QBE Insurance (Australia) Limited v Alawia

1. [1]

   HIS HONOUR: Ms Nivine Alawia (the first defendant) was injured in a motor vehicle accident on 26 June 2013. Her claim for compensation saw her assessed by a medical assessor pursuant to the Motor Accidents Compensation Act 1999 (NSW) ("the Act") on 28 September 2015. Dr Michael Prior (the third defendant) issued a certificate as to the matters referred for assessment pursuant to s 61 of the Act.

2. [2]

   QBE Insurance (Australia) Limited (the plaintiff) lodged an application seeking referral of the medical assessment to a panel of medical assessors pursuant to s 63 of the Act. The "proper officer" of the State Insurance Regulatory Authority (the second defendant) ("SIRA") dismissed the application and provided reasons for the dismissal on 16 December 2015.

3. [3]

   QBE assert that there are a number of jurisdictional errors and/or errors of law on the face of the record in respect of both decisions.

4. [4]

   An extension of time pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 is necessary in relation to the challenge to the decision of the medical assessor. It was not opposed and should be granted.

Grounds of error by the medical assessor

1. [5]

   QBE contends in its Grounds of Judicial Review in the Amended Summons filed in court on 26 October 2016 that the following errors were made by the medical assessor:

Grounds of error by the proper officer

1. [6]

   QBE contends in the Grounds of Judicial Review in the Amended Summons that the following errors were made by the proper officer in respect of the referral decision:

Relief sought

1. [7]

   QBE seeks relief having the effect that either or both of the medical assessment and the referral decision be set aside or declared invalid. It seeks that the matters the subject of either or both decisions be remitted for determination according to law by a different medical assessor or by a review panel of medical assessors.

Summary of issues

1. [8]

   QBE's case has as its foundation the contention that Dr Prior, the medical assessor, failed to estimate the overall pre-existing mental impairment of Ms Alawia; that is her mental impairment prior to the motor vehicle accident on 26 June 2013. The proper officer then erred by finding that the medical assessment was not incorrect in a material respect.

Statutory provisions

1. [9]

   Section 44 provides that the SIRA may issue guidelines, including as to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident and as to the procedure for assessment and review of assessments under Pt 3.4.

2. [10]

   Section 65 provides (in sub-s (1)) that medical assessments under Pt 3.4 are subject to relevant provisions of guidelines issued under s 44 as to the procedures for the referral of disputes for assessment or review of the assessments and the procedure for assessments.

3. [11]

   Similarly, s 133(2) (in Part 5 which is concerned with the assessment of damages) provides that the assessment of the degree of permanent impairment for the purposes of non-economic loss is to be made in accordance with such guidelines. The relevant guidelines are those which I refer to as the "Permanent Impairment Guidelines".

4. [12]

   The provisions relating to medical assessments are in Pt 3.4 of Ch 3 of the Act (ss 57 to 65). It applies to disagreements between a claimant and an insurer about certain matters including whether the degree of impairment of the injured person as a result of the injury caused by a motor accident is greater than 10% (s 58(1)(d)).

5. [13]

   A party to such a medical dispute may refer it to the SIRA for assessment under Pt 3.4. The SIRA is then to arrange for it to be referred to one or more medical assessors (s 60).

6. [14]

   Following assessment, the assessor(s) are to provide a certificate as to the matters referred for assessment which then becomes conclusive evidence as to the matters certified (s 61).

7. [15]

   Provision as to the content of a certificate is made in s 61(9):

8. [16]

   Section 63 allows for a party to a medical dispute to apply to the proper officer of the SIRA to refer a medical assessment by a single medical assessor to a review panel of medical assessors for review (s 63(1)). An application can only be made on the grounds that the assessment was incorrect in a material respect (s 63(2)). Sub-section (3) provides:

9. [17]

   The role of the proper officer in relation to applications for referral to a review panel has been described as that of a "gatekeeper, not a decision-maker": Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 at [23].

The Permanent Impairment Guidelines

1. [18]

   QBE referred to the following provisions in Chapter 1 of the Permanent Impairment Guidelines:

2. [19]

   QBE also referred to the provisions in cl 1.7 to cl 1.9 which deal with "Causation of injury". Clause 1.8 requires two aspects to be addressed: a medical determination as to whether the relevant condition could have been caused by or contributed to by the "alleged factor" (the motor accident) and a non-medical determination as to whether it was so caused by or contributed to by the alleged factor.

3. [20]

   Chapter 7 in the Permanent Impairment Guidelines is concerned with "Mental and Behavioural Disorders Impairment". It includes a number of clauses (cl 7.13 - cl 7.18) under the heading "Approach to assessment of mental and behavioural disorders" which commences:

4. [21]

   Clause 7.18 refers to a pre-existing psychiatric diagnosis or condition in the following terms:

Evidence and submissions for QBE

1. [22]

   QBE filed an affidavit of its solicitor to which was annexed 469 pages of documents. At the hearing, it chose not to read it but relied instead on a smaller number of documents from which the court was taken to the following.

2. [23]

   There are medical records of Dr Emad Makary, general practitioner. Clinical notes concerning a consultation with Ms Alawia on 8 April 2011 include reference to "panic attacks", "feels fear, recurrent attacks over the last 10 days". Serepax was prescribed.

3. [24]

   On 7 June 2011 Dr Makary provided a certificate stating that Ms Alawia "is suffering from depression and on treatment for the last 3 years".

4. [25]

   On 11 September 2012 another certificate states "she is suffering from depression and on medication for the last few years".

5. [26]

   A medical certificate on a Centrelink form dated 15 April 2013 by Dr Anthony Nigro, general practitioner, states that Ms Alawia "is unfit for work/study from Monday 15 April 2013 to Monday 15 July 2013 inclusive". Her symptoms are said to be "anxiety, panic attacks"; the condition is "temporary"; and the prognosis says the "symptoms are likely to persist". Senior counsel for QBE was unable to reconcile the latter two items. (T10.11)

6. [27]

   On 21 June 2013, Dr Nigro provided a medical certificate stating that Ms Alawia "is/was unfit for normal work for many years". The certificate includes: "DIAGNOSIS: Major depression, chronic since 2007". The doctor did not elect between two options offered by the pro forma certificate: that it was issued on the basis of his own observations of symptoms and examination, or on the basis of information provided by the patient which he considered to be true.

7. [28]

   It is convenient to note here that the motor accident occurred on 26 June 2013.

8. [29]

   On 11 July 2013, Dr Nigro provided another medical certificate (addressed to Ms Deborah Martin-Smith, a psychologist) which includes:

9. [30]

   Dr Alex Apler is a psychiatrist who was retained by QBE to carry out an evaluation of Ms Alawia. He saw her in his rooms on 4 March 2015. His report of 1 April 2015 sets out Ms Alawia's background and the history of the motor accident. There is reference to her initial symptoms and her current symptoms, functioning and mental state. The report then turns to a review of documentation under headings of "Before the accident" (the records of Drs Makary and Nigro referred to above) and "After the accident". It concludes with a lengthy discussion of Dr Apler's opinion.

10. [31]

    Senior counsel for QBE invited specific attention to the following passages in the "Opinion" section of the report:

11. [32]

    The medical assessor certified:

12. [33]

    At page 1 of the reasons accompanying the certificate it is stated:

13. [34]

    On pages 3 to 6 of the reasons there is set out at some length Ms Alawia's "Past Psychiatric History". It includes:

14. [35]

    Under a heading, "Psychiatric Injuries or Psychiatric Conditions that Predated the Motor Vehicle Accident" it is repeated that Ms Alawia denied "active psychiatric symptomatology or active psychiatric diagnosis immediately predating the motor vehicle accident." It was also repeated that the episode of postnatal depression had fully remitted in around September 2010.

15. [36]

    In the next section of the reasons, under the heading "Objective Evidence that these Pre-existing Injuries or Disabilities were Symptomatic at the Time of the Motor Vehicle Accident", Dr Apler was quoted as having mentioned in his report of 1 April 2015 a "history of long-standing depression and anxiety … significant improvement before the accident". (There is an error in this quotation; "improvement" should be "impairment". The assessor repeated this quotation, but correctly, later in the report.) (CB 65)

16. [37]

    The assessor next quoted from a report of an MAA head injury assessor, Dr I Cameron dated 12 June 2015. Under a heading "Pre-Accident Medical History" the doctor is quoted as having stated, "significant psychological illness … variously diagnosed as depressive illness or bipolar disorder".

17. [38]

    The assessor quoted from notes and certificates of Dr Nigro and Dr Makary, some of which I have earlier mentioned. He concluded this section of the reasons (p 5) as follows:

18. [39]

    QBE submitted that this demonstrated that the medical assessor had not only the clinical history but an "objective history" ascertainable from the documentary material.

19. [40]

    Counsel then took the court to the reasons under the heading "Comment on Medical Reports that Differ From Your Findings" which I will set out in full (pp 17-18 of the reasons):

20. [41]

    I pause here to note that Dr Prior, evident from this passage and elsewhere, seems to have drawn a distinction between evidence of a pre-existing mental condition and evidence pre-existing impairment from same. He seems to be accepting the existence of the former but not the latter, at least in the sense of actual impairment, not just bald statements of impairment without the basis being stated.

21. [42]

    Counsel submitted that the second and third paragraphs in the above passage were inadequate to explain why the medical assessor departed from the assessment of Dr Apler's other doctors' opinions. The fourth paragraph lacked any explanation when the medical assessor had quoted or referred to various aspects of the documentation that indicated the contrary. It was submitted, "that's a plain error of law on the face of the record". It was also described as "manifestly illogical and irrational and it does come within the ground of review that we've pleaded of legal unreasonableness". (T14-5)

22. [43]

    The reasons of the medical assessor then moved to a section headed "Conclusions". As to the issue of causation he wrote at p 19 of the reasons:

23. [44]

    The first paragraph in this passage was described as "wholly insufficient"; "it doesn't show any reasoning let alone any path of reasoning". It was submitted, "This is a significant, serious problem on a contentious issue". (T15.30)

24. [45]

    The medical assessor's reasons concluded with a statement of various determinations. Under the heading "Apportionment" and the sub-heading "Pre-existing Psychiatric Impairment" there is the following at p 23 of the reasons:

25. [46]

    This passage was criticised in a number of ways. First, there is only mention of Dr Nigro, not of any of the other doctors. Secondly, it was submitted that rather than pre-existing impairment being "impossible to determine", there was in fact objective evidence and so the medical assessor was required to make an assessment. It was submitted that it was "utterly irrelevant" whether there was a "permanent impairment assessment by any medical practitioner before the date of the accident". It is not something that doctors normally do unless there has been a motor accident and there is a requirement to use the relevant guidelines to make such an assessment. Senior counsel characterised what the assessor has said in the above passage as being to the effect that "no one's done it so I won't, it's impossible". This was said to amount to legal unreasonableness, not rational, and a failure to perform the statutory duty. (T16)

26. [47]

    Having established error, in QBE's submission, it was put that it amounted to error of law on the statutory guidelines basis. Alternatively, there was unreasonableness and an illogicality and irrationality.

27. [48]

    As an example of objective evidence of actual impairment prior to the motor accident, senior counsel again referred to the certificate of Dr Nigro of 21 June 2013 in which he stated that Ms Alawia "is/was unfit for normal work for many years".

28. [49]

    The court was taken to the application by QBE for review. The document headed "Insurer's Submissions and Schedule of Damages" signed by the solicitor for QBE was said to comprise "a fair summary of both the application to the MAA for a review panel to be established and our case in these proceedings". (T11.33)

29. [50]

    Within those submissions it was contended that the decision of the medical assessor was incorrect in a material particular. Reference was made to cl 7.18 of the Permanent Impairment Guidelines and it was submitted that the medical assessor "has failed to estimate the claimant's pre-existing impairment and subtract this value from the current impairment rating".

30. [51]

    The submissions referred to the assessor having obtained a detailed history which he set out in his reasons under the heading "Past Psychiatric History" but noted that the history was "significant and well documented". In that regard, reference was made to the records of Dr Nigro and Dr Makary and the report by Dr Apler.

31. [52]

    After setting out the terms of cl 7.18 of the Permanent Impairment Guidelines, the submission continued:

32. [53]

    The submission concludes with an assertion that "a proper assessment of the claimant's pre-existing psychiatric impairment is material to the outcome of the assessment because, once subtracted from the impairment assessment with respect to the subject accident it may result in a whole person impairment of less than 10%".

33. [54]

    The proper officer dismissed the review application. His reasons are encapsulated in the following:

34. [55]

    QBE submitted that the proper officer misconstrued the meaning and effect of the Permanent Impairment Guidelines in the same or a similar way to the error made by the medical assessor in applying cl 1.33. This was said to be capable of being characterised as an error in the proper construction of the Permanent Impairment Guidelines which was an error law on the face of the record justifying the proper officer's determination being set aside.

Determination

1. [56]

   I will address each of the grounds in the amended summons but it was clear from the argument presented at the hearing that the "nub of the case" was the asserted failure of the medical assessor to make a finding of pre-existing impairment. There were five grounds referrable to the task of the medical assessor.

2. [57]

   It has been said that the task such as that which befell the medical assessor was not to arbitrate or adjudicate upon competing medical opinions (to which I would add in this case the claimant's history), nor to opine on the correctness of other opinions on the instant medical question. The task for the medical assessor was to form his own opinion by applying his own medical experience and expertise and to provide a statement of reasons which is the actual path of reasoning by which the opinion was formed: a paraphrase from Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [47]-[48].

3. [58]

   The reasons of the medical assessor are not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which they are expressed: Minister for Immigration and Ethnic affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.

4. [59]

   I am satisfied that the medical assessor provided adequate reasons for the decision he arrived at. Submissions to the effect that he did not address material considerations cannot be sustained; the complaint really amounts to a disagreement as to the weight he gave to various matters. Where the complaints are concerned with statements of conclusion, it seems clear to me that such statements are based upon the earlier discussion of the oral and documentary material throughout a very detailed statement of reasons.

5. [60]

   The criticism of what the medical assessor wrote under the heading "Causation" (p 19 of reasons) is a particular example of the latter. It appears in a segment of the reasons under the heading "Conclusions" and it is based upon what precedes it. It was unnecessary for him to provide a lengthy explanation for a diagnosis of Posttraumatic Stress Disorder as the fact that Ms Alawia suffered from such symptoms was accepted by Dr Apler; the only controversial aspect being their extent and persistence which was earlier discussed by the medical assessor (p 17 of reasons).

6. [61]

   A failure to take into account a relevant consideration in the judicial review context is a reference a failure to take into account a consideration that the decision-maker is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39. How the matter is taken into account is a matter for the decision-maker. It may be dismissed, given little weight, or decisive weight. The burden for QBE in the present case is to establish that the subject matter was not taken into account by the medical assessor at all: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [16]-[17] (Basten JA).

7. [62]

   The contention stated within this ground is that the medical assessor erred in his regard (or lack thereof) to the medical evidence of the three doctors as to Ms Alawia's pre-existing psychiatric symptomology and impairment and the evidence of Dr Apler that she had "significant impairment before the accident".

8. [63]

   The complaint here, in reality, is a disagreement with the conclusions reached by the medical assessor. The suggestion that he "failed to take into account" such material cannot be sustained. It was discussed within the statement of reasons; for example at p 17 where reference was made to the report of Dr Apler and his various opinions, including that Ms Alawia had "significant impairment before the accident". (Reasons at p 17)

9. [64]

   It was not controversial that the Permanent Impairment Guidelines are obligatory in character; they were required to be applied by the medical assessor in their terms. At issue in this case was whether the medical assessor complied with the requirements of cl 1.33 and cl 7.18 to make an assessment of pre-existing impairment. Clause 1.33 mandates this "if there is objective evidence of pre-existing symptomatic permanent impairment". Clause 7.18 requires that this assessment be carried out using the Psychiatric Impairment Rating Scale (PIRS) set out in Chapter 7. Clause 7.17 provides that "clinical judgment will be the most important tool in the application of the scale".

10. [65]

    The PIRS provides for evaluation of functional impairment in six areas:

11. [66]

    A particularly valid point made in the submissions for Ms Alawia is that pre-existing symptomatology and pre-existing psychiatric conditions do not necessarily equate to pre-existing impairment. There was reference in the medical records to the former but hardly any to the latter (as to which see below at [74]-[77]).

12. [67]

    The submissions for QBE stressed, repeatedly, that with evidence of a "pre-existing psychiatric diagnosis or condition" it was incumbent for the medical assessor to estimate "pre-existing impairment" (cl 7.18). That is what he did but he was limited to the evidence that he had - the documents and the history. He addressed that issue and provided a determination.

13. [68]

    It was submitted in the first version of written submissions for QBE (at [36]) that the medical assessor failed to take into account and engage with relevant medical documentation and the plaintiff's substantial argument in making his decision, in particular the medical evidence of Dr Apler, Dr Nigro and De E Makary and the plaintiff's submissions as to the first defendant's pre-existing psychiatric condition. It emerged at the end of the hearing that there were in fact no submissions made by QBE to the medical assessor. (T33.45)

14. [69]

    It is clear that the medical assessor was aware that he had documentary material from the three doctors mentioned; he discussed it at various points in his reasons (see above). If the issue is whether they represented a "substantial, clearly articulated argument" (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ); [86]-[88] (Kirby J)) then QBE's claim in this respect must fail. There was nothing that could amount to a clear articulation of an argument. As was put succinctly in oral submissions by senior counsel for Ms Alawia:

15. [70]

    Senior counsel for QBE made a valiant response to this which was to the effect that "we do not have to join the dots" for a medical assessor; "they must assess the evidence themselves". However, without having made any attempt by QBE to "join the dots", it is clear that the medical assessor did all that he was invited to do: take into account the documents he was given in the course of his making his assessment and this he clearly did.

16. [71]

    The complaint by QBE that the medical assessor "failed to consider and apply clause 1.33 and [7.18] of the Permanent Impairment Guidelines" (1st written submissions at [47]; similarly [34] of the 2nd written submissions) cannot be sustained. It is abundantly clear that he was aware of the requirement and addressed it. He discussed Ms Alawia's "Past Psychiatric History" (pp 3-4); "Psychiatric Injuries or Psychiatric Conditions that Predated the Motor Vehicle Accident" (p 4); "Objective Evidence that these Pre-existing Injuries or Disabilities were Symptomatic at the Time of the Motor Vehicle Accident" (pp 4-5); and "Function Prior to the Motor Vehicle Accident" (p 7). He commented on "Medical Reports that Differ From Your Findings" with reference to the report of Dr Apler and the records of Drs Makary and Nigro (p 17-18). Finally, he expressed a conclusion as to "Pre-existing Psychiatric Impairment" and rated it "as 0%" (p 23).

17. [72]

    In short, Ms Alawia had, according to the medical documents, a "pre-existing psychiatric diagnosis or condition". The medical assessor was therefore required by cl 7.18 to estimate the overall pre-existing impairment. He did so.

18. [73]

    The complaint by QBE that the medical assessor "failed to obtain from the first defendant a history of the injured person's pre-accident lifestyle, activities and habits and then assess the extent to which these have changed as a result of the psychiatric injury so that he may adequately score the pre-existing impairment using the Psychiatric Impairment Rating Scale" (1st written submissions at [48]) also cannot be sustained. The history obtained by the medical assessor of Ms Alawia's pre-accident lifestyle, activities and habits were summarised in the reasons under the headings, "Psychosocial History Prior to the Motor Vehicle Accident" (p 5); "Work History" (p 6); and "Function Prior to the Motor Vehicle Accident" (p 7). In the latter, the medical assessor was clearly applying the PIRS criteria to what he derived from the history given by Ms Alawia (and from the medical documentation).

19. [74]

    The most significant indication of pre-existing impairment was said to be found in the certificate issued by Dr Nigro to Centrelink on 15 April 2013 stating that Ms Alawia was unfit for work for three months from that date and in another certificate dated 21 June 2013 (five days before the accident) in which it was stated that she "is/was unfit for normal work for many years". Whether Dr Nigro was stating that this was her condition for many years in the past, or would be in the future, is unclear but it may be the former given the diagnosis ("Major depression, chronic since 2007"). In any event, on their face, QBE argued that these constituted objective evidence of Ms Alawia's pre-existing impairment.

20. [75]

    The history provided by Ms Alawia to the medical assessor included that she had been in employment in the past, including in the period July 2008 until early 2011. She lost her job in early 2011 when she asked to take some sick leave following a workplace accident. She then received parenting payments. She was performing unpaid work experience in the two weeks before the motor accident (that is, at the time Dr Nigro's certificate) and was due to start working the week after. It is not clear for what purpose Dr Nigro issued the certificate on 21 June 2013. It is not addressed to anyone. But it is abundantly clear from the reasons of the assessor that he was aware of this certificate and generally of the conflict between the medical records and the history she provided: see reasons at p 18. Generally as to the care in comparing a patient's account with apparently conflicting medical records, see, for example, Mason v Demasi [2009] NSWCA 227 at [2] (Basten JA).

21. [76]

    Senior counsel for Ms Alawia referred to a passage in the report of Dr Apler as indicating that he too accepted some difficulty in identifying and assessing pre-existing impairment:

22. [77]

    The medical assessor in this case was required to exercise clinical judgment (cl 7.17) and this appears to be what he has done. It was open to him not to regard Dr Nigro's bald statement that Ms Alawia "is/was unfit for normal work for many years" as "objective evidence of pre-existing symptomatic permanent impairment" (cl 1.33).

23. [78]

    These grounds are not made out. The provisions of the guidelines referred to required the medical assessor to estimate the overall pre-existing impairment. He did so.

24. [79]

    There is enough in what I have written above (and it does not bear repeating) to indicate that this complaint cannot be sustained as well.

Conclusion

1. [80]

   I am not satisfied that any jurisdictional error has been made out, or that there is any error of law on the face of the record in the determination of the medical assessor.

2. [81]

   Comparatively little was said in writing and orally about the decision of the proper officer refusing the referral application. Essentially the complaint was that he failed to appreciate and uphold complaints advanced in this Court about the medical assessment. They fail and so too must the complaints about the proper officer's determination.

Orders

1. [82]

   I make the following orders: