Philip Joseph Hodges v Insurance Australia Limited t/as NRMA Insurance

HIS HONOUR: Part 3.4 of the Motor Accidents Compensation Act 1991 No 41 (NSW) (the Act) provides for medical assessments to be made in respect of motor accident injuries. It provides for the Motor Accidents Authority of NSW (the Authority) to appoint medical assessors to whom medical disputes are referred and who must give certificates as to the matters referred to them for assessment.

Under s 58(1) of the Act, a medical assessment matter includes a disagreement between a claimant and an insurer about whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances.

Section 63(1) of the Act provides:

Section 63(3) of the Act provides:

Section 63(4) of the Act provides:

The plaintiff suffered injuries to his neck in a motor vehicle accident which occurred on 10 August 2010.

The starting point for this dispute was disagreement (a medical dispute) between him and the first defendant insurer about whether treatment in the form of provision of attendant care services was reasonable and necessary in the circumstances.

By an Application for Assessment of a Treatment Dispute by the Medical Assessment Service (often referred to as MAS) apparently dated 19 June 2013, the plaintiff sought medical assessment. The application was in the cascading form criticised by Adams J in Allianz Australia Insurance Limited v Serria Gergis & Others [2011] NSWSC 1424 at [26], but nothing turns on this.

The plaintiff claimed both past care and future care expenses based on 40 hours per week for a two week period after the accident, seven hours a week until 1 March 2013, and seven hours a week for future care expenses for the rest of his life expectancy.

The application resulted in a medical assessment and certificate by a single medical assessor, Dr David McGrath, on 9 December 2013. The assessor determined that "A DRE category 1 neck impairment (0% impairment) is insufficient justification for paid domestic assistance." He determined that a large per cent of the population fall under this category and that, rather than seeking domestic assistance, he was in agreement with an earlier report of a Dr Huntsdale that a change in therapeutic approach was advisable. He recorded that the plaintiff “had no knowledge of simple painless movement routines for the neck or spine” and he “relied on passive interventions which had been ineffective and possibly aggravating” and that “With better physical care his residual symptoms were likely to resolve."

This assessment in effect found that the treatment provided or to be provided was not reasonable and necessary in the circumstances because the injury did not result from the accident.

On 9 January 2014, the plaintiff, being a party to medical dispute, applied under s 63(1) of the Act to the proper officer of the Authority (the proper officer) to refer the medical assessment to a review panel of medical assessors for review.

The proper officer was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect being that assessor McGrath did not address causation of the plaintiff’s need for past care. In her Reasons for Decision dated 12 February 2014 she concluded “This review application is accepted and will be referred to a medical review panel.”

However, she thereafter went on to state:

On 7 April 2014, the panel of three medical assessors to whom the proper officer had referred the clarified dispute revoked the certificate dated 9 December 2013 and issued a new certificate to the effect that treatments from 10 August 2010 to 23 August 2010 and from 24 August 2010 to 1 March 2013 related to the injuries caused by the accident but that injuries continuing for the balance of the plaintiff’s life expectancy did not.

The plaintiff moves, amongst others, for an order having the effect of quashing the proper officer’s decision as being beyond power.

For the following reasons the plaintiff’s complaint is well founded.

The statutory power conferred on the proper officer under s 63(3) of the Act is singular and circumscribed. It is, and is only, to arrange for the application made under s 63(1) to be referred to a panel of at least three medical assessors. Its exercise is conditional upon the proper officer being satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application (being the application described in s 63(1)).

Once this threshold is reached, the proper officer has statutory authority to do no more than arrange for the very application to be referred to a panel of at least three medical assessors.

Here, having become satisfied as required by s 63(3), the proper officer went beyond what s 63(3) empowered her to do. She arranged to send to the review panel what she described as a clarified dispute. She had no power to clarify any dispute. Her only power was to arrange for the application to be referred to the panel.

The infection was transmitted to the panel of three who went on to consider the clarified dispute, including subparagraphs 4, 5 and 6 of paragraph 16 of the proper officer’s reasons. The panel then embarked on an exercise in respect of which they had no jurisdiction, that is, consideration of a clarified dispute rather than the application which had been made to the proper officer.

In my opinion, there is no reason why, in the light of this error, the decision of the proper officer should not be quashed. I order that it be quashed.

The parties agreed that if it is appropriate to quash the proper officer’s decision, it must follow that the review panel’s revocation of the certificate and issue of a new one must also be quashed.

I observe that because the questions articulated in subparagraphs 4, 5 and 6 of paragraph 16 of the proper officer’s reasons are directed to whether a range of hours per week of domestic assistance is reasonable and necessary in relation to the injuries sustained in the subject accident, an answer would not yield an actual determination cognisable under the Act as to whether particular treatment to be provided to the injured person was or is reasonable in the circumstances.

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

The exhibits are to be returned.