Australia: Reported abatement of symptoms may constitute additional relevant information pursuant to s 62(1)(a) MACA
Curwoods Case Note

QBE Insurance (Australia) Limited v Henderson (2012) NSWSC 1607

In Brief

• In respect of Applications for Further Assessment relying on information which is additional and relevant, such must not have been known or expressed prior to the original assessment.
• Evidence addressing a significant change in symptoms may constitute additional relevant information.
• A court undertaking judicial review of the administrative process is not empowered to refer a matter for further assessment under s 62(1)(b).

Background

The claimant, Paul Henderson, a truck driver, was the survivor of a fatal head-on collision in a motor accident on 24 September 2008.

The claimant's doctors recorded that 3 months after the accident he was suffering post-traumatic stress disorder symptoms.

The claimant was examined twice by Drs Allnut and Akkerman for the claimant and insurer respectively. Both doctors provided 2 opinions, each agreeing that the claimant had suffered Post Traumatic Stress Disorder (PTSD) caused by the motor accident, but disagreed on the whole person impairment rating.

Dr Akkerman's second report expressed a whole person impairment rating of 6%.

Medical Assessor Dr Lana Kossoff, Psychiatrist, assessed the claimant with 16% whole person impairment.

QBE lodged an Application for Further Medical Assessment pursuant to s 62. The Application was based on additional relevant information about the injury within the meaning of s 62(1)(a) of the Act in the form of a report from Dr Akkerman dated 6 February 2012.

This was the doctor's third report based on an examination that had taken place after the MAS decision. In that examination, Dr Akkerman recorded that the claimant said that since the review the symptoms specific to PTSD had abated. Based on this information, Dr Akkerman provided an opinion that the claimant was no longer suffering PTSD. The abiding condition was non-motor accident related. Curiously Dr Akkerman only reduced his whole person impairment assessment to 5%.

The Proper Officer decided to reject the Application on the basis that Dr Akkerman's opinion did not constitute additional relevant information, his whole person impairment rating did not differ significantly from his previous assessment and that the question of causation had already been decided.

Supreme Court Decision

The Insurer applied for review to the Court, canvassing the following paraphrased points:

• The change of symptoms was additional relevant information, which was "radically new information ... never seen before (the MAS assessment)".
• Dr Akkerman's second report was irrelevant to considering the application (including the difference between the earlier whole person impairment assessment and the latter).
• The Proper Officer's rejection of the Application for Further Assessment on the basis it could not succeed showed a misunderstanding of s 62 of the Act and showed the Proper Officer did not make her own assessment and determination.
• The Proper Officer failed to set out necessary or lawful reasons.

QBE asked the Court to intervene and set aside the Proper Officer's decision on the basis it was ultra vires or for jurisdictional error.

In respect to the fourth point, the claimant contended that the Proper Officer's reasons must be taken to include the argument advanced in the claimant's Reply to the Application. This was because the Assessor wrote in her reasoning that she had considered all the material including the Application, the Reply and supporting documentation. However, the Court agreed with the insurer that the Proper Officer should not have treated the statement embracing the Reply as constituting sufficient reasons.

After consideration of s62 of the Act and the outline of its operation by Schmidt J in the Hutton-Potts' case ², Justice Rein reduced how the section should be approached to 3 questions, which needed to be considered by the Proper Officer in reaching determination as whether or not to refer a claimant for further medical assessment:

1. "Is the information proffered by the claimant or insurer relevant information?
2. If so, is it "additional" relevant information?
3. If it is additional relevant information, is it information that is capable of having a material effect on the outcome of the previous assessment?"³

His Honour referred to a number of cases that addressed the question of whether information was additional.⁴

These cases ruled that an opinion will only be "additional" to the extent that it had not been previously expressed in material put before the Assessor.

In Singh, Rothman J ruled that DVD surveillance of the plaintiff and a report of a psychiatrist commenting on the film did not constitute additional relevant information because they were both available to the insurer at the time of the review and the insurer had decided to hold back that information. Rothman J expressed:

His Honour in this matter drew from these earlier cases addressing the relevant section the following principles on expert reports:

1. " If no report on a subject has been provided to an Assessor, a later report on that subject will be additional relevant information; and
2. If a report on that subject has been provided previously to an Assessor, a new report from another expert will not be additional relevant information even if the new report provides different or greater analysis to reach the same conclusion." ⁵

Neither of the above cases had dealt with a change of symptoms.

His Honour's analysis of Dr Akkerman's third report was that Dr Akkerman, relying on the claimant's history, reasoned that the claimant had been ill with PTSD but had got better. That opinion had never been expressed before and was based on the history provided by the claimant. It was analogous with a claimant, who had suffered frank injuries and was wheelchair bound when he had undergone a MAS assessment, but admitted he no longer relied on the wheelchair.

It was clear that the claimant had reported that his mental state was different. The evidence from the medical expert was not merely a change of opinion based on a different or greater analysis.

It was clearly different, but the third Akkerman report had confused the issue because the doctor had only made a 1% change to the claimant's whole person impairment rating. (This may have drawn the Proper Officer to find that a further assessment could have no chance of success.) While it was right for the Proper Officer to consider the earlier reports, the impairment rating was not conclusive as to whether the material was additional relevant information.

The Court considered that even if causation had been considered by the Medical Assessor and agreed upon by the parties' medical experts, it did not mean that additional relevant information dealing with causation could not be considered in the future.

This was the case with Mr Henderson, where Dr Akkerman was expressing the opinion that his condition had changed due to a change in his symptoms.

The Court ruled that the Assessor should have treated the third Akkerman report as additional relevant information. The next step for the Proper Officer was to consider whether the information was of a character that it was capable of having a material effect on the conclusion that the claimant was suffering PTSD as a result of the motor vehicle accident. The Court declined to deal with that issue in these proceedings.

Section 62(1)(b)

The Court ruled on whether or not it was empowered by virtue of s 62(1)(b)⁷ to refer the matter for assessment. His Honour's decision was that the present proceedings were for judicial review and not to deal with the motor accident or its consequences. Therefore, he did not believe the Court was empowered to make the directions for further assessment. The Court ruled that the legislation of that provision was designed to enable the District Court of New South Wales to deal with a case which had been diverted out of the principal assessment process. The provision enables a court to obtain fresh medical assessments. The Court declined to exercise discretion to refer the matter for assessment and remitted it to the Proper Officer for reconsideration.

Implications

• If information becomes available after a MAS assessment that the medical condition has abated (or deteriorated), that may constitute additional relevant information.
• A different (or omitted⁸) whole person impairment rating is irrelevant to deciding if information is additional relevant and capable of materially altering a previous assessment.
• Parties considering applications for further assessment must analyse whether or not the information they wish to rely on actually reveals relevant additional material or if it merely constitutes a different or more detailed analysis of earlier material.

Footnotes

¹ Rein J
² Schmidt J in Insurance Australia Ltd t/as NRMA Insurance v Hutton-Potts [2010] NSWSC 1446; (2010) 57 MVR 194 at [13]-[28]
³ [16]
⁴ Garcia v Ma, Glover-Chambers v Motor Accidents Authority of NSW (2010) NSWSC 17 (at 37), Singh v Motor Accidents Authority of NSW (No. 2) [2010] NSWSC 1443, Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182, Davies J, [34] - [35] and [43]
⁵ [20]
⁶ [22]
⁷ s62(1B). Referral of a matter under this section is to be by referral to the member of staff designated by the Authority for the purpose (in this Part referred to as the "proper officer of the Authority").
⁸ In Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC 1231, Harrison AsJ said when the Proper Officer considered an application for further assessment that the failure to provide a different whole person impairment rating to the MAS Assessor was an irrelevant consideration.

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