Insurance Australia Limited t/as NRMA Insurance v Kwarteng

1. [1]

   By summons filed on 4 September 2025, the plaintiff (NRMA) seeks judicial review of a decision dated 6 June 2025 by a Review Panel of the Personal Injury Commission (PIC) exercising jurisdiction under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (MAI Act).

2. [2]

   The Review Panel revoked a certificate dated 31 July 2024 by Medical Assessor Woo, who had assessed the first defendant, Ms Naomi Kwarteng, as having a degree of permanent impairment of 5%. The Review Panel issued its own certificate certifying that Ms Kwarteng had a 12% impairment as a result of a motor accident.

3. [3]

   NRMA contends that the Review Panel’s decision was affected by jurisdictional error or error of law on the face of the record (see Jarvis v Allianz Australia Insurance Ltd (2022) 102 MVR 476; [2022] NSWCA 232 at [41] per Basten AJA, Bell CJ agreeing).

4. [4]

   For the following reasons, the summons will be dismissed, with costs.

Legislative framework summarised

1. [5]

   Section 4.11 of the MAI Act provides:

2. [6]

   Section 4.12(1) of the MAI Act deals with the assessment of permanent impairment. It provides:

3. [7]

   Division 7.5 of the MAI Act governs medical assessments. A “medical dispute” is defined in s 7.17 as meaning:

4. [8]

   A “medical assessment matter” is defined in s 7.1 as “a matter declared by Schedule 2 to be a medical assessment matter for the purposes of this Part”. Schedule 2, cl 2(a) of the MAI Act provides that the following is a medical assessment matter:

5. [9]

   The President of the PIC is empowered to appoint medical assessors to assess medical disputes: Personal Injury Commission Act 2020 (NSW) (PIC Act) s 33. Medical assessors are required to conduct a medical assessment in accordance with the State Insurance Regulatory Authority’s Motor Accident Guidelines: MAI Act s 7.21(1). They are to issue a certificate on the matters referred for assessment with reasons explaining their findings: MAI Act ss 7.23(1), (7). The Guidelines state in cl 6.21 that: “The evaluation should only consider the impairment as it is at the time of the assessment”.

6. [10]

   Part 6 of the Guidelines deals with causation of injury and includes the following material:

7. [11]

   Section 7.26 of the MAI Act deals with the review of medical assessments. Sub-sections (1)-(2) provide:

8. [12]

   A matter may be referred to a Review Panel by a party to the application “only if the President 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”: MAI Act s 7.26(5).

9. [13]

   The Review Panel is constituted by two medical assessors and one member of the PIC who is a member assigned to the Motor Accidents Division of the Commission, as chosen by the President of the PIC: MAI Act s 7.26(5A). Although described as a “review”, the Review Panel is tasked to conduct “a new assessment of all the matters with which the medical assessment is concerned”: MAI Act s 7.26(6). Importantly, it is explicitly provided that any medical re-examination of the claimant for the purposes of a review need not be conducted by all of the members of the Panel where the members agree that only some of them should conduct the re-examination: MAI Act s 7.26(6A). The Review Panel “may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned”: MAI Act s 7.26(7). Section 7.26(9) provides that s 7.23 applies to any new certificate given by a Review Panel under s 7.26. Consequently, reasons must be provided.

10. [14]

    Further, r 128 of the Personal Injury Commission Rules 2021 (NSW), which are made under s 20 of the PIC Act, provides:

Background summarised

1. [15]

   On 24 April 2021, Ms Kwarteng was injured in a motor vehicle accident. Ms Kwarteng and NRMA were in disagreement about Mr Kwarteng’s degree of permanent impairment under Sch 2, cl 2(a) of the MAI Act.

2. [16]

   On 4 September 2023, Ms Kwarteng lodged an application for medical assessment with the PIC. NRMA lodged its reply to that application with the PIC on 25 September 2023. The matter was referred to Medical Assessor Woo, who examined Ms Kwarteng on 25 July 2024.

3. [17]

   Medical Assessor Woo provided his decision on 31 July 2024, assessing Mr Kwarteng’s degree of permanent impairment at 5% and issuing a certificate under s 7.23(1) of the MAI Act to that effect.

4. [18]

   Medical Assessor Woo assessed 0% whole personal impairment (WPI) for each of “Cervical spine DRE I”, “Thoracic spine DRE I” and “Lumbar spine DRE I”, noting that there were “Symptoms of injury with no clinical signs of radiculopathy”.

5. [19]

   Medical Assessor Woo found the defendant to be “a poor historian” who was “unable to provide details of the treatment she received following the motor accident”. He found that she had the following “inconsistencies”:

6. [20]

   Medical Assessor Woo assessed WPI for “Right shoulder” at 5%. He opined that:

7. [21]

   The reference to “extreme inconsistent assessment” was a reference to the varying conclusions reached by medical practitioners in the material considered by Medical Assessor Woo, including:

   1. (1)

      Dr Mohammed Assem’s certificate dated 20 February 2023, which characterised the “intrasubstance tear of supraspinatus tendon” in Ms Kwarteng’s right shoulder as a “non-minor injury”;

   2. (2)

      Dr Yuk Kai Lee’s report dated 10 March 2023, which assessed Ms Kwarteng’s WPI at 21% and noted that her impairment “may fluctuate more than 3% in the next 12 months” and she may require surgery; and

   3. (3)

      Dr Stephen Rimmer’s report dated 23 June 2023, where he opined that:

8. [22]

   On 28 August 2024, Ms Kwarteng applied for a review of Medical Assessor Woo’s decision. NRMA opposed that application, lodging its reply with the PIC on 16 September 2024.

9. [23]

   On 8 October 2024, Ms Stephanie Wigan, a delegate of the President of the PIC, referred Ms Kwarteng’s review application to the Review Panel on the basis that she was satisfied that there was reasonable cause to suspect that Medical Assessor Woo’s medical assessment was incorrect in a material respect. Ms Wigan reached this state of satisfaction in view of Ms Kwarteng’s submission that Medical Assessor Woo did not put to her the allegation that she was exaggerating her symptoms, thereby denying her procedural fairness.

10. [24]

    On 6 June 2025, the Review Panel made its determination, revoking Medical Assessor Woo’s certificate and issuing its own under s 7.26(7) of the MAI Act. The Review Panel assessed Ms Kwarteng’s degree of permanent impairment at 12%.

11. [25]

    The Review Panel was comprised of General Member Gary Patterson, Medical Assessor Christopher Oates and Medical Assessor Michael Couch.

12. [26]

    The Review Panel published a certificate and statement of reasons for its determination on 6 June 2025. The certificate appears on page 1 and the statement of reasons commences on the following page. Significantly, it is divided into several distinct sections under the headings, “INTRODUCTION”, “ASSESSMENT UNDER REVIEW”, “THE REVIEW”, “OTHER ASSESSMENTS”, “STATUTORY PROVISIONS”, “MATERIAL BEFORE THE REVIEW PANEL” and, commencing on page 10, a section headed “EXAMINATION REPORT”. The statement of reasons then concludes with several paragraphs under the heading, “FINDINGS” before the section titled “CONCLUSION”. There can be no doubt that the Panel as a whole was responsible for all sections of the statement of reasons with the exception of the part dealing with the Examination Report, for which the two medical assessors were responsible.

13. [27]

    The Review Panel’s reasons set out the details of the motor accident which gave rise to the medical assessment, the procedural history, its approach to the evidence, and the relevant statutory provisions. The Review Panel referred several times in its reasons to Ms Kwarteng’s claim that she had felt “a direct impact of her right shoulder against the car door” and also referred to her complaints of injury and pain relating to her right shoulder, including to her general practitioner, Dr Oreb. The Review Panel stated at [8] that it had read all the documentation provided by the parties and added that, if a particular document was not referred to by the Panel, this did not mean that the Panel, or a Panel Member, had not read it nor taken it into consideration. It further stated at [9] that the fact that evidence was not referred to in the reasons did not mean that the evidence had been overlooked. It added that the Panel has “come to its own conclusions and has taken its own history”. The reasons also summarise the material “which the Panel has considered”.

14. [28]

    Under the heading “Examination Report”, the reasons reproduced in full the seven page examination report of the two medical assessors. In describing Mr Kwarteng’s current symptoms, the medical assessors noted that her worst pain was in the right shoulder and that she could not drive because of right shoulder pain. The assessors referred to Ms Kwarteng’s experiences with her right shoulder injury, including being woken up at night by the pain when she rolled onto her right shoulder.

15. [29]

    In the section of the Examination Report which addressed upper extremity, the medical assessors noted that they had measured the active range of movement with a goniometer and that, after carefully explaining to Ms Kwarteng the importance of her demonstrating her best efforts at active range of movement, the medical assessors had “decided that the range of movement demonstrated that the right shoulder was reflective of her genuine effort”.

16. [30]

    Although the medical assessors determined 0% WPI for “Cervical spine”, “Thoracic spine” and “Lumbar spine”, they found 12% WPI for “Right shoulder”:

17. [31]

    The medical assessors also recorded in their Examination Report that there was “no inconsistency observed” and “[n]o abnormal illness behaviour or exaggeration of … clinical presentation” by Ms Kwarteng.

18. [32]

    The Review Panel’s central findings and reasoning are subsequently set out at [25]-[30] of its reasons:

Consideration and determination

1. [33]

   NRMA raised the following grounds of review:

   1. (1)

      The Review Panel:

   2. (2)

      The Review Panel failed to expose its actual path of reasoning for its findings.

   3. (3)

      The Review Panel constructively failed to exercise its jurisdiction and denied NRMA procedural fairness by failing to respond to a substantial and clearly articulated argument made by NRMA.

2. [34]

   Grounds 2 and 3 overlapped. For the reasons that follow, all three grounds of review will be rejected.

3. [35]

   NRMA submits that the Review Panel’s decision was affected by jurisdictional error because the medical assessment was not carried out by the Review Panel as a whole. NRMA acknowledged that a medical re-examination carried out for the purpose of a review “need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members”: MAI Act s 7.26(6A).

4. [36]

   The current regime under the MAI Act differs from the previous CTP scheme (governed by the Motor Accidents Compensation Act 1999 (NSW)) which did not provide for the participation of a non-medical assessor in the medical review process. When the MAI Act was first enacted in 2017, it also made no such provision. However, on 1 March 2021, the MAI Act was amended to mandate the “mixed” constitution of the Review Panel for the purposes of a review of a medical assessment (being two medical assessors and one member assigned to the Motor Accidents Division of the PIC). At the same time, s 7.26(6A) was inserted.

5. [37]

   NRMA suggested that there are several “essential elements” which must be collectively determined by all members of the Review Panel: the nature of the injuries, whether those injuries were caused by the motor accident in question, and the degree of permanent impairment resulting from the injuries.

6. [38]

   NRMA contends that the legal member of the Review Panel “appears to have taken no part in the decision-making process aside from adopting a decision already made” by the Panel’s two medical assessors, who had undertaken “the operative part of the medical assessment process” with respect to Ms Kwarteng.

7. [39]

   In support of its position, NRMA referred to Allianz Australia Insurance Limited v Salucci (2023) 106 MVR 154; [2023] NSWSC 1593 where Schmidt AJ observed at [66]-[70]:

8. [40]

   NRMA also referred to Buestami v Allianz Australia Finance Ltd (2025) 109 MVR 295; [2025] NSWSC 465 in its submissions, where Garling J said at [14]:

9. [41]

   I do not consider that these passages assist NRMA. They do not reach a concluded view as to how a legal member must participate in a medical assessment in order for there to be a collective judgment by the Review Panel. In any event, the Review Panel’s reasons here disclose that the Panel had “read all the documentation” and had “come to its own conclusions and … taken its own history”. The Panel then set out and summarised the applicable statutory provisions as well as the reports of various medical practitioners that were before the Panel, indicating that it had grappled with the relevant evidence and understood the task that it was required to undertake in respect of not only the medical re-examination but the medical assessment more generally. The reasons reveal that a clear distinction was drawn between the opinion of the medical assessors and the opinion of the Panel as a whole.

10. [42]

    Although the Review Panel adopted the findings and reasons of its medical assessors (including in respect of the items identified by NRMA at [37] above), it did not do so uncritically without evaluating the contents of the Examination Report and making its own collective judgment about whether the findings it contained ought to be accepted. It is apparent that the Panel preferred the “current symptomatology, as found by the Medical Assessors, upon examination”, having noted that “the previous assessments [by other medical practitioners] are outdated”. The Review Panel also observed that its medical assessors’ findings were “similar to those of Dr Lee in relation to the right upper extremity”.

11. [43]

    It is notable that, at [29] of the reasons (which forms part of the Panel’s findings and is separate from the medical assessors’ Examination Report), the Panel recorded that it was “surprised by the trenchant comments made by Dr Rimmer [concerning Ms Kwarteng’s alleged falsification of her medical condition] and wonders whether cross-cultural factors may have caused some misunderstandings”. These remarks indicate that, contrary to NRMA’s submission, the Panel did exercise its collective judgment in evaluating the medical assessors’ Examination Report (as well as the other material before it) before coming to a view that a new certificate indicating a WPI of 12% should be issued.

12. [44]

    NRMA also contended that the Review Panel failed to provide reasons that exposed what part, if any, was played by the legal member in making the decision and that this amounted to an error of law on the face of the record.

13. [45]

    I do not accept this submission. The reasons forming part of the Review Panel’s certificate are properly viewed as the collective reasons of each of the medical assessors as well as the legal member, as is made clear at [25] of the Panel’s reasons.

14. [46]

    Moreover, as noted above, the explicit terms of the reasons make clear that the Panel as a whole was responsible for all sections of the reasons, with the exception of the Examination Report. It reflects the opinions of the medical assessors but those opinions were then adopted and applied by the Panel as a whole.

15. [47]

    Ground 1 is rejected.

16. [48]

    NRMA’s submission is also contradicted by a document which was tendered by Ms Kwarteng, without objection, during the course of the hearing. The document is an email sent by the PIC on 3 April 2025, which is the day after the medical re-examination and nine weeks before the Review Panel published its determination. The document confirms that there would be a post-examination conference on 16 April 2025 at 5pm. The email describes the “Decision Maker” as “Michael Couch, Gary Patterson, Christopher Oates” and informs the parties that there would be a teleconference of approximately one hour.

17. [49]

    It is an agreed fact that the teleconference proceeded with only the three panel members present. It may comfortably be inferred that the Review Panel discussed the re-examination carried out by the medical assessors and also, most probably, the assessment more generally. There is no evidence that there existed at that time a draft Examination Report or a draft statement of reasons, but that does not assist NRMA in its judicial review challenge. A more probable inference is that those written materials were produced after the teleconference with the involvement of all three panel members. It is unlikely that any such draft written material would have been made available to the parties’ representatives for the purposes of the conference. It is well settled that there is no obligation on an administrative decision-maker to disclose its internal deliberative processes.

18. [50]

    NRMA also submitted that the Review Panel’s decision involved an error of law on the face of the record because it failed to expose its actual path of reasoning (see Allianz Australia Insurance Ltd v Susak [2025] NSWCA 91) in relation to:

    1. (1)

       why it was satisfied that Ms Kwarteng was applying maximal effort in her right shoulder range of motion;

    2. (2)

       why it found that there was no abnormal illness behaviour, exaggeration of symptoms or inconsistencies, despite finding that Ms Kwarteng exhibited sub-maximal effort in respect of the cervical spine; and

    3. (3)

       why it found that the pathology in Ms Kwarteng’s right shoulder was causally related to the motor accident.

19. [51]

    In Susak, the Court referred to Bell P’s summary of the relevant principles concerning review of the adequacy of reasons in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77]:

20. [52]

    Naturally, these principles need to be applied having regard to the relevant legislative framework within which an administrative decision-maker provides reasons.

21. [53]

    On the issue of Ms Kwarteng’s shoulder range of motion, the medical assessors explained in their Examination Report that they had (emphasis added):

22. [54]

    The medical assessors used the “active ROM” methodology to assess Ms Kwarteng’s shoulder movements. It is apparent that they formed their own view, based on their first-hand observations when conducting the medical re-examination, that Ms Kwarteng was not exaggerating her clinical presentation and was applying maximal effort in her shoulder movements. The Review Panel adopted this view.

23. [55]

    There was no legal requirement for the medical assessors to give a more fulsome explanation as to why they considered that Ms Kwarteng applied maximal effort. Particularly so in circumstances where they had emphasised the importance of her demonstrating her best efforts and where their physical examination included the use of a goniometer to test her active range of movement.

24. [56]

    NRMA claimed that there was an internal inconsistency between the Review Panel’s earlier finding that the range of movement demonstrated at the right shoulder was reflective of Ms Kwarteng’s “genuine effort” and the earlier finding concerning the cervical spine. That earlier finding was to the effect that power on Ms Kwarteng’s left side was strong and on the right was moderately strong “but showed evidence of co-contraction, indicating [that] sub-maximal effort was applied” (emphasis added). This was said to be inconsistent with the later statements that the medical assessors had not noted any “abnormal illness behaviour” or “exaggeration of her clinical presentation”.

25. [57]

    The medical assessors’ findings concerning the cervical spine are not incompatible with the broader finding of no abnormal illness behaviour, exaggeration of symptoms or inconsistency. As Ms Kwarteng submitted, “co-contraction is an organic finding that is distinct from the usual features that might evidence inconsistency – e.g. adoption of a ‘sick role’, somatisation, clinical discrepancies etc”. I consider that the medical assessors’ recount of their clinical examination of Ms Kwarteng adequately exposes its actual path of reasoning as to why there was “no inconsistency observed”.

26. [58]

    NRMA’s complaint of inconsistency is, to my mind, based on an invitation for the Court to apply an inappropriate level of scrutiny to the Review Panel’s reasons, contradicting the principles outlined at [51] above. In particular, NRMA’s approach fails to acknowledge the need to read the reasons fairly and as a whole, and not with a fine-tooth comb attuned to identifying error.

27. [59]

    The submissions are also based on an assumption that when the medical assessors refer to there being evidence of “co-contraction, indicating sub-maximal effort was applied”, this amounted to a finding that Ms Kwarteng had exaggerated her clinical presentation. That reads too much into the statement. The Review Panel’s reference to there being an indication that sub-maximal effort had been applied, fairly read, was related to the finding of there being “evidence of co-contraction”, which may have been explained not by any exaggeration on Ms Kwarteng’s part, but rather, by physiological constraints which affected her capacity to apply maximal effort.

28. [60]

    In respect of the requirement that Ms Kwarteng’s shoulder pathology was caused by the motor accident, the Review Panel was satisfied that this requirement was met because there was contemporaneous evidence of Ms Kwarteng’s shoulder symptoms. The Panel, adopting the Examination Report of the medical assessors, found that:

29. [61]

    As Leeming JA stated in Insurance Australia Group Ltd t/as NRMA Insurance v Keen (2021) 399 ALR 765; [2021] NSWCA 287 at [44] (Basten JA and Simpson AJA agreeing), the question of causation is a question of fact and “quintessentially so”. His Honour added that, once a finding of fact is made, “no further explanation of the reasoning is required”. (Different considerations may arise if a party claims that there was no evidence to support a finding of fact of causation, but no such claim is made here).

30. [62]

    As noted above, in finding that Ms Kwarteng’s right shoulder injuries were related to the accident (i.e. caused by the accident), the Review Panel found that they were so related, with reference to identified and relatively contemporaneous medical evidence (see further at [66] below).

31. [63]

    In its reply submissions before me, NRMA reiterated that the Review Panel had failed to address its argument regarding the significance of the absence of any right shoulder pathology until two years after the motor vehicle accident. It described this as “a significant battleground between the parties” which “needed to be explained as part of the necessary path of reasoning on causation”.

32. [64]

    I accept that this argument was sufficiently raised by NRMA and that it was substantive and clearly argued, as is reflected in the following extracts in NRMA’s Reply Submissions (WPI Dispute) dated 25 September 2023 (which were included in the material before the Review Panel):

33. [65]

    The Review Panel adequately summarised NRMA’s contentions on this matter at [23] of its reasons. It referred to the insurer’s claim that there had been no explanation of the fact that “the aetiology of an intrasubstance tear of the supraspinatus tendon which was not discovered until almost two years post-accident”.

34. [66]

    I consider, however, that NRMA’s arguments were adequately dealt with by the Review Panel. It found that the injuries, including the right shoulder injuries, were related to the accident with reference to medical records dating back to mid-2021, being only a couple of months after the motor vehicle accident. The medical records included a reference by the medical practitioner in the certificate of capacity/certificate of fitness dated 7 June 2021 to Ms Kwarteng complaining of pain in her right shoulder. There were similar references to that particular condition in an earlier certificate dated 17 May 2021, in the general practitioner’s medical records dated 17 May 2021, as well as in other medical documentation created during the period 9 August 2021 to 18 October 2021 as referred to in Dr Assem’s medical assessment certificate dated 20 February 2023. Thus there was ample evidence to support the Review Panel’s finding that Ms Kwarteng complained of injuries to her right shoulder shortly after the accident occurred. That evidence was relevant to the issue of causation.

35. [67]

    For these reasons, I do not consider that the Review Panel failed to expose its actual path of reasoning. Ground 2 is rejected.

36. [68]

    NRMA further submitted that the Review Panel constructively failed to exercise jurisdiction and denied it procedural fairness by not responding to its substantial and clearly articulated arguments (see Susak at [68] and [71]) about:

    1. (1)

       the inconsistencies in Ms Kwarteng’s right shoulder range of motion on examination; and

    2. (2)

       the lack of causation between the pathology in her right shoulder and the motor accident.

37. [69]

    It is well settled that a decision-maker’s failure to respond to a substantially articulated argument relying upon established facts may amount to either procedural unfairness (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ) or a constructive failure to exercise jurisdiction (see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81] per Gaudron J and Rodger v De Gelder [2015] NSWCA 211 at [109] per Gleeson JA (Macfarlan and Leeming JJA agreeing)). That is not to say, however, that there is an obligation to consider every piece of evidence presented by the parties (see Lederer v Insurance Australia Limited t/as NRMA Insurance [2022] NSWSC 322 at [34] per Brereton JA).

38. [70]

    Moreover, a party relying upon this head of review must identify each element of the general principles that demonstrate how a substantial and clearly articulated argument relying on established facts was not addressed (see Workers Compensation Nominal Insurer v Hill (2020) 295 IR 172; [2020] NSWCA 54 at [26] per Basten JA, Payne JA and Simpson AJA agreeing). Careful consideration must also be given to how the case was presented below.

39. [71]

    As previously noted, grounds 2 and 3 overlap.

40. [72]

    On the issue of the alleged inconsistencies in Ms Kwarteng’s clinical presentation, after the two medical assessors conducted their own medical re-examination, it was recorded in the Examination Report that there was “no inconsistency observed” and “[n]o abnormal illness behaviour or exaggeration of … clinical presentation” by Ms Kwarteng. It was made clear at [25] of the reasons that the Review Panel as a whole adopted the findings and reasons of the two medical assessors. This included the medical assessors’ finding that “the range of movement demonstrated that the right shoulder was reflective of [Ms Kwarteng’s] genuine effort”.

41. [73]

    As already noted, the Review Panel responded to Dr Rimmer’s view that Ms Kwarteng was engaging in “abnormal illness behaviou[r] for the purpose of personal financial gain” by characterising those comments as “trenchant” and querying “whether cross-cultural factors may have caused some misunderstandings”. These aspects of the Review Panel’s reasons addressed NRMA’s arguments on the alleged inconsistencies in Ms Kwarteng’s clinical presentation.

42. [74]

    As to the issue of causation, I repeat what is said at [60]-[62] above. The Review Panel’s remarks were an adequate response to NRMA’s submissions on this issue.

43. [75]

    Further, for the reasons given above, I accept that the argument about the alleged absence of any right shoulder pathology until two years after the motor vehicle accident was sufficiently raised in NRMA’s written submissions before the Review Panel, but I have also explained why I consider that the argument was adequately addressed and rejected by the Review Panel.

44. [76]

    Ground 3 is rejected.

Conclusion

1. [77]

   For these reasons, the summons filed on 4 September 2025 will be dismissed, with costs.