Judgment date: 28 June 2010. Cupac v Motor Accident Authority  NSWSC 631, Supreme Court NSW1
- A MAS Assessor is not required to assess a claimant's presentation with an eye to each and every criterion set out in the statutory guidelines in order to avoid falling into jurisdictional error.
- The failure to give adequate reasons does not constitute an error of law as there is no legislative requirement that the explanation satisfy a particular form other than traversing that which is laid out in the Guidelines.
The plaintiff to the proceedings sustained injury in a motor accident on 13 February 2007. On 21 May 2009, the plaintiff's injuries were assessed by the Medical Assessment Service in response to an application for assessment lodged by the plaintiff's solicitor. The plaintiff sought assessment of his cervical and lumbar spines.
The medical assessment was conducted by Assessor Maxwell and the plaintiff's injuries were assessed as not exceeding 10% whole person impairment (WPI). On 7 July 2009, Assessor Maxwell's reasons for his assessment were published and the plaintiff, dissatisfied with the assessment, sought a review, pursuant to s 63(3) of the Motor Accidents Compensation Act 1999 (the Act).
The Review Application was rejected by the Proper Officer on 14 August 2009.
Summary of Decision
The plaintiff sought judicial review in the form of an order quashing both the certificate of Assessor Maxwell and the certificate of the Proper Officer dismissing the Review Application on the basis that they were both defective due to jurisdictional error.
An order of mandamus (a "command by the court") was sought on the basis that Assessor Maxwell failed to exercise his power according to law. In other words, that Assessor Maxwell had fallen into jurisdictional error in failing to exercise his power to make a correct assessment of impairment.
The plaintiff's application was dismissed on all three counts.
Her Honour did not accept the plaintiff's contention that the Assessor's certificate was infected by a breach of procedural fairness on the basis that the Assessor had failed to give adequate reasons for his findings on assessment.
Nor did she accept the plaintiff's contention that the Assessor had fallen into jurisdictional error by incorrectly interpreting the relevant Guidelines which in turn resulted in an incorrect assessment of the cervical spine and lumbar spines. It followed that the Proper Officer had not fallen into jurisdictional error in dismissing the Review application. Her Honour dismissed the application to quash the certificates of the MAS Assessor and the Proper Officer.
The plaintiff contended that his cervical spine symptoms amounted to sufficient objective signs to satisfy the relevant criterion. Namely, that his asymmetrical range of motion and complaint of diminished sensation to the fingers of the right hand satisfied the Diagnostic Related Estimate II (DRE, a term used in the AMA IV Guides) criterion. He further contended that his lumbar spine should properly have been assessed as a DRE II because there were clinical signs of asymmetrical and non-verifiable radiculopathy.
Her Honour ultimately found that the Assessor had not fallen into jurisdictional error in his assessment of the plaintiff's impairment as she determined that he had not misunderstood or misapplied the diagnostic criteria in relation to the injuries to the cervical spine and the lumbar spine.
Assessment of the Cervical Spine
Her Honour observed that the recorded assessment findings of the Assessor did not accord with the relevant criteria for a DRE II assessment. A DRE II assessment includes a finding of muscle spasm or guarding, asymmetrical range of motion or complaints of non-verifiable radiculopathy. The Assessor recorded in his report that, on examination, the plaintiff's cervical spine exhibited none of the relevant DRE II criteria and therefore a finding of DRE 1 (0% WPI) was the most appropriate result. The cervical spine range of motion was restricted but not asymmetrically so. The loss of sensation was not supported by additional signs of wasting or weakness. The plaintiff contended that all of the relevant criteria DRE II were present on assessment and the Assessor had misdirected himself into applying the wrong test.
It was noted that a DRE I impairment differs from a DRE II impairment in terms of the different criterion. The salient difference is that a DRE I assessment equates to a 0% WPI, whereas a DRE II finding results in a 5% WPI.
Counsel for the plaintiff contended that a finding of asymmetry on any plane of the cervical spine, coupled with pain, regardless of whether there were findings of spasm, guarding or non-verifiable radiculopathy, satisfied the criteria for DRE II. Her Honour had regard for the definition of "asymmetry" and noted that it did not include the restriction of one plane of motion, but, necessarily, two.
Her Honour stated that a finding of an asymmetrical range of motion is a clinical judgment. She observed that in making the DRE I assessment, the Assessor took into consideration the plaintiff's general presentation at the assessment, in addition to the findings on formal examination:
And, on informal examination:
In her Honour's view, there was no error in the Assessor's conclusion that the cervical spine did not exhibit an asymmetrical range of motion, nor satisfied the criteria for a finding of non- verifiable radiculopathy.
Assessment of Lumbar Spine
The plaintiff had similar issues with the assessment of the lumbar spine, contending that the Assessor failed to make objective findings in relation to the lumbar spine which would have arguably resulted in a DRE II assessment. Specifically, the plaintiff contended that his asymmetrical range of motion and non-verifiable radiculopathy (this time, a decreased ankle reflex), were the indicators that should have satisfied the requirement for an objective finding of a DRE II impairment. The Assessor did not find an asymmetrical range of motion, which alone, would have satisfied the DRE II criterion. With respect to the non-verifiable radiculopathy, he observed:
Her Honour was satisfied that on the strength of this statement, the Assessor had not misunderstood or misapplied the methodology and had therefore not fallen into jurisdictional error.
Her Honour declined to make any order quashing Assessor Maxwell's certificate because there was no jurisdictional error.
The question of jurisdictional error is resolved by considering whether the decision maker asked himself or herself the wrong question, identified the wrong issue, ignored relevant material and/or made an erroneous finding, or the decision maker has exceeded his or her power. This is well-established in the case law.
Her Honour considered the judgment of Johnson J in Vitaz v Westform (NSW) Pty Limited,2 which related to a medical assessment in a workers compensation dispute. His Honour Johnson stated that it was not the role of the Approved Medical Specialist to review the plaintiff's presentation in accordance with each and every criterion set out, so it could be expressly stated that it did not apply.
Further, there could be no order of mandamus as the Assessor had discharged the power vested in him in accordance with the law. In doing so, her Honour stated that the Assessor had properly applied the Guidelines and the AMA IV Guides and provided proper reasons, insofar as that which was required by the legislation, so there was no abrogation of procedural fairness.
Her Honour observed that the Act does not stipulate what the reasons for determination should contain, unlike the Workers Compensation Act 1987, but nevertheless the assessment process is an important part of the claim's process, as per Giles JA's judgment in McKee v Allianz Australia Insurance Ltd.3
This case is significant for two reasons. Firstly, her Honour approved the judgment of Johnson J in Vitaz, which was with respect to a workers compensation medical assessment, thereby establishing the principle that a Medical Assessor is not required to undertake an exhaustive review of each and every criterion in order to avoid falling into jurisdictional error.
Secondly, her Honour determined that the contents of the certificate cannot be subject to judicial scrutiny as there is limited vesting in the decision maker (the Assessor) by the legislature as to what is required beyond that which is set out in the Guidelines.
It should be noted that in these types of applications, it is not within the Court's power to substitute a "better" decision to replace that of the original decision maker. The Court's role in reviewing an application for administrative relief is to discern whether the original decision maker had properly exercised his or her statutory power. The Court does not, however, have the power to look at the particular merits of the decision.
1. Harrison AsJ
2.  NSWSC 667
3. Specifically, paragraphs – and ,  NSWCA 163.
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