Todev v AAI Limited t/as GIO

Supreme Court of NSW|2023-07-10|Before: Schmidt AJ, Mr J

Solicitors: Ayoub Lawyers (Plaintiff) Moray & Agnew (First Defendant) Crown Solicitor's Office (Second and Third Defendants) File Number(s): 2022/167811 Decision under appeal Court or tribunal: Personal Injury Commission Before: Dr Samuell & Ms Brittliff File Number(s): APP-10353811 & R-M10476653/21

JUDGMENT

Ms Todev was involved in a motor vehicle accident in October 2016 when she reversed out of a parking space and was struck by another vehicle, causing her vehicle to hit another. She claims that as a result, she suffered physical and psychological injuries, as well as the loss of her employment as a nurse in 2019, following a medical assessment.
Ms Todev pursued a claim for both physical and psychological injury under the Motor Accidents Compensation Act 1999 (NSW), but the insurer did not concede that she had suffered whole person impairment exceeding 10% as the result of the accident.

Issues

There was no issue about the applicable principles, or that the applicable guidelines did not permit a somatoform disorder to be taken into account in determining whole person impairment: cl 1.215 of the Motor Accident Permanent Impairment Guidelines 2018.
In issue between the parties is whether Dr Samuell: 1. misapplied the test for medical causation; 2. failed to make a necessary factual enquiry about whether any pre-accident condition which Ms Todev suffered had been exacerbated by the accident; 3. failed to provide adequate reasons for his decision; and 4. failed to disclose his reasoning process, as he was required to do.

What were the tasks of the medical assessor and the proper officer under the Motor Accidents Compensation Act?

The statutory scheme provides for: 1. medical disputes being referred for assessment by a medical assessor, on application of either party: s 60; 2. the medical assessor issuing a certificate as to the matters referred for assessment: s 61; 3. the medical assessor attaching to the certificate a brief statement of reasons for the assessment: s 94(5); and 4. review of such an assessment under s 63 by an application which may only: - be made on the grounds that the assessment was incorrect in a material respect: s 63(2); and - be referred for review only if the President "is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application": s 63(2)(b).
When resolving parties' medical disputes, the assessor's "task is not to pronounce on the correctness of other medical opinion", which they have to consider in resolving the dispute, "but to form his or her own opinion": Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [64]. An assessor's task is thus not to adopt the medical opinions on which one party relies, or even to choose between the competing medical opinions. What the assessor is rather obliged to do is to form his or her own opinion on all the matters which arise to be considered on the cases which both parties advance.
The reasoning process by which that opinion is arrived at must be able to be discerned, reading the reasons given as a whole, applying a "beneficial construction": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at pp 271-272. Albeit that "a gap may be filled as a matter of necessary inference on a fair reading of the reasons": Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6].
What the proper officer, the President's delegate, who is considering whether an application for review of the assessment should be referred must be satisfied about, is that there is "reasonable cause to suspect material error in the assessor's consideration, eg, by the ignoring of important facts or not undertaking the assessment correctly, either procedurally or by not addressing the right questions": Marsh at [64] referring to Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 at [22].
It follows that if an assessor fails to come to his or her own conclusions about what is in issue over a medical dispute, but instead simply adopts one expert's opinion over that of another, then relevant error will be established. A failure to give reasons for the opinion which the assessor forms, having considered the cases which the parties advance on the relevant materials, which discloses the path of reasoning which led to that opinion, will also involve error.
If either of these errors is apparent on the reasons given by an assessor, then reasonable cause to suspect material error will be established and the delegate should refer the assessment for review. That is because the delegate's decision must rest on a proper construction of the legislative scheme and must not be "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) 78 ALJR 992; [2004] HCA 32 at [38].

What did the assessor decide?

Ms Todev's case was that the assessor failed both to give adequate reasons for the conclusions arrived at and to disclose his path of reasoning as he was required to do, simply choosing the opinion of Dr Vickery over that of Dr Gertler in an impermissible way.
The insurer disputed this, contending that the path of reasoning the assessor had pursued was obvious, his certificate being fairly read, as it had to be.

The undisputed background

There was no issue about matters of relevant background, including that: 1. until Ms Todev's employment was terminated following a medical assessment in 2019, she had worked as a nurse since 2001. In 2017 she had moved from full time to part-time work, but since the termination of her employment has not worked again; 2. in the accident Ms Todev suffered a whiplash injury and was later treated for neck, shoulder and chest pain. She attempted to return to her work at Wollongong Hospital, but then took leave while she pursued treatment; 3. she received treatment for ongoing pain and was eventually referred to a neurologist and later to a neurosurgeon. Ongoing pain continued and she also pursued treatment with a psychologist and attended a pain clinic; 4. after a second opinion, surgery for ongoing pain, numbness and tingling was recommended and in December 2018 she had a C4/5-disc replacement and C5/6 fusion. She also had a nerve block in 2020 at C3/4; 5. there was also investigation of pain in her shoulders, elbows, wrists and hands, as well as psychological injury; 6. she still suffered ongoing pain for which she continued to receive treatment when examined by Dr Samuell; 7. documents showed:

the motor accident personal injury claim Ms Todev made after the accident, in which she reported having suffered physical injuries in the accident to her chest and suffering headaches, as well as pain in her neck, shoulder, thoracic, arm and finger and her neck seizing up at work when she bent down to speak to a patient;
Ms Todev's medical records, including a July 2017 diagnosis of PTSD by Dr Chalissery who prescribed medication to treat moderate to severe PTSD/anxiety;
a September 2017 diagnosis of depression, a condition also reported by the treating psychologist Ms Nasser and then by the rehabilitation physician Dr Bashford in April 2018;
the opinions expressed in the May 2020 report of Dr Gertler, who concluded that she had developed an adjustment disorder with depressed mood as the result of her accident, having enjoyed good emotional health beforehand and there being no evidence of a pre-existing condition; 1. The opinions Dr Vickery were expressed in three reports: 1. 23 July 2019 which: - referred to Ms Todev having had psychological treatment when aged 13 and Dr Stojkovska in January 2016 noting stress, anxiety and tiredness; her husband's difficulty in coping with her anger; marriage counselling; and treatment with antidepressants, as well as post-accident personal stressors; - explained her tearful and distressed state on examination; - noted that her condition had not stabilised, and she was due to be treated by a pain management consultant; - explained that she had a 10% whole person impairment as the result of a pre-existing condition; - said that her present complaints were reasonable in the context of significant personal stressors, but that her disability appeared excessive; and - resulted in a diagnosis of somatoform chronic pain disorder. 1. 27 August 2019 which: - referred to the opinion of the occupational physical report of Dr Pierides, who considered that the surgery Ms Todev underwent was not related to the accident; - considered the significance of there being no medical basis for her injury; and - concluded that her diagnosis was consistent with somatoform chronic pain disorder (DSMIV 307.80), to which the accident was not considered to be a substantial contributing factor. 1. 9 June 2020 which: - referred to her reported ongoing symptoms of depression, anxiety, disturbed sleep, pain, feelings of worthlessness and onset of panic attacks; - considered her ongoing medication for her symptoms; - considered ongoing stressors unrelated to her injury; - noted her emotional and distressed state on further examination; - observed that "there was pre-existing Somatoform Symptom Disorder in 2008"; - noted that she had experienced significant personal stressors in 2017 and that her symptoms deteriorated after the termination of her employment; - referred to Dr Pierides' June 2019 opinions that her surgery was unrelated to the accident; that any possible cervical soft tissue injury would have resolved at a maximum of 12 weeks; that her incapacity for work had not resulted from the accident; and that there was no relationship between the accident and her current complaints; - noted Prof Boesel's August 2019 report of ongoing pain treatment, including relatively high opioid dosage and psychometrics demonstrating anxiety/depression scores in the moderate range, as well as high range loss of self-efficacy and pain catastrophisation; - resulted in the opinion that this was consistent with Ms Todev having a somatic symptom disorder, as well as "latrogenic Opioid Use Disorder in the context of pre-existing anxiety, depression and marital conflict"; - concluded that her panic disorder and major depressive disorder arose in reaction to the termination of her employment, multiple personal stressors and opioid use disorder; and - found that her present complaints and disabilities were not reasonably due to her motor vehicle accident, for reasons extensively explained.

The certificate and reasons

Dr Samuell's certificate reflected his conclusion that none of Ms Todev's injuries referred for assessment had been caused by the motor vehicle accident, with the result that no assessment of the degree of permanent impairment which may have resulted from them was required.
In the accompanying reasons given, Dr Samuell noted that what had been referred for assessment was Ms Todev's psychological injury. He referred to her case being that she had suffered PTSD resulting in a 15% whole person impairment, relying on the opinions of Dr Gertler.
The insurer's case was noted to include that either Ms Todev had no impairment in the context of this claim or alternatively, that any symptoms she suffered were not capable of supporting a recognised psychiatric diagnosis or giving rise to a significant degree of impairment under the psychiatric impairment rating scale. He considered that medical entries established a significant pre-existing psychiatric history and her mental health being affected by the effects of unrelated post-accident stressors. She had also travelled overseas and had reduced her hours of work after the accident, to take care of her daughter.
The insurer was noted to be relying on Dr Vickery, who noted that Ms Todev had pre-existing somatoform symptoms in 2008 and assessed her whole person impairment, but made a 100% deduction because somatoform disorder could not be used in the assessment of the impairment. Dr Vickery also considered Ms Todev's major depressive disorder and panic disorder were not directly related to the accident.
Dr Samuell organised his reasons under the following headings: "History: Psychosocial history and pre-accident history History of the motor accident History of symptoms and treatment following the motor accident Details of any relevant injuries or conditions sustained since the motor accident Current symptoms Current and proposed treatment Clinical examination Mental state examination Current functioning Comments of consistency Review of Documentation Summary of relevant documentation Determinations Diagnosis and reasons Causation and reasons Summary of injuries referred by parties".
What Dr Samuell explained under the heading "Determinations" was so short that it can conveniently be quoted in its entirety: "Determinations 18. Diagnosis and reasons There are a number of psychological and physical difficulties pre-dating the subject accident. It was Ms Todev's assertion that her psychological difficulties became pronounced in relation to her physical state and developments at work. Noting that some physical medicine experts advanced the view that the physical complaints were unrelated to the subject accident undermines a causal connection between the subject accident and the claimed psychological difficulty. It was noted that there were personality vulnerabilities, mood difficulties and experience with pain pre-dating the subject accident. Dr Vickery advanced a diagnosis of a Somatic Symptom Disorder, a non-trauma related condition where an individual has an emotional response to physical symptoms that is excessive and disabling. Ms Todev has a Somatic Symptom Disorder and a probable recurrent Major Depressive Disorder, in remission at the time of the assessment. 19. Causation and reasons The diagnosed conditions were not caused by the subject accident as they pre-dated them. Summary of injuries referred by the parties 20. The following injuries WERE NOT caused by the motor accident: • Psychological injury."
It is difficult to see that this explanation of the views Dr Samuell came to is adequate to comply with the obligation to expose his reasoning process. But there was no issue that the reasons he gave had to be fairly read in their entirety, to determine whether he had disclosed his path of reasoning, as was required. Accordingly, what Dr Samuell earlier said, particularly in the document review section, has to be taken into account.
There, having identified the documents which he had reviewed and explained what some of them contained, Dr Samuell's conclusion about the views of the experts was that: "In summary, there was considerable evidence of both physical and psychological difficulty pre-dating the subject accident. It was also noted that there were considerable psychosocial stressors unrelated to the subject accident. The report written by Dr Gertler was not consistent with the contemporaneous evidence. The report by Dr Vickery comprehensively considered the relevant data."
What he had earlier said about Dr Vickery and Dr Gertler's reports was: "I have read the report Dr Graham Vickery, dated 23 July 2019. I note his comments that the percentage of whole person impairment as a consequence of pre-existing conditions is 10% of the whole person impairment. It was Dr Vickery's view that her psychiatric disability appeared to be excessive. In his subsequent report, dated 27 August 2019, Dr Vickery quotes Dr Pierides in stating that the surgery she had by Dr Curtis was not related to the subject accident, nor did she suffer any incapacity for work as a result of the injuries sustained in the subject accident. Dr Vickery also notes an entry from Dr Stojkovska, on 6 January 2016, that Ms Todev was stressed, anxious and tired and had no energy to do anything and that her husband was having difficulty coping with her anger. They were going to marriage counselling and she was prescribed Lexapro, 10 milligrams. Dr Vickery also noted that there was a child who had a developmental delay that was causing Ms Todev difficulty. He noted, also, that there had been a termination in May 2017 due to the medication she had been taking. On 30 August 2017, psychologist, Ms Nasser, noted there had been some domestic violence. It was also noted that Ms Todev's father had not spoken to her for five months. Dr Vickery made a diagnosis of a Somatoform Chronic Pain Disorder. It was Dr Vickery's view that Somatoform Disorders were not compensable conditions. Dr Vickery re-reviewed Ms Todev on 9 June 2020. In the report, he noted that there was a pre-existing Somatoform Symptom Disorder diagnosed in 2008. Dr Vickery made several diagnoses, including a Somatic Symptom Disorder, a Panic Disorder, a Major Depressive Disorder and an Iatrogenic Opioid Use Disorder. It was Dr Vickery's view that the whole person impairment due to the motor vehicle accident was 0%"; and "I have read the report of Dr Robert Gertler, dated 25 May 2020. Dr Gertler stated, "Prior to the accident, Ms Todev had enjoyed good emotional health." In this respect, my colleague's remarks are at odds with the contemporaneous records. Dr Gertler did not appear to be aware of pre-existing physical difficulties. Dr Gertler did not appear to be aware of marital difficulties that pre-dated the subject accident."
Dr Samuell also referred to Dr Chalissery noting Ms Todev's 2017 diagnosis and treatment for PTSD and depression.

The assessor erred

I am satisfied that like in Zahed, in this case the assessor's certificate discloses no reasoning process on the critical matters which had to be exposed.

Errors in relation to a history

The assessor had to resolve the dispute over whether Ms Todev had suffered psychological injury as the result of the accident. In doing so he needed himself to consider and come to a view about her history, psychological condition and its causes.
Dr Samuell concluded that Ms Todev suffered both a somatoform symptom disorder and a probable major depression which was in remission. But he was mistaken in understanding that in 2008 Ms Todev had been diagnosed to be suffering a somatoform disorder and he did not explain why he had concluded that her depression was in remission.
In two of his reports Dr Vickery had referred to a somatoform symptom disorder. But in these proceedings it was common ground that there was no contemporaneous medical record evidencing such a diagnosis by any treating doctor.
It may have been Dr Vickery himself who had reached the conclusion that Ms Todev was suffering this disorder in 2008, on the medical records. Or he could have been mistaken about what they established. Dr Vickery did not explain the basis for his view that Ms Todev suffered this condition in 2008. Nor did Dr Samuell.
While Dr Samuell noted that Ms Todev's case was that she had suffered PTSD, he did not consider whether she had suffered that condition, despite referring to the medical records which reflected that she had been diagnosed to be suffering that condition after the accident, as well as depression. Nor did he explain why such a diagnosis was not available.
The criteria for both PTSD and somatoform symptom disorder are to be found in DSM-IV and -V. Like Dr Vickery, Dr Samuell also made no reference to such criteria or explain why they were either satisfied or not.
In the result, logically, it follows that Dr Samuell's view that Ms Todev had suffered a somatoform disorder in 2008 rested on Dr Vickery's reports, rather than on his independent consideration of what her medical history established. Even if it did, he did not expose the reasoning process, which led him to conclude that she suffered a somatoform disorder, as he needed to do.
This also supports the conclusion that what Dr Samuell did was impermissibly to choose between the competing opinions of Dr Vickery and Dr Gertler, he considering the latter not to have had relevant materials to consider. What he rather had to do was arrive at his own opinion on the materials he had to consider, independently, in resolving the parties' dispute.
That conclusion is reinforced by a consideration of the explanation given by Dr Vickery for his view that Ms Todev was suffering a somatoform disorder. That went for some pages in his third report. By way of contrast, in his reasons Dr Samuell gave no such explanation, they being confined to the few short paragraphs earlier quoted.
The assessor's task was not to determine whose opinion was most persuasive, that of Dr Gertler or Dr Vickery. Rather, he had to reach his own opinion on all of the evidence he had before him to consider, given the respective cases which the parties had advanced about their dispute. That included, contrary to what Dr Vickery had said, that before the accident Ms Todev had not been diagnosed to be suffering a somatoform disorder; that no treating doctor had treated her for that condition, and that after the accident she had been diagnosed with and treated for PTSD, as well as depression.
It may be that Ms Todev does suffer a somatoform disorder. But in resolving this medical dispute that conclusion depended on Dr Samuell coming to his own view. The reasons for his conclusions and the path by which they were arrived at also had to be disclosed.
Given the case that Ms Todev advanced, that necessarily required an explanation, albeit short, of why the PTSD diagnosis which treating doctors had arrived at was wrong. His path of reasoning in relation to causation, to which I will return, also had to be revealed.
That Ms Todev's depressive condition was in remission, as Dr Samuell concluded, was also seemingly inconsistent with the ongoing antidepressants which he recorded that she was still being prescribed and the continuing treatment which she was receiving from her psychologist, which he noted. But still he gave no explanation for why he had concluded that her depressive condition was in remission.
While the reasons which Dr Samuell gave must not be scrutinised overzealously, even taking into account what he said about his document review and what Ms Todev had told him, I am satisfied that the assessor did not disclose his path of reasoning, as he was required to do, in arriving at his conclusions about the dispute over Ms Todev's psychological condition. Or, as I will explain, causation.

Error in relation to causal connection

It does appear that Ms Todev was not a good historian of treatments which she had received at different times. As the insurer submitted, psychiatric complaints, by their nature, are inevitably subjective. But her history of the ill health for which she pursued treatment at different times and what she was diagnosed to be suffering and treated for, was established by her extensive medical records.
Before the accident Ms Todev had been treated for depressive symptoms. That included a 2015 mental health plan and medication. After the accident she received further treatment for PTSD and depression, which continued in the latter case, after the termination of her employment in 2019. Even at the time of the assessor's examination, Ms Todev was still being treated with a considerable array of medication used to treat depression, to which he referred, as well as also still seeing a psychologist.
Under this statutory scheme compensation for a depressive condition could not only result if it was caused by the accident. There is no issue that it could also follow if the accident had aggravated, accelerated or exacerbated such a condition, if Ms Todev was already suffering from it at the time of the accident.
That did not depend on Ms Todev telling the assessor that it was in 2019, rather than in 2017 that she had received further psychological treatment, as her records reflect. There was no issue that the delay between the accident and seeking this treatment did not preclude her claim.
Dr Samuell did take into account evidence that Ms Todev had suffered a depressive condition in the past as well as after the accident, as well as other stressors which then arose. But he did not consider whether the accident had aggravated, accelerated or exacerbated her depressive condition. Relevant evidence included that: 1. she had had various personal stressors to contend with before the accident, which had resulted in her treatment for depression for a time, including shortly before the accident; 2. during all that time, despite those stressors and that treatment, she had been able to continue performing her nursing work; 3. it was after the accident, while she was pursuing treatment for the ongoing pain she was then experiencing, including eventually surgery, that she ceased work for a time; 4. that she later also again began pursuing treatment for a psychological impairment; 5. it was still later that she began to work part-time, when also having to deal with other post-accident stressors, until her employment was terminated in 2019; and 6. she was still seeing a psychologist and being treated with antidepressants, as well as still receiving pain treatment, at the time Dr Samuell examined her.
Contrary to the case advanced for the insurer, on the short reasons given it must be accepted that Dr Samuell did not consider or resolve, as he had to, the question of whether the accident had aggravated, accelerated or exacerbated the depression which he concluded was in remission.
In the result, the orders sought must be made.

The proper officer's error

An application for review of a medical assessment may only be made on the ground that the assessment was incorrect in a material respect: s 63(2) of the Motor Accidents Compensation Act. Referral to a review panel depends on satisfaction that "there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application": s 63(2B) of the Act.

Ms Todev's application

What Ms Todev pursued in her review application was: "Certificate and Reasons of Medical Assessor The Decision and Reasons of Medical Assessor, Dr Doron Samuell, dated 18 November 2021 contains error on the face of the record:- (a) In failing to apply the correct test for medical causation in diagnosing the Plaintiff as suffering from Somatic Symptom Disorder without providing any factual enquiry whether the Plaintiff's pre-accident condition had been aggravated, accelerated or exacerbated, including by material contribution, the motor vehicle accident occurring 21 October 2016; (b) In failing to adequately or at all address the test of causation as is required by s.58(1)(d) of the MACA. (c) In failing to state what causation test he was applying, where the reasons as to causation were stated: "The diagnosed conditions were not caused by the subject accident as they pre-dated them." (d) By failing to engage with the Plaintiff's clearly articulated argument and position in respect to causation of injury. (e) In failure to provide a statement of reasons demonstrating the path of reasons as to the findings. President's Delegate - Statement of Reasons for Decision (f) In failing to comply with s.63 of the MACA by not referring the matter to a Review Panel. (g) In failing to engage with the Plaintiff's clearly articulated argument in respect to medical causation as set out in the Plaintiff's Submissions to the President's Delegate, dated 16 December 2021."

The proper officers' reasons

After explaining the background to the application, Ms Brittliff summarised Ms Todev's submissions.
What they raised included that despite the delayed onset of her claimed conditions, there was no evidence that they were not related to the accident; if she had had pre-accident conditions, the correct question to be resolved by the assessor was whether they had been aggravated, exacerbated or accelerated by the accident; and that if any such conditions required apportionment, the appropriate process was to calculate prior impairment and deduct it from subsequent impairment.
In her short reasons, Ms Brittliff referred to those which Dr Samuell had given, noting that they included reference to pre-accident mental conditions and post-accident, contemporaneous records that made no reference to mental health problems; his diagnosis after examination, that Ms Todev had a somatic symptom disorder; that such a disorder could not be used to measure impairment: cl 1.215 of the Guidelines; that he also diagnosed her to be suffering a major depressive disorder in remission, which had not been caused by the accident; that the path of reasoning had been disclosed in the required way; that no injury having been found to be caused by the accident, there was no requirement to assess permanent impairment or to determine the level of impairment arising from a pre-existing condition; and that the test for causation was separate from an overall assessment of impairment.
In the result Ms Brittliff was satisfied that the application for review had to be refused.

Error is established

Given the errors into which the assessor fell and as the insurer accepted, the result is that Ms Brittliff's decision must also be set aside.
Given the medical dispute Dr Samuell had to resolve, the obligations which fell on assessors when resolving such disputes and the reasons which were given, the errors into which Dr Samuell fell should have been identified as establishing reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in Ms Todev's application.

Costs

The parties were also agreed that the usual order under the Uniform Civil Procedure Rules 2005 (NSW), that costs follow the event, would be made.
In this case that is an order that the insurer must pay Ms Todev's costs, as agreed or assessed.

Orders

There was no issue about the orders to be made.
For the reasons given I: 1. Declare that: 1. the 10 March 2022 determination of Ms Todev's application for review of her medical assessment is void and of no effect; and 2. Ms Todev's 18 November 2021 medical assessment is void and of no effect. 1. Order that: 1. both the review determination and the medical assessment be set aside; and 2. the matter be remitted to the President of the Personal Injury Commission to be determined by a different medical assessor according to law. 1. The insurer must pay Ms Todev's costs, as agreed or assessed.

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: 17 July 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (8)