Stojanovic v Motor Accidents Authority of NSW

Stojanovic v Motor Accidents Authority of NSW - [2010] NSWSC 1090 - NSWSC 2010 case summary — Zoe

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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].

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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 :

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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.

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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).

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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.

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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.

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