Golijan v Motor Accidents Authority of New South Wales  NSWSC 1106
Judgment date: 19 September 2012
Jurisdiction: Supreme Court1
The failure of a medical assessor or review panel to expressly refer to evidentiary material in a decision or accept one "competing opinion" over another will not automatically demonstrate a failure to afford natural justice.
On 4 December 2003, the plaintiff was injured in a motor vehicle accident. Medical Assessor Rosenthal assessed injuries to the neck, left arm, left shoulder, back and right arm and certified that only the injuries to the neck and back were caused by the accident and did not give rise to a whole person impairment which was greater than 10%.
On 22 November 2010, the plaintiff lodged a MAS 4A application for further assessment of the injuries to the neck, right shoulder, left shoulder and cervical spine. The plaintiff relied on medical opinion from orthopaedic surgeon Dr Duckworth and an MRI scan. The MRI scan indicated there was a disc protrusion at C5/6 and posterior bulging of the disc at C6/7. Dr Duckworth quantified limitations of the range of motion of the plaintiff's shoulders and described the plaintiff as having wasting of the supraspinatus region and concluded that he had a whole person impairment of 17%.
The insurer provided a report from Dr Harvey in response. Dr Harvey found no muscle wasting and was of the opinion that the plaintiff's symptoms were largely unrelated to the accident and that those symptoms did not "have a significant physical basis". In a supplementary report, Dr Harvey accepted there was some wasting of the plaintiff's spinati muscles but attributed this to lack of use.
The Proper Officer allowed a further assessment of the plaintiff's neck, arms, shoulders and back injuries. A further assessment was undertaken by Dr Rosenthal. Dr Rosenthal did not alter his previous assessment and concluded there was no contemporaneous medical evidence of injury to both arms and shoulders in the accident and proceeded to give a whole person impairment rating of 0%.
The plaintiff applied for review of the certificate issued by Dr Rosenthal. It was contended that Dr Rosenthal's approach involved an error identified by Justice Hall in Nguyen v Motor Accidents Authority of New South Wales 2 . The plaintiff submitted that Dr Rosenthal had excluded the possibility that referred pain from the plaintiff's neck to his shoulders was capable of satisfying a statutory test because it was not an injury that occurred immediately at the time of the accident.
The MAS review panel concluded that the only injury caused by the accident was soft tissue injury to the neck and assessed the level of whole person impairment resulting from that injury at 0%.
The plaintiff sought judicial review of the certificate issued by the review panel constituted under s 63 of the Motor Accidents Compensation Act 1999.
Supreme Court Judgment
The plaintiff complained that the review panel failed to make any reference to the radiological investigations which showed pathology in the plaintiff's cervical spine and argued that the Permanent Impairment Guidelines and AMA 4 3 impose an obligation to refer to this material.
Justice Beech-Jones rejected the plaintiff's argument. In arriving at his decision, his Honour considered the Impairment Guidelines and AMA 4. He concluded they "might form a basis for importing a requirement on an assessor and a review panel to consider the material listed although that would depend upon, inter alia, the nature of the condition being assessed and potentially what the substantive part of the Impairment Guidelines and AMA 4 provided for in respect of that form of condition when assessing whole person impairment".
His Honour noted that Dr Duckworth stated that the radiological reports did not explain the plaintiff's condition and his Honour concluded that, given the marginal relevance of the radiological reports, no relevant form of error can be inferred from the absence of any specific reference to them by the review panel.
The plaintiff also complained that the review panel failed to provide adequate reasons for not accepting the opinion of Dr Duckworth. His Honour rejected the plaintiff's argument on the basis that Dr Duckworth's opinion was not a "competing opinion" as he did not provide any firm opinion as to the cause of the difficulties with the plaintiff's upper extremity. The effect of the review panel's own examination was to disagree with the proposition that there was some connection between the neck and the shoulder wasting which was the premise of Dr Duckworth's opinion and, given the tentative nature of Dr Duckworth's assessment, that was all that was required in this case.
His Honour also rejected the plaintiff's argument that the review panel's decision to reject the injuries to the plaintiff's upper extremities were causally related to the accident involved a breach of natural justice. Firstly, his Honour did not accept that the review panel was confronted with competing medical opinions between Dr Duckworth and Dr Harvey, and secondly, the review panel's assessment was consistent with that of Dr Harvey and did not travel beyond the issues in dispute between the parties.
Justice Beech-Jones ultimately dismissed the summons.
The decision is of assistance to insurers when determining the nature and extent of a medical assessor or review panel's obligation to consider evidentiary material and whether a medical assessor or review panel has failed to afford natural justice by accepting one medical opinion over another.
1 Beech-Jones J
2  NSWSC 351
3 American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Ed (1995)
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