The unanimous judgment from the NSW Court of Appeal further clarifies the extent of the obligation upon a medical assessor to afford procedural fairness when conducting a medical assessment in the Personal Injury Commission (PIC). This decision dealt with provisions in the Motor Accidents Injuries Act 2017 (NSW) (MAIA), but equally has application to assessments conducted under the Motor Accidents Compensation Act 1999 (NSW) (MACA).

Implications

The decision highlights that a medical assessor does not have an obligation to disclose to a claimant the medical consequence of a claimant’s answers to certain questions posed during an examination. Put another way, a medical assessor is not required to ask ‘leading’ questions of a claimant when conducting an examination.

Nor more generally are the procedural fairness requirements of a medical assessment equivalent to those that would be required in a Court or tribunal proceedings.

Background to the case

On 26 July 2018, Mr Amos (the claimant) was involved in a motor vehicle accident. Approximately one month after the accident, on or about 26 August 2018, the claimant suffered a fall at home and fractured his eye socket (the orbital fracture). A dispute arose as to whether the fall was caused by injuries sustained in the motor vehicle accident.

This dispute was referred to a medical assessor in accordance with the MAIA, to determine the claimant’s level of whole person impairment (WPI). The claimant was initially assessed by Assessor Steiner, in relation to the orbital fracture injuries. In conducting his assessment, Assessor Steiner incorrectly assumed that causation of the eye injuries had been agreed between the parties, with the insurer subsequently seeking a review of the decision primarily on this ground.

The review application was accepted and allocated to a Review Panel for assessment afresh.

The Review Panel subsequently determined that there were three possible causes for the fall – either a slip or trip, dizziness, or post-traumatic paroxysmal positional vertigo (PPV). The Review Panel concluded that out of those options, only PPV could have been caused by the accident.

Importantly, when conducting its examination, the Review Panel asked the claimant about his pre-accident history of vertigo-like symptoms, which the claimant evidently said he could not recall. It was also evident from the decision that the Review Panel requested that the claimant describe those symptoms experienced immediately before the fall.

After conducting an examination, and considering the material relied upon by the parties, the Review Panel determined that the subsequent fall was not caused by any injury sustained in the accident.

The claimant sought judicial review of the Review Panel’s decision.

Supreme Court Proceedings

On 6 October 2023, Rothman J (the primary judge) made orders quashing the Review Panel’s decision and remitting the application for review for re-assessment. Rothman J found that the Review Panel had denied procedural fairness to the claimant, though found that the reasoning of the Review Panel was otherwise sufficient.

On the issue of procedural fairness, the primary judge found that the Review Panel ought to have alerted the claimant in its questioning as to the precise distinctions the Review Panel was seeking to clarify, in terms of the symptoms necessary to support the conclusion as to causation of PPV.

Court of Appeal Proceedings

The insurer appealed the primary judge’s decision, asserting the primary judge erred in finding that the Review Panel denied the claimant procedural fairness by failing to put him on notice of the specific symptoms of PPV during its medical assessment of him.

The Court held that procedural fairness depends in part on context, and that the requirements of procedural fairness in the context of a medical assessment are different to those applicable to a contested hearing.

Whilst a medical assessor had an obligation to bring a critical issue or factor to the claimant’s attention, the Review Panel in these circumstances was not obliged to put to the claimant its thought process, or to alert the claimant to the consequences of describing his symptoms in a particular way.

The Court found that the Review Panel did not deny the claimant procedural fairness, and was entitled to [at 61]:

“apply its medical expertise to make findings on the basis of answers given by the claimant to its questions and to explain, as it did in its reasons, that the presence or absence of some PPV symptoms was neither the only, nor a critical, factor in its decision."

The Court was also critical of the lower court’s decision, and that the implication to be drawn from the reasons given by the primary judge that the rules applicable to adversarial litigation applied to the conduct of the review panel – therefore effectively seeking to expand the obligations of the Review Panel beyond that previously contemplated in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.

Further information / assistance regarding the issues raised in this article is available from the author, Helene Tretheway, Partner, or your usual contact at Moray & Agnew.