Jubb v Insurance Australia Limited t/as NRMA Insurance

1. [1]

   HER HONOUR: This is an application for judicial review of two decisions, one of a Proper Officer of the Medical Assessment Service (“MAS”) and the other of a MAS Medical Assessor.

2. [2]

   By further amended summon filed 7 September 2015, the plaintiff seeks, firstly, a declaration that the decision of the third defendant, a Proper Officer of the Medical Assessment Service made on 28 November 2014, pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) is invalid; secondly an order setting aside the first decision and remitting the matter to the second defendant for decision according to law; thirdly, a declaration that the decision of the fourth defendant, a MAS Medical Assessor, made on 12 February 2015 to issue a certificate under Part 3.4 of the Act is invalid; fourthly, an order setting aside the second decision; and fifthly, an order in the nature of prohibition, or alternatively, an injunction preventing the second, third and fourth defendants or any of the second defendant’s officers, servants or agents from acting on or taking any further step in reliance on the first or second decisions.

3. [3]

   The plaintiff is David Jubb. The first defendant is Insurance Australia Limited t/as NRMA Insurance (“NRMA”). The second defendant is the Motor Accidents Authority of New South Wales (“MAA”). The third defendant is Jane Probert in her capacity as Proper Officer, Medical Assessment Service of the Motor Accidents Authority of New South Wales (“the Proper Officer”). The fourth defendant is Angelo Virgona in his capacity as a Medical Assessor from the Medical Assessment Service of the MAA (“MAS Assessor Virgona”). The second, third and fourth defendants have filed submitting appearances

4. [4]

   The plaintiff relied upon the affidavit of his solicitor Michael Francis Coorey filed 8 May 2015.

Background facts

1. [5]

   On 21 July 2011, while travelling with his family, the plaintiff was involved in a motor vehicle accident. NRMA admitted liability for the accident by notice given under s 81 of the Act.

2. [6]

   The plaintiff was assessed separately by MAS Assessor John Baker for psychological injury and MAS Assessor David Johnson for physical injury. On 15 August 2013, MAS Assessor Johnson assessed the plaintiff’s degree of permanent impairment and determined that he had whole person impairment (“WPI”) of 5 percent arising from his physical injury (TB151). It should be noted that it is only the psychological injury that is the subject of this judicial review.

The first medical assessment – psychological injury

1. [7]

   On 9 August 2013, the plaintiff was medically assessed pursuant to the procedures established under Part 3.4 of the Act by MAS Assessor Baker. MAS Assessor Baker recorded that prior to the motor accident, the plaintiff enjoyed the company of his partner and two children; and also had no difficulties with his concentration at work and was able to work long hours (about 45 hours per week) in the role of a Quality Management Systems Co-ordinator at Acer Computers without difficulty.

2. [8]

   MAS Assessor Baker recorded that after the motor accident, the psychiatric symptoms that the plaintiff said he suffered were, inter alia, a depressed mood, loss of interest in playing with his children and recurrent depressive and intrusive thoughts. The plaintiff had recurrent difficulties attending work with multiple sick days prior to him no longer being able to perform the complex tasks of his role, and no longer being employed by Acer Computers. He had continued conflict with the mother of his children and they are now permanently separated.

3. [9]

   MAS Assessor Baker found that the plaintiff was suffering from psychiatric injuries and assessed him as having 13 percent WPI.

4. [10]

   On 17 July 2014, the plaintiff applied for general assessment by the Claims Assessment and Resolution Service (“CARS”).

5. [11]

   On 27 August 2014, NRMA lodged an application for a further assessment of WPI pursuant to s 62(1)(a) of the Act. As a result, the CARS assessment was deferred.

6. [12]

   On 30 September 2014, the plaintiff replied to NRMA’S application for further assessment.

7. [13]

   On 28 November 2014, the Proper Officer acceded to NRMA’S application and referred the matter for further assessment.

8. [14]

   On 19 December 2014, the plaintiff commenced proceedings in this Court, seeking an order quashing the Proper Officer’s decision to refer the matter for further assessment.

9. [15]

   After the filing of that summons, on 22 January 2015 MAS Assessor Virgona undertook a further assessment of the plaintiff. On 12 February 2015, MAS Assessor Virgona issued a certificate declaring that the plaintiff’s WPI was less than 10 percent. The plaintiff now seeks to quash this decision also.

Judicial review

1. [16]

   The plaintiff relies on s 69 of the Supreme Court Act 1970 (NSW) which provides that this Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari.

2. [17]

   The grounds of review are that both the decision of the Proper Officer and the decision of MAS Assessor Virgona contain both jurisdictional errors/and or errors of law on the face of the record.

The Proper Officer’s decision

1. [18]

   The grounds of review of the Proper Officer’s decision are that the Proper Officer:

   1. (1)

      Wrongly construed s 62 of the Act in determining that the clinical notes of Ms Ozturk were additional relevant information because they expressed opinions different to those of MAS Assessor Baker.

   2. (2)

      Wrongly construed s 62 of the Act in determining that the clinical notes of Ms Ozturk were additional relevant information when they concerned an issue already addressed by MAS Assessor Baker, namely that the plaintiff’s relationship with his children and certain ideations; and

   3. (3)

      Wrongly construed s 62 of the Act in determining that the statement of David Rushworth was additional relevant information when it concerned an issue already addressed by MAS Assessor Baker, namely the plaintiff’s work performance.

The application for further assessment

1. [19]

   When making her decision about NRMA’s application for further assessment, the Proper Officer was provided with additional material filed by NRMA; as well as evidence and submissions in reply from the plaintiff.

2. [20]

   NRMA’S application for further assessment relied on the following material: two reports from G4S including surveillance film, the report of Dr Mangipudi dated 28 September 2012 and the statement of David Rushworth (the supervisor of the plaintiff in his employment with Acer) dated 27 March 2014. The clinical notes of psychologist Derya Ozturk, the plaintiff’s treating psychologist, were also relied on by NRMA but were not provided until 11 November 2014.

3. [21]

   The plaintiff’s evidence in reply comprised a statement from the plaintiff addressing issues raised in the statement of Mr Rushworth and a copy of the plaintiff’s resume.

4. [22]

   On 28 November 2014, the Proper Officer in her written reasons stated:

5. [23]

   On 12 December 2014, the Proper Officer referred the dispute for further medical assessment under s 62 of the Act.

The legislation

1. [24]

   The Act establishes a scheme of compulsory third party insurance and the payment of compensation relating, inter alia, to the injury to persons as a consequence of motor accidents. Its objects include the provision of compensation for compensable injuries sustained in motor vehicle accidents and the encouragement of early resolution of compensation claims: s 5. Chapter 3 relates to motor accident injuries caused by motor accidents occurring after the commencement of the Act: s 43.

2. [25]

   Section 44 provides that the MAA may issue medical guidelines with respect to the assessment of the degree of WPI: s 44(1)(c); and the procedure for the assessment and review of assessments under Pt 3.4: s 44(1)(d). Section 59 requires the MAA to appoint medical assessors for the purposes of Pt 3. Pursuant to s 60, where medical disputes are referred to the MAA, it is to arrange for the dispute to be referred to one or more medical assessors. Section 61 provides for the status of medical assessments and s 62 provides for the referral of matters for further medical assessment. They relevantly read:

3. [26]

   Also relevant are ss 131 and 133 relating to damages. Section 131 provides that no damages may be awarded for non-economic loss unless the degree of WPI as a result of the injury caused by the motor accident is greater than 10 percent. Section 133 provides that the assessment of the degree of WPI is to be expressed as a percentage, in accordance with the processes specified in Part 5. The relevance of this for present purposes is that should MAS Assessor Baker’s assessment of 13 percent WPI be maintained, the plaintiff will be entitled to damages for non-economic loss. On MAS Assessor Virgona’s assessment of WPI, the plaintiff is not entitled to damages for non-economic loss.

4. [27]

   The MAA has issued guidelines in respect of the procedure under s 62. Those guidelines are contained in Chapter 14, Division 4 of the MAA Medical Assessment Guidelines, 1 October 2008 (“the Guidelines”) and provide, relevantly:

5. [28]

   As clause 14.7 sets out a different requirement from s 62(1A), where they differ s 62(1A) would prevail: Henderson v QBE Insurance (Australia) Ltd (2013) 66 MVR 69; [2013] NSWCA 480. But, this is not of concern here.

Interrelationship between s 62 and Chapter 14

1. [29]

   There are two distinct steps involved in a matter being referred for further medical assessment under s 62 of the Act. Both steps involve consideration of Chapter 14 of the Guidelines.

2. [30]

   The first step is that a referral must be made “only on the grounds of ... additional relevant information”: s 62(1)(a). Clause 14.5 of the Guidelines specifies that when making a determination under s 62(1)(a), the Proper Officer “shall have regard to” the application and any reply; any other applications and replies and/or certificates issued under s 61 on the medical dispute; the objects of the Act and the objects of the MAS.

3. [31]

   The second step is that if there is “additional relevant information about the injury” then referral for further medical assessment is precluded “unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment”: s 62(1A). Clause 14.6 of the Guidelines defines the word “material” in s 62(1A) as further additional information capable of altering the outcome of a dispute about, relevantly, WPI from not greater than 10 percent to greater than 10 percent, or vice versa. Under clause 14.7, if the Proper Officer is not satisfied of the requirement in s 62(1A) of the Act, then they may dismiss the application.

Consideration of Henderson v QBE Insurance

1. [32]

   In Henderson, the central issue raised was whether the two steps set out in s 62 constituted a jurisdictional fact which needed to be established, on an objective basis, before a referral could be made for further medical assessment. Mr Henderson submitted that both aspects were jurisdictional facts that must objectively be found to exist. QBE submitted that each step involved an evaluative task, which was amenable to judicial review for error of law but that they did not constitute jurisdictional facts. Both parties relied upon the judgment of the Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707.

2. [33]

   In Henderson, Beazley P (with whom Tobias AJA agreed) stated at [27]:

3. [34]

   At [49] her Honour referred to the additional reasons of Macfarlan JA in Rodger v De Gelder [2011] NSWCA 97; [2011] 80 NSWLR 594, where his Honour at [113] stated:

4. [35]

   Beazley P in Henderson continued at [49] to [51]:

5. [36]

   Hence, what may properly constitute “additional relevant information” in s 62(1A) is a matter for the satisfaction of the Proper Officer, not one for determination by a court. This much is common ground between the parties.

Did the Proper Officer wrongly construe s 62?

1. [37]

   What is in dispute is whether the Proper Officer properly determined whether the additional information was such as to be “capable of having a material effect on the outcome of the previous assessment”?

2. [38]

   So far as whether the Proper Officer’s opinion has been properly formed according to law, Basten JA in QBE Insurance (Australia) Ltd v Miller (2013) 67 MVR 322; [2013] NSWCA 442 at [36] stated:

3. [39]

   Counsel for the plaintiff submitted that the Proper Officer misconstrued s 62(1 A) of the Act. According to the plaintiff, s 62(1A) requires that the Proper Officer determine whether the additional information “is such as to be capable of having a material effect on the outcome of the previous assessment”, but the Proper Officer posited that if the clinical notes and the statement “were accepted” and the relevant categories reduced “then the claimant may be assessed under the threshold”. She then indicated that “I am therefore satisfied that,” and repeated the statutory formula that the material was “capable of having a material effect on the outcome of the previous assessment” (TB345).

4. [40]

   Counsel for the plaintiff referred to Doyle v Glass [2010] NSWSC 94, (2010) 55 MVR 156 where the decision maker under s 62(1A) of the Act had said in her reasons that the reports of relevant experts “may have a material effect on the outcome of the previous assessment” (at [26]). In Doyle v Glass, I held that there was a difference between “may have a material effect" and “is such as to be capable of having a material effect”: at [30]. I said that “may” is defined as "expressing uncertainty" and "capable of” is defined as “having the ability, strength or fitted for”: [30]. I decided that the proper test was more stringent than the one applied by the Proper Officer, that the wrong test had been applied and that decision should be set aside: [31]-[32].

5. [41]

   The plaintiff submitted that the Proper Officer expressed uncertainty as to whether the clinical notes or the statement of Mr Rushworth would be accepted and, even if they were to be accepted, she then indicated further uncertainty by the words “then the claimant may be assessed under the threshold” (TB345). By use of the word “therefore” she indicated that she was relying on the foregoing matters for her determination that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment. The plaintiff says that due to this twice expressed uncertainty, this Court could not be satisfied that the Proper Officer has applied the correct, and more stringent, test in s 62(1A). According to the plaintiff, the Proper Officer did not ascertain whether the clinical notes of Ms Ozturk or the statement of Mr Rushworth have the ability to change the assessment to be under the threshold.

6. [42]

   As previously mentioned, MAS Assessor Baker recorded that the plaintiff’s psychological condition was that he suffered from, inter alia, a depressed mood, loss of interest in playing with his children and recurrent depressive and intrusive thoughts. Senior counsel for NRMA submitted that the opinions expressed in the clinical notes of Ms Ozturk are plainly new additional relevant information about the injury as they go to a significant improvement in the plaintiff’s condition, namely, his reduced depressive thoughts and increased mood. This information has not previously been expressed by an expert or considered in the previous assessment and goes directly to the extent of the injury. Hence, NRMA says that the Proper Officer did not err in finding that the clinical notes constituted additional relevant information in accordance with s 62 of the Act.

7. [43]

   Similarly, NRMA says that the statement of Mr Rushworth is also plainly new additional relevant information about the injury and reports that the plaintiff might now be assessed under the threshold. This statement addresses inconsistencies in relation to the plaintiff’s reported issues with his employment. In light of Mr Rushmore’s statement, the plaintiff had relationship and social issues as well as issues with depression prior to the subject accident.

8. [44]

   Further, NRMA says that the additional material in Mr Rushmore’s statement establishes that there was a significant inconsistency between what the plaintiff had told MAS Assessor Baker and what may well have actually happened regarding the termination of his employment. The plaintiff had previously told MAS Assessor Baker that his poor concentration had led to his loss of employment (TB 225-226).

9. [45]

   Although not a medical report, NRMA submitted that the information in Mr Rushmore’s statement is plainly new additional relevant information not previously considered and, as found by the Proper Officer, the issues identified could have a material effect on the outcome of the previous assessment as they go to the assessment categories of “concentration, persistence and pace” and “social and recreational activity” (TB345). These categories are tables (7.4 and 7.5) of the Psychiatric Impairment Rating Scale (PIRS) at clauses 7.19 and 7.10 of the the MAA Permanent Impairment Guidelines, 1 October 2007. In these circumstances, NRMA submitted that the Proper Officer correctly found that this additional evidence was relevant and that it could materially affect the previous assessment.

10. [46]

    Overall, senior counsel for NRMA submitted that the Proper Officer’s decision was open to her and was lawfully made. NRMA asserts that there is no vitiating error of law on the face of the record apparent in this decision and no jurisdictional error or constructive failure to exercise jurisdiction.

Conclusion

1. [47]

   The Proper Officer stated that she was satisfied that if the clinical notes of Ms Ozturk and the statement of Mr Rushworth were accepted and the categories for “social & recreational activity” and “concentration, persistence and pace” were “reduced to a lower category, then the claimant may be assessed under the threshold”. She then concluded “I am therefore satisfied that the additional relevant information about the injuries is such as to be capable of having a material effect on the outcome of the previous assessment, satisfying the second test at section 62(1A) of the Act.” (My emphasis added).

2. [48]

   Relevant here is the well known statement of principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 where the plurality said:

3. [49]

   It is my view that the Proper Officer used the word “may” to indicate that she was not pre-empting the result of the MAS Assessor’s redetermination. The Proper Officer then came to a conclusion, which was that she was “therefore satisfied that the additional relevant Information about the injuries is such as to be capable of having a material effect on the outcome of the previous assessment”. She did apply the correct test. This situation here is different from what occurred in Doyle v Glass. In my view, the Proper Officer did not determine that the clinical notes and statement may have a material effect, but rather, determined that the additional relevant information about the injuries was such as to be capable of having a material effect on the outcome of the previous assessment, satisfying the test in s 62(1A) of the Act. The Proper Officer’s reasons should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 272.

4. [50]

   While the Proper Officer did not specifically refer to an entry in Ms Ozturk’s clinical notes referring to the plaintiff’s negative attitude towards his children and certain ideations he had, she did not need to do so. It was one of many entries made by Ms Ozturk and viewed in that light, that one entry does not amount to a relevant consideration.

MAS Assessor Virgona’s decision dated 12 February 2015

1. [51]

   The grounds of review of MAS Assessor Virgona’s decision are that:

The further assessment

1. [52]

   The Proper Officer referred consideration of “all aspects of the Assessor’s assessment afresh” to a medical assessor (TB345). The referral for further assessment was limited to assessment of the plaintiff’s psychological injury (TB345-346).

2. [53]

   In NRMA’s application for further assessment and the plaintiff’s reply, the following pro forma information was contained which is relevant in relation to new material:

3. [54]

   By letter dated 12 December 2014 (TB348), the Proper Officer referred the “further medical dispute” to MAS Assessor Virgona for further assessment. The letter enclosed “All information submitted to [Medical Assessment Service] by the parties in respect of the original medical assessment/s” including the certificates and reasons of MAS Assessor Baker and MAS Assessor Johnson. It also enclosed NRMA’s application form together with supporting documents and the reply form (from the plaintiff) together with supporting documentation “relating to the current further application”. At the conclusion of the letter to MAS Assessor Virgona, the Proper Officer said that he could consider new imaging studies relating to the radiology reports but, “You must NOT review any other new material presented by the claimant.”

4. [55]

   A letter dated 12 December 2014 was also sent to the plaintiff’s solicitors advising that the plaintiff had an appointment with MAS Assessor Virgona scheduled for 22 January 2015 (TB350-351).

5. [56]

   It is common ground that a medical assessor when conducting an assessment is obliged to afford the parties procedural fairness. The key question here is what is the content of the obligation to afford procedural fairness. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584-585, Mason J identified that the statutory power is to be issued fairly, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes sought to be advanced by the statute (see also Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 per Leeming JA at [93]). The statutory framework within which the decision maker exercises a statutory power is of critical importance in determining what procedural fairness requires: SZBEL v Minister for Immigration and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [25]-[26]. Gleeson CJ in Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6, (2003) 214 CLR 1 identified the fundamental proposition that “the concern of the law [in administrative decision making] is to avoid practical injustice”: at [37]. A failure to accord procedural fairness amounts to jurisdictional error: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [60].

6. [57]

   Clause 12.10 of the Guidelines stipulates that “No additional documents or information sought to be added to the list of documents to be referred to the Assessor may be lodged by either party after the lodgement of their application or their reply”, save for in certain limited circumstances. The provision is set out on the front of the standard form for applying for reassessment and replying to such an application which I have set out earlier in this judgment.

7. [58]

   Counsel for the plaintiff submitted that there are four elements of unfairness:

   1. (1)

      The respondent to an application for further assessment must provide his or her material for the further assessment prior to the application passing the “gateway”. In this case the plaintiff had to provide such material in anticipation of a decision that the matter would be referred.

   2. (2)

      If NRMA had been unsuccessful in its application then the costs of obtaining the additional material for the reassessment would have been “thrown away”. Such costs are unlikely to be recoverable from NRMA because of the capped nature of costs: ss 94A(3)(c), 149(1), 150(1) of the Act, clauses 9, 13 of the Motor Accidents Compensation Regulation 2005 (NSW). Counsel for the plaintiff submitted that in essence, if the legal practitioner did extra work before it was known whether NRMA would pass through the gateway to a further assessment, those costs would come out of the plaintiff’s pocket.

   3. (3)

      There is also a substantial imbalance between the time available to the applicant to obtain the material the subject of the application (unlimited) and the respondent (20 working days).

   4. (4)

      NRMA was able to rely on the surveillance films, the G4S reports the clinical notes and Mr Rushworth’s statement whereas the plaintiff only had the limited material and submissions provided in reply to the insurer's application for re-assessment. The plaintiff’s solicitor has deposed (Aff, Michael Coorey, 8 May 2015 [12]-[13) that if the plaintiff had been given the opportunity to place additional material before the decision maker he would have sought evidence from his former and current employer on the work performance issue, and sought updated medical reports from his treating doctors and a medico-legal report from a psychiatrist.

8. [59]

   The plaintiff referred to Frost v Karouche (2014) 86 NSWLR 214; [2014] NSWCA 39, where Leeming JA held at [45] (with Beazley P and Basten JA agreeing), that if the Act requires content to be given to the obligation to afford natural justice in a way which is inconsistent with the Guidelines, then the Guidelines must yield to the Act. Here, the plaintiff says as he was prevented from providing additional material to MAS Assessor Virgona, he was denied procedural fairness.

9. [60]

   The plaintiff in his reply on 30 September 2014 (and later on 20 November 2014) did provide evidence and written submissions. As previously stated, the evidence comprised a statement from the plaintiff replying to the statement of Mr Rushworth and a copy of the plaintiff’s resume. Nowhere in the reply did the plaintiff foreshadow that if there was to be a further assessment, he would like the opportunity to put on further evidence. In other words, neither the Proper Officer or the MAS Assessor had notice of the plaintiff’s intention to adduce further evidence.

10. [61]

    Senior counsel for NRMA submitted that Chapter 14 of the Guidelines (further assessments and review applications) does not provide for the provision of submissions (by any party) on the further assessment. It is a published delegated instrument of which the parties, their legal representatives and the public were aware.

11. [62]

    NRMA submitted that if a party desires to make special submissions on the further medical assessment itself, or seek to adduce new evidence, that party may:

12. [63]

    NRMA submitted that in the present case, there is no evidence that further submissions or evidence were sought to be adduced by the plaintiff in the reply document or by the late additional document process. There is no evidence that the consent of the first defendant insurer was sought to lodge additional submissions or evidence.

Conclusion

1. [64]

   The primary opportunity for a party to make submissions and to seek to adduce evidence on the further assessment is in the application for further assessment and the reply lodged by the parties. That material is required to be lodged at the MAA by the parties under the Guidelines and, should the further application be granted by the proper officer, an officer of the MAA is required to furnish all this material and their attachments to the further MAS assessor (see clause 14.11 and clause 9.11.5).

2. [65]

   The further assessment involves the consideration by a MAS Assessor of all aspects of the assessment afresh, having regard to all previous submissions provided by the parties including those provided in the application for further assessment. The plaintiff provided submissions and further evidence to MAS Assessor. He also attended the appointment before the MAS Assessor Virgona and gave evidence and answered questions. His solicitors had not foreshadowed, prior to the appointment taking place, that further material was sought to be adduced in accordance with clause 12.10.1 due to the Christmas holidays, or failing that, clause 12.20.3. The plaintiff’s solicitor ought to have been aware of these time constraints as they are set out on the pro forma application for reassessment and the reply.

3. [66]

   The plaintiff was given an opportunity to present his case both in his reply documents that included further submissions and by attending the appointment with MAS Assessor Virgona where he could answer questions and provide information. It is my view that in these circumstances, the plaintiff was afforded procedural fairness. This ground of judicial review fails.

4. [67]

   The result is that the further amended summons filed 7 September 2015 is dismissed.

5. [68]

   Costs are reserved.