Wharram v CIC Allianz Insurance Limited

1. [1]

   The plaintiff was injured in a motor vehicle accident on 28 October 2016. He claims that a trailer attached to a vehicle being driven on the opposite side of the road crossed the centre line and knocked him off his motor cycle. The first defendant has disputed that version of events.

2. [2]

   The plaintiff was treated by ambulance paramedics at the scene of the accident before being transferred to Wollongong Hospital where he was admitted. He remained in the hospital until discharged on 19 November 2016. The plaintiff had sustained multiple injuries including rib fractures, and a grade V splenic laceration that required a splenectomy on 4 November 2016. He developed post-operative splenetic vein thrombosis requiring anticoagulation.

3. [3]

   The plaintiff alleged that he suffered widespread injuries including injuries to the neck, back, both shoulders, head, ribs, abdomen, digestive tract and right patella. The impairment dispute in relation to his alleged physical injuries was referred by the Medical Assessment Service to Dr Ian Cameron, a rehabilitation specialist, for assessment.

4. [4]

   The assessment took place on 5 August 2019 and the Assessor issued his certificate and reasons on 18 August 2019.

5. [5]

   The Assessor found that the plaintiff suffered fractures of his left 7th and 8th ribs, an injury to his right patella, an injury to his spleen leaving scarring to the abdomen, and symptoms in his digestive tract caused by the use of prescribed medication. He assessed whole person impairment of 3%, comprising 2% for scarring to the abdomen and 1% for symptoms in the digestive tract. He found that the fractures of the left 7th and 8th ribs had healed with no impairment, as had the injury to the right patella and the thrombos splenic vein.

6. [6]

   The Assessor found that the injuries not caused by the motor accident were gross soft tissue injuries to the neck, back, the right upper extremity, the left upper extremity, a closed head injury and a staph infection in his blood.

7. [7]

   On 24 September 2019 the plaintiff applied for a review by a Review Panel of the Assessor’s Certificate. On 11 November 2019 the application for a review was dismissed by the Proper Officer. The Proper Officer was not satisfied that there was reasonable cause to suspect that the medical assessment by Dr Cameron was incorrect in a material respect.

8. [8]

   By a summons filed 25 March 2020, the plaintiff seeks an extension of time for filing the summons, and seeks declarations that the decisions of the Assessor and the Proper Officer are void and of no effect, and orders setting aside those decision and a statement of reasons. The summons named the insurer as the first defendant, the State Insurance Regulatory Authority as the second defendant, the Assessor as the third defendant and the Proper Officer as the fourth defendant. Submitting appearances were filed by the second, third and fourth defendants. I shall refer to the first defendant as “the defendant” hereafter in this judgment.

9. [9]

   The Summons was filed more than three months after the date of each decision: Uniform Civil Procedure Rules 2005 (NSW) r 59.10. The defendant does not oppose an extension of time. It was appropriate for the plaintiff to await the decision of the Proper Officer before filing the Summons. The short delay in filing after three months from the Proper Officer’s decision is adequately explained.

10. [10]

    The grounds for review in the summons are these:

The Assessor’s certificate

1. [11]

   The Assessor first set out the list of injuries to be assessed. These included all of those which he ultimately rejected as being caused by the accident. The Assessor noted that the plaintiff’s general practitioner medical history suggested that he had a history of vascular headaches, back pain, hypertension and a right shoulder injury in 2010.

2. [12]

   Under the heading “History of the Motor Accident”, the Assessor briefly summarised the accident, noted that an ambulance attended and that the plaintiff was taken to Wollongong Hospital. He recorded:

3. [13]

   The following sections of the certificate read as follows:

4. [14]

   The Assessor then listed the injuries which he determined were not caused by the accident (set out at [6] above), and went on to make his assessment of whole person impairment.

5. [15]

   In the Proper Officer’s Statement of Reasons, having dealt with preliminary matters, the Proper Officer listed the issues in dispute as being:

6. [16]

   The Proper Officer then summarised submissions that were made by each of parties. She was satisfied that the Assessor had obtained a history from the plaintiff regarding his post-accident symptoms.

7. [17]

   The Proper Officer concluded, in relation to the first two issues, as follows:

8. [18]

   In relation to the third issue, the Proper Officer noted that the Assessor had included amongst the modules for which he was approved for inclusion was “digestive”. There is no challenge to this determination.

9. [19]

   For those reasons the Proper Officer was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect on that basis.

Submissions

1. [20]

   Although six grounds of appeal were set out in the summons, senior counsel for the plaintiff distilled those grounds to identify three bases for challenging the decision of the Assessor. The first basis was an error in relation to the causation of the injuries. The plaintiff submitted that the Assessor failed in properly undertaking the task required of him under the medical and non-medical determinations set out in clause 1.6 of the Permanent Impairment Guidelines by reason of what follows.

2. [21]

   The plaintiff submitted that the Assessor proceeded on the basis that the purported absence of contemporaneous record of complaint in clinical material was determinative of the causation and the occurrence, in this case, of significant injury to the neck and back. In that way, the plaintiff submitted, the Assessor failed to determine causation correctly. The plaintiff submitted that the Assessor’s focus on contemporaneous record of complaint as determinative obscured any correct factual inquiry, particularly in a setting where there was no relevant pre-existing condition and no post-accident intervening event that explained the significant injury to the neck and back. The plaintiff submitted that a focus on the absence of evidence was an incorrect basis for fact finding. The plaintiff pointed to a number of authorities which referred to the difficulties of relying on contemporaneous documentary records or the absence of them.

3. [22]

   The plaintiff submitted that the second basis giving rise to error was that the Assessor failed to engage with the plaintiff’s clearly articulated argument that he had sustained injury to his neck and back in the accident. The plaintiff submitted that the Assessor did not engage with that argument because he did not have regard to the content of the documents placed before him, and did not in his clinical examination obtain a sufficient history from the plaintiff. In that way, the plaintiff submitted, the Assessor did not apply the medical determination and the non-medical determination set out in the Guidelines.

4. [23]

   The third basis of error concerned the sufficiency of the Assessor’s Reasons. The plaintiff submitted that the Assessor’s report did not set out the actual path of reasoning to show the decision the Assessor arrived at. The plaintiff submitted that there was no probative evidence to support the decision maker's negative causation finding. The plaintiff submitted that, even if the Assessor's determination that there was no contemporaneous record of injury contained in the materials was accepted, there was no other evidence which denied the causal relationship between the lower back injury and the motor vehicle accident. There was no other evidence of a subsequent intervening event giving rise to the injuries to the neck and lower back, and the plaintiff’s neck and lower back injuries had been accepted by the defendant's own medico-legal expert.

5. [24]

   The defendant submitted that the absence of any contemporaneous evidence of injury to the neck and back was taken into account by the Assessor as only one element of his process of reasoning. In that way, the Assessor’s conclusion, “Thus it is concluded that significant injuries did not occur in the neck or back related to the subject accident”, cannot be taken to relate only to the absence of contemporaneous medical evidence. Rather, it relates to the whole of the analysis preceding that sentence in the report, including the history elicited from the plaintiff, the findings on clinical examination, the summary of the medical material, and the specific review of the records. Those records provided evidence of a delay of almost five months after the accident before there was any report of back pain, and more than eight months before there was any report of neck pain.

6. [25]

   The defendant submitted that the nature of the motor accident was not such that injury to the neck and/or back was inevitable. The defendant submitted that there was no objective evidence of any significant injury to the neck or back on clinical examination.

7. [26]

   In response to the submission that the Assessor had failed to engage with the plaintiff’s clearly articulated argument, the defendant submitted that the injuries to the neck and back were included amongst those referred for assessment. In that way it was obvious that the Assessor was fully aware that the plaintiff was asserting that his neck and back injuries arose from the accident. The Assessor did not fail to engage with the argument. Rather, he engaged with the argument, and disagreed with it.

8. [27]

   In response to the plaintiff’s argument concerning a failure to set out a path of reasoning, the defendant submitted that the plaintiff’s submissions appeared to suggest that it was not open to the Assessor to find that the neck and back injuries were not caused by the accident unless there was some subsequent intervening event giving rise to those injuries. The defendant submitted that this was to reverse the onus. The plaintiff had to prove that the alleged injuries were caused by the accident.

Consideration

1. [28]

   The issues of causation and whether the Assessor has provided reasons which adequately show his path of reasoning in reaching his conclusion, are closely linked in this matter. The plaintiff submitted that the Assessor’s approach to causation can be ascertained from what appears in section 6 of his report, and that demonstrates error. The defendant submitted that the final sentence of the conclusion in section 6 is one based on the material contained both in section 6 and in earlier sections of the report. The plaintiff said that, if the defendant is correct in that regard, the report does not disclose clearly or at all the Assessor’s path of reasoning.

2. [29]

   It must first be said that the Assessor’s report is economical. The sections dealing with the plaintiff’s pre-accident medical history, the history of the accident and his history of symptoms following the accident are very brief. A significant example of this is where the Assessor, in taking a history of the accident, says only,

3. [30]

   Further, in the section headed “History of Symptoms”, nothing is in fact recorded of his symptoms. That is similarly significant when the Assessor has subsequently relied on contemporaneous records to conclude that he had no symptoms until March 2017.

4. [31]

   Section 6 suffers from a number of difficulties. First, it does not purport to deal with the findings on clinical examination, and it does not make reference to the absence of pre- or post-accident injuries or disabilities. A substantial portion of section 6 focuses on documents said to be contemporaneous with the incident, and what are described as “significant injuries”. With regard to the latter, the final sentence in section 6, when taken with the earlier reference to what was shown on contemporaneous reports, appears to suggest that the Assessor’s focus was on significant injuries rather than the issue of permanent impairment. Indeed, the plaintiff submitted that in that way the Assessor had asked himself the wrong question. Clause 1.5 of the Guidelines makes clear that the assessment is to determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident.

5. [32]

   A further reading of section 6 of the Assessor’s report leads me to conclude that his conclusion “that significant injuries did not occur in the neck or back related to the subject accident” was based on what was contained in section 6 of the report and nothing else. The introductory word, “Thus”, tends to support that construction of the Assessor’s conclusion.

6. [33]

   If it was based on anything else, the Assessor did not set out a line of reasoning to assist in such a conclusion. The term “significant injuries” is not a term of art in the assessment of permanent impairment. It seems clear that the Assessor was looking in the contemporaneous material to see if there were significant injuries because he says that there was no evidence contemporaneous with the incident that the plaintiff sustained significant injuries. Having made reference to the time when any complaints associated with the neck or back appeared, he concluded that “significant injuries” did not occur in those parts of the body related to the accident.

7. [34]

   There are two further problems with that. First, the Assessor, in section 6, appears to have ignored what the plaintiff told him, recorded under the heading “Current symptoms” that “He rated his worst pain as his neck pain which he said was severe and limiting". He seems to have ignored the limitation of movement which he found when conducting his clinical examination and which was earlier noted in section 4 of the report. Secondly, he also appears to ignore the fact that there was no evidence of any pre-existing or post-accident trauma that would explain the pain and the limitation of movement. This is not a reversal of the onus as the defendant asserts. If there is no history of pre-accident or post-accident trauma or disability, that is a matter which the Assessor needs to factor in to the issue of causation. Although in the pre-accident medical history the Assessor refers to “back pain”, it is not otherwise described either in relation to its nature or location. Further, in recording what the plaintiff sustained in the accident, the Assessor, apart from mentioning fractured ribs and a rupture of the spleen, simply refers to “multiple injuries”, as I have noted.

8. [35]

   Where none of those matters is mentioned or referred to in section 6 of the report, it is reasonable to conclude that the Assessor’s conclusion in section 6 is based only on the matters discussed in that section of the report. If he intended that that conclusion took into account all of those other matters, the Assessor has failed to disclose his path of reasoning: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [48].

9. [36]

   The Assessor’s focus on contemporaneous records has deflected the Assessor from undertaking the causation enquiry that he was bound to undertake. The danger of fact finding based on contemporaneous material was highlighted by Basten JA in Mason v Demasi [2009] NSWCA 227 at [22]:

10. [37]

    In a similar vein, Campbell J said in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [52]:

11. [38]

    Similarly in Bugat v Fox [2014] NSWSC 888 R Hulme AJ said:

12. [39]

    The focus by the Assessor on contemporaneous records seems to have been misplaced because of the way the relevant doctors recorded matters. The first visit by the plaintiff to his GP after the accident was on 21 November 2016. As with a number of subsequent visits to this GP on 24 November, 2 December, 7 December, 19 December, 3 January 2017, 23 January, 1 February, 2 February, 6 February and 10 February, the doctor did not record any reason for the visits. All that was recorded was “surgery consultation”. The first time any reasons for contact were recorded was by a different GP on 3 March 2017 where “back pain – buttock” was recorded. That method of record keeping only highlights the dangers, emphasised in the authorities to which I have referred, of making findings of fact or drawing firm conclusions from contemporaneous records.

13. [40]

    Further, it is not illogical to accept that a person may not suffer what might be described as a significant injury in an accident but might, as a result of how that injury manifests in disability, result in permanent impairment. In that way, the focus on whether significant injuries were suffered was an illegitimate way of dealing with the issue of causation and amounted to the Assessor asking himself the wrong question. These matters demonstrate that the Assessor fell into error when assessing causation.

14. [41]

    I do not accept the plaintiff’s submission that the Assessor failed to respond to the plaintiff’s clearly articulated case concerning his neck and back. That case was said, at the hearing, to be one whereby, although specific traumatic injury might not have been able to be demonstrated at the time of the accident, there was, nevertheless, a development of the disability and impairment in the months after the accident. I am not at all convinced that that was a clearly articulated case put by the plaintiff at the time of the assessment. The case that was put was that he had suffered permanent impairment by reason of injuries and disabilities to his cervical and lumbar spine. The Assessor did not ignore that claim but, for the inadequate reasons which I have found, determined the matter against the plaintiff. It cannot be said in those circumstances that there was a failure to respond to a clearly articulated case in the way discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088.

15. [42]

    The defendant submitted that, even if the Assessor did not satisfy his obligations in relation to the finding of causation, or did not provide an adequate path of reasoning to his conclusions, no order should be made quashing his certificate, on the basis that it would be futile to do so.

16. [43]

    In this regard, the defendant first submitted that there was no challenge by the plaintiff to the findings on clinical examination. It next drew attention to those parts of the findings on clinical examination that are italicised in the portions of the Assessor’s report set out at [13] above, and to the Diagnosis-Related Estimate (DRE) categories in relation to the spine contained in the Permanent Impairment Guidelines. The defendant submitted that the findings on clinical examination clearly place the plaintiff in DRE category I which provides nil percentage impairment. That is because the low back and neck pain was symmetrical, whereas the requirement to bring the plaintiff within DRE category II was that there either be guarding or non-verifiable radicular complaints or non-uniform range of motion, called dysmetria. The defendant submitted that these findings were quite unrelated to whatever view the Assessor took of the contemporaneous records. The findings would not have added any percentage of permanent impairment to what had otherwise been found by the Assessor. In that way, any errors in causation or the reasons had no bearing on the outcome of the clinical examination.

17. [44]

    The plaintiff submitted in response that ordinarily the futility argument would be directed towards a submission that nothing would change if a further assessment was carried out. The plaintiff submitted that an argument that, even though there was error in relation to causation findings and reasons, one could confidently say that the assessment would remain the same, was misplaced. The plaintiff submitted that, if the Assessor had not focused on significant injuries at the time of the accident, but on impairment which may have come about since the time of the accident, the final determination of permanent impairment might have been different. Reference was made in that regard to Nguyen v Nguyen [2011] NSWSC 351.

18. [45]

    The Motor Accidents Compensation Act 1999 (NSW) relevantly provides:

19. [46]

    In Nguyen, Hall J noted a submission by the insurer, Zurich, at [70] as follows:

20. [47]

    In dealing with that submission, his Honour said:

21. [48]

    If the Assessor had identified the injuries the plaintiff claimed to have suffered in the accident, and the symptoms which he experienced between the accident and, at least, the time when the contemporaneous records recorded a back complaint, rather than focusing on “significant injuries” suffered, and the absence in the medical records of neck and back complaints, it cannot be said with certainty that his assessment would have been the same. Additionally, the failure of the Assessor to account for the complaints of neck and back injury, notwithstanding any pre-accident or post-accident trauma or injury, strengthens that conclusion.

22. [49]

    In any event, the plaintiff is entitled to have his assessment carried out correctly where the Assessor gives proper consideration to matters of causation and adequately explains his path of reasoning to his conclusions. That is because the errors which I have identified mean that the Assessor has not carried out his statutory task. The Certificate is thereby void and of no effect.

23. [50]

    For those reasons, I would not as a matter of discretion, refuse to make an order setting aside the Assessor’s certificate.

24. [51]

    The parties agreed that the decision of the Proper Officer stands or falls on the outcome of the challenge to the Assessor’s certificate.

25. [52]

    In those circumstances, I make the following orders: