[2021] NSWCA 19
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Buck v Bavone (1976) 135 CLR 110[1976] HCA 24
Hebburn Ltd, Ex parteRe Kearsley Shire Council (1947) 47 SR (NSW) 416
Henderson v QBE Insurance (Australia) Ltd (2013) 66 MVR 69[2013] NSWCA 480
IAG Limited t/as NRMA Insurance v Chahoud (2019) 89 MVR 87[2019] NSWSC 767
Jubb v Insurance Australia Ltd (2016) 76 MVR 228[2016] NSWCA 153
Miles v Motor Accident Authority of NSW (2013) 84 NSWLR 632[2013] NSWSC 927
Mullin v CIC Allianz Australia Ltd (2015) 71 MVR 322[2015] NSWSC 831
QBE Insurance (Australia) Ltd v Miller (2013) 67 MVR 322[2013] NSWCA 442
R v ConnellEx parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407[1944] HCA 42.
Rodger v De Gelder (2011) 80 NSWLR 594
Judgment (16 paragraphs)
[1]
Introduction
By his amended summons filed 25 January 2023, Warwick Stocks ('the plaintiff') seeks judicial review of the decision of a delegate of the President of the Personal Injury Commission dated 21 September 2022.
Insurance Australia Limited trading as NRMA Insurance ('the first defendant' or 'the insurer') is the compulsory third party insurer, and is the only active defendant in the proceedings. The President of the Personal Injury Commission of New South Wales ('the second defendant'), and Rachel Britliff in her capacity as President's Delegate appointed by the Personal Injury Commission ('the third defendant' or 'the delegate') have filed submitting appearances.
The complaint of the plaintiff is that the delegate erroneously construed and/or applied s 62 of the Motor Accidents Compensation Act 1999 (NSW) ('the MAC Act'), when determining the plaintiff's application for a further assessment of his permanent impairment arising out of a motor accident that occurred on 10 November 2006, and in consequence declined to refer the application.
[2]
Background
The plaintiff was injured in a motor vehicle accident, whilst he was riding a motorbike, which occurred on 10 November 2006 in Byron Bay, NSW.
Following that accident, the plaintiff lodged a motor accident personal injury claim form dated 1 February 2007.
On or around 9 September 2009, the plaintiff lodged an application - described as an Application for Assessment of Whole Person Impairment - for permanent impairment compensation.
By certificate dated 5 March 2010, Medical Assessor Bye assessed the plaintiff for the purposes of determining assessable impairment. In that certificate, Medical Assessor Bye concluded that the applicant sustained a number of injuries - a soft tissue injury to the neck, back and right knee and a fractured radial neck of the left elbow - and that those injuries were caused by the motor accident, and gave rise to a permanent impairment of 11%.
The insurer sought a review of that assessment by a medical review panel. That medical assessment review was conducted on 7 October 2010. By certificate issued 19 October 2010, the review panel revoked the certificate dated 5 March 2010, and issued a new certificate determining that the injuries - a soft tissue injury to the neck and right knee only - caused by the motor accident gave rise to a permanent impairment of 6%.
The effect of this assessment had the consequence that the plaintiff did not have an entitlement to permanent impairment compensation: s 131 of the MAC Act.
The evidence also recorded that the plaintiff had been assessed on another occasion in 2010 - by Medical Assessor Michael Delaney. Medical Assessor Delaney assessed the plaintiff as having an 18% WPI arising from injuries caused by the motor accident - although, upon referral to a medical review panel, on 25 November 2010 the review panel determined that none of the plaintiff's injuries were caused by the motor accident. In relation to these assessments, none of the certificates (nor the assessments themselves) were in evidence: the matters that I have referred to were contained within the delegate's decision, and reference to them was also contained in a medical report (from Dr Bodel). The submissions of the parties did not address the materiality (other than by the plaintiff, in a confined way, in connection with a complaint made about the approach of the delegate) - or otherwise - of these assessments, nor how or why they were conducted given the assessment by Medical Assessor Bye and the determination of the review panel in connection with that assessment: see [7]-[8], above.
Again, the effect of this assessment had the consequence that the plaintiff did not have an entitlement to permanent impairment compensation: s 131 of the MAC Act.
On or around 17 March 2018, the plaintiff lodged an Application for Further Assessment of a Permanent Impairment Dispute.
The application was referred for medical assessment by Medical Assessor Truskett, who assessed the plaintiff on 29 June 2018. By certificate dated 5 July 2018, Medical Assessor Truskett assessed the plaintiff as having sustained a number of injuries - a soft tissue injury to the cervical spine, a fracture of the neck of the radius of the left arm, a soft tissue injury to the left wrist and a meniscal tear of the right knee - and that those injuries were caused by the motor accident, and gave rise to a permanent impairment of 1%. Given the plaintiff seeks a further assessment of his injury related impairments, some of the key findings and conclusions from the assessment performed by Medical Assessor Truskett will be referred to later: see [34]ff, below.
The plaintiff lodged an Application for Review of a Medical Assessment on or around 19 October 2018, but that application was ultimately dismissed on 24 October 2019 as the application was not ready to proceed.
On 18 July 2022 the plaintiff filed an Application for Further Assessment in the Personal Injury Commission ('the Commission') pursuant to s 62 of the MAC Act. In that application, the plaintiff applied for a further assessment of his permanent impairment expressing the grounds for that application in these terms: "Deterioration of the injury; Additional relevant information about the injury". The plaintiff also attached written submissions in support of that application. The plaintiff also attached additional evidence in support of that application.
On 9 August 2022, the first defendant filed submissions in reply to the plaintiff's application for a further permanent impairment assessment. It opposed the referral for further assessment, arguing that there was "neither evidence to support deterioration of the injury nor additional relevant information about the injury that is capable of having a material effect" on the assessment made by Medical Assessor Truskett.
On 21 September 2022, the delegate dismissed the further application on the basis that she "was not satisfied that there [was] additional relevant information or deterioration of the injury such as to be capable of having a material effect on the outcome of the previous assessment" and issued a certificate and reasons to that effect pursuant to s 62 of the MAC Act. It is this decision that is the subject of the plaintiff's application to this Court.
[3]
Grounds of review
The amended summons raised two 'grounds' of review. Those grounds were not well expressed. They appear to be a "cut and paste" of a number of paragraphs from the submissions that were filed. They are:
1. The delegate correctly accepted (reasons at [15]) that the medical report of Dr James Bodel, Orthopaedic Surgeon, dated 9 November 2021 was additional relevant information within the meaning of s 62 of the MAC Act. However, she erred in law in wrongly finding that Dr Bodel failed to provide sufficient analysis in his reasoning and that his report was not capable of having a material effect on the outcome of the previous assessment (reasons [22]-[24]). The delegate sought to exercise the power or duty of a medical assessor here. She applied the wrong legal test. She should not have analysed the report or subjected it to detailed scrutiny. The delegate is not a medical practitioner. She is making a gateway decision. Her only duty under section 62 of the MAC Act was to determine whether or not the report was capable of having a material effect on the outcome of the previous assessment.
2. The delegate correctly accepted (reasons at [15]) that the statement of Mr Rick Newman, personal trainer, dated 23 August 2021 was additional relevant information within the meaning of section 62 of the MAC Act. However, she erred in law in wrongly finding (reasons) that the statement was not capable of having a material effect on the outcome of the previous assessment because of some alleged contradictions. The delegate sought to exercise the power or duty of a medical assessor here. she applied the wrong legal test. She should not have analysed the statement or subjected it to detailed scrutiny. The delegate is not a medical practitioner. She is making a gateway decision. She wholly failed to determine whether the statement (as it was) was capable of having the necessary material effect.
Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) ('the UCPR') makes provision for judicial review proceedings in this Court. Rule 59.4(c) of the UCPR requires that the summons state "with specificity, the grounds on which the relief is sought". The grounds in the amended summons did not achieve that statutory directive.
Drawing upon the submissions filed by the plaintiff, and as distilled during argument, the contention of the plaintiff was that the delegate erroneously applied s 62 of the MAC Act by impermissibly evaluating the merits - or substance - of the application, rather than merely assessing (in accordance with the statutory directive) whether "the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment". This, the plaintiff argued, meant that the delegate did not properly form her opinion, with the consequence that the decision should be quashed: the approach of the delegate involved misapplication of s 62(1A) of the MAC Act.
[4]
The statutory framework
The central provision to these proceedings is s 62 of the MAC Act, which is in these terms:
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 the President.
(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 President.
(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.
Referral for further assessment may occur therefore when either or both of the conditions in s 62(1)(a) are satisfied: a delegate may refer a party for further assessment if there is deterioration of injury, additional relevant information pertaining to that injury, or both; and the terms of s 62(1A) are also satisfied - namely, "the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment".
The effect of a referral under s 62 is a further medical assessment takes place. Here, the further medical assessment that is sought by the plaintiff aims to secure an assessment of the degree of permanent impairment as a result of the injury caused by the motor accident of greater than 10%: unless that assessment is obtained, no damages may be awarded for non-economic loss: s 131 of the MAC Act.
[5]
Section 62: the principles
The operation of s 62 has been discussed in a number of cases. A number of well-established organising principles have emerged. They are as follows.
First, s 62 is directed to allowing "a further medical assessment to occur where additional information has come to light or the claimant's position has changed since the time of the original assessment": Miles v Motor Accident Authority of NSW (2013) 84 NSWLR 632; [2013] NSWSC 927 at [37] and [45] ('Miles'). A referral in those circumstances facilitates an ultimate determination that represents the correct and preferable decision: Mullin v CIC Allianz Australia Ltd (2015) 71 MVR 322; [2015] NSWSC 831 at [35]; Jubb v Insurance Australia Ltd (2016) 76 MVR 228; [2016] NSWCA 153 at [62] and [65] ('Jubb').
Secondly, s 62 involves two distinct, albeit interrelated, steps in connection with whether a matter should be referred for further medical assessment. The first, identified in s 62(1)(a), is that it must be "only on the grounds of the deterioration of the injury or additional relevant information about the injury". The second, identified in s 62(1A), is if either is, or both are, present, then a referral for further medical assessment is precluded unless the deterioration or additional information "is such as to be capable of having a material effect on the outcome of the previous assessment": Henderson v QBE Insurance (Australia) Ltd (2013) 66 MVR 69; [2013] NSWCA 480 at [26]-[27]; QBE Insurance (Australia) Ltd v Miller (2013) 67 MVR 322; [2013] NSWCA 442 at [4], [16] ('Miller'). Thus, put simply, s 62 confers a power on the delegate to refer a matter for further assessment on a ground identified in s 62(1)(a) if the conditions set out in s 62(1A) are satisfied.
Thirdly, the capacity of the "deterioration of the injury" or "additional information" to affect a further medical assessment is a matter for the subjective satisfaction of the delegate, not the determination of the Court: Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [113] ('Rodger'); Jubb at [33]; AAI Ltd t/as AAMI v Chan (2021) 95 MVR 166; [2021] NSWCA 19 at [22] ('Chan'). Given the argument raised, it will be necessary to return to this aspect of the statutory test, later in these reasons.
Fourthly, the role of the delegate in exercising the power of referral is that of a "gatekeeper" or "a gateway function in filtering applications for further assessment": Miller at [5] and [37]; Jubb at [33].
[6]
The basis for the application and the decision of the delegate
In order to fully understand the basis of the delegate's decision, I will: (a) set out the key findings of Medical Assessor Truskett; (b) note the key submissions advanced by the plaintiff (as emphasised during submissions in this Court) to support the application and the insurer's position in opposing it; and (c) identify the key findings and conclusions of the delegate.
[7]
The key findings of Medical Assessor Truskett
Medical Assessor Truskett assessed the following injuries: cervical spine, left arm; left wrist; left knee; right knee; lumbar spine; and anus/gastrointestinal injury.
In terms of 'diagnosis and causation', Medical Assessor Truskett made the following findings:
1. It was "clear that [the plaintiff] did sustain a fracture to his proximal radius and probable medial meniscal injury to his right knee. He may have also sustained soft tissue injury to his left wrist".
2. In relation to the plaintiff's lumbar spine, Medical Assessor Truskett noted there was "no contemporaneous evidence of a back lumbar spine injury. It is also of note that he had a longstanding moderately severe back pain which have been treated for many years before and had undergone investigation. He was taking narcotic for this" (sic). Medical Assessor Truskett also noted that there was "also evidence that [the plaintiff] may have suffered from a right sciatica type pain".
3. In relation to the plaintiff's neck "exacerbation of neck pain did occur but is also evident that he had long-standing neck pain with symptoms suggestive of C6/7 right upper limb. This is still also clearly pre-existing".
4. In relation to the plaintiff's left knee, Medical Assessor Truskett stated that the plaintiff "sustained no injury that has been documented to his left knee", but noted that the plaintiff "believes that his left knee has developed pain as a result of his initial injury". Later Medical Assessor Truskett stated that there was "no evidence of pathology relating to his left knee".
5. In relation to the anus/gastrointestinal injury, Medical Assessor Truskett noted that at the time of his assessment the plaintiff had "no symptoms that are reflective of a fissure-in-ano", and that at a recent rectal examination by Dr Talley, the "fissure was not in evidence. It is therefore not assessable and it is not considered to be a result of his motorbike accident in 2006".
Medical Assessor Truskett considered that the following injuries were caused by the motor accident:
1. Cervical spine - "soft tissue injury".
2. Left arm - "fracture neck of radius".
3. Left wrist - "soft tissue injury".
4. Right knee - "meniscal tear".
Medical Assessor Truskett considered that the following injuries were not caused by the motor accident:
1. Cervical spine - "fracture/disc lesion".
2. Left knee - "soft tissue injury caused by favouring the right knee, mild laxity in medial collateral ligaments and injury to patellofemoral joint".
3. Lumbar spine - "soft tissue injury".
4. Anus/gastrointestinal injury - "anal fissure".
[8]
The submissions of the parties to the delegate
The delegate summarised the plaintiff's submissions (reasons at 9-(bb)). The key parts of those submissions, as emphasised in this Court, were:
1. Although Medical Assessor Truskett noted an incident, prior to the motor vehicle accident, in which the plaintiff walked into a glass door, the plaintiff "was subsequently able to undertake a rigorous gym program after that event" (reasons at 9).
2. The plaintiff's lower back was asymptomatic at the time of the motor vehicle accident, and there are new reports to support that fact (reasons at 9).
3. The plaintiff was undertaking a rigorous exercise program prior to the accident, evident from the statement from his personal trainer, Rick Newman: the plaintiff "would not have been able to undertake this training if his back had been symptomatic at the time of the accident" (reasons at 9).
4. The report from Dr Bodel, orthopaedic surgeon, dated 9 November 2021 indicates that Dr Bodel "found that there was a 5% whole person impairment of his lumbar spine" (reasons at 9).
5. The report from Dr Bodel also found that "there was evidence of aggravation of degenerative change in the cervical spine and that there was muscle guarding in reduced range of motion in all directions. Dr Bodel attributed 5% WPI for impairment of the cervical spine" (reasons at 9).
6. Dr Bodel's "report confirmed rateable restriction to [the plaintiff's] left shoulder which was caused by the accident" (reasons at 9).
7. Dr Bodel "assessed that the [plaintiff] had a 20% WPI arising from the injuries caused by the accident" (reasons at 9).
The delegate did not summarise the first defendant's submissions in her reasons. The essential position taken by the first defendant, as set out in [16], above, was that the evidence did not support deterioration of the injury or additional relevant information having a material effect on the assessment made by Medical Assessor Truskett.
[9]
The decision of the delegate
In her reasons, the delegate outlined the procedural history of the plaintiff's claim and summarised the new medical evidence provided by the plaintiff in support of his submission that his condition had deteriorated since the assessment performed by Medical Assessor Truskett (in 2018). (I note that there were a number of medical reports and records before the delegate. Much - possibly most - of the material before the delegate was not in evidence before me. Nothing turns upon this).
The delegate outlined the legal test which she was required to undertake as requiring two steps (reasons at [10]): first, "whether there is additional relevant information about, or deterioration of the injury" (reasons at [11]); and, secondly, "whether the information or deterioration is such as to be capable of having a material effect on the outcome of the previous assessment" (reasons at [12]). The conclusion of the delegate, in the dispositive part of the reasons, was similarly expressed (reasons at [56]; see [51], below). Those statements of principle are plainly correct: they adhere to the language of s 62 and are consistent with the authorities earlier referred to.
Having identified the legal test in those terms, the delegate addressed the "first limb" making two critical findings:
1. The first finding was that, in relation to the submissions advanced by the plaintiff that "there was no evidence that [the plaintiff's] cervical spine was asymptomatic at the time of the accident", with the consequence that (so it was argued) the medical assessor "should not have made any deduction for a pre-existing injury", the delegate found that that submission was "neither additional relevant information about, nor a deterioration of the injury" - and therefore not a basis for further assessment (reasons at [13]-[14]). That conclusion was not challenged, and need not be considered further.
2. The second finding was that the report from Dr Bodel, "the medical reports, referrals and letters by treating practitioners, radiology reports and the letter from Mr Rick Newman are additional relevant information about the injury" (reasons at [15]).
It should be noted that, there was no express finding about "deterioration of the injury" for the purposes of s 62(1)(a). Implicitly it was accepted to be present, given the finding in the reasons at [15]. (No submissions were directed to this issue, and the plaintiff did not rely upon it as part of its argument in this Court. In those circumstances it need not be considered further).
[10]
An overview of the competing arguments
The plaintiff submitted that the way and manner in which the delegate assessed the report from Dr Bodel dated 9 November 2021 and the statement of Rick Newman dated 23 August 2021 demonstrate that the delegate "wrongfully sought to exercise herself the power or duty of a medical assessor and she applied the wrong legal test" (plaintiff's submissions at [22]-[24]). In short, it was said that the delegate determined the matter as if she were the medical assessor charged with the responsibility to undertake a medical assessment in accordance with s 60 of the MAC Act (plaintiff's submissions at [47]).
In furtherance of this broad submission, the plaintiff argued that the delegate "wrongfully found that Dr Bodel's report" was incorrectly analysed and "not capable of having a material effect on the outcome of the previous assessment" and, further, "erred in law in wrongly finding … that the statement of Mr Newman was not capable of having a material effect on the outcome of the previous assessment because of some alleged contradictions" (plaintiff's submissions at [34]). This aspect of the plaintiff's argument should be dealt with - and rejected - at once, for the reasons immediately following.
Given the nature of these proceedings, a complaint that a decision-maker 'wrongfully found' something is insufficiently precise and, more fundamentally, is not a basis for review within the authorities earlier referred to, nor is a 'wrong finding' of fact in and of itself and error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156 ('Azzopardi'); Chan at [71]. Further, simply because, as here, the plaintiff has alleged that the delegate "erred in law" does not mean, without more, that she did - particularly in circumstances where it is said that the delegate erred in law in wrongly finding that the statement of Mr Newman was not capable of having a material effect on the outcome of the previous assessment. Again, an error of that kind (assuming that is what occurred), without more, is insusceptible to judicial review.
The plaintiff next argued that the delegate "applied the wrong legal test in that she sought to over-analyse the Claimant's further Application" (plaintiff's submissions at [37]). This was a slightly different way of expressing the submission advanced by the plaintiff, as set out in [52], above - viz., that the delegate acted as a medical assessor. The argument of the plaintiff is, in my view, more accurately expressed as: although the delegate correctly stated the legal test, she failed to apply it. That was the way in which the case was, ultimately, pressed during submissions. (Given that the delegate correctly stated the legal test - see [42], above, it was not, in my view, open to argue that the test was misstated). A complaint framed in that way focuses upon the substance of the delegate's reasons so as to demonstrate the suggested failure to apply the correct legal test.
[11]
Discussion and consideration
As earlier noted, the plaintiff sought review on the basis that the delegate misapplied the terms of s 62. In that situation, where there has been a misconstruction or a misunderstanding of the nature of the opinion to be formed, it can be said that there has been no real exercise of jurisdiction such that, in law, the jurisdiction remains constructively unexercised: R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 432; [1944] HCA 42; Hebburn Ltd, Ex parte; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, 420; Miller at [36].
Before moving to consider the substance of the plaintiff's argument, three matters should also be noted. First, the parties did not draw attention to, or rely in any way upon, the Motor Accident Permanent Impairment Guidelines (or any other guidelines) as assisting in the determination of the issue argued. Secondly, each side submitted that there were no decisions, of any kind, that address the 'intensity' of the assessment that was to be performed by the delegate when determining the plaintiff's application. Thirdly, here, given the way the matter was argued, the relevant issue is not whether the delegate acted unreasonably, irrationally etc (there was no challenge to the decision of the delegate on that basis: see Miller at [36]); rather, the only relevant issue is whether the delegate posited and - more specifically - applied the correct test.
The fact that the delegate correctly stated the legal test to be applied (see [42], above) does not, of course, mean that it was. It is well recognised that "formulaic recitation of a statutory test is neither sufficient nor decisive in determining whether the correct test has in fact been applied": IAG Limited t/as NRMA Insurance v Chahoud (2019) 89 MVR 87; [2019] NSWSC 767 at [56] ('Chahoud'). That last statement reflects a broader principle - namely, in determining whether there has been a misapplication of a statutory test, the focus is upon the substance of the reasons, reading them fairly and as a whole: Chahoud at [57], [61]-[63]. The plaintiff's argument here was that, as a matter of substance, it was evident that there had been a misapplication of s 62 of the MAC Act, and that the delegate's statement of the test applied was simply "formulaic", and did not reflect the substance of what, in fact, occurred.
The question, then, is: was the correct legal test applied?
[12]
Dr Bodel's report
The plaintiff argued that the delegate fell into error in that she "determined that the reports [from Dr Bodel] were insufficient in [that] the specialist 'relied' on an old medical assessment of Medical Assessor Delaney and that his new medical report did not contain sufficient 'analysis' as to causation" (plaintiff's reply submissions at [5]). The plaintiff argued that this approach was erroneous because:
1. Dr Bodel did not rely upon the assessment of Medical Assessor Delaney "at all", and Dr Bodel arrived at his own conclusion in determining the plaintiff's WPI (plaintiff's reply submissions at [7]);
2. Dr Bodel "himself is a medical assessor of the second defendant" (plaintiff's reply submissions at [8]); and
3. The delegate "was plainly wrong to find that there was no relevant analysis in Dr Bodel's report" in connection with causation (plaintiff's reply submissions at [9]).
Further, it was submitted that "the finding of 'capability' here is key" (plaintiff's reply submissions at [17]). (Although not entirely clear, this submission may well have been linked to the submission to the effect that the delegate had engaged in over analysis, and otherwise acted as a medical assessor: see [64], above).
I do not accept the broad tenor, nor the specific parts, of these submissions. I will deal first with the 'capability' submission, and thereafter the submissions directed to the specific errors said to have been made by the delegate.
[13]
The 'capability' and 'medical assessor' submissions
Given the plaintiff's submission, it is necessary to restate (and emphasise) some matters of general principle in connection with s 62(1A), and the test to be applied.
As earlier noted, where s 62(1)(a) is engaged (as it was in this case), then a referral for further medical assessment is precluded unless the deterioration or additional information "is such as to be capable of having a material effect on the outcome of the previous assessment": s 62(1A); see also [26], above and the authorities there cited. By its terms, s 62(1A) calls for a comparison between the deterioration and/or additional information, and whether it is capable of changing the outcome of the previous medical assessment if it were placed before a medical assessor. That approach has been authoritatively determined in a number of cases including Rodger at [48]-[49] and [106]-[107]; Miles at [34]-[35]; Chan at [25] and [70]. The capacity of the deterioration or additional information to affect a further medical assessment "is a matter for the subjective satisfaction of the [delegate]. It is not necessary that that capacity exist as a matter of objective fact": Rodger at [70] and [113]; Henderson at [78]; Miller at [34]-[35]; Chan at [23].
As to this last matter - viz., the satisfaction of the delegate - this has been expressed as a requirement "that the characterisation of the information is a matter to be considered in the first instance by the [delegate] and not one to be determined by this Court afresh on judicial review application" (Miller at [36]) or conditioned upon whether the delegate "has formed an opinion as to whether the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment" (Chan at [20] and [22]).
Although the plaintiff, during argument, specifically eschewed framing what the delegate should, on his argument, have done in the present case, the 'capability' argument of the plaintiff appeared to be that, s 62(1)(a) being satisfied, then essentially so long as there is some difference between what is contained in the further material to what was found in the previous assessment, then that was material that was 'capable' of having a material effect, with the consequence that the delegate was bound to refer the matter for further medical assessment (plaintiff's reply submissions at [17]). Consistent with this, the plaintiff argued that there should not have been any "detailed scrutiny" (plaintiff's submissions at [40]). To do otherwise, or to go further, would involve the delegate acting as a medical assessor.
[14]
The specific errors submissions
The plaintiff additionally raised three complaints about the way that the delegate dealt with Dr Bodel's report: see [65], above. Each of these complaints are directed to questions of fact or findings of fact that are alleged to be erroneous; they did not involve errors of law. Furthermore, it should be emphasised, the plaintiff argued the matter on the basis of these matters illustrating a misapplication of the statutory test, and not demonstrative of any reviewable error. In my view they fall demonstrably short of doing so.
To the above I would, briefly, add the following:
1. In relation to the submission that Dr Bodel did not rely upon the assessment of Medical Assessor Delaney, it was plainly open for the delegate to find that Dr Bodel had done so: there are repeated references in his report to that assessment (including report pp 3, 6, 8 and 9), and Dr Bodel himself stated, having earlier noted the assessment, that "clearly, he did have a significant injury which soon after the accident was assessed as being an 18% whole person impairment by those who assessed him at the time" (report p 9). There is no error of any kind, in my view, raised by this complaint; certainly none that would give rise to any form of review in this Court. Further, the complaint is not suggestive, in my view, of any error of approach.
2. In relation to the submission that Dr Bodel was himself a medical assessor, the relevance and materiality of this fact is not self-evident. To the extent that, in some way, this somehow undercut the delegate's findings in connection with the manner in which she assessed Dr Bodel's report (and the content of it), again, even assuming there is substance to this submission, the use made of Dr Bodel's report is quintessentially a matter of fact for the delegate. There is no reviewable error, nor any error of approach, in my view.
3. In relation to the submission that the delegate was "plainly wrong" in finding that there was no relevant analysis in Dr Bodel's report in connection with causation, it is sufficient to simply note that any (assumed) error of this kind is an error of fact, not of law: Azzopardi at 155. Again, there is no error in approach in my view.
The plaintiff also argued that there was a further error - namely, that the delegate "wholly failed to assess Dr Bodel's reports by reference to the original assessment", going so far to submit that the delegate "did not mention Medical Assessor Truskett at all, let alone why the new reports were not capable of affecting that assessment" (plaintiff's reply submissions at [22]-[26]).
[15]
Mr Newman's statement
In connection with Mr Newman's statement, the plaintiff argued that there was "no discussion or reasoning" - merely a "conclusion" - in relation to the delegate's finding that there was a contradiction between the 'contemporaneous' medical records from the plaintiff's general practitioner about an incident in September 2006, and Mr Newman's statement (plaintiff's reply submissions at [31]-[33]). The plaintiff also argued that the delegate made an error in connection with the "glass door incident", failing to "mention that this glass door incident was described" in the clinical notes as 'minor' (plaintiff's reply submissions at [34]-[35]).
I do not accept these submissions. Aside from the overarching submission that the delegate, by dealing with the matter in this way, "was acting as a medical assessor" (plaintiff's reply submissions at [37]) and failed to assess "capability" (plaintiff's reply submissions at [38]) - both of which were said to evidence an "erroneous approach" (plaintiff's reply submissions at [39]), no error of law is identified (or suggested). In this respect it should (again) be emphasised that no part of the plaintiff's application for review of the delegate's decision involved any question about the reasonableness of the decision or argument that the decision was irrational, illogical etc (Miller at [36]); nor was any issue raised about the adequacy of the delegate's reasons.
In relation to the suggested erroneous approach, for the reasons that I have earlier given when dealing with the argument about Dr Bodel's report, I do not consider that what the delegate did was demonstrative of a misapplication of s 62(1A). Rather, consistent with the statutory directives contained within the reasons (see [42] and [51], above; and the further statement in connection with Mr Newman's statement: reasons at [39]), the delegate correctly approached the determination of the plaintiff's application. In the context of the application, s 62(1A) required the delegate to consider whether the statement addressing matters 15 years earlier was capable of having a material effect on the outcome of the previous assessment. The delegate was not satisfied that it was for a range of reasons, including because there were contemporaneous medical records from Dr Webber (the plaintiff's treating medical practitioner between 2002 and 2006) supportive of the conclusion that the medical assessor reached - which was to the effect that the plaintiff had "long standing moderately severe back pain", and was being prescribed regular narcotic analgesic medication for this condition. The conclusion was unexceptional, and in any event was fundamentally a question of fact for the delegate, not this Court. Further, the plaintiff's submission that the delegate erred in relation to her treatment of the "glass door incident" - failing to mention that it was "minor" - also does not give rise to any error of law, nor is it demonstrative of an error in approach.
[16]
Orders
For the above reasons, I make the following orders:
1. Order that the Amended Summons filed 25 January 2023 be dismissed.
2. Order that the plaintiff pay the first defendant's costs of the proceedings.
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: 21 June 2023
Parties
Applicant/Plaintiff:
Stocks
Respondent/Defendant:
Insurance Australia Limited trading as NRMA Insurance
Fifthly, the state of satisfaction required under s 62 of the MAC Act is susceptible to judicial review and oversight by the Court in exercising its supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW): Rodger at [70]-[71]; Miles at [27]; Miller at [5]-[6].
Sixthly, the basis for review of this decision is circumscribed, reflecting the nature of the power conferred on the delegate, and is conventionally described by reference to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110, 118-119; [1976] HCA 24. The essential question is whether the delegate's decision was properly formed according to law. More recently, and in the context of the MAC Act - specifically by reference to s 62 - the nature and standard of review was stated in Miller at [36] in these terms:
Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this Court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432:
"If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide."
Seventhly, "the power of referral is subject to a residual discretion" as to whether to refer a matter for a further assessment: Jubb at [36].
Medical Assessor Truskett then proceeded to assess permanent impairment:
1. Cervical spine: the plaintiff was assessed as having a non-verifiable radicular complaint which equated to 5% WPI. However, according to Medical Assessor Truskett, documentation reviewed "demonstrated that [the plaintiff] had a radicular complaint into his right upper limb prior to the motor vehicle accident and application for disability had been made on that basis". Accordingly, Medical Assessor Truskett fully deducted the 5% WPI.
2. Left arm: a 0% WPI was "assigned as there was a full range of left elbow movement. The elbow is stable".
3. Left wrist: a 0% WPI was "assigned as there is a full range of wrist movement. The wrist is stable".
4. Right knee: a 1% WPI was "assigned as [the plaintiff] has had a partial medial meniscectomy. He has a full range of knee movement. The knee is stable".
Medical Assessor Truskett concluded that the overall WPI was 6% but fully deducting the 5% pre-existing impairment of the plaintiff cervical spine resulted in a final WPI of 1%.
Having satisfied herself that s 62(1)(a) had been satisfied, the delegate then addressed the "second limb". The question posed was: "is the information or deterioration such as to be capable of having a material effect on the outcome of the previous assessment?": reasons at [15]. That legal direction is clearly correct, conforming as it does to the terms of s 62(1A) of the MAC Act.
It is important to emphasise that there are two distinct enquiries to be undertaken given this finding - namely: (a) whether the "deterioration of the injury … is such as to be capable of having a material effect on the outcome of the previous assessment"; and, (b) whether the "additional relevant information about the injury … is such as to be capable of having a material effect on the outcome of the previous assessment". (The plaintiff did not suggest that the delegate failed to deal with the matter in this way - thus, it need not be considered further).
Thereafter, the delegate proceeded to assess the material being:
1. a report from Dr Bodel (reasons at [16]-[24]);
2. the clinical records from Dr Yong (reasons at [25]-[28]);
3. "various scans" (reasons at [29]-[31]);
4. the statement from Rick Newman (reasons at [32]-[39]);
5. the letter from Dr Webber (reasons at [40]-[46]);
6. the report from Dr Anthony Greenburg (reasons at [47]-[48]);
7. dysesthesia and referral to Dr Stephen Duma (reasons at [49]-[51]); and
8. contemporaneous reports of shoulder pain (reasons at [52]-[55]).
The focus of the plaintiff's submissions was upon the manner in which the delegate addressed the report from Dr Bodel and the statement from Rick Newman: the plaintiff argued that this demonstrated a misapplication of the statutory test. It is appropriate, in those circumstances, to set out the reasons of the delegate in connection with Dr Bodel's report and the statement from Mr Newman.
In relation to Dr Bodel, the delegate's reasons were (reasons at [16]-[24]):
16. In his report dated 9 November 2021, Dr BodeI found that the claimant had 20% WPI which was attributable to the motor accident.
17. In response to the request to provide his comment as to any causal connection between the motor accident and the injuries sustained by the claimant, Assessor Bodel stated:
This is a very difficult question. This gentleman certainly did have injury 15 years ago caused by the motor vehicle accident. He was assessed extensively for that injury in 2009 and 2010 by the State Insurance Regulatory Authority and found to have an overall 18% Whole Person Impairment which was revised on appeal. He has had further assessment in 2018 with no further loss found.
This gentleman has had a number of episodes of giving way which he attributes to an unsteady gait pattern and balance problems. He attributes these to the effects of the motor vehicle accident. That is an issue for a neurologist and an ear, nose and throat specialist to determine and not a matter for an orthopaedic surgeon.
As time has passed, he has aged and part of his clinical presentation today is part of the ageing process but clearly, he did have significant injury which soon after the accident was assessed as being an 18% Whole Person Impairment by those who assessed him at that time.
18. Dr BodeI clearly stated that he is not able to determine whether the claimant's unsteady gait pattern and balance issues are associated with the accident as the determination is not within his realm of expertise.
19. Dr Bodel noted that as time has passed the claimant has aged and that part of his clinical presentation is related to the aging process.
20. In respect of the remaining impairments, Dr Bodel relied on a medical assessment conducted by Assessor Michael Delaney in which he found that the injuries caused by the motor accident gave rise to 18% WPI.
21. Although Dr Bodel noted that this certificate was 'reversed' by a Medical Review Panel, he relies on Assessor Delaney's certificate that the claimant had significant injuries arising from the accident.
22. I am not satisfied that Dr BodeI has provided any analysis of the information before him or provided any insight as to a path of reasons which would explain how he has used his clinical skill and judgment to determine which of the claimant's injuries were caused by the accident.
23. Dr Bodel has acknowledged that some of the claimant's impairment has arisen from the aging process. He has not provided any analysis to indicate how he has determined the proportion of impairment which he considers to be caused by the claimant's injuries and those caused by aging in accordance with the requirements under the American Medical Association's Guides to the Evaluation of Permanent Impairment Fourth Edition or the Permanent Impairment Guidelines Version 1.
24. I am not satisfied that Dr Bodel's report is such as to be capable of having a material effect on the outcome of the previous assessment.
In relation to the statement from Rick Newman, the delegate's reasons were (reasons at [32]-[39]):
32. Mr Rick Newman is a personal trainer who has provided a statement dated 23 August 2021.
33. The statement is dated fifteen years after the motor accident. I have taken this into consideration when determining whether the statement is such as to be capable of having a material effect on the outcome of the previous assessment.
34. Mr Newman states that he met the claimant in September 2006 and that the claimant participated in a fitness class twice a week and was preparing to participate in an attempt at a world record.
35. Mr Newman also states that the claimant did not disclose any pre-existing injuries or pain, nor did he demonstrate any indicators of such during training. Mr Newman notes that the claimant ceased coming to class and he was later informed that the claimant had been involved in a motor accident.
36. There is no definitive statement that the claimant ceased attending classes after the accident, merely that the claimant ceased coming to class and Mr Newman later heard about the accident which he presumably attributed as the reason for the claimant ceasing to attend the exercise class.
37. Dr Norbert Webbers clinical notes were before Assessor Truskett. Dr Webber recorded that claimant had walked into a glass door on 16 September 2006. The notes indicate that the claimant had pain in his left eye and that 'all the previous injuries were back'. As noted at paragraph 27 the claimant had a history of documented lower back pain.
38. The evidence from Mr Newman and that which was contemporaneously recorded by Dr Webber directly contradict each other. Assessor Truskett relied on the contemporaneous clinical notes of a medical practitioner.
39. I am not satisfied that a statement prepared fifteen years after the motor accident which contradicts contemporaneous clinical notes of a medical practitioner is such as to be capable of having a material effect on the outcome of the previous assessment.
In the delegate's reasons, under the heading "Finding", the delegate expressed the dispositive conclusion in the following terms (reasons at [56]-[58]):
56. For the reasons outlined above, I am not satisfied that the additional relevant information about or deterioration of the claimant's injuries are such as to be capable of having a material effect on the outcome of the previous assessment.
57. I am not satisfied that the requirements for the referral of the matter for further assessment in accordance with ss 62(1)(a) and 62(1A) of the Act have been satisfied.
58. The application is dismissed.
The plaintiff's overarching submission was that, consistent with the delegate's role as being a "gatekeeper" she was neither required, nor authorised, to make a "final assessment" - which is what the plaintiff argued the delegate did here (plaintiff's submissions at [38]). Rather, the delegate was only required, and authorised, to determine whether the deterioration or "additional information is such as to be capable of having a material effect on the outcome of the previous assessment" (plaintiff's submissions at [39]). The plaintiff submitted that the delegate "should not have analysed or over-analysed the medical report or the statement before her or subjected them to detailed scrutiny and determination" (plaintiff's submissions at [40]). In my respectful view, as I later explain, the plaintiff's precise argument of where - and why - error was demonstrated was somewhat elusive.
The first defendant submitted that the correctness of the delegate's opinion "cannot be an issue before the court on the present application" because the Court's task is firstly to "identify whether the Delegate held the opinion required by the section that the additional information 'is capable of having a material effect on the outcome of the previous assessment'" and, if so, "whether that opinion was properly formed" (first defendant submissions at [3.5], [3.11]). These submissions align with the summary of principles earlier set out, and are plainly right.
The first defendant further submitted that the delegate did not subject the material before her to detailed scrutiny or over-analysis, but further that even if that had occurred, that could not form the basis for the relief sought by the plaintiff (first defendant submissions at [5.2]). That is because, as the first defendant submits, while it is true that the delegate is required to act as a 'gatekeeper' under s 62 of the MAC Act, all that was required was for the delegate to "form an opinion or state of satisfaction about the New Material pursuant to s 62(1A)". This occurred. And further, in the absence of a submission from the plaintiff that the delegate's opinion or state of satisfaction was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds" - which it submitted, could not be made because the delegate set out the basis for her opinion in a "methodical fashion" - the findings of the delegate are not susceptible to judicial review.
Separately, the first defendant submitted that "the grounds of review in the Amended Summons do not articulate whether the allegations are errors of law on the face of the record, or jurisdictional, or both".
The plaintiff's essential argument was that the reasons demonstrate that the delegate 'over-analysed' the application by acting as a medical assessor and thus essentially determined the application - viz., determined the merits and substance of the application - as if she were a medical assessor, rather than as a delegate required to attend to the statutory test in s 62(1A). The plaintiff's argument was advanced, and only advanced, through the way in which the delegate dealt with the report from Dr Bodel and the statement from Mr Rick Newman. In both respects it was argued that, in identifiable respects, the manner in which the delegate treated this material demonstrated that erroneous approach.
I do not accept the submission. In my respectful view the submission advanced sits incompatibly with the well-established matters of principle referred to.
In my view it is clear, from the terms of the section and the authorities, that s 62(1A) operates so that where a delegate is satisfied that an application for further referral for medical assessment is not capable of having a material effect on the outcome of the previous assessment, then the application cannot succeed, and the matter cannot be referred for further medical assessment. The very terms of the statutory test require this comparison to be made by the delegate, and contrary to what the plaintiff at least implicitly argued, involves a consideration as to whether the further evidence is capable of changing the outcome.
A consideration of the decision in Chan provides practical illustration of that approach. In that case, the claimant alleged that he sustained an injury to his neck and right shoulder in a motor vehicle accident. His claim in relation to his neck was accepted, but not for the injury to his right shoulder. The decision of a medical assessor was confirmed upon review by a medical review panel under s 63. The claimant secured further medical evidence to support his argument that the injury to his right shoulder was caused by the motor vehicle accident. He applied for a further medical assessment under s 62. The delegate refused to refer the matter because, although finding that the further medical reports were additional relevant information, she was not satisfied that it was capable of having a material effect on the outcome of the previous assessment (at [36]). The delegate then provided reasons explaining why she reached that conclusion - reasons that provided a detailed examination of the reasons of the medical assessor and the review panel as well as the further medical evidence that the claimant adduced to support the referral for a further assessment, notably directed to the 'causation' question (at [37]-[38]). The Court considered these reasons, and the approach more generally - a consideration that included the following (at [72] and [75]):
…The [delegate] explicitly noted that in each case there was a difference in the opinions as to causation. But read fairly, the [delegate] was saying that the very matters advanced by A/Prof Haber and Dr Porteous had already been considered, and rejected, by the panel. That led to her conclusion that they were not capable of changing the outcome of the previous assessment.
…
… [the reasons of the delegate were] to the effect that the matters now raised by A/Prof Haber and Dr Porteous had already been considered by the panel, such that the [delegate] did not consider that they were capable of changing the outcome of the previous assessment.
In my view the approach advocated by the plaintiff - set out in [66] and [71], above - also stands inconsistently with the approach taken in Chan: on the approach argued by the plaintiff, the delegate in that case would have engaged in "over-analysis", and fallen into legal error. Yet the Court of Appeal did not accept this; indeed, it supported as permissible the approach of the delegate.
The plaintiff's submission, by the emphasis upon the word 'capable', seeks to elevate and give primacy to that word, as it appears in s 62(1A), rather than construe the phrase as a composite one that - importantly - includes the qualifying term "material effect". Further, to the extent that the plaintiff sought to suggest that, because Leeming JA in Chan at [24] suggested that the threshold in s 62(1A) was not a "high bar", the application should therefore have been referred for further medical assessment, I do not accept the submission. The determination of whether the matter should be referred is for the satisfaction of the delegate: in the present case, the task of the Court is not concerned with whether that opinion was right or wrong, only whether the opinion of the delegate was correctly formed according to law: Chan at [28]. I am satisfied that it was and, further, it is not reasonably open to suggest that what the delegate did was evidence of a formulaic application of the test: the delegate, in my view, correctly posed the statutory test, and applied it.
The plaintiff also argued, again at a more general level, that the 'satisfaction' required "is the delegate acting as a gatekeeper and not as a medical assessor" (plaintiff's reply submissions at [14] and [16]). To the extent that this argument was that the test in s 62(1A) needs to reflect the fact that the delegate was a "gatekeeper" and not a medical assessor, then I do not accept this implied limitation. Nor do I accept that it is appropriate to reformulate the statutory test: the delegate's task was simply to apply the statutory language: Chahoud at [65]-[66].
It is important to emphasise a further matter. The argument in this Court had as its focus the issue of causation in connection with the cervical spine and lumbar spine - and this issue was obviously prominent before the delegate. The self-evident explanation for that approach was that Medical Assessor Truskett concluded that there was an absence of causation in connection with any impairments in those body parts and the motor vehicle accident. Given the nature of the issue presented, it is therefore entirely understandable why the delegate was required to address causation of these impairments. To do so was not, as the plaintiff argued, evidence of the delegate engaging in a "final assessment", but merely a step in the comparative exercise that the delegate was called upon to address under s 62(1A). That approach is entirely consistent with the approach in Chan, and the language of the section.
This alleged error is not within the widely expressed grounds contained within the amended summons (or the submissions filed in support), nor was it identified as part of the plaintiff's case following clarification of the ground at the commencement of the hearing. The argument was not developed during the hearing, and the first defendant did not address it at all. In fairness, however, it should be pointed out that this argument was first raised in the plaintiff's reply submissions filed the afternoon before the hearing and the fact that the first defendant did not address it understandably may have followed from the way that the plaintiff confined his case at the commencement of the hearing.
In any event, I do not accept the argument. In my respectful view it is clearly wrong: the delegate expressly referred to Medical Assessor Truskett in her reasons at [4]:
On 5 July 2018 Assessor Philip Truskett determined that the injuries to the [plaintiff's] cervical spine, left arm, left wrist and right knee were caused by the motor accident and gave rise to a 1% WPI. Assessor Truskett found that the [plaintiff's] lumbar spine injury was not caused by the accident.
Separately, whether the delegate referred to "Medical Assessor Truskett" is of no moment; what is important is the reference to the substance of what the medical assessor (relevantly) concluded: it is upon those conclusions that any comparison would be made. As I have earlier noted, the central argument, below and in this Court, related to causation, particularly in connection with the cervical and lumbar spines. This is precisely the task undertaken by the delegate: see her reasons at [4], as set out in [83], above. Thus, in relation to Dr Bodel, the delegate expressly considered whether the impairment assessed by Dr Bodel was attributable to the motor accident: that she did so is evident from her reasons at [16] where she noted that Dr Bodel assessed the plaintiff as having a "20% WPI which was attributable to the motor accident" and thereafter undertook a consideration of Dr Bodel's report in connection with causation: reasons at [17]-[24].