Mutawe v QBE Insurance (Australia) Ltd

1. [1]

   By a summons filed on 3 May 2024, the plaintiff seeks judicial review of a decision of the third defendant (Delegate), who is a delegate of the second defendant, the President of the Personal Injury Commission (President and Commission respectively). The Delegate refused to refer a medical assessment to a review panel of the Commission on the basis that, pursuant to s 7.26(5) of the Motor Accident Injuries Act 2017 (NSW) (MAI Act), the Delegate was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect (Decision).

2. [2]

   The plaintiff seeks a declaration, pursuant to s 69 of the Supreme Court Act 1970 (NSW), that the Decision and accompanying reasons are void and of no effect, an order in the nature of certiorari setting aside the Decision and those reasons, and any further orders that the Court deems necessary.

3. [3]

   As will be explained, the proceedings have a rather complicated and lengthy procedural history.

4. [4]

   For reasons which follow, I have found that the Delegate’s Decision is tainted by jurisdictional error (and/or error of law on the face of the record, having regard to s 69(3) of the Supreme Court Act). The Decision should be set aside. The plaintiff’s application for referral to a review panel under s 7.26 of the MAI Act should be remitted to the President for reconsideration according to law. Costs should follow the event.

Background summarised

1. [5]

   On 26 August 2020, the plaintiff was injured in a motor vehicle accident when a car collided with him as he walked across a street in Surry Hills. His physical injuries included a fractured jaw and facial scarring arising from the surgery to his jaw. It was not contested that the MAI Act was engaged. The plaintiff’s claim for compensation was refused by the first defendant, QBE Insurance (Australia) Ltd (Insurer), the CTP insurer of the driver involved in the accident. The Insurer is the only active defendant in the present proceedings.

2. [6]

   The plaintiff sought a medical assessment under Div 7.5 of the MAI Act. About eight months later, on 1 February 2023, the President of the Commission referred five medical disputes concerning different injuries suffered by the plaintiff to separate medical assessors. The assessment of the degree of permanent impairment resulting from the following particular injuries was referred to Dr Geoffrey (Paul) Curtin (the Medical Assessor):

   1. (1)

      “Mouth / jaw – fracture zygoma” (the zygoma is the bony arch of the cheek); and

   2. (2)

      “Skin / Scarring – Scarring below right eye pursuant to surgery”.

3. [7]

   The Medical Assessor conducted a clinical examination of the plaintiff on 31 March 2023. Shortly after, he issued a certificate and accompanying reasons dated 2 April 2023 (First Certificate and First Statement of Reasons respectively). The First Certificate certified that the injury of “scarring below right eye” gave rise to a permanent impairment of 0%. It did not record any degree of impairment in respect of the “Mouth / jaw – fracture zygoma” injury.

4. [8]

   The First Statement of Reasons described the injuries referred for assessment as “fracture zygoma-scarring below right eye pursuant to surgery”. Nevertheless, the Medical Assessor recorded that the plaintiff had complained that “following the accident, he could no longer place his full dentures into his mouth, because they caused discomfort, and that as a result he could only tolerate a soft diet”. Then, under the heading “Clinical Examination”, the Medical Assessor noted:

5. [9]

   On 7 June 2023, the Commission issued a combined certificate in respect of the plaintiff’s injuries. It assessed his whole person impairment as 3%, which reflected a certificate issued by another medical assessor in relation to different injuries (see MAI Act, s 7.23(8)(b), which applies where several medical assessments have been undertaken). The combined certificate noted that the assessment conducted by Medical Assessor Curtin resulted in a certificate which assessed the plaintiff’s degree of permanent impairment only in relation to scarring below his right eye as 0%.

6. [10]

   On 11 April 2023, nine days after the First Certificate had been issued, the Insurer’s solicitors wrote to Dr Robert Payten, an ear, nose and throat specialist, requesting that he conduct a medico-legal examination of the plaintiff. Senior counsel for the Insurer made the following submission as to why that report was procured:

7. [11]

   Dr Payten subsequently provided to the Insurer a report dated 22 June 2023. The report makes frequent reference to “a hard mass palpable at the apex of the right upper buccal sulcas” (ie, on the upper right gum), which prevented the plaintiff from wearing his dentures. In response to the Insurer’s question as to whether the plaintiff’s injuries were caused by the motor accident, Dr Payten opined: “The pain he experiences in the area of the right upper buccal sulcus is due to that fracture [of the right zygoma] and to the surgery required to reduce the fracture and fix it in place” (relevantly, the surgery to repair the fracture to the right zygoma was performed by operating upwards from inside the mouth). Dr Payten said that the plaintiff had a disorder of mastication (ie, difficulty chewing on hard food) caused by the accident. Dr Payten concluded that the plaintiff had suffered permanent impairment of 10%.

8. [12]

   On 5 July 2023, the Insurer served Dr Payten’s report on the plaintiff and asked that he “concede [his] injuries are not greater than 10% WPI”. (Under s 4.11 of the MAI Act, no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person caused by the motor accident is greater than 10%.)

9. [13]

   On 1 November 2023, the plaintiff applied for a further medical assessment on the basis of “additional relevant information about the injury”, namely Dr Payten’s report and his diagnosis of a “disorder of mastication”, which disorder “attracts in its own right an assessment of 10% WPI”. Among the documents provided by the plaintiff in support of his application for further medical assessment was a copy of Dr Payten’s report. The plaintiff submitted that he had a permanent impairment greater than 10% when the 3% figure in the combined certificate was added to the 10% figure assessed by Dr Payten .

10. [14]

    The power to refer a medical dispute for further medical assessment is contained in s 7.24 of the MAI Act:

11. [15]

    The combined effect of subss (2), (4) and (5) is that the President’s power to refer a medical dispute for further medical assessment on the application of a claimant or insurer is limited to the grounds identified by reg 13 of the Motor Accident Injuries Regulation 2017 (NSW) (MAI Regulations), which provides:

12. [16]

    By way of contrast, it may be noted that the Court’s power in s 7.24(1) to refer a medical dispute for further medical assessment is not limited to the grounds identified in reg 13. But that power is not relevant here.

13. [17]

    Returning to the background history, the plaintiff’s application for a further medical assessment was delegated by the President to Principal Member John Harris (the Principal Member) for determination. Notably, the Principal Member did not determine that application on its terms. Instead, on 30 November 2023, relying on the different power in r 112(1) of the Personal Injury Commission Rules 2021 (NSW) (PIC Rules) and with the consent of the parties, the Principal Member referred the First Certificate back to the Medical Assessor for correction on the basis that the First Certificate was incomplete.

14. [18]

    Rule 112 provides:

15. [19]

    Section 61 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) relevantly provides:

16. [20]

    Similar provisions to those in s 61(1), (9) and (11) of the MAC Act are contained in s 7.23(1), (7) and (9) respectively of the MAI Act.

17. [21]

    The terms of the r 112 referral required the Medical Assessor to “determine whether the [First Certificate] is incomplete” and, if necessary, to issue a new certificate as required by cl 73 of the Commission’s Procedural Direction PIC6 – Medical Assessments (PIC6).

18. [22]

    PIC6 was made by the President under s 21 of the Personal Injury Commission Act 2020 (NSW). The Insurer acknowledged that, unlike the PIC Rules, PIC6 is not a legislative instrument.

19. [23]

    It is desirable to set out cll 67-73 of PIC6:

20. [24]

    Returning now to the Principal Member’s reasons for referring the matter back to the Medical Assessor under r 112, the Principal Member noted that “it appeared that the jaw injury had not been previously assessed”. That is, it appeared that the Medical Assessor “did not assess the permanent impairment arising from the claimant’s Mouth / jaw fracture zygoma”.

21. [25]

    The Principal Member then noted that, two days prior, a different delegate of the President had written to the parties and “expressed an intention to have the certificate referred back to Medical Assessor Curtain [sic] so that he may complete the assessment” (emphasis added), and that each party had “indicated that they did not object to the proposed course of action via messages communicated through the [electronic case management] portal”.

22. [26]

    The “messages” referred to in the Principal Member’s reasons were not included in the materials in the Court Book.

23. [27]

    The Principal Member made no mention of Dr Payten’s report in his reasons for making the r 112 referral. Nor did he explicitly state that the plaintiff’s application under s 7.24 for a further medical assessment was incompetent because the First Certificate was incomplete (but, as will shortly emerge, that is the way the Delegate apparently interpreted the Principal Member’s reasons for acting under r 112 and not s 7.24).

24. [28]

    The Principal Member was silent as to whether or not Dr Payten’s report could be taken into account by the Medical Assessor, notwithstanding that it was plain that the plaintiff’s central objective was to have that report considered, as it constituted potentially significant further information on the degree of his physical impairment.

25. [29]

    In early December 2023, the same Medical Assessor issued a further certificate and statement of reasons (Second Certificate and Second Statement of Reasons respectively). No further clinical examination was conducted of the plaintiff. The degree of permanent impairment caused by the accident was again stated to be 0%.

26. [30]

    The Second Certificate and Second Statement of Reasons were substantially identical to the First Certificate and First Statement of Reasons with some minor additions to encompass the “Mouth / jaw – fracture zygoma” injury. The Second Certificate is dated 2 April 2023, being the date of the First Certificate, and 31 March 2023 is stated as the date of assessment, which again accords with the date recorded in the First Certificate.

27. [31]

    In respect of the jaw injury, the Second Certificate certified (emphasis in original):

28. [32]

    Bearing in mind that the Second Certificate was largely a replication of the First Certificate, the Medical Assessor recorded in a section in the Second Statement of Reasons headed “Submissions” that the plaintiff “did not produce any medical reports to support [his] claim” that he had suffered greater than 10% permanent impairment from the accident. Below that, under “Additional Late Documents”, it says: “No additional documents were provided”.

29. [33]

    Some changes were made in the Second Statement of Reasons under the heading “Determinations – Permanent impairment”. In particular, the Medical Assessor accepted that the accident caused the fractured zygoma, but noted “there is no evidence that [the plaintiff] sustained any injury to his mouth or jaw”. As such, the injury previously labelled “Mouth / jaw – fracture zygoma” was redefined as “face-fractured zygoma”, and separately, it was noted that the “injury to mouth/jaw” was not caused by the motor accident.

30. [34]

    There is no reference in the Second Statement of Reasons to Dr Payten’s report. Nor is there any reference to the Medical Assessor having considered whether the method of surgery to repair the fractured zygoma, which involved operating upwards through the mouth, was causally related to the plaintiff’s pain and mastication disorder.

31. [35]

    On 7 December 2023, a further combined certificate was issued incorporating the Medical Assessor’s assessment of the “Face – fracture zygoma” injury and his assessment of 0% permanent impairment relating to scarring below the plaintiff’s right eye.

32. [36]

    On 20 December 2023, using the Commission’s pro forma Form M02, the plaintiff sought a review of the medical assessment carried out by the Medical Assessor which resulted in the Second Certificate and Second Statement of Reasons. The application for a referral to a review panel was made pursuant to s 7.26(2) of the MAI Act.

33. [37]

    Section 7.26 relevantly provides:

34. [38]

    The plaintiff lodged submissions dated 18 December 2023 in support of his s 7.26 application. He contended that the Medical Assessor erred in two ways:

35. [39]

    As noted above, in her reasons, the Delegate said that she was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and accordingly refused to refer the matter to a review panel.

36. [40]

    In respect of the first alleged error, the Delegate’s reasoning was as follows:

37. [41]

    As to the second alleged error, the Delegate reasoned:

The judicial review challenge to the Decision

1. [42]

   The plaintiff claims that there are two reviewable errors in the Delegate’s Decision, which he contends constitute either jurisdictional errors or errors of law on the face of the record. The errors are identified in grounds 8(a) and (b) respectively in the summons. Those grounds (together with the related conclusory claim in ground 8(c)) are not ideally drafted. They are as follows:

2. [43]

   I understand ground 8(a) to claim that the Delegate erred in determining that Dr Payten’s report was not to be considered, or was not required to be considered, by the Medical Assessor. This is said to involve a misconstruction or misapplication of r 112 of the PIC Rules and cll 65-71 of PIC6. In the plaintiff’s submissions (but not in the summons) it was also claimed that the Delegate had misconstrued or misapplied cl 73 of PIC6.

3. [44]

   The plaintiff contended that because the Medical Assessor had not, in April 2023, assessed the jaw injury, including for mastication, that statutory task had to be done when the matter was returned to the Medical Assessor by the Principal Member under r 112. He submitted that the Delegate erroneously construed the relevant statutory and regulatory provisions, with the consequence that the “entire logic of the referral back was undermined” (see [31] of the plaintiff’s written submissions in this Court).

4. [45]

   On one view, ground 8(a) may also implicitly raise an ancillary point, which is alluded to at [32]-[34] of the plaintiff’s written submissions. It is that the Principal Member misconstrued his power in deciding to refer the matter back to the Medical Assessor under r 112 rather than dealing with the merits of the plaintiff’s application for further medical assessment which was based on the additional information disclosed in Dr Payten’s report. The plaintiff submitted at [33] of his written submissions:

5. [46]

   The plaintiff’s senior counsel confirmed in oral address, however, that the only decision the subject of judicial review challenge is that of the Delegate.

6. [47]

   In support of ground 8(a), the plaintiff submitted that the Delegate had an erroneous understanding of the scope of the power under r 112 and failed properly to recognise the Medical Assessor’s error in not engaging with the plaintiff’s clearly articulated case. The Delegate’s decision was described as one which was “not properly formed according to law, was illogical, took into account irrelevant considerations and misconstrued statutory provisions”, citing QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322 at [36].

7. [48]

   I understand ground 8(b) to be to the effect that the Delegate erroneously determined that the Medical Assessor’s limited reference to the plaintiff’s dietary restriction was a sufficient consideration of the plaintiff’s case which relied on Dr Payten’s report.

8. [49]

   In oral address, the plaintiff’s senior counsel explained that the claim was that the Medical Assessor failed to take a proper history in relation to the plaintiff’s mastication disorder because he used the “wrong temporal reference” in focussing upon the issue as at the time of the First Certificate and without reference to the Motor Accident Guidelines (Guidelines) to which Dr Payten referred in his report.

9. [50]

   I regard paragraph 8(c) of the summons as adding little to the two grounds set out in 8(a) and (b), other than to emphasise that the judicial review challenge relates to the Delegate’s purported exercise of her statutory function under s 7.26(2) of the MAI Act.

10. [51]

    The Insurer’s submissions in support of the validity of the Decision may be summarised as follows. First, it was made clear in the First Statement of Reasons that the Medical Assessor had undertaken a clinical examination of the plaintiff’s mouth/jaw and had given clinical consideration to the plaintiff’s claim that his dentures no longer fitted. Moreover, as the Second Statement of Reasons indicates, the Medical Assessor made no change to his findings upon clinical examination, apart from adding various sentences. In those reasons he made clear that there was a distinction between the face-fractured zygoma and any injury to the mouth/jaw; that the face-fractured zygoma was caused by the accident but had resolved; and that any injury to the plaintiff’s mouth/jaw was not caused by the accident.

11. [52]

    Secondly, the Medical Assessor did not err in conducting the r 112 referral without considering Dr Payten’s report. The Insurer submitted that the report could have been considered in a further medical assessment under s 7.24, but not in a r 112 referral.

12. [53]

    Thirdly, the Insurer’s central submission was that the plaintiff’s application for a further medical assessment under s 7.24 was incompetent because the First Certificate was incomplete; hence, the Principal Member could not act under s 7.24 and could only do so under r 112. Senior counsel candidly acknowledged, however, that when the Principal Member made his decision, the Insurer “possibly also didn’t understand the significance and the role of the rule 112 referral process”.

13. [54]

    In oral address, senior counsel for the Insurer submitted that the plaintiff’s application for referral under s 7.24 was incompetent because “to get a further referral you need to have an initial medical assessment, a MAC, and this MAC did not measure up, it was incomplete” and thus there was “no existing MAC”. Accordingly, the basis for the Principal Member’s r 112 referral was said to reflect a finding that the plaintiff’s request for a further medical assessment did not meet the statutory requirements. Senior counsel accepted that the Principal Member never explained in his letter that he regarded the plaintiff’s application for referral to be incompetent.

14. [55]

    Senior counsel further submitted that a valid application for referral can only be made if “all certificates required to be issued in relation to the dispute have been issued”. This was said not to be satisfied here because no certificate had issued in relation to the “Mouth / jaw – fracture zygoma” injury when the application was made.

15. [56]

    Fourthly, the Delegate did not misunderstand or misapply cll 65-71 of PIC6 because none of those clauses was referred to in the Delegate’s reasons, which simply relied on r 112. In addition, the Insurer contended that PIC6 is in the nature of a practice direction and not a legislative instrument and does not create legal rights and obligations.

16. [57]

    Fifthly, as to the alleged misconstruction/misapplication of cl 73 of PIC6, the Insurer contended that this contention is beyond the pleading in ground 8(a) of the summons and is, in any event, misconceived. It contended that cl 73 did not mandate a further examination when a certificate is corrected under r 112, but simply confers a discretion to do so, as is reflected in the term “may” in that clause.

17. [58]

    Sixthly, the Insurer contended that the plaintiff’s claims regarding the misconstruction/misapplication of cl 73 were not supported by cll 6.21 or 6.18(a) and (b) of the Guidelines. (These references are to the then current version 9.2 of the Guidelines. The corresponding clauses in version 5.1 of the Guidelines, to which the plaintiff referred, are cll 6.21, 6.18.1 and 6.18.2 respectively. For convenience, and noting that the respective provisions are identical in any event, the latter will be used.)

18. [59]

    As to cl 6.21 (which provides that the evaluation of the degree of permanent impairment should only consider the impairment as it is at the time of the assessment), the Insurer submitted that it did not assist the plaintiff’s case because Medical Assessor Curtin did not change his evaluation in the second assessment, which was merely directed to addressing his earlier omission to say whether the plaintiff’s injury to his mouth/jaw was caused by the motor accident and whether there was a permanent impairment.

19. [60]

    As to cll 6.18.1 and 6.18.2, the Insurer contended that these provisions had no application because Dr Payten’s report was not lodged with the first application for medical assessment. It only became available after the First Certificate was issued and therefore was not “available evidence” within the meaning of those provisions. It contended that cl 6.18.2 had no application because there was no necessity for a further clinical examination prior to the issue of the Second Certificate.

20. [61]

    Seventhly, as to the plaintiff’s complaint that the Delegate failed to consider the plaintiff’s clearly articulated argument regarding the need to take into account Dr Payten’s report, the Insurer submitted that the argument was recognised by the Delegate, who considered it and properly rejected it.

21. [62]

    The gravamen of the Insurer’s position is that the Medical Assessor saw himself as correcting an incomplete certificate, which is why he retained the same dates as the First Certificate. In other words, he was not issuing a fresh certificate, but was merely completing the incomplete First Certificate.

Consideration and determination

1. [63]

   Although the primary focus of the judicial review challenge relates to the Delegate’s purported exercise of power under s 7.26 of the MAI Act, some consideration also needs to be given to other statutory provisions in that Act, as well several rules in the PIC Rules, cll 67-73 of PIC6 (see at [23] above) and relevant parts of the Guidelines.

2. [64]

   Commencing with the MAI Act, the topic of medical assessments is addressed in Div 7.5 in Pt 7. Section 7.17 contains two definitions for the purposes of Pt 7. The first, “medical assessment”, is defined to mean “an assessment of a medical assessment matter under this Division”. The degree of permanent impairment of an injured person is declared to be a “medical assessment matter” in cl 2(a) of Sch 2 to the MAI Act.

3. [65]

   The second, “medical dispute”, is defined to mean:

4. [66]

   A claimant is obliged to comply with an insurer’s request that the claimant undergo a medical assessment by the insurer’s nominated health practitioner, which assessment must be carried out in accordance with the Guidelines (MAI Act, s 6.27(1)). A claimant is also obliged to comply with any request by the Commission to undergo a medical examination or an assessment by a medical assessor for the purposes of Div 7.5 (s 6.27(3)).

5. [67]

   Relevantly, either party to a medical dispute (being the claimant or insurer) may refer a medical dispute about a claim to the President for assessment under Div 7.5. The President is obliged to arrange for the dispute to be dealt with by one or more medical assessors (s 7.20(2)). The claimant and insurer are both obliged to provide to the medical assessor such information as the assessor may reasonably require for the purposes of the medical assessment (s 7.20(4)).

6. [68]

   Significantly, an assessment of the degree of permanent impairment of an injured person for the purposes of the MAI Act must be made in accordance with the Guidelines and the assessed degree of permanent impairment must be expressed as a percentage (s 7.21(1)).

7. [69]

   Section 7.23 provides for the status of medical assessments and the provision of certificates as to the matters referred for assessment, as well as the consequences which flow from the issue of such certificates. Section 7.23 provides:

8. [70]

   The Insurer described the power in subs (9) to issue a replacement certificate where a medical assessor is satisfied that the certificate contains “an obvious error” as a power for a medical assessor to act on their motion in issuing a replacement certificate so as to correct an obvious error.

9. [71]

   It is notable that the effect of s 7.23(7) is to incorporate a medical assessor’s reasons into the certificate itself, a point which was acknowledged by the Insurer in oral address. This may be important because, on the Insurer’s argument, s 7.26 might not be available to refer a matter to a review panel where the reasons in a certificate were somehow incomplete or inadequate, perhaps even in a minor way. That seems most improbable but it is unnecessary to resolve that issue here.

10. [72]

    Section 7.24 provides for the further medical assessment of a medical dispute which has previously been referred for assessment. That provision is set out at [14] above.

11. [73]

    Section 7.26 provides for a claimant or an insurer to apply to the President to refer a medical assessment under Div 7.5 by a single medical assessor to a review panel for review. The relevant parts of s 7.26 are set out at [37] above.

12. [74]

    Turning now to additional relevant provisions in the PIC Rules, Pt 11 of those Rules contains provisions relating to medical assessment proceedings. Rule 103 provides for a claimant or insurer to lodge an application for assessment of a permanent impairment dispute as specified in s 58(1)(d) of the MAC Act, being a dispute as to whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. Apart from disputes concerning claims for damages for non-economic loss, there is no time limit for making such an application, but an application can be lodged only if the parties have attempted to resolve the dispute and if other stipulated requirements are met (see r 103(2) and (3)).

13. [75]

    Rule 104 should also be noted. Although the Insurer made no reference to this provision in its outline of written submissions, it figured prominently in senior counsel’s oral address. It provides:

14. [76]

    The Insurer contended that, in the particular circumstances here, the effect of r 104(a), (b) and (d) was to prevent any referral under s 7.24 until such time as appropriate steps are taken to rectify the fact that an existing certificate is incomplete (as was the case here, given that the First Certificate did not address the degree of any permanent impairment arising from the plaintiff’s “Mouth / jaw – fracture zygoma” injury). The Insurer further contended that, until such time as there is a complete certificate, “you don’t actually have an assessment within the meaning of the Act”. Thus, senior counsel for the Insurer contended that the plaintiff’s application for a further medical assessment under s 7.24 was “incompetent”. She further contended that “it wasn’t possible for Principal Member Harris to refer to a medical assessment because of that restriction, those preconditions, only if in rule 104”.

15. [77]

    Senior counsel for the Insurer contended that the reference in r 104 to s 62(1)(a) of the MAC Act is incorrect – she said that the relevant provision is s 7.24 of the MAI Act. I doubt this claim. It is not supported by the terms of r 104, nor by cll 76 and 77 of PIC6 which separately address s 62 of the MAC Act and s 7.24 of the MAI Act.

16. [78]

    In any event, reference should also be made to r 105, which provides for a claimant or insurer to lodge an application to refer a medical dispute for assessment under Div 7.5 of the MAI Act. It provides:

17. [79]

    Division 11.2 of the PIC Rules deals with the conduct of medical assessment proceedings. Rule 112 (which is set out at [18] above) is in this Division. The Insurer drew attention to the fact that, in contrast with a medical assessor’s power under s 7.23(9) (ie, the power of a medical assessor acting on their own motion to issue a replacement certificate to correct an obvious error), the power under r 112 refers to both incompleteness and correction and is a power which is enlivened when the President refers a matter to a medical assessor.

18. [80]

    Clauses 67-73 are set out at [23] above.

19. [81]

    As noted above, s 7.21(1) of the MAI Act requires a permanent impairment assessment to be made in accordance with the Guidelines. The Guidelines have to be read in conjunction with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) (AMA4 Guides) (see cl 6.2 of the Guidelines). The Guidelines state in cl 6.18 that in evaluating the degree of permanent impairment the medical assessor must evaluate “all the available evidence”, including medical evidence and medico-legal reports (cl 6.18.1). One of the three stages of the assessment is “an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment” (cl 6.18.2). Moreover, cl 6.21 states that the “evaluation should only consider the impairment as it is at the time of the assessment” (emphasis added).

20. [82]

    For the following reasons, I consider that ground 8(a) should be upheld. The Delegate’s Decision involved jurisdictional error and/or one or more errors of law on the face of the record. The errors involved the misconstruction of r 112 of the PIC Rules, a misconception of the effect of cll 67-73 of PIC6 and a failure to appreciate that the Medical Assessor had not conducted an assessment of the plaintiff’s “Mouth / jaw – fracture zygoma” injury in accordance with the Guidelines, contrary to s 7.21(1) of the MAI Act. These errors were material in the Delegate’s Decision in which she refused to exercise the statutory power in s 7.26 of the MAI Act because she was not satisfied that the Medical Assessor’s second medical assessment was “incorrect in a material respect”.

21. [83]

    As noted above, at the heart of the Delegate’s reasoning as to why a referral should not be made under s 7.26 as sought by the plaintiff is that Dr Payten’s report was “not in evidence” before Medical Assessor Curtin for the purposes of his assessment. The Delegate considered that this report could not be taken into account by the Medical Assessor because it post-dated the first medical assessment.

22. [84]

    The Delegate’s reasons do not disclose whether or not, as a matter of fact, Dr Payten’s report was physically before the Medical Assessor. Similarly, the evidence before the Court did not make clear whether a copy of the report was actually forwarded to the Medical Assessor when the r 112 referral was made.

23. [85]

    But it is plain that the Delegate took the view that this matter was not important because, even if a copy of Dr Payten’s report had physically been provided to the Medical Assessor, the Delegate considered that it could not be taken into account. This is because the Delegate considered that, in carrying out a r 112 referral, the Medical Assessor could only have regard to information which was available to the Medical Assessor when the original medical assessment (which resulted in the incomplete certificate) was carried out.

24. [86]

    In my respectful view, the process of correcting an incomplete certificate where a matter has been referred back to a medical assessor or panel under r 112 is not frozen in time in the manner found by the Delegate.

25. [87]

    In the present case, the r 112 referral was made in circumstances where the Medical Assessor had failed to assess the permanent impairment arising from the plaintiff’s “Mouth / jaw – fracture zygoma” injury, as was made clear in the Principal Member’s referral letter. It was plainly contemplated that the Medical Assessor would complete his medical assessment of that injury. This did not mean that the assessment of that injury was confined to the material or information which was available at the time of the first medical assessment. Such a restrictive view of the nature and scope of a r 112 referral is inconsistent with:

26. [88]

    As to the first of those matters, s 7.21(1) requires that a permanent impairment assessment be made in accordance with the Guidelines. The r 112 referral required the Medical Assessor to assess permanent impairment relating to the plaintiff’s “Mouth / jaw – fracture zygoma” injury and to issue a completed certificate. This involved the Medical Assessor conducting a medical assessment which, by force of s 7.21(1), had to be made in accordance with the Guidelines.

27. [89]

    This meant that the assessment had to comply with the following relevant Guidelines:

28. [90]

    Although not every case involving a referral back to a medical assessor under r 112 for the correction of an incomplete certificate will engage the above Guidelines (for example, where the relevant incompleteness is that the certificate is unsigned (see cl 71 of PIC6)), I see no reason why these Guidelines would not apply to an assessment conducted under a r 112 referral where a particular injury was not addressed in an earlier assessment, as is the case here.

29. [91]

    As to cl 73 of PIC6, it expressly contemplates that, in conducting a r 112 referral, the Medical Assessor could require the plaintiff to attend a further medical examination. Thus a medical assessor conducting a r 112 referral is not limited to considering only information which was available at the time of the initial assessment. In its own terms, this provision is inconsistent with the proposition that the assessment under a r 112 referral is frozen in time.

30. [92]

    PIC6 provides important context within which the PIC Rules are to be construed and applied. Although PIC6 is not a legislative instrument, it should be noted that s 21(4) of the Personal Injury Commission Act obliges the following specified persons to act in accordance with those directions:

31. [93]

    The significance of cl 73 is not avoided or diminished by the fact that the power of a medical assessor to conduct a further examination of the claimant is a discretionary power. It is the availability of the discretionary power which is relevant and significant. The power is available to be used to obtain information in addition to that obtained during the course of the initial assessment. Clause 73 confirms that the assessment is not frozen in time, contrary to the Delegate’s view and the Insurer’s position.

32. [94]

    Although the Insurer raised a pleading objection to the plaintiff relying on cl 73, it did not point to any prejudice and it provided submissions in relation to the significance of cl 73. I see no good reason why the plaintiff should not be allowed to raise the matter.

33. [95]

    Clause 71 of PIC6 provides similar relevant context. It contains a non-exhaustive list of examples of incomplete certificates. They include where disputes and/or injuries are not referred to in a certificate. That was the case here with the First Certificate which did not refer to the plaintiff’s “Mouth / jaw – fracture zygoma” injury, notwithstanding that this injury had been referred to the Medical Assessor by the President for assessment pursuant to s 7.20 of the MAI Act. By virtue of the Principal Member’s determination under r 112, the Medical Assessor was required to assess that injury to determine the degree of permanent impairment. That assessment had to be conducted in accordance with the Guidelines by force of s 7.21(1) of the MAI Act.

34. [96]

    I reject the Insurer’s contention as made in oral address that r 104(b) of the PIC Rules supports the Delegate’s Decision (see at [76] above). It may be noted that the Delegate made no explicit reference to r 104 in the reasons for the Decision. Rule 104 is set out at [75] above. I consider that the Insurer’s reliance on r 104(b) is misplaced. This is not only because I doubt that it applies to an application under s 7.24 (see at [77] above), but also because, in any event, I do not accept the Insurer’s construction of the provision. The Insurer’s position is implicitly predicated on the proposition that the reference in r 104(b) to “all certificates required to be issued in relation to the dispute have been issued” requires any certificate to be complete. I consider, however, that the reference to “all certificates” refers to cases where a claimant has suffered multiple injuries and the medical dispute has more than one component, which requires medical assessment by more than one medical assessor. I see no warrant for reading into r 104(b) the words “completed” or “valid” before the word “certificates”. But that is the effect of the Insurer’s proposed construction.

35. [97]

    Nor do I accept the Insurer’s submission which is summarised at [51] above. It is clear that the Medical Assessor did not assess the plaintiff’s “Mouth / jaw – fracture zygoma” injury when he conducted the first assessment. That is the very reason why the Principal Member determined to refer the matter back to the Medical Assessor under r 112, rather than granting the plaintiff’s application for a further medical assessment on the basis of additional relevant information. On its own terms, the First Certificate was confined to an assessment of permanent impairment from the plaintiff’s facial scarring. Although the First Statement of Reasons recorded the plaintiff’s difficulty wearing his dentures and noted that “there was nothing to suggest that fixation used to secure the right zygoma was interfering with his dentures” (see at [8] above), this did not rise to the level of constituting an assessment of the plaintiff’s “Mouth / jaw – fracture zygoma” injury. Nor did it engage with the possibility, proposed later by Dr Payten, that the surgical path through the upper mouth was the cause of the plaintiff’s discomfort whilst wearing dentures.

36. [98]

    For all these reasons, ground 8(a) should be upheld. For completeness, it is unnecessary to determine the plaintiff’s separate case that the Delegate erred in not being satisfied that the medical assessor failed adequately to deal with the plaintiff’s clearly articulated case as to the disorder of mastication.

37. [99]

    Strictly speaking, it is also unnecessary to determine this additional ground of review having regard to the plaintiff’s success in establishing ground 8(a). To the extent that ground 8(b) is directed to the fact that the Medical Assessor did not address the plaintiff’s complaint as to mastication (see at [8] above) with reference to relevant parts of the Guidelines (which was the approach adopted by Dr Payten), it should also succeed for similar reasons to those relating to ground 8(a).

38. [100]

    The Insurer did not contend that judicial review relief should be withheld because the plaintiff consented to the r 112 referral. The Insurer did not challenge the plaintiff’s submission that when it consented to that course of action it assumed that Dr Payten’s report would be provided to the Medical Assessor and taken into account by him. As noted above, the Principal Member gave no indication that he considered that the plaintiff’s application under s 7.24 was incompetent.

Conclusion

1. [101]

   For all these reasons, I consider that the plaintiff has established jurisdictional error and/or error of law on the face of the record in respect of the Delegate’s Decision. The Decision should be set aside and the plaintiff’s application under s 7.26 of the MAI Act should be remitted to the President for reconsideration according to law. The Insurer should pay the plaintiff’s costs of these proceedings.

2. [102]

   I see no reason also to grant declaratory relief. The reasons above should provide sufficient guidance to the relevant parties.

3. [103]

   In addition, the plaintiff’s application to have the Delegate’s statement of reasons set aside is misconceived. This statement of reasons has no legal effect independently of the Decision to which the reasons relate, which Decision will be set aside.