Allianz Australia Insurance Limited v Francica  NSWSC 1577
|12 December 2012
|Supreme Court of New South Wales1
- Where there is an issue of causation, it is essential for a Medical Assessor to analyse the evidence which would identify the nature of the basis for any symptoms and to demonstrate how that basis is or is not related to the effects of an accident.
- Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to and reasons should be provided for accepting or preferring one conclusion over another.
- Where certain evidence is important or critical to the proper determination of the matter and it is not referred to, it may be inferred that evidence was overlooked or there was a failure to give consideration to it.
The claimant was involved in a rear-end motor vehicle accident on 1 September 2006. Breach of duty of care was admitted without any allegation of contributory negligence. It was asserted on behalf of the claimant that the accident was causative of physical and psychological injuries. As far as the former is concerned, it was submitted that the claimant sustained injuries to the cervical, thoracic and lumbar spine and shoulders.
Medical Assessor David Maxwell issued a certificate on 2 September 2008 certifying that the accident was causative of injuries to the cervical, thoracic and lumbar spine and shoulders which give rise to 0% WPI.
Medical Assessor Sam Perla issued a certificate on 21 April 2010 which differed to the certificate issued by Assessor Maxwell in two critical respects. Firstly, Assessor Perla certified that the accident was causative of injuries to the cervical and lumbar spine, with the former giving rise to 0% WPI and the latter giving rise to 5% WPI. Secondly, Assessor Perla certified that the accident was not causative of an injury to the thoracic spine or either shoulder.
The claimant lodged an Application for Review of the determinations by Assessor Perla but was unsuccessful.
The claimant subsequently lodged a second Application for Further Assessment by MAS based on reports by his treating Orthopaedic Surgeon (Dr Harper) and medico-legal specialist (Dr Conrad), with the former undertaking surgery on the right shoulder on 5 November 2010.
Medical Assessor James Bodel issued a certificate on 9 January 2012 certifying that the accident was causative of injuries to the cervical, thoracic and lumbar spine and shoulders which give rise to 19% WPI. This assessment was divided between the cervical spine (2% WPI after deduction for pre-existing impairment), lumbar spine (2% WPI after deduction for pre-existing impairment), right shoulder (8% WPI) and left shoulder (8% WPI).
The insurer lodged an Application for Review with MAS which was unsuccessful.
The insurer commenced proceedings against the claimant, the Motor Accidents Authority of New South Wales, Assessor Bodel and the Proper Officer. The insurer sought an Order quashing the certificate issued by Assessor Bodel on the basis that it was affected by error of law on the face of the record and/or jurisdictional error; an Order quashing the decision by the Proper Officer to dismiss the insurer's Application for Review on the basis it was also affected by an error of law on the face of the record; and an Order that the matter be remitted to the Motor Accidents Authority and dealt with according to law.
The issues in these proceedings essentially rested on 2 issues:
- The asserted inadequacy of reasons by Dr Bodel as Medical Assessor; and
- The failure of Dr Bodel to properly apply principles of causation.
The claimant reported increasing head, neck and interscapular pain, pain in both shoulders, the lower part of the back and buttocks, and pins and needles radiating in both legs. It was submitted on behalf of the insurer that there was no contemporaneous medical evidence to support the history provided by the claimant.
Justice Hall determined that Assessor Bodel provided no basis for his conclusion that there was a causal connection between the accident and the shoulder dysfunction, despite being aware that this was the subject of dispute between the parties and there were competing determinations by Assessor Maxwell and Assessor Perla. Justice Hall found that it was not clear whether it was determined that the shoulder symptoms were referred pain from one or other parts of the spinal segment, or that it was an aggravation to a pre-existing condition, or that it was a combination of both matters.
More importantly, there was no basis demonstrated for a suggestion that the tendonitis or the rotator cuff pathology which Assessor Bodel referred to, or the condition for which surgery was chosen, was caused by any mechanical or physical effects of the motor accident.
His Honour relied on the principles in the decision of Campbell City Council v Vegan2 :
"Where it is necessary for the panel to make findings of fact in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment it may be expected that the findings and material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which its findings are based but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the panel to give some explanation for its preference of one conclusion over another. That aspect may have particular significance in circumstances where the medical members of the panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners as set out in the reports provided to the panel."
In addition, Justice Hall referred to the observations of Sackville AJA in Alchin v Daley3:
"There are three fundamental elements of a statement of reasons which is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate Court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to."
It was held that the reasons provided by Assessor Bodel were not adequate or proper by application of the required method in Vegan, which required analysis of the issues and matters that would resolve the central issue between the parties. The basis for concluding that the shoulder symptoms were caused by the motor accident, particularly in circumstances where there was no history of complaint to the shoulders, was not identified by Assessor Bodel. It was determined that Assessor Bodel was required to identify the nature of the underlying problem which was the cause of the claimant's symptoms, namely, an accident-related pathological change or degenerative changes.
Accordingly, the certificate was quashed as it was affected by an error of law on the face of the record.
In addition, it was held that the decision by the Proper Officer to refuse the insurer's Application for Review of Assessor Bodel's certificate by a Review Panel was affected by an error of law on the face of the record and, therefore, it was quashed. An Order was made that the matter be remitted for further medical assessment.
When matters are referred to MAS it is vital for insurers to include in their submissions the central issue(s) in dispute and the evidence in support of their position. This will assist the Medical Assessor to identify and determine the precise "battle ground" between the parties. This exercise requires a Medical Assessor to consider and comment on the evidence and provide sufficient reasons in support of the decision. A failure to do so could constitute a material error.
When determining the issue of causation and identifying the nature of an underlying problem, Medical Assessors are required to corroborate assertions of symptoms by the claimant with contemporaneous medical reports or clinical notes, rather than simply accepting the history provided by the claimant at face value. A failure to do so could constitute a material error.
Where certain evidence is important or critical to the proper determination of the matter and there is no reference to it by the Medical Assessor, it may be inferred that the evidence was overlooked or there was a failure to give proper consideration to it. Evidently, this is a point where insurers may assert a cause for redress.
1 Hall J
2 (2006) NSWCA 284
3 (2008) NSWCA 418
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