Wolarczuk v NRMA Insurance Australia Limited

Supreme Court of NSW|2017-10-19|Before: Schmidt J

Judgment

Mr Wolarczuk seeks orders under s 69 of the Supreme Court Act 1970 (NSW), setting aside the certificate and reasons given by a Review Panel of medical assessors appointed under the Motor Accidents Compensation Act 1999 (NSW) ("MACA"), in September 2016. There it was certified that injuries to his spine caused by a motor vehicle accident in August 2013, in which the van he was driving was struck by another vehicle, had resulted in him suffering less than 10% whole person impairment.
Under s 131 of MACA, no damages may be awarded to Mr Wolarczuk for the non-economic loss caused by this accident, because the degree of his resulting permanent impairment has not been assessed to be greater than 10%. On Mr Wolarczuk's case, both the process which the Review Panel's pursued and the certificate which it issued are infected by relevant error.
Mr Wolarczuk also seeks an order under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), extending the time for the commencement of these proceedings. That application is supported by an affidavit sworn by his solicitor, Ms Dimitri, explaining the circumstances in which the proceedings were commenced out of time.
That application not being opposed, I am satisfied that in the circumstances revealed in Ms Dimitri's affidavit, the extension should be granted.

The first medical dispute - Assessor Wong's certificate

Mr Wolarczuk was involved in a motor vehicle accident in 2010, after which he had various treatment to his spine. He also had a workplace accident in 2011, after which he received further treatment to his spine. The accident the subject of these proceedings happened in August 2013. The van he was then driving was stationary, when it was struck by a vehicle which ran a red light. He was wearing a seatbelt, but had immediate onset of pain in his back and right lower leg, particularly his knee.
There was later a dispute which was dealt with by Assessor Wong about:

Whether the L5 nerve root decompression and microdiscectomy performed by Dr James van Gelder after the 2013 accident was causally related to the injuries Mr Wolarczuk sustained in that accident; and
Whether the procedures Dr James Van Gelder performed were reasonable and necessary in relation to the injuries Mr Wolarczuk sustained in the 2013 accident.

Having examined Mr Wolarczuk and considered the available medical records and investigations, Assessor Wong certified that the nerve root decompression and microdiscectomy Dr van Gelder had performed related the injuries which the 2013 motor accident had caused and were necessary. The reasons given included: "Clause 1.9 in p.2 of the MAA Guides states: "The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible." To me, the mechanism of injury in the claimant's subject MVA was a contributing cause which was more than negligible, to have caused his L4/5 disc to protrude & compress his right L5 nerve root, resulting in a significant change in his clinical condition. Also, the claimant had responded very well to a right L5 nerve root block, from a pain score of 6/10 to 0/10, just a few weeks prior to the subject MVA. So it was unlikely that he would require surgery to decompress the same nerve root soon, but for the change in condition caused by the subject accident. As the operation was proposed & performed to relief [sic] the pain & to reverse the weakness caused by the herniated L4/5 disc, compressing the right L5 nerve root, sustained in the subject MVA, the L5 nerve root decompression & microdiscectomy as performed by Dr James van Gelder therefore relates to the injury sustained in the subject accident. Treatment - Reasonable and Necessary As, the claimant's rather significant L5 symptom & sign did not resolve naturally with non-operative treatment in time, Prof van Gelder then proposed the treatment in dispute, in Feb 2014, about 6 months after the subject MVA. 1 month later, in March, Prof said the claimant's right sciatica & right ankle weakness continued; & probably they were still unresolved by April. So, the surgeon then performed the operation for the claimant on 09.04.14. Such a treatment was common clinical practice recognised at that time. When the claimant saw me, he said he had no more right leg pain & the weakness in his right foot & big toe had gradually recovered with his exercises after the operation. That is, he was happy with the outcome of the operation, confirming it was appropriate for him. Therefore, I concluded that the L5 nerve root decompression & microdiscectomy as performed by Dr James van Gelder was reasonable & necessary in relation to the injury sustained in the subject accident."
Neither party challenged Assessor Wong's certificate and they were, accordingly bound by it. Section 61(2) of MACA provides that: "(2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned."

The second medical dispute - Assessor Gliksman's certificate

In issue on the second medical dispute which came before Assessor Gliksman, was whether the degree of Mr Wolarczuk's permanent impairment caused by the 2013 motor accident was greater than 10%.
Having also examined Mr Wolarczuk, and considered the available medical records and investigations, to which he referred, including Assessor Wong's certificate, Assessor Gliksman concluded that Mr Wolarczuk had suffered a 5% whole person impairment. He accordingly certified that: "The following injuries caused by the motor accident give rise to a permanent impairment which IS NOT GREATER THAN 10%: • Lumbar spine - intravertebral disc herniation, soft tissue injury, right sciatica • Sacrum - soft tissue injury • Right knee - soft tissue injury"
The reasons Assessor Gliksman gave were that: "Diagnosis and Causation Mr Wolarczuk suffers from a lumbosacral condition which meets the criteria for DRE Lumbosacral Category III. This yields 10% WPI. There is no separate injury to the sacrum. The condition affecting the right knee has recovered completely. The history contained within the documents and investigatory findings that both precede and post-date the motor vehicle accident indicated that significant impairments were present prior to the motor vehicle accident in question. The descriptions given in those documentations/investigations indicate that the condition would have met Diagnosis Related Estimates Category II or III prior to the motor vehicle accident in question. Therefore a one half deduction (providing maximum benefit of medical doubt to Mr Wolarczuk by assuming the prior condition was DRE II and not DRE III) is reasonable and preferable. Therefore the impairment attributable to the motor vehicle accident in question is 5% WPI. There is no separate injury to the sacral region, and the condition affecting the knee meets the criteria for zero percent WPI. Summary of Injuries Listed by the Parties and Caused by the Accident The following injuries WERE caused by the motor accident: • Lumbar spine - intervertebral disc herniation, soft tissue injury, right sciatica • Right knee - soft tissue injury Summary of Injuries Listed by the Parties and Not Caused by the Accident The following injuries WERE NOT caused by the motor accident: • Sacrum - soft tissue injury. Permanency of Impairment On the balance of medical probability the impairments assessed are unlikely to change substantially and by more than 3% in the next year, with or without medical treatment. 7. Determinations Statement about Permanent Impairment The determination as to permanent impairment is made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) and the Permanent Impairment Guidelines (1 October 2007). Degree of Permanent Impairment AMA Guides/ Guidelines References Current %WPIdue to Body Part or System (chapter/ page/table) Permanent (YES/NO) %WPS %WPI* from preexisting OR subsequent causes motor accident 1 Lumbar spine AMA Ch 3; sec 3.3g MAA Ch 4. Yes 10 5 5 2 Right knee AMA Ch 3; sec 3.2 MAA Ch3. Yes 0 n/a 0

%WPI = percentage whole person impairment Apportionment Please see under 'Diagnosis and Causation' above A Current % permanent impairment 10 B Pre-existing/subsequent % permanent impairment 5 C Adjustments % for effects of treatment nil Final % permanent impairment 5"

There was no issue between the parties that Assessor Gliksman's approach to the assessment of the permanent impairment Mr Wolarczuk suffered as the result of the 2013 motor accident, did not accord with the requirements of the Motor Accidents Compensation Act and the applicable Guidelines.
Mr Wolarczuk applied to have the certificate reviewed in accordance with s 63 of that Act.

The conduct of a review under s 63

An application for review of an assessor's certificate can only be made "on the grounds that the assessment was incorrect in a material respect": s 63(1).
If the proper officer of the State Insurance Regulatory Authority is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, the application must be referred to a Panel of at least three medical assessors for review: s 63(3).
Such a review is not limited to that aspect of the assessment that is alleged to be incorrect, but is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 63(3A).
Medical Assessment and Permanent Impairment Guidelines have been issued by the Authority under s 44. Both applied to the Review Panel's assessment of the degree of permanent impairment Mr Wolarczuk suffered as a result of the 2013 accident.
A Review Panel may confirm or revoke the medical assessor's certificate and issue a new certificate as to the matters concerned: s 63(4). Such a certificate must set out the reasons for the Panel's findings about any matter certified: s 63(6). Section 61 also applies to any new certificate issued: s 63(6).
In its reasons the Review Panel revealed, under the heading "3 Matters Considered and Decided by the Panel": "The Review Panel considered afresh all aspects of the assessment under review. A. Evidence Considered The Panel considered all of the available evidence and decided that a re-examination of the claimant was necessary in order to reach a decision, because re-examination is the standard expected, and matters raised referred specifically to issues regarding assessment of the lumbar spine injury Whole Person Percentage Impairment. Accordingly arrangements were made for the claimant to be examined by Assessor Buckley and Assessor Wan on 17.06.2016. It was decided that all injuries would be examined at that time. Unfortunately Assessor Wan was unavoidably delayed on the 17.06.2016, and accordingly arrangements were made for the examination to take place one week later on the 24.06.2016. The Panel agreed to reconvene on 24.06.2016 to discuss the matter further."
Then set out in the Review Panel's reasons is an account of the history, current problems and past history Mr Wolarczuk gave the two Panel members and the results of their examination.
Whether the process which the Panel pursued accorded with the requirements of s63 and the applicable Medical Assessment Guidelines is now in issue. They include clause 16.21 "Review Panel Assessment" of the Impairment Guidelines, which specifies in cl 16.21.2, that the Panel must determine within 30 days of being convened, whether "re-examination of the claimant is required, and if so set a timetable for that to occur".
That necessary regard was given by the Review Panel to the Permanent Impairment Guidelines, as cl 1.6(b) required, is also in issue.

The certificate issued by the Review Panel

In issue on the review was whether the degree of permanent impairment which Assessor Wong had concluded had been caused to Mr Wolarczuk's spine by the injury caused by the 2014 motor accident, was greater than 10%.
The Panel certified: "The following injury caused by the motor accident gives rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%: • Lumbar spine - intravertebral disc herniation, soft tissue injury, right sciatica"
Under the headings "Panel Deliberations" and "Diagnosis", the Panel found that: "The panel finds that there is now a DRE II Lumbosacral impairment, with the pain in the leg being a non-verifiable radicular sign. The Review Panel also found evidence of an L5/S1 disc injury, and for exactly the same reasons as identified for the L4/L5 injury, there was no radiculopathy now present."
The Panel then turned to "Causation", concluding: "The Panel is satisfied that together with the hospital and General Practitioner notes, a back injury occurred in the subject accident. The Panel is therefore satisfied that the L4/5 disc injury and consequent DRE II impairment of the lumbosacral spine, is caused by the motor vehicle accident of the 6.08.2013."
The Panel then turned to "Pre-existing injury", concluding in relation to Mr Wolarczuk's spine that there was objective evidence of "a pre-existing DRE II impairment in the lumbar spine, prior to the subject accident". That was not resolved by injection in the weeks before the accident. It concluded: "The MAA Guides indicate that "(paragraph 1.33, page 6 MAA Permanent Impairment Guidelines 2007) … If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident then its value should be calculated and subtracted from the current whole person impairment value. …"
The Panel decision was finally explained to be: "4. Panel Decision The Review Panel found that the accident WAS a cause of the following claimed injuries: • Lumbar Spine - intravertebral disc herniation, soft tissue injury, right sciatica The Review Panel found that the following injuries were found to be resolved and give rise to no assessable impairment: • Sacrum - soft tissue injury • Right knee - soft tissue injury The degree of whole person permanent impairment of the injuries caused by the accident was calculated as follows: AMA Guides/ Guidelines References %WPI* from Body Part or System (chapter/ page/table) Permanent (YES/NO) Current %WPI* pre-existing %WPI* due to motor accident cause 1 Lumbar Spine DRE II, Page 3/102, AMA IV Yes 5% 5% 0%

0% WPI = percentage whole person impairment Determination Regarding the Degree of Whole Person Impairment of the Injured Person as a Result of the Injuries Caused by the Motor Accident The total percentage whole person permanent impairment for assessed injuries caused by the motor accident is 0%. Therefore the total whole person impairment is not greater than 10%. This determination as to permanent impairment is made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) and the Impairment Assessment Guidelines. Permanent impairment ratings take symptoms into account, however the percentage whole person permanent impairment is not a direct measure of disability. A finding of zero percent whole person impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI. The Review Panel's findings in relation to the degree of permanent impairment of the injuries caused by the accident are different to the findings as stated in the Permanent Impairment certificate issued by Assessor Gliksman. This is because the Review Panel was convinced that the data available in the letters of Dr Van Gelder and the evidence of nerve root injections including a point only 17 days prior to the subject motor vehicle accident, is convincing evidence of a lumbar spine injury with radiculopathy, pre-existing the accident of the 06.08 2013, and therefore there was strong evidence for a DRE Ill 10% whole person impairment of the lumbar spine less than three week [sic] before the subject motor vehicle accident. The Review Panel did, however, agree that Mr Wolarczuk did indeed sustain a new lumbar spine disc injury at a different level to the pre-existing level, and with a different radiculopathy, which required operative intervention, and all this was the result of the motor vehicle accident of the 6.08.2013, but nevertheless, he now still has a 10% whole person impairment as the result of lumbar spine impairment, and there was a pre-existing 10% impairment. The Panel notes that under some jurisdictions there is an increased percentage impairment available for those who have undergone operative intervention. However, this is not the case under the MAA Guidelines."

Under the heading "5 Issues raised by the parties" the Panel said that it "agreed that these have all been dealt with in section 3 above". Section 3 dealt with "the matters considered and decided by the Panel", where the Panel's deliberations were dealt with, to which I have earlier referred.

Did the Panel fail to give adequate reasons?

It is convenient to deal first with the issue as to the adequacy of the reasons given by the Review Panel.
I am satisfied that Mr Wolarczuk's case, that the reasons given were inadequate must be accepted - illogical and contradictory as the reasons given were.
There was no issue between the parties as to the nature of the obligation imposed on the Panel, to give reasons for its conclusions as to the matters referred for assessment, dealt with in its certificate: s 61. As discussed in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, at [32] in relation to the obligation to give reasons imposed on a medical panel under s 68 of the Accident Compensation Act 1985 (Vic): "The standard required of the written statement of reasons which s 68(2) of the Act obliges a Medical Panel to give for its opinion is that the statement must explain the actual process of reasoning by which the Medical Panel in fact formed its opinion and must do so in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law."
On this application, as discussed in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6], what is in issue in relation to the Review Panel's certificate is: "… whether the reasoning process can be discerned, reading the reasons as a whole and applying a "beneficial construction" to which the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. At least where a gap may be filled as a matter of necessary inference on a fair reading of the reasons, I would consider that the obligation to set out the reasons has been discharged."
The parties being bound by Assessor's Wong's unchallenged findings as to the injuries caused to Mr Wolarczuk's spine in the 2013 accident, there was no issue before the Review Panel as to that matter. No reference is made to this certificate in Part 1C "Documentation and Other Material Reviewed", of the Panel's Reasons, but the Panel does indicate that it had received and considered all the documents which were provided to Assessor Gliksman, prior to his assessment.
When identifying the medical reports it had noted in reaching its conclusions, the Review Panel also said: "The Reviewers noted a previous Motor Accident Authority Treatment Certificate dated 16.11.2014 by Assessor James T-M Wong who identified a previous right S1 nerve root involvement after a work fall on the 15.11.2011, and then the MR of 6th August 2015 revealing an L4/5 disc protrusion with "likely compression of the right L5 nerve root (was) therefore new and was caused by the MVA"."
In section C "Panel Deliberations", without referring to Assessor's Wong's conclusions, the Panel indicated that it was satisfied that "a back injury occurred in the subject accident" and that. The Panel is therefore satisfied that the L4/5 disc injury and consequent DRE II impairment of the lumbosacral spine, is caused by the motor vehicle accident of the 6.08.2013."
Assessor Wong had certified that the L5 nerve root decompression and microdiscectomy performed by Dr van Gelder was reasonable and necessary, given the injury caused to Mr Wolarczuk's spine in the 2013 accident; that it was a contributing cause of the then condition of his spine, which was more than negligible; and that it had caused his L4/5 disc to protrude and compressed his right L5 nerve root, resulting in a significant change in his prior clinical condition, which required surgery.
The Review Panel explained, under the heading "Pre-existing injury", that it had assessed Mr Wolarczuk's whole person impairment prior to the 2013 accident, to be 5%. It considered that post-accident, his impairment remained 5%. Accordingly, when that was deducted from his pre-existing impairment, the Panel concluded that the 2013 accident had resulted in "no new level of percentage impairment".
This approach did not accord with the Permanent Impairment Guidelines, which required, in the case of spine impairment, that the current impairment be estimated first; that the impairment from any pre-existing spine problem then be estimated; and that this estimate then be subtracted from the present impairment, "to account for the effects of the former": Clause 1.34.
The Review Panel's final conclusions were, in any event, different. The result is that its reasons are impossible to understand.
Under the heading "Panel Decision" the Panel provided a table which reflected its earlier conclusions, namely that Mr Wolarczuk's whole person impairment was 5% and that the 2013 accident had made no contribution to that impairment. There reference is made under the heading "AMA Guides/Guideline Reference (Chapter/Page/Table)" to "DRE II Page 3/102 AMA IV". That suggests that the Panel did not pay necessary regard to the applicable provisions of Chapter 4 of the Permanent Impairment Guidelines. The Panel then explained its conclusion to be that Mr Wolarczuk's: "whole person permanent impairment for assessed injuries caused by the motor accident is 0%. Therefore the total whole person impairment is not greater than 10%."
Having earlier found under the heading "Panel Deliberations" that there was objective evidence that Mr Wolarczuk had a pre-existing DRE II injury, before the 2013 accident, the Panel then went on to explain, however, that it had found: "… convincing evidence of a lumbar spine injury with radiculopathy, pre-existing the accident of the 06.08 2013, and therefore there was strong evidence for a DRE Ill 10% whole person impairment of the lumbar spine less than three week before the subject motor vehicle accident."
This contradicted the Panel's earlier finding. That then led the Panel to a different final conclusion, namely that: "Mr Wolarczuk did indeed sustain a new lumbar spine disc injury at a different level to the pre-existing level, and with a different radiculopathy, which required operative intervention, and all this was the result of the motor vehicle accident of the 6.08.2013, but nevertheless, he now still has a 10% whole person impairment as the result of lumbar spine impairment, and there was a pre-existing 10% impairment".
On this application it was common ground that under AMA 4, a finding of DRE II resulted in a 5% impairment, DRE III 10% and DRE IV 20%. How it was that Mr Wolarczuk's impairments, both before and after the accident were assessed to be both DRE II and DRE III, was not explained by the Panel.
The insurer thus accepted that there was an inconsistency in the Review Panel's reasons, but submitted that despite this difficulty, the reasons given were adequate. That was because the same conclusion was effectively reached, namely, that the impairment caused by the accident to Mr Wolarczuk's spine, did not result in greater impairment than that which he had previously suffered.
I am satisfied that this submission cannot be accepted.
Fairly read, what the Review Panel's reasons do establish is that it did not conduct its assessment in accordance with the requirements of Chapter 4 "Spinal Impairment" of the Impairment Guidelines, as it was required to do. There reference is made to section 3.3 of Chapter 3 in the AMA 4 Guides, which uses a "diagnosis related estimate (DRE) model', which must be used on assessment: Impairment Guideline 4.1.
That assessment must begin with Table 4.1 "to establish the appropriate category for the spine impairment": Clause 4.6. The assessment of spinal impairment must be made "at the time a person is examined": Clause 4.3. Assessors, including the Review Panel, are also required to include in the report a description of how the impairment rating was calculated, with reference to the Tables and/or figures used: Clause 4.12.
Table 4.1 identifies the patient's condition and the available DRE estimate category for such a condition. In the case of a previous spine operation without radiculopathy, the available DRE categories were II, III, or IV. In the case of previous spine operation with radiculopathy, the available DRE categories were III, IV or V.
In the case of low back pain or neck pain with guarding or non-verifiable radicular complaints, the available DRE category was II. For low back pain with radiculopathy or radiculopathy alone, the available DRE category was III.
Clause 4.14 also specifies the definitions of clinical findings to be used to place an individual into these DRE categories.
Clause 4.15 required the Panel to use the Table, in conjunction with these definitions, by way of modification of identified parts of the AMA 4 Guides, including the "Specific Procedures and Directions Section": Clause 4.18. Clause 4.20 also required that: "4.20 When allocating the injured person to a DRE category the assessor must reference the relevant differentiators and/or structural inclusions."
Clauses 4.28 to 4.31 also specified how radiculopathy and impairment caused by dysfunction of a spine nerve root or roots, was to be identified.
In its reviews the Review Panel made no reference to any of these requirements. Its reasons reveal that the Panel did not pay necessary regard to the applicable Permanent Impairment Guidelines which bound its assessment. In explaining its conclusions, the Panel made no reference to those requirements, or to Assessor Wong's unchallenged conclusions.
The Review Panel's final observation was that the Guidelines do not provide for increased percentage impairment for those who undergo operative intervention. That does not accurately reflect the provisions of Chapter 4 of the Impairment Guidelines. There it is required that the results of post-accident surgery must be taken into account in that exercise: Clause 1.27.
As the Insurer submitted, the Review Panel was undoubtedly undertaking its assessment at a different time to that undertaken either by Assessor Wong or by Assessor Gliksman. Still, the Panel's findings do not shed necessary light on why it was that the application of the applicable Guidelines to the evidence before it led the Panel to the result it finally arrived at, whichever it actually was, a 5% DRE II or 10% DRE III impairment, both before and after the 2013 accident.
It follows that despite all that the Review Panel said in its certificate, its reasoning process cannot be discerned, even reading the reasons as a whole and applying a beneficial construction to them. Nor can the gap in the Panel's logic be filled as a matter of necessary inference, on a fair reading of those reasons.
It thus must be concluded that the Panel did not discharge its statutory obligation, to explain the actual process of reasoning by which it in fact formed its opinion. What it did reveal, however, establishes that it did not adhere to the applicable Guidelines.

Was the Panel bound by Assessor Wong's conclusions?

A "medical dispute" is defined in s 57 to mean "a disagreement or issue to which this Part applies". Section 58 provides that: "58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) (Repealed) (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (e) (Repealed)"
The Act thus does not separately provide for "treatment disputes" or "impairment disputes". A "medical dispute" may concern treatment, impairment, or both. The Medical Assessment Guidelines, however, make some separate provisions for treatment and impairment disputes: Clause 8. In the case of impairment disputes the insurer is obliged to give written reasons for rejecting a claim for damages for non-economic loss, if it believes that the claimant's whole person impairment is not greater than 10%: Clause 8.8.
Section 61 "Status of medical assessments" requires medical assessors to give a certificate as to the matters referred, which becomes conclusive evidence as to the matters certified "in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned". Medical assessors are defined in s 57. They are not "claims assessors".
An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect, in a material respect: s 63(2). Neither party having sought a review of Assessor Wong's assessment, its correctness did not arise for the Review Panel to consider.
The Review Panel had to resolve whether Assessor Gliksman's assessment that Mr Wolarczuk's whole person impairment resulting from the injury to his lumbar spine was 10%, it having been 5% before the accident, with a further 5% caused by the accident, was incorrect.
As discussed in McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 at [25], s 63(4) empowers a review panel to confirm or revoke the medical assessor's certificate referred to it and to issue of a new certificate "as to the matters concerned". The "matters concerned" are those matters specified in s 58, which were before the medical assessor.
In this case that was only whether the degree of permanent impairment Mr Wolarczuk had suffered as a result of the injury caused by the motor accident, was greater than 10%. That had to be assessed in accordance with the applicable Impairment Guidelines, including what was provided in Chapter 4.
As the insurer accepted, in resolving whether Assessor Gliksman was wrong in finding the degree of Mr Wolarczuk's degree of permanent impairment as the result of the accident to be only 5%, the Review Panel could not ignore Assessor Wong's certificate, on which Mr Wolarczuk relied.
The Panel had to undertake its evaluation of his impairment at the time of Mr Wolarczuk's re-examination: Permanent Impairment Guidelines 1.23 and 4.6. The objective evidence of Mr Wolarczuk's pre-existing symptomatic permanent impairment of his spine, also had to be considered. That consideration had to result in a calculation of its value, which then had to be subtracted from the value of his current whole person impairment: Clause 1.33.
It follows that while not bound by the conclusions which Assessor Wong had earlier reached, the Review Panel had to consider them. Further, in giving its reasons for its conclusions, the Review Panel had to explain why it was that it rejected Mr Wolarczuk's case, which relied on Assessor Wong's conclusions.

Did the Panel reject Mr Wolarczuk's case on causation?

Before the Review Panel, Mr Wolarczuk's case was that Assessor Gliksman had approached his consideration of the pre-existing impairment in the wrong way; had included an irrelevant and unrelated possible impairment in his assessment of the pre-existing impairment; and had not recognised that he was bound by the matters certified by Assessor Wong. The method of deduction he adopted, was also inconsistent with the Guidelines.
The Review Panel was obliged by the Guidelines not only to use Table 4.1 in its assessment of his then permanent impairment, but also to explain how it had used that Table and AMA 4.
On this application, Mr Wolarczuk's case that the Review Panel's use of AMA 4 involved error must be accepted, given that, as I have explained, its reasons do not disclose that it adhered to the requirements of Chapter 4 of the Impairment Guides, as it was bound to do.
Mr Wolarczuk complains that the result was that the Review Panel failed to give necessary consideration to his case on causation. The accident had caused him further injury, which had required surgery and left him with ongoing radiculopathy, which ought to have resulted, on proper application of Table 4.1, in an assessment that his impairment which after the accident, was at least 10%.
The Insurer's case was that the Review Panel had taken proper account of Mr Wolarczuk's pre-injury radiculopathy and the evidence that the post-accident surgery had led to good recovery, without ongoing radiculopathy. That explained the Panel's finding of DRE II lumbosacral impairment with pain in the leg being a non-verifiable radicular sign, which had not been resolved prior to surgery by injection. Accordingly, this explained the Panel's conclusion that no new level of permanent impairment had resulted from Mr Wolarczuk's surgery.
In the result, the Insurer argued that Mr Wolarczuk's complaints in relation to causation were misconceived. Assessor Wong had not determined what level of permanent impairment had been caused by the accident and his findings on treatment did not bind the Review Panel. Further, the Guidelines did not "require previous surgery to be the only method by which the degree of permanent impairment is determined".
The difficulty with the latter submission is that the Impairment Guidelines not only required Table 4.1 to be used by the Review Panel to establish the appropriate category for Mr Wolarczuk's spine impairment, both before and after the accident, but that the Table specifies the available DRE Categories for both previous spine operation, with and without radiculopathy. The Guidelines also provide that the effect of surgery must be taken into account, on an assessment of impairment: Clause 4.4.
That being so, it cannot be accepted that the Guidelines give assessors the discretion to assess the level of impairment of those who have had spinal surgery, as falling into one of the other specified conditions, such as patients who simply suffer lower back pain, or those who only have radiculopathy. Under these Guidelines, if there has been surgery, it must be taken into account in the way the Guidelines and the Table direct.
The Review Panel gave no explanation of how it reached its conclusions, by reference to the Table and the other requirements of the Impairment Guidelines I have discussed. Why it did not accept Mr Wolarczuk's case, including as to causation, is not apparent.

Were all members of the Panel required to examine Mr Wolarczuk?

In issue is whether the MACA and the applicable Guidelines permitted the Review Panel, having concluded that Mr Wolarczuk should be re-examined, to determine that the re-examination would be undertaken by only two of its members.
The answer depends on the proper construction of s 63, which provides: "63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (2A) If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer 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. (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. (7) The Motor Accidents Medical Guidelines may limit the time within which an application under this section may be made."
The Insurer's case is that s 63 permits the Panel to determine that only some of its members will undertake a re-examination, relying on clause 11 of the Medical Assessment Guidelines, which provides: "11.1 In conducting an assessment an Assessor, including a member of any Review Panel, may determine the Assessor's own procedure and is not bound by the rules of evidence and may inquire into any issue in such manner as they think fit. 11.2 The Assessor is to take such measures as are reasonably practicable to: 11.2.1 ensure that the claimant understands the nature of the application and the issues to be considered , the role of the Assessor as an independent decision-maker, and the conclusive nature of any certificate that is to be issued; and 11.2.2 explain to the claimant any aspect of the procedure of any medical examination that the claimant does not apparently understand. 11.3 The Assessor is to inform him or herself on any issue as they see fit. 11.4 The Assessor is to take into account the objects of the Act and objects of MAS at all times. 11.5 The Assessor is to progress the assessment of the dispute as quickly, fairly and as cost effectively as is practicable."
In my view the Insurer's construction of s 63 is incorrect.
An application for review of a medical dispute must be referred to a panel of at least three medical assessors: s 63(3). The review is to be "by way of a new assessment of all the matters with which the medical assessment is concerned": s 63(4). Section 133 requires that the assessment of the degree of permanent impairment of an injured person must be made in accordance with the Motor Accidents Medical Assessment Guidelines.
In Ali v AAI Limited [2016] NSWCA 110, Leeming JA discussed at [79] - [96] the question of whether the Guidelines which apply to medical assessments are "delegated legislation" binding of their own force. His Honour observed at [99]: "99 … if judicial review is sought of a decision of an assessor based upon guidelines, it will be necessary to address the provisions of statute which make the guidelines applicable, and it will be necessary to address the particular clauses relied on, because both the Act and guidelines made pursuant to it proceed on the basis that they are not all of the same legal force."
In the event of any conflict or inconsistency, the Guidelines cannot prevail over the statutory requirements, including those of s 63. The construction of s 63 must be approached in light of Giles JA's observations in McKee at [23] and [38]: "23 Section 63 only applies when there has been a medical assessment by a single medical assessor; it does not apply if, as s 60(4) and s 61(1) permit, there has been assessment by more than one medical assessor. The occasions for a fresh medical assessment presented by s 61, subs (4) and subs (5), s 61(8) and s 62 are limited. The plain purpose of s 63 is that the collegiate professional expertise of three or more medical assessors should be applied in the review, resulting in an assessment which is more likely to be correct and to be accepted by the parties to the medical dispute. 38 I do not think it correct to divide a review under s 63 into what the review panel is obliged to review and what it has a discretion to review. The review panel has the one task, to review the medical assessment referred to it and either confirm the medical assessor's certificate or revoke it and issue a new certificate. In the manner earlier explained, the members of the appeal panel bring their expertise to that task, and the confirmation or the new certificate embodies their professional opinion as to the matters referred for assessment in whole. In order to come to its decision to confirm the medical assessor's certificate or revoke it and issue a new certificate the review panel must give consideration to the matters referred for assessment in whole. The consideration as to some aspects of the matters may be brief if there is a discrete particularised incorrectness in a material respect and no other incorrectness in a material respect is apparent to the professional gaze of the members of the review panel, and depending on perceived occasion to go further the review panel may then focus on the particularised incorrectness in a material respect. If that occurs, it is not failure in an obligation or the exercise of a discretion. It is the exercise of professional judgment."
Consistently with this approach to purpose of the section and the requirements of the "one task" involved in the review process established by s 63, all three members of a review panel which determines that a re-examination is necessary, must be involved together in that examination, as a part of the new "assessment of all the matters with which the medical assessment is concerned", which s 63(3A) requires.
That conclusion is supported by various provisions made in both the Medical Assessment and Permanent Impairment Guidelines.
The Permanent Impairment Guidelines specify in cl 1.20 that a review panel's assessment task involves three stages: review of medical and hospital records; interview and clinical examination; and preparation of a report using the methods there specified. No express provision is made in either the Impairment or Medical Assessment Guidelines, to permit the panel to determine all of its members will not to be involved in each stage of the new assessment it must undertake.
The obvious implication is that all members of the panel must be involved in the entire assessment process. That also accords with the requirement in the Impairment Guidelines that the assessment of spinal impairment be made at the time of examination: cl 4.3.
It is Chapter 16 of the Medical Assessment Guidelines which deals with referrals to a review panel. It specifies the materials which they must be provided: cl 16.19. Clause 16.20 specifies that neither the review panel nor individual members may delegate their functions to the Proper Officer. The Guidelines make no provision for the delegation of any of the functions of the panel to one or more of its members.
Under the heading "Review Panel Assessment", clauses 16.21 to 16.26 provides: "16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; 16.21.3 determine whether additional information is required in order to make a decision; 16.21.4 determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked; 16.21.5 if revoked, determine what new certificates are to be issued; 16.21.6 where the original assessment certificate was issued under clause 13.7 and included in a combined certificate under clause 13.9, determine whether the panel is to issue a new combined certificate, combining the result of the review with the results of the other assessments included in that combined certificate; 16.21.7 determine which member of the panel will sign any certificates on behalf of the panel; 16.21.8 determine whether a further meeting of the panel is required; and 16.21.9 advise the Proper Officer of any determinations under this clause. 16.22 In the case of clause 16.21.2 where there is to be a re-examination, clause 9.11.4 and clause 9.11.5, and Chapters 10, 11, 12 and 18 apply to the re-examination. 16.23 In the case of clause 16.21.9 the Proper Officer will advise the parties of any determinations made in a panel conference within 5 days of being advised of those determinations. 16.24 Within 20 days of the final meeting of the panel , and in any case within 60 days of the initial meeting, the panel shall issue its determination and any certificates, accompanied by written reasons for the determination , in the form approved by the Authority, to the secretary who shall within 5 days of the issuing of any certificates, forward them to the parties and the original Assessor. 16.25 If the Review Panel members are unable to agree on an aspect of the assessment, the determination of the majority of the Review Panel will be the determination of the Review Panel , or in the case of an evenly divided panel, the view supported by the Chairperson will be the determination of the Review Panel, and that determination will include a statement as to the opposing view. 16.26 The Review Panel is to act as expeditiously as practicable in the circumstances."
Clause 16.22 provides that if there is to be a re-examination, clauses 9.11.4, 9.11.5 and Chapters 10, 11, 12 and 18 apply.
Clause 9.11.4 deals with notification to the parties of the names of the assessors; cl 9.11.5 with the documents the assessors are to be provided; Chapter 10 with the circumstances in which the proper officer may dismiss an application; Chapter 11 with assessment procedures; Chapter 12 with documentation and other supporting procedures; and Chapter 18 with costs assessment.
Clause 16.21.7 specifies that the panel may determine which of its members will sign certificates on behalf of the panel. But it does not provide for the panel to determine that some of its members will undertake a re-examination on its behalf. The obvious inference, again, is that all members of the review panel must participate in all parts of the panel's new assessment, as s 63(3A) requires, including re-examination.
That is also supported by the absence of any Guidelines regulating how the results of any re-examination conducted by only some panel members, are to be communicated to other members, or how disagreements between those who have conducted the re-examination about its results, are to be managed.
True it is that in Mr Wolarczuk's case there was no disagreement between the two members of the Review Panel who conducted the re-examination as to its results. Such disagreement is, however, plainly possible, if either the entire panel, or only some members, conduct a re-examination.
Provision is made in cl 16.25 of the Medical Assessment Guidelines for disagreements about aspects of the assessment between panel members. That provision contemplates, however, that all members of the Panel have been involved in all aspects of the assessment. It provides that: "16.25 If the Review Panel members are unable to agree on an aspect of the assessment, the determination of the majority of the Review Panel will be the determination of the Review Panel , or in the case of an evenly divided panel, the view supported by the Chairperson will be the determination of the Review Panel, and that determination will include a statement as to the opposing view."
The possibility of an evenly divided panel arises from s 63(3), which provides that a review panel must have at least three members. Provision is thus made in cl 16.17 for the Proper Officer to convene a panel of at least three medical assessors and to arrange for a chairperson to be appointed. Such a panel may comprise four or more members.
If the Insurer's construction of s 63 is correct, there would seem to be a number of possible ways in which a re-examination which a panel has determined is necessary, could occur. Only one of them will, however, result in all members of the review panel having the same information about the re-examination, on which its assessment must in part be based, given what is involved in clinical examination of a patient. That is an examination conducted in the presence of all panel members.
Necessarily, if a re-examination proceeds either by separate examination by each panel member at different times; or by examination by only one member, who then makes a report to the panel; or by examination by more than one, but less than all members, who then make such a report, the result will be that not all members will have the same information. That is because no matter how good a report about what an examination revealed to the member or member who conducted it is, the information conveyed will not be the same as that which a medical assessor gleans when present during the re-examination.
The only clause of the Guidelines which deals with disagreement amongst members is cl 16.25 of the Medical Assessment Guidelines. In this case the chairperson was one of those who conducted the re-examination. On the Insurer's approach, however, the panel does not need to determine that the chairperson be one of the examiners. But cl 16.25 makes no provision for such a possibility.
That is because cl 16.25 does not contemplate that all panel members will not participate in every aspect of the assessment. To the contrary, consistently with s 63, it provides for how disagreements between panel members over an aspect of the assessment that they have each participated in, is to be resolved by majority if there is an uneven number of panel members, or according to the chairperson's view, if the numbers are even, that is, four or a greater even number: s 63(3) and cl 16.17.
It follows that cl 11.1 does not empower members of a review panel, as a matter of "procedure", to determine that only some panel members will undertake either a re-examination, or any other part of the new assessment "of all the matters with which the medical assessment is concerned" which the review panel must conduct: s 63(3A).
If it were otherwise, the panel members could also determine, as a matter of procedure, that other parts of their new assessment could be undertaken by only some of their number. Namely, the review of the relevant documents and the preparation of the panel's report. Or indeed, the panel could determine that only some of their number could undertake all parts of the assessment.
Such a divided process would be the antithesis of that considered in McKee to be required by s 63, namely, by the review panel's application of its collegiate professional expertise to all of the information relevant to the new assessment.
Thus it is that the only step in the assessment process which the panel is empowered to determine only one of their members will take, is the signing of the panel's certificate: cl 16.21.7.
I note, however, that in Mackenzie v Allianz Australia Insurance Ltd (No. 2) [2015] NSWSC 1320, Adamson J came to a different conclusion. There, her Honour observed at [58] - [61]: "58 I understood the plaintiff (as in Bradley) to confine his challenge on the constitutional ground to the fact that one of the assessors on the Review Panel had not participated in the examination of the plaintiff, which was conducted by the other two. The plaintiff did not contend that I ought infer that the decision to have the examination conducted by Drs Chan and Crane was made other than by all three members of the Review Panel: see Carpenter v Carpenter Grazing Co Pty Limited (1987) 5 ACLC 506 at 514 (Hope JA, Samuels and Priestley JJA agreeing). 59 For the reasons I gave in Bradley at [68] - [74], I do not consider this ground to have been made out. In summary, in my view, although it is only the panel, comprised of all its members, which can conduct a "new assessment" and make the relevant determination, there is no requirement that all three participate in each of the tasks that leads to the assessment. In my view, when cl 1.20 of the Permanent Impairment Guidelines is read with cl 11.1 and cl 16.21.2 of the Medical Assessment Guidelines and the Act, it becomes apparent that, although the Review Panel is to determine the procedure to be taken (including whether the claimant is to be examined), it can determine who is to conduct any task involved, apart from the assessment itself, which must be arrived at by the three collectively. 60 Although Mr Romaniuk contended that he ought to have placed more emphasis on cl 16.21.7 in Bradley, I do not discern any material difference between the arguments put or the question to be determined between the present case and Bradley. Accordingly, the doctrine of stare decisis applies: Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 591 per Barwick CJ. In any event, I am not persuaded that I was in error in Bradley. Moreover, the appropriate forum for the correction of a primary judge's errors (if they be found to be so) is the Court of Appeal: see Tiverton Estates Ltd v Wearwell Ltd [1975] Ch. 146 per Scarman LJ at 172. 61 Accordingly, I consider that the Act and the Medical Assessment Guidelines permitted the Review Panel to determine that the examination of the plaintiff was to be conducted by Assessors Crane and Chan."
As this passage shows, earlier in Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950, Adamson J also came to a similar view.
Regrettably I cannot agree with Adamson J that "the assessment itself", which her Honour considers that the review panel must arrive at collectively, does not include any re-examination it has determined is necessary.
In my view, as I have explained, given the requirement of s 63(3A), that there be a "new assessment of all the matters which the medical assessment is concerned", which is not limited to that part of the earlier assessment which is alleged to be incorrect, if the panel determines that a re-examination is necessary, that being one part of such an assessment, all panel members must be present when the re-examination is undertaken.
Regrettably, in the result, I must depart from the conclusions reached by Adamson J, convinced as I am that they do not reflect the proper construction of s 63 of the MACA or of the Guidelines to which I have referred: see Favelle Mort Limited v Murray (1976) 133 CLR 581 at 591; [1976] HCA 13.

Discretion

The Insurer's case was that even if these conclusions were reached, I would refrain from exercising the Court's discretion to grant the relief sought by Mr Wolarczuk, because the result of a further review of Assessor Gliksman's certificate could not lead to a more favourable outcome.
I am not convinced of that, given what I have earlier discussed in relation to the requirements of the MACA and the Guidelines, when it is spinal injury which arises for a review panel to consider.
In any event, given the conclusions which I have reached in relation to the procedures the Review Panel adopted and its failure to give the required reasons, I do not consider that this it is just to refrain from exercising the Court's discretion in Mr Wolarczuk's case.

Orders

The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. In this case that is an order that the Insurer pay Mr Wolarczuk's costs of the proceeding. Unless the parties approach within 7 days, that will be the Court's order.
Accordingly, for these reasons given, I order that: 1. The time for the commencement of these proceedings is extended to 21 August 2017. 2. The Review Panel's certificate is set aside. 3. The matter is referred back to the State Insurance Regulatory Authority to be dealt with according to law.

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: 02 April 2019

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