Averkiou v CIC Allianz Australia Insurance Limited

1. [1]

   HER HONOUR: By amended summons filed 3 December 2015, the plaintiff relevantly seeks an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the certificate and medical assessment dated 25 May 2015 of the third defendant, Stephen Buckley, Tai-Tak Wan and Clive Kenna, in their capacity as a medical assessors review panel of the State Insurance Regulatory Authority, made purportedly pursuant to ss 61 and 63 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”); and an order in the nature of mandamus remitting the medical assessment of the first defendant to a differently constituted medical assessors review panel for determination of the matter according to law.

2. [2]

   The plaintiff is Vicky Averkiou (“Ms Averkiou”). The first defendant is CIC Allianz Australia Insurance Limited (“Allianz”). The second defendant is the State Insurance Regulatory Authority (“SIRA”). The third defendants are Stephen Buckley, Tai-Tak Wan and Clive Kenna in their capacity as a medical assessors review panel (“review panel”). The second and third defendants have filed a submitting appearance. The plaintiff relies upon the affidavit of her solicitor Michelle Chuong sworn 2 October 2015.

Background of the accident

1. [3]

   Ms Averkiou has been involved in two motor vehicle accidents. She commenced a non-curial personal injury medical dispute assessment process in the Medical Assessment Service (“MAS”) of the Motor Accidents Authority of New South Wales (“MAA”) pursuant to Part 3.4 (ss 57 to 65) of the Act. The MAA has been abolished and is now styled the “State Insurance Regulatory Authority” as of 1 September 2015 per the commencement of the State Insurance and Care Governance Act 2015 (NSW).

2. [4]

   On 10 May 2010, Ms Averkiou was injured in a motor vehicle accident (“the first accident”) on the Eastern Distributor in Sydney. She was the driver of a stationary motor vehicle that was struck in the rear by a vehicle insured by Allianz. She suffered injuries to the neck, back and both shoulders.

3. [5]

   On 1 October 2010, Ms Averkiou was involved in a second accident (“the subsequent accident”) when she was driving near Yass and she collided with a guard rail. She was taken to hospital by ambulance where she was admitted overnight.

4. [6]

   It is the assessment of whole person impairment resulting from the injuries caused by the first accident that is the subject of this judicial review.

Procedural background

1. [7]

   On 13 December 2012, Assessor John Stephen provided a certificate assessing Ms Averkiou’s level of impairment resulting from the first accident at 17%. This certificate contained some information concerning the subsequent accident. This assessment was disputed by Ms Averkiou and on 7 June 2013, a review panel revoked Assessor Stephen’s certificate and issued a new certificate determining that Ms Averkiou’s whole person impairment was 10%. On 19 May 2014, Ms Averkiou sought a further medical assessment on the basis of the availability of additional relevant information in relation to her injuries, namely clinical notes from the Royal Prince Alfred Hospital that were not before the previous assessors. On 17 October 2014, the MAA determined that Ms Averkiou would be referred for a further medical assessment on the basis of the additional relevant information. Assessor Louise Crowle was appointed as the medical assessor. On 19 November 2014 Assessor Crowle carried out the further assessment. On 9 December 2014, a further certificate was provided by Assessor Crowle.

2. [8]

   In her certificate Assessor Crowle determined that the following injuries were caused by the first accident: cervical spine – soft tissue injury; thoracic spine – soft tissue injury; and lumbosacral spine – soft tissue injury. Assessor Crowle also determined that the following injuries were not caused by the first accident: left shoulder – strain; right shoulder – strain; left hip – strain; and right hip – strain. The Assessor concluded that the injuries to Ms Averkiou’s cervical spine and lumbosacral spine each resulted in a whole person impairment (“WPI”) of 5% while the injury to her thoracic spine resulted in a WPI of 0%, giving a total WPI of 10%, which was not greater than 10%. Assessor Crowle’s certificate contained no history concerning the subsequent accident.

3. [9]

   Ms Averkiou sought a review of Assessor Crowle’s assessment on the basis that her assessment was incorrect in a material respect. On 16 February 2015, the proper officer of the MAS referred the matter to a review panel.

The review panel’s request for submissions

1. [10]

   The review panel comprised of Assessors Stephen Buckley, rehabilitation medicine specialist, Tai-Tak Wan, rehabilitation medicine specialist, and Clive Kenna, musculoskeletal medicine specialist. Sarah Tarrant was appointed as secretary. An initial teleconference was arranged for the assessors on 18 March 2015. On 23 March 2015, following the teleconference, the secretary wrote to the parties to advise them of the following:

2. [11]

   It should be noted that the review panel did not request that any further evidence should be furnished.

3. [12]

   The review panel received submissions from both parties. Ms Averkiou’s solicitor submitted that the subsequent accident did not cause any further or additional injury to her and that although she was shaken by the subsequent accident, her level of pain and disability had returned to the level it was at prior to the subsequent accident. Her solicitor submitted that Ms Averkiou did not have any time off work as a result of the subsequent accident.

4. [13]

   The solicitors for Allianz submitted that the available evidence did not permit an assessment of impairment resulting from the first accident but submitted that even if an assessment were possible, it could not be accepted that the injuries were stable and that the assessment would be permanent. Allianz’s solicitors further submitted that, as there were no contemporaneous records indicating injury or symptoms in the shoulders or limbs in the five months following the first accident, the current injuries could not be ascribed to the first accident and therefore must be considered as being related to the subsequent accident.

Findings of the review panel

1. [14]

   On 25 May 2015, the review panel issued a certificate revoking Assessor Crowle’s certificate of 19 November 2014 and determining Ms Averkiou’s WPI at 0%.

2. [15]

   In its reasons, the review panel summarised the data regarding both motor accidents. Regarding the first accident, the police report of 14 March 2012 noted that Ms Averkiou’s car was stationary when a white Toyota van, traveling at 60km/h, crashed into the back of her vehicle. The air bags in her car did not deploy and she immediately experienced neck and back pain. She was only able to leave the vehicle with the assistance of paramedics half an hour after the accident. She was taken by ambulance to the Royal Prince Alfred Hospital (“RPAH”). The ambulance report identified bilateral neck pain and low back pain at the waist level approximately.

3. [16]

   At the RPAH, Ms Averkiou complained of tenderness in the upper lumbar region, reduced strength in the legs and neck and low back pain. Imaging was “all normal”. Ms Averkiou was assessed by the neurosurgical registrar who found no neurological abnormality. She was referred to her local doctor and was discharged from hospital after six and a half hours.

4. [17]

   On 12 May 2010, Ms Averkiou was reviewed by her GP, Dr Monaha, who noted in his record that Ms Averkiou experienced neck and lower back pain. Ms Averkiou visited Mr Monaha on 14 more occasions between 17 May 2010 and 8 October 2010. On seven of these occasions, Ms Averkiou referred to the injuries sustained by her in the first motor accident. On three occasions, Dr Monaha discussed and examined Ms Averkiou’s injuries.

5. [18]

   The review panel summarised the data from physiotherapy assessments of Ms Averkiou between the first and subsequent accidents. The review panel noted that a consultation note was made on 25 May 2010, when Ms Averkiou’s injuries were not stable, identifying shoulder and neck impairments. The review panel found no other direct physiotherapy evidence until 18 November 2011, well after the subsequent accident. The review panel did not find any data concerning the frequency of Ms Averkiou’s visits to the physiotherapist, besides one note within the Workers Compensation Physiotherapy Review, dated 23 December 2011, suggesting she might have been attending one hour appointments fortnightly. The review panel accepted that Ms Averkiou was attending physiotherapy “on some form of regular basis”, although there was no evidence of the frequency of visits between the first and the subsequent accident.

6. [19]

   So far as the subsequent accident was concerned, the review panel set out the information available to them, namely the notes of the Yass District Hospital. The ambulance report of 1 October 2010 contained in these notes identifies that Ms Averkiou experienced a back injury from an accident “four months ago”, as well as the occurrence of a high speed accident where the airbags were deployed and Ms Averkiou complained of lower back pain. She was examined at Yass District Hospital, revealing anterior chest pain and tenderness, which was later confirmed by an x ray as being a fracture of the sternum. Her head, neck, abdomen, pelvis and limbs appeared normal. She was admitted overnight and discharged the next day. The review panel observed that the hospital notes suggest Ms Averkiou had made a very good recovery from injuries sustained in the first accident with respect to the neck, pelvis (hips) and limbs (shoulders).

7. [20]

   Ms Averkiou’s physiotherapist’s notes identify a visit on 25 May 2010 and contain a comment, “review in 2 weeks”. In the next entries the physiotherapist notes that Ms Averkiou did not attend appointments on 7 and 18 October 2010 because of an accident. On 19 October 2010, the physiotherapist recorded a long note regarding difficulties concerning a number of regions on Ms Averkiou’s body. Notes on 16 and 30 November 2010 concern pain in Ms Averkiou’s arm, neck and shoulder. Physiotherapy treatments were very similar up until mid 2011 and involved extensive treatments of many body parts.

8. [21]

   The review panel found “no comment whatsoever” concerning Ms Averkiou’s subsequent accident in her statement dated 17 May 2012. (In fact, Ms Averkiou did recount her subsequent accident at paragraph [31] of her statement, noting that “I recovered fully from this accident in a matter of weeks. I did not make a claim in respect of this motor accident”.)

Decision of the review panel

1. [22]

   The review panel set out the reasons for its decision as follows:

2. [23]

   After setting out the contents of paragraphs 1.33, 1.34 and 1.36, the review panel continued, finding that the accident of 10 May 2010 was the cause of the following claimed injuries: cervical spine-strain/soft tissue injury; thoracic spine-strain/soft tissue injury; lumbar spine-strain/soft tissue injury; and left shoulder-strain.

3. [24]

   The review panel then set out their findings as to the injuries. The review panel determined permanent impairment as follows:

4. [25]

   The review panel attributed the entirety of these impairments to the subsequent accident. Therefore, the total WPI resulting from the first accident was assessed at 0%. Because the review panel’s findings differed from Assessor Crowle’s findings, the review panel revoked her certificate and issued a new one in its place.

The relevant legislation

1. [26]

   The provisions setting out the procedures in relation to medical assessments are contained in Part 3.4 of the Motor Accidents Compensation Act 1999 (NSW). Section 58 relevantly provides for when Part 3.4 applies:

2. [27]

   Relevantly, section 61 sets out the status of medical assessments:

3. [28]

   A medical assessment can be referred for further medical assessment under s 62:

4. [29]

   The Act relevantly provides for a review of a medical assessment by a review panel:

5. [30]

   An assessment of the degree of permanent impairment must be expressed as a percentage and must be made in accordance with the Motor Accidents Medical Guidelines: s 133. Damages may only be awarded for non-economic loss if the degree of permanent impairment as the result of the injury caused by the motor accident is greater than 10%: s 131.

The relevant guidelines

1. [31]

   Assessors and review panels can find guidance in the MAA Permanent Impairment Guidelines, 1 October 2007 (“the Permanent Impairment Guidelines”) and the MAA Medical Assessment Guidelines, 1 October 2008 (“the Medical Assessment Guidelines”). Both sets of guidelines may be characterised as delegated legislation under s 44(1) of the Act. These are guidelines to which s 133 refers.

2. [32]

   The Medical Assessment Guidelines relevantly contains the procedure for review panel assessments under Part 3.4 of the Act. Chapter 16 sets out guidelines for reviews of medical assessments. The review procedure is relevantly contained in clauses 16.21 and 16.22:

3. [33]

   Relevantly, chapter 11 sets out the procedure for medical assessments and chapter 12 sets out the procedure for providing documentation and other supporting material for the purpose of a medical assessment. Accordingly, the review panel has the power to order a medical assessment to be conducted in the same manner as the assessment under review.

4. [34]

   The Motor Accidents Authority Permanent Impairment Guidelines dated 1 October 2007 (“Permanent Impairment Guidelines”) set out the procedure for assessing permanent impairment in the context of a pre-existing impairment and subsequent injuries:

Grounds of judicial review

1. [35]

   Ms Averkiou seeks judicial review on the grounds of a number of jurisdictional errors and/or errors of law on the face of the record or alternatively, that the review panel constructively failed to exercise its statutory power in making the decision. Accordingly, the decision is invalid and should be set aside.

2. [36]

   The grounds of review may be summarised as follows: the impairment from the first accident was wrongly addressed in relation to the subsequent accident (ground (a)); there was no evidence for the review panel’s determination that the subsequent accident was significant (ground (b)); the review panel failed to take into account relevant considerations it was required to take into account (ground (c)); the review panel failed to apply or properly apply clauses 1.33, 1.34 and 1.36 of the Permanent Impairment Guidelines (ground (d)); the review panel failed to set out its reasons (ground (e)); the review panel failed to afford Ms Averkiou procedural fairness by not first disclosing to her the possibility or probability that it might make an adverse finding against her (ground (f)); the review panel applied clauses 1.33, 1.34 and 1.36 of the Permanent Impairment Guidelines where those clauses did not apply and had no role to play in the making of the decision (ground (g)); and the review panel adopted the wrong approach in law in relation to the facts on which it made its causation findings in respect of the injuries sustained in the subsequent accident (ground (h)).

3. [37]

   I will first deal with grounds (a), (d) and (g) together, insofar as they overlap, namely, whether the review panel erred by addressing the first accident in relation to the second and whether the review panel failed to apply or properly apply clauses 1.33, 1.34 and 1.36 of the Permanent Impairment Guidelines. I will deal with the remaining grounds if necessary.

Grounds (a), (d) and (g): addressing the first accident in relation to the second and the application of clauses 1.33, 1.34 and 1.36

1. [38]

   Ms Averkiou submitted that it was not open to the review panel to attribute the entirety of her impairment to the subsequent accident on the basis that no reliable measurement of permanent impairment was available between the first accident and the subsequent accident. By doing so and by failing to undertake its own medical assessment, which the review panel was entitled to do, the review panel erred and its decision was affected by an error of law.

2. [39]

   It was further submitted by Ms Averkiou that this error stemmed from the review panel’s application of the Permanent Impairment Guidelines, namely the application of clauses 1.33 and 1.34, concerning pre-existing impairments, and the erroneous application of clause 1.36, concerning subsequent injuries. With respect to clauses 1.33 and 1.34, Ms Averkiou submitted that the review panel erred in applying clause 1.33 because there was no evidence of any pre existing condition prior to the first accident. Ms Averkiou submitted that, in applying these clauses, the review panel was assessing the injuries caused by the subsequent accident in relation to the first accident and that this was a misapprehension of the function of clauses 1.33 and 1.34. It was wrong for the review panel to apply these clauses.

3. [40]

   With respect to clause 1.36, Ms Averkiou contended that the review panel erred in applying this clause since the purported injuries caused by the subsequent accident occurred in a different region or regions to the injuries caused by the first. Therefore, by applying this clause to the assessment of her injuries, the review panel led itself into error.

4. [41]

   Ms Averkiou further submitted that applying these clauses wrongly was a misunderstanding of the review panel’s statutory role and duty. The review panel led itself into error by asking itself erroneous questions and this constituted an error of law.

5. [42]

   In relation to this ground of review, Allianz submitted that there was no error as the review panel’s approach was “entirely appropriate and consistent with clauses 1.33, 1.34 and 1.36 of the applicable Permanent Impairment Guidelines” because no objective evidence of permanent impairment after the first accident and before the second is available. By virtue of clause 1.36, the review panel’s task was to assess Ms Averkiou’s level of impairment resulting from the subsequent accident as it was at the date of assessment and to then subtract that assessment from the level of impairment caused by the first accident. Counsel for Allianz submitted that the review panel’s application of clause 1.36 enlivened clauses 1.33 and 1.34. Therefore this approach was “logical and correct”.

Consideration

1. [43]

   As previously stated, on 10 May 2010, Ms Averkiou was injured in a motor vehicle accident (the first accident) on the Eastern Distributor in Sydney. She was the driver of a stationary motor vehicle that was struck in the rear by a vehicle insured by Allianz. She suffered injuries to the neck, back and both shoulders. On 1 October 2010, Ms Averkiou was involved in a subsequent accident when she was driving near Yass and she collided with a guard rail. She was taken to hospital by ambulance where she was admitted overnight. It is the assessment of whole person impairment resulting from the injuries caused by the first accident that is the subject of this judicial review.

2. [44]

   Clause 1.33 of the Permanent Impairment Guidelines refers to an impairment in the same region that existed prior to the relevant motor accident, that is, prior to the first accident. (My emphasis). There was no impairment in the same region that existed prior to the first accident. Clause 1.34 sets out the methodology of calculating WPI where there was a prior impairment to the first accident. Clauses 1.33 and 1.34 are not relevant here.

3. [45]

   The relevant clause in this judicial review is clause 1.36. It refers to subsequent injuries. Clause 1.36 states that if there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region its value should be calculated. The permanent impairment resulting from the relevant motor accident should also be calculated. If there is no objective evidence of the subsequent impairment its possible presence should be ignored.

4. [46]

   The review panel stated that the subsequent motor vehicle accident was sufficiently severe to cause a fracture of the sternum. However, the review panel also stated that it had little data available to assess any degree of impairment arising from the first accident.

5. [47]

   The review panel determined that “injuries to the cervical spine, thoracic spine, and lumbosacral spine, did arise in the first accident, but any impairment found now, must be assessed in relation to the subsequent accident, there being no record of any measured impairment before the subsequent accident, in accordance with paragraphs 1.33, 1.34, 1.35, and 1.36, MAA Guides.”

6. [48]

   The review panel was obliged to conduct a review by way of a new assessment: s 63(3A) of the Act. The assessment was to assess the WPI resulting from injuries she suffered to her cervical spine – soft tissue injury; thoracic spine – soft tissue injury; and lumbosacral spine – soft tissue injury, left shoulder – strain; right shoulder – strain; left hip – strain; and right hip – strain.

7. [49]

   The review panel did not assess Ms Averkiou’s WPI in relation to the first accident. Rather it assessed the WPI caused by the subsequent accident.

8. [50]

   The review panel’s task was to assess Ms Averkiou’s level of impairment caused by the first accident on 10 May 2010. The review panel erred in its approach to this assessment by assessing the impairment caused by the first accident “in relation to the second accident … in accordance with paragraphs 1.33, 1.34, 1.35 and 1.36” because the review panel had “no record of any measured impairment before the second accident”. It was illogical for the review panel to apply the clauses relating to pre-existing impairment (cll 1.33, 1.34 and 1.35) as there was no evidence of any injury prior to the first accident. As a result of this approach the appeal panel found a 0% impairment was caused by the first accident.

9. [51]

   In my view the review panel misdirected itself by asking the wrong question and wrongly applying clauses 1.33 and 1.34 of the Permanent Impairment Guidelines. The review panel made a jurisdictional error and an error of law. It follows that the decision of the review panel should be quashed and remitted to the State Insurance Regulatory Authority to be determined according to law.

Grounds (c) and (h): relevant considerations

1. [52]

   Counsel for Ms Averkiou submitted that the review panel failed to consider relevant matters upon which an assessment of whole person impairment resulting from the first accident could be made. It is evident the review panel did fail to take some materials into account as it stated that it had “little data available to assess any degree of impairment arising from the first accident and before the second accident” and it found “no comment whatsoever” concerning Ms Averkiou’s subsequent accident in her statement dated 17 May 2012. Ms Averkiou submitted that these materials include: paragraph [31] of Ms Averkiou’s statement in which she refers to her subsequent accident; her physiotherapy plan dated 27 September 2010 establishing Ms Averkiou had received eight treatments in respect of the first accident; and the clinical notes of her treating general practitioner, Dr Monaha, for the period from 7 June 2010 to 9 September 2010. Ms Averkiou submitted that in failing to do so, the review panel fell into jurisdictional error. However, failure to take into account every piece of evidence does not necessarily involve jurisdictional error: see Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [22]. It is unnecessary to determine this and the remaining grounds of appeal.

Reallocation to a differently constituted review panel

1. [53]

   The plaintiff has sought that the matter be remitted to a differently constituted medical assessors review panel for determination according to law. No reasons are given as to why I should do so. So I decline to do so.

Conclusion

1. [54]

   The result is that review panel’s decision is invalid and should be quashed.

2. [55]

   Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs on an ordinary basis as agreed or assessed.