Lederer v Insurance Australia Limited trading as NRMA Insurance ACN 000016722

1. [1]

   The plaintiff Margaret Lederer was injured in a motor vehicle accident on 3 June 2016 and lodged a claim for damages under the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”). The first defendant Insurance Australia Limited is the CTP insurer of the vehicle accepted as at fault in the accident (“the insurer”). There was a dispute between the plaintiff and the insurer as to the percentage of whole person impairment arising from the accident, and whether a two-level discectomy and fusion surgery at C5/6 and C6/7 performed on the plaintiff was caused by the accident and/or reasonable and necessary in the circumstances. It is common ground that if the fusion surgery was causally related to the accident, the plaintiff’s impairment would have exceeded the 10% threshold for eligibility for damages for non-economic loss under MAC Act, s 131. The third defendant, a medical assessor appointed under MAC Act, s 60, issued a certificate pursuant to s 61 certifying that the fusion surgery did not relate to the injuries caused by the accident, and thus the plaintiff’s whole person impairment did not exceed 10%. The plaintiff applied for a review of the assessor’s decision, which was opposed by the insurer. The application for a review was refused by a delegate of the President of the Personal Injury Commission on 4 May 2021.

2. [2]

   By summons filed on 2 August 2021, the plaintiff seeks judicial review both of the assessor’s decision and of the delegate’s decision. In this context, a decision of the delegate declining to refer an application to a review panel leaves the decision of the assessor as the operative decision, which remains amenable to judicial review. [1]

3. [3]

   In respect of the assessor’s decision, the plaintiff requires an extension of time in which to apply for judicial review. The delay was attributable to the plaintiff having first sought a review of the decision pursuant to MAC Act, s 63, in the Commission. It is appropriate for a party first to exhaust review remedies in the tribunal below before seeking prerogative relief. [2] No submission was made in opposition to the grant of an extension of time for that purpose.

Statutory framework

1. [4]

   Under MAC Act, s 58, whether treatment provided to an injured person was or is reasonable and necessary in the circumstances, and whether any such treatment relates to the injury caused by the motor accident, are “medical assessment matters”. By s 60, a medical dispute may be referred for assessment by an assessor. By s 61(1), a medical assessor to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment.

2. [5]

   Pursuant to s 133(2) the assessment of the degree of permanent impairment is to be made in accordance with the NSW State Insurance Regulatory Authority (SIRA) Motor Accident Permanent Impairment Guidelines (“the PI Guidelines”). The then applicable guidelines provided (emphasis added):

3. [6]

   The PI Guidelines further provided, regarding the assessment of impairment:

4. [7]

   Section 63 of the MAC Act provides for the review of a medical assessment by a review panel. Under s 63(1), a party to a medical dispute may apply to the President of the Commission to refer a medical assessment by a single assessor to a review panel of assessors for review. By subsection (2), such an application may only be made on the grounds that the assessment was incorrect in a material respect. Section 63(2B) provides that the President’s delegate is to arrange for any such application to be referred to a review panel (of two medical assessors and a member of the Commission assigned to its Motor Accidents Division: s 63(3)) but only if the delegate is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. However, if the matter is referred for review, the review is not limited to a review only of that aspect of the assessment which is alleged to be incorrect, but is by way of new assessment of all the matters with which the assessment is concerned.

The initial assessment

1. [8]

   On 28 August 2018, the plaintiff made an application for assessment of permanent impairment. In her evidentiary statement dated 8 August 2018, the plaintiff stated that immediately after the impact she felt severe pain in her spine, from the neck down into the lower back and hips, and that upon discharge from hospital two days later, she had inter alia, neck pain, back pain, right hip pain and nausea. The neck pain was described as “more so on the right side where my head was turned … at the time of the collision”. She said that during a trip to the United States in June 2016 she was very sick and had to lie down on the flight to Los Angeles “due to pain my neck, back, hip, legs, calf pain and nausea”. She said that after returning to Sydney, she continued to suffer symptoms including “pain in the neck and back”. As to her (then) current condition, she described pain in the neck, more so on the right side, which she said she had never had of that type prior to the accident. She described right sided neck pain moving around to her face, radiating into her chest and right shoulder, down into her right arm as far as her fingers, and that it was constant and so bad that it woke her at night.

2. [9]

   Following the accident, the plaintiff was admitted to St Vincent’s Hospital. The discharge summary included, in the history, “C-Spine immobilised on scene. On arrival to Emergency, she reported lumbar spine/buttocks pain but was otherwise was asymptomatic”. On examination there was “nil tenderness” of the cervical spine.

3. [10]

   On 7 June 2016, three days after the accident, the plaintiff attended her general practitioner Dr Segel, who noted “patient felt dizzy yesterday and was worried about her neck and brain – other occupant in the rear had brain haemorrhage” and “did not have any x-rays of the C-Spine felt there was some acceleration / deceleration of the head”. Recording that there had been a loss of consciousness, the doctor noted “pain present bilaterally post aspect of the C-spine” and “level of the pain in the neck is 3/10”. On examination there was “non-tender palpation of the C-spine” and “full range of movement in the C-spine”. He referred her for x-ray of the cervical spine, which revealed that the “C-spine was straightened. There were degenerative changes at C4/5, C5/6 and C6/7. There was likely foraminal stenosis at C5/6 and C6/7 with potential nerve root impingement. There were no fractures”. According to Dr Segel’s notes, the x-rays were noted by him on 9 June 2016 in the following terms:

4. [11]

   It was uncontroversial that such degenerative changes could not have occurred in the preceding five days. Moreover, Dr Segel’s notes also contained a reference to consultation, a year before the accident, on 27 July 2015, the notes of which included the following:

5. [12]

   Thus there was evidence of some degenerative changes in the cervical spine well before the accident, and that whereas they had not been symptomatic before the accident, they were afterwards.

6. [13]

   On 2 January 2019, an assessor certified that the plaintiff had a number of injuries caused by the accident, including relevantly “cervical spine – soft tissue injury”.

The application for further assessment

1. [14]

   On 18 May 2020, the plaintiff applied for a further assessment on the basis that there had been a deterioration in her condition. On her application for further assessment of permanent impairment, which culminated in the decision impugned in these proceedings, to the subject assessment, the plaintiff submitted that:

   1. (1)

      the accident was a high-speed accident in which she was subjected to significant acceleration and deceleration forces;

   2. (2)

      she reported neck pain since the accident which continued and progressed relentlessly, it being noted in her first consultation with her GP on 7 June 2016;

   3. (3)

      conservative treatment did not alleviate her symptoms; and

   4. (4)

      she then underwent C5/6 anterior discectomy fusion and C6/7 anterior discectomy fusion by Dr Steel on 19 July 2019, which was successful, resulting in an improvement in cervical symptoms and nausea.

2. [15]

   In a further evidentiary statement of 30 March 2020, the plaintiff stated that she had been suffering neck pain ever since the accident; that the neck pain had progressed and got worse despite physiotherapy, acupuncture, rest, injections and medication; that the neck pain was constant, worse on the right side and travelling down her right side; and that she also had pain from the neck across the right side of her face and chest. She explained that after consulting Dr Steel, and a steroid injection, she underwent the double cervical fusion surgery on 19 July 2019.

3. [16]

   In a report dated 30 May 2019, Dr Steel, consultant neurosurgeon and spine surgeon, stated, relevantly, that:

4. [17]

   Dr Steel also responded to an opinion of Dr Coroneos, Neurosurgeon, relied on by the insurer, to the effect that the effects of the accident had resolved and the changes on images were related to spondylosis and a thoracic cyst:

5. [18]

   Significant parts of Dr Steel’s opinion were quoted in her submissions, including in particular that with severe whiplash, the disc can be injured, “setting off a degenerative cascade which appears to have occurred in this case”, and that while it was correct that she had had cervical spondylosis, her description of severe mechanical neck pain starting after the accident was in keeping with changes seen on the MRI scan and typical of severe disc degeneration rather than with gradual degenerative changes.

6. [19]

   In his reasons for decision, the assessor noted that the impact was a significant one, and that on attending Dr Segel on 7 June 2016 the plaintiff complained of neck as well as back and right hip pain. Of the discharge summary of 5 June 2016, he observed that there was no C-spine tenderness; likewise, that the ambulance record referred to no C-spine tenderness. He commented that St Vincent’s was a level 1 trauma centre which would follow trauma protocol, in particular that cervical spine injuries are suspected until excluded, and that it was routine to perform cervical spine imaging on all patients, though now clinical clearance could be given without imaging. He said:

7. [20]

   He summarised Dr Segel’s notes of 7 June 2016, including the complaint of neck pain; that doctor’s view that there was a whiplash injury; and the notes of 9 June describing the C-spine x-rays and the changes they disclosed, commenting:

8. [21]

   The assessor observed that Dr Segel had made notes of attendances on 16 February 2017 when the plaintiff had complained of “right sided neck pain worse with movement”, and on 9 March 2017 when he viewed an MRI of the C-spine describing degenerative changes consistent with age. He also noted her attendance prior to the accident on 27 July 2015, “after bone scan with CT SPECT there were multiple sites with active arthritis in cervical thoracolumbar spondylitic changes”.

9. [22]

   He reviewed the medical documentation, including that which has been described above. Relevant to cervical spine, he noted the following:

   1. (1)

      MRI of 6 March 2017 (I-Med Radiology):

   2. (2)

      MRI 22 February 2018 (St Vincent’s Clinical Imaging):

   3. (3)

      MRI of 21 August 2018 (St Vincent’s Clinic Imaging):

   4. (4)

      MRI of 15 April 2019 (St Vincent’s Clinic Medical Imaging), on which he commented:

   5. (5)

      CT of 22 July 2019 (St Vincent’s Medical Imaging):

10. [23]

    The assessor also referred to several medico-legal reports:

    1. (1)

       Dr Peter Yu (Occupational Physician) dated 31 May 2017, who on examination found a full range of neck movement and no neurological signs, and formed the view that plaintiff had sustained a superficial self-limited gradient soft tissue injury to her low back as a result of the accident;

    2. (2)

       Associate Professor Jankelowitz (Neurologist) 30 October 2018, who described that the plaintiff had repeated imaging showing only degenerative changes of her neck; and

    3. (3)

       Dr Coroneos (Neurosurgeon) of 30 February 2019, who expressed the view that the plaintiff had experienced a cervical and lumbosacral soft tissue strain as a result of the accident with no evidence of any structural spine or disc injury having occurred and no evidence of radiculopathy. He was of the view that there was longstanding cervical lumbar spondylosis and that the changes pre-existed the accident.

11. [24]

    Turning to relevant additional documentation provided for the further assessment, he referred to Dr Steel’s report of 30 May 2019. It is true that he observed that the plaintiff’s reported complaint of right-side pain in the neck immediately following the accident was not reflected in the hospital notes, but I do not think this meant that he rejected it. He then recorded:

12. [25]

    Under the heading “Conclusions”, the assessor first considered “Diagnosis and Causation”, and reasoned:

13. [26]

    He determined that in connection with her cervical spine the plaintiff had a whole person impairment of 5%, for reasons that included:

14. [27]

    Accordingly, the assessor concluded that the subsequent need for surgery related to pre-existing degenerative changes and was not the result of the accident. He continued:

15. [28]

    While the assessor referred to Dr Steel’s report, and summarised the passages extracted above, his reasons do not explain why he did not accept it.

The review application

1. [29]

   By application filed on 27 February 2021, the plaintiff applied for a review of the assessment, complaining that the assessor erred in assessing whole person impairment at under 10% and determining the surgery to the cervical spine was not causally related to the accident nor reasonable and necessary. The supporting submissions contended that the assessor has made material errors by:

   1. (1)

      treating an absence of contemporaneous evidence as determinative in relation to causation;

   2. (2)

      failing to respond to a substantial and clearly articulated argument;

   3. (3)

      failing to provide lawful reasons; and

   4. (4)

      failing to apply the lawful test of causation.

2. [30]

   Those grounds for review are reflected in the grounds on which the present application for judicial review is advanced.

3. [31]

   The delegate’s reasons of 4 May 2021 addressed and rejected each of those grounds. In respect of the complaint of failure to respond to a substantial and clearly articulated argument, the delegate said:

4. [32]

   The applicant did not suggest that there was any basis for judicial review of the delegate’s decision independent from the grounds on which the medical assessor’s decision was impugned, and accepted that the application in respect of the review decision hinged on the outcome of the application for a review of the first instance assessment.

Grounds for judicial review

1. [33]

   In this Court, the plaintiff applicant advanced six grounds of alleged jurisdictional error or error of law on the face of the record, namely:

   1. (1)

      failure to respond to a substantial and clearly articulated argument;

   2. (2)

      failure to provide lawful reasons;

   3. (3)

      failure to apply the lawful test of causation;

   4. (4)

      treating the absence of contemporaneous evidence as determinative;

   5. (5)

      failure to enquire; and

   6. (6)

      failure to evaluate the evidence in accordance with the PI Guidelines.

2. [34]

   It may be accepted that a failure to respond to a substantial clearly articulated argument may constitute a denial of natural justice. [3] However, this does not imply an obligation to consider every piece of evidence presented or every passage in a report. [4]

3. [35]

   It is also uncontroversial that an assessor is required to provide reasons, [5] and that the statement of reasons must explain the actual path of reasoning by which the assessor arrived at the opinion formed on the medical question under consideration, in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. [6] What is required to discharge that obligation is informed by the battleground between the parties. This was explained (albeit in the context of a review panel) in Campbelltown City Council v Vegan: [7]

4. [36]

   Similarly, in Alchin v Daley it was said: [8]

5. [37]

   Reference has already been made to the PI Guidelines, clause 1.17 of which mandates that an assessor must evaluate the available evidence, which is reflected in clause 1.18 describing the first stage of an assessment as a “review and evaluation of all the available evidence”. Failure to comply with mandatory guidelines may constitute a constructive failure to perform the assessor’s statutory duty. [9] The obligation to “evaluate” all the available evidence involves no less, and possibly more, than the obligation to “consider” certain matters, which requires that the assessor intellectually engage with and evaluate that evidence. [10]

Failure to respond to substantial argument, give reasons, evaluate evidence

1. [38]

   The grounds that complain that the assessor failed to respond to a substantial and clearly articulated argument, failed to provide lawful reasons, and failed to evaluate the evidence in accordance with the guidelines, overlap.

2. [39]

   The plaintiff’s case in this Court was, in essence, that her fundamental case before the assessor was that the accident had caused a whiplash injury that triggered a “degenerative cascade” of her cervical spine culminating in the need for surgical intervention. The plaintiff did not dispute that she had a pre-existing degenerative condition, and she did not contend that she suffered an acute injury to the cervical spine in the accident, but that her pre-existing condition had been exacerbated and rendered symptomatic (when it was previously not symptomatic) by the accident. Then, the plaintiff submits, this argument was not addressed by the assessor, meaning that there was a failure to respond to a substantial and clearly articulated argument, a failure to provide adequate reasons, and a failure to engage intellectually with and evaluate the available evidence.

3. [40]

   As has already been observed, the assessor, in the course of his document review, referred to Dr Steel’s report, including his reference to the motor vehicle and whiplash injury setting off a “degenerative cascade”. In his conclusions, he reasons that:

   1. (1)

      the course of events on the plaintiff’s admission to hospital are not indicative of significant neck pain; and

   2. (2)

      she had pre-existing spinal disease, and her imaging did not show acute changes.

4. [41]

   As has also been noted, he concurred that there would have been soft tissue injury to her cervical spine at the time of the accident.

5. [42]

   There is nowhere to be found, in the assessor’s reasons, any explanation as to why a “degenerative cascade” was not triggered by the accident. It is clear from his concluding observations that it was the “lack of convincing evidence of significant structural injury” that was determinative, but he did not address Dr Steel’s explanation that a severe whiplash injury can injure the disc setting off a degenerative cascade “which appears to have occurred in this case” – which he elaborated, explained and justified including by reference to the presence of Modic type one changes indicating oedema which were not typical of spontaneous cervical spondylosis.

6. [43]

   For the insurer, Mr Rewell SC submitted that by focussing on whether there was an acute injury the assessor had not misunderstood the case, but appropriately as a medical assessor was not merely determining the plaintiff’s case that there was a “degenerative cascade”, but determining whether there was a neck injury which led to the surgery, and this included first whether there was an acute injury, and if not, whether the degenerative condition was pre-existing, or was triggered by the accident.

7. [44]

   I agree that the assessor was not required to respond word by word to Dr Steel’s analysis. But he was required to consider, and to show that he had considered, the question of whether pre-existing age-related degenerative illness was aggravated and/or rendered symptomatic by the accident. This is particularly so in circumstances where:

   1. (1)

      there is no evidence that the plaintiff’s neck was other than asymptomatic before the accident;

   2. (2)

      the motor vehicle in which she was travelling was “rear ended” by another at high speed;

   3. (3)

      it is accepted that she incurred a soft-tissue injury of the cervical spine in the accident;

   4. (4)

      on any view, she was complaining of neck pain within three days after the accident (and on her account suffered such pain immediately), and that pain progressively deteriorated, although at one stage it was alleviated by a steroid injection; and

   5. (5)

      it was ultimately somewhat mitigated by Dr Steel’s surgery.

8. [45]

   Even if one puts aside her own evidence of immediate symptoms and relies only on Dr Segel’s notes of 7 June 2016, the concurrency of her neck pain becoming symptomatic with the soft-tissue cervical injury admittedly incurred in the accident is striking. Even without Dr Steel’s evidence, this required consideration of the familiar phenomena by which a pre-existing asymptomatic age-related degenerative condition becomes symptomatic because of some trauma. In this case, that was fortified by Dr Steel’s evidence.

9. [46]

   The assessor rejected that the plaintiff had an acute neck injury in the accident (as is common ground), and accepted that she had a pre-existing spinal disease (as is common ground). He accepted that she incurred a soft-tissue injury to her cervical spine in the accident. However, he nowhere addressed the question of whether the pre-existing disease was aggravated or rendered symptomatic by the accident. In so doing, he failed to engage with and evaluate Dr Steel’s report; and he failed to engage with the substance of the plaintiff’s case, or to give reasons which explained why he rejected it.

10. [47]

    The insurer referred to the delegate’s decision on the review application as supportive of its position that the assessor had not failed to respond to the plaintiff’s case. The relevant parts of the delegate’s decision have been set out above.

11. [48]

    With respect, in pointing to places in which the assessor’s reasons mentioned, and even commented on aspects of, Dr Steel’s report, the delegate does not demonstrate that the assessor engaged with his crucial opinion that she had sustained a whiplash injury setting off a “degenerative cascade”. The peripheral respects in which the assessor addressed Dr Steel’s report did not amount to evaluating his essential and crucial opinion, nor responding to the gravamen of the plaintiff’s case.

12. [49]

    In my opinion these grounds have been established.

Conclusion

1. [50]

   As the assessor, by failing to respond to a substantial and clearly articulated argument, to provide lawful reasons, and to evaluate the evidence in accordance with the guidelines, erred in a jurisdictional respect, the decision, medical assessment and certificate dated 7 December 2020 are void. It is unnecessary to address the remaining grounds. As there was no valid assessment, the decision on the review application is also a nullity.

2. [51]

   My orders are:

   1. (1)

      Pursuant to Uniform Civil Procedure Rules 2005, r 59.10, extend time to the date on which the summons was filed for the commencement of these proceedings with respect to the decision, medical assessment and certificate of the third defendant in his capacity (at that time) as a medical assessor of the State Insurance Regulatory Authority dated 7 December 2020 purportedly made pursuant to Motor Accident Compensation Act 1999 (NSW), s 61 (“the medical assessor’s decision”).

   2. (2)

      Quash the medical assessor’s decision.

   3. (3)

      Quash the decision of the President’s Delegate of the Personal Injury Commission of New South Wales dated 4 May 2021 purportedly made pursuant to s 63 of the Act dismissing the plaintiff’s application for review of the medical assessor’s decision.

   4. (4)

      Order that the proceedings be remitted to the Personal Injury Commission for determination of the application for medical assessment by a different medical assessor.

   5. (5)

      Order that the first defendant pay the plaintiff’s costs.