Key takeaways

Moray & Agnew’s team, led by Kathryn Burrows, Special Counsel, acted for the insurer in this case, overturning a review panel certificate which was infected by numerous errors of law. The decision reviews concepts of procedural fairness, the scope and application of the Motor Accident Permanent Impairment Guidelines (Guidelines), and reminds us that a claimant always bears the onus of proving a causal connection between an accident and its consequences.

Background to the case

The claimant, Bojan Trkulja, was involved in a motor vehicle accident on 3 January 2017. Mr Trkulja asserts that he sustained injuries to the cervical spine, lumbar spine, and left shoulder in that accident.

A dispute arose as to whether the claimant’s degree of permanent impairment exceeded the 10% threshold to entitle him to damages for non-economic loss in accordance with s131 of the Motor Accident Compensation Act 1999 (NSW) (MAC Act).

Medical Assessor Shahzad issued a certificate under s61 of the MAC Act dated 17 March 2022 certifying that the claimant’s injuries gave rise to whole person impairment of 17%.

The insurer’s application for review of the certificate was accepted and referred to a review panel comprised of Member Foggo and Medical Assessors Dixon and Curtin. The insurer sought to rely on medico-legal evidence in the review, and submitted it was essential to resolve the medical dispute that the review panel re-examined the claimant. The review panel refused to consider the insurer’s medical legal evidence, and also refused to conduct a re-examination of the claimant. The review panel issued a certificate dated 9 December 2022 ‘confirming’ the decision of Assessor Shahzad.

• erred in law in excluding the insurer’s medico-legal evidence from its consideration
• reversed the onus of proof and confined the question with respect to causation, and
• failed to conduct the assessment ‘afresh’ as required by s63(3A) of the MAC Act.

The matter proceeded to hearing before Justice Chen on 2 August 2023 and judgment was delivered on 15 August 2023.

Exclusion of the insurer’s medico-legal reports

The insurer submitted the Review Panel erred in excluding the insurer’s medico-legal evidence on the ground that those specialists had not complied with clause 1.41 of the Guidelines (which requires inconsistencies to be put to a claimant) as there is no statutory requirement for medico-legal experts to comply with the Guidelines.

It was accepted by the parties that the decision of the Review Panel had the consequence of excluding all of the medical evidence secured by the insurer to answer the claimant’s claim.

Chen J concluded the Review Panel fell into error by excluding the insurer’s medico-legal reports from the evidence considered for alleged want of procedural fairness. This is because the Guidelines apply to Medical Assessors and Review Panels in their assessment of ‘medical disputes’ which are ‘medical assessment matters’ that are referred to them under the MAC Act. They do not apply to medico-legal doctors.

There is no statutory expression requiring a medical practitioner, qualified by a party to give an opinion, to comply with the Guidelines in any respect. Presumably they would do so, in the way in which they assess permanent impairment, but that is distinct from mandating they do so.

Reversing the onus of proof and confining the question with respect to causation

Having decided it was ‘obliged to exclude from consideration all of the medical reports relied upon by the insurer’, and that none of the claimant’s medical reports addressed the issue of whether the accident was of sufficient force to cause injuries, the Review Panel confined the causation question to the opinions of the accident reconstruction experts.

Thereafter, the Review Panel concluded the insurer had failed to persuade the panel that the evidence upon which it relied established on the balance of probabilities that the forces involved in the accident were insufficient to cause the injuries which the claimant alleged he suffered in the motor vehicle accident.

The insurer argued the Review Panel erroneously reversed the onus of proof – placing it on the insurer to disprove causation, and erroneously constrained the causation enquiry.

Chen J found that the Review Panel had reversed the onus of proof and misstated the correct legal test and thus committed an error of law. Further, in the context of a medical dispute, it is incumbent for the entire medical dispute to be the subject of an assessment: that is by the combined operation of ss58(1)(d) and 131 of the MAC Act.

The medical dispute in this case was whether the degree of whole person impairment arising from an injury caused by the motor accident was greater than 10%.

The Review Panel stated that it would only be determining the issue of causation and did not make any other determinations, for example as to the degree of permanent impairment, in their certificate.

Chen J held that by doing so, the Review Panel fell into legal error for failing to conform to, end apply, the statutory requirements and therefore did not assess the entire medical dispute – and thus committed an error of law on the face of the record.

Failure to conduct the assessment afresh

The insurer alleged the Review Panel failed to conduct the assessment ‘afresh’, as required by s63(3A) of the MAC Act, by only reviewing ‘aspects’ of the decision of the medical assessor, rather than undertaking its own comprehensive assessment. That ground was also made out. That assessment as was conducted was vitiated by errors related to the Panel misdirecting itself in connection with the onus of proof but also legal misdirection or misunderstanding of the statutory requirement governing the exercise of the assessment it was required to conduct.

Decision

Chen J determined that due to the errors of law identified, the decision of the Review Panel must be set aside, and the medical dispute proceedings be referred to a differently constituted Personal Injury Commission Review Panel to be determined accordingly to law.

Further information / assistance regarding the issues raised in this article is available from the author, Kathryn Burrows, Special Counsel or your usual contact at Moray & Agnew.