Author: Esther Siaw   
Judgment Date: 12 July 2017
Citation: Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171
Jurisdiction: New South Wales Court of Appeal [1]
Principles
  • Clause 1.43 of the Permanent Impairment Guidelines (the Guidelines), which requires inconsistencies identified by a medical assessor during the course of an examination to be brought to the attention of the claimant, operates to benefit both insurers and claimants.
  • The level of the Proper Officer’s satisfaction of a reasonable cause to suspect that an assessment was incorrect in a material respect, a pre-requisite for referral to the Review Panel under s 63 of the Motor Accidents Compensation Act 1999 (NSW) (the MACA), is not a reviewable error.
  • Only when a Proper Officer has legally misunderstood the scope of their powers, will there be a reviewable error.
Background

The claimant brought a claim for personal injuries arising out of a motor vehicle accident on 25 July 2013.

Dr McKenna examined the claimant on behalf of the insurer, and assessed 0% whole person impairment (WPI) in respect of her cervical, thoracic and lumbar spine, and shoulder injuries.

The claimant’s injuries were referred to the Medical Assessment Service (MAS) for assessment. Assessor Ashwell issued a certificate assessing 18% WPI in respect of the claimant’s injuries, despite noting some inconsistencies with his findings on clinical examination and those of Dr McKenna 10 months earlier.

The insurer challenged that determination by lodging an application for review, alleging, among others things, that Assessor Ashwell had not complied with cl 1.43 of the Guidelines, which requires inconsistencies identified in clinical examination to be brought to the claimant’s attention.

The Proper Officer was satisfied that there was reasonable cause to suspect that the medical assessment of Assessor Ashwell was incorrect in a material respect, and the application was referred to the Review Panel. The Review Panel subsequently issued a certificate replacing Assessor Ashwell’s WPI assessment with one certifying 0%.

The claimant challenged the Proper Officer’s decision in the Supreme Court of New South Wales (Supreme Court) by way of summons.

Decision

The issue before the primary judge, and subsequently on appeal, was whether the Proper Officer fell into error in having reasonable cause to suspect that Assessor Ashwell’s assessment was incorrect in a material respect.

Supreme Court decision

The primary judge, Fagan J, dismissed the summons on all grounds, finding the Proper Officer had made no error of law in referring the assessment to a Review Panel.

The claimant contended cl 1.43 of the Guidelines operated only to benefit claimants, to the exclusion of insurers, an argument rejected by the primary judge, who found the clause should not have such a limited purpose.

The claimant sought review of the primary judge’s decision to the New South Wales Court of Appeal (Court of Appeal).

Court of Appeal decision

In a unanimous decision led by Simpson JA, the Court of Appeal upheld the primary decision, dismissing the appeal. The Review Panel’s certificate assessing 0% WPI was upheld.

The claimant contended that the exercise of the Proper Officer’s power to refer the assessment to the Review Panel required as a condition precedent, that they have reasonable cause to suspect that an assessment was incorrect in a material respect. This required ‘reasonable cause’ to exist independently of the Proper Officer’s assessment of whether such ‘reasonable cause’ existed. The primary judge rejected this contention, as it would erroneously transfer the Proper Officer’s evaluation of reasonable cause to the Court.

The inconsistencies identified by Assessor Ashwell, together with his comment that he was “at a loss to explain” why the range of movement in the claimant’s shoulders had decreased considerably compared to Dr McKenna’s assessment, caused the Proper Officer to suspect that Assessor Ashwell’s assessment was incorrect in a material respect. The Court of Appeal held that whether or not there had been compliance with cl 1.43 of the Guidelines is a separate matter; a suspicion suffices as a pre-requisite to s 63 of the MACA.

Why this case is important

Clause 1.43 of the Guidelines requires a medical assessor who identifies inconsistencies such as differences between their clinical findings and those of others, or those depicted in surveillance evidence, to draw them to the claimant’s attention to provide an opportunity for explanation.

This clause does not operate exclusively to benefit the claimant. It operates as a dual safeguard to both claimants and insurers, preventing conclusions from being unfairly drawn. Its object is not only to afford procedural fairness, but ensure accuracy in an assessment.

The Proper Officer’s power to refer an assessment to a Review Panel is predicated on their satisfaction that there is a reasonable cause for suspicion, not its actual existence, which is a matter for the courts.

This case reinforces the protective role of the Proper Officer in preventing frivolous challenges to an assessment by a party unsatisfied with the initial assessment. The Proper Officer’s decision operates as a gateway to reviewing the correctness of the initial decision, which is not reviewable unless they have legally misunderstood the scope of their powers, which was not the case in this instance.

 

[1] Basten and Simpson JJA and Emmett AJA.

 

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