Balde v AAI Ltd t/as GIO

By further amended summons filed in Court on 13 November 2020 (pursuant to leave granted on 12 November 2020), Sadu Balde (the claimant) challenges two decisions made under the Motor Accidents Compensation Act 1999 (NSW) (the Act). The first decision is that of Dr Giblin, the third defendant, made on 16 October 2019 (the Assessor’s decision) and the second decision is that of the Proper Officer, the fourth defendant, made on 26 February 2020 (the Proper Officer’s decision). The plaintiff invokes this Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW).

The second defendant is the State Insurance Regulatory Authority (SIRA). The only active defendant is the first defendant, AAI Ltd, trading as GIO (the insurer). The other three defendants have filed submitting appearances.

All references to legislative provisions in these reasons are to be read as references to the Act, unless otherwise stated.

The original summons was filed on 21 May 2020. This was within the three-month period prescribed by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1) to challenge the Proper Officer’s decision. Mr Romaniuk SC, who appeared with Ms Grotte for the claimant, accepted that the claimant required an extension of time to challenge the Assessor’s decision. Mr Rewell SC, who appeared on behalf of the insurer, did not oppose an extension of time being granted in respect of the challenge to the assessor’s decision. No prejudice to the insurer has been identified. The challenge to the Assessor’s decision is related to the challenge to the Proper Officer’s decision. Had the Proper Officer’s decision been in favour of the plaintiff it would not have been necessary for the plaintiff to challenge the Assessor’s decision since it would have been the subject of review by a Review Panel in any event. I am satisfied that time ought be extended under UCPR, r 59.10(2).

Before turning to the grounds, I propose to set out, in summary form, the relevant statutory provisions and background facts.

Section 44 of the Act relevantly provides:

Part 3.4 of the Act provides for medical assessments. The term “medical assessment matters” is defined by s 57 as being any of the matters referred to in s 58. Of present relevance, s 58(1) provides in part:

Section 61, which provides for medical assessments, requires a medical assessor or panel to give a certificate as to the matters referred for assessment and the reasons, which is to be conclusive.

Section 63, which provides for review of medical assessments, relevantly provides:

Section 65(1) provides:

The Motor Accident Permanent Impairment Guidelines (the PI Guidelines) were issued under s 44(1)(c) of the Act. Clause 1.3 provides that the PI Guidelines apply to the assessment of the degree of permanent impairment that has resulted from an injury between 5 October 1999 and 30 November 2017. The claimant suffered injuries as a result of an accident during this period.

Clauses 1.5-1.7 make provision for causation, as follows:

Although these provisions were included in the claimant’s list of authorities, it was not suggested that they applied in terms to the treatment disputes which were referred to Dr Giblin since he was not assessing permanent impairment. It was, however, common ground that causation for the purposes of treatment would be established by proof of material contribution and that this is consistent with the position at common law.

Permanent impairment of the spine is addressed in cll 1.111-1.155 of the PI Guidelines. Clause 1.111 provides that only the diagnosis-related estimate (DRE) is to be used for evaluating impairment of the spine, as modified by the Guidelines. Of present relevance (because of the way the claimant put the submission), cll 1.138-1.142 provide:

On 5 March 2017, the claimant, who was born in 1976, suffered injuries in a motor vehicle accident for which he made a claim against the insurer on 7 March 2017. The insurer is the third party insurer of the owner or driver at fault and has admitted liability pursuant to s 81 of the Act.

The claimant made a claim for % whole person impairment (WPI), which was assessed by Dr Perla who certified on 6 September 2018 that the claimant had 0% WPI. There is no challenge before me to this decision.

In a report dated 29 April 2019, the claimant’s treating orthopaedic surgeon, Dr Balsam Darwish, recommended that the claimant undergo surgery to his cervical spine, namely a right C4/5, C5/6 and C6/7 foraminotomy.

On 10 January 2019 the claimant submitted a claim to the insurer for the cost of the surgery, which was said to amount to $12,630. On 17 January 2019 the insurer rejected the claim. It said, in its letter of that date:

At the claimant’s request, SIRA referred two medical disputes to Dr Giblin: first, whether the proposed treatment related to the injuries caused by the accident; and, secondly, if so, whether the proposed treatment was reasonable and necessary. These disputes correspond with the medical assessment matters referred to in s 58(1)(a) and (b) of the Act.

The claimant supported his claim with medical reports from Dr Sikander Khan and Dr Darwish as well as X-ray films and MRI scans.

The insurer provided two documents to Dr Giblin: the certificate and reasons of Dr Perla referred to above and a letter dated 11 July 2019 from Dr John Bentivoglio, an orthopaedic surgeon who saw the claimant at the request of the insurer.

None of these documents forms part of the record in the sense in which this term is used in s 69 of the Supreme Court Act. However, as the claimant also relied on jurisdictional error, they are potentially relevant.

Mr Romaniuk accepted that, even had the insurer not provided Dr Perla’s certificate and reasons to Dr Giblin, it is likely that the Proper Officer would have provided the document to Dr Giblin by way of background in any event. However, Mr Romaniuk submitted, in effect, that Dr Giblin had erred by applying the test for radiculopathy in the PI Guidelines (which had been applied, correctly, by Dr Perla when assessing the claimant’s permanent impairment) when addressing the disputes which had been referred to him. For that reason, it is necessary to set out what Dr Perla said of the claim for permanent impairment of the claimant’s neck, although it does not, except to the extent that it is replicated or referred to in Dr Giblin’s reasons, form part of the record before me for the purposes of s 69 of the Supreme Court Act.

Dr Perla said, as follows:

Dr Bentivoglio, in his report provided to Dr Giblin by the insurer, recorded that, on 22 June 2018, the date of the examination, the claimant complained of neck pain 50% of the time “with symptoms radiating down his right upper limb extending as far as his wrist”. Dr Bentivoglio recorded that he had viewed X-rays and MRI scans of the claimant’s cervical spine. Dr Bentivoglio’s answers to the insurer’s questions were as follows:

Dr Giblin conducted an assessment of the applicant on 15 October 2019 and issued a certificate on 16 October 2019 in which he certified that:

In his reasons, Dr Giblin recorded the medical issues, the history he had taken from the claimant and the history of symptoms and treatment following the motor vehicle accident, as well as the findings on examination. Dr Giblin confirmed that he had viewed X-rays and MRI scans of the claimant’s right shoulder and cervical spine. He noted that the radiologist reported, in respect of the MRI scan of the cervical spine of 21 August 2018: “moderate to severe foraminal narrowing with potential nerve root impingement”.

Dr Giblin recorded the following conclusions from the films:

Dr Giblin reviewed the medical reports which had been provided to him. He expressed agreement with Dr Bentivoglio’s opinion. He referred to a report of Dr Sikander Khan dated 29 August 2019 provided by the claimant in which Dr Khan agreed with Dr Darwish’s recommendation for surgery. Dr Giblin commented that Dr Khan’s belief that surgery was reasonable was “without any clinical justification”. Dr Giblin reviewed Dr Darwish’s report of 29 April 2019 and noted that the report did not “include objective anatomical clinical findings”. He noted that none of Dr Darwish’s other reports contained “any clear physical objective findings”. Dr Giblin also noted that Dr Perla’s assessment “did not record objective physical findings which would indicate cervical nerve root irritation”.

In support of the causation certification, Dr Giblin said:

In support of the reasonable and necessary certification, Dr Giblin said:

The claimant applied for a review of the assessments made by Dr Giblin. His application was forwarded to the Proper Officer so that she could address the threshold question in s 63(3). In his submissions, the claimant contended that Dr Giblin had misapprehended the legal test for causation. He also submitted that the proposed treatment was reasonable and necessary because it would have a reasonable chance of alleviating symptoms when other modes of treatment had failed. He made no submission to the Proper Officer that Dr Giblin had erroneously used the definition of radiculopathy in the PI Guidelines to determine whether the proposed treatment was reasonable and necessary.

On 26 February 2020 the Proper Officer gave reasons for not being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. The Proper Officer addressed each of the certificates separately and expressed her lack of the requisite degree of satisfaction separately. I note that the question whether the reasons of the Proper Officer formed part of the record for the purposes of s 69 of the Supreme Court Act was left open in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 (Miller) at [37]-[38] (Basten JA, Ward JA and Young AJA agreeing). As the claim for relief in the present case was put on the alternative basis of jurisdictional error, this point need not be determined.

In her reasons, the Proper Officer referred to the submission made by the claimant in support of his application for review that Dr Giblin had been in error in failing to appreciate that legal liability arises from an incident that makes a material contribution to a claimant’s condition and that what had occurred in the present case was that the claimant’s underlying degenerative condition had been rendered symptomatic by the trauma of the accident.

The Proper Officer recorded the insurer’s submission on the issue of causation that Dr Giblin had provided “clear and concise reasons as to the basis for his ultimate conclusion that the proposed surgery was not causally related to the accident.”

The Proper Officer set out in detail the findings and reasons of Dr Giblin and concluded:

The Proper Officer proceeded to address Dr Giblin’s reasonable and necessary certification. She concluded:

The claimant seeks to impugn the Assessor’s decision and the Proper Officer’s decision. In the amended summons, the claimant sought to impugn both decisions on the basis of error of law on the face of the record or jurisdictional error (a s 69 error). However, on the day of the hearing, Mr Romaniuk was granted leave to add a further ground so as to permit him to argue that the Proper Officer had made a s 69 error even if the claimant did not establish a s 69 error in the Assessor’s decision.

It was accepted that the claimant was entitled to seek internal review of the Assessor’s decision by applying to the Proper Officer and that, having been unsuccessful in his application for referral to a review panel, he was entitled to invoke this Court’s jurisdiction under s 69 to challenge the Assessor’s decision: see Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [85]-[86] and [91]-[92] (Beazley JA, McColl and Macfarlan JJA agreeing).

In order to address the grounds, it is necessary to start with Dr Giblin’s assessment and determine whether the alleged errors have been made out and, if so, whether any errors are s 69 errors. The insurer accepted that if Dr Giblin had made a s 69 error, both his assessment and the Proper Officer’s assessment ought be set aside. If the claimant has established error in Dr Giblin’s assessment but the error is not a s 69 error, it is necessary to address separately whether the Proper Officer’s decision is vitiated by a s 69 error. It was common ground that the principles which apply to a challenge to the Proper Officer’s decision were authoritatively stated in Miller at [36]: see also Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [38] (Gummow and Hayne JJ).

Mr Romaniuk argued that Dr Giblin made the following errors, each of which was a s 69 error:

The appropriate approach, when reading Dr Giblin’s reasons for his certificates, is one of fairness. The reasons are to be read as a whole with due and beneficial allowance being made for the expertise of, and words chosen by, the decision-maker: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.

The present case is to be distinguished from a case where treatment was accepted to be reasonable and necessary but the issue is whether the proposed treatment is related to the injuries sustained in an accident. In the present case, both matters (whether the treatment was related to the injuries caused by the accident and whether the treatment was reasonable and necessary) were referred to Dr Giblin for assessment.

In determining whether Dr Giblin made the error as alleged, it is important to appreciate the context in which the question of causation arose for his consideration. The only questions for Dr Giblin were those referred to him for assessment. They related to the connection, if any, between the injuries sustained in the accident and the proposed surgery. It was not part of his role to determine whether the injuries sustained in the accident caused the claimant’s underlying condition to become symptomatic or whether the insurer would, for example, be liable to the claimant for economic loss if the symptoms arising from the accident rendered him wholly or partially unfit for work. What Dr Giblin had to determine was whether the injuries sustained in the accident were related to the proposed surgery.

Surgery is treatment which by definition changes the body part affected, in many cases by removing the offending part. The purpose of the proposed surgery was to remove any bone, joint or soft tissue which impinged on the spinal nerve at the juncture where the nerve left the spinal column and extended to the extremities. Whether or not the surgery would relieve symptoms would depend on the provenance and cause of the symptoms. In essence Dr Giblin concluded that the radiological changes were not caused by the accident and that any soft tissue injuries would not be resolved by surgery. Of greater significance, Dr Giblin was not persuaded that there was any clinical presentation which indicated any nerve root impingement at the site of the proposed surgery and that therefore the surgery was neither reasonable nor necessary. This aspect of his reasons is relevant to the second question considered below, but also bears on the first.

Mr Romaniuk contended, and Mr Rewell accepted, that Dr Giblin’s comment that the “soft tissue nature of the clinical complaints is non-specific in nature and not directly productive of the radiological changes referred to in the MRI scan of 21 August 2018” (emphasis added) was potentially problematic. However, I consider that Dr Giblin’s observations mean no more than that the impact of the accident caused symptoms (of a soft-tissue non-specific clinical nature) which arose at least in part from a pre-existing condition which was reflected in radiological changes which must have pre-dated the accident. I do not consider that this passage, when read in the context of the reasons as a whole, reveals any error in determining causation. This conclusion is supported by Dr Giblin’s detailed consideration of the films which showed “a good deal of canal potency and CFS surrounding the cord” and “no clear evidence of compression or oedema [swelling] and there is a reasonable amount of epidural fat around the nerve roots in the exiting foramina”.

It may be accepted that, as the claimant contended, his underlying degenerative condition became symptomatic following the accident. On this basis, the accident can be said to have been a cause of his symptoms, in that it materially contributed to them. However, it does not follow from these propositions that the injuries sustained in the accident relate to the proposed surgery. The conclusion of causation can only be drawn when the purpose of the surgery is identified and the part or parts to be treated with the proposed surgery can be said to have been affected by the accident. A rudimentary example (which is not a perfect analogy) is sufficient to illustrate the point. An appendectomy will alleviate stomach pain when the cause of the stomach pain is appendicitis. However, where there is no appendicitis, an appendectomy will not be related to the stomach pain, which cannot be expected to be alleviated by such surgery. In the present case, Dr Giblin considered that, in the absence of radiological or clinical evidence of nerve root impingement, the proposed surgery, the purpose of which was to relieve such impingement, was not related to the injuries sustained in the accident.

The medical opinion which formed the basis for the causation certification was open to Dr Giblin as an expert. That is, it was open to Dr Giblin as an expert to find that the accident did not alter the underlying pathology in the claimant’s cervical spine, to which the proposed surgery was directed. Mr Romaniuk has not established the alleged error. Accordingly, it is neither necessary nor useful to decide whether any such error would amount to a s 69 error.

In essence, Mr Romaniuk submitted that Dr Giblin used the wrong test because he applied the provisions in the PI Guidelines relating to radiculopathy when they had no application to the task in hand. He relied on the extensive provisions relating to radiculopathy in cll 1.138-1.142 of the PI Guidelines and submitted that the similarity in language used by Dr Giblin and in the PI Guidelines was a powerful indication that Dr Giblin had, in effect, used the PI Guidelines to determine whether the proposed treatment was reasonable and necessary.

I am not persuaded that this error has been made out. One can infer from the language used by Dr Giblin in his reasons and by the other experts in their reports that terms such as radiculopathy have a meaning as a matter of medical science which is known to medical experts. The term radiculopathy was used by Dr Giblin to connote any impingement on the nerve from the cervical spine. While the PI Guidelines purport to define radiculopathy in a particular way, they do not have a monopoly on the use of the term. It is to be expected that some, if not all, of the concepts addressed in cl 1.138 will be associated with the terms used generally by the medical profession as part of medical science. Dr Giblin was obliged “to form and give his own opinion on the medical question referred to it by applying [his] own medical experience and [his] own medical expertise”: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [47] (French CJ, Crennan, Bell, Gageler and Keane JJ).

I am not persuaded that Dr Giblin adopted the definition of radiculopathy in the PI Guidelines, which was the definition which Dr Perla applied in his assessment of WPI. Although Dr Giblin referred to the PI Guidelines in his reasons and cited clauses which are germane to the assessment of WPI of the cervical spine, his discussion of the claimant’s clinical presentation and the films was not confined by these definitions. While Dr Giblin had regard to Dr Perla’s reasons, this was primarily for the purpose of ascertaining whether Dr Perla had detected any indications of nerve root impingement in his examination of the claimant for the purposes of that assessment.

Dr Giblin listed the various clinical presentations which could be expected if there was impingement on the nerve root: altered nerve sensation in the distribution of the nerve root; changes in the deep tendon reflexes (in the right arm compared with the left); muscle wasting; and weakness or atrophy in a nerve root distribution. In the exercise of his medical expertise he was entitled to infer from the absence of these matters that there was no impingement on the claimant’s nerve root from his cervical spine.

In essence, Dr Giblin’s assessment reflects his medical opinion that the purpose of the proposed surgery was to remove obstacles to the nerves (in the forms of bones, joints or soft tissue which impinged on the nerves) emanating from the cervical spine. Dr Giblin considered that it was neither reasonable nor necessary for the claimant to have the proposed surgery because he did not exhibit (either in Dr Giblin’s assessment or in any other recorded clinical setting) any organic signs to indicate that there was any impingement on the nerves associated with the cervical spine.

The medical opinion which formed the basis for the reasonable and necessary certification was open to Dr Giblin as an expert. His reasons set out in detail his “actual path of reasoning” which exposed how he had come to the assessment: see Wingfoot at [48]. Mr Romaniuk has not established the alleged error. Accordingly, it is not necessary to decide whether any such error would amount to a s 69 error.

The parties agreed that, if no error was established in Dr Giblin’s assessment, it was open to the Proper Officer not to be satisfied that either medical assessment was incorrect in a material respect and that, accordingly, the Proper Officer’s decision is not amenable to relief under s 69.

As no error has been established in Dr Giblin’s assessment, the decision of the Proper Officer also stands.

The parties agreed that, subject to one matter, costs ought follow the event in accordance with the general rule: UCPR, r 42.1. Mr Rewell submitted that, if the claimant were successful, the claimant should be ordered to pay the costs of 13 November 2020 since the amendment to the summons on 12 November 2020 necessitated a further appearance on that day. As the claimant has not been successful, it is not necessary to address this submission. However, for completeness, I note that the hearing, although listed for a day, commenced at 9.30am on 12 November 2020 and, at noon, was adjourned to 10am on 13 November 2020 to permit the parties time to prepare submissions on the ground which the claimant was granted leave to add to the amended summons. The hearing resumed at 10am on 13 November 2020 and concluded at 10.45am. Accordingly, it was completed in a total of half a day.

For the reasons set out above, I make the following orders: