The issue of relevant and irrelevant considerations by MAS Review Panel Assessor judicially reviewed
Judgment date: 26 August 2010
Graovac v Motor Accidents Authority  NSWSC 938
Supreme Court of NSW1
- In the absence of specific legislative limitations, a MAS Review Panel has the power to make a decision based on the information before it and give weight to that information in accordance with clinical judgment.
- To engage in judicial consideration of the decision maker's decision making process and the weight and consideration given to the materials before it, is tantamount to a "merits review" which is not within the scope of the Motor Accidents Compensation Act 1999 (the Act) nor the Supreme Court Act 1970 which permits judicial relief of quashing a decision.
- Section 69 Supreme Court Act 1970 does not allow the Court to replace the decision of the Review Panel with a "better" decision.
The plaintiff sought judicial relief pursuant to Section 69 of the Supreme Court Act 1970 of a decision made by the MAS Review Panel, in the form of a writ of certiorari (quashing of the decision).
The plaintiff contended that the Review Panel's decision was invalid as it was affected by jurisdictional error because, in making the decision, the Panel took into account irrelevant considerations and also failed to take into account a relevant consideration. The plaintiff relied upon the High Court majority decision of Craig v South Australia2 where the High Court provided a non-exhaustive list of errors a decision maker could make which would create a jurisdictional error.
The plaintiff sustained injury in a motor accident on 24 April 2007. Assessor Peter Klug assessed the plaintiff's psychiatric condition as exceeding the 10% WPI threshold on 24 February 2009.
The third defendant to these proceedings, the CTP Insurer, lodged a Review Application, pursuant to s 63(1) of the Act. The Application was based on the grounds that the assessment of Assessor Klug was incorrect in a material respect. The substance of the application was not canvassed by Her Honour, Associate Justice Harrison, in these proceedings.
The Review Panel sought to re-examine the plaintiff and requested further information consisting of the full complement of treating records from the plaintiff's treating psychiatrist and GP, as a record of treatment prior, and subsequent to, the subject accident.
The relevance of the pre-accident clinical notes was anchored in the history given by the plaintiff, that prior to the subject accident, she had immigrated from Serbia to Australia and, after settling in Australia, she had developed a psychiatric condition triggered by the events of the Civil War in the Balkan region.
Treatment by psychiatrist, Dr Sokolovic, involved prescription of Valium (a tranquiliser) and Lovan (an anti-depressant). The plaintiff alleged that eight months prior to the subject accident, her symptoms had completely resolved but re-emerged post-accident (the "relevant consideration").
Dr Sokolovic did not provide his clinical notes to the Review Panel and there was no explanation or indication from the plaintiff's solicitor as to how these records might be obtained.
Ultimately, following a re-examination and review of documentation from the plaintiff's GP contained in a Centrelink file pre-dating the accident (the "irrelevant consideration"), the Review Panel issued a Certificate revoking the Certificate of Assessor Klug and issued a further Certificate in its place, certifying that the psychiatric condition did not exceed the 10% WPI threshold. The Review Panel assessed the plaintiff's pre-accident WPI and the plaintiff's post-accident WPI in accordance with the Psychiatric Impairment Rating Scale (PIRS) based on information from the GP and the plaintiff's account of the condition given at the time of the Review Panel's re-examination
Grounds for Application
The plaintiff's Application for Judicial Review pleaded the following grounds:
The Review Panel erred in its failure to diagnose a pre-existing condition in accordance clause 7.18 of the MAA Permanent Impairment Guidelines (1 October 2007) (Guidelines), which provide that:"In order to measure impairment caused by a specific event, the assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or condition, estimate the overall pre-existing impairment using precisely the method set out in this Chapter, and subtract this value from the current impairment rating."
- The Review Panel failed to discharge the power vested in it by the legislation by considering an irrelevant material when relying on the opinion and clinical notes of the plaintiff's general practitioner.
- The Review Panel failed to consider relevant material in the form of an opinion from a trained and qualified psychiatrist, in place of the plaintiff's general practitioner's clinical notes.
Summary of Decision
Ultimately, the Court found that the Application for Judicial Review failed on the basis that the Review Panel had not fallen into jurisdictional error. The decision made by the Review Panel did not go beyond the legislative requirements, allowing an Assessor to rely on his or her clinical judgement in making the assessment.
Method of Assessment
In assessing a psychiatric impairment, an Assessor (or Review Panel) is to have regard for Chapter 7 of the Guidelines. The Guidelines are issued pursuant to s 44(1)(c) of the Act, which permits the Authority to publish any such guidelines to assist in the assessment of impairment.
Harrison AsJ stated that "the convention used in the Guidelines is that if the test is in bold it is a directive as to how the assessment should be performed."3
Judicial consideration of the Guidelines' typeface is to date unprecedented.
Her Honour went on to review the Chapter 7 requirements and relevantly, Her Honour noted that, in assessing a psychiatric condition:
Paragraph 7.13 of the Guidelines states that the impairment must be attributable to a recognised psychiatric diagnosis in accordance with the Diagnostic Statistics Manual of Mental Disorders (4th Edition) [DSM IV]. This paragraph was partly emboldened.
- Paragraph 7.17 (also in bold typeface) states that "the PIRS Scale is to be used by a properly trained assessor. Clinical judgment will be the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis, and clinical experience."
- Paragraph 7.18 states that, an Assessor (or Review Panel) must,
in the case of an injured person with a pre-existing psychiatric
diagnosis or condition, estimate the overall pre-existing
impairment using precisely the method set out in this Chapter, and
subtract this value from the current impairment rating.
Counsel for the third defendant contended that to judicially review the Review Panel's decision to assess the condition in accordance with the PIRS (paragraph 7.17) was to set about conducting a merits review of the Review Panel's decision which is not permitted by the Act or s 69 of the Supreme Court Act 1970.
Her Honour did not make any further comment on the requirement of the Review Panel to satisfactorily construct a diagnosis and whether paragraph 7.13 took precedence over paragraph 7.17, effectively confirming the discretionary power afforded by The Act.
The plaintiff contended that the Review Panel's consideration of pre-accident material from her GP constituted an irrelevant consideration.
In the absence of Dr Sokolovic's clinical notes, the Review Panel relied on the "irrelevant material" as contemporaneous evidence relating to the plaintiff's pre-accident condition. Referring to paragraph 7.17 of the Guidelines, the plaintiff contended that the Review Panel's reliance on Dr Tomasevic's opinion was irrelevant as he was not a properly trained specialist and therefore the material could not be substituted for that of a properly trained assessor.
Her Honour was of the view that the Review Panel's power to consider the information before it, in the absence of Dr Sokolovic's (a properly trained psychiatrist as per the 7.17 requirement) records, was discretionary.
Her Honour stated that to take the analysis any further would, in effect, result in the Court conducting a merits review of the Review Panel's decision.
Where the legislation is silent as to what material or factors a decision maker is to take into consideration, the decision maker has wide discretion as to what material to consider. The decision maker only fails to discharge his or her duty where there is actually binding legislation requiring him or her to take into account the specific material or factors when making that decision.
Accordingly, her Honour decided that the Review Panel's decision to take into consideration the records of the plaintiff's GP was not an irrelevant consideration. Her Honour stated that the Review Panel was entitled, in the exercise of its clinical judgment, to consider the evidence put to it and afford what weight it considered appropriate and make an appropriate determination.
The plaintiff also contended that Review Panel's decision was flawed on the basis that the Panel failed to take into consideration the fact that at the time of the subject accident the plaintiff's pre-existing psychiatric condition had resolved.
The plaintiff alleged that her condition resolved 8 months prior to the subject accident. While the GP's notes did not report on the plaintiff's condition in the months leading up to the motor accident, this, in the plaintiff's contention, was sufficient evidence that her condition had indeed resolved.
At the time of the assessment, the plaintiff failed to impress the Review Panel as a reliable historian. While the plaintiff said that she had ceased taking the medication prior to the subject accident this was inconsistent with the clinical notes. She was vague with respect to dates and gave conflicting and contradictory information at times. As such, the Review Panel had no choice but to rely on the information provided by the plaintiff's GP.
Harrison AsJ found that the Review Panel had not failed to take into account any relevant consideration in assessing whether the plaintiff's pre-existing psychiatric condition had resolved. The determination was made by the Review Panel in accordance with the provisions of the Motor Accidents Compensation Act and the Guidelines. This ground of judicial review fails.
Accordingly, the plaintiff's Application for Judicial Review failed on all three counts.
This case confirms that both a MAS Assessor and a Review Panel have a wide discretion to consider the information before it in order to make a decision.
Her Honour had regard for the methods of assessment set out in Chapter 7 of the Guidelines which permits an Assessor (or Review Panel) to conduct an assessment based on clinical judgment.
However long the term "clinical judgment" remains in force, an Assessor or Review Panel's decision making process cannot be judicially scrutinised as falling into jurisdictional error as the term, by its definition, permits the decision-maker to proceed without limits aside from that imparted by his or her training and experience.
The nature of relief offered by the Supreme Court Act 1970 is limited to the scrutiny of the legality of decision, that is, whether it was made within the scope of the power vested in the decision-maker by the legislation, and there can be, therefore, no review of the merits of a decision in the current scheme.
1. Harrison AsJ
2. (1994-1995) 184 CLR 163
3. At paragraph 14
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