Wolarczuk v NRMA Insurance Australia Limited

1. [1]

   Mr Wolarczuk seeks orders under s 69 of the Supreme Court Act 1970 (NSW), setting aside the certificate and reasons given by a Review Panel of medical assessors appointed under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”), in September 2016. There it was certified that injuries to his spine caused by a motor vehicle accident in August 2013, in which the van he was driving was struck by another vehicle, had resulted in him suffering less than 10% whole person impairment.

2. [2]

   Under s 131 of MACA, no damages may be awarded to Mr Wolarczuk for the non-economic loss caused by this accident, because the degree of his resulting permanent impairment has not been assessed to be greater than 10%. On Mr Wolarczuk’s case, both the process which the Review Panel’s pursued and the certificate which it issued are infected by relevant error.

3. [3]

   Mr Wolarczuk also seeks an order under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), extending the time for the commencement of these proceedings. That application is supported by an affidavit sworn by his solicitor, Ms Dimitri, explaining the circumstances in which the proceedings were commenced out of time.

4. [4]

   That application not being opposed, I am satisfied that in the circumstances revealed in Ms Dimitri’s affidavit, the extension should be granted.

Issues

1. [5]

   In issue between the parties is whether the Review Panel:

   1. (1)

      Acted without, or in excess of jurisdiction and contrary to the procedures by which it was bound under MACA, when it undertook its statutory task under s 3, of reviewing the certificate which had been issued by Assessor Gliksman, on 12 November 2015, in relation to the dispute over the degree of Mr Wolarczuk’s permanent impairment;

   2. (2)

      Conducted its review in breach of the requirements of s 63, when only two of the three members of the Panel undertook the physical re-examination of Mr Wolarczuk, which the Panel had agreed was necessary;

   3. (3)

      Failed to consider, or to adequately consider, the unchallenged 2014 certificate of Assessor Wong, in respect of the dispute over Mr Wolarczuk’s treatment, by which it was bound, namely, that the L5 nerve root compression and micro-discectomy compression performed by Dr van Gelder on Mr Wolarczuk’s spine after the 2013 accident, was reasonable, necessary and causally related to the injuries he had sustained in that accident; and

   4. (4)

      Failed to give any or any adequate reasons as to why Mr Wolarczuk’s case was rejected.

The first medical dispute - Assessor Wong’s certificate

1. [6]

   Mr Wolarczuk was involved in a motor vehicle accident in 2010, after which he had various treatment to his spine. He also had a workplace accident in 2011, after which he received further treatment to his spine. The accident the subject of these proceedings happened in August 2013. The van he was then driving was stationary, when it was struck by a vehicle which ran a red light. He was wearing a seatbelt, but had immediate onset of pain in his back and right lower leg, particularly his knee.

2. [7]

   There was later a dispute which was dealt with by Assessor Wong about:

3. [8]

   Having examined Mr Wolarczuk and considered the available medical records and investigations, Assessor Wong certified that the nerve root decompression and microdiscectomy Dr van Gelder had performed related the injuries which the 2013 motor accident had caused and were necessary. The reasons given included:

4. [9]

   Neither party challenged Assessor Wong’s certificate and they were, accordingly bound by it. Section 61(2) of MACA provides that:

The second medical dispute - Assessor Gliksman’s certificate

1. [10]

   In issue on the second medical dispute which came before Assessor Gliksman, was whether the degree of Mr Wolarczuk’s permanent impairment caused by the 2013 motor accident was greater than 10%.

2. [11]

   Having also examined Mr Wolarczuk, and considered the available medical records and investigations, to which he referred, including Assessor Wong’s certificate, Assessor Gliksman concluded that Mr Wolarczuk had suffered a 5% whole person impairment. He accordingly certified that:

3. [12]

   The reasons Assessor Gliksman gave were that:

4. [13]

   There was no issue between the parties that Assessor Gliksman’s approach to the assessment of the permanent impairment Mr Wolarczuk suffered as the result of the 2013 motor accident, did not accord with the requirements of the Motor Accidents Compensation Act and the applicable Guidelines.

5. [14]

   Mr Wolarczuk applied to have the certificate reviewed in accordance with s 63 of that Act.

The conduct of a review under s 63

1. [15]

   An application for review of an assessor’s certificate can only be made “on the grounds that the assessment was incorrect in a material respect”: s 63(1).

2. [16]

   If the proper officer of the State Insurance Regulatory Authority is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, the application must be referred to a Panel of at least three medical assessors for review: s 63(3).

3. [17]

   Such a review is not limited to that aspect of the assessment that is alleged to be incorrect, but is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 63(3A).

4. [18]

   Medical Assessment and Permanent Impairment Guidelines have been issued by the Authority under s 44. Both applied to the Review Panel’s assessment of the degree of permanent impairment Mr Wolarczuk suffered as a result of the 2013 accident.

5. [19]

   A Review Panel may confirm or revoke the medical assessor’s certificate and issue a new certificate as to the matters concerned: s 63(4). Such a certificate must set out the reasons for the Panel’s findings about any matter certified: s 63(6). Section 61 also applies to any new certificate issued: s 63(6).

6. [20]

   In its reasons the Review Panel revealed, under the heading “3 Matters Considered and Decided by the Panel”:

7. [21]

   Then set out in the Review Panel’s reasons is an account of the history, current problems and past history Mr Wolarczuk gave the two Panel members and the results of their examination.

8. [22]

   Whether the process which the Panel pursued accorded with the requirements of s63 and the applicable Medical Assessment Guidelines is now in issue. They include clause 16.21 “Review Panel Assessment” of the Impairment Guidelines, which specifies in cl 16.21.2, that the Panel must determine within 30 days of being convened, whether “re-examination of the claimant is required, and if so set a timetable for that to occur”.

9. [23]

   That necessary regard was given by the Review Panel to the Permanent Impairment Guidelines, as cl 1.6(b) required, is also in issue.

The certificate issued by the Review Panel

1. [24]

   In issue on the review was whether the degree of permanent impairment which Assessor Wong had concluded had been caused to Mr Wolarczuk’s spine by the injury caused by the 2014 motor accident, was greater than 10%.

2. [25]

   The Panel certified:

3. [26]

   Under the headings “Panel Deliberations” and “Diagnosis”, the Panel found that:

4. [27]

   The Panel then turned to “Causation”, concluding:

5. [28]

   The Panel then turned to “Pre-existing injury”, concluding in relation to Mr Wolarczuk’s spine that there was objective evidence of “a pre-existing DRE II impairment in the lumbar spine, prior to the subject accident”. That was not resolved by injection in the weeks before the accident. It concluded:

6. [29]

   The Panel decision was finally explained to be:

7. [30]

   Under the heading “5 Issues raised by the parties” the Panel said that it “agreed that these have all been dealt with in section 3 above”. Section 3 dealt with “the matters considered and decided by the Panel”, where the Panel’s deliberations were dealt with, to which I have earlier referred.

Did the Panel fail to give adequate reasons?

1. [31]

   It is convenient to deal first with the issue as to the adequacy of the reasons given by the Review Panel.

2. [32]

   I am satisfied that Mr Wolarczuk’s case, that the reasons given were inadequate must be accepted - illogical and contradictory as the reasons given were.

3. [33]

   There was no issue between the parties as to the nature of the obligation imposed on the Panel, to give reasons for its conclusions as to the matters referred for assessment, dealt with in its certificate: s 61. As discussed in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, at [32] in relation to the obligation to give reasons imposed on a medical panel under s 68 of the Accident Compensation Act 1985 (Vic):

4. [34]

   On this application, as discussed in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6], what is in issue in relation to the Review Panel’s certificate is:

5. [35]

   The parties being bound by Assessor’s Wong’s unchallenged findings as to the injuries caused to Mr Wolarczuk’s spine in the 2013 accident, there was no issue before the Review Panel as to that matter. No reference is made to this certificate in Part 1C “Documentation and Other Material Reviewed”, of the Panel’s Reasons, but the Panel does indicate that it had received and considered all the documents which were provided to Assessor Gliksman, prior to his assessment.

6. [36]

   When identifying the medical reports it had noted in reaching its conclusions, the Review Panel also said:

7. [37]

   In section C “Panel Deliberations”, without referring to Assessor’s Wong’s conclusions, the Panel indicated that it was satisfied that “a back injury occurred in the subject accident” and that.

8. [38]

   Assessor Wong had certified that the L5 nerve root decompression and microdiscectomy performed by Dr van Gelder was reasonable and necessary, given the injury caused to Mr Wolarczuk’s spine in the 2013 accident; that it was a contributing cause of the then condition of his spine, which was more than negligible; and that it had caused his L4/5 disc to protrude and compressed his right L5 nerve root, resulting in a significant change in his prior clinical condition, which required surgery.

9. [39]

   The Review Panel explained, under the heading “Pre-existing injury”, that it had assessed Mr Wolarczuk’s whole person impairment prior to the 2013 accident, to be 5%. It considered that post-accident, his impairment remained 5%. Accordingly, when that was deducted from his pre-existing impairment, the Panel concluded that the 2013 accident had resulted in “no new level of percentage impairment”.

10. [40]

    This approach did not accord with the Permanent Impairment Guidelines, which required, in the case of spine impairment, that the current impairment be estimated first; that the impairment from any pre-existing spine problem then be estimated; and that this estimate then be subtracted from the present impairment, “to account for the effects of the former”: Clause 1.34.

11. [41]

    The Review Panel’s final conclusions were, in any event, different. The result is that its reasons are impossible to understand.

12. [42]

    Under the heading “Panel Decision” the Panel provided a table which reflected its earlier conclusions, namely that Mr Wolarczuk’s whole person impairment was 5% and that the 2013 accident had made no contribution to that impairment. There reference is made under the heading “AMA Guides/Guideline Reference (Chapter/Page/Table)” to “DRE II Page 3/102 AMA IV”. That suggests that the Panel did not pay necessary regard to the applicable provisions of Chapter 4 of the Permanent Impairment Guidelines. The Panel then explained its conclusion to be that Mr Wolarczuk’s:

13. [43]

    Having earlier found under the heading “Panel Deliberations” that there was objective evidence that Mr Wolarczuk had a pre-existing DRE II injury, before the 2013 accident, the Panel then went on to explain, however, that it had found:

14. [44]

    This contradicted the Panel’s earlier finding. That then led the Panel to a different final conclusion, namely that:

15. [45]

    On this application it was common ground that under AMA 4, a finding of DRE II resulted in a 5% impairment, DRE III 10% and DRE IV 20%. How it was that Mr Wolarczuk’s impairments, both before and after the accident were assessed to be both DRE II and DRE III, was not explained by the Panel.

16. [46]

    The insurer thus accepted that there was an inconsistency in the Review Panel’s reasons, but submitted that despite this difficulty, the reasons given were adequate. That was because the same conclusion was effectively reached, namely, that the impairment caused by the accident to Mr Wolarczuk’s spine, did not result in greater impairment than that which he had previously suffered.

17. [47]

    I am satisfied that this submission cannot be accepted.

18. [48]

    Fairly read, what the Review Panel’s reasons do establish is that it did not conduct its assessment in accordance with the requirements of Chapter 4 “Spinal Impairment” of the Impairment Guidelines, as it was required to do. There reference is made to section 3.3 of Chapter 3 in the AMA 4 Guides, which uses a “diagnosis related estimate (DRE) model’, which must be used on assessment: Impairment Guideline 4.1.

19. [49]

    That assessment must begin with Table 4.1 “to establish the appropriate category for the spine impairment”: Clause 4.6. The assessment of spinal impairment must be made “at the time a person is examined”: Clause 4.3. Assessors, including the Review Panel, are also required to include in the report a description of how the impairment rating was calculated, with reference to the Tables and/or figures used: Clause 4.12.

20. [50]

    Table 4.1 identifies the patient’s condition and the available DRE estimate category for such a condition. In the case of a previous spine operation without radiculopathy, the available DRE categories were II, III, or IV. In the case of previous spine operation with radiculopathy, the available DRE categories were III, IV or V.

21. [51]

    In the case of low back pain or neck pain with guarding or non-verifiable radicular complaints, the available DRE category was II. For low back pain with radiculopathy or radiculopathy alone, the available DRE category was III.

22. [52]

    Clause 4.14 also specifies the definitions of clinical findings to be used to place an individual into these DRE categories.

23. [53]

    Clause 4.15 required the Panel to use the Table, in conjunction with these definitions, by way of modification of identified parts of the AMA 4 Guides, including the “Specific Procedures and Directions Section”: Clause 4.18. Clause 4.20 also required that:

24. [54]

    Clauses 4.28 to 4.31 also specified how radiculopathy and impairment caused by dysfunction of a spine nerve root or roots, was to be identified.

25. [55]

    In its reviews the Review Panel made no reference to any of these requirements. Its reasons reveal that the Panel did not pay necessary regard to the applicable Permanent Impairment Guidelines which bound its assessment. In explaining its conclusions, the Panel made no reference to those requirements, or to Assessor Wong’s unchallenged conclusions.

26. [56]

    The Review Panel’s final observation was that the Guidelines do not provide for increased percentage impairment for those who undergo operative intervention. That does not accurately reflect the provisions of Chapter 4 of the Impairment Guidelines. There it is required that the results of post-accident surgery must be taken into account in that exercise: Clause 1.27.

27. [57]

    As the Insurer submitted, the Review Panel was undoubtedly undertaking its assessment at a different time to that undertaken either by Assessor Wong or by Assessor Gliksman. Still, the Panel’s findings do not shed necessary light on why it was that the application of the applicable Guidelines to the evidence before it led the Panel to the result it finally arrived at, whichever it actually was, a 5% DRE II or 10% DRE III impairment, both before and after the 2013 accident.

28. [58]

    It follows that despite all that the Review Panel said in its certificate, its reasoning process cannot be discerned, even reading the reasons as a whole and applying a beneficial construction to them. Nor can the gap in the Panel’s logic be filled as a matter of necessary inference, on a fair reading of those reasons.

29. [59]

    It thus must be concluded that the Panel did not discharge its statutory obligation, to explain the actual process of reasoning by which it in fact formed its opinion. What it did reveal, however, establishes that it did not adhere to the applicable Guidelines.

Was the Panel bound by Assessor Wong’s conclusions?

1. [60]

   A “medical dispute” is defined in s 57 to mean “a disagreement or issue to which this Part applies”. Section 58 provides that:

2. [61]

   The Act thus does not separately provide for “treatment disputes” or “impairment disputes”. A “medical dispute” may concern treatment, impairment, or both. The Medical Assessment Guidelines, however, make some separate provisions for treatment and impairment disputes: Clause 8. In the case of impairment disputes the insurer is obliged to give written reasons for rejecting a claim for damages for non-economic loss, if it believes that the claimant’s whole person impairment is not greater than 10%: Clause 8.8.

3. [62]

   Section 61 “Status of medical assessments” requires medical assessors to give a certificate as to the matters referred, which becomes conclusive evidence as to the matters certified “in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned”. Medical assessors are defined in s 57. They are not “claims assessors”.

4. [63]

   An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect, in a material respect: s 63(2). Neither party having sought a review of Assessor Wong’s assessment, its correctness did not arise for the Review Panel to consider.

5. [64]

   The Review Panel had to resolve whether Assessor Gliksman’s assessment that Mr Wolarczuk's whole person impairment resulting from the injury to his lumbar spine was 10%, it having been 5% before the accident, with a further 5% caused by the accident, was incorrect.

6. [65]

   As discussed in McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 at [25], s 63(4) empowers a review panel to confirm or revoke the medical assessor’s certificate referred to it and to issue of a new certificate “as to the matters concerned”. The “matters concerned” are those matters specified in s 58, which were before the medical assessor.

7. [66]

   In this case that was only whether the degree of permanent impairment Mr Wolarczuk had suffered as a result of the injury caused by the motor accident, was greater than 10%. That had to be assessed in accordance with the applicable Impairment Guidelines, including what was provided in Chapter 4.

8. [67]

   As the insurer accepted, in resolving whether Assessor Gliksman was wrong in finding the degree of Mr Wolarczuk’s degree of permanent impairment as the result of the accident to be only 5%, the Review Panel could not ignore Assessor Wong’s certificate, on which Mr Wolarczuk relied.

9. [68]

   The Panel had to undertake its evaluation of his impairment at the time of Mr Wolarczuk’s re-examination: Permanent Impairment Guidelines 1.23 and 4.6. The objective evidence of Mr Wolarczuk’s pre-existing symptomatic permanent impairment of his spine, also had to be considered. That consideration had to result in a calculation of its value, which then had to be subtracted from the value of his current whole person impairment: Clause 1.33.

10. [69]

    It follows that while not bound by the conclusions which Assessor Wong had earlier reached, the Review Panel had to consider them. Further, in giving its reasons for its conclusions, the Review Panel had to explain why it was that it rejected Mr Wolarczuk’s case, which relied on Assessor Wong’s conclusions.

Did the Panel reject Mr Wolarczuk’s case on causation?

1. [70]

   Before the Review Panel, Mr Wolarczuk’s case was that Assessor Gliksman had approached his consideration of the pre-existing impairment in the wrong way; had included an irrelevant and unrelated possible impairment in his assessment of the pre-existing impairment; and had not recognised that he was bound by the matters certified by Assessor Wong. The method of deduction he adopted, was also inconsistent with the Guidelines.

2. [71]

   The Review Panel was obliged by the Guidelines not only to use Table 4.1 in its assessment of his then permanent impairment, but also to explain how it had used that Table and AMA 4.

3. [72]

   On this application, Mr Wolarczuk’s case that the Review Panel’s use of AMA 4 involved error must be accepted, given that, as I have explained, its reasons do not disclose that it adhered to the requirements of Chapter 4 of the Impairment Guides, as it was bound to do.

4. [73]

   Mr Wolarczuk complains that the result was that the Review Panel failed to give necessary consideration to his case on causation. The accident had caused him further injury, which had required surgery and left him with ongoing radiculopathy, which ought to have resulted, on proper application of Table 4.1, in an assessment that his impairment which after the accident, was at least 10%.

5. [74]

   The Insurer’s case was that the Review Panel had taken proper account of Mr Wolarczuk’s pre-injury radiculopathy and the evidence that the post-accident surgery had led to good recovery, without ongoing radiculopathy. That explained the Panel’s finding of DRE II lumbosacral impairment with pain in the leg being a non-verifiable radicular sign, which had not been resolved prior to surgery by injection. Accordingly, this explained the Panel’s conclusion that no new level of permanent impairment had resulted from Mr Wolarczuk’s surgery.

6. [75]

   In the result, the Insurer argued that Mr Wolarczuk’s complaints in relation to causation were misconceived. Assessor Wong had not determined what level of permanent impairment had been caused by the accident and his findings on treatment did not bind the Review Panel. Further, the Guidelines did not “require previous surgery to be the only method by which the degree of permanent impairment is determined”.

7. [76]

   The difficulty with the latter submission is that the Impairment Guidelines not only required Table 4.1 to be used by the Review Panel to establish the appropriate category for Mr Wolarczuk’s spine impairment, both before and after the accident, but that the Table specifies the available DRE Categories for both previous spine operation, with and without radiculopathy. The Guidelines also provide that the effect of surgery must be taken into account, on an assessment of impairment: Clause 4.4.

8. [77]

   That being so, it cannot be accepted that the Guidelines give assessors the discretion to assess the level of impairment of those who have had spinal surgery, as falling into one of the other specified conditions, such as patients who simply suffer lower back pain, or those who only have radiculopathy. Under these Guidelines, if there has been surgery, it must be taken into account in the way the Guidelines and the Table direct.

9. [78]

   The Review Panel gave no explanation of how it reached its conclusions, by reference to the Table and the other requirements of the Impairment Guidelines I have discussed. Why it did not accept Mr Wolarczuk’s case, including as to causation, is not apparent.

Were all members of the Panel required to examine Mr Wolarczuk?

1. [79]

   In issue is whether the MACA and the applicable Guidelines permitted the Review Panel, having concluded that Mr Wolarczuk should be re-examined, to determine that the re-examination would be undertaken by only two of its members.

2. [80]

   The answer depends on the proper construction of s 63, which provides:

3. [81]

   The Insurer’s case is that s 63 permits the Panel to determine that only some of its members will undertake a re-examination, relying on clause 11 of the Medical Assessment Guidelines, which provides:

4. [82]

   In my view the Insurer’s construction of s 63 is incorrect.

5. [83]

   An application for review of a medical dispute must be referred to a panel of at least three medical assessors: s 63(3). The review is to be “by way of a new assessment of all the matters with which the medical assessment is concerned”: s 63(4). Section 133 requires that the assessment of the degree of permanent impairment of an injured person must be made in accordance with the Motor Accidents Medical Assessment Guidelines.

6. [84]

   In Ali v AAI Limited [2016] NSWCA 110, Leeming JA discussed at [79] - [96] the question of whether the Guidelines which apply to medical assessments are “delegated legislation” binding of their own force. His Honour observed at [99]:

7. [85]

   In the event of any conflict or inconsistency, the Guidelines cannot prevail over the statutory requirements, including those of s 63. The construction of s 63 must be approached in light of Giles JA’s observations in McKee at [23] and [38]:

8. [86]

   Consistently with this approach to purpose of the section and the requirements of the “one task” involved in the review process established by s 63, all three members of a review panel which determines that a re-examination is necessary, must be involved together in that examination, as a part of the new “assessment of all the matters with which the medical assessment is concerned”, which s 63(3A) requires.

9. [87]

   That conclusion is supported by various provisions made in both the Medical Assessment and Permanent Impairment Guidelines.

10. [88]

    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. No express provision is made in either the Impairment or Medical Assessment Guidelines, to permit the panel to determine all of its members will not to be involved in each stage of the new assessment it must undertake.

11. [89]

    The obvious implication is that all members of the panel must be involved in the entire assessment process. That also accords with the requirement in the Impairment Guidelines that the assessment of spinal impairment be made at the time of examination: cl 4.3.

12. [90]

    It is Chapter 16 of the Medical Assessment Guidelines which deals with referrals to a review panel. It specifies the materials which they must be provided: cl 16.19. Clause 16.20 specifies that neither the review panel nor individual members may delegate their functions to the Proper Officer. The Guidelines make no provision for the delegation of any of the functions of the panel to one or more of its members.

13. [91]

    Under the heading “Review Panel Assessment”, clauses 16.21 to 16.26 provides:

14. [92]

    Clause 16.22 provides that if there is to be a re-examination, clauses 9.11.4, 9.11.5 and Chapters 10, 11, 12 and 18 apply.

15. [93]

    Clause 9.11.4 deals with notification to the parties of the names of the assessors; cl 9.11.5 with the documents the assessors are to be provided; Chapter 10 with the circumstances in which the proper officer may dismiss an application; Chapter 11 with assessment procedures; Chapter 12 with documentation and other supporting procedures; and Chapter 18 with costs assessment.

16. [94]

    Clause 16.21.7 specifies that the panel may determine which of its members will sign certificates on behalf of the panel. But it does not provide for the panel to determine that some of its members will undertake a re-examination on its behalf. The obvious inference, again, is that all members of the review panel must participate in all parts of the panel’s new assessment, as s 63(3A) requires, including re-examination.

17. [95]

    That is also supported by 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.

18. [96]

    True it is that in Mr Wolarczuk’s case there was no disagreement between the two members of the Review Panel who conducted the re-examination as to its results. Such disagreement is, however, plainly possible, if either the entire panel, or only some members, conduct a re-examination.

19. [97]

    Provision is made in cl 16.25 of the Medical Assessment Guidelines for disagreements about aspects of the assessment between panel members. That provision contemplates, however, that all members of the Panel have been involved in all aspects of the assessment. It provides that:

20. [98]

    The possibility of an evenly divided panel arises from s 63(3), which provides that a review panel must have at least three members. Provision is thus made in cl 16.17 for the Proper Officer to convene a panel of at least three medical assessors and to arrange for a chairperson to be appointed. Such a panel may comprise four or more members.

21. [99]

    If the Insurer’s construction of s 63 is correct, there would seem to be a number of possible ways in which a re-examination which a panel has determined is necessary, could occur. Only one of them will, however, result in all members of the review panel having 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. That is an examination conducted in the presence of all panel members.

22. [100]

    Necessarily, if a re-examination proceeds either by separate examination by each panel member at different times; or by examination by only one member, who then makes a report to the panel; or by examination by more than one, but less than all members, who then make such a report, the result will be that not all members will have the same information. That is because no matter how good a report about what an examination revealed to the member or member who conducted it is, the information conveyed will not be the same as that which a medical assessor gleans when present during the re-examination.

23. [101]

    The only clause of the Guidelines which deals with disagreement amongst members is cl 16.25 of the Medical Assessment Guidelines. In this case the chairperson was one of those who conducted the re-examination. On the Insurer’s approach, however, the panel does not need to determine that the chairperson be one of the examiners. But cl 16.25 makes no provision for such a possibility.

24. [102]

    That is because cl 16.25 does not contemplate that all panel members will not participate in every aspect of the assessment. To the contrary, consistently with s 63, it provides for how disagreements between panel members over an aspect of the assessment that they have each participated in, is to be resolved by majority if there is an uneven number of panel members, or according to the chairperson’s view, if the numbers are even, that is, four or a greater even number: s 63(3) and cl 16.17.

25. [103]

    It follows that cl 11.1 does not empower members of a review panel, as a matter of “procedure”, to determine that only some panel members will undertake either a re-examination, or any other part of the new assessment “of all the matters with which the medical assessment is concerned” which the review panel must conduct: s 63(3A).

26. [104]

    If it were otherwise, the panel members could also determine, as a matter of procedure, that other parts of their new assessment could be undertaken by only some of their number. Namely, the review of the relevant documents and the preparation of the panel’s report. Or indeed, the panel could determine that only some of their number could undertake all parts of the assessment.

27. [105]

    Such a divided process would be the antithesis of that considered in McKee to be required by s 63, namely, by the review panel’s application of its collegiate professional expertise to all of the information relevant to the new assessment.

28. [106]

    Thus it is that the only step in the assessment process which the panel is empowered to determine only one of their members will take, is the signing of the panel’s certificate: cl 16.21.7.

29. [107]

    I note, however, that in Mackenzie v Allianz Australia Insurance Ltd (No. 2) [2015] NSWSC 1320, Adamson J came to a different conclusion. There, her Honour observed at [58] – [61]:

30. [108]

    As this passage shows, earlier in Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950, Adamson J also came to a similar view.

31. [109]

    Regrettably I cannot agree with Adamson J that “the assessment itself”, which her Honour considers that the review panel must arrive at collectively, does not include any re-examination it has determined is necessary.

32. [110]

    In my view, as I have explained, given the requirement of s 63(3A), that there be a “new assessment of all the matters which the medical assessment is concerned”, which is not limited to that part of the earlier assessment which is alleged to be incorrect, if the panel determines that a re-examination is necessary, that being one part of such an assessment, all panel members must be present when the re-examination is undertaken.

33. [111]

    Regrettably, in the result, I must depart from the conclusions reached by Adamson J, convinced as I am that they do not reflect the proper construction of s 63 of the MACA or of the Guidelines to which I have referred: see Favelle Mort Limited v Murray (1976) 133 CLR 581 at 591; [1976] HCA 13.

Discretion

1. [112]

   The Insurer’s case was that even if these conclusions were reached, I would refrain from exercising the Court’s discretion to grant the relief sought by Mr Wolarczuk, because the result of a further review of Assessor Gliksman’s certificate could not lead to a more favourable outcome.

2. [113]

   I am not convinced of that, given what I have earlier discussed in relation to the requirements of the MACA and the Guidelines, when it is spinal injury which arises for a review panel to consider.

3. [114]

   In any event, given the conclusions which I have reached in relation to the procedures the Review Panel adopted and its failure to give the required reasons, I do not consider that this it is just to refrain from exercising the Court’s discretion in Mr Wolarczuk’s case.

Orders

1. [115]

   The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. In this case that is an order that the Insurer pay Mr Wolarczuk’s costs of the proceeding. Unless the parties approach within 7 days, that will be the Court’s order.

2. [116]

   Accordingly, for these reasons given, I order that:

   1. (1)

      The time for the commencement of these proceedings is extended to 21 August 2017.

   2. (2)

      The Review Panel’s certificate is set aside.

   3. (3)

      The matter is referred back to the State Insurance Regulatory Authority to be dealt with according to law.