Australia: Legal Directions: What warrants a further MAS assessment?

Glover-Chambers v Motor Accidents Authority of New South Wales & Anor [2010] NSWSC 17

The facts

The plaintiff in a motor accident claim had her injuries assessed by a review panel of the Medical Assessment Service ("MAS") and was found to have a less than 10% whole person impairment. Accordingly, there was no entitlement to general damages under s131 of the Motor Accidents Compensation Act 1999 ("the Act").

Subsequent to the review panel's decision the plaintiff made three separate applications under s62 of the Act, seeking further assessment of her injuries.

On each occasion the proper officer of the Medical Assessment Service dismissed the application without referring it for further assessment.

It was the third application, based on a single medical report addressing causation, which became the subject of these proceedings.

As the application for further assessment was made before 1 October 2008 the court held that the application was governed by s62 as it stood before the legislative amendments.

McCallum J, a single Judge of the Supreme Court, was required to determine whether the decision of the proper officer refusing to refer the matter for further assessment should be quashed.

The decision

Her Honour found the proper officer's decision was vitiated by error of law.

The court held the proper officer had posed the wrong question in asking whether he was "convinced that the additional information would alter the outcome of the previous assessment".

The question he should have asked himself was simply whether the application was made on the grounds of "additional relevant information about the injury".

Her Honour commented that the requirement the additional information be relevant 'probably imported a requirement that it be capable of having a material effect' on the outcome of the previous assessment (which is the jurisdictional pre-condition now found in s62(1A) and applicable for applications filed after 1 October 2008).

Ultimately, the court held the proper officer had imposed an additional 'hurdle' not imposed under the legislation in asking whether the additional relevant information was capable of altering the previous outcome.

The proper officer should have referred the application for assessment once he was satisfied the 'relevance' threshold was met.

Once that threshold was met the final assessment of the additional information was a matter for a medical assessor.

The final assessment of the additional relevant information should not have been, in the court's view, pre-empted by a proper officer of the authority.

The court noted the approach taken by the proper officer was broadly consistent with the terms in clause 14.7 of the Motor Accidents Authority Medical Assessment Guidelines. This clause states, inter alia, that a proper officer may dismiss an application under s62 if he or she is not satisfied that the additional information about the injury would have a material effect on the outcome of the application.

The court took the view that clause 14.7 of the guidelines as provided to the court was directed to the legislation as amended and was inconsistent with the Act as it stood before the amendments.

The proper officer was required under s60 (4) (now repealed) to arrange for a request 'duly made' to be referred for assessment.

A request for further referral under s62 was to be regarded as being 'duly made' so long as it was based on one of the two grounds identified in s62 (1)(a) – namely a deterioration in the injury or additional relevant information.

Of interest, and relevant to applications made after the legislative amendments is Her Honour's view that by similar reasoning it might be argued that clause 14.7 of the Guidelines is also inconsistent with the legislation as amended, although the court was not required to determine that issue on this occasion.

Her Honour, in agreeing with Malpass AsJ in Wilkie, also expressed the view that "additional relevant information" in s62 is not restricted to information which was not available at the time of the first assessment or which could not have been reasonably obtained before that assessment.

Finally, in finding that the proper officer had made an error of law the court was then required to decide whether to exercise its discretion to grant the relief sought.

The court was not satisfied that the third application amounted to an abuse of the process allowed under s62. It comprised a report which was the first medical opinion sought to be put before an assessor addressing the issue of causation, notwithstanding it touched on the issue in 'fairly oblique terms'.

The court commented that a party would not automatically be entitled to having a matter referred again for assessment under s62 on the strength of any further medical report dealing with causation.

To satisfy s62(1)(a) the opinion will only be "additional" to the extent it had not previously been expressed in the material considered by the assessor.

Comment

So, where does this leave applications for further medical assessment post-October 1 2008?

With the legislation embodying the hurdle of additional information having a "material effect on the outcome on the previous assessment", the decision in Glover-Chambers may be of little relevance.

Looking at the issue from another angle it could be argued that from a practical sense, MAS have thus far imposed a fairly high threshold on parties as to what constitutes additional relevant information. In the past, a report from a qualified medical practitioner addressing an issue already considered by the MAS assessor would not be sufficient to constitute additional relevant information. By contrast, it may well be that the court's comments in Glover-Chambers will cause MAS to lower the threshold.

In practice, insurers are therefore likely to receive a greater influx of further MAS applications, as the stance of MAS is tested. On the other hand, insurers ought also be mindful of the potential for their own medico-legal opinion to form the basis for a further MAS application.

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