Kitching v AAI Ltd t/as GIO Insurance

1. [1]

   The plaintiff was involved in two motor vehicle accidents. The first occurred on 12 May 2015 and the second on 15 June 2016. In both accidents the plaintiff sustained injury, relevantly, to her lumbar spine. Both accidents involved the same insurer, being the first defendant (referred to herein as “the defendant”).

Assessment of the injuries

1. [2]

   It was the plaintiff’s case that she suffered some minor soft tissue injury of a transient nature in the first accident, and in the second accident she claimed to have suffered an aggravation, acceleration or exacerbation of a pre-existing condition in her lower back. This required her to undergo an operation on 6 June 2017 for an L5/S1 posterolateral fusion with segmental fixation.

2. [3]

   The plaintiff claimed that, if she did suffer such an aggravation, acceleration or exacerbation of a pre-existing condition which materially contributed or caused the 2017 operation, then applying whole person impairment guidelines she would have had a WPI exceeding 10%. She relied in that regard on a report from Dr Drew Dixon of 7 June 2018 who determined that the low back strain injury, caused in the second motor vehicle accident which gave rise to the operation, resulted in her having a 25% whole person impairment in respect of the lumbar spine.

3. [4]

   On 21 August 2018 the plaintiff lodged an application for assessment of a permanent impairment dispute by the Medical Assessment Service. She was assessed by the medical assessor, Dr Alan Home, on 20 December 2018. He issued a certificate on 4 January 2019. He found that her lumbar spine injuries beyond soft tissue injury were not caused by the second accident, with the result that he assessed her degree of permanent impairment at not greater than 10%.

4. [5]

   On 18 February, 2019 the plaintiff lodged an application for a review of the Medical Assessment Certificate. On 11 April 2019 the Proper Officer found that she was not satisfied that there was a reasonable cause to suspect that the medical assessment of Dr Home was incorrect in a material respect. She dismissed the plaintiff’s application.

The proceedings

1. [6]

   By a summons filed 9 July 2019 the plaintiff sought an order in the nature of certiorari setting aside the decision of the Proper Officer, and seeking an order that the State Insurance Regulatory Authority (the second defendant) refer the medical assessment certificate of Dr Home of 4 January 2019 to the Review Panel.

2. [7]

   By an amended summons filed 9 October 2019, the plaintiff sought an order in the nature of certiorari setting aside the certificate of Dr Home dated 4 January 2019 and/or the decision of the Proper Officer made on 11 April 2019 dismissing the plaintiff’s application for review of the medical assessment certificate. She also sought an order that the Authority arrange a medical assessment pursuant to s 61 of the Motor Accidents Compensation Act 1999 (NSW), for the purpose of assessing the plaintiff’s whole person impairment, or referring the medical assessment certificate of Dr Home of 4 January 2019 to the Review Panel.

3. [8]

   A further amended summons filed 30 June 2020 made only cosmetic changes, naming Dr Home and the Proper Officer, Tajan Baba, as the third and fourth defendants respectively.

4. [9]

   The relief sought in respect of Dr Home was not brought within the three month period specified in rule Part 59.10 of the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff sought an extension of time under subr 10(2). The extension was not opposed. Having considered the matters in subr (3), I consider that time should be extended to the date of filing the Amended Summons.

5. [10]

   The plaintiff’s summons contained 25 separate grounds said to justify judicial review, with the grounds alleging that both the third and the fourth defendants erred at law and/or committed jurisdictional error by doing a number or things or failing to do a number of things. There were 11 such grounds in respect of the third defendant, and 14 such grounds in respect of the fourth defendant.

6. [11]

   In relation to the Assessor, Dr Home, as the plaintiff’s written submissions made clear, the complaints can be distilled to three matters. The first was said to be an error of law on the face of the record in relation to a finding by the Assessor that no additional pathology was found on post-accident imaging of the lumbar spine. The error was said to be that the conclusion that no additional pathology was found was not supported by the reasoning process in the report. It was said further that there were no reasons to explain why the Assessor preferred Dr Cummine’s view to that of Dr Dixon. Dr Cummine, who was retained by the defendant, had found that the surgery the plaintiff underwent in 2017 was not causally related to either accident. He found only soft tissue injury from the second accident, and said he was not able to identify any permanent whole person impairment of her lumbar spine.

7. [12]

   Secondly, it was said that the Assessor did not engage with the plaintiff’s clearly articulated case, as identified in Dr Dixon’s report, that there was a progression in the pathology subsequent to the second accident which led to the spinal fusion surgery that the plaintiff underwent in 2017.

8. [13]

   Thirdly, it was said that the Assessor did not consider clauses 1.7 to 1.9 of the Permanent Impairment Guidelines, did not address their content, and did not deal with causation by the medical and non-medical determinations that the Guidelines required.

9. [14]

   Both sides accepted that the relief sought in relation to the fourth defendant would stand or fall on the outcome of the relief sought against the third defendant.

The radiology

1. [15]

   So that the competing arguments can be understood, it is necessary to set out some of the background radiology, accepting, of course, that the court’s task does not involve a merits review of the plaintiff’s complaints, and the acceptance or rejection of them. The plaintiff’s injuries involved her cervical spine as well as the lumbar spine, and some scans involved both those parts of her back. It should also be noted that the plaintiff had pre-existing lower back problems, as the radiology discloses. The following summary is taken from the report of the Assessor.

2. [16]

   CT scans of the lumbar spine dated 13 June 2012 relevantly noted,

3. [17]

   CT scans of the lumbar spine dated 9 January 2014 demonstrated,

4. [18]

   An MRI of the whole spine on 2 June 2014 disclosed, in relation to the lumbosacral spine:

5. [19]

   There was one MRI taken after the first accident, but before the second accident, on 26 May 2015. It showed this:

6. [20]

   After the second accident an x-ray was performed on 1 December 2016, which was followed by an MRI of the lumbar spine. The x-ray findings were these:

7. [21]

   The Assessor said of the MRI of the lumbar spine on 1 December 2016 that it,

Dr Dixon

1. [22]

   Dr Dixon was the plaintiff’s independent medico-legal assessor. His report of 7 June 2018 first listed the documents that he had received. These included the MRIs of 26 May 2015 and 1 December 2016. Dr Dixon noted the accident details that were provided by the plaintiff. He noted that she had transient low back pain from the first accident. In relation to the second accident he said:

2. [23]

   In the section of his report headed “General health, including subsequent or previous accidents”, nothing was said about any prior back problems.

3. [24]

   Dr Dixon summarised a large number of radiological investigations undergone by the plaintiff, including the MRIs of 26 May 2015 and 1 December 2016, and the x-ray of the lumbar spine on 1 December 2016. In relation to these he said,

4. [25]

   He also noted the following investigations:

5. [26]

   In the section of his report headed “Summary of injuries and diagnoses”, the following appears:

Dr Cummine

1. [27]

   Dr Cummine prepared two reports. The first was dated 30 May 2016 in respect of an examination on 26 May 2016. Its only present relevance is that Dr Cummine had available to him radiology which included scans of the lumbosacral spine on 9 January 2014, 2 June 2014 and 26 May 2015. In relation to the MRI of 26 May 2015 Dr Cummine noted the following:

2. [28]

   His second report, which post-dated the second accident, was dated 27 November 2018. In that report Dr Cummine referred to further imaging, being the CT of the lumbosacral spine on 17 November 2016 which he said showed no significant change from the earlier CT scan, and the plain x-ray of the lumbosacral spine performed on 1 December 2016. Dr Cummine said that that x-ray showed no significant change. Spondylolysis at L5/S1 is noted along with the pars defect at L5 bilaterally. Dr Cummine does not mention seeing the MRI carried out on 1 December 2016.

3. [29]

   In the section of his report headed “Summary”, Dr Cummine said this:

4. [30]

   In answer to a specific question asked of him, Dr Cummine said that he did not think the surgery at L5/S1 was causally related to either accident.

Assessor’s report

1. [31]

   The report from the Assessor and his Certificate is dated 4 January 2019 in respect of an assessment on 20 December 2019.

2. [32]

   The Assessor first detailed the plaintiff’s pre-accident medical history and relevant personal details. He next set out the history of each of the motor accidents.

3. [33]

   When dealing with the history of the plaintiff’s symptoms and treatment following the accidents, the Assessor said:

4. [34]

   Under the heading “Current symptoms”, the Assessor said:

5. [35]

   The Assessor then recorded his findings on clinical examination.

6. [36]

   In the section headed “Review of documentation” the Assessor summarised the various radiological reports commencing with the CT of the lumbar spine of 13 June 2012 and going through, relevantly, to the x-ray and MRI undertaken on 1 December 2016. In relation to the MRI performed on 26 May 2015, the Assessor relevantly said:

7. [37]

   In relation to the MRI performed on 1 December 2016, the Assessor said:

8. [38]

   The Assessor then surveyed the various medical reports in respect of the plaintiff dating back to 2010. The survey was detailed, and extended over more than six pages of his report. When dealing with Dr Dixon’s report, the Assessor said this:

9. [39]

   In relation to the reports of Dr Cummine, the Assessor noted that Dr Cummine’s first report preceded the second motor vehicle accident. The Assessor dealt mainly with what Dr Cummine said about the cervical and left shoulder area. As far as the lumbar spine was concerned, the Assessor noted that Dr Cummine made a diagnosis of minor soft tissue injury to “possibly the thoracic and/or lumbar spine.” He said that Dr Cummine found the nature of the history of a pre-existing condition in the lumbar region was not affected by the first accident.

10. [40]

    In relation to the second report of Dr Cummine, the Assessor said this:

11. [41]

    In his conclusions, the Assessor said that it was not apparent that there had been any material aggravation of a pre-existing, episodic lower back pain in the first motor vehicle accident. In relation to the second accident the Assessor said this:

Submissions

1. [42]

   Although the grounds of appeal concerned with the Assessor’s decision were widely expressed, as I have noted earlier senior counsel for the plaintiff put the basis for judicial review in three ways. First, the finding of the Assessor that “no additional pathology was found on post-accident imaging of the lumbar spine” was said to be an error. It was described by the plaintiff’s senior counsel as a reasons error because no reasons were given for that conclusion. The plaintiff submitted that there were no reasons why Dr Dixon’s opinion on the MRI imaging and the causal pathways consequent upon it was to be rejected. The error was said to have come about partly, at least, because the Assessor did not appreciate that Dr Cummine, with whom the Assessor agreed, did not view the MRI of 1 December 2016.

2. [43]

   Secondly, the plaintiff submitted that the Assessor did not engage with the plaintiff's clearly articulated case based on what was shown in the changes on the MRIs from May 2015 to December 2016. That clearly articulated case was said to be demonstrated in Dr Dixon’s report. The case was that the scans showed a material change in the plaintiff’s lumbar spine, which demonstrated that the surgery undergone by the plaintiff was causally related to the second accident.

3. [44]

   Thirdly, the plaintiff submitted that the Assessor did not apply the causation guidelines and he did not address their content. The plaintiff submitted that the Assessor did not deal with causation by the steps contained in those guidelines by making the medical and the non-medical determinations. The plaintiff submitted that the case had always been that there was a pre-existing condition which was aggravated, accelerated or exacerbated by the second motor vehicle accident. The plaintiff submitted that the Assessor did not address material contribution in a recognisable manner, and that the negative causation finding speaks to an incorrect – but not articulated – test having been applied.

4. [45]

   As far as the complaint against the Proper Officer is concerned, the plaintiff accepted that her success on that matter stood or fell with the outcome of her complaint against the Assessor.

5. [46]

   The defendant submitted that what a large number of the grounds of appeal invited was a merits review of complex imaging and of the Assessor’s opinion. The defendant submitted that authorities such Rodger v De Gelder [2015] NSWSC 1617 demonstrate that what must be shown is error within the statutory function and not just an allegedly erroneous conclusion.

6. [47]

   The defendant submitted that there was no obligation on the Assessor to examine the opinions of Dr Dixon to see whether those opinions were correct. The Assessor’s function was to form his own opinion on the medical question applying his own medical expertise. The defendant submitted that the Assessor carried out that exercise.

7. [48]

   The defendant submitted that there was no clearly articulated case which the Assessor failed to deal with. The defendant submitted that Dr Dixon did not articulate a case that demonstrated a change in the pathology. The defendant submitted that the premise of the argument was wrong because the radiological evidence demonstrated similar pathology prior to the first accident, as the Assessor had noted.

Determination

1. [49]

   In Layt v Allianz Australia Insurance Ltd [2016] NSWSC 1107 Garling J said:

2. [50]

   In Dunbar v Allianz Australia Insurance Limited [2015] NSWSC 119, Fullerton J said at [78]:

3. [51]

   In Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950, Adamson J said:

4. [52]

   In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, Basten JA (McColl and Macfarlan JJA agreeing) said, at [16], that how a consideration is to be taken into account and what weight is to be accorded to it in all the circumstances are matters within the authority of the decision-maker.

5. [53]

   The conclusions that the Assessor made and which are challenged by the plaintiff are:

6. [54]

   In reaching those conclusions the Assessor had regard to all of the prior doctors’ reports, all of the radiology, and his own assessment of the plaintiff. The Assessor explained how he reached his conclusion that it did not appear that the motor vehicle accident itself had caused an alteration in the trajectory of her pre-existing condition. The Assessor had noted that post-accident imaging demonstrated the same pathology as was evident prior to the first motor vehicle accident. He said that there was insufficient evidence to determine that the second motor vehicle accident had materially aggravated the underlying pathology or that it led to the requirement for subsequent fusion surgery. The Assessor particularly noted clinical and other medical notes in the period from the second accident up until the emergence of right-sided lower back and hip pain in November 2016.

7. [55]

   The plaintiff is critical of the Assessor because she said that the Assessor does not appear to take into account that Dr Cummine did not have regard to the MRI of 1 December 2016. The important matter is, however, that the Assessor did have regard to that MRI, and reached his own conclusion taking that MRI into account. It is also apparent from the Assessor’s remarks that he had reached his conclusion that the second motor vehicle accident was not causally related to the need for surgery before he expressed his agreement with the opinion of Dr Cummine. In that way, nothing flows from the fact that Dr Cummine did not have access to that MRI.

8. [56]

   The Assessor does not indicate that he is preferring the opinion of Dr Cummine to that of Dr Dixon. It is clear, however, that he took into account Dr Dixon’s views but those views did not accord with his own. The Assessor noted that Dr Dixon’s past history was incomplete and did not refer to the history of recurrent lower back with radiculopathy as was disclosed in the plaintiff’s medical file. He noted also that although Dr Dixon found clinical signs of a right L5 radiculopathy, the Assessor did not find those clinical signs reduced on his assessment. In that way, the Assessor explained why he reached the view that the second motor vehicle accident did not change the trajectory of the plaintiff’s pre-existing condition. Such an approach entirely satisfies what the authorities cited above require and, in relation to more than one conclusion being open, accords with what was said by the Court of Appeal in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121].

9. [57]

   The plaintiff’s argument was that the MRI taken on 1 December 2016 shows a change in the pathology of the lumbosacral spine. The plaintiff submitted that the Assessor erroneously said that that imaging did not show a change in her condition. In the first place, it needs to be observed that such an assertion is effectively seeking a merits review of the Assessor’s conclusions. I accept the defendant’s submission that for error to be shown, it is not sufficient to challenge a conclusion reached by the Assessor, but to show that there was some failure to comply with the Assessor’s statutory function or to show some error of process.

10. [58]

    The Assessor’s task was to

11. [59]

    The plaintiff fails to demonstrate that the Assessor erred in his conclusions, or that his reasons are inadequate by failing to outline the path that led him to his conclusions, or that there was any failure in the decision-making process.

12. [60]

    What was said in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, at [24], was:

13. [61]

    The plaintiff’s written submissions put the “clearly articulated case” widely. It was said that the second accident aggravated, accelerated or exacerbated the plaintiff’s pre-existing condition. In oral submissions, the argument was refined to say that the case as appeared in Dr Dixon’s report was a change in the pathology as shown in the 1 December 2016 MRI. The plaintiff submitted that the Assessor did not engage with that argument.

14. [62]

    It is certainly not apparent from Dr Dixon’s report that he was suggesting that there had been a change in pathology demonstrated by the MRI of 1 December 2016. His diagnosis for the second motor vehicle accident was relevantly said to be:

15. [63]

    However, even if it can be inferred that the plaintiff’s case was, by virtue of Dr Dixon’s report, that there had been a change in the pathology or, even absent a change in pathology, that there had been an aggravation, acceleration or exacerbation of the pre-existing condition, the Assessor directly engaged with that aspect of the matter. The Assessor set out a summary of all the radiology from 2012 through to 2017. In that regard, it may be observed that the MRI of 2 June 2014 is reported on in almost the same way as the MRI of 1 December 2016. The Assessor then engaged directly with the matter of any change of pathology when he said:

16. [64]

    On the wider issue of aggravation, acceleration or exacerbation, the Assessor said:

17. [65]

    While those two related conclusions differ from what the plaintiff asserts is the position, it is far from clear that the lack of any additional pathology on the imaging differs from what Dr Dixon records in his report. In any event, both conclusions were open to the Assessor, in terms of his function of forming and giving his own opinion on the medical question referred to: Wingfoot at [47].

18. [66]

    Significantly, the Assessor did not fail to engage with the issue. He simply came to a different conclusion from that which the plaintiff submitted was the case.

19. [67]

    Clauses 1.6 to 1.9 of the Permanent Impairment Guidelines relevantly provide:

20. [68]

    The plaintiff submitted that no particular attention was paid to the medical question and non-medical question when assessing causation.

21. [69]

    Whilst it is not necessary for the Assessor to make specific reference to the Guidelines, he went on to make express reference to clause 1.6 of the Guidelines when considering the first accident and the injuries the plaintiff sustained to her cervical spine. Further, in Section 7 of his report headed “Determinations”, he noted that the determination as to permanent impairment is made in accordance (inter alia) with “the Motor Accident permanent Impairment Guidelines 1 June 2018”. It was not incumbent on the Assessor to make repeated express reference to the Guidelines when considering each aspect of the plaintiff’s claims. It is sufficient if the Assessor’s analysis accords with what the Guidelines set out. In this case the issue is whether the second accident could have caused or contributed to the worsening of the impairment, and a determination of whether it did so.

22. [70]

    The Assessor’s report makes it clear that he understood that the issues were those set out in clause 1.6 of the Guidelines. The whole basis of the Assessor’s enquiry was to determine whether the second accident did cause or contribute to the worsening of the impairment. His frequent references, when reviewing the medical reports, to doctors finding that the second accident aggravated back symptoms, and to comparisons of the pre-accident and post-accident radiology, are a clear indication that the Assessor determined that the accident could have caused or contributed to the worsening of the back pathology.

23. [71]

    However, on the Assessor’s analysis of all of the material he had, and on his own clinical assessment, he determined that the accident did not cause or contribute to the worsening of the lumbar spine condition. That was the task the Guidelines dealt with.

24. [72]

    No error is shown on this basis.

Conclusion

1. [73]

   As the parties accepted, if error could not be identified in relation to the assessment by the third defendant, it followed that it cannot be shown in relation to the fourth defendant’s refusal to refer the medical assessment to a Review Panel.

2. [74]

   Accordingly, I make the following orders:

   1. (1)

      Extend time for the commencement of the proceedings to 30 June 2020.

   2. (2)

      Summons dismissed.

   3. (3)

      The plaintiff is to pay the first defendant’s costs.