Lu v AAI Ltd t/as AAMI

On 10 April 2016, the plaintiff, Mr Weiping Lu, was involved in a motor vehicle accident in which he sustained injuries to his neck, back and shoulders. He claimed damages for his injuries under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”).

The first defendant, AAI Ltd t/as AAMI (“AAI”), is the compulsory third-party insurer of the vehicle said to be at fault. AAI disputed that Mr Lu suffered a whole permanent impairment (“WPI”) of more than 10% as a result of the accident. The matter was subsequently referred to the Motor Accidents Medical Assessment Service (“MAS”) for determination of the dispute as to Mr Lu’s WPI. The MAS is a unit within the State Insurance Regulatory Authority (“SIRA”), which is the second defendant in these proceedings. SIRA is the State government agency which administers the entire compulsory third-party insurance and compensation scheme in NSW under the MACA.

A medical assessor assessed Mr Lu’s physical injuries and issued a certificate on 14 June 2017 in which she found Mr Lu’s degree of permanent impairment to be 16%. AAI was dissatisfied with that assessment and subsequently applied to the proper officer to refer the dispute to a review panel of medical assessors (“the review panel”) pursuant to s 63 of the MACA. The review panel, comprised of Michael Couch, Mohammed Assem and Richard Crane (together the third defendant), determined the review on 18 February 2018. It revoked the certificate of the assessor and issued a new certificate stating Mr Lu’s degree of permanent impairment to be not greater than 10% (8%).

By a summons filed on 3 September 2018, Mr Lu invokes this Court’s supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), in respect of the decision of the Review Panel on 18 February 2018. Mr Lu claims, inter alia, relief in the nature of certiorari quashing that determination.

Mr Lu relied upon seven grounds of review:

At the hearing of this matter counsel for Mr Lu did not press grounds 1 and 7 as they did not assert any separate error. It was further accepted that ground 5 was in fact a different formulation of ground 4. The hearing proceeded on the basis that the plaintiff asserted four discrete errors. The first alleged error was an assertion that the review panel conducted its review in breach of the requirements of s 63(3A) of the MACA because only two of its three members physically examined Mr Lu (ground 6). The other three alleged errors are: that the review panel erred in assessing Mr Lu’s cervical spine impairment at 0% (ground 2); that the review panel erred in assessing Mr Lu’s left shoulder impairment at 3% (ground 3); and that the review panel failed to provide adequate reasons (grounds 4 and 5).

Contrary to the usual practice, SIRA did not file a submitting appearance. Rather, it appeared at the hearing but only in relation to ground 6. SIRA did not wish to be heard on the other grounds of review nor the question of who should succeed in this matter. It did not seek costs and submitted that there should be no order for it to pay costs, a position with which the counsel for the plaintiff was content.

The third defendant filed a submitting appearance.

As noted above, Mr Lu’s summons was filed on 3 September 2018. The review panel conducted its review on 18 February 2018. Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides that proceedings for judicial review must be commenced within 3 months of the date of the decision. Mr Lu sought an extension of time to commence the proceedings. Rule 59.10(2) provides that the court may “at any time” extend that time. Rule 59.10(3) is in these terms:

In support of his application Mr Lu relied upon his affidavit affirmed on 19 December 2018. In that affidavit he stated that he had had difficulties communicating with his previous lawyers. He does not speak English and needed an interpreter every time he attended a conference or received a letter from them. He received a letter from his previous lawyers dated 12 March 2018 informing him that the review panel had reduced his WPI to 8% and that a review of the decision dated 18 February 2018 would be sought. When he had not heard from them by May 2018, he instructed new, Mandarin-speaking lawyers to represent him on 7 May 2018.

Mr Lu further stated that his current lawyers, who received the file from the previous lawyers on or about 22 May 2018, needed time to familiarise themselves with the matter in order to see what further steps needed to be taken and that, by the time they did that, the three-month period had already expired. As soon as he was advised that an extension of time could be sought, he instructed his lawyers to file a summons and seek an extension of time.

At the hearing, counsel for AAI did not oppose time being extended in light of the matters raised in Mr Lu’s affidavit. I indicated to the parties at that time that in the circumstances I proposed to extend time for the filing of the summons. In doing so I had regard to the fact that there was no issue taken as to the plaintiff having an interest in challenging the decision, no prejudice to AAI was identified and there was some public interest in relation to ground 6 given that SIRA had elected to make submissions on that ground.

As at April 2016 Mr Lu was a house painter aged 58. On 10 April 2016 he was driving a car. He was stationary intending to enter his home driveway when he was hit from behind by another vehicle. The car was driven the short distance home by his son. There was considerable crash damage to the rear of the car. The car was eventually written off by the company.

Initially Mr Lu was not aware of any particular symptoms but later that night he became aware of some pain in his lower back and neck. About five or six days later he consulted his GP and an MRI was arranged. He commenced physiotherapy which took place once a week. Mr Lu complained of pain to his neck passing down to both shoulders and pain in the lower back. He subsequently received injections to his neck without any particular benefit and he continues to have discomfort in his shoulders and lower back.

Pursuant to ss 131 and 132 of the MACA, Mr Lu was not entitled to claim compensation for non-economic loss unless there was an agreement or a statutory medical assessment that his WPI exceeded 10%. As there was no agreement in this matter, a dispute regarding the degree of permanent impairment existed pursuant to s 58(1)(d) of the MACA.

On or about 1 March 2017, Mr Lu lodged an application for assessment of a permanent impairment dispute with the MAS. Mr Lu alleged that in the accident he suffered injury to his cervical spine, lumbar spine, right shoulder and left shoulder. On or about 30 March 2017, the insurer lodged a reply to Mr Lu’s application.

On 14 June 2017, Mr Lu was assessed by SIRA medical assessor Dr Nel Wijitunga who determined that he suffered from a 5% WPI in respect of his cervical spine based on presentation consistent with DRE (Diagnosis-Related Estimates) Cervicothoracic Category II Impairment rating (adopting the methodology set out in AMA 4, Ch 3 at p 104). In respect to left shoulder injury, Dr Wijitunga measured the range of movements of Mr Lu and applied AMA 4 to determine a 7% WPI for that body part. The total WPI for a combination of cervical spine, thoracic spine and left shoulder was determined by the AMS to be 16% WPI.

AAI sought to appeal from the certificate dated 22 June 2017 provided by Dr Wijitunga. On 22 September 2017 the proper officer of the MAS was satisfied under s 63(2) and (3) of the MACA that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. On that basis the review application was accepted and referred to a review panel.

A teleconference of the review panel was held on 13 November 2017. As set out under the heading “Evidence Considered” in its certificate, the panel “considered all of the available evidence and decided that a re-examination of the claimant was necessary in order to reach a decision, because there was uncertainty concerning the examination findings of the claimant’s shoulders.” Assessors Couch and Crane examined Mr Lu that same day. Although Assessor Assam did not personally examine Mr Lu, all three members of the review panel participated in the discussion earlier that day. Under the heading “Panel Certification”, the certificate states that it has been viewed by all three assessors “who have confirmed that they are in agreement”.

The reasons of the review panel addressed the evidence considered, the additional evidence, pre-accident medical history, history of the motor accident and the history and symptoms and treatment following the motor vehicle accident.

The review panel noted Mr Lu’s current symptoms as follows:

Under the heading “Clinical Examination” the reasons of the review panel disclose the following:

Under a heading “Medical Imaging” it was noted that on 9 March 2017 an “MRI right shoulder was reported showing some moderate supraspinatus tendinopathy, although the claimant said he considered his right shoulder was normal.”

Under the heading “Panel Deliberations: Cervical spine” it was noted that:

The review panel noted that was not in an agreement with the assessor who had found 5% WPI related to the cervical spine.

Under the heading “Panel Deliberations: Lumbar spine” it was noted that:

Under the heading “Panel Deliberations: Right shoulder” it was noted that:

Under the heading “Panel Deliberations: Left shoulder” it was noted that:

The reasons of the review panel go on to calculate the degree of WPI based on these findings. In particular it was noted that the panel differed from the assessor in accepting causation of injury to the right shoulder and also in finding 0% WPI as opposed to the assessor finding 5% WPI for the cervical spine. The review panel also found 3% WPI for the left shoulder when the assessor found 7% WPI. The review panel then revoked the certificate of the assessor and issued a subsequent certificate (8% WPI).

Part 3.4 of Chapter 3 of the MACA provides for the medical assessment of any injury to a person caused by a motor accident where there is a “medical dispute”. It also provides for an internal review process by way of an appeal panel. The purpose of the internal review scheme is to remove the function of assessing injury from the adversarial court system.

Section 57 of the MACA defines a “medical dispute” to mean “a disagreement or issue to which this Part applies”. Section 58(1) of the MACA provides that:

Section 60 of the MACA provides that a “medical dispute” may be referred to SIRA for assessment under this Part by either party to the dispute or by a court or claims assessor. SIRA is then to arrange for the dispute to be referred to one or more medical assessors. Section 61(1) and (2) provides that:

The process of internal review of a medical assessment by a review panel is provided for in s 63 of the MACA, which is in these terms:

Section 65(1) of the MACA provides:

Section 44(1) relevantly authorises SIRA to issue “guidelines” with respect to, inter alia:

SIRA has issued “guidelines” under paragraphs 44(1)(c) and (d) of the MACA. They are, respectively, the “Guidelines for the Assessment of the Degree of Permanent Impairment” effective from 1 October 2008 (“Permanent Impairment Guidelines”) (New South Wales Government Gazette, No 87, 11 July 2008 at 7059) and the “Medical Assessment Guidelines” effective from 1 October 2007 (“Medical Assessment Guidelines”) (New South Wales Government Gazette, No 90, 13 July 2007 at 4582).

It is noted that as from 1 June 2018, motor accidents that occurred between 5 October 1999 and 30 November 2017 are now to be determined in accordance with the “Motor Accident Permanent Impairment Guidelines” which apply retrospectively (New South Wales Government Gazette, No 52, 25 May 2018 at 2998). Although Mr Lu’s accident occurred on 10 April 2016, at the time of both his initial assessment and the new assessment by the review panel the applicable guidelines were the 2007 guidelines. It is the numbering in those earlier guidelines to which I will refer.

The Permanent Impairment Guidelines relevantly provided as follows:

The table at cl 4.14, “Definitions of clinical findings”, defined the term “Non-verifiable radicular complaints” as follows:

The Medical Assessment Guidelines relevantly provide as follows:

Mr Lu’s primary submission was that the review panel breached s 63 of the MACA in conducting a medical exanimation of him by only two of the three medical assessors. Although counsel for Mr Lu accepted that the question of how many members of the panel must physically examine a person is one of statutory construction, his submissions relied heavily upon the decision of Schmidt J in Wolarczuk v NRMA Insurance Australia Ltd [2017] NSWSC 1691; (2017) 82 MVR 504 (“Wolarczuk”) on this issue. In Wolarczuk her Honour found that any certificate issued by a review panel is vitiated by jurisdictional error if any medical examination conducted for the purpose of that review was undertaken with fewer than all three of the members of the review panel.

In Wolarczuk Schmidt J held that each of the assessors must have “the same information about the re-examination, on which its assessment must in part be based, given what is involved in clinical examination of a patient”: at [99]–[103]. Mr de Meyrick submitted that, whilst some aspects of these reviews are objective, a lot of the matters are also subjective, such as a psychiatric assessment. Some assessments might concern whether someone is malingering or credible in how they present. There can be assessments that would only be capable of being made on firsthand attention.

It was further submitted that, apart from having a “tie-breaking person” there, the purpose of having more than one assessor on the review panel is that they bring their collegiate knowledge to bear especially with something like a psychiatric injury where there are degrees of injury. If that collective wisdom is of two rather than three members, then the requirements of the MACA are not properly addressed.

It was submitted that, although the members of the review panel can inform themselves in any way they see fit, that discretion is not an invitation to ignore the essential tasks that the MACA and guidelines mandate they do. Thus, the review panel cannot determine that a re-examination is necessary and then not attend it.

As for the terms of s 63 of the MACA, it was submitted that the words “at least three” in s 63(3) inform the conclusion that all three assessors must participate in the “new assessment”. The critical question is whether the new assessment was conducted by “the panel”. Did the panel conduct the assessment or did only part of the panel conduct it? It was submitted that only part of the panel conducted the “new assessment”.

It was further submitted that although the review panel can set their own procedures (Medical Assessment Guidelines cl 11.1), a decision that the “matter” could not be properly dealt with without a re-examination of Mr Lu is one that “goes to the heart of the task that the statute gives the assessors”. It was submitted that for two out of the three of them to conduct the re-examination was an abrogation of the review panel’s statutory responsibility. Further, cl 11.1 is addressed at procedural matters and not at the substance of the referral; it addresses the whole medical assessment process and not just the way the review panel arrives at its conclusion. Mr de Meyrick submitted that, rather than giving the review panel the latitude to determine whether it sits two or three members, the Medical Assessment Guidelines are addressed at ensuring that a review is an informal process that is not bound by the strictures that one might have in a court of law.

It was submitted that the review panel ought to have assessed a higher percentage for WPI of the cervical spine, based on its own findings. In particular, the finding of no “non-verifiable radiculopathy” was wrong. If that finding had been made the conclusion would have been DRE category II rather than DRE I (0%). At the time of the review panel’s examination, Mr Lu complained of numbness and tingling in three fingers of the right hand and pain into the left shoulder and arm. This was a relevant symptom of “non-verifiable radiculopathy”.

The original assessor, Dr Wijitunga, did not apply the “baseline” deduction referred to in cl 1.51 of the Permanent Impairment Guidelines. Mr de Meyrick submitted that this was the correct approach and the review panel erred in applying this deduction. It was based on Mr Lu’s statement to the assessors that his right shoulder was “normal”. It was submitted that “normal” does not mean “uninjured”; it is not a comment upon injury or restriction or loss of range of movement. It was submitted that none of the four preconditions of cl.1.51 were met and the review panel should have upheld the original assessor’s findings and assessments as to the left shoulder impairment.

It was submitted that the review panel’s reasons were “quite scant” and do not contain the same detailed analysis of the original assessor. Accordingly, he submitted that the review panel failed to give adequate reasons in the sense discussed in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”) at [32].

Mr Robertson submitted that s 63 of the MACA requires each member of a review panel to, severally, come to his or her own view as to the “medical assessment matter” with which the medical assessment is concerned with a view to arriving, jointly, at a decision as to whether the certificate of the original assessor should be confirmed or revoked and replaced. The terms of s 63 do not mean that every member of a review panel must jointly participate in every activity connected with a review panel’s “one task” of reviewing the medical assessment referred to it.

It was submitted that it is not a necessary feature of a decision of a multi-member tribunal that each and every activity leading to the decision is jointly performed by every member of that tribunal. The mere fact that each and every task is not performed does not lead, in and of itself, to invalidity. Despite this, Mr Robertson accepted that even within this statutory scheme, there may be particular kinds of tasks which might, as a matter of fact, need to be performed by each member of the review panel in order to ensure the decision has not miscarried.

It was submitted that the correct approach is to focus on the terms of the MACA and to ask whether, on the proper construction of the Act, a particular certificate is to be recognised as a valid certificate having statutory consequences. The ultimate question is whether the certificate issued by the review panel was the product of a new assessment of “all the matters” with which the medical assessment is concerned, in contrast to a new assessment of “all the information”. The guiding principle in this case must be the terms of s 63, it should and the guidelines should be construed by reference to the statutory context. This analysis is not affected by the guidelines issued under s 44(1) of the MACA.

It was submitted that the decisions of Adamson J in Bradley v Insurance Australia Pty Ltd [2015] NSWSC 950; (2015) 71 MVR 496 (“Bradley”) and MacKenzie v Allianz Australia Insurance Ltd (No 2) [2015] NSWSC 1320; (2015) 72 MVR 440 (“MacKenzie”), Gwyther v Insurance Australia [2018] NSWSC 1441; (2018) 86 MVR 1 (“Gwyther”) per Wilson J; and IAG Ltd t/as NRMA Insurance v Tarabay [2018] NSWSC 1836; (2018) 87 MVR 87 (“Tarabay”) per Garling J all support the construction advanced by SIRA. It was further submitted that the decision in Wolarczuk is wrong and should not be followed.

AAI adopted SIRA’s submissions in relation to ground 6 of the summons.

Ms Gumbert submitted that the review panel’s examination of the plaintiff’s cervical spine was essentially normal. There was no muscle spasm or guarding. Range of motion was normal in most planes, and was reduced symmetrically for rotation and lateral flexion. There was no evidence that the complaints of numbness and tingling in three fingers of the right hand and pain into the left shoulder and arm followed a “specific nerve root” distribution as contained in the specific definition of what constitutes “non-verifiable radiculopathy” in cl 4.14 of the Permanent Impairment Guidelines. In any event, the review panel was required to only consider impairment as it was at the time of the review panel’s assessment: Permanent Impairment Guidelines, cl 1.23.

Ms Gumbert submitted that the review panel was plainly aware that there was some underlying issue in Mr Lu’s right shoulder and the evidence of that is that they found restricted movement in that shoulder. However, the review panel were entitled to accept Mr Lu’s evidence that it was back to his “normal”.

It was submitted that the panel made it clear that they accepted that the right shoulder injury had resolved and was now “normal”. In the absence of evidence of a “specific” nerve root distribution being affected, and having regard to the review panel’s explicit statement that its own examination did not reveal non-verifiable radiculopathy, it was submitted there was no duty on the review panel to go into any further explanation as to why it did not find non-verifiable radiculopathy. The review panel was not required to do more than to give reasons for its findings: MACA, s 61(9). It did not have to give reasons for things that they did not find.

There is no statutory right of appeal from a decision of a review panel to this court. These are proceedings for judicial review in which this court is being asked to exercise its supervisory jurisdiction. Mr Lu will only be able to obtain the relief sought, which is discretionary in nature, if he can establish that the review panel either fell into jurisdictional error or made an error of law apparent on the face of the record, being the reasons for his decision: s 69(4) of the Supreme Court Act. This is not an appeal and does not involve any review of the merits of the decision of the review panel.

The determination of this ground concerns the proper construction of s 63(3A) of the MACA and the review panel’s statutory role. A failure to exercise any decision-making power in accordance with the terms on which jurisdiction was conferred can constitute jurisdictional error: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91].

The starting point for the consideration of this ground is the terms of s 63 of the MACA which provides that the assessment undertaken by the review panel is not limited to a review of that aspect of the assessment alleged to be incorrect. Rather, it is to be “by way of a new assessment of all the matters with which the medical assessment is concerned”. The review panel may either confirm or revoke the certificate of the assessor. If the certificate is revoked by the review panel then it must issue a new certificate. A review of a medical assessment under s 63 of the MACA is thus in the nature of a de novo assessment. It is not the role of the review panel to scrutinise the original medical assessment for error.

Section 63(3) of the MACA provides that the panel is to consist “of at least three medical assessors”. In McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 Giles JA held at [23] that:

His Honour went on at [38] to observe:

In the present case the question is whether the new certificate is the product of a “new assessment” of the review panel of the kind required by s 63(3A). If it is then it is a valid certificate for the purposes of the MACA.

There is no other provision in the MACA beyond s 63(3A) which provides for the procedure by which the review panel is to go about its task in reviewing the assessor’s certificate. There are, however, some relevant guidelines issued under s 44 of the MACA.

The proper characterisation of these guidelines was considered by Leeming JA in Ali v AAI Limited [2016] NSWCA 110; (2016) 75 MVR 502. In that appeal it was contended that the guidelines are delegated legislation and thus non-compliance by an assessor with the guidelines amounted to judicially reviewable error. His Honour observed at [83] that:

His Honour concluded at [99]:

I have extracted the relevant guidelines above at [36]–[40]. Significantly, cl 11.1 of the Medical Assessment Guidelines provides that in conducting an assessment an assessor, which includes a member of a review panel, may determine their own procedure and is not bound by the rules of evidence and may enquire into any issue in such matter as they think fit. When this clause is read in the context of s 63(3A) of the MACA, it suggests that each of the members of the review panel may determine his or her own procedure in conducting any “new assessment”. Similarly, cll 11.3 and 11.5 provide that the process should be a quick, fair and cost-effective method of dealing with medical disputes.

There is no guideline which provides that the “new assessment” must include a re-examination of the claimant by a review panel. Rather, sub-cl 16.21.2 provides that when the review panel holds its initial meeting it is to “determine whether re-examination of the claimant is required, and if so set a timetable for that to occur”. Although the decision as to whether a re-examination is required is to be made by the panel, there is no reference to the re-examination itself having to be conducted by “the review panel”.

Clause 16.26 provides that in the event of an inability to agree, the determination will be the majority of the panel. In the event of an even number of members on the panel the chairperson is to make the determination: sub-cl 16.25. It was not submitted that this guideline was relevant to the review panel’s decisions regarding Mr Lu’s WPI in that it was not suggested there was no unanimity.

Although there is no requirement arising from s 63(3A) or the guidelines that the “review panel” must conduct a re-examination, that is not to say that a failure to re-examine a claimant may not give rise to error. In Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583; (2014) 68 MVR 533 Garling J held that in a case concerning psychological injures it was not possible for the review panel to form its own opinion without conducting its own consultation with the claimant. In Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328; (2015) 73 MVR 211 the Court of Appeal dismissed an appeal from this decision and in doing so neither decided that examinations are essential to the task of the review panel not that any such examination is a prerequisite to performance of the review panel’s statutory task: at [24].

SIRA also relied upon the decision in Structural Monitoring Systems v Tulip Bay [2017] WASC 379 in which Martin CJ took a similar approach to that advanced by SIRA. In that matter a party sought that an arbitral award be set aside because one of the arbitrators constituting the tribunal had only assumed a limited role in connection with the proceedings. His Honour stated at [137] that:

I have had regard to the guidelines and the terms of s 63(3A) of the MACA. I am not satisfied that the fact that a re-examination was conducted by fewer than all of the members of a review panel as part of the “new assessment” necessarily vitiates the certificate. The purpose of the statutory regime was to achieve cost effectiveness and efficiency quickly and fairly. Conducting an examination with two rather than three members of the panel in appropriate cases is consistent with that approach and s 63(3A) of the MACA. I have arrived at this conclusion without reference to any authority.

Mr Lu’s argument relied heavily on the decision of Schmidt J in Wolarczuk, whereas AAI and SIRA relied on the decisions in Bradley, McKenzie, Gwyther and Tarabay. Given the emphasis placed on the decision of Wolarczuk by Mr Lu, it is necessary for me to state why I am respectfully unable to agree with Schmidt J’s conclusion on this issue.

The question raised under this ground of review first arose for consideration by Adamson J in Bradley (delivered on 20 July 2015). Her Honour determined the issue as follows:

Her Honour took the same approach in Mackenzie at [58]–[63] which was determined shortly thereafter on 11 September 2015. I agree with the conclusion of Adamson J that the MACA and the guidelines permit the review panel to determine that a re-examination is to be conducted by two of its three constituent assessors. Her Honour’s conclusion accords with my own.

On 6 December 2017, Schmidt J arrived at a different conclusion on the same question in Wolarzcuk. By reference to the MACA and the guidelines her Honour was satisfied that a review panel must have three panel members present to assess the injured person. At [79] her Honour described the issue before her as being:

Her Honour stated that this conclusion was supported by various provisions made in both the Medical Assessment and Permanent Impairment Guidelines: [83]–[85]. Her Honour noted at [88] that the Permanent Impairment Guidelines specify in cl 1.20 that a review panel’s assessment task involves three stages: review of medical and hospital records; interview and clinical examination; and preparation of a report using the methods there specified. Her Honour held that, because no express provision is made in either the MACA or the guidelines to permit the panel to determine that all of its members will not to be involved in each stage of the new assessment, the “obvious implication is that all members of the panel must be involved in the entire assessment process”: at [88]–[89].

Her Honour referred at [89] to the requirement in cl 4.3 of the Impairment Guidelines that the assessment of spinal impairment be made at the time of examination. Her Honour also referred at [95] to the absence of any guidelines regulating how the results of any re-examination conducted by only some panel members are to be communicated to other members, or how disagreements between those who have conducted the re-examination about its results are to be managed.

Her Honour was unable to agree with Adamson J in Bradley that “the assessment itself” does not include any re-examination the review panel has determined is necessary (at [109]). Her Honour’s conclusion was that because s 63(3A) required a “new assessment” of all the “matters”, if a review panel determines that a re-examination is necessary that is one part of that assessment and thus all panel members must be present when the re-examination is undertaken (at [110]).

With respect to Schmidt J, I am not satisfied that the reference to a “new assessment” of all the “matters” in s 63(3A) of the MACA is a reference to all of the “information” before the review panel, which appears to be the basis upon which her Honour proceeded. Section 58 of the MACA refers to disagreement about specified “matters” with which the assessor is to be concerned. The relevant “matter” in the present matter was “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”: s 58(1)(d). When the word “matters” in s 63(3A) is read consistently with s 58(1)(d) then what each member of the review panel must direct his or her mind to is the “matter” before him or her. This does not necessarily mean that s 63(3A) requires each member to consider all information which may have been generated in connection with such a review at the same time.

Nor am I able to agree with her Honour’s observation at [100] that a re-examination by fewer than all of the members of the review panel will “necessarily have the result that not all members will have the same information” in any event. Although that may sometime be the case it is not the necessary result. For example, one of the matters considered by the review panel in Mr Lu’s examination was the measurements of his arm circumference. The fact that the third member of the review panel was not present when this measurement was taken does not mean that he ultimately had different “information” before him on this issue.

In the present case the decision of the review panel relied on the fact that Mr Lu had said that his right shoulder was “normal”. Although an interpreter was used for the examination, it was not suggested by Mr Lu that he had not described his shoulder in this way. It is difficult to see how the fact that one of the assessors did not hear him say this but relied on the report of the other two should result in the certificate being flawed.

For these reasons I respectfully disagree with Schmidt J in Wolarczuk.

In Gwyther Wilson J was referred to both the decisions of Schmidt J in Wolarczuk and the decision of Adamson J in Bradley. After extracting Bradley from [69]–[73] (as I have done above at [74], her Honour concluded that Adamson J’s “reasoning and conclusions in Bradley accord with my own. While I am conscious of the differing view taken by Schmidt J, I respectfully agree with Adamson J.”

More recently in Tarabay Garling J held at [64] that:

His Honour held at [67] “without reference to any decided authority, that the procedure adopted by the Review Panel here, in respect of the examination, was not contrary to the Act or Guidelines and that, accordingly, the conclusion reached by the Review Panel based on that examination was not invalid or void for that reason.” His Honour concluded at [72] that:

I respectfully agree with the reasoning of Garling J on this issue. His Honour was also provided with the decisions of Schmidt J in Wolarczuk and the decision of Adamson J in Bradley and was unable to agree with the conclusions of Schmidt J in Wolarczuk.

I have come to the same conclusion as Adamson, Wilson and Garling JJ. There is no requirement that any re-examination of a claimant must be conducted by all three members of the review panel.

I would not uphold this ground of review.

In relation to both grounds 2 and 3 the error relied upon was that the finding was contrary to the evidence. The submissions on these grounds came close to an assertion that the review panel ought to have come to a different conclusion on the evidence.

Mr Lu did not assert that there was “no evidence” to support the particular findings. Such a ground of review could amount to error of law: per Hayne, Heydon, Crennan and Kiefel JJ in Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [90] and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 326; [1990] HCA 33 per Mason J.

Nor did Mr Lu assert that the decision of the review panel is afflicted by legal unreasonableness within the meaning of Minister for Immigration and Citizenship v Li (2013) 249 CLR 323; [2013] HCA 18 at [68], [70], [71]–[74], [75], [82] and [85] and thereby invalid. This ground of review, if established, would also amount to jurisdictional error.

Rather, the complaints under these grounds were, in effect, that in circumstances where there was evidence going both ways the review panel ought to have found in favour of the plaintiff.

The review panel assessed the cervical spine injury as DRE category I with 0% WPI. This finding required that Mr Lu had “no significant clinical findings” and “no indication of impairment related to injury or illness”. In making this finding the review panel noted that “examination did not reveal evidence of, inter alia, “non-verifiable radiculopathy”. It is this finding that there was no non-verifiable radiculopathy which forms the basis of this ground.

The definition extracted above at [39] in cl 4.14 of the Permanent Impairment Guidelines defines non-verifiable radicular complaints as being symptoms such as shooting pain, burning sensation or tingling that follow “the distribution of a specific nerve root” but where there are no objective signs of dysfunction of the nerve root such as loss or diminished sensation, loss or diminished power, or loss or diminished reflexes.

Mr Lu complained of numbness and tingling in three fingers of the right hand. The members of the review panel, all experts, were aware of these complaints and noted them in their reasons. It could not be said that they were overlooked. Rather, these symptoms were not considered by the review panel as constituting non-verifiable radiculopathy in this case. There was no evidence that Mr Lu’s complaints followed a “specific nerve root” distribution as contained in the relevant definition. In these circumstances I am not satisfied that the review panel failed to consider these complaints as constituting non-verifiable radiculopathy. The panel was required to consider impairment as it was at the time of the review panel’s assessment. The finding was made based on the examination at that time.

A general complaint was made under this ground that the finding of 3% WPI for the left shoulder was contrary to the evidence.

The review panel agreed with the assessor in finding evidence of causation for injury to the left shoulder. There was contemporaneous medical documentation consistent with this. The review panel found goniometer measurements giving 11% upper extremity to the left shoulder as did Dr Wijitunga.

Where the review panel took a different approach was in using the uninjured right shoulder as a baseline and applying a deduction on that basis. Dr Wijitunga had not done so because she considered that would be clinically unreliable but by the time of the re-examination Mr Lu told the two members of the panel who examined him that his right shoulder was now “normal”.

Clause 1.51 of the Permanent Impairment Guidelines provided that if there was less than average mobility before the accident giving rise to the injury then the condition of one uninjured joint can be used as a baseline to compare injury to the other joint. The preconditions of this provision are that there is a contralateral joint that is “uninjured” (in this case, the right shoulder), that the uninjured joint has a less than average mobility (as was found by the review panel) and that there is a reasonable expectation that the injured joint (the left shoulder) would have had similar findings to the uninjured joint prior to the injury.

The complaint is that although Mr Lu stated that his right shoulder was “normal” the review panel was nonetheless not permitted to use that shoulder as a baseline to compare the left shoulder because the right shoulder had also been injured following the accident but, on Mr Lu’s account, returned to “normal”. Mr Lu argued that if the shoulder was previously injured it could never be used as a baseline within cl 1.51.

The word “uninjured” in cl 1.51 is not defined. Its ordinary meaning would be “without injury”. I do not accept that a shoulder which was once injured but is now described as “normal” by the very person who is complaining of injury cannot be used as a baseline to compare the degree of injury. There is nothing in the MACA or guidelines to suggest that a shoulder described by a claimant as “normal” cannot be used as a baseline just because it was previously described as feeling painful after the accident. The plaintiff did not rely upon any authority or particular guideline or provision of the MACA in support of its submission in this regard. Rather, it was simply submitted that as a matter of logic Mr Lu’s shoulder could not be considered to be “normal” if it had at one stage earlier been injured. I reject this argument.

Although Mr Lu had told the review panel that his right shoulder was “normal”, the members were plainly aware that there was some underlying issue in relation to Mr Lu’s right shoulder. His MRI scan a year earlier on 9 March 2017 had demonstrated “moderate grade tendinopathy of the supraspinatus with mild tendinopathy of the infraspinatus and sub capsularis without cuff tear”. The review panel noted this in its reasons. I am satisfied that the review panel were entitled to accept the claimant’s evidence that his right shoulder was back to his “normal” having regard to all of the evidence before it.

It was suggested by counsel for Mr Lu that that the presence of any problem shown on an MRI scan is prima facie evidence of an “injury” to the right shoulder. In response, counsel for AAI relied upon the decision of Bellew J in CIC Allianz Insurance v Pillay [2017] NSWSC 1638; (2017) 82 MVR 490. His Honour addressed therein the difference between symptoms of pain and an “injury”. At [34] his Honour recorded the submission on behalf of the claimant in that matter as follows:

His Honour went on to determine this issue at [38] as follows:

The issue is slightly different in the present matter. Mr Lu did not complain of any pain and in fact stated that his right shoulder was “normal” but there was evidence in his earlier MRI suggesting tendinopathy of that shoulder as well as some restricted movement in that shoulder.

As with ground 3, I am not satisfied of error in this regard. It could not be said that there was “no evidence” on which to find the right shoulder was “uninjured” nor was it suggested that the review panel acted unreasonably. The complaint is that the review panel ought to have preferred the MRI scan and the evidence of some restricted movement in the right shoulder over Mr Lu’s description and, if it had not have used the right shoulder as a baseline, the 5% upper extremity impairment would not have been subtracted from the 11% upper extremity impairment of 11%. Accordingly, a 5% upper extremity impairment would have been left, which converted to 3% WPI for the left shoulder.

It is to be noted that Mr Lu was examined by the two members of the panel with the use of an interpreter. No evidence was adduced in these proceedings to suggest that there was any miscommunication caused by language difficulties. Specifically, it was not denied by Mr Lu that he had described his right shoulder as “normal” or “quite normal”. The reasons do not disclose simply that Mr Lu responded to one question by describing his right shoulder as “normal” or “quite normal” in any event. Rather, they disclose that a “discussion” with Mr Lu indicated that he “considered his right shoulder had become quite ‘normal’ after the accident”. Elsewhere the reasons disclose that “[d]iscussing the situation with the claimant, it was apparent that he considered his right shoulder was normal and any soft tissue injury caused as a result of the MVA was considered to have resolved”.

In circumstances where no challenge was made to the account of what Mr Lu said during the re-examination relied upon by the review panel, I have determined this ground on the basis that Mr Lu did in fact indicate that his right shoulder was, effectively, back to “normal”.

In circumstances where I am not satisfied of any error I do not need, in any event, to consider whether such an error would either be jurisdictional error or error of law on the face of the record.

Section 61(9) of the MACA provides that a certificate issued by an assessor or a review panel is to set out the reasons for any as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.

Failure to provide adequate reasons when there is a statutory requirement to do so may amount to error of law on the face of the record. As the High Court observed in Wingfoot, when considering a decision on a Victorian statute that required a medical panel to give reasons (at [55]):

The duty imposed on medical assessors to give reasons was considered in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284, where the Court (Basten JA, with whom McColl JA agreed) stated at [121]–[122]:

The question of adequacy of reasons was also considered by the Court of Appeal in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1. That decision concerned the adequacy of reasons given by an assessor under the Act. The Court was satisfied that inadequate reasons had been provided. As to the contents of reasons, Leeming JA observed at [6]:

His Honour went on at [9] to state:

Emmett AJA observed at [34]:

Mr Lu complained that the reasons were “quite scant” and did not contain the same detailed analysis as that of the assessor. The test is not whether the reasons were as fulsome as those of the assessor. The question is whether the pathway of reasoning is disclosed.

Two particular complaints were made about the reasons which reflect the same criticisms as those made under grounds 2 and 3. That is, the complaint was that the review panel did not explain why it made no finding of non-verifiable radiculopathy, nor why it considered it appropriate to use Mr Lu’s right shoulder as a baseline.

I have already addressed these complaints in my consideration of grounds 2 and 3. I am satisfied that the actual path of reasoning of the members of the panel is disclosed in the reasons. The panel accepted Mr Lu’s account that the right shoulder injury had resolved and was now “normal”. In circumstances where there was no evidence before the review panel of any “specific” nerve root distribution being affected and the review panel’s examination did not reveal non-verifiable radiculopathy, the obligation to provide reasons was met.

The plaintiff has not established any of his grounds of review. Neither the plaintiff nor the first defendant suggested that there would be any basis to make any costs order other than that costs should follow the event. SIRA did not seek any costs order in the event that its argument was successful.

I make the following orders: