File Material", I was left with the distinct impression that the absence of documentation of specifically identified cervical injury by Dr Hussain in the period immediately following the motor accident was the determining factor, even in the context of a multifactorial approach, in the review panel's conclusion that Mr Robson's C5/6 disc protrusion was not caused by the motor accident. [115] This impression was confirmed by section C of the review panel's reasons under the heading "Panel Deliberations". There, it was stated in relation to, inter alia, the C5/6 disc protrusion: • Cervical spine - aggravation of a disc degenerative disease and/or cervical spondylitic problem, significant disc bulging at C6/7, C5/6 and C4/5, radiculopathy, musculoskeletal injury. Not caused by the motor accident. The Panel found no injury to the neck/cervical spine caused by the motor accident on the basis of the early post-accident history and medical documentation. … (underlining added) [116] This part of the review panel's reasons confirms my understanding of the panel's approach to the assessment of causation of Mr Robson's injury since it makes explicit that the panel's "deliberation" on the question of causation of the C5/6 disc protrusion was confined to one factor or basis, namely "the early post-accident history and medical documentation". No other factor was noted as affecting the panel's conclusion in this regard. The review panel, in substance, addressed only the question of whether there was contemporaneous documented complaint of injury to the cervical spine and did not address the actual question posed by s 58(1)(d), namely what was the degree of permanent impairment of Mr Robson as a result of the injury caused by the motor accident. [117] For these reasons, I conclude that the review panel made the type of jurisdictional error identified in McGiffen and Owen, referred to above. …"."

Duty to provide adequate reasons

1. In Wingfoot, the High Court emphasised the need for a written statement of reasons given by a Medical Panel under the Accident Compensation Act 1985 (VIC) to explain "the actual path of reasoning" (at [55]): "The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
2. The specific battleground between the parties may inform the content of the duty to give reasons. In Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577 ("Francica"), Hall J said, at [17] - [18]: [17] The decision of the Court of Appeal in Campbelltown City Council v Vegan (2006) NSWCA 284 is the leading authority in relation to the principles that apply to a case such as the present His Honour, Basten JA, with whom the other members of court agreed, at paragraph 121 stated that: "Where it is necessary for the panel to make findings of fact in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment it may be expected that the findings and material facts will be set out in its reasons Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the panel to give some explanation for its preference of one conclusion over another That aspect may have particular significance in circumstances where the medical members of the panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners as set out in reports provided to the panel" [18] In determining the adequacy of reasons, which is the focus in Vegan, it is important to determine what was the issue, in other words, what was the precise battle ground between the parties before the determining tribunal In the decision of Alchm v Daley (2009) NSWCA 418, Sackville AJA, with whom McColl JA and Young JA agreed, stated "The extent and content of the reasons will depend on the particular case and the issues under consideration but it is essential to expose the reasoning on the point critical to the contest between the parties This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute."
3. I will deal with judicial grounds (1) and (2) together as the issues comprised within these grounds are interwoven. I will then deal with judicial ground (3).
4. Throughout this judgment there are a number of references to various medical appointments, notes and reports of the plaintiff. Evidence relating to these appointments, notes and reports was helpfully contained in Exhibit GPD1 to the Draca Aff 5 May 2021 and will be referenced in judgment by reference to their location in GPD1.

Judicial Ground (1) and (2) - Determination vitiated by jurisdictional error, error on the face of the record and/or denial of procedural fairness

Cervical Spine

1. It is the plaintiff's submission that some of the errors made by the Review Panel when taken individually may seem incidental, but when taken cumulatively gave rise to false assumptions upon which the determination ultimately miscarried.
2. The Review Panel stated at page 6 of its certificate, "at the consultation on 21 July 2016 [with Dr Gunasinghe] left shoulder pain noted with reduced abduction but no neck, back or right-sided complaints". It was submitted by the plaintiff that the Review Panel misdirected itself by concluding that there was no neck "complaint" recorded by Dr Gunasinghe on 21 July 2016. The consultation notes in fact begins with the words: "Has been to ED, CT brain, CT spine, x-ray, left shoulder" (GPD1 page 89). The clinical notes of Dr Gunasinghe did contain a copy of the CT scan of the plaintiff's neck that he had undergone at the Blacktown Hospital Emergency Department on 18 July 2016.
3. The Review Panel at page 6 of its certificate stated: "There was a further consultation on 22 July 2016 where there was tenderness over the paraspinal muscles from the cervical, thoracic to lumbar spine with neck movements noted to be normal; referral to ENT made". This except ignores the introductory sentence of the notation from Dr Gunasinghe of 22 July 2016 which states "pain in the neck and both shoulders" (GPD1 page 89). There is an obvious medical distinction between "pain" on one hand, and "tenderness" on the other. Common knowledge dictates that "pain" is a more severe symptom than "tenderness" and is also a more accurate predictor of a long-term problem. The Review Panel misdirected itself in failing to properly read the clinical notes of Dr Gunasinghe and to accurately place the content onto the record.
4. The Review Panel at page 6 of its certificate, in referencing the clinical notes of Dr Gunasinghe stated, "at a consultation on 18 August 2016, pain in the neck, upper and lower back were noted with no shoulder complaints". The note, when properly read, states: "still having pain in the neck, upper and lower back" (GPD page 90). For reasons that cannot be ascertained, the word "still", has vanished. This has importance given the emphasis of the Review Panel on "symptom-free intervals post-accident" and the reasoning that the injury to cervical spine was minor in nature. It must have been important for the Review Panel to accurately inform itself that there had in fact been continuity of cervical symptomology from the date of accident until 22 August 2016.
5. The Review Panel, at page 6 of its certificate, noted that Dr Gunasinghe (on 24 August 2016) had noted "intermittent numbness in both arms and occasional headaches but no clinical abnormality; no documentation of specific radicular symptoms…". The plaintiff submitted that this conclusion appears to be wrong. "Numbness" in both arms (whether intermittent or not) is, unambiguously, a radicular symptom. What the Review Panel meant when it said "no documentation of specific radicular symptoms…" is unknown. The note of Dr Gunasinghe dated 24 August 2016 is a document that plainly contains "documentation" of specific radicular symptoms, being numbness in both arms. The plaintiff submitted that by stating otherwise, the Review Panel committed jurisdictional error.
6. The Review Panel, at page 6 of its certificate, described an entry of Dr Gunasinghe of 18 October 2016 by noting "right shoulder pain for one month". Again, while that specific particle of the clinical notes is accurately described, the Review Panel omitted other relevant history taken at the same consultation. In actuality, the entry of 18 October 2016 also contains the words "seeing physio…still pain in neck, lower back and pain along both arms" (GPD page 94). The Review Panel's selectivity when it came to the recording of the plaintiff's symptoms as documented by Dr Gunasinghe, is unexplained but it seems to only work against the interests of the plaintiff. This error was particularly prejudicial to the plaintiff because it led immediately to the opinion that followed in the next sentence, i.e., "the left shoulder or low back was not noted to be symptomatic at that stage". In fact, it was only the case that the neck and back "was not noted to be symptomatic at that stage" because the Review Panel had misread or selectively read the clinical note of Dr Gunasinghe dated 18 October 2016.
7. The Review Panel noted at pages 6 to 7 of its certificate, that it had "found no clinical evidence for referral for consideration of surgery to either the lumbar or cervical spine, on the medical evidence available". The plaintiff submitted that this conclusion can only have been arrived at by repeatedly ignoring the plaintiff's recorded complaints of numbness in his arms. The Review Panel, takes no account of the opinion of Dr Nair, that a surgical outcome was necessary only because non-surgical forms of therapy had failed the plaintiff.
8. It is the plaintiff's submission that at no place in either the certificate or the reasons of the Review Panel, is any reference made to the crucial fact that the plaintiff was asymptomatic in the cervical spine before the accident. It is submitted that the Review Panel distracted itself by placing undue and irrational emphasis on the course of the plaintiff's complaints immediately after the accident. See: GPD1 pages 77 to 79. The Review Panel was apparently intent on probing for and identifying periods within the contemporaneous medical documentation where no neck complaints were recorded. But at no stage did the Review Panel consider the most obvious and logical medical and/or forensic issue; the condition of the plaintiff's cervical spine at the time of the accident. This error is further aggravated by the history that the Review Panel took from the plaintiff. Although the assessors went to the trouble of determining the "mechanism of the accident" and the plaintiff's work history, at no stage did they ask him about the condition of his neck before the accident. This was a critical error. It mirrors the conclusion that Brereton JA reached in Norrington at [46] where His Honour said: "The Panel did not consider whether, notwithstanding the absence of a reported complaint, the plaintiff might have incurred the left shoulder injury, as she claimed, in the accident. It thereby failed to exercise its jurisdiction".
9. The plaintiff submitted that inadequate history taking was not the sole cause of this error. Information as to the pre-accident condition of the plaintiff's neck was readily available to the Review Panel from multiple sources, but most directly from the history taken by the Medical Assessor. In other words, the Review Panel only had to properly read the Medical Assessor's determination to ascertain the condition of the plaintiff's neck at the time of the accident. The Review Panel determined that the plaintiff suffered a neck injury in the accident of a soft tissue nature, the soft tissue injury gave rise to "permanent impairment", and the surgery to the cervical spine performed shortly thereafter was not causally related to the accident, however no explanation is provided by the Review Panel to explain what did cause the need for the plaintiff to undergo the surgery.
10. The plaintiff submitted that the Review Panel's statement on pages 6 to 7 of its certificate that "…the panel decided that the pattern and degree of symptoms, with no specific evidence of radicular symptoms with normal neurology and with no focal/specific investigative evidence, would not indicate a surgical solution to his presentation" is directly contradicted by the opinion of the plaintiff's treating neurosurgeon, Dr Nair.
11. The Review Panel noted on page 7 of its certificate that Dr Nair, the man who physically treated and operated on the plaintiff, had opined that the plaintiff required "reconstructive surgery on the basis of the failure of non-operative care". The Review Panel referred only to the letter of Dr Nair dated 10 November 2016 before stating "there were further reports from Dr Nair". Given that Dr Nair was the treating neurosurgeon and that none of the three doctors comprising the Review Panel have neurosurgical qualifications, it is submitted that the opinion of Dr Nair should have been given significantly greater weight.
12. The "further reports from Dr Nair" included his report of 14 December 2016 where he interpreted the CT scan of the cervical spine dated 14 November 2016 as demonstrating "multilevel changes, the most significant of which were at C6/7 where there was foraminal stenosis" (GPD1 page 144). Dr Nair noted that the plaintiff's symptoms "continue to worsen" (GPD1 page 144). It was on those combined bases that he recommended surgery. The Review Panel also apparently gave little or no weight to the more detailed report of Dr Nair dated 29 December 2016 where he recorded that the plaintiff continued to be "debilitated" by C7 "radicular symptoms" as well as cervicogenic headaches (GPD1 page 146).
13. The plaintiff's complaints to Dr Nair of "radicular symptoms" were critical to the determination that the Review Panel were required to make, but wherever evidence of radicular symptoms presented it is submitted by the plaintiff that the Review Panel ignored these complaints. Dr Nair stated: "I have reiterated that whilst there are multilevel changes in the cervical spine, the foraminal narrowing at C6/7 is the most significant and this coupled with his C7 radicular symptoms make me favour a C6/7 anterior cervical discectomy and fusion." (GPD1 page 146)
14. The Review Panel did not grapple with the specific reasoning of Dr Nair in forming their own determination. This had the effect of dismissing the opinion of Dr Nair as a mere triviality. The same can be said of the operation report of Dr Nair dated 9 January 2017, which stated "the [patient] presented with intractable radiculopathy as well as discogenic cervical and pan trapezial pain." (GPD1 page 148) He continued: "Medical imaging, including flexion/extension x-rays, CT scan and MRI scan confirmed discogenic disease with hypertrophy of uncovertebral joints and consequent neural impingement and a paracentral disc herniation". (GPD1 page 148)
15. The Review Panel should also have had full and proper regard to the report of Dr Nair dated 19 January 2017, which evidences an examination of the plaintiff 10 days following surgery which noted "improvement in his radicular symptoms" (GPD1 page 150).
16. The plaintiff submitted that the insurer failed to discharge its statutory duty by not engaging with a substantial and clearly articulated argument as to causation advanced on behalf of the plaintiff via the opinion of Dr Nair. Although the reasoning of the Review Panel deployed the carefully chosen words "with no specific evidence of radicular symptoms", the Review Panel should have had regard to the fact that the plaintiff was reporting radicular symptoms to Dr Nair who plainly accepted the legitimacy of the symptoms on examination and "documented" them. Further, the Review Panel failed to have regard to the reasoning of Dr Nair as to the combined importance of the radicular symptoms and the radiological findings. It is to be kept in mind that Dr Nair was examining the plaintiff within months of the accident whereas the Review Panel examined the plaintiff approximately 3 and a half years later and almost three years after he had undergone the fusion surgery.
17. The plaintiff referred to the decision in Norrington. In this case, Brereton JA dealt with a strikingly similar dispute as to the one presently before this Court. In dealing with a Review Application relating to the plaintiff's left shoulder, the Review Panel in Norrington placed excessive weight on the absence of contemporaneous shoulder complaints within the general practitioner records in relation to the shoulder, for a specified period. This was despite the Review Panel being seized of a report from an Orthopaedic Surgeon who had explained the issue of causation, which was, somewhat nuanced. At [30] His Honour stated: "[30] It is well established that jurisdictional error includes a constructive failure to exercise jurisdiction, which occurs when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it has to form."
18. His Honour went on to refer to the "substantial body of authority that a Panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of a complaint of injury fails to address the question posed by s 58(1) [of the MAC Act] and this is jurisdictional error."
19. In the present case, the plaintiff submitted that the Review Panel did precisely what Brereton J considered to be a classic example of jurisdictional error in that it plainly applied a wrong test and failed in its duty by not applying itself to the real question to be decided. In fact, the Review Panel dealt with the issue of contemporaneous records obsessively. To put this into context, the Review Panel in Norrington referred to the absence of contemporaneous records of shoulder symptoms on four occasions. This factor plainly bled into His Honour's decision that the Review Panel had committed jurisdictional error in effectively treating the absence of contemporaneous records as being dipositive. In the present case, the Review Panel referred to the contemporaneous records (most commonly, the absence thereof) on at least twelve occasions.
20. The jurisdictional error in this case is, it is submitted, more obvious and egregious than that in Norrington. This is because, in addition to the Review Panel placing excessive weight upon the alleged absence of contemporaneous material, its reliance on such material (or the absence thereof) miscarried because it continuously misunderstood or mischaracterised the material.

Lumbar spine

1. The plaintiff repeats a number of the submissions made with regards to the cervical spine as they also apply to the lumbar spine injury. Apropos the lower back, the Review Panel once again made no mention of the fact that the plaintiff was completely asymptomatic in his lower back prior to the accident. The reasons of the Review Panel (with respect to its determination of the lower back issue) are again sprinkled throughout the document but most specifically are found under the headings "Comment" at the foot of page 6 and the top and base of page 7 of its certificate. The reasons are, at times difficult to extract because on some occasions the Review Panel discusses and/or conflates the neck and back issues, notwithstanding the very different considerations pertaining to the two spinal regions.
2. At page 10 of its certificate, the Review Panel stated "there was no indication for the lumbar spinal fusion as a consequence of the motor vehicle accident". The Review Panel then immediately terminated that subject to discuss the plaintiff's shoulders. Back at page 6, reference is yet again made to the purported paucity of contemporaneous complaints regarding the lower back. Clearly this issue significantly influenced the determination of the Review Panel.
3. At page 10 of its certificate, under the heading "Panel Deliberations", the Review Panel determined that there had been a soft tissue injury to the lumbar spine. It stated: "The Panel determined that there had been soft tissue injuries sustained to the cervical and lumbar spinal regions. Symptoms are documented soon after the motor vehicle crash that supports these diagnoses. However, based on the available information, there was no objective neurological deficits associated with these injuries. On the medical evidence available, the Panel decided that the soft tissue injury to the lumbar spine had resolved, with the later onset of symptoms, distant from the motor vehicle accident, requiring surgical referral".
4. First, it is very difficult to understand the Review Panel's reference to the lumbosacral symptoms being "distant from the motor vehicle accident". As earlier noted, the Review Panel had possession of the clinical notes of the plaintiff's general practitioner, Dr Gunasinghe. On 22 July 2016 the clinical notes recorded: "tender over paraspinal muscle from cervical, thoracic to lumbar… SLR (straight leg raise) normal… Lumbar flexion up to mid knee… Lateral flexion both sides up to knee level". (GPD1 page 89)
5. The plaintiff did not return to see his general practitioner until 22 August 2016. On that occasion, Dr Gunasinghe noted that the plaintiff was "still having pain in the neck, upper and lower back…tender the over paraspinal muscle from cervical to lumbar region" (GPD1 page 90). Five days later, on 29 August 2016, Dr Gunasinghe noted that the plaintiff "wants exemption from jury duties-upper back, shoulder, lower back" (GPD1 page 92).
6. There is also an obvious problem with the conclusion that the injury to the lumbar spine had "resolved"; that being, there is no evidentiary basis to support it. When one looks at the history taken by the Review Panel, the plaintiff told the Review Panel that he had experienced continuing pain in a number of areas of his body including his "back". Having taken a history that the plaintiff remained in pain in his back almost three and a half years after the accident, it is important to also note that the Review Panel harboured no doubts as to the plaintiff's veracity. At page 9 of the Review Panel's certificate, it was noted that the plaintiff was "cooperative and provided a clear history". It cannot therefore be submitted that the Review Panel considered the plaintiff to have been deceptive about his back (or neck) condition.
7. In circumstances where the plaintiff was asymptomatic before the accident, where there is no history of any other preceding or succeeding trauma to explain his symptoms, and where his credibility was not questioned by the Review Panel, upon what basis did the Review Panel come to its determination that the plaintiff's back problem had "resolved"? If the injury did resolve, when did it resolve? How did it resolve? By extension, the Review Panel apparently asks the plaintiff to accept that the back injury he suffered in the accident is a 'resolved soft tissue injury'. If that is correct, then what is the back condition that drove the plaintiff to fusion surgery? Why is his back still painful? Why was his back never painful before the accident, yet has been painful ever since? At what point in time did the supposed, unstated superseding phenomenon overtake the soft tissue injury so found; breaking the chain of medical causation?
8. None of these questions have been answered and the plaintiff is left effectively not knowing why he lost, save for the strong suspicion that the incorrect apprehension of the absence of contemporaneous symptoms was treated as being completely dispositive.
9. Another problem with the Review Panel's reasons is that they are concerningly nebulous when it comes to explaining what evidence was relied upon in coming to the disposition. The Review Panel simply stated "on the medical evidence available…". Reference has already been made to the unsatisfactory description of the reports of Dr Nair by the Review Panel. Dr Nair, was also the plaintiff's treating neurosurgeon for his lower back surgery. On 8 January 2018, Dr Nair performed an L4/5 anterior lateral lumbar fusion. A number of other reports of Dr Nair were before the Review Panel; being those dated 4 April 2017 (GPD1 page 151), 2 May 2017 (GPD1 page 152), 11 July 2017 (GPD1 page 153), 25 July 2017 (GPD1 page 154), 5 September 2017 (GPD1 page 157), 17 October 2017 (GPD1 page 158), 12 December 2017 (GPD1 page 160), 8 January 2018 (the operation report) (GPD1 page 161), 23 January 2018 (GPD1 page 164), 20 February 2018 (GPD1 page 165), and 25 October 2018 (GPD1 page 166). These reports evidence the real-time progression of the plaintiff's back condition, particularly following his partial recovery from his cervical spine surgery. It is noted that the plaintiff's pain was consistent throughout the period of the reports and at times, was said to be "increasing". This history is completely irreconcilable with the conclusion of the Review Panel that the plaintiff's back injury had at some undetermined time, "resolved". Dr Nair had available to him MRI and CT scans of the plaintiff's back.
10. In addition, and very importantly, at the time that the surgery was being contemplated, Dr Nair sent the plaintiff to another neurosurgeon, Dr Abraszko, for a second opinion as to surgery. Dr Abraszko consulted with the plaintiff on 15 November 2017. Her report was also before the Review Panel. Having examined the plaintiff, and considered his CT and MRI scans, Dr Abraszko concluded: "I agree that he should have surgery, L4-L5 discectomy, decompression and fusion either with PLIF posteriorly or with XLIF and posterior screws or ALIF and posterior screws. I do not think doing any anterior interbody lumbar fusion (ALIF) itself will maintain his stability". (GPD1 page 167)
11. Dr Abraszko added, "his injury is related strictly to and is caused by his motor vehicle accident". She also noted that the plaintiff's pain "does radiate to his right leg". This is clearly another radicular symptom of severe pain. The Review Panel, all of whom lacked neurosurgical qualifications, dealt with the opinion of Dr Abraszko at the base of page 7 of its certificate, but were selective in the manner in which it dealt with the opinion of Dr Abraszko. Dr Abraszko had noted that at the time of her consultation in November 2017, that the plaintiff complained of "severe pain in the lower back, cannot sit, cannot stand and cannot bend forward" (GPD1 page 167). Effectively, the opinion of Dr Abraszko was dismissed by the Review Panel by stating at page 8 its certificate, that this description (in November 2017) was "inconsistent with the GP notes early post-accident, with these lumbar symptoms coming on distant from the accident". The point has already been made that there was no relevant "distance" between the accident and the recorded onset of the plaintiff's lumbar symptoms.
12. Further, it is illogical and irrational to compare a patient's symptoms, recorded by a GP, with the symptoms detailed by the plaintiff 17 months later on specific examination and questioning by a trained neurosurgeon; a doctor who was examining the plaintiff for the specific purpose of determining whether he was a candidate for lumbar fusion surgery. This context is to be contrasted with the triaging role of Dr Gunasinghe who was dealing with the immediate aftermath of a serious accident and was responding broadly to injuries to the "left-sided body, chest, ears, neck and left upper arm…both shoulders … thoracic to lumbar…"
13. At the pages 7 to 8 of its certificate, the Review Panel explained that it did not agree with Dr Abraszko's "description of causation" because: "there was significant displacement on x-ray of a longstanding probable lifelong spondylolisthesis; on the medical documentation, there was a symptom-free interval post-accident; the activity reported on the lumbar MRI, the Panel decided reflected long-standing chronic activity and would not be consistent with being caused, considering the mechanism of the accident and his early post-accident symptomatic pattern."
14. Once again, the Review Panel misdirected itself by referring to a "symptom-free interval post-accident". This is a false premise. Taken at its most unfavourable for the plaintiff, there was a period where his back symptoms were undocumented, but the plaintiff's history was one of unbroken continuity of symptomology.
15. In rejecting the opinion of Dr Abraszko, the Review Panel also committed a different kind of jurisdictional error. The Review Panel effectively elevated itself to the status of expert as to the science of accident reconstruction. To be clear, there is no evidence that any of the three assessors forming the Review Panel possessed any accident reconstruction or biomechanical qualifications. The Review Panel was in no position to speculate as to the likely relationship between any specific injury and the "mechanism of the accident". Even if that was not the case, the question would then turn to what information the Review Panel had available to it as to the "mechanism of the accident". Such considerations are usually relevant to cases involving low speed and low impact collisions. The Review Panel was not provided with any photographs of the vehicles. The meagre information that the Review Panel availed itself of is exposed at page 5 of its certificate. There, as previously noted, the Review Panel took a history of the plaintiff's vehicle being "T- boned", of the plaintiff complaining of instant neurological symptoms and of the fact that the impact was of sufficient force to deploy the airbags.
16. Despite this, the Review Panel, impermissibly reached unarticulated views as to the relationship between the "mechanism of the accident" and the likelihood of the plaintiff having suffered an injury to his lumbar spine in the accident. Quite aside from this being relevant to Ground 3 as no reasons at all are exposed, the Review Panel failed to properly exercise its jurisdiction.
17. Finally, the Review Panel committed an error on the face of the record and/or deprived the plaintiff of procedural fairness by failing to even entertain the well-known and scientifically incontrovertible phenomenon that physical trauma can (and often does) cause previously asymptomatic degenerative conditions to become symptomatic. The Review Panel did not have to rely upon pure logic (or even its own medical knowledge) to consider this causal possibility because it was the very opinion of Dr Nair as to causation. In his report dated 25 October 2018, Dr Nair noted that the plaintiff suffered from an L4/5 spondylolisthesis (GPD1 page 166). He then noted that the plaintiff presented with both mechanical and radicular symptoms related to the spondylolisthesis. Then, Dr Nair provided a crucial opinion that was completely overlooked by the Review Panel. He stated: "the L/4 spondylolisthesis was highly likely to have been present before the subject motor vehicle accident, however, it was asymptomatic and Mr Somyaying continued to be able to function despite its presence. There is no doubt in my mind that he did sustain an aggravation as a consequence of the subject motor vehicle accident resulting in the requirement for an L4/5 circumferential fusion on 8 January 2018". (GPD1 page 166)
18. The opinion of Dr Nair effectively answers all the rhetorical questions posed above. He explains how a man with an asymptomatic degenerative disease in his spine could have his spine rendered symptomatic by a violent motor vehicle accident. This broadly squares with the determination of the Medical Assessor and is also the same opinion expressed by Dr Davis in his report dated 29 March 2018 (GPD1 pages 119 to 128). The report of Dr Davis was mentioned only in passing by the Review Panel and his opinion as to causation was not engaged with at all.
19. The failure of the Review Panel to even consider this thesis when firstly, it was obvious and logical and secondly, it was the opinion of the neurosurgeon that operated on the plaintiff, led to jurisdictional error and/or simultaneously denied the plaintiff's procedural fairness.
20. In addition to the arguments advanced above, it is submitted by the plaintiff that the insurer made at least one additional factual error that pertains exclusively to the lumbar spine.
21. Reference is made to page 6 of the Review Panel's certificate. Here, the Review Panel noted: "the GP notes from 24 August 2016 to 15 September 2016 (2 months post- accident) were noted, with no reference to specific complaints regarding the left shoulder or lower back, except for complaints on a certificate to avoid jury duty".
22. On a casual reading of this paragraph, it might be inferred that the Review Panel believed the plaintiff was unconcerned (and therefore un-symptomatic) about his lower back for a three-week period between 24 August 2016 and 15 September 2016. But the plaintiff's request for exemption from jury duty was stated to be specifically referable to injuries that included the "lower back" (GPD1 page 92). The same GP's note also contains a reference to the plaintiff seeing a physiotherapist during this period. The entry of 13 September 2016 provides evidence that the plaintiff was "doing regular physio" (GPD1 page 92).

Balde v AAI Ltd

1. At the hearing of this matter the plaintiff was permitted to address the decision of Balde v AAI Ltd t/as GIO [2020] NSWSC 1623 in further written submissions.
2. The plaintiff submitted that the Balde situation is entirely different to the issues for consideration in the present case. Mr Balde was being examined by Dr Giblin to determine whether he was a candidate for surgery. The clinical findings of a Medical Assessment Service ("MAS") Assessor in that setting are obviously important. But in the present case, by the time the Medical Review Panel examined Mr Somyaying, his neck had already been fused for almost three years and his back had been fused for almost two years. In such circumstances, it would be artificial in the extreme for this court to countenance the argument put by the insurer that the Review Panel was bound or confused by the definition of 'Radiculopathy' set out at cl 1.138 of the Personal Injury Guidelines.
3. In Balde, Justice Adamson dealt with this issue at [50], where her Honour stated: "While the PI Guide Lines purport to define radiculopathy in a particular way, they do not have a monopoly on the use of the term. It is to be expected that some, if not all, of the concepts addressed at cl 1.138 will be associated with the terms used generally by the medical profession as part of medical science."
4. The plaintiff submitted that the sole purpose of the criteria set out in 1.138 of the PI Guidelines is to provide a prescriptive method for a MAS Assessor to determine in an injury should be classified as DRE III for the narrow purpose of assessing WPI.
5. Once it recognised that cl 1.138 is of no relevance to any treatment dispute, let alone to a dispute where the surgery has already been performed, the Review Panel was bound to give significant weight to the clinical determinations of the treating neurosurgeon, Dr Nair who plainly diagnosed radiculopathy. The jurisdictional error committed by the Medical Review Panel was that it virtually ignored the option of Dr Nair. In doing so it did not address a substantial and clearly articulated argument as to causation advanced on the plaintiff's behalf.
6. Lastly, the plaintiff submitted that given that the Personal Injury Guidelines are confined strictly in the manner of described above, they have no relevance to the issue of medical causation. Here, whether it was because of mechanical dysfunction or neurological dysfunction, (or both) both Dr Nair and Dr Abraszko, examining the plaintiff at a time when a clinical examination was actually practical, determined that the need for the surgery was caused by the aggravation to the plaintiff's spine suffered in the accident. See: CB267-268.

The insurer's submissions

1. The insurer submitted that the errors alleged by the plaintiff are simply a challenge to the merits of the Review Panel's decision, which is impermissible.
2. The Review Panel was fully aware that the plaintiff denied any prior history of neck or back pain. Even if the plaintiff had complained of neck and/or back pain within a short time after the accident, that alone cannot and would not be determinative of causation of injury to the cervical and/or lumbar spine sufficient to justify surgery.
3. The Review Panel accepted that the plaintiff did suffer soft tissue injuries to his neck and back. The Review Panel did not find that there was no injury, as may have been the case if the Review Panel unduly relied on the lack of contemporaneous medical evidence.
4. The Review Panel carefully analysed the medical evidence preceding the surgeries by Dr Nair. It found no evidence of anything other than soft tissue injuries to the cervical and lumbar spines caused by the accident.
5. In particular, the Review Panel found no evidence of radiculopathy or any other objective neurological signs, which contradicts any need for or benefit in surgery.
6. The Review Panel noted that there was radiological evidence of significant degenerative disease in both the cervical and the lumbar spines. The Review Panel considered that the degenerative disease in both regions was longstanding.
7. The basis for the Review Panel's decision that the plaintiff suffered only soft tissue injuries to the cervical and lumbar spines was multi-factorial: 1. the plaintiff's symptoms and treatment soon after the accident did not indicate significant injury to the cervical or lumbar regions; 2. the radiological investigations revealed longstanding degenerative disease in both the cervical and lumbar spines: there was no radiological evidence of acute injury or trauma; 3. medical records preceding the surgeries by Dr Nair contained no findings indicating anything other than soft tissue injuries to the neck and back; 4. in particular, medical records preceding the surgeries by Dr Nair showed that there was no evidence of radiculopathy or any other neurological sign that might give rise to a need for surgery; 5. the pattern of symptoms in the lumbar spine over time satisfied the Review Panel that the accident-related soft tissue injury to the lumbar spine had resolved, and that subsequent symptoms experienced by the plaintiff were solely related to his pre-existing degenerative disease; and 6. while the symptoms of the accident-related soft tissue injury to the cervical spine persisted to the time of the Review Panel's assessment, the Panel was not satisfied that there was ever any neurological sign to elevate the injury above soft tissue or that might have justified the surgery by Dr Nair.
8. This multi-faceted approach is more comprehensive and based in medical science than the simplistic "before and after'' comparison of subjective symptoms for which the plaintiff contends. In any event it was open to the Review Panel to adopt the approach it did, in the exercise of its clinical judgment.
9. The insurer submitted that the plaintiff's reliance on the recent decision of Brereton JA in Norrington is misplaced.
10. In Norrington, Brereton JA found that a Review Panel erroneously treated the absence of contemporaneous complaints of neck and back pain as determinative of the question of causation. His Honour's finding was made on the basis of repeated references to and emphasis on the lack of contemporaneous evidence in the Review Panel's reasons.
11. Brereton JA concluded that despite the Review Panel in that case having other evidence consistent with injury to the neck and back, the Review Panel had little or no regard to that evidence and treated the lack of contemporaneous complaints of neck and back pain simpliciter as determinative. That this was an error is uncontroversial: his Honour referred to authority to that effect at [31]-[36].
12. But Brereton JA also referred to authority to the effect that where a medical assessor or Review Panel treats the absence of contemporaneous complaint of symptoms as but one factor to be considered with the whole of the evidence on causation, lack of contemporaneous evidence of injury can be a telling argument against causation.
13. There is no error in a medical assessor or Review Panel including in its overall consideration of causation, a lack of evidence of contemporaneous complaints of relevant symptoms. As Brereton JA said at [39] and [46], a medical assessor or Review Panel may undertake a process of reasoning involving consideration of other material as well as the absence of contemporaneous evidence, leading to a conclusion that causation has not been made out. That is what the Review Panel did in this case, and its process of reasoning included multiple factors which are set out above.
14. It is relevant and important that if the plaintiff had suffered traumatic injury to his neck and/or back sufficient to lead to surgery, the Review Panel would have expected the plaintiff to have significant spinal symptoms soon after the accident. That was one, and only one, of the multiple factors considered by the Review Panel in this case.

Alleged factual errors in the Panel's reasons

1. In his submissions, the plaintiff asserts that there are a number of errors in the Review Panel's summary of the medical records with which it was provided.
2. Most of these supposed "errors" are insignificant. The Review Panel's reasons are not to be critically examined with an eye attuned to error.
3. The only matter of significance raised in this part of the plaintiff's submissions is his assertion that the Review Panel ignored a complaint recorded by Dr Gunasinghe on 24 August 2016 of "intermittent numbness in both arms" (GPD1 page 91). The plaintiff contends that "numbness in both arms" is a symptom of radiculopathy.
4. That last statement is wrong, or at least incomplete. Radiculopathy is by definition a consequence of damage or inflammation to a nerve root. For a symptom such as "numbness" to amount to radiculopathy, the symptom must follow the distribution of an identifiable nerve root. Simply recording "intermittent numbness in both arms" is not evidence of radiculopathy, but is a record of a subjective symptom that may or may not have any organic basis.

The Review Panel's assessment

1. In relation to the impairment dispute, the Review Panel was therefore left to assess only the soft tissue injury to the cervical spine, the lumbar injury having resolved. On the basis of its own clinical examination, on which there was no evidence of muscle spasm, guarding, dysmetria or radicular complaints, the Review Panel correctly placed the cervical injury in DRE category I, giving rise to 0% WPI.
2. In relation to the treatment dispute, the Review Panel's finding was that neither surgery by Dr Nair was justified, because of the absence of any radiculopathy or neurological sign in either the cervical or the lumbar spines before the surgery was undertaken. On this basis, the surgery was neither reasonable nor necessary, and could not have been causally related to any injury resulting from the motor accident.
3. The Review Panel's decision that the surgeries undertaken by Dr Nair were simply not justified by the clinical evidence is a decision with which Dr Nair would obviously disagree; but the Review Panel was required to make its own assessment of the plaintiff and of the medical evidence provided to it by the parties, and it did so.

Resolution

1. It was the statutory duty of the Review Panel to make a determination with regard to the plaintiff's treatment dispute. As put forward by Counsel for the insurer at the hearing (T29.37-30.8), what is globally known as a treatment dispute actually encompasses two medical assessment matters. Firstly, was the proposed treatment reasonable and necessary? Secondly, was the treatment caused by injuries related to the accident?
2. It would follow that the opinions and clinical judgment of the plaintiff's treating neurosurgeon, Dr Nair, would play a pivotal role in informing the Review Panel when arriving upon their decision with regards to these two medical assessment matters.
3. With regards to Dr Nair's reports, the Review Panel's certificate at page 7 states that "there are reports from Dr Nair, his letter dated 10 November 2016 noted cervical disc disease and he recommended reconstructive surgery on the basis of 'the failure of non-operative care', with no documentation of radicular signs or consistent non-verifiable radicular symptoms." The Review Panel also state on the same page that there were further reports from Dr Nair but do not provide any further information regarding these reports.
4. I have read the reports of Dr Nair. In his letter dated 10 November 2016, under the heading 'Impression' he notes "Mechanical and radicular symptoms as a consequence of cervical disc disease." (GPD1 page 141) In his letter dated 29 December 2016 he notes that the plaintiff continues to be debilitated by C7 radicular symptoms as well as cervicogenic headache (GPD1 page 146). He reiterates that while there are multilevel changes in the cervical spine, the foraminal narrowing at C6/7 is the most significant and this coupled with the plaintiff's C7 radicular symptoms made him favour a C6/7 anterior cervical discectomy and fusion. (GPD1 page 146)
5. With regards to the plaintiff's lumbar spine injury, Dr Nair states in his letter dated 25 October 2018 that the L4/5 spondylolisthesis was highly likely to have been present before the subject motor vehicle accident however it was asymptomatic and the plaintiff continued to be able to function despite its presence (GPD1 page 166). He states that there was 'no doubt' in his mind that he did sustain an aggravation as a consequence of the subject motor vehicle accident resulting in the requirement for an L4/5 circumferential fusion on 8 January 2018 (GPD1 page 166).
6. It is obvious that the Review Panel have omitted from their decision the clinical diagnosis of radicular symptoms reported by the plaintiff's treating neurosurgeon with regards to the plaintiff's cervical spine. Furthermore, the Review Panel have overlooked the clinical diagnosis of Dr Nair with regards to the plaintiff's lumbar spine and why the prescribed surgery was necessary.
7. As per Wingfoot, I accept that it is the function of the Review Panel to form their own opinion on the medical question referred for its opinion. However, by misconstruing and failing to acknowledge the clinical judgment of the plaintiff's treating neurologist, it is my view that the insurer failed to discharge its statutory duty by not engaging with a substantial and clearly articulated argument as to causation in the same manner articulated by Gleeson JA at [109] in De Gelder. The Review Panel has therefore made a jurisdictional error.
8. I accept that the Review Panel did provide reasons for why they disagreed with Dr Abraszko, who provided a second opinion supporting Dr Nair as to why the surgery to the lumbar spine was an appropriate cause of action. However, it cannot be denied that a decisive factor of this path of reasoning is the lack of contemporaneous complaints between November 2016 to March 2017 in which the Review Panel assert that the effects of the soft tissue injury ceased, and instead the longstanding spondylolisthesis took over and caused back symptoms.
9. As previously set out, in Norrington Brereton sets out (at [32]) a wealth of authorities that support the contention that while the presence or absence of a contemporaneous record of a complaint is relevant in this context, it must not be treated as conclusive of the question of causation, not least because it is possible that causation may exist without a documented contemporaneous complaint.
10. While I accept the insurer's argument that a multifaceted approach was used by the Review Panel in their reasoning, by failing to address the medical documentation from Dr Nair with regards to the radicular symptoms of both the cervical and lumbar spine, and then considering the absence of contemporaneous complaints for a period of four months as a conclusive factor in their path of reasoning, it is my view that the Review Panel erred on the face of the record and failed to provide procedural fairness to the plaintiff. Judicial ground (1) is successful.

Judicial Ground (3) - Failure to give adequate reasons for its determination

The plaintiff's submissions

1. The plaintiff submitted that the Review Panel failed in its statutory requirement to provide adequate reasons for its decision. Their failure to provide adequate reasons, in this case amounted to error on the face of the record and/or a denial of procedural fairness. At the very least, they were required to explain the actual path of reasoning by which the relevant conclusions were reached.
2. In the alternative, the Review Panel was, in this case, required to make plain the process by which it determined that the plaintiff (who was asymptomatic before the accident, was involved in a serious accident but soon came to radical surgical outcomes, in circumstances where the accident was the only known source of trauma) suffered his injuries in some other way than in the accident.
3. The plaintiff submitted that the reasons of the Review Panel did not all engage with the metaphoric elephant in the room. Why would a hitherto healthy man undergo radical surgery to his neck and back, with all the pain and the risk (including death), unless he was experiencing the symptoms recorded by Dr Gunasinghe, Dr Nair and Dr Abraszko. Further, why would a respected neurosurgeon (or two respected neurosurgeons when it comes to the plaintiff's back surgery) recommend and/or perform surgery on a well man? These unresolved questions are at the core of the plaintiff's contention that the Review Panel's certificate (and the Reasons supporting it) is beset by illogicality and irrationality that led the Review Panel into jurisdictional error.
4. On these grounds, the plaintiff contends that the certificate of the Review Panel dated 16 January 2020 is affected by error of law on the face of the record, and/or by denying the plaintiff procedural fairness jurisdictional error and should be set aside.

The insurer's submissions

1. The insurer submitted that the Review Panel is not required to explain why it disagrees with Dr Nair and even if it was required to do so, it has discharged that obligation by providing a clear and cogent explanation that the neurological symptoms and signs that would have been needed to justify the surgeries were simply absent.
2. The insurer contends that there is no error in the Review Panel's reasons, which are clearly exposed, cogent, fully explained and well within the exercise of the Review Panel's clinical judgment.

Resolution

1. Judicial Ground (3) flows from the jurisdictional error found in Judicial Grounds (1) and (2).
2. As per Wingfoot at [55], the Review Panel are required explain their actual path of reasoning in arriving upon their decision and, as per Francica at [18], it is essential to expose the reasoning on the point critical to the contest between the parties. By overlooking the clinical judgment of Dr Nair, the Review Panel have failed to dispense their statutory obligation to provide adequate reasons for their decision. Judicial Ground (3) is successful.

Result

1. The result is that the Review Panel made jurisdictional errors and errors on the face of the record in failing to respond to a clearly articulated argument in judicial Grounds (1) and (2) and failing to provide adequate reasons for their decision in judicial Grounds (3). As such I set aside the Review Panel decision and certificate dated 16 January 2020.

Costs

1. Costs are discretionary. Costs generally follow the event. The first defendant is to pay the plaintiff's costs on an ordinary basis.

The Court orders: 1. The Review Panel decision and certificate dated 16 January 2020 is set aside. 2. The proceedings are remitted to the second defendant for determination by a differently constituted Appeal Panel according to law. 3. The first defendant is to pay the plaintiff's costs on an ordinary basis.

Amendments 16 November 2021 - Party names amended for consistency. 18 November 2021 - Orders amended to include remitting the proceedings to the second defendant. 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: 18 November 2021