- Medical assessors assessing brain injury impairment must ensure strict compliance with the brain injury protocol.
- When assessing brain injury impairment, a psychiatrist is required to give full effect to a neurosurgical opinion. Providing an opinion as to the correctness of a neurosurgical opinion will constitute an irrelevant consideration.
Mr Little (the claimant) was injured in a motor vehicle accident on 20 August 2013. He was struck on the back of the head and claimed to have suffered a traumatic brain injury.
An application was made for assessment of permanent impairment by the Medical Assessment Service (MAS). The claimant was initially examined by Dr Coyne, neurosurgeon, who opined that the claimant suffered a mild closed head injury that gave rise to a whole person impairment less than 10%.
Dr Coyne confirmed the need for the claimant to be assessed by a psychiatrist, noting a neuropsychologist’s medico-legal report that considered the claimant fulfilled the criteria for post-concussion syndrome.
In accordance with a State Insurance Regulatory Authority protocol identified as ‘Brain injuries assessments fact sheet (for assessors)’, when an assessor determines that the symptoms reported by the injured person cannot be fully explained by a brain injury, a psychiatrist will then assess the injured person.
The claimant underwent medical assessment by Dr Scurrah, psychiatrist. He disagreed with Dr Coyne and opined that the claimant suffered a significant brain injury which had a major impact on his neurocognitive functioning. Insofar as the psychiatric injury was concerned, Dr Scurrah diagnosed a chronic adjustment disorder with mixed anxiety/depressive symptoms that gave rise to a whole person impairment less than 10%.
The claimant made an application to the MAS for further medical assessment under s 62 of the Motor Accidents Compensation Act 1999 (NSW), which included the certificate by Dr Scurrah and was supported by a psychiatrist’s medico-legal report obtained after the examination with Dr Scurrah. The Proper Officer’s rejection of the application and the correctness of Dr Scurrah’s certificate gave rise to judicial review proceedings.
An application for review of Dr Coyne’s assessment was rejected by the Proper Officer. That decision was not challenged. The certificate by Dr Scurrah was challenged by the claimant primarily on the ground that he failed to perform his statutory task because the brain injury protocol required him to accept and act upon the determination by Dr Coyne.
In addressing the certificate issued by Dr Scurrah, Campbell J observed that:
“…the subject matter, scope and purpose of the sections establishing the scheme for medical assessment… required Dr Scurrah to give full effect to Dr Coyne’s certificate, including the reasons which formed part of it. That he may have been competent in the course of his professional practice to assess acquired brain injury is not the point. This was not his statutory task; that was not the matter referred to him for assessment.”²
Importantly, his Honour noted that “…in applying the PRIS [sic] Dr Scurrah did not take into account any of the symptoms which he regarded as referrable to the significant brain injury which he diagnosed…By adopting this approach it may be said that he failed to take into account relevant considerations in the performance of his task”.³
Ultimately, Campbell J accepted the claimant’s contention, finding that Dr Scurrah’s certificate was “vitiated by jurisdictional error”4 namely taking into account an irrelevant consideration and therefore, had “failed to exercise his statutory task”.5
Consequently, his Honour made orders quashing the certificate by Dr Scurrah and sending the dispute back to the MAS for assessment by a psychiatrist.
This decision highlights the importance of strict compliance, by medical assessors, with the brain injury protocol. That protocol delineates the role of the neurologist and the psychiatrist when assessment of impairment from a brain injury is required. The statutory assessment must not take into account irrelevant considerations. In this context, an opinion about whether or not the neurosurgical opinion was or was not correct constitutes an irrelevant consideration. The parties have an opportunity to challenge that correctness themselves. That same opportunity is not available to a medical assessor.
 Campbell J.
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