Australia: Failure to request re-examination by MAS Review Panel is acquiescence to the Review Panel process

Curwoods Case Note
Last Updated: 3 November 2010
Article by Philippe Paquet

Judgment date: 29 October 2010

Bratic v Motor Accidents Authority and Ors [2010] NSWSC

Supreme Court of NSW1

In Brief

  • Delay is not determinative in the Court's exercise of its discretion under s 69 of the Supreme Court Act 1970.
  • A plaintiff acquiesces to the Review process where there is a failure to request a reexamination by the Review Panel to challenge the earlier assessor's clinical findings.


In September 2006 the plaintiff was injured in a motor vehicle accident. Liability was admitted.

The plaintiff allegedly suffered injuries to her right shoulder, neck and back. The plaintiff subsequently underwent MAS Assessment with Assessor Tai Tak Wan to determine the degree of permanent physical impairment. In a MAS Certificate dated 30 July 2008, Assessor Wan found the degree of permanent impairment of the cervical and thoracic spines was 0%, though he determined the injury to the right shoulder gave rise to a whole person impairment of 5%.

Physical examination of the plaintiff's neck showed generalised tenderness over the cervical spine but no definite muscle spasm or guarding. Upon formal examination with an inclinometer and a goniometer there was evidence of a moderate reduction in active movement of the cervical spine. However, upon informal examination the plaintiff was observed to display a greater active range of motion.

Assessor Wan noted other medical experts had also observed variable ranges of movement on examination. Assessor Wan questioned the plaintiff over the variable movement displayed and formed the view "she was vague and did not provide direct answers to questions asked of her. He noted features of exaggerated pain behaviour during the interview and physical examination".

Assessor Wan noted "taking into account her ROMs when not in formal examination, I assess that she had only mild restriction in active ROMs with no significant dysmetria (asymmetrical loss of motion)".

Similarly, on examination of the upper back Assessor Wan observed "more active ROM when not in formal examination". After repeating his examination of the thoracic spine a number of times he concluded "she (the plaintiff) had only minimal restriction in active movement of the thoracic spine with no significant dysmetria".

In September 2008 the plaintiff lodged an Application for Review of Assessor Wan's determination. In November 2008 the plaintiff's solicitors were informed the Proper Officer was satisfied there was reasonable cause to suspect the assessment was incorrect in a material respect. That correspondence, amongst other things, advised the Review Panel could determine the matter without an examination of the plaintiff, however, if the plaintiff believed an examination was required her solicitors were required to inform MAS immediately. The plaintiff's solicitor did not reply to this correspondence.

In December 2008 the Review Panel was convened to review Assessor Wan's determination. After consideration of the available evidence the Review Panel concluded a re-examination of the plaintiff was not necessary and the matter could be assessed on the papers.

The Decision of the Review Panel

Contrary to the findings of Assessor Wan, the Review Panel concluded the degree of permanent impairment arising from the right shoulder was 4%. This component of the determination was not challenged by the plaintiff.

At paragraph 30 Justice Fullerton, noted the following aspects of the Review Panel's Determination in respect of the cervical spine:

"The panel accepted that the comment that there was 'no definite muscle spasm or guarding' was intended to mean an absence of any relevant evidence of muscle spasm or guarding.

The panel also accepted that the comment that there was 'no significant dysmetria (asymmetrical loss of motion) was intended to mean an absence of any relevant evidence of dysmetria. The panel noted in this regard that the Oxford Dictionary defines the word 'significant' as '...extensive or important enough to merit attention; indicative of something'. Being in the negative, the panel accepted that Assessor Wan had indicated that there was no evidence of dysmetria important enough to merit attention or indicative of something.

The Review Panel also commented that it was open to Assessor Wan to arrive at his conclusions with respect to active range of movement and in this regard the Review Panel referred to Clause 1.42 of the AMA 4 Guides which provides:

"Tests of consistency such as using a goniometer to measure range of motion are good but imperfect indicators of claimants' efforts. The assessor must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. "

At paragraph 31, Justice Fullerton observed the Review Panel made similar observations in respect of the thoracic spine. In a Certificate dated 15 December 2008, the Review Panel agreed with Assessor Wan's conclusion that the injuries to the plaintiff's cervical and thoracic spines fell within DRE Category I, resulting in a permanent impairment of 0%.

On 17 December 2008 the Proper Officer forwarded a copy of the Review Panel determination to the plaintiff's solicitors. The plaintiff's solicitors eventually requested the advice of counsel in July 2009 with counsel's advice being received in October 2009.

Supreme Court

Plaintiff's submissions The plaintiff sought the court's relief to set aside Assessor Wan's assessment of the degree of permanent impairment of her spine at 0%. The plaintiff argued there was a failure to properly apply the AMA 4 Guides which constituted a jurisdictional error, or error on the face of the record, such that Assessor Wan's decision had no legal effect.

The plaintiff took no issue with Assessor Wan's method or approach to examination to assess the plaintiff's spinal function, however, the plaintiff sought to challenge the use of the term "significant" to qualify what was an objective clinical finding of dysmetria.

The plaintiff argued that Assessor Wan's finding of dysmetria, despite him concluding it was "not significant", necessitated a classification of impairment as DRE Category II which in turn would have resulted in a 5% degree of impairment for the cervical and thoracic spines, or a combined WPI of 10%.

The plaintiff submitted the Review Panel's decision to confirm Assessor Wan's determination in respect of the plaintiff's spinal impairment was contaminated by the same error and should therefore be set aside. The plaintiff argued it was not open to the Review Panel to conclude Assessor Wan's finding that there was "no significant dysmetria" to mean there was no evidence of dysmetria important enough to merit attention. The plaintiff also argued that the Review Panel ought to have conducted its own examination of the plaintiff and not relied upon Assessor Wan's erroneous assessment.

Insurer's submissions

The insurer submitted the court ought to exercise its discretion and refuse the plaintiff's Summons given the unexplained and unwarranted delay in bringing proceedings. The insurer also argued the plaintiff's Summons ought to be dismissed given the plaintiff's conduct in acquiescing with the medical assessment process before seeking judicial review. The insurer submitted Assessor Wan had performed a comprehensive clinical assessment of the plaintiff and the word "significant" used in his conclusions was adequately explained to mean "no identifiable dysmetria". The insurer also submitted that the plaintiff's criticism of the word "significant" failed to recognise Assessors are empowered to use their clinical judgment in determining whether or not the results of measurements or tests were accurate.

The insurer submitted the word "significant" was terminology utilised in the AMA 4 Guides under "DRE Cervicothoracic Category I – Complaints or Symptoms" and that Assessors were required to apply that description to complaints and symptoms within the DRE Category I.

The insurer submitted the Guidelines provide that to make a finding of dysmetria "the finding must be reproducible and consistent and the assessor must be convinced that the individual is cooperative and giving full effort".

The insurer submitted Assessor Wan was careful to make the distinction between "no significant dysmetria" as distinct from "no dysmetria" the effect of his findings were that there was no evidence of dysmetria sufficient enough to merit attention or to be indicative of true non-uniform loss of range of motion. Finally, the insurer submitted that the plaintiff's Summons ought to be refused given Assessor Wan's decision no longer had legal effect given it was superseded by the Review Panel's determination.

Supreme Court Decision

The first issue addressed by Justice Fullerton related to the insurer's submission that the court should exercise its discretion to dismiss the plaintiff's action on the grounds of delay. Justice Fullerton stated whilst it had taken 15 months for the plaintiff to challenge Assessor Wan's Determination that period of delay was "not determinative" in exercising the Court's discretion, what was determinative was the plaintiff's "open acquiescence" in partaking in the Review process and in particular failing to request a re-examination. At paragraph 40, the court stated:

"Her open acquiescence in this process, and what must have be taken to be her acceptance of the risk that there might be a finding by the Review Panel adverse to her based on Dr Wan's clinical findings, is conduct which satisfies me that in the exercise of discretion I should dismiss that aspect of the claim".

The second basis for Justice Fullerton's dismissal of the plaintiff's challenge in this regard was that Assessor Wan's Determination was of "no continuing legal effect in any event, have been effectively replaced by the Certificate issued by the Review Panel".

The Court then addressed the plaintiff's challenge to the Review Panel's decision on the basis there had been a jurisdictional error, or a material error in the assessment process. The court stated that whilst it had dismissed the plaintiff's challenge of Assessor Wan's determination "...the test results underlying his assessment of impairment survive because the Review Panel necessarily referred to these matters in the court of considering whether error was demonstrated in his approach or in his application of the Guidelines".

The Court was not persuaded the Review Panel's determination was infected with the same errors as Assessor Wan's determination. The Court relevantly stated at paragraph 44:

"...medical assessors are directed that assessment of whole body impairment must be undertaken in strict accordance with the Guidelines and the AMA 4 Guides, and that for this reason the approach to assessments under the Act is standardised and prescriptive, they are also directed to use clinical skill and judgment. In their reasons for decision the Review Panel emphasised, and in my view properly, that in accordance with 1.42 of the Guidelines, assessor must utilise the entire gamut of their clinical skill and experience and modify an impairment estimate, in spite of an observation or test result, where the evidence does not seem to verify the impairment. Assessors are also directed to describe the modification (by which I assume the nature and extent of it), and to outline the reasons for modifying their findings. Assessors are not, however, directed by the Guidelines or otherwise to express their findings, or their reasons for their finding (or the nature or extent of any modification) according to some statutory formula".

The Court was satisfied that the Review Panel's explanation and/or interpretation of the word "significant" used by Assessor Wan was sufficient to qualify his conclusion, namely that there was no relevant evidence of dysmetria.

The Court concluded the plaintiff had not demonstrated a jurisdictional error in the Review Panel's approach and the summons was dismissed.


In addition to observations and test results (informal and formal testing), where the evidence does not seem to verify the impairment, Assessors can exercise significant discretion by drawing on their clinical skill and experience to modify an impairment estimate. This would seem particularly relevant in circumstances where there is evidence of exaggeration and/or inconsistent application in physical testing.

The Court has confirmed that Assessors need not provide extensive or detailed explanations of criteria applied in reaching a conclusion, rather the reasons for reaching a conclusion will be sufficient to withstand judicial review provided an Assessor utilises clear language.

The lapse of a substantial period of time, in the present case in the order of 15 months, between the date of a Determination and the seeking of the Court's relief was not determinative in the Court exercising its decision to dismiss proceedings. What was determinative was the plaintiff's acquiescence to the Review process and in particular the failure to request a re-examination of the plaintiff. In circumstances where a party intends Reviewing a MAS Determination seeking to challenge the physical findings of an assessor, in most situations a re-examination by the Review Panel should be requested to verify the test results.

1 Fullerton J

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions