Wehbe v Insurance Australia Ltd t/as NRMA Insurance Ltd

1. [1]

   The Plaintiff was injured in a motor vehicle accident on 30 October 2010. The third party insurer, NRMA Insurance Ltd, disputed the degree of Whole Person Impairment and, accordingly, the matter was referred to the Medical Assessment Service of the Motor Accidents Authority for determination.

2. [2]

   The Plaintiff was, relevantly, examined by Dr Richard Crane on 25 February 2014. Dr Crane issued a certificate on 6 March 2014 and found that of the injuries referred to him for assessment none was related to the motor vehicle accident. The list of injuries to be assessed were:

3. [3]

   The Plaintiff applied for and was granted a review of the medical assessment by Dr Crane. The certificate by the Review Panel dated 20 January 2015 assessed the injuries caused by the motor accident as not greater than 10% and found that there were nil injuries related to the motor accident.

4. [4]

   The Plaintiff now seeks an order in the nature of certiorari quashing the decision of the Medical Appeal Panel (said wrongly in the Summons to be dated 15 December 2014), an injunction preventing the Defendants from acting or taking any further steps in reliance on the assessment decision and an order in the nature of mandamus remitting the application to the Medical Assessment Service for reallocation to an appeal panel for determination of the matter according to law.

5. [5]

   Six grounds were put forward for these orders.

Factual background

1. [6]

   In answer to question 25 which asked what her injuries were from the accident she said:

2. [7]

   In answer to question 26 which asked “How do the injuries affect you now?” she answered:

3. [8]

   She identified the doctors who had treated her injuries since the accident as Dr Mazen Said (in respect of which treatment was not ongoing), Dr S Khalil (in respect of whom treatment was ongoing) and a psychologist.

4. [9]

   She disclosed in answer to a question that she had had an injury to her back in January 2009. The part of the claim form required to be completed by the claimant’s doctor was completed by Dr Khalil. He noted that the date of the examination was 28 February 2011. Under the heading “Medical diagnosis or description of injury” he wrote:

5. [10]

   Under the heading “Clinical findings (symptoms or results of any investigations)” Dr Khalil wrote:

6. [11]

   The first time the Plaintiff saw a doctor after the accident was on 18 November 2010 when she saw Dr Said. His notes relevantly read:

7. [12]

   The next consultation was with Dr Said on 24 November 2010 where the Plaintiff was complaining of back pain in the dorsal spine. The reason for the contact was said to be “? Bilateral breast reduction” which appears to have been related to the longstanding dorsal spine discomfort.

8. [13]

   The Plaintiff consulted Dr Said again on 14 January 2011 with the reason for contact being pelvic inflammatory disease.

9. [14]

   The Plaintiff saw Dr Said again on 19 January 2011. The reason for contact was tinea corporis infection and neck pain with radiculopathy. Dr Said noted that she had had neck pain with radiculopathy for two years and that she had had an x-ray for her cervical spine two years ago although Dr Said put two question marks after that statement. He requested a CT of her cervical spine because of the neck pain with the radiculopathy. It may be noted that there is no mention in Dr Said’s notes at any consultation of the motor vehicle accident.

10. [15]

    In a letter written to the Medical Assessment Service by the Plaintiff’s solicitor on 18 March 2014 it was said that Dr Said advised the Plaintiff that he did not do third party claims and that she should see another GP for assistance. It was in those circumstances that she consulted Dr Al-Taiff on 8 February 2011. Dr Al-Taiff’s notes record that the Plaintiff was involved in a motor vehicle accident in November and that she had had right shoulder and neck pain.

11. [16]

    Subsequently the Plaintiff consulted Dr Khalil who I was informed was in the same practice as Dr Al-Taiff. His notes are very difficult to read. The date appears to be 28 February 2011. There is a reference in them to the neck, although in what context cannot be discerned. There is also a reference to a motor vehicle accident on 30 October 2010

12. [17]

    The Plaintiff underwent a CT scan of her cervical spine on 7 March 2011. That showed a small posterior disc protrusion at C3/4 and at C4/5 impinging slightly upon the anterior aspect of the theca. The report said:

13. [18]

    Dr Khalil provided a report to the Plaintiff’s solicitors on 3 March 2012. He noted the head on collision which occurred on 30 October 2010 and that as a result of the accident the Plaintiff sustained multiple injuries to her neck, right shoulder and low back. Dr Khalil said that the Plaintiff reported pre-existing back pain and anxiety.

14. [19]

    On 16 August 2011 the Plaintiff had an MRI of the cervical spine. That disclosed that at the C4/5 level there was a mild posterocentral disc protrusion impinging on the thecal sac and at C5/6 there was a large posterocentral disc extrusion which was compressing the anterior thecal sac and the anterior spinal cord.

15. [20]

    The Plaintiff was referred by Dr Khalil to the neurosurgeon Dr Simon McKechnie. He saw the Plaintiff on 8 September 2011. His report dated 10 December 2014 to Dr Khalil after first seeing the Plaintiff on 8 September 2011 discloses that he was told about the motor vehicle accident and her complaints of persistent neck pain radiating into the jaw, hand and across the shoulders, worse on the right side, but there was no indication in that report or any other of his reports that he was told that the Plaintiff had suffered from neck pain and radiculopathy for some two years prior to the accident. (I should mention for clarity that 9 out of 11 reports prepared by Dr McKechnie are dated 10 December 2014 although it is clear from most of them that they were written on or just after each of the days he saw the Plaintiff.)

16. [21]

    When the Plaintiff first saw Dr McKechnie she was pregnant and any consideration of an operation was delayed until after the birth of the child. She saw Dr McKechnie again on 21 June 2012 having given birth and ceased breast feeding. Dr McKechnie advised that she should undergo an anterior C5/6 discectomy and fusion with cage and bone substitute. On 3 August 2012 the First Defendant agreed to pay for the operation on a without prejudice basis.

17. [22]

    On 22 August 2012 the Plaintiff underwent the procedure by Dr McKechnie. She subsequently saw Dr McKechnie on a number of occasions where she continued to complain of chronic neck and left arm pain together with lower back pain. Dr McKechnie said that a further MRI of the cervical spine demonstrated no residual nerve root impingement at the operative site. He referred her to a pain management specialist.

The Panel’s reasons

1. [23]

   To understand the complaints made by the Plaintiff of the Review Panel’s assessment it is necessary to set out the substantive parts of the Review Panel’s certificate.

Submissions

1. [24]

   The Plaintiff submitted that these grounds related to the failure of the Panel to apply the MAA’s Permanent Impairment Guidelines and common law principles of causation including the Civil Liability Act 2002 (NSW). The Plaintiff submitted that the Panel limited their reasons to the absence of clinical records to substantiate the significant injuries. In that way the Panel failed to consider whether the accident had materially contributed to the condition required by cl 1.9 of the Guidelines and the Civil Liability Act s 5D.

2. [25]

   The Plaintiff submitted that in finding that any exacerbation had resolved the Panel appeared to have ignored the findings of the scan of 7 March 2011 and the MRI of 16 August 2011. The Plaintiff submitted that there was no explanation as to how she would have required the cervical surgery performed by Dr McKechnie on 22 August 2012 but for the motor vehicle accident. There was no explanation as to the basis for the finding of the deterioration between the two scans.

3. [26]

   The Plaintiff submitted that the Panel simply adopted the reasons of Assessor Crane in determining causation. At no time did the Panel consider the relevant question “Would this injury or impairment have occurred but for the accident?”

4. [27]

   The Plaintiff submitted that the Panel ought to have examined the Plaintiff and given her the opportunity to give her history and provide an explanation for the cervical fusion and the deterioration between the scans of March 2011 and June 2012.

5. [28]

   The Plaintiff submitted that there was no evidence for the Panel’s alternative explanation for the cervical fusion, namely, that it was related to a condition that was not related to the motor vehicle crash. The Plaintiff submitted further that there was no evidence that there was a deterioration in the Plaintiff’s condition between the two scans given that the MRI scan is a more sophisticated investigation. The alternative explanation made without evidence amounted to legal unreasonableness.

6. [29]

   The Plaintiff submitted that the Panel failed to give adequate reasons for its “alternative explanation” for the cervical fusion. The Plaintiff submitted that there was no reasoning process explaining how the deterioration occurred between the two scans. The Plaintiff submitted that the Panel provided no explanation of how the exacerbation of the existing spondylosis would have resolved so that what was observable on the scans was unrelated to the accident.

First Defendant’s submissions

1. [30]

   The First Defendant said that it was unclear what the legal basis for these grounds were – whether it was a jurisdictional error in failing to ask itself the right question or whether there was an error of law in not taking into account relevant matters being certain documents and reports available to the Panel.

2. [31]

   The First Defendant submitted that the Panel had a discretion to determine whether assessment of the Plaintiff’s present position required an examination. In considering the question of causation the Panel applied the test of causation described in the Permanent Impairment Guidelines but found that the issue of causation was not met. The Panel had no evidence of any new complaint about the cervical spine or of its condition until 19 January 2011. That led the Panel to conclude that it could not answer affirmatively that the injury would not have occurred but for the accident. There was at least an evidentiary onus on the Plaintiff to provide the Panel with medical evidence of her injuries and that they were the result of the accident. This evidence was peculiarly within her knowledge and within her capacity to obtain it from treating medical practitioners. The Review Panel gave the Plaintiff the opportunity to provide it.

3. [32]

   The First Defendant submitted that the Review Panel gave notice to the Plaintiff on 11 July 2014 of its directions which included an opportunity to advise immediately in writing providing reasons if she objected to the review being conducted without an examination. She was advised that if no objection was received by 27 August 2014 the Panel would assume that there was no objection to the review being conducted without an examination. The Plaintiff made no written objection. The Panel had no material that was not previously available to the Plaintiff. No new issues were considered that were not known to the Plaintiff. The Plaintiff was given the further opportunity to provide full clinical records from Dr Said, Dr Al-Taiff and Dr McKechnie. In this way the First Defendant submitted the Plaintiff was not denied procedural fairness.

4. [33]

   The First Defendant noted that this ground raised similar considerations to those raised in grounds 1 and 3. The First Defendant submitted that there was evidence of pre-existing degenerative changes. The clinical notes of Dr Said of 18 November 2010 and 19 January 2011 referred to dorsal spine pain and neck pain with radiculopathy for years prior to the accident.

5. [34]

   The First Defendant submitted that the Panel sets out its actual path of reasoning drawing particular attention to what was found in the clinical notes of Dr Said and the otherwise absence of contemporaneous medical records concerning the condition of the Plaintiff’s cervical spine after the accident. There was no requirement for the Panel to refer to the other medico-legal reports which were not provided to the assessor or to the Panel and were not requested by the Plaintiff.

Consideration

1. [35]

   When properly distilled, the Plaintiff’s complaints fall into three areas, (1) the issue of causation, (2) procedural fairness, and (3) inadequate reasons. I will consider the matter using those headings.

(1) Causation (Grounds 1, 3 and 4)

1. [36]

   The First Defendant submitted that it was not clear from the oral submissions of the Plaintiff if the issue in relation to causation was a complaint that the Panel had not asked the correct question (as the written submissions suggested) or whether the issue had become that the Panel failed to take account of relevant considerations such as what appeared on the claim form (as the oral submissions suggested).

2. [37]

   Although the Plaintiff’s position did appear to shift a little in that way, I understood the main complaint of the Plaintiff to be that the Review Panel had not properly addressed itself to the issue of causation, and that one error they made in that regard was failing to have regard to material that pointed to the neck problems having come from the motor vehicle accident. The First Defendant did not suggest that it was disadvantaged by the Plaintiff’s approach, with its senior counsel regarding the failure to take account of relevant considerations as a subsidiary version of ground 1.

3. [38]

   The task being undertaken by the Panel was set out in s 58(1)(d) of the Motor Accidents Compensation Act 1999 (NSW). That paragraph provides:

4. [39]

   The Permanent Impairment Guidelines state in relation to causation of the injury:

5. [40]

   The Panel had the difficult but not uncommon task of endeavouring to reach a conclusion on causation where there was evidence of a pre-existing injury or condition to the same part of the body that may have been injured in the accident under consideration. That was no doubt why they were concerned to see all contemporaneous records of complaints and examination of the Plaintiff.

6. [41]

   What was tolerably clear in the present case was that the contemporaneous material demonstrated two things. The first was that for approximately two years before the accident the Plaintiff had suffered from neck and back pain which the Panel concluded was most likely due to cervical spondylosis. The second matter was that there appeared to be an absence of the mention of any accident and the absence of complaint or injury identified to the doctor (Dr Said) that the Plaintiff first saw after the accident, and in that regard it may be noted the first time she consulted a doctor after the accident was some 19 days later on 18 November 2010. The first mention of either the accident or complaint about a neck injury in an accident was to Dr Al-Taiff on 8 February 2011.

7. [42]

   It was in the light of that evidence that the Panel, having noted the pre-existing neck pain for two years most likely due to cervical spondylosis, the fact that the crash might have caused a soft tissue injury and temporary aggravation of the pre-existing spondylosis, the deterioration shown on the imaging some ten months after the accident and the fact that there was no significant injury to the cervical spine documented in the medical material, provisionally concluded that the criteria for causation in the Guidelines could not be met.

8. [43]

   The Panel concluded also from the CT scan that there was no indication of cervical disc injury in the motor accident. The Plaintiff criticises the Panel for not taking account of the fact that the MRI in August 2011 showed significant disc extrusion and that an MRI is a more sophisticated investigation. The Plaintiff says that the Panel concluded without evidence that there was a deterioration between the CT scan and the MRI and that the panel provided no explanation for that deterioration. Those are matters of medical judgment and the complaints trespass into the area of a merits review. Similarly, the Plaintiff’s complaint that the Panel’s conclusion that the exacerbation of the pre-existing spondylosis had resolved without explanation is not a challenge to an error of law or a jurisdictional error but a complaint about a medical judgment.

9. [44]

   The Panel did, in any event, provide reasons for the deterioration, being the Plaintiff’s pregnancy or the natural progression of the underlying spondylosis. The panel was not required to be satisfied of any one cause in that regard. The causation issues concerned injury caused by the accident and permanent impairment from the injury.

10. [45]

    The Plaintiff asserted that the Panel simply adopted the reasons of Assessor Crane. I do not agree. The Panel said that they agreed with Assessor Crane’s conclusion on the causation issues but they did not purport to adopt his reasons. Rather they provided their own reasons which related to the absence of clinical records to substantiate that significant injuries occurred in the accident, the findings on the CT scan, the pre-existing spondylosis and that the need for the cervical fusion arose from a cause unrelated to the motor accident, namely, the spondylosis,

11. [46]

    The Plaintiff submitted that the Panel limited its reasons to the absence of clinical records to substantiate that the injuries were sustained in the accident. As I have indicated at [42], [43] and [45], the Panel did not so confine its reasons. Unlike in Bugat v Fox [2014] NSWSC 888 at [31]-[32] the Panel has not regarded the absence of contemporaneous records as determinative, although such absence was obviously significant.

12. [47]

    The Plaintiff submitted that the Panel failed to have regard to what appeared on her claim form where she described her injuries as:

13. [48]

    It may be noted that the claim form was dated 7 April 2011. That was more than six months after the accident, and it cannot have been regarded as contemporaneous as the medical records of Dr Said and Dr Al-Taiff. It is scarcely surprising in the light of the claim form’s lack on contemporaneity and the fact that Dr Said, although said by the Plaintiff to be a doctor who treated her for her injuries, did not mention the motor accident, that the Panel did not see the need to refer to the claim form. I do not consider that the Panel failed to have regard to a relevant matter in that way.

14. [49]

    The reasons given by the Panel, particularly in the passages highlighted above at [23], demonstrate that the Panel asked itself the correct question and properly applied the Guidelines when answering that question. No legal error is demonstrated. What the Plaintiff seeks to do by her submissions is to challenge the medical conclusions reached by the Panel.

15. [50]

    Grounds 1,3 (insofar as it concerns causation) and 4 should be rejected.

(2) Procedural fairness

1. [51]

   On 11 July 2014 the Motor Accidents Authority wrote to the Plaintiff’s lawyers referring to the application for review of the medical assessment. It identified the Review Panel. The letter went on to say:

2. [52]

   The Plaintiff did not seek to be examined by the Panel. Nevertheless, the Plaintiff now complains that the Panel did not examine her and did not provide her with the opportunity to give her history and provide any relevant information relating to the alternative explanation for the cervical fusion.

3. [53]

   In Sullivan v Department of Transport (1978) 20 ALR 323 Dean J (with whom Fisher J agreed) was dealing with a refusal to grant an adjournment, and said:

4. [54]

   That statement has been approved in the context of giving a party the opportunity to be heard upon some issue with which the decision maker is concerned: Re Coldham and ors, ex parte Municipal Officers’ Association of Australia and ors (1989) 84 ALR 208 at 219-220 and Jaksic v Insurance Australia Ltd, trading as NRMA [2013] NSWSC 1141 at [40].

5. [55]

   It is clear from the submissions made by both parties on the application to the Authority to review the Assessor’s decision that the history of the injury and disability that followed in the context of the absence of contemporaneous documentation was a significant matter for consideration. Where the Plaintiff was given the opportunity to undergo an examination by the Panel which would necessarily involve a history taking, it cannot be said that she has been denied procedural fairness when that opportunity was not taken up by her.

6. [56]

   Nor was there any obligation on the Panel under the Guidelines to arrange such an examination as the Plaintiff appears to suggest. Clause 16.21 of the Medical Assessment Guidelines relevantly provides:

7. [57]

   Clause 1.20 of the Permanent Impairment Guidelines relevantly provides:

8. [58]

   It is clear that the Permanent Impairment Guidelines are relevant both to the initial assessment as well as to any re-assessment by a panel. Clause 16.21 is directed only to a review panel. The two sets of Guidelines must be read together. Whereas an examination might generally be thought necessary when a claimant is first being assessed, such an examination might often be thought unnecessary where a panel is re-assessing a claimant who was examined by the assessor. It is a matter for the discretion of the panel and there is no obligation on the panel to conduct an examination: Peachey v Allianz Australia Insurance Limited [2015] NSWSC 728 at [60].

9. [59]

   In any event, where such an examination would be taking place almost four years after the accident, statements made to the Panel by the Plaintiff at such an examination would likely be regarded with considerably less weight than what appeared and did not appear in the contemporaneous documentation from the doctors the Plaintiff consulted. In that regard, the present case is a very different one from Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 where the Plaintiff had suffered mental harm and where the Court of Appeal considered that an assessment of her psychological injury required an interview by the Panel – see at [31] and [33] where the terms of the Psychiatric Impairment Rating Scale (PI Guidelines) were considered significant in that regard.

10. [60]

    Ground 2 is not made out, and to the extent that Ground 3 extends also to a failure to undertake an examination of the Plaintiff, that Ground is also rejected.

(3) Inadequate reasons

1. [61]

   The obligations with regard to the reasons that are to be provided are set out in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480. Although that case involved the Accident Compensation Act 1985 (Vic) it has been held that it is relevant to assessments under the Motor Accidents Compensation Act 1999 (NSW): Allianz Australia Insurance Limited v Mackenzie & Ors [2014] NSWSC 67 at [27].

2. [62]

   Relevant portions of Wingfoot are as follows:

3. [63]

   The only matter relating to the reasons of the Panel raised in the written submissions of the Plaintiff concerned the asserted failure of the Panel to explain how the deterioration of the cervical spine occurred between the CT scan and the MRI. This matter has been dealt with earlier at [43]-[44]. In short, explanations were provided although there was no obligation on the panel to provide them. The matter was one of medical judgment and was not germane to the causation question the panel had to decide.

4. [64]

   In oral submissions the Plaintiff widened the complaint to assert that the Panel did not provide explanations for the cause of the matters disclosed in the CT scan and for how the exacerbation to the spondylosis resolved so that what was disclosed on the scan resulted from the scan and not from the accident.

5. [65]

   The starting point is the approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 of what was said in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 that the reasons of an administrative decision-maker are not to be construed minutely and finely with an eye keenly attuned to the prescription of error.

6. [66]

   As the Guidelines make clear, part of an assessment of causation involves a medical determination. As noted earlier, part of what appears in the reasons of the Panel involves medical determinations. In a similar way to what was described in Allianz Australia Insurance Limited v Mackenzie [2014] NSWSC 67 at [59], the Panel was not required to provide reasons for every aspect of the assessment. Not the least reason for that is that parts of it involved medical judgment.

7. [67]

   The reasons of the Panel may be summarised in this way: the Plaintiff had pre-existing spondylosis; there was a lack of evidence including contemporaneous evidence of significant injuries sustained in the accident including (relevantly for neck injuries) significant shoulder injuries; the accident could be expected to cause a temporary aggravation of the spondylosis; the CT of 7 March 2011 indicated no cervical disc injury sustained in the accident; deterioration leading to the cervical fusion might have come from the Plaintiff’s pregnancy or the natural progression of the spondylosis; there was no permanent impairment from injuries sustained in the accident.

8. [68]

   No doubt, more detailed reasons could have been provided but the reasons given clearly satisfy the requirements of Wingfoot. It was not necessary for the panel to provide reasons for the other matters referred to by the Plaintiff ([63] above).

9. [69]

   Ground 6 should be rejected.

Conclusion

1. [70]

   I make the following orders:

   1. (1)

      Summons dismissed.

   2. (2)

      The Plaintiff is to pay the Defendants’ costs.