Australia: Challenging MAS Assessments

Last Updated: 18 October 2010
Article by Gerry Tzortzatos
This article is part of a series: Click Challenging MAS Assessments for the previous article.

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

APPLICATION FOR REVIEW SECTION 63

Claims Handling Tips

When applying for an assessment to be reviewed:

  • Ensure that any application for review is lodged within the required time, ie 30 working days from the date the medical assessment certificate was sent
  • Provide particulars in relation to all alleged errors, as any errors which are not particularised in the application can not form a basis for a referral to the Review Panel (no matter how obvious that error may be)
  • Demonstrate how correction of the error may cause the claimant to fall below the 10% threshold or why the error is significant in some other respect (eg: causation of injury)
  • Include any further relevant information which has come to light since the MAS assessment was undertaken.

When opposing an application for review:

  • Demonstrate why there is no error in the original assessment by replying to each allegation of error raised by the claimant
  • Demonstrate how the correction of an alleged error would not cause the claimant to be assessed above the threshold, even if you do not concede that any error exists
  • Demonstrate why any alleged error is insignificant
  • Identify any additional errors in the original certificate (not raised by the claimant) which may lead to a decrease in the assessment of impairment.

In Brief

  • An Application for Review must be lodged within 30 working days of the date on which the MAA sent the medical assessment certificate to the parties
  • The MAA is not to determine whether a material error has actually been made but to determine whether sufficient facts exist to induce in the mind of a reasonable person suspicion that the assessment was incorrect in a material respect
  • A medical assessment certificate is 'incorrect in a material respect' if it contains an error/s which is/are not trivial, insignificant or immaterial
  • The MAA need not deal with every single submission made by each party in its written reasons
  • In determining whether to refer a matter to the Review Panel, the MAA is entitled to consider all relevant information put before it (although the Court of Appeal appears not to support this approach)
  • The Review Panel has jurisdiction to consider all aspects of the original assessment, not only those referred to in the Application for Review
  • The Review Panel must give adequate reasons for their decision to issue a further medical assessment certificate
  • The Review Panel must take into account all relevant information, including the original medical assessment certificate (although the Court of Appeal does not appear to support this approach)
  • The Review Panel need not conduct their own examination of the claimant and may rely on the examination of the original assessor if it was conducted appropriately
  • In the absence of specific legislative limitations, the Review Panel may take into account any information before it and give weight to that information in accordance with clinical judgment
  • A Court can not conduct a merits review of the decision of the Review Panel.

Case Examples

McKee v Allianz Australia Insurance Limited [2008] NSWCA 163

  • The claimant was assessed by MAS for injuries to both knees, his left shoulder and his spleen. The MAS Assessor found the claimant suffered 9% WPI in relation to the knee and left shoulder injuries and 0% WPI in relation to the spleen injury. The claimant lodged an Application for Review of the MAS decision submitting that the spleen injury should be assessed at 3% WPI. Whilst the Review Panel agreed that 3% WPI should have been allowed for the claimant's spleen injury, they found that the claimant's other injuries should have been assessed at 7% WPI, therefore giving a total of 10% WPI. The claimant filed a Summons in the Supreme Court seeking that the Review Panel's determination in relation to the other injuries be set aside. The Supreme Court dismissed the Summons and the claimant appealed to the Court of Appeal.
  • On an Application for Review the MAA can only consider whether the medical assessment certificate was incorrect having regard to the particulars submitted by the parties pursuant to s 63(3). The claimant submitted that the Review Panel is likewise restricted to consider the application only with reference to the particulars submitted by the parties.
  • The Court of Appeal dismissed the appeal, finding that the Review Panel had jurisdiction under s 63 to consider all aspects of the original assessment, not just the material error submitted by the parties.

Rahme v Bevan [2009] NSWSC 58

  • The claimant suffered a psychiatric injury after witnessing an accident. On initial assessment the MAS Assessor found the claimant had Chronic Post Traumatic Stress Disorder although he considered the claimant was exaggerating his symptoms. The claimant was assessed above the threshold. The insurer lodged an Application for Review and the Review Panel determined the claimant had no diagnosable psychiatric disorder and was therefore below the threshold. The claimant filed a Summons in the Supreme Court seeking that the certificate issued by the appeal panel be set aside.
  • The Court quashed the decision of the Review Panel, finding that the Review Panel gave inadequate reasons for its decision as to why the claimant's behaviour excluded all diagnoses of mental illness. A Review Panel is bound by s 61(9) to give adequate reasons for its decision.

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

  • The claimant was assessed below the threshold by MAS. He later lodged an Application for Further Assessment and was again assessed below the threshold by MAS. The claimant lodged an Application for Review of the Further Assessment. The application was dismissed by the MAA and the claimant filed a Summons in the Supreme Court seeking that the decision be set aside.
  • The claimant contended that the MAA should not have regard to additional material attached by the insurer to their Reply to Application for Review and should only have regard to the particulars. The Court held that the MAA is to have regard to the matters raised in the application and is permitted to consider them in the light of all relevant material.
  • The Court also held that the role of the MAA is not to determine whether a material error has been made but to determine whether there exist facts sufficient to induce in the mind of a reasonable person suspicion that the assessment was incorrect in a material respect. The Court found that the MAA had applied the correct test and dismissed the Summons.

Sanhueza v AAMI Limited [2010] NSWSC 774

  • The claimant suffered psychiatric injuries as the result of witnessing an accident. He was assessed to exceed the threshold by MAS. The insurer lodged an Application for Review which was accepted by the MAA. The claimant was assessed below the threshold by the Review Panel. The claimant filed a Summons in the Supreme Court seeking that the decision of the MAA and Review Panel be set aside.
  • The claimant submitted the MAA's decision was invalid because it failed to give adequate reasons for referring the matter to the Review Panel. The Court held that the MAA was not required to deal with every single submission the parties made in relation to the existence of an error.
  • The MAA had determined that the history of the injuries must be capable of "providing a description and examples comparable to those in the MAA Guidelines". The Court disagreed stating that the examples provided in each Class of Impairment are descriptive, not determinative, exhaustive or exclusive to each class.
  • Finally, the Court quashed the decision of the Review Panel on the grounds that it failed to take into account relevant information in the original medical assessment certificate and it failed to request further information about the claimant's condition as it was required to do. The Court ordered the claimant be assessed by a different Review Panel.

Graovac v Motor Accidents Authority [2010] NSWSC 938

  • The claimant was assessed above the threshold by MAS in relation to her psychiatric injuries. The insurer applied for a review of the medical assessment certificate. The Review Panel sought to re-examine the claimant and also requested further information from the claimant's pre-accident treating doctors. The further information revealed the claimant had a pre-existing psychiatric condition and the Review Panel apportioned the claimant's WPI to account for this condition, thereby bringing the claimant below the threshold. The claimant filed a Summons in the Supreme Court seeking the determination of the Review Panel be set aside on the basis that it took into account irrelevant material and failed to take into account that the claimant's condition had resolved prior to the accident.
  • The Court dismissed the Summons and held that, in the absence of specific legislative limitations, the 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.
  • In relation to the second submission, the Court found that it could not interfere with the Review Panel's finding in relation to whether the claimant's condition had resolved prior to the accident because that would constitute a merit review of the panel's decision.

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

  • The claimant was assessed below the threshold by MAS in relation to her neck injury. The claimant applied for a review of the medical assessment certificate. The MAA sought clarification from the claimant as to whether the Review Panel should examine the claimant. The claimant failed to reply and the assessment proceeded without an examination. The Review Panel considered the original assessor's examination as recorded in the medical assessment certificate and found there was no evidence of any error. The claimant filed a Summons in the Supreme Court seeking that the medical assessment certificate and the Review Panel's decision be set aside.
  • The claimant submitted that the original assessor failed to give adequate reasons for his decision and failed to assess the claimant in accordance with the methodology prescribed in the Act. The Court found the assessor had provided adequate reason in stating that there was no asymmetry in movement, even though he did not record the range of movement in the neck. The Court also found the reasons provided by the assessor revealed he had examined the claimant in accordance with the requirements of the Act.
  • The claimant submitted the Review Panel fell into error by not examining the claimant. Given the Court's finding that the initial examination by the assessor was appropriate, the Court found there was no error made by the Review Panel in relying on the assessor's examination in their assessment.

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

  • The claimant underwent an initial assessment by MAS and was assessed at 10% WPI. The claimant later applied for a Further Assessment on the grounds of deterioration and was assessed at 4% WPI. The claimant lodged an Application for Review of the Further Assessment on the grounds that the assessor failed to assess one aspect of his injuries. The MAA rejected the application on the grounds that, although there was an error in the assessment, the correction of the error would not result in the claimant exceeding the threshold. The claimant filed a Summons in the Supreme Court seeking review of the MAA's decision. The Court dismissed the Summons finding that MAA applied the correct test when they dismissed the Application for Review. The claimant appealed the Supreme Court's decision.
  • The Court of Appeal overturned the Supreme Court's decision and quashed the decision of the MAA to reject the Application for Review. Court of Appeal held that a medical assessment may be 'incorrect in material respect' if the error is 'significant'. Specifically, the Court of Appeal rejected the definition of 'material' at clause 16.3 of the Medical Assessment Guidelines which requires that the correction of the error be capable of altering the outcome of the dispute as to whether the claimant exceeds the threshold.
  • The Court of Appeal was critical of the approach taken in Pratap v Motor Accidents Authority requiring the MAA to consider all relevant information, including the Medical Assessment Guidelines, when determining an Application for Review. The Court of Appeal was also critical of the approach taken in Sanhueza v AAMI Limited requiring the MAA to consider all additional information included in the Application for Review. However, the Court of Appeal did not make any findings in relation to these issues as they did not arise in the instant case.

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This article is part of a series: Click Challenging MAS Assessments for the previous article.
This article is part of a series: Click Challenging MAS Assessments for the next article.
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