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

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.

Background

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.

Implications

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

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