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

COURT REJECTION OF MAS CERTIFICATE SECTION 61(4)

Claims Handling Tips

When urging the Court to reject a MAS certificate under s 61(4):

  • Note that the power in s 61(4) can only be exercised by a Court after the commencement of proceedings for compensation (as opposed to judicial review proceedings)
  • Demonstrate the risk of injustice if the medical certificate is not rejected and provide evidence in support of the application, for example, surveillance or evidence given during the court proceedings
  • Prepare submissions as to how the outcome might be different if the matter is referred for further assessment
  • If appropriate, provide submissions to assist the Court in making its own assessment of impairment based on the available medical evidence.

In Brief

  • In order to reject a medical assessment certificate pursuant to s 61(4) a Court must be satisfied that a party has been denied procedural fairness
  • A Court cannot conduct a merits review of the medical assessment certificate when considering whether to reject it under s 61(4)
  • Procedural fairness does not require the MAS Assessor to explain the statutory process to the claimant
  • Procedural fairness does not require the MAS Assessor's determination to be entirely consistent with all medical evidence available to them
  • A claimant is not denied procedural fairness if a MAS Assessor rejects complaints made by them
  • If a Court exercises its power to assess the claimant's permanent impairment pursuant to s 61(6), it must do so in accordance with the Medical Assessment Guidelines and AMA 4
  • A party may make an application for the Court to exercise its discretion pursuant to s 61(4) at any time from the commencement of proceedings up to the completion of the substantial hearing.

Case Examples

Darke -v-El Debal [2006] NSWCA 86

  • The claimant had claims for damages arising from two work injuries and a motor accident which were heard concurrently in the District Court. The claimant was assessed by MAS below the threshold in relation to a neck injury which was sustained in the motor accident. The claimant moved the District Court to reject the medical assessment certificate for denial of procedural fairness. The Judge found that the claimant was denied procedural fairness and rejected the certificate, instead making a finding pursuant to s 61(6) that the claimant exceeded the threshold. The insurer appealed the judgment.
  • The Court of Appeal held that if a Court exercises its power to assess the claimant's permanent impairment pursuant to s 61(6), it must do so in accordance with the Medical Assessment Guidelines and AMA 4 as required by s 133.
  • The Court of Appeal held that the dictates of procedural fairness do not require:
    1. the MAS Assessor to provide an explanation of the statutory scheme to the claimant;
    2. the MAS Assessor's determination to be entirely consistent with all medical evidence available to them;
    3. the MAS Assessor to accept all complaints made by the claimant.
    4. The Court of Appeal held that s 61(6) does not entitle the Court to embark on a merits review of the original medical assessment certificate.
    5. The Court of Appeal upheld this ground of the Appeal but referred the matter for a new trial on a number of other issues as the primary judge overlooked critical evidence, failed to address all pleaded causes of action, decided points that had not been argued and failed to give reasons for several key findings

Towell v Schuetrumpe [2006] NSWDC 159

  • The claimant was assessed above the threshold at MAS. On Further Assessment the claimant was assessed below the threshold, a decision which was upheld by the Review Panel, although by different means. The claimant commenced proceedings in the District Court and made an application to the Court to reject the medical assessment certificate in accordance with s 61(4).
  • A question arose as to whether the application should be dealt with prior to or during a hearing. The Court held that it was appropriate for such an application to be dealt with either before or during a hearing.
  • The Court also found that, although not explicitly stated in the Act, the Review Panel – like the original MAS Assessor – must determine the extent to which the permanent impairment is caused by the subject accident.
  • Ultimately the Court dismissed the application on the grounds that the Review Panel did not deny procedural fairness by not examining the claimant as there was objective evidence of his pre-existing conditions in the information already before them.

JUDICIAL REVIEW OF DECISION OF PROPER OFFICER OR CARS ASSESSOR

Claims Handling Tips

Before seeking judicial review of a decision of the MAA:

  • Ensure that the MAA has provided reasons for its decision and that any alleged error is demonstrable within those reasons or arising from the lack of proper reasons;
  • First, request that the MAA reconsider its decision and correct any obvious error pursuant to s 61(11);
  • Consider whether the assessor who assessed an injury was suitably qualified to provide such assessment and, if not, request the injury be assessed by an appropriate expert.

In Brief

  • The MAA has an ongoing duty to refer a claimant for assessment by one or more medical assessors until all injuries listed in the Application for Assessment by MAS have been assessed
  • A medical assessment certificate assessing a particular injury by a MAS Assessor not qualified to assess that particular injury is invalid to the extent that it purports to assess such injury.

Case Examples

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

  • The claimant was assessed by MAS at 8% WPI. In his determination the MAS Assessor assessed the claimant's nose injury at 0% WPI but stated that the assessment of the nose injury was outside his area of expertise. The claimant lodged an Application for Review which was dismissed by the MAA. However, in the same decision the MAA stated they considered the assessment of the claimant's injuries had not been completed and arranged an assessment of the claimant's nose injury by a suitably qualified expert. That MAS Assessor assessed the nose injury at 4% WPI and a combined certificate was subsequently issued confirming that the claimant exceeded the threshold. The insurer filed a Summons in the Supreme Court seeking to set aside the decision of the MAA, the further medical assessment certificate and the combined certificate.
  • The Court dismissed the Summons, finding that the original medical assessment certificate was not conclusive evidence of the WPI relating to the nose injury as it fell outside of that MAS Assessor's expertise.
  • The Court also held that the MAA has an ongoing duty to refer a medical issue to one or more medical assessors pursuant to s 60(4) and this duty does not cease simply because a medical assessment certificate has been issued.

CONCLUSION

The objective of MAS is to determine whether a claimant's injuries arising from an accident exceed a threshold which would entitle them to damages for non-economic loss. Their determinations have a significant impact to the rights of the claimant and insurer. It is important that such determinations are correct in accordance with the law.

There are a number of means by which MAS Assessments may be challenged. In the first instance a party may seek review of a medical assessment certificate. A Court or Claims Assessor has an unfettered discretion to refer a claimant for Further Assessment at any time. The parties are also entitled to refer a matter for Further Assessment on a restricted number of grounds. Finally, a Court may reject a medical assessment certificate and even substitute it with its own determination if procedural fairness has not been observed.

The underlying principle behind the various review mechanisms appears to be that applications and assessments are to be dealt with in a manner that is fair to all parties and which achieves the correct result. However, this principle must be tempered by the need to constrain parties from making meritless applications which delay the resolution of claims.

Having regard to this, it would be preferable that parties present their entire case at an initial assessment, without making assumptions about the availability of a mechanism to challenge a later unfavourable decision. Should such challenge be required, parties need to act in a timely manner and ensure that the grounds submitted for the challenge are as comprehensive as possible. When responding to another parties challenge, a party should provide comprehensive submissions to assist the relevant decision maker to come to the correct conclusion.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.