Australia: Challenging MAS Assessments

Credits

Final compilation and analysis by: Gerry Tzortzatos

Building on Curwoods Case Notes by: Cherilyn Ribbons, Jennifer Casperson, Nathan Morehead

With valuable assistance from: Andrew Gorman , Peter Hunt, Ian Jones, Belinda Wightley, Jodi Norton, Philippe Paquet, Vanessa Jason, Laurinda Wellings, Andrew Parker

CONTENTS

PART 1

BACKGROUND

PARTY REFERRAL FOR FURTHER ASSESSMENT SECTION 62(1)(a)

In Brief

Case Examples

Wilkie v Motor Accidents Authority of New South Wales and Anor [2007] NSWSC

Transport Accident Commission of Victoria v Motor Accidents Authority of New South Wales & Ors [2009] NSWSC 940

Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056

De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173

Singh v Motor Accidents Authority of NSW [2010] NSWSC 550

PART 2

ASSESSOR/COURT REFERRAL FOR FURTHER ASSESSMENT SECTION 62(1)(b)

In Brief

Case Examples

Bouveng v Bolton [2009] NSWDC 19

Jovica Trazivuk v Motor Accidents Authority of NSW & Ors [2009] NSWSC 1074

Chami v Motor Accidents Authority of New South Wales [2009] NSWSC 1358

Devic v Motor Accidents Authority of New South Wales [2009] NSWSC 1289

Motor Accidents Authority of NSW v Mills [2010] NSWCA 82

PART 3

APPLICATION FOR REVIEW SECTION 63

In Brief

Case Examples

McKee v Allianz Australia Insurance Limited [2008] NSWCA 163

Rahme v Bevan [2009] NSWSC 58

Pratap v Motor Accidents Authority of NSW and Ors [2009] NSWSC 1325

Sanhueza v AAMI Limited [2010] NSWSC 774

Graovac v Motor Accidents Authority [2010] NSWSC 938

Stojanovic v Motor Accidents Authority of NSW [2010] NSWSC 1090

Meeuwissen v Boden and Motor Accidents Authority of New South Wales [2010] NSWCA 253

PART 4

COURT REJECTION OF MAS CERTIFICATE SECTION 61(4)

In Brief

Case Examples

Darke v El Debal [2006] NSWCA 86

Towell v Schuetrumpe [2006] NSWDC 159

JUDICIAL REVIEW OF DECISION OF PROPER OFFICER OR CARS ASSESSOR

In Brief

Case Examples

Australian Associated Motor Insurers Ltd v Jessel [2007] NSWSC 1351

CONCLUSION

BACKGROUND

Section 61(2) of the Motor Accidents Compensation Act 1999 (the Act) provides that a Certificate issued by the Medical Assessment Service (MAS) regarding "a medical assessment matter" is "conclusive evidence as to the matters certified" in any proceedings before the Claims Assessment and Resolution Service (CARS) or the Court.

However, there are four mechanisms by which a MAS Certificate may be challenged:

A body of case law has developed in respect of each of these provisions.

The principles arising from those cases are outlined in this Paper.

Full Curwoods Case Notes in respect of each of those cases may be found on our website: http://www.curwoods.com.au/web/casenotes.asp

To access the Case Notes, please enter your email address in the space provided.

PARTY REFERRAL FOR FURTHER ASSESSMENT SECTION 62(1)(a)

Claims Handling Tips

When applying for a Further Assessment:

• Clearly set out how the new material will result in the claimant's Further Assessment being not greater than 10% WPI.
• Look closely at new medico-legal reports; they may include opinion on topics which were not considered in the original assessment and may qualify as "additional relevant information".

When opposing an Application for Further Assessment:

• Demonstrate why the information does not show any deterioration in the claimant's condition or does not provide any 'new' information which was not available at the time of the first assessment.
• If there is either new information or evidence of deterioration, demonstrate why the new evidence will not result in an assessment over 10% WPI.

If you are considering a Supreme Court challenge to the decision to refer a matter for Further Assessment:

• File your Summons before the Further Assessment takes place; if you have a complaint about the decision you must challenge it immediately.
• Consider whether the MAA applied the correct legal test in determining whether to refer the matter for Further Assessment.

If you are challenging the result of the Further Assessment, exhaust all avenues of Review before filing your Summons.

Section 62(1)(a)

In Brief

• The deterioration or additional relevant information must be capable of having a material effect on the outcome of the original MAS assessment.
• 'Additional relevant information' can include information showing an improvement in the claimant's condition, information providing further details of a claimant's pre-existing injuries and impairments and medico-legal opinion regarding an issue in relation to which no expert opinion was previously available.
• The MAA has a procedural role to arrange a Further Assessment if the terms of s 62 have been properly invoked.
• A party should seek an administrative review of a decision to refer a matter for Further Assessment prior to the completion of the Further Assessment. If the Further Assessment has already taken place a party should exhaust its entitlements to have the Further Assessment reviewed prior to seeking an administrative review. However, a summons is unlikely to be dismissed on discretionary grounds for delay.
• There is no duty on MAS to refer the claimant for Further Assessment to the original MAS Assessor.
• The Court may either prohibit or compel the MAA to arrange a Further Assessment as the circumstances require.

Case Examples

Wilkie v Motor Accidents Authority of New South Wales and Anor [2007] NSWSC 1086

• The claimant was assessed by MAS above the threshold (34% WPI) in an application where the insurer did not submit any supporting evidence. Several months later the insurer had the claimant assessed at 4% WPI. The insurer's Application for Review of the initial MAS decision was unsuccessful but an Application for Further Assessment was allowed, wherein the claimant was assessed below the threshold (5%). The claimant filed a Summons in the Supreme Court seeking to have the Further Assessment set aside or rejected.

• The Summons was dismissed on discretionary grounds with the Court stating that the claimant should have exercised one of two options:
  1. Bring the administrative law challenge to the MAA's decision to allow a Further Assessment pursuant to s 62 before the Further Assessment took place;
  2. Lodge an Application for Review pursuant to s 63 before proceeding to the Supreme Court.

• Furthermore, the Court stated that the MAA is not required to give reasons for a decision allowing an Application for Further Assessment pursuant to s 62.
• Finally, the Court stated s 62 does not limit "additional relevant information" to information showing deterioration in the claimant's condition.

Transport Accident Commission of Victoria v Motor Accidents Authority of New South Wales & Ors [2009] NSWSC 940

• The claimant was assessed by MAS above the threshold (19% WPI) in respect of his lumbar and cervical spine. MAS made no deduction in respect of the claimant's pre-accident cervical surgery due to his claim that his condition was asymptomatic prior to the subject accident. The insurer lodged an Application for Review which was dismissed. The insurer then lodged an Application for Further Assessment with medical records regarding the claimant's pre-accident condition, which was also dismissed. The claimant underwent further cervical surgery subsequent to which the insurer lodged a second Application for Further Assessment. The application was also dismissed on the grounds that the MAS Assessor was aware of the claimant's pre-accident surgery and the supporting medical records did not offer 'additional relevant information' as required by s 62(1)(a).
• The Court quashed the MAA's decision to dismiss the second Application for Further Assessment. The Court found that although the MAS Assessor was aware of the claimant's pre-accident condition the medical records attached to the second Application for Further Assessment constituted 'additional relevant information' which could have a 'material effect on the outcome of the previous assessment' because it documented the "serious and continuing consequences of [the claimant's] previous injury". The matter was referred to the MAA to be determined in accordance with the law.

Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056

• The claimant was assessed by MAS below the threshold in relation to her physical injuries due to a determination by the MAS Assessor that the claimant's impairment related to pre-existing injuries. The claimant lodged an Application for Further Assessment with medico-legal reports addressing the causation of the injuries. The application was dismissed on the basis that further medico-legal opinion did not constitute 'further relevant information'. The claimant filed a Summons in the Supreme Court seeking that the MAS assessment and the MAA's decision to dismiss the Application for Further Assessment be set aside.
• The Court found the MAS Assessor applied the incorrect test for causation and quashed the medical assessment certificate.
• The Court found that further medico-legal opinion could constitute 'further relevant information' if it contains opinion on an issue upon which no opinion by an expert was previously available. Thus the Court quashed the decision to dismiss the Application for Further Assessment.

De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173

• The claimant was assessed above the threshold by MAS in relation to a back injury. The insurer lodged an Application for Review and the Review Panel upheld the original assessment. The insurer lodged an Application for Further Assessment annexing further information regarding an aggravation of the claimant's back condition after the subject accident. The MAA accepted the application and referred the matter to a different MAS Assessor, who assessed the claimant below the threshold. The claimant lodged an Application for Review which was dismissed. The claimant filed a Summons in the Supreme Court seeking to have the MAA's decision set aside.
• In making their decision the MAA had considered whether the "additional relevant information may have a material effect on the outcome of the Application for Further Assessment". The Court found that the MAA had asked itself the wrong question, and the proper test was whether the additional information "was capable of having a material effect on the outcome of the assessment carried out by [the MAS Assessor] and subsequently reviewed by the Review Panel". The Court could not determine whether the MAA would have made the same decision if applying the correct test and quashed the decision to refer the matter for Further Assessment and the certificate of Further Assessment.
• The Court also found that there is no duty for the MAA to refer a Further Assessment to the original MAS Assessor.

Singh v Motor Accidents Authority of NSW [2010] NSWSC 550

• The claimant was assessed below the threshold by MAS in relation to her psychiatric injuries. The claimant was successful in an Application for Review and was assessed by the Review Panel to exceed the threshold. The insurer obtained surveillance footage of the claimant's social activities and attached this and a further medical report to an Application for Further Assessment. The MAA accepted the application and arranged a Further Assessment. The claimant filed a Summons in the Supreme Court seeking the MAA's decision be set aside.
• The Court found that the MAA does not have a jurisdictional role to determine whether the party making an Application for Further Assessment has satisfied the provisions of s 62. The MAA has a procedural role, to arrange a further assessment if, objectively, the party referring the matter has properly invoked the provisions of s 62. Their determination in this regard will not bind the parties.
• As such a Court may order prohibition, to restrain the MAA in dealing with the reference for further assessment, or mandamus, to compel the MAA to organise the further assessment, should such relief be appropriate in the circumstances.