Stojanovic v Motor Accidents Authority of NSW

LEGISLATION CITED : Motor Accidents Compensation Act 1999 Supreme Court Act 1970

Abede v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Attorney-General for New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 Bruce v Cole (1998) 45 NSWLR 163 Buck v Bavone (1976) 135 CLR 110 Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Craig v State of South Australia [19995] HCA 58; (1995) 184 CLR 163 Cross v McHugh [1974] 1 NSWLR 500 Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1; (2010) 239 CLR 531 CASES CITED : Martin v Kelly [2008] NSWSC 577 Martin v Kelly [2009] NSWCA 105 McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Public Service Board of NSW v Osmond [1987] HCA 7; (1986) 159 CLR 656 Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; [2007] 235 ALR 609 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; (2005) 139 LGERA 296

TEXTS CITED : American Medical Association Guides to the Evaluation of Permanent Impairment, 4th ed, 3rd Printing (1995) MAA Guidelines for the assessment of the degree of permanent impairment (1 October 2007)

Biljana Stojanovic (Plaintiff) Motor Accidents Authority of New South Wales (First Defendant) PARTIES : MAS Assessor (Second Defendant) Review Panel (Third Defendant) GIO General Limited (Fourth Defendant)

COUNSEL : B K Nolan (Plaintiff) M A Robinson (Fourth Defendant)

NSW Compensation Lawyers (Plaintiff) SOLICITORS : Crown Solicitor's Office, Submitting Appeal (First, Second & Third Defendant) Moray & Agnew (Fourth Defendant)

LOWER COURT JURISDICTION : Medical Assessment Service

LOWER COURT JUDICIAL OFFICER : MAS Assessor and Review Panel

LOWER COURT DATE OF DECISION : 5 March 2009, 22 July 2009

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

2009/298030 BILJANA STOJANOVIC v MOTOR ACCIDENTS AUTHORITY OF NSW & 3 ORS

JUDGMENT (Judicial review - Motor Accidents Authority of NSW - decisions of Assessor and Review Panel) 1 HER HONOUR: The plaintiff seeks judicial review of decisions of a Medical Assessment Service ("MAS") Assessor and the Review Panel in relation to a neck injury. 2 By summons filed 13 October 2009, the plaintiff seeks firstly, an order an order in the nature of certiorari setting aside the decision of the Assessor in MAS matter No 2008/02/3472 dated 5 March 2009 on the basis that the decision was vitiated by jurisdictional error and/or error on the face of the record and was of no effect; secondly, an order in the nature of certiorari setting aside the decision of the Review Panel in MAS matter No. 2008/02/3472 dated 22 July 2009 on the basis that the decision was vitiated by jurisdictional error and/or error on the face of the record and was of no effect; and thirdly, an order in the nature of mandamus that the Assessor exercise his power accord to law. The plaintiff relied on the amended affidavit of Vic Petrovich dated 16 February 2010. 3 The plaintiff is Biljana Stojanovic ("Ms Stojanovic"). The first defendant is the Motor Accidents Authority of New South Wales ("the MAA"). The second defendant is the Assessor, Dr Edward Schutz ("the Assessor"). The third defendant is the Review Panel of the Motor Accidents Authority ("the Review Panel"). The fourth defendant is GIO General Limited ("the Insurer"). The first, second and third defendants have filed submitting appearances.

Grounds of review 4 Ms Stojanovic seeks a review of the following grounds. Firstly, that the decision of the Assessor is infected by a breach of procedural fairness, his failure to give adequate reasons when exercising judicial functions to give adequate reasons for his decision constituting an error of law which appears on the face of the record; secondly, the Assessor failed constructively to consider the considerations made mandatory by the Motor Accidents Compensation Act 1999 ("the Act"); and finally, that because the Review Panel did not conduct its own examination of Ms Stojanovic, relied on the facts as found by the Assessor, relied on the reasoning of the Assessor, and failed to cure errors in the Assessor's decision, the Review Panel affirmed a decision that was no decision all. Therefore, the Review Panel it self made no decision.

Judicial review generally 5 This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970. 6 In Martin v Kelly [2008] NSWSC 577 Johnson J, at [13] - [24], made some helpful remarks on the confines of judicial review (the result of which, it should be noted, was reversed by the Court of Appeal in Martin v Kelly [2009] NSWCA 105 but the part to which I refer was not the subject of dispute). They read as follows: "13 The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

14 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44].

15 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41.

16 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

17 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.

19 In Craig v South Australia , Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 20 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia , and continued at 351 [82]: "Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." 21 Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].

22 In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41.

23 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119; Bruce v Cole (1998) 45 NSWLR 163 at 183-184. …"

I respectfully adopt these comments of Johnson J. 7 Recently, in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1; (2010) 239 CLR 531 the High Court discussed jurisdictional error in Australia and considered Craig at [66] - [68]. 8 Counsel for the insurer submitted that Ms Stojanovic has acquiesced to the decision of the Review Panel so this court should not grant relief. I shall address this issue in more detail later in this judgment.

The Motor Accidents Compensation Act 1999 and Chapter 4 of the MAA Medical Guidelines 9 Under the Act, common law rights to damages for non-economic loss for injuries caused by motor accidents were significantly modified from that which previously applied under the common law. Section 131 prohibits the awarding of damages for non-economic loss unless the degree of permanent impairment of the injured person is greater than 10 per cent. The Act also requires that any dispute about whether the permanent impairment meets the 10 per cent threshold to be resolved by an assessment by a medical assessor under Part 3.4 of the Act (s 132(1)). 10 Section 61(1) of the Act provides that "The medical assessor or assessors to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment." The certificate is conclusive evidence as to the matters certified in any court proceedings or assessment by a claims assessor in respect of the relevant claim: s 61(2). 11 The MAA Medical Guidelines are issued pursuant to s 44(1)(c) of Act and apply in respect of a motor accident occurring on or after 5 October 1999. Section 65(1) of the Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the Guidelines issued for that purpose. The Guidelines use the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th ed, 3rd Printing (1995) ("AMA 4") as their basis. The Guidelines make changes to the AMA 4 to align them with Australian clinical practice and to better suit them to the purposes of the Act. The convention used in the Guidelines is that if the test is in bold type, it is a directive as to how the assessment should be performed. I shall adopt this convention in my judgment where referring to the Guidelines. 12 Chapter 4 of the Guidelines deals with the assessment of spinal impairment. There are specific guidelines provided for the cervicothoracic, thoracolumbar and lumbosacral spinal regions. Clause 4.1 of the Guidelines provides that only the Diagnosis Related Estimate ("DRE") method, as modified by the Guidelines, is to be used for evaluation of spinal impairment. The range of motion ("ROM") model is not to be used. 13 Clause 4.6 deals with the approach the Assessor should take in the assessment of the spine. It reads: " 4.6 The assessor should start with Table 4.1 of these MAA Guidelines to establish the appropriate category for the spinal impairment. Its principal difference from Table 70 (p 108, AMA 4 Guides) is the removal of the term 'motion segment integrity' wherever it appears (see section 4.13 below). " 14 Clauses 4.15 to 4.17 of the Guidelines state: " 4.15 To determine the correct DRE category, the assessor should start with Table 4.1 (MAA Guidelines), and use this Table in conjunction with the DRE descriptors (pp 102-107 AMA 4 Guides), as clarified by the definitions in the box above with the following amendments to pp 102-107 of the AMA 4 Guides :

4.16 If an assessor is unable to distinguish between two DRE categories, then the higher of those two categories should apply. The inability to differentiate should be noted in the assessor's report and explained .

4.17 Table 71 (p 109 AMA 4 Guides) is not to be used. The Definitions of Clinical Findings in the box above should be the criteria by which a diagnosis and allocation of a DRE category are made." 15 Table 4.1 of the Guidelines relevantly provides that "low back pain, neck pain [back pain (lumbago), WAD* I] complaints or symptoms" would afford a claimant a DRE Category I; and "low back pain or neck pain with guarding or non-verifiable radicular complaints or nonuniform range of motion (dysmetria)" would afford a DRE Category II claim. 16 Clauses 4.18 to 4.22 of the Guidelines set out what DRE category method should be applied. Relevantly clause 4.19 provides that DRE Category I applies when the injured person complains about symptoms but there are no objective clinical findings by the Assessor. DRE Category II applies when there are clinical findings made by the Assessor for each of the three regions of the spine.

17 Pages 103 to 104 of the AMA 4 refer to the cervical spine. Relevantly they read: " DRE Cervicothoracic Category I: Complaints or Symptoms

Description and Verification: The patient has no significant clinical findings, no muscle guarding..., no documentable neurologic impairment, no significant loss of integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness.

Description and Verification: The history and examination findings are compatible with a specific injury and include intermittent or continuous muscle guarding observed by the assessor, nonuniform loss of range of motion (dysmetria, ...) or non-verifiable radicular complaints. There is no objective evidence of radiculopathy or loss of structural integrity." 18 Ms Stojanovic submitted that because the Assessor gave inadequate reasons, his decision should be set aside and as the Review Panel did not conduct an examination of her, its (the Review Panel's) reasons are infected by the approach of the Assessor. Hence, it is necessary to refer to the decision of the Assessor in some detail. The Assessor's reasons for determination 19 The Assessor in his reasons dated 5 March 2009 stated: " History of Symptoms and Treatment Following the Motor Accident

She was taken by ambulance to the Liverpool Hospital. Investigations showed no fractures or other abnormalities. Thus, she had X-rays of her cervical spine, pelvis and sacroiliac joints; left ankle or calcaneum; right hand and wrists and lower forearm; chest X-rays; CT scan cervical spine and CT Angiogram thorax with no positive findings.

Neck - she described her neck symptoms as 7-8/10 and indicated the cervico thoracic region.

4. Findings on Clinical Examination … Posture : Within normal limits. There was a slightly increased thoracic kyphosis and a consequent slight forward or "poke" position of the neck … Neck : She indicated discomfort at the cervico thoracic region posteriorly.

Movements of the cervical spine were normal. She indicated some pain on the right side of the neck/shoulder girdle region but there was no asymmetry of movement. There was no muscle spasm or guarding. …

5. Review of Documentation … Cervical spine - the MRI Scan shows minor disc protrusions which are not causing any clinical symptoms. …

Diagnosis and Causation Cervical Spine - strain : Neck symptoms at the time of the accident are considered due to the accident. X-rays were normal. She has minor symptoms. An MRI showed minor disc prolapses at C5-6 and C6-7. These were not causing any neurological sign. It is considered that she did have a strain. There was no sign of any other abnormality. …

7. Determinations … Degree of Permanent Whole Person Impairment (WPI) Cervical spine - strain : It is assessed that she has Cervical Spine DRE1 = 0% WPI.

Reasons: Investigations do no show any structural inclusions (meaning fracture related); The range of movements was symmetrical. There was no muscle guarding or spasm. There was no symptom or sign to suggest cervical radiculopathy or a nonverifiable radicular complaint. There being no positive criteria there was nothing to raise impairment to DRE2 or higher." 20 Ms Stojanovic submitted that when the Assessor came to consider the question of the DRE Category to be assigned to the cervical spine injury, merely recited the relevant principles. Ms Stojanovic says that the Assessor was required to go on to actually consider the matter and provide a reasoned decision as to why the injury fell into DRE Category I. Accordingly, it was submitted, the Assessor failed constructively to have regard to the considerations made mandatory by the Act and thereby constructively failed to exercise his power under s 61 of the Act. 21 Ms Stojanovic also submitted that the decision is infected by breach of procedural fairness. 22 Ms Stojanovic submitted that while a "statement of reasons ... is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions, the fact that there is nothing more in the decision directed to the mandatory considerations, other than a template reasoning, only strengthens the proposition that the MAS Assessor did not consider the relevant factors at all" (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [266], where the High Court referred to a practice of using "standard paragraphs" in the statements of reasons of delegates).

23 The Insurer submitted that Ms Stojanovic has acquiesced in the conduct that she now complains of. It was submitted that she has openly accepted the legal validity of the Assessor's decision and for this reasons did not challenge it but rather made a Review Panel application. The Insurer says that Ms Stojanovic then stood by waiting for the Review Panel to render a favourable determination and when it did not, she challenged both decisions. 24 However, had Ms Stojanovic approached this Court for judicial review without seeking a review of the Review Panel, this Court could have refused to entertain this application on the basis that there was a more suitable remedy available, that being a review by the Review Panel. Hence, I do not accept the relevant submission. 25 The Insurer submitted that both the Assessor and the Review Panel have provided sufficient reasons. The Insurer also submitted that Assessors should not be held to the same standard as judges as they do not exercise a quasi-judicial function, but rather an administrative function as medical expert decision-makers. I accept that Assessors must exercise their own judgment on each matter based on their own clinical knowledge and experience and in accordance with the applicable Guidelines. The same approach should be taken by the Review Panel. 26 The insurer submitted that any failure of the Review Panel to provide adequate reasons is not a denial of procedure fairness but should instead be characterised as a failure to comply with the provisions of the Guidelines. According to the Insurer this is a mere procedural error and it does not automatically follow that any breach of the Guidelines constitutes a jurisdictional error or an error on the face of the record pursuant to s 69 of the Supreme Court Act 1970.

27 In McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609, Giles JA spoke of the importance of medical assessments in the scheme for compensation provided by the Act. Giles JA stated at [20] - [22] and [29]: "20 While s 60(1) provides that a medical dispute "may" be referred for assessment, referral is commonplace. Proceedings in respect of a motor accident claim may not be commenced unless the claim has been assessed by a claims assessor pursuant to Pt 4.4 of the Act or a certificate of exemption has been issued (s 108). A claims assessor can refer a medical dispute for assessment (s 60(1)), and there is often referral by the parties to a medical dispute or by a claims assessor. Further, there is a threshold degree of permanent impairment before damages for non-economic loss may be awarded (s 131), and if there is dispute about whether the degree of permanent impairment is sufficient for an award the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Pt 3.4 (s 132). There is often a practical necessity for medical assessment.

21 Medical assessments are thus an important part of arriving at the claimant's entitlement to damages. Their importance is magnified by their status as conclusive evidence in some respects, including whether the degree of permanent impairment exceeds the threshold, (s 61(2)) and as evidence in other respects (s 61(3)). The court or a claims assessor may refer a matter for further assessment (s 62), but that prospect does not detract from the significance in the ordinary case of a medical assessment.

22 Part 3.4 seeks to provide extra-curial resolution of medical disputes but, recognising the significance of a medical assessment, provides through s 63 that a dissatisfied party can obtain review of the medical assessment of a single medical assessor.

29 I have described the significance of medical assessments. A medical assessment can have a profound effect on a claimant's recovery, to the perceived detriment of the claimant or the insurer. The legislature has provided for review by a review panel so that a dissatisfied party to a medical dispute can seek redress, as is appropriate given the significance. The dissatisfied party may have particularised the grounds for incorrectness in a material respect, but it would be harsh if the review panel did not have power to entertain altered, added or substituted grounds. (The Guidelines, to which medical assessments are procedurally subject (s 65), provide that application under s 63(1) must be made within thirty days of receipt of the medical assessor's certificate (para 10.1), without ability to extend time (para 10.3)). Ignorance or mistake should not be penalised, and there can be second thoughts; the significance of a medical assessment is such that restrictions on getting it right should not readily be found to have been intended by the legislature." 28 Before I turn to the reasons of the Assessor and the Review Panel, it is necessary to consider the role of the Guidelines. Guidelines in general have varying legal effects. Some guidelines amount to delegated legislation and are inflexible. Others exhibit no legislative intention to create precise or inflexible rules: see Riddell v Secretary, Department of Social Security (1993) 42 FCR 443. 29 As previously stated, s 65(1) of the Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the Guidelines issued for that purpose. The Guidelines are issued pursuant to s 44(1)(c) of Act. The convention used in the Guidelines is that if the test is in bold type, it is a directive as to how the assessment should be performed. Clause 4.10 of the Guidelines (reproduced) refers to reasons for determination and is not in bold. The purposes of giving reasons for the determination are, firstly, to enable the losing party to properly understand the reasons why the case was lost, and secondly, to ensure that the losing party's rights on appeal are not frustrated: Public Service Board of NSW v Osmond [1987] HCA 7; (1986) 159 CLR 656 at 666-667. In these proceedings there is no appeal but a review but the same rationale applies to a review.

Reasons for determination 30 Clause 4.10 of the Guidelines sets out what the Assessor (and the Review Panel) should include in its reasons, for example: "a comprehensive accurate history; a review of all pertinent records available at the assessment; a comprehensive description of the individual's current symptoms; a careful and thorough physical examination; and all findings of relevant laboratory, imaging, diagnostic and ancillary tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The assessor should record whether diagnostic tests and radiographs were seen or whether they relied on reports." 31 As previously stated, to fall into DRE Category I, the Assessor must be satisfied that the patient has no significant clinical findings, no muscle guarding, no documentable neurologic impairment, no significant loss of integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness. The Assessor found that investigations did not show any structural inclusions (meaning fracture related); that the range of movements was symmetrical; that there was no muscle guarding or spasm; that there was no symptom or sign to suggest cervical radiculopathy or a non-verifiable radicular complaint; and, there being no positive criteria, there was nothing to raise the impairment to DRE Category II or higher.

32 In arriving at the finding that there were no clinical symptoms the Assessor relied on the CT scan of the cervical spine that showed minor disc protrusions. In his view these minor symptoms were not causing any clinical symptoms. So far as the clinical findings are concerned, on examination the Assessor found that the movements of the cervical spine were normal and that there was no asymmetry of movement. Also on clinical examination, the Assessor found no muscle spasm or guarding. In other words, on either a clinical examination or the results of a CT scan the Assessor was able to reach the relevant finding.

The Review process 33 Section 63 of the Act deals with reviews of medical assessments. The Proper Officer may only refer the matter to a Review Panel if satisfied that there is reasonable cause to suspect the medical assessment was incorrect in a material respect (s 63(3)). 34 Ms Stojanovic in her application for review and identified the error or mistake as being: "The Doctor must conduct measurements on all planes of cervical movement including flexion, extension, right rotation, left rotation, right lateral tilt, left lateral tilt. He must report his specific findings so that it is known that he has conducted as assessment of all of the planes of movement and the degree of movement should be recorded in order to comply with the MAS Assessor's Code of Conduct which stipulates that transparency in reporting is necessary. The Doctor has failed to do this and it is not known whether or not he undertook an assessment of all of the planes of movement of the cervical spine or not. The Doctor simply says " movements were normal ". This is equivocal, unfair, not transparent and impermissible." 35 On 29 June 2009, Acting Proper Officer Ms Wood agreed with Ms Stojanovic's submission and stated: "I note that although there is no direction or requirement to record movements of the spine the Assessor has recorded in detail (under the heading of thoracolumbar spine) spinal movements and a comparative 'normal' arrange. (page 8). However, on page 13 of his certificate the Assessor, under the heading of lumbar spine, has stated that: " the range of movements were symmetrical… "

In the absence of a clear statement as to the reasons for the Assessor's conclusion there is an implication that the Assessor may have based his conclusion on incorrect or incomplete information. Such as error could be material to the outcome of this assessment." 36 The reasons of the Acting Proper Officer for granting a review relate to the lumbar spine, not the cervical spine. Submissions were also made by Ms Stojanovic that the Assessor did not conduct measurements of cervical movement and report his specific findings. However, the Review Panel was entitled to and did consider Ms Stojanovic's submissions in relation to cervical spine - see s 63(3A) of the Act. 37 Before I examine the Review Panel's decision, it is appropriate to consider whether the Review Panel denied Ms Stojanovic procedural fairness by not requiring her attend a fresh medical examination before it.

Medical examination 38 On 30 June 2009, Ms Nicholls, Review Case Management Officer for the Proper Officer, wrote to Ms Stojanovic's solicitor notifying him that the Review Panel had been convened, comprising of Assessor Joan Chen as Chairperson, Assessor Richard Crane and Assessor John Cummine and continued: "If you object to the Review Panel being conducted without an examination of the claimant, please advise immediately in writing, providing reasons why you believe an examination is required. If no objections are received by the initial conference date …, the Panel will assume that there is no objection to the review being conducted on the documentary material provided, should they consider this to be possible." 39 The Insurer submitted that as to the Review Panel's decision Ms Stojanovic has acquiesced in the conduct that she now complains of. By letter dated 30 June 2009, the Review Panel specifically sought submissions from her as to whether or not she believed a further physical medical examination was required. Ms Stojanovic's solicitor was asked whether a further physical medical examination was required on the review and invited to provide submissions on this topic. Her solicitor did not reply. The insurer says that in the circumstances, Ms Stojanovic should not be permitted to contend that the Review Panel failed to conduct its own assessment. 40 Ms Stojanovic's solicitor did not advise the Review Panel that a medical examination was required. I agree that she cannot now complain about not having an examination. However, if the Review Panel needed to make certain clinical findings from a physical examination, this error cannot be rectified in the absence of an examination of Ms Stojanovic. 41 In so far as the cervical spine is concerned, Ms Stojanovic did not contest the findings made by the Assessor that there was no muscle spasm or guarding and that there was no symptoms or signs to suggest either cervical radiculopathy or a non-verifiable radicular complaint. Ms Stojanovic's challenge is to the finding that "the range of movements was symmetrical". To fall into DRE Category II there had to be a finding that there was a "non uniform loss of range of motion (dysmetria).

42 Clause 4.14 of the Guidelines provides definitions of the clinical findings used to place an individual in a DRE category. It is known as "the Glossary". The definition for "Nonuniform loss of spinal motion (dysmetria)" in the Glossary is: "Nonuniform loss of motion of the spine in one of the three principle planes is sometimes caused by muscle spasm or guarding. To qualify as true nonuniform loss of motion, the finding must be reproducible and consistent and the assessor must be convinced that the individual is co-operative and giving full effort." 43 According to Ms Stojanovic's counsel, DRE Category II indicates that a finding of dysmetria along any of the three planes of movement (sagittal, frontal/coronal, or transversal planes) when coupled with neck pain and no objective signs of radiculopathy and no loss of structural integrity gives rise to a categorisation of DRE Category II. 44 To make a finding of nonuniform loss of spinal motion (dysmetria) involves clinical judgment. Nonuniform loss of motion of the spine means a loss of movement in the relevant spinal plane which is not symmetrical [my emphasis added]. Symmetrical loss or limitation of movement of the cervical or lumbar spines is not "nonuniform loss of spinal motion" or "dysmetria". The Assessor recorded that the range of movement was symmetrical. The review 45 Section 63 of the Act refers to the review of medical assessment by a Review Panel. It relevantly reads: "63 Review of medical assessment by review panel …

(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.

(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.

(5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review.

(6) Section 61 applies to any new certificate or new combined certificate issued under this section. …" The decision of the Review Panel 46 The Review Panel in its reasons dated 21 July 2009 determined: "The Review Panel considered afresh all aspects of the assessment under review.

A. Evidence Considered A re-examination of the Claimant was not necessary because sufficient information had been provided by Assessor Schutz in his Certificate and Reasons. The Panel therefore proceeded to consider the issues as follows" …

C. Panel Deliberations Injuries : Cervical spine The Panel considered Assessor Schutz had adequately examined the cervical spine and clearly identified that there was no asymmetry of range of motion. It was not considered necessary for the Assessor to have recorded actual measurements of range of motion. The range of motion model is in fact proscribed as a method of assessing impairment. A finding of asymmetry of range of motion is what must be sought. There was also no evidence of muscle spasm or guarding or evidence of non-verifiable radiculopathy with the correct category therefore being DRE-1 with 0% Whole person Impairment." 47 Ms Stojanovic submitted that the Review Panel's finding that "it had considered the Medical Assessor had adequately examined the cervical spine and clearly identified there was no asymmetry of range of motion" was neither open nor plausible "in light of the absence of clear findings or a record of the manner in which the examination was conducted." According to Ms Stojanovic it is not correct to presume, as the Review Panel did, that the assessment was carried out by a medical assessor exercising proper skill and judgment. Rather, Ms Stojanovic says, given the quasi-judicial power being exercised, the failure to identify the steps taken would suggest the contrary, i.e. that no assessment was in fact undertaken and the conclusion was not substantively based. 48 Secondly, counsel for Ms Stojanovic submitted that the decision of the Review Panel by failing to conduct its own assessment and simply adopting the reasons of the Assessor and affirming the same means that there has been a failure to cure the errors contained therein and therefore that decision is also infected by the same error and is no decision at all. 49 Clauses 4.5 and 4.13 of the Guidelines read: " 4.5 The range of Motion (ROM) model is not to be used for spinal impairment evaluation. (Pages 112-130, AMA 4 Guides, including Table 75 are not to be used.) … 4.13 The section of Loss of Motion Segment Integrity (pp 98-99, AMA 4 Guides) and all subsequent reference to it should not be applied, as all conditions in which it might be pertinent are considered to be covered by the "Injury Model" (DRE method)." 50 The Review Panel was correct to say that the range of motion model is a proscribed as a method of assessing impairment. The Review Panel accepted that the Assessor had adequately examined the cervical spine and clearly identified that there was no asymmetry or range of motion. The Assessor stated, "the range of movements was symmetrical" and this indicated to the Review Panel that the examination was adequate and that there was no need for the Review Panel to examine Ms Stojanovic. This is a matter for clinical judgment. It is my view the Review Panel was correct to accept that the Assessor had adequately examined Ms Stojanovic and was correct in determining that in so far as the cervical spine was concerned, Ms Stojanovic satisfied none of the diagnostic criteria for DRE Category II. Ms Stojanovic was correctly placed into DRE Category I.

Acquiescence and Delay 51 The remedies in judicial review proceedings are discretionary. I have already decided that the application for judicial review has failed. However, I will make a few comments on other factors to be considered in an application of judicial review. Usually, a remedy is denied or withheld where it is established that a more convenient and satisfactory remedy exists (such as a de novo appeal), no useful result could ensue (futility), the applicant has been guilty of unwarrantable delay, or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made (see Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146 at [88] - [92] per Kirby J). I have already referred to the review mechanism as being a more convenient and satisfactory remedy. Before approaching this Court for judicial review Ms Stojanovic had already exercised that right. 52 On 5 March 2009, the Assessor made his determination. On 21 July 2009, the Review Panel made its determination. On 13 October 2009, the summons was filed in this Court seeking judicial review. The Insurer referred to the period of delay between the Assessor decision and the filing of the summons, a period of 6½ months, as being a long time in seeking hearing of a judicial review. That ignores the fact that Ms Stojanovic sought a review before approaching this Court. I accept that Ms Stojanovic has sought two avenues of review, the first to the Review Panel and when that result did not favour her, to this Court. I agree that delay is a relevant factor but in my view, Ms Stojanovic has acted fairly expeditiously in brining this application for judicial review. No submission was made that this application was made in bad faith. 53 In any event, the application for judicial review fails. The summons filed 13 October 2009 is dismissed. 54 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the fourth defendant's costs as agreed or assessed.

(2) The summons filed 13 October 2009 is dismissed.

(3) The plaintiff is to pay the fourth defendant's costs as agreed or assessed. **********

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