Australia: MAS Proper Officer´s Decision To Reject Application In Error Is Subject To Judicial Review

Last Updated: 28 September 2009
Article by Cherilyn Ribbons

Judgment date: 11 September 2009

Transport Accident Commission of Victoria v Motor Accidents Authority of New South Wales & Ors

Supreme Court of NSW1

In Brief

  • The discretion of MAS proper officers to dismiss an application for Further Medical Assessment is conferred by s 62(1B) but the scope of the discretion is curtailed by the MAA Permanent Impairment Guidelines.

Background

A decision of a MAA Medical Assessment Service's Proper Officer, dated 14 January 2009, was the subject of judicial review before Patten AJ.

The insurer sought an order pursuant to s 69 of the Supreme Court Act quashing the certificate and consequential relief.

The Supreme Court agreed the Proper Officer had erred in dismissing the insurer's Application for Further Assessment but the only consequential relief to be provided was the remitting of the Application for Further Assessment back to the Authority as the statutorily empowered decision maker.

Application to MAS

The claimant sustained injury in a motor vehicle accident on 21 December 2004.

On 22 November 2006 he sought an assessment of permanent impairment at MAS.

The medical reports accompanying the claimant's application divulged that the he had sustained a neck injury in 1994. He alleged that he had made a complete recovery.

The assessment was allocated to Assessor Margaret Gibson who issued an assessment certificate on 8 February 2008 certifying that the claimant's WPI exceeded the relevant 10% WPI threshold in relation to the cervical spine.

The claimant gave a history of pre-accident injury to the cervical spine, occurring 15 years prior to the subject assessment. The claimant had undergone cervical spine surgery and reported to Assessor Gibson as follows that:

"... by six months after the surgery he was totally asymptomatic and had returned to work and all normal activities."

In reaching the whole person impairment assessment, Assessor Gibson did not make any deductions for pre existing impairment, observing that:

"There was no evidence of there being any pre existing symptomatic impairment ... Mr Karanfilovski maintains his neck problem had been rendered asymptomatic by surgery and there is no medical documentation to contradict his assertion."

Insurer's Application for Review

The insurer lodged an Application for Review contending that the Assessor had erred in failing to conduct a thorough and proper investigation of the claimant's pre-accident medical history.

The MAS proper officer rejected the insurer's application for review. The reasons for the dismissal were not in evidence.

Insurer's First Application for Further Assessment

The Insurer lodged an Application for Further Assessment based on clinical notes from two GPs who treated the claimant for the cervical spine condition prior to the motor accident.

The Application was dismissed.

Insurer's Second Application for Further Assessment

The insurer sought a Further Medical Assessment in November 2008.

The application was accompanied by the material already placed before the MAA including additional reports, some of which pre dated the motor accident.

The reports indicated a pre-accident history of radiculopathy affecting the cervical spine up to and beyond the date of the subject motor accident.

The claimant's solicitors responded by asserting that the insurer's application contained nothing "new" and therefore did not satisfy the criteria for a Further Medical Assessment.

The Proper Officer issued a certificate on 14 January 2009 dismissing the insurer's application. She stated that her dismissal was based on the following reasons:

  • Even though Assessor Gibson had not made any deductions for pre existing impairment to the cervical spine, the insurer's assertion that the grounds to make such a deduction were obvious in the newly available pre-accident medical material, was not a convincing argument that an Assessor should now make the deduction.
  • The Application's supporting documents did not support exactly what deductions should be made and how the deduction would result in a material difference to the outcome.
  • Assessor Gibson was aware of the claimant's pre existing injuries and referred to it in the original assessment.

Judgment

The Court ruled that the Proper Officer's dismissal constituted an error of law within s 69(3) of the Supreme Court Act, namely that the Proper Officer ignored relevant material or identified a wrong issue as per Craig v South Australia2, where the High Court held that an administrative tribunal (such as the MAA) committed an error of law where the tribunal identifies the wrong issue, asks itself a wrong question, ignores relevant material, or relies on irrelevant material or makes an erroneous finding.

The Court commented that a Proper Officer who dismisses an Application for Further Assessment after failing to acknowledge new relevant material of significant weight, erred by failing to consider relevant material. Specifically, the Court held:

"35 The discretion conferred on a Proper Officer by s 62 (18) is, in my opinion, limited by the terms of the section. In other words, the task of the Proper Officer considering an application by a party of the kind here under consideration is to determine whether there is relevant additional 'information and if so whether it is capable of having a material effect on the outcome of the previous assessment. In considering those matters, the Proper Officer is required to have regard to the MM Guidelines.

"36 In this case, in my view, the additional information was overwhelmingly one way. It was no answer to say, as the Proper Officer did, that Dr Gibson was aware of the previous injury. The material before Or Gibson, including the statement of Mr Karanfilovski, gave no hint of what the additional information contained as to the serious and continuing consequences of his previous injury. The decision not to refer the matter for a further medical assessment verged, in my opinion, on what Lord Greene in Wednesbury described as "unreasonable". However, it is unnecessary for me to make that finding. Suffice to say that, in my view, it was established that the Proper Officer ignored relevant material of significant weight which flawed the decision making process. Her decision, which became the decision of the Authority, should be quashed."

The Court was unable, by law, to order that MAS should accept the insurer's Application for Further Assessment, the only available relief to be had was to provide that the insurer could go through the same process of making an application, a residual right afforded to every applicant under the Motor Accidents Compensation Act.

Accordingly the orders made were that the proper officer's certificate should be quashed and that matter returned to the Authority so that the Further Medical Assessment might be dealt with according to law.

Implications

When assessing the qualities and arguments on which Applications for Further Assessments are based, a Proper Officer should have regard for the information before them and consider whether the information satisfies the criteria.

If the information is "new" and "relevant" it should be referred for Further Assessment.

In the present case, Patten AJ agreed that the Proper Officer had erred in rejecting the Application as her decision involved one of "unreasonableness" but was bound by law to remit the Application back to the Authority for a new decision to be made. The Court does not have the power to make the decision on behalf of the Authority where the challenge is one of an administrative law nature

Footnotes

1 Patten AJ

2 (1995) 184 CLR 163

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.

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