QBE Insurance (Australia) Limited v Shah

1. [1]

   The plaintiff is an insurer licensed under the Motor Accidents Compensation Act 1999 (NSW). The third defendant (Dr Burns) is a medical assessor appointed by the second defendant (the State Insurance Regulatory Authority or “SIRA”) under Pt 3.4 of the Act. By summons filed on 15 July 2020 the plaintiff seeks judicial review of Dr Burns’ decision in a Medical Assessment Certificate (“MAC”) issued by him on 21 January 2020. The MAC concerns the first defendant, Mr Shah, who was injured in a motor accident on 12 February 2014. Dr Burns assessed his whole person impairment at 20% on the basis of three components: 10% for the left shoulder, 9% for the right shoulder and 3% for right-sided trochanteric bursitis (inflammation of the bursa of the hip joint).

2. [2]

   On 26 February 2020 the plaintiff applied to the fourth defendant, as proper officer of SIRA, for referral of the medical assessment of the first defendant to a review panel pursuant to s 63 of the Act. That application was refused on 22 April 2020 for reasons published that day. The plaintiff’s summons includes a claim for judicial review of the proper officer’s refusal to refer the medical assessment to a panel.

Extension of time

1. [3]

   Pursuant to r 59.10(1) of the Uniform Civil Procedure Rules (“UCPR”), judicial review proceedings must be commenced within three months of the date of the relevant decision. Time for filing a summons to seek review of Dr Burns’ MAC expired on 20 March 2020. The Court has power to extend time under sub-r (2) of r 59.10. In exercising that discretion the Court is required to take into account four non-exclusive considerations listed in sub-r (3). Dealing with those in turn, I find, first, that the plaintiff has a “particular interest” in challenging the decision because it has a bearing upon the amount of compensation payable to the first defendant under the Act, for which the plaintiff will have to indemnify the registered owner of the at fault vehicle. Secondly, I do not consider that there is any significant prejudice to any other party, in particular to the first defendant, flowing from the late commencement of proceedings. This further stage of litigation with respect to the first defendant’s claim will, of course, delay his recovery of compensation. But the additional delay will not be inordinate and not of great significance relative to the whole course of assessment which has continued for nearly 7 years since the motor accident. Thirdly, I take into account that the plaintiff was aware of Dr Burns’ decision from the date it was made. Fourthly, I do not identify any relevant public interest that would bear upon the question of whether time should be enlarged.

2. [4]

   An additional factor relevant to the extension of time is whether delay in the commencement of proceedings in this Court is explained by circumstances that may reasonably be regarded as excusing it. Here, the explanation is that the plaintiff sought in the first instance to apply for referral of the medical assessment to a review panel. It did not receive the proper officer’s adverse determination of that application until after the time limit for filing in this Court had expired. The reasonableness of that explanation is supported by the following statement from Rodger v De Gelder (2011) 80 NSWLR 564; [2011] NSWCA 97 at [92]:

3. [5]

   Finally, the potential merits of the plaintiff’s claim for judicial review are a relevant consideration. The grounds relied upon by the plaintiff are at least arguable and have sufficient merit for this to be a factor strongly in favour of the extension of time. For all these reasons an order will be made extending the time for the filing of the plaintiff’s summons up to and including 15 July 2020.

Relief claimed and grounds

1. [6]

   I will consider first the plaintiff’s application for review of Dr Burns’ MAC. If relief should be granted in respect of that decision it would become unnecessary to consider judicial review of the proper officer’s refusal to refer the medical assessment under s 63 to an appeal panel. The relief claimed in respect of Dr Burns’ decision is:

   1. (1)

      an order in the nature of certiorari setting aside the MAC in relation to whole person impairment of the first defendant and

   2. (2)

      an order that the matter be remitted to SIRA for determination of the first defendant’s whole person impairment by a different medical assessor, according to law.

2. [7]

   Grounds of review are set out in the summons, accompanied by multiple paragraphs of explanation and elaboration. The grounds all concern alleged “legal and/or jurisdictional error” with respect to Dr Burns’ assessment of the degree of impairment of the first defendant’s shoulders. The grounds may be condensed to the following propositions:

The motor accident and alleged injuries

1. [8]

   Various medical reports and medical certificates provide the following outline of the circumstances from which the first defendant’s claim for compensation arises. He was born in 1954 and arrived in Australia from South Africa in 2001, at the age of 46. From about that time he was self-employed running a cheesecake shop, until December 2013 when he commenced to run a post office branch. The applicant has stated that on 12 February 2014 he was driving a Toyota Corolla motor vehicle in Newcastle and stopped behind another vehicle at traffic lights. He was wearing a seatbelt. While waiting at traffic lights, holding the steering wheel, a Ford Falcon ran into the rear of his car. The first defendant states that his vehicle was pushed forward and he was thrown back in his seat, then forward and to his right side, hitting the door. His car then struck a stationary vehicle ahead and he was thrown forward again. This description was given to Dr Ashwell, a Medical Assessor on 29 March 2017 and is substantially the same as descriptions of the accident that the first defendant has given on other occasions.

2. [9]

   The first defendant says that his vehicle was written off. Police officers were nearby on other duties and attended the accident. An ambulance was called at 1:50pm, indicating that the accident had occurred shortly before that time. The ambulance officers made a contemporaneous record that included the following:

3. [10]

   The first defendant was taken to the John Hunter Hospital where he was assessed and then discharged the same day. The discharge letter referred to “MVA with whiplash injury” and recorded that the first defendant was discharged on analgesics, his general practitioner “to arrange [Outpatients Department] physio/remedial massage”. No symptoms or signs with respect to the first defendant’s shoulders were recorded. There is no indication that the first defendant made any complaint to hospital staff with respect to an injury to either shoulder, such as would have prompted specific examination.

Causation of rotator cuff tears to left shoulder

1. [11]

   The first defendant consulted a general practitioner, Dr Jones, 10 days after the accident, on 22 February 2014. He complained to Dr Jones that he:

2. [12]

   Dr Jones referred the first defendant for an ultrasound examination of his left shoulder and an x-ray of his cervical spine. The radiologist’s report is dated 3 March 2014. The part concerned with the left shoulder was in these terms:

3. [13]

   Upon receipt of this report Dr Jones referred the first defendant to Dr Eward Bateman, an orthopaedic surgeon, by letter of 3 March 2014. Dr Jones wrote:

4. [14]

   It appears from Dr Bateman’s subsequent letter of 7 April 2014 that he saw the defendant shortly before 5 April. Dr Bateman reported:

5. [15]

   On the basis of the first defendant’s stated symptoms, Dr Bateman’s examination of him and the radiologist’s report on the ultrasound of the left shoulder, Dr Bateman expressed the following opinions in a report to Dr Jones of 7 April 2014:

6. [16]

   This report provides no orthopaedic or biomechanical explanation of how a “large full thickness tear of the supraspinatus” tendon, or any tear of the infraspinatus, could have been caused to the first defendant’s left rotator cuff by the motor vehicle accident as described by him. Soft tissue injury to the neck is commonly described in damages claims by drivers and passengers of motor vehicles that sustain rear end collisions, including where a front end collision has ensued. The biomechanical causation of that type of injury self-evidently involves the body being heavily accelerated and then decelerated in the horizontal plane. The body is restrained by the upright back of the seat and by the seatbelt and it therefore moves forward suddenly then stops suddenly with the corresponding movement of the vehicle. It is well understood that this acceleration and deceleration of the body causes “whiplash” to the neck because of the inertia of the head. In contrast to such cases of soft tissue injury to the neck, there is no obvious or self-explanatory means by which the rotator cuff tendons of either shoulder could be or would be torn by the first defendant’s involvement in the collision that he has described.

7. [17]

   In descriptions of the accident given by the first defendant on various occasions he has never claimed that he suffered any impact to his left shoulder or any force to his left arm that might have been transmitted to the shoulder. He has never suggested that either arm was braced in such a manner that force would have been imparted through the arms to cause a sudden load on either shoulder. Even if the first defendant’s arms had been braced in a stiff, straight-ahead fashion prior to the rear end impact, the force of that impact would have accelerated the vehicle forward and pressed the first defendant back into his seat. It would have reduced any bracing force of his arms upon his shoulders, not increased it. The subsequent collision with the car in front is described as having occurred immediately after the rear end impact, as would be expected. It has not been suggested by the first defendant that he rearranged himself to brace his arms prior to the second, front end impact. On the contrary, the first defendant describes having been thrown to his right side by the initial collision.

8. [18]

   The radiologist found on 3 March 2014, only two weeks after the accident, that the “thickening of the greater tuberosity [of the left humerus was] in keeping with rotator cuff degeneration”: see [12] above. In the absence of any scientific reasoning from Dr Bateman to support his opinion, his statement of 7 April 2014 that the pain and lack of mobility in the first defendant’s left shoulder is “certainly directly related to the motor vehicle accident” is not reconciled with the radiological evidence of degeneration. The Court is aware that age-related damage to rotator cuff tendons, including full thickness tears, is notoriously common in men of the first defendant’s age. It is evident from the radiologist’s report that such tears are associated with sclerosis of the greater tuberosity, which I take to be an accumulative process. Dr Bateman’s opinion on causation does not address the timeline for such a change in the head of the humerus; nor does it address any conflict between that timeline and Dr Bateman’s pronouncement that the full thickness tear of the supraspinatus tendon had occurred only two weeks before the ultrasound.

9. [19]

   After a delay of nine months following the report of 7 April 2014, on 19 January 2015 Dr Bateman carried out an arthroscopic rotator cuff repair of the first defendant’s left shoulder. Dr Bateman’s operation report included the following:

10. [20]

    The acromioplasty performed by Dr Bateman was the shaving of a small amount of bone from the acromion, presumably to remove or reduce the spur. Dr Bateman’s reference to a “large acromial spur” is to an osteophyte or projection of bone that has grown from the acromion. The acromion is situated close to the clavicle and the head of the humerus in such a position that a spur projecting from it may impinge upon the supraspinatus tendon. There is no suggestion in Dr Bateman’s reports that the spur had grown, or could have grown, during the interval of nine months from the date of the accident. Dr Bateman’s report on his operation of 19 January 2015 does not particularise the shape of the spur or the part of the acromion from which it projected. The report does not address whether the spur may have developed with ageing and caused impingement of a rotator cuff tendon, in turn causing a tear; or whether the rotator cuff tears may have occurred first and caused the growth of the spur as a result of joint instability; or any other causative possibility.

11. [21]

    The tears to the two rotator cuff tendons are described as both “massive” and “retracted”. I infer that the retraction is a consequence of the tendons being fully severed, leaving the supraspinatus and infraspinatus muscles, respectively, to retract against no resistance and to draw the ruptured tendons away from their normal anatomical position. No opinion is expressed by Dr Bateman about the duration over which these tendons must have remained torn through their full thickness in order to have become retracted to the extent that he observed in January 2015. In particular, the doctor says nothing about whether the degree of retraction was consistent with it having occurred over the 11 months following the accident, up to the date of the operation. There is no description of the degree of any consequent wasting of the supraspinatus and/or infraspinatus muscles or of whether fatty infiltration had commenced. There is no opinion upon whether the degree of any wasting or fatty infiltration would support an inference as to the length of time for which the tendons may have been fully torn and retracting.

12. [22]

    On 3 May 2016 the first defendant was seen by Dr Noll, an orthopaedic surgeon retained by the plaintiff. Dr Noll found that on formal examination the first defendant appeared to have a restricted range of shoulder movement on both sides and that he complained of pain at the extremes of the range. However discrepancies were noted between these findings and the pain-free range that was apparent from observation of the first defendant’s spontaneous movements. Dr Noll concluded:

13. [23]

    Dr Noll’s next report, dated 23 September 2016, contained no expression of opinion regarding causation of the first defendant’s rotator cuff tears at the left shoulder. He saw the first defendant again on 31 October 2017 and in his report of that date, after referring to Dr Bateman’s report of 7 April 2014, he said:

14. [24]

    In a further report of 20 July 2019 Dr Noll was more definite in attributing the rotator cuff damage at the first defendant’s left shoulder to the accident. He said:

Causation of rotator cuff tears to right shoulder

1. [25]

   At the first defendant’s initial consultation with his general practitioner, Dr Jones, the doctor did not record any complaint with respect to the right shoulder. In Dr Bateman’s report of 7 April 2014 he described the first defendant’s presentation to him on about 5 April as “in regard to bilateral shoulder injuries” but, despite describing “the shoulder” as “sore”, Dr Bateman did not record any symptoms specific to possible recent damage to a rotator cuff tendon of the right shoulder.

2. [26]

   Dr Bateman referred the first defendant for an x-ray of the right shoulder, which was carried out on 5 April 2014. The radiologist reported that there was no recent or past fracture and no arthropathy; that is, joint disease, such as any form of arthritis. The radiologist’s opinion in respect of the x-ray of the right shoulder was expressed as follows:

3. [27]

   In a letter to Dr Jones dated 20 April 2015 Dr Bateman reported on the first defendant’s recovery from the operation on the left shoulder. He also said this:

4. [28]

   An ultrasound study of the right shoulder was performed on 6 August 2015 and the following was reported by the radiologist:

5. [29]

   Dr Bateman wrote to the plaintiff’s claims manager on 20 October 2015 in an endeavour to justify payment by the plaintiff, as third-party insurer, for an MRI scan of the right shoulder. Dr Bateman said that the scan “should be considered compensable” on the following basis:

6. [30]

   So far as appears from the evidence tendered in this Court, the proposition that the first defendant had “a normal [right] shoulder prior to the accident” depends entirely on the first defendant’s assertion regarding his pre-accident condition. Dr Bateman’s claim that the first defendant “documented” that the right shoulder was “injured in the accident” is unsupported by any document tendered in this proceeding. The height of support for this appears to be Dr Bateman’s acceptance of the first defendant’s self-report of no pre-accident shoulder symptoms, together with Dr Bateman’s own unreasoned assertions of causation.

7. [31]

   On 19 November 2015 X-ray and ultrasound studies of the right shoulder were carried out. The radiologist reported as follows:

8. [32]

   On 8 December 2015 Dr Bateman wrote to the first defendant’s solicitors to provide further support for requiring the plaintiff to pay for an MRI scan of the first defendant’s right shoulder. The doctor expressed the following opinion:

9. [33]

   Contrary to the statement in the first paragraph of the above quotation, Dr Bateman had not diagnosed a rotator cuff tear of the right shoulder when the first defendant initially presented on 7 April 2014. His report of that date identified only a tear of the left supraspinatus “possibly involving the infraspinatus”: see [15] above. As for the statement in the second paragraph of the quotation, Dr Bateman’s attribution of the accident as “a substantial contributing factor to his presentation with pain and difficulty lifting the arms above the shoulder height” was in this letter still unsupported by any postulated mechanism of causation. This was conspicuous in relation to the right shoulder, with respect to which Dr Bateman had seen fit not to propose surgery during nearly 2 years since the accident, notwithstanding his opinion in the last paragraph of the letter that delay in repair of a torn rotator cuff tendon would reduce the prospect of a favourable outcome from the procedure.

10. [34]

    As referred to at [22] above, when Dr Noll examined the first defendant and considered the available medical records on 3 May 2016, he found no clear indication of a causal relationship between the first defendant’s claimed injury to the right shoulder and the subject accident. On 23 September 2016 Dr Noll reviewed an apparently complete set of available medical records. On the basis of that review he reported as follows:

11. [35]

    On 3 April 2017 Dr Ashwell, a Medical Assessor, issued a certificate by way of determination of the issue whether the requirement for an MRI of the right shoulder, as proposed by Dr Bateman, was causally related to any injury sustained in the accident. Dr Ashwell conducted his own examination of the first defendant and reviewed documentation, including imaging studies of the right shoulder and reports of Dr Bateman. Dr Ashwell expressed this conclusion:

12. [36]

    As with all of the medical opinions on causation in this case, Dr Ashwell’s certificate is devoid of any biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation of the first defendant’s rotator cuff tears at the right shoulder. Dr Ashwell’s conclusion rests on nothing more than the first defendant’s denial of any pre-accident symptoms. The doctor offers no reconciliation of his view with the absence of complaint of right shoulder symptoms at the first consultation with Dr Jones; or the absence of any radiological indication of tendon damage at any time prior to the ultrasound of 6 August 2015, 18 months post-accident. At that date the right shoulder was affected by subacromial bursitis, causing impingement, and a full thickness tear at the attachment of the supraspinatus. Dr Ashwell offers no explanation of a mechanism by which any of that could have been caused traumatically on 12 February 2014, let alone an explanation of how trauma damage could have remained substantially asymptomatic for 18 months.

13. [37]

    On 5 July 2017 Dr Bateman noted that an MRI scan of the right shoulder showed that the rotator cuff was “now too far gone to be repaired” and that there was significant fatty infiltration of the supraspinatus muscle belly and the supraspinatus tendon had retracted back to the level of the glenoid margin. Upon those findings Dr Bateman recommended a reverse right shoulder replacement.

14. [38]

    On 14 December 2017 Dr Noll issued a report following his review of Dr Bateman’s conclusion and recommendation. Dr Noll agreed that the status of the right shoulder revealed by the MRI scan justified the procedure recommended. Dr Noll said this:

15. [39]

    Contrary to Dr Noll’s conclusion, on 29 March 2018 Dr Ashwell issued a further Medical Assessment Certificate determining, in effect, that the motor vehicle accident was a substantial contributing cause of the damage to the rotator cuff tendons of the first defendant’s right shoulder and that the right reverse shoulder replacement recommended by Dr Bateman was therefore “reasonable and necessary in relation to the injury sustained in the subject accident” and was compensable. This conclusion was expressed to be based upon the following matters:

16. [40]

    Dr Ashwell’s reasoning in support of his conclusion was in these terms (emphasis added:

17. [41]

    Again, scientific reasoning is absent from this. No consideration appears to have been given by Dr Ashwell to the fundamental question of how the accident described by the first defendant could possibly have generated forces that would have caused traumatic injury to his right rotator cuff tendons.

18. [42]

    After considering Dr Ashwell’s Medical Assessment Certificate of 29 March 2018, in a report of 29 July 2019 Dr Noll maintained that:

Material submitted to Dr Burns’; his examination of the first defendant

1. [43]

   In late 2019 there was referred to Dr Burns, pursuant to s 60 of the Motor Accidents Compensation Act, the following issue for determination:

2. [44]

   The plaintiff’s submissions to Dr Burns, dated 4 November 2019, included the following:

3. [45]

   The plaintiff also submitted that Dr Ashwell’s finding that the right shoulder injury was related to the accident was not binding upon Dr Burns. It was submitted that Dr Ashwell had “accepted [the first defendant’s] complaints over the lack of contemporaneous complaint of injury”.

4. [46]

   The plaintiff submitted to Dr Burns, for consideration in his assessment, all of Dr Noll’s reports (6 in total) and two surveillance reports prepared by Kylie King of Quantumcorp. The first surveillance report commented upon film of the first defendant that was exposed for approximately 133 minutes during 74.5 hours of surveillance on 11-15 November 2019. The report is 46 pages long and incorporates a very large number of still photographs of the first defendant, extracted from the surveillance footage. The author’s summary description of what had been observed, supported by the photographs, included the following in relation to the first defendant’s complaints about his shoulders:

5. [47]

   The second surveillance report was in the same format, comprising 39 pages. Surveillance was carried out for 58 hours on 16-20 December 2019. Film was exposed for 58 minutes. The summary of observations, so far as relevant to the first defendant’ shoulders, was very similar to the summary in the first report. The first defendant attended his employment at the Post Office for 46.21 hours, being over 9 hours per day, and exhibited free and unrestricted movement in both shoulders, carrying bags and lifting them into and out of the boot of his vehicle on all days of surveillance, according to the author.

6. [48]

   The surveillance reports were accompanied by a USB device on which the surveillance film was recorded. It appears from Dr Burns’ references to this material in the reasons that form part of his MAC that he viewed the film.

Alleged failure to put surveillance of shoulder movements to first defendant

1. [49]

   The plaintiff submits that the observations recorded in the surveillance reports were “observations of non-clinical activities” that were inconsistent with Dr Burns’ findings on examination and with information obtained through the first defendant’s medical records. The plaintiff submits that cl 1.41 of the Permanent Impairment Guidelines required that the inconsistencies “be brought to the injured person’s attention” and that Dr Burns failed to do so.

2. [50]

   The first defendant’s complaints to Dr Burns regarding whole person impairment said to have resulted from the accident included alleged aggravation of osteoarthritis in his right hip and right knee. During the examination Dr Burns brought to the first defendant’s attention the inconsistency between all of his claims about injuries allegedly sustained in the accident - being injuries to both shoulders, his right hip and his right knee - and the contemporaneous medical records of the ambulance officers and of the John Hunter Hospital. Dr Burns reported the first defendant’s response to this inconsistency as follows:

3. [51]

   From Dr Burns’ formal goniometer measurements of the active range of movement in the first defendant’s hips, flexion on the right side was found to be 50° and on the left side 60°. Dr Burns recorded the following:

4. [52]

   Dr Burns also undertook formal goniometer measurements of flexion of the right knee and found that it “varied dramatically from 40° to 90°” and was “considerably inconsistent”. The doctor’s MAC continues as follows:

5. [53]

   Dr Burns summed up the inconsistencies between his formal measurements of range of movement, on the one hand, and “observations of non-clinical activities” (see cl 1.41) on the other hand, as follows:

6. [54]

   It is apparent on the face of the MAC that Dr Burns did not bring to the first defendant’s attention any inconsistency between his findings on formal measurement of the shoulder movements and the range of movement of both shoulders that may be seen in the non-clinical activities captured on the surveillance footage. The paragraph quoted above shows that Dr Burns was satisfied to accept the “substantial decrease in movement of both shoulders” that he measured with the goniometer, on two grounds. First, the restrictions of movement were “reproducible on repeated testing”. Secondly, Dr Burns considered that rotator cuff damage to both shoulders had been objectively established, through examination during surgery on the left side and by MRI on the right side. It is implicit in Dr Burns’ reasons that he thought the measured restrictions of movement were consistent with the extent of damage that he understood had been objectively ascertained.

Grounds 2 and 3 are established in relation to surveillance footage

1. [55]

   Dr Burns’ reasons do not state whether he found any inconsistency between the range of shoulder movements exhibited by the first defendant in the surveillance footage and the range that the doctor consistently measured with the goniometer. His reasons contain no comment at all upon the shoulder movements that were recorded during surveillance and that were described by the author of the reports as “free and unrestricted movement in both shoulders with no obvious sign of restriction noted”. It is conceivable that Dr Burns did not regard the recorded movements as inconsistent with his findings. For example, the deficits measured by Dr Burns included forward flexion (80° on each side, compared to a normal range of 180°) and abduction (50° on the right and 70° on the left, whereas a normal range would again be 180°). Perhaps Dr Burns did not find that any of the first defendant’s actions recorded in the video footage exceeded the limits of either flexion or abduction that were formally measured. It is not possible to say whether this is so because the doctor’s reasons do not state what range of movement he thought was exhibited in the non-clinical setting of the surveillance footage. Dr Burns does not state whether he agrees or disagrees with the description given by the author of the reports, namely, “free and unrestricted movement in both shoulders”.

2. [56]

   In the absence of expert evidence directed specifically to the subject, the Court is not qualified to determine whether there are in fact inconsistencies between the shoulder movements recorded during surveillance and the range measured by Dr Burns. In order to find on the face of the record that Dr Burns infringed cl 1.41 of the guidelines by failing to bring inconsistencies of this nature to the attention of the first defendant, it would have to appear that Dr Burns judged there to be such inconsistencies or, alternatively, that evidence from some other appropriately qualified medical expert was before him, to the effect that inconsistencies are apparent in the video recording - such that Dr Burns should have identified them. Inconsistency is not self-evident to a layman.

3. [57]

   I have not found amongst the stills any instances of the first defendant flexing either arm forward above shoulder height (90°) or abducting either arm above that level. I am not qualified to say whether the movements captured on the stills and/or in the video recording include forward flexion in excess of 80° or abduction in excess of 50° on the right or 70° on the left. Still less am I able to determine whether any of the other anatomical movements of either shoulder that were measured by Dr Burns appear to be exceeded in the surveillance footage. Putting aside range of movement, I am not able to say whether the carrying of parcels and suitcases by the first defendant, as recorded by the surveillance camera, is inconsistent with the load bearing capacity that he represented to the assessor and/or that Dr Burns assessed.

4. [58]

   For those reasons the plaintiff’s ground 1 cannot be sustained in so far as it concerns failure of Dr Burns to ask the first defendant about his shoulder movements under surveillance. An essential premise of the argument that cl 1.41 was infringed in this respect has not been established, namely, that material inconsistencies were exhibited during surveillance. I will consider, below, the plaintiff’s further contention that Dr Burns failed to comply with cl 1.41 by not bringing to the first defendant’s attention inconsistencies between Dr Burns’ own goniometer measurements and those of other medical practitioners on earlier dates.

5. [59]

   On the other hand, for the very reason that Dr Burns has not stated any conclusion about the extent of shoulder movement and capacity depicted on the surveillance footage, ground 3 is established. As can be seen from the extracts quoted at [44], the plaintiff’s submissions to the Medical Assessor dated 4 November 2019 conceded that injury to the left shoulder was caused by the accident but disputed that the resulting impairment exceeded 10% of the whole person. The submissions denied that the rotator cuff damage to the right shoulder was caused by the accident. The plaintiff’s written submissions said little about the degree of impairment of the left shoulder and nothing about the extent of impairment on the right side. However, the plaintiff’s provision to Dr Burns of the two surveillance reports, on 7 January 2020, with their detailed summaries of perceived discrepancies between, on the one hand, the first defendant’s complaints of impairment and, on the other hand, his daily activities, presented the Medical Assessor with a clearly articulated argument that these discrepancies showed that the restrictions of which he complained to medical practitioners were feigned.

6. [60]

   This argument was made by the plaintiff in the context that the prior medical reports of Drs Bateman, Noll and Ashwell included the results of bilateral clinical measurements of the range of shoulder movement that had been carried out by each of those doctors on various occasions. The results showed marked, albeit variable, restrictions of movement in both shoulders. By submitting the two surveillance reports to Dr Burns the plaintiff clearly conveyed its contention that the first defendant’s movements in nonclinical situations contradicted his purported results under repeated formal measurement.

7. [61]

   Dr Burns’ failure to express a conclusion upon the range of shoulder movement observable in the surveillance footage constitutes a failure to engage with a clearly articulated argument advanced by the plaintiff. It appears that Dr Burns passed over this because he found his own formal measurements to be reproducible on repetition and that he considered those results to be in line with what would be expected for the level of rotator cuff damage that he understood was objectively established through surgery and Magnetic Resonance Imaging. Nevertheless, Dr Burns was bound to address the contention advanced by the plaintiff and to give reasons for finding, either, that the movements seen in the surveillance footage are consistent with the restrictions found on formal examination, or, that those non-clinical movements are inconsistent with the goniometer measurements. This failure to engage with a clearly articulated argument is an error of law: Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26 at [28] (Gummow and Callinan JJ).

8. [62]

   The same considerations support ground 2 of the plaintiff’s application. Dr Burns’ reasons are materially deficient by reason of his failure to state whether he found inconsistency between the first defendant’s shoulder movements exhibited during surveillance and the range measured in the doctor’s rooms. Dr Burns’ finding on this, one way or the other, and the basis for the finding would be most important to his ultimate decision upon the extent of the first defendant’s whole person impairment. That is especially so in circumstances where consistency or inconsistency between the formal measurements and the first defendant’s activities in daily life would necessarily have a bearing upon the extent to which the doctor could rely upon the first defendant’s report of symptoms and restrictions for the purpose of assessing whole person impairment.

Ground 1 in relation to previous formal measurements of range of movement

1. [63]

   In the materials submitted to Dr Burns there were included the following results of formal measurements of the first defendant’s range of shoulder movements. In these tables Dr Burns’ results, as recorded in the MAC, are reproduced for comparison:

2. [64]

   The inconsistencies amongst past measurements and between those measurements and the ones Dr Burns’ recorded are self-evident. For example, with respect to the right shoulder, on three separate occasions in 2016, 2017 and 2019, Dr Noll measured flexion at only 60° yet the first defendant was able to achieve a 50% greater range for Dr Ashwell in March 2017 (90°) and 80° for Dr Burns. In abduction on the right side, Dr Noll measured only 30° in October 2017 yet Dr Ashwell found more than double that range in March 2017 (70°) and Dr Burns found 50°. Similarly, with respect to the left shoulder, Dr Noll measured flexion at only 60° in May 2016 and July 2019 but Dr Ashwell found 90° in March of that year and Dr Burns found 80°. Abduction of the left shoulder has been measured at between 40° and 90°.

3. [65]

   Although numerical differences are evident between the measurements taken on different occasions, the Court is not in a position to determine whether those differences are clinically significant. This would depend upon either the Medical Assessor himself having concluded that they were significant or it being apparent on the record that he should have found the differences significant. Dr Burns did not express any conclusion on the materiality of the discrepancies between his own and other doctors’ measurements and none of the medical reports that were before him contained opinions on the significance of those variances. I construe cl 1.41 of the guidelines as only requiring that inconsistencies be brought to the injured person’s attention if they are material from a clinical point of view. In those circumstances I am not able to say that the clause was breached by Dr Burns’ failure to raise with the first defendant the differences between the goniometer measurements at assessment and those of other doctors.

4. [66]

   The plaintiff’s submissions to the Medical Assessor did not clearly articulate any issue about discrepancies between past formal measurements of range of movement in the shoulders and measurements that might be obtained by the assessor himself. Logically no issue could be articulated because it could not be known in advance that an inconsistency would arise. It follows that the plaintiff’s ground 3 (failure to engage with a clearly articulated argument) cannot be sustained on the basis that Dr Burns did not address the other doctors’ goniometer results. Nor is there a failure to provide sufficient reasons in relation to that matter (ground 2). Dr Burns’ reasons quoted at [53] above are quite sufficient to explain why he was satisfied to rely upon his own measurements taken in January 2020, irrespective of results that may have been obtained on earlier occasions.

Orders

1. [67]

   I have found the plaintiffs grounds 2 and 3 established on the basis explained at [59]-[62] above. The failure to state sufficient reasons (ground 2) and to engage with a clearly articulated submission (ground 3) are both errors of law on the face of the record and they justify an order setting aside the MAC and remitting the matter to SIRA for reassessment. These conclusions make it unnecessary to determine the plaintiff’s claim for relief in relation to the decision of the proper officer not to refer the medical assessment of the first defendant to a review panel. The issue of the first defendant’s whole person impairment should be redetermined by a different assessor because reasoned consideration of the surveillance footage, so far as concerns the first defendant’s shoulders, has the potential to impact upon the issue of causation of the right side injury, upon which Dr Burns’ has expressed a concluded view in the MAC. My reasons for ordering that a different assessor be appointed are explained further in the following paragraphs.

2. [68]

   In its submissions to Dr Burns the plaintiff accepted that damage to the rotator cuff tendons of the left shoulder was caused by the accident. That position was no doubt taken in reliance upon Dr Noll’s opinion in his report of 20 July 2019 quoted at [24] above. I do not know whether the plaintiff will adhere to its concession in the reassessment or, if it wishes to resile, whether it will be permitted to do so. With respect to the right shoulder, the plaintiff has always disputed that the first defendant’s rotator cuff tendons on that side were damaged in the accident and I assume that this will again be an issue in the reassessment.

3. [69]

   It appears that up to now the sole basis upon which any of the doctors have accepted that the first defendant’s rotator cuff damage was caused or exacerbated by the accident is that he denies any pre-accident injury or symptoms. As the assessment is to be remitted on the grounds of lack of address to the plaintiff’s argument about the surveillance footage, when that material is further considered it may have a significant influence upon whether the assessor feels that he or she can rely upon the first defendant’s pre-accident history in this respect.

4. [70]

   Dr Burns accepted the plaintiff’s concession that rotator cuff damage to the left shoulder was occasioned by the accident and he found, contrary to the plaintiff’s arguments, that tendon damage on the right side was caused at the same time. Although the MAC does not expressly record that Dr Burns based this decision upon acceptance of the first defendant’s history of no prior symptoms, the doctor’s reasons disclose no other foundation. The following extracts from the MAC contain the reasons on that issue (with point numbers added for ease of reference in the consideration that follows):

5. [71]

   With respect, these reasons lack rigour or force. At point 5, the fact that “both shoulders were mentioned in the ambulance report” has no evidentiary value on the question because, as noted at point 3, the ambulance officers recorded only “non-specific bilateral shoulder pain with an apparent full range of movement” and at the hospital “no shoulder injuries were listed”. Dr Burns’ reasons do not articulate any scientific explanation of how “non-specific” shoulder pain could indicate traumatic injury to the rotator cuff tendons, on either side.

6. [72]

   Again with reference to point 5, the fact that Dr Jones arranged an x-ray of the right shoulder “within 8 weeks of the accident” is no evidence at all of injury to the right shoulder. Contrary to Dr Burns’ statements at point 5, he has identified no evidence of right-sided rotator cuff injury contemporaneous with the accident. It was not a matter of ignoring slight contemporaneous evidence; the doctor identified none.

7. [73]

   Dr Burns has not explained any biomechanical or anatomical mechanism by which the damage to the right rotator cuff tendons, which were not imaged or surveyed until the ultrasound of 6 August 2015, 18 months after the accident, could have been caused by it. His finding of causation of the right side tendon damage is, like all other medical opinions in the case concerning either of the first defendant’s shoulders, bereft of scientific explanation of forces that could have been imparted to the joint or any other aspect of a hypothesis of causation drawing on medical expertise.

8. [74]

   Dr Burns’ reasons say nothing about whether the age of the rotator cuff damage on the left side can be gauged by the condition of the tendons and their associated muscles as revealed by ultrasound on 6 August and 19 November 2015 and by MRI in July 2017 (see [28], [31] and [37]). In particular, he does not state whether the extent of deterioration that was identified by those studies can be reconciled with the proposition that the damage was done no earlier than the date of the accident, or was materially accelerated from that date. If this is a case of exacerbation of pre-existing degeneration, is the extent of tendon deterioration shown in the radiological studies - and the degree of sclerosis of the greater tuberosity of the humerus, identified two weeks after the accident - consistent with the progressive tendon damage having been at such an early stage before the accident as to have been asymptomatic? The reasons do not address this.

9. [75]

   At point 7 Dr Burns states that the left shoulder was injured in the collision. This is just a repetition of the equally unreasoned conclusions of Drs Bateman and Noll. In any event, evidence of, or a conclusion about, the cause of the left-sided injury could not determine, or even assist with, the issue of causation on the right.

10. [76]

    Dr Burns does not state in his reasons that he relied upon Dr Ashwell’s conclusion that tendon damage to the right side was caused by the accident. If he did, such reliance would have been unsound because of the lack of scientific reasoning for Dr Ashwell’s conclusion.

11. [77]

    Although Dr Burns stated at point 6 that he was “unable to place any significant emphasis on the history” given by the first defendant, necessarily he must have accepted so much of that history as amounted to a disclaimer of pre-accident shoulder injury or symptoms. A material consideration bearing upon whether the first defendant’s denial of pre-accident shoulder symptoms can be accepted is the existence, or absence, of a scientific hypothesis of biomechanical causation. If there is no such explanation - and none has been propounded to date – then that of itself would raise at the least an objective doubt concerning the veracity of the history. In addition, reasoned consideration of whether the surveillance footage contradicts the first defendant about his current symptoms and incapacity would bear upon the weight that could be attached to his history. For that reason a different assessor, who has not already expressed a conclusion about causation, should undertake the reassessment.

12. [78]

    The following orders will be made:

    1. (1)

       The time for the plaintiff to commence this proceeding is extended pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 up to and including 15 July 2020.

    2. (2)

       The decision of the third defendant in his Medical Assessment Certificate issued on 21 January 2020 under Part 3.4 of the Motor Accidents Compensation Act 1999 in relation to whole person impairment allegedly suffered by the first defendant is set aside.

    3. (3)

       The matter of the assessment of whole person impairment of the first defendant is remitted to the second defendant for redetermination by a medical assessor other than the third defendant according to law.

    4. (4)

       The first defendant is to pay the plaintiff’s costs of these proceedings.