Wellman v CIC Allianz Australia Insurance Limited

1. [1]

   HER HONOUR: This is a judicial review of the decisions of a medical review panel of the State Insurance Regulatory Authority.

2. [2]

   By further amended summons filed 30 August 2019, the plaintiff seeks firstly, an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the assessments and the certificates of the third defendant dated 22 October 2018 purportedly issued pursuant to s 63 of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”); and secondly, an order in the nature of mandamus remitting the medical assessment in MAS Matter Number 2017/02/1557 to the second defendant for allocation to a differently constituted review panel for determination according to law.

3. [3]

   The plaintiff is Robert Wellman. The first defendant is CIC Allianz Australia Insurance Limited (“the insurer”). The second defendant is the State Insurance Regulatory Authority (“SIRA”). The third defendant is the Medical Review Panel, comprising of Christopher Oates, Clive Kenna and Thomas Rosenthal acting in their capacity as medical assessors appointed by SIRA (“the Review Panel”). The second and third defendants have filed submitting appearances. For convenience, I will refer to the first defendant as the defendant throughout this judgment.

4. [4]

   The plaintiff relied upon the affidavit of his solicitor, Gregory Masselos, dated 31 July 2019. The parties relied on a joint court book.

5. [5]

   On 26 April 2012, the plaintiff initiated a claim for damages against the insurer for personal injury arising out of a motor accident that occurred on 14 November 2011. The claim was subject to the MAC Act. In the course of that claim, a dispute arose between the parties as to the plaintiff’s degree of permanent impairment, which is determinative of the plaintiff’s entitlement to non-economic loss damages under s 131 of the MAC Act. Under Part 3.4, s 132 of the MAC Act, the dispute over the plaintiff’s permanent impairment was referred for determination by the insurer’s medical assessment service (“MAS”).

6. [6]

   On 1 September 2017, the MAS issued the certificate of medical assessor Dr Paul Myers, general surgeon. Assessor Myers was appointed to assess the plaintiff’s whole person impairment (“WPI”) arising from injuries to his cervical spine, right shoulder, right hip, right leg and knee, left middle finger and scarring as a result of the accident. The certificate assessed the plaintiff with 0% WPI in respect of those alleged injuries.

7. [7]

   On 4 September 2017, the MAS also issued the certificate of medical assessor Dr Sylvester Fernandes, ENT physician. Assessor Fernandes’ certificate assessed the plaintiff with WPI of 5% in respect of hearing loss, tinnitus and vestibular dysequilibrium suffered as a result of the accident. Neither party lodged an application for review of Assessor Fernandes’ certificate in accordance with s 63 of the MAC Act.

8. [8]

   That same day, on 4 September 2017, the MAS issued a combined certificate certifying the plaintiff’s total WPI arising from the accident at 5%.

9. [9]

   On 23 October 2017, the plaintiff lodged an application for review of the medical assessment of Assessor Myers, pursuant to s 63 of the MAC Act.

10. [10]

    On 22 October 2018, in response to that application, the MAS issued the two decisions which are the subject of this judicial review.

11. [11]

    The first decision under review is the Review Panel’s certificate and reasons issued purportedly pursuant to s 63 of the MAC Act. This certificate certified the plaintiff with a WPI arising from the accident of 5% in respect of injuries to the cervical spine with referred symptoms to the right shoulder, as well as injuries to the right middle finger.

12. [12]

    The second decision under review is the MAS’ review combined certificate combining the accepted assessment of Assessor Fernandes (5% WPI) with that of the Review Panel (5% WPI). This combined certificate assessed the plaintiff’s total WPI as a result of the accident at 10%.

The statutory framework

1. [13]

   The plaintiff’s claim for damages is governed by the MAC Act. The operation of Part 3.4 of the MAC Act underpins this proceeding. Relevantly, ss 44, 58, 59, 61, 63, and 65 relevantly provide:

2. [14]

   Sections 131 and 132 of the MAC Act concern awards for non-economic loss in respect of injuries caused by motor accidents under the Act. They read:

3. [15]

   Finally, s 133 relevantly states:

4. [16]

   Section 133 of the MAC Act provides that the assessment of permanent impairment is to be made in accordance with the Motor Accident Permanent Impairment Guidelines (“the PI Guidelines”). The PI Guidelines, effective from 1 June 2018, are issued pursuant to s 44(1)(c) of the MAC Act and apply to assessments conducted by medical assessors.

5. [17]

   The PI Guidelines relevantly provide:

6. [18]

   Section 133 of the MAC Act also states that the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition (“the AMA Guides”) are to be applied in the alternative to a motor accident medical guideline issued under the MAC Act.

7. [19]

   Finally, the Medical Assessment Guidelines (“the MA Guidelines”) are delegated legislation issued pursuant to s 44(1)(c) of the MAC Act. The MA Guidelines set out the procedure for review of assessments under Part 3.4 of the MAC Act.

The decision of the medical assessor

1. [20]

   On 1 September 2017, the MAS issued the certificate of Assessor Myers (“the assessor”), general surgeon, who was appointed to assess the plaintiff’s WPI arising from the injuries allegedly suffered to his cervical spine, right shoulder, right hip, right leg and knee, scarring, and left middle finger as a result of the accident. The assessor assessed the plaintiff with 0% WPI in respect of these alleged injuries.

2. [21]

   On 4 September 2017, the MAS issued a combined certificate certifying the plaintiff’s total WPI arising from the accident at 5%.

3. [22]

   On 23 October 2017, the plaintiff lodged with the MAS an application for review of the assessor’s assessment pursuant to s 63 of the Act.

4. [23]

   The MAS issued the subject decisions on 22 October 2018 in response to that application. By those decisions, the third defendant certified the plaintiff with a WPI arising from the accident of 5% in respect of injuries to the cervical spine with referred symptoms to the right shoulder, and to the right middle finger.

5. [24]

   On 22 October 2018, a certificate and reasons was issued by the Review Panel purportedly pursuant to s 63 of the MAC Act.

6. [25]

   On 22 October 2018, the MAS issued a review combined certificate combining the assessment of Assessor Fernandes with that of the Review Panel, thereby certifying the plaintiff’s total degree of permanent impairment from the accident at 10%.

The decisions of the Review Panel dated 22 October 2018

1. [26]

   The Review Panel comprised of Drs Christopher Oates and Thomas Rosenthal, occupational medicine, and Clive Kenna, musculoskeletal medicine.

2. [27]

   On 22 October 2018, the Review Panel revoked the certificate of the MAS dated 1 September 2017 and issued a new certificate in respect of the subject accident, which considered that the plaintiff’s injuries to his cervical spine gave rise to a WPI of 0% and that the injuries to his right shoulder gave rise to a WPI of 3%. The Review Panel also assessed the plaintiff’s injuries to his right middle finger at 2% WPI, although that assessment is not the subject of this judicial review.

3. [28]

   In its reasons for decision, the Review Panel stated:

4. [29]

   Under the heading “3. Matters Considered and Decided by the Panel”, the Review Panel stated:

5. [30]

   Under the heading “History”, the Review Panel stated:

6. [31]

   Under the heading “Current Symptoms”, the Review Panel stated:

7. [32]

   Under the heading “Examination”, the Review Panel stated:

8. [33]

   On examination, the plaintiff’s right shoulder external rotation active range of movement measured “50º, 70º - best 70º”. His left shoulder external active range of movement measured “80º, 70º - best effort 80º”.

9. [34]

   Under the heading “C. Panel Deliberations”, the Review Panel stated:

10. [35]

    Finally, the Review Panel assessed the plaintiff’s WPI as follows:

11. [36]

    The Review Panel’s certificate certified the plaintiff with a WPI arising from the accident of 5% in respect of the combined injuries to the cervical spine with referred symptoms to the right shoulder, and the right middle finger (the first decision under review). As outlined earlier in this judgment, the MAS also issued a review combined certificate combining the assessment of Assessor Fernandes with that of the Review Panel, certifying the plaintiff’s total degree of permanent impairment as a result of the accident at 10% (the second decision under review).

Judicial review generally

1. [37]

   This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including both a medical assessor and proper officer, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).

2. [38]

   In these proceedings, the plaintiff argues that each of the errors identified in order (1) of the further amended summons are:

3. [39]

   All that is required for the plaintiff to establish his case and enliven the Court’s power to issue remedies is for the Court to find an error of law on the face of the record. Errors of law on the face of the record need not be errors going to jurisdiction.

4. [40]

   A medical assessor’s and Review Panel’s reasons form part of the record, because s 61(9) of the MAC Act requires it to give reasons.

5. [41]

   As to the issue of jurisdictional error, the plaintiff pleaded that the errors include a constructive failure to exercise jurisdiction.

6. [42]

   In Rodger v De Gelder (2015) 71 MVR 514 (“De Gelder”), the Court of Appeal stated at [95] per Gleeson JA (MacFarlan and Leeming JJA agreeing):

7. [43]

   The question for this Court is whether the plaintiff has established relevant error(s) of law on the face of the record or jurisdictional error(s) that warrant the Court to exercise its discretion to quash the decision. That is the nature of judicial review proceedings, as distinct from an appeal or review on questions of law, fact or discretion.

Grounds of judicial review

1. [44]

   The plaintiff submitted that there are a number of jurisdictional errors and/or errors of law on the face of the record of the Review Panel’s decision. Alternatively, the plaintiff submitted that the Review Panel constructively failed to exercise its statutory power in reaching its decision.

2. [45]

   Specifically, the plaintiff submitted that the Review Panel erred in the following respects:

   1. (1)

      by purporting to assess impairment of the right upper extremity using the 70° measurement for external rotation, in non-compliance with cl 1.50.3 of the PI Guidelines; and

   2. (2)

      by assessing the plaintiff as having a 5% WPI in respect of his injuries to the cervical spine, but then deducting 5% WPI for pre-existing injury on the basis of a medical assessment in 2005, in non-compliance with cl 1.31 of the PI Guidelines.

3. [46]

   I will consider these two grounds in turn.

4. [47]

   When assessing impairment of the right upper extremity, the Review Panel recorded two measurements for external rotation: 50° and 70°. It then used the 70° measurement to calculate the plaintiff’s impairment on the basis that it represented his “best effort”. The Review Panel’s decision to use the 70° measurement resulted in a WPI of 3% in respect of the right upper extremity, whereas the 50° measurement would have resulted in a WPI of 4%.

5. [48]

   The plaintiff submitted that the Review Panel’s approach to calculating WPI in relation to the right upper extremity was impermissible for two reasons. The first is that if the Review Panel considered the 50° measurement unreliable, pursuant to cl 1.50.3 of the PI Guidelines, it was required to measure the active range of movement at least two more times.

6. [49]

   Clause 1.50.3 provides:

7. [50]

   The plaintiff argued that in circumstances where two measurements were inconsistent, the PI Guidelines did not permit the Review Panel to measure the active range of movement only twice and to then select the measurement that produced the lower WPI score. The plaintiff submitted that the Review Panel’s actions were wrong in law and unfairly prejudicial.

8. [51]

   The second reason the plaintiff argued that the Review Panel’s approach was erroneous was because it was based upon an unfounded assumption that the higher measurement was a truer representation of the plaintiff’s restriction of movement. The plaintiff submitted that it is equally likely that the measurement of greater range of movement was an outlier that could not be reproduced.

9. [52]

   In Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 (“Hossain”), the High Court stated at [23]:

10. [53]

    In Hossain, the High Court further stated at [27]:

11. [54]

    The errors which the plaintiff alleges under this ground of judicial review go to the exercise of power by the Review Panel, and in particular, to breach of conditions which the statute expressly or impliedly requires to be observed.

12. [55]

    The plaintiff noted that the Court of Appeal has found that the PI Guidelines have statutory force, and that a failure to comply with SIRA guidelines can constitute a constructive failure to exercise jurisdiction. The plaintiff noted that the Review Panel’s alleged non-compliance with the PI Guidelines in this respect had a significant material effect to the outcome, because if the lower measurement of 50° had been used, the difference in whole person impairment would have changed the overall combined WPI from 10% to 11%, thereby entitling the plaintiff to damages for non-economic loss.

13. [56]

    The plaintiff submitted that as a result of this error, the decision is void and should be set aside.

14. [57]

    The insurer submitted that the Review Panel did not err in calculating the plaintiff’s impairment from the 70° measurement for external rotation. The Review Panel was aware of the importance of measuring the range of movement of the plaintiff’s right shoulder. It noted the plaintiff’s complaint that the assessor had failed to consider whether the plaintiff suffered from referred symptoms in the right shoulder as a result of his neck injury. In its reasons which addressed the issue of the injury at p 4, the Review Panel referred to the decision of this Court in Nguyen v Motor Accidents Authority [2011] NSWSC 351.

15. [58]

    Like the medical assessor, the Review Panel found that that the plaintiff did not suffer a direct injury to his right shoulder. However, the Review Panel was satisfied that the plaintiff had referred symptoms in his right shoulder caused by the injury to his neck.

16. [59]

    As is required under both the PI Guidelines and the AMA4 Guides, the Review Panel then assessed permanent impairment of the right shoulder using the “range of motion” method. This method required the Review Panel to measure the active range of motion of both of the plaintiff’s shoulders. The Review Panel then took the range of motion of the left shoulder, which was not the site of any alleged injury or impairment, as indicating the plaintiff’s “normal” range of shoulder movement. That measurement served as the baseline for assessing any reduction in right shoulder movement caused by pain or impingement. The Review Panel then measured the active range of movement of each shoulder, and tabulated the results on p 7 of its certificate.

17. [60]

    As outlined in the plaintiff’s submissions, the Review Panel measured external rotation of the right shoulder as “50°, 70° - best effort 70°”, and adopted 70° for the purpose of measuring impairment. The plaintiff has submitted that the Review Panel’s decision to use the 70° measurement as representative of the plaintiff’s capable range of motion was “impermissible”, and breached cl 1.50.3 of the PI Guidelines.

18. [61]

    The insurer submitted that contrary to the plaintiff’s submissions, the Review Panel did not determine that the active range of motion of 50° was not reliable. It determined only that the plaintiff was capable of an active range of motion of 70°. The insurer submitted that that determination was different, and involved the exercise of the Review Panel’s clinical judgment. In choosing 70°, the Review Panel did not err or fail to comply with the PI Guidelines.

19. [62]

    In fact, the insurer submitted that the Review Panel used the same approach when measuring the active range of motion of the plaintiff's left shoulder, which was recorded as “80°, 70° - best effort 80°”. In this way, the Review Panel consistently accepted the higher range of movement of each shoulder as the range that was relevant for measuring impairment. The insurer argued that the Review Panel’s approach was logical, given that its task was to establish the range of motion of which the shoulders were actually capable. In any event, it was the approach adopted by the Review Panel in the exercise of its clinical judgment. There was no error.

20. [63]

    At the hearing of these proceedings, counsel for the defendant agreed that the Review Panel’s assessment was governed by cl 1.50.3 of the PI Guidelines (T 29.45). The question for this Court to consider is on what terms.

21. [64]

    Clause 1.50.3 states that in situations where a medical assessor is not satisfied that the results of a measurement are reliable, he or she should measure active range of motion with at least three consistent repetitions. In interpreting cl 1.50.3, counsel for the plaintiff argued that the word “should”, as opposed to “may” or “might”, provides a clear directive (T 10.6-7). Counsel for the defendant disagreed, noting that the decision of the draftsperson not to use the word “must” suggests that the clause is advisory and not determinative (T 30.14-15).

22. [65]

    Counsel for the defendant also submitted that the context in which cl 1.50.3 appears in the relevant guidelines is important. Guide 3.1a of the AMA4 Guides also refers to evaluation of the hand and upper extremity, and relevantly states:

23. [66]

    The defendant submitted that in the context of this similar provision in the AMA4 Guides, cl 1.50.3 of the PI Guidelines merely provides for an examiner to repeat a measurement for active range of motion to obtain a result which is reliable.

24. [67]

    I do not agree that the use of the word “should” gives rise to the same imperative as “must”, which is used elsewhere in the PI Guidelines. However, even if I were to grant that cl 1.50.3 provides a “clear directive” as the plaintiff submits, it is not clear that the Review Panel has failed to comply with the clause on its terms.

25. [68]

    Clause 1.50.3 states that a medical assessor should elicit three consistent repetitions from the plaintiff in situations where he or she is not satisfied that the results of a measurement are reliable. The plaintiff submitted that by necessity, because the Review Panel chose to base its WPI score off of the 70° measurement, it must have considered that measurement to be reliable and the 50° measurement to be unreliable. I do not agree. The Review Panel took two measurements of the plaintiff’s range of movement in respect of both of his shoulders. The active range of motion of his left shoulder was recorded as “80°, 70° - best effort 80°”. His right shoulder was recorded as “50°, 70° - best effort 70°”. From both sets of measurements, the Review Panel chose the greater range as representing the plaintiff’s best effort. It does not follow by necessary implication that the other, lower measurement was unreliable. Rather, the Review Panel determined in the exercise of its clinical expertise that the lower measurements were not representative of the plaintiff’s full capabilities.

26. [69]

    In Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284, Basten JA (with McColl JA agreeing) set out the proper standard to which a Medical Appeal Panel’s reasons will be held at [121]-[122]:

27. [70]

    Although Vegan concerned statutory medical assessments made under the NSW workers compensation legislation, the same standard of reasons applies to the Review Panel in this case.

28. [71]

    Basten JA in Vegan continued at [128]:

29. [72]

    I bear this standard in mind when I assess the Review Panel’s approach in this case.

30. [73]

    I also bear in mind that cl 1.40 of the PI Guidelines directs medical assessors to use the entire range of their clinical expertise when assessing the accuracy and plausibility of measurements for range of motion. Clause 1.40 states:

31. [74]

    In light of this clause, as well as the language of cl 1.50.3 which is phrased in terms of the satisfaction of the assessor, is my view that the Review Panel’s approach to assessing the plaintiff’s active range of motion in relation to the right arm was not in error. Rather, its decision to use the 70° measurement as representative of the plaintiff’s capability was an exercise of its clinical judgment. As such, it is my view that it was not in breach of the statutory conditions, and that the Review Panel’s reasons reveal no error of law. This ground of review fails.

32. [75]

    The plaintiff submitted that cl 1.31 of the PI Guidelines may be summarised in the following way:

33. [76]

    As such, the plaintiff argued that the clause consists of an introduction (limb 1), an imperative (limb 2) and a prohibition (limb 3).

34. [77]

    The plaintiff submitted that the clause cannot be construed in a way that means that the evidence itself must be dated “at the time of the accident”. It is impossible, or at least very unusual, that there could exist an objective assessment of the plaintiff’s pre-existing impairment at the exact time of the accident.

35. [78]

    In IAG Limited t/as NRMA Insurance v Chahoud [2019] NSWSC 767 (“Chahoud”), Bell P stated at [70]:

36. [79]

    In Chahoud, his Honour found at [73]:

37. [80]

    In these proceedings, the Review Panel referred to the previous certificate of Assessor Mackie issued on 28 September 2004 (“the 2004 assessment”), which assessed the plaintiff’s injuries from a motor vehicle accident in 2000. The Review Panel noted that the 2004 assessment had certified the plaintiff as having a WPI of 5% in respect of the cervical spine, but that the plaintiff told the Review Panel that the previous impairment should be ignored, as it was not symptomatic at the time of the subject accident.

38. [81]

    The Review Panel then noted the assessment of Assessor Wong issued on 16 December 2005 (“the 2005 assessment”) in respect of the same 2000 accident. The 2005 assessment had also certified the plaintiff as having a WPI of 5% in respect of the previous impairment of the cervical spine.

39. [82]

    The plaintiff noted that in making its assessment of WPI in respect of the cervical spine, the Review Panel made a deduction for pre-existing impairment. However, it did so without reference to, or application of, cl 1.31, instead jumping straight to cl 1.32, which deals with methodology for assessing pre-existing impairment.

40. [83]

    The Review Panel stated:

41. [84]

    The plaintiff submitted that the Review Panel’s approach was erroneous because before it went on to apply the assessment methodology, it failed to address the threshold issue of whether a deduction for pre-existing impairment was authorised, required and/or prohibited under cl 1.31.

42. [85]

    Clause 1.31 only required that a deduction be made for pre-existing impairment if there was “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”. The plaintiff submitted that there was no evidence that the impairment that was assessed by the previous MAS assessment nearly six years prior to the subject accident was still in existence at the time of the accident. The fact that the impairment had, at that time, been assessed as “permanent” is not evidence that it was still in existence, or symptomatic, six years after the assessment.

43. [86]

    Clause 1.19 of the PI Guidelines provides that “A permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% whole person impairment (WPI)) in the next year with or without medical treatment.” The plaintiff argued that pursuant to cl 1.19 of the PI Guidelines, the medical assessor’s assessment of 5% for soft tissue injuries in 2005 was made on the basis that the assessment was unlikely to change by more than 3% within the next year. It was not evidence of permanent impairment at the time of the subject motor accident. As such, the plaintiff argued that the mandatory requirement in cl 1.31 was not engaged.

44. [87]

    The plaintiff submitted that the Review Panel erred in failing to inquire into the plaintiff’s level of symptomatic impairment at the time of the accident, instead relying upon outdated evidence, and accordingly made a deduction for pre-existing impairment that was not permitted by the PI Guidelines.

45. [88]

    The plaintiff referred to IAG Limited trading as NRMA Insurance v Tran (2015) 70 MVR 105, in which Hall J stated that a “no evidence” ground of review had been considered by the Court of Appeal in Origin Energy LPG Ltd v BestCare Foods Ltd [2013] NSWCA 90 (“BestCare”). In BestCare, Ward JA (with Macfarlan and Hoeben JJA agreeing) stated at [89] that the question is “not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.”

46. [89]

    In these proceedings, the plaintiff submitted that the finding of fact made by the Review Panel that there was evidence of pre-existing “permanent impairment” of the neck injury “as defined by SIRA” was not supported by logically probative evidence, because there was no evidence of symptomatic impairment at the time of the accident.

47. [90]

    The plaintiff further submitted that the Review Panel denied the plaintiff procedural fairness by failing to put to him the proposition that he was in fact suffering from symptomatic impairment at the time of the accident.

48. [91]

    The plaintiff noted that the obligation to afford procedural fairness exists at general law. In Frost v Kourouche (2014) 86 NSWLR 214, the Court of Appeal (per Leeming JA with Beazley P and Basten JA agreeing) stated at [31]:

49. [92]

    The Court of Appeal further stated at [41]:

50. [93]

    The plaintiff submitted that in the alternative, the Review Panel denied him procedural fairness by failing to respond to his substantial and clearly articulated argument in his submissions. According to the plaintiff, the Review Panel noted the submissions, but did not respond to them in its determination of the issue.

51. [94]

    In Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443 at [19]-[20], Basten JA addressed the legal obligation of administrative decision-makers to take particular evidence into account, stating:

52. [95]

    In De Gelder, Gleeson JA (with MacFarlan and Leeming JJA agreeing) held that the review panel in that case had failed to respond to a substantial argument raised by the claimant, stating at [109]:

53. [96]

    The plaintiff submitted that by failing to respond to his substantial and clearly articulated arguments, the Review Panel failed to afford him procedural fairness and constructively failed to exercise its jurisdiction.

54. [97]

    In relation to this alleged error, the insurer noted that the Review Panel referred to two previous medical assessments of permanent impairment of the neck arising from the accident on 30 August 2000. The first was the 2004 assessment, which assessed permanent impairment of the neck at 5% by reason of dysmetria, which is an asymmetrical range of neck movements, and guarding. The second was the 2005 assessment, which assessed the same degree of impairment of the neck for the same reasons.

55. [98]

    On its own clinical examination of the plaintiff’s neck, the Review Panel found asymmetrical ranges of motion of lateral flexion to the right and to the left, and some intermittent guarding. Those were the same clinical findings reached by 2004 and 2005 assessments. The insurer submitted that it was this evidence which led the Review Panel to the same assessment of permanent impairment of 5%.

56. [99]

    The insurer further argued that the prior assessment of the neck in 2005 was of “permanent” impairment. As such, the Review Panel was correct to find that the 2005 assessment represented “objective evidence of a pre-existing impairment” of the cervical spine for the purposes of cl 1.31 of the PI Guidelines. The insurer submitted that there was no error in the Review Panel’s approach. It was not required to “put to” the plaintiff that he had a previous assessment of permanent impairment of the neck, of which the plaintiff was obviously already aware.

57. [100]

    In any event, the Review Panel recorded the plaintiff’s stated history that “He had had a previous motor vehicle accident in 2000 with an injury to the cervical spine and a right hip tear, but these injuries had resolved prior to the subject accident” on 14 November 2011. The plaintiff informed the Review Panel that his prior neck injury had resolved before the accident in 2011. The Review Panel took that history into account, but in the exercise of its discretion preferred the 2004 and 2005 assessments of permanent impairment, as it was entitled to do.

58. [101]

    Clause 1.31 of the PI Guidelines states that if there is “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”, the medical assessor must calculate the pre-existing WPI value and subtract it from the current WPI value. As the recent case of Chahoud makes clear, cl 1.31 does not require the evidence of injury to be dated at the time of the accident. Instead, the clause requires that there be evidence that the injury existed at the time of the accident ([70]-[74]). In Chahoud, the proper officer was found to have erred by incorrectly focusing on the timing of the medical record, as distinct from the injury.

59. [102]

    The Review Panel’s reasons for making a deduction in respect of the plaintiff’s previous injury to the cervical spine are extracted earlier in this judgment. The reasons state, “[T]he Panel found cervicothoracic DRE category 11 or 5% WPI, based on its examination findings of dysmetria. The Panel notes a previous permanent impairment determined by SIRA of 5% WPI from a previous accident, and subtracted this amount from the current WPI, 5% - 5% = 0% WPI.” Shortly thereafter, the Review Panel concluded, “The Panel considered a prior unchallenged WPI assessment by a SIRA Assessor is accurate information on a prior permanent impairment in the same body region.” The plaintiff submitted that in these reasons, the Review Panel erroneously considered medical assessments from 2004 and 2005 to be evidence of pre-existing, symptomatic permanent impairment at the time of the subject accident in 2011.

60. [103]

    Much was made, both in written and oral submissions, of the meaning of the word “permanent” in the context of the plaintiff’s impairment.

61. [104]

    Clause 1.19 of the PI Guidelines, reproduced at [17] of this judgment, outlines permanent impairments in the context of the guidelines. Counsel for the plaintiff emphasised that pursuant to cl 1.19, a “permanent” impairment is merely one which is considered to be unlikely to change by more than 3% WPI in the next year with or without medical treatment. As such, assessments of permanent injury in 2004 and 2005 are not to be considered as evidence that the injury persisted in 2011. At the hearing of these proceedings, counsel for the insurer emphasised the fuller wording of cl 1.19, which states that a permanent impairment is one which “is static, well stabilised and unlikely to change substantially regardless of treatment”. Counsel for the insurer noted that often, damages are assessed more than a year after the issue of a medical certificate. No one would argue that in that time, the assessment has expired (T 32.17).

62. [105]

    I agree that the Review Panel’s statement, “The Panel considered a prior unchallenged WPI assessment by a SIRA Assessor is accurate information on a prior permanent impairment in the same body region”, when read alone, seems to suggest that the Review Panel simply deducted the WPI value from the 2004 and 2005 assessments from its own calculation of impairment in 2018. If that were the case, the Review Panel may have fallen into the erroneous reasoning described in Chahoud. However, the insurer submitted that, when read as a whole and fairly, the 2004 and 2005 assessments were not the sole basis on which the Review Panel deducted 5% for pre-existing impairment.

63. [106]

    Under “History”, the Review Panel stated:

64. [107]

    Under “Panel Deliberations”, the Review Panel stated:

65. [108]

    I note that the reference to cls 1.33-1.35 of the PI Guidelines appears to be a typographical error. The intended reference is to cls 1.31-1.32.

66. [109]

    Under the heading “Examination”, the Review Panel stated, “Flexion was three-quarters of normal; extension was limited to one-third normal with complaint of right arm pain; lateral flexion was one-third to the right causing pain in the right shoulder and two-thirds to and rotation was two-thirds bilaterally.” This, counsel for the insurer noted, is a finding of dysmetria. Counsel for the insurer submitted that as such, the Review Panel’s grounds for assessing the plaintiff as having 5% WPI was the same as the earlier assessors’ grounds for doing so in 2004 and 2005. The Review Panel did not merely take the earlier assessments at face value as evidence of “permanent” impairment, but made a determination from its own examinations, in the exercise of its clinical discretion, that the evidence of the described injury persisted in 2018.

67. [110]

    The Review Panel was obliged to provide reasons for its findings pursuant to s 61(9) of the MAC Act. The standard by which those reasons are considered to have discharged its obligation is set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64 (“Wingfoot”). In Wingfoot, the High Court considered a similar statutory regime which provided for medical panels to assess Victorian workers compensation claims. In relation to the duty of a medical panel to give reasons for its decision, the Court stated at [55]:

68. [111]

    Wingfoot has been applied in New South Wales in relation to both medical assessors and claims assessors under the New South Wales scheme in the MAC Act: see Frost v Kourouche (2014) 86 NSWLR 214 at [2], [40]; Zahed v JAG Limited t/as NRMA Insurance (2016) 75 MVR 1 at [34].

69. [112]

    In considering the adequacy of the Review Panel’s reasons, I accept that they are not to be “minutely and finely construed with an eye keenly attuned to the perception of error”, but rather read fairly and as a whole: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Martin v Kelly [2008] NSWSC 577 (“Martin”) at [16]. In reading the Review Panel’s reasons generally, I bear in mind that they are written to inform, and “not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.

70. [113]

    The Review Panel was required under cl 1.31 of the PI Guidelines to make a deduction for pre-existing impairment if there was “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident.” The plaintiff submitted that there was no evidence that the previously-assessed impairment still existed at the time of the accident. I do not agree. In its own clinical examination of the plaintiff’s cervical spine, the Review Panel found asymmetrical ranges of motion of lateral flexion to the right and to the left, and some intermittent guarding. Those were the same clinical findings reached in the 2004 and 2005 assessments. Read as a whole and fairly, it is my view that the decision of the Review Panel may be read to have considered these symptoms, in the exercise of the Review Panel’s clinical judgment, to be “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident” as provided for in cl 1.31 of the PI Guidelines. As such, the Review Panel was obliged to deduct the WPI of the pre-existing impairment from the current WPI value. The Review Panel’s reasons therefore reveal no error.

71. [114]

    As to its alleged failure to afford the plaintiff procedural fairness, the Review Panel noted the plaintiff’s assertion that his prior neck injury had resolved before the subject accident. Nonetheless, it was open to the Review Panel to prefer the evidence from its own examination and from the certificates of previous assessors. By disagreeing with the plaintiff, the Review Panel did not fail to respond to his arguments. As such, it is my view that ground 2 reveals no jurisdictional error or error of law on the face of the record. This ground also fails.

Result

1. [115]

   The result is that the application for judicial review fails. The further amended summons filed 30 August 2019 is dismissed.

Costs

1. [116]

   Costs are discretionary. Costs follow the event. The plaintiff is to pay the first defendant’s costs on an ordinary basis.