Introduction

This recent decision of the Supreme Court of New South Wales (the Court) considered the meaning of the phrase ‘additional relevant information … such as to be capable of having a material effect on the outcome of the previous assessment’ (the threshold) in the context of an application for further medical assessment under s62 of the Motor Accidents Compensation Act 1999 (NSW) (the MACA). The decision is also relevant for the purposes of s7.24 of the Motor Accident Injuries Act 2017 (NSW) and r13 of the Motor Accident Injuries Regulation 2017 (NSW) which together prescribe a threshold in substantially identical terms for motor accidents occurring on or after 1 December 2017.

Background

The plaintiff was injured in a motor accident on 3 January 2015. The defendant was the CTP insurer of the “at fault” vehicle.

A dispute arose regarding the degree of whole person impairment suffered by the plaintiff as a result of the accident. The rather protracted history of that dispute unfolded as follows:

• 14 September 2017 – the plaintiff was assessed by a medical assessor of the Medical Assessment Service (the MAS) and determined to have 25% whole person impairment (WPI).
• 26 April 2018 – a review panel issued a certificate which replaced that of the original medical assessor and determined WPI at 0%.
• 28 March 2019 – the Court set aside the review panel certificate and remitted the dispute to the MAS for redetermination (see: Cornwall v Allianz Australia Insurance Limited [2019] NSWSC 324).
• 5 August 2019 – a second review panel also determined WPI at 0%.
• 7 October 2020 – the plaintiff lodged an application for further assessment of the dispute under s62 of the MACA.
• 15 February 2021 – the proper officer of the MAS dismissed the plaintiff’s application on the basis the threshold was not met.

The plaintiff subsequently commenced the subject proceedings seeking judicial review of the dismissal by the proper officer on 15 February 2021.

The varying assessments of WPI were due to differences of opinion regarding causation and in particular whether the accident caused the requirement for L5/S1 fusion which was one of three surgeries performed to the plaintiff’s lower back following the accident. Whilst there was a consensus he had pre-existing problems in that region and suffered a soft tissue injury as a result of the accident, there was a dispute in relation to causation of pathology which caused significant radicular symptoms in his right leg (and the requirement for surgery). The second review panel determined onset of the radicular symptoms occurred some four weeks after the accident which was inconsistent with a causal relationship. The specific finding was that the accident had not caused right-sided S1 radiculopathy due to L5/S1 disc prolapse requiring lumbar spine decompression and later, lumbar fusion.

Case law on the threshold

The Court previously provided for a rather narrow interpretation of the threshold which in practical terms prohibited reliance upon medico-legal evidence in relation to issues which were “alive” and determined at the previous assessment (see: McCosker v Motor Accidents Authority of New South Wales [2015] NSWSC 434 at [41] at which Button J cited with approval that proposition as outlined by Rothman J in Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWDC 1443).

However, the Court of Appeal more recently broadened that interpretation in Jubb v Insurance Australia Limited [2016] NSWCA 19 wherein Gleeson JA (with whom Meagher JA and Emmett AJA agreed) noted the following at [80]:

‘… For the [ground of “additional relevant information”, it is the character of the information as additional and relevant which is to be evaluated by the proper officer when forming the opinion or state of satisfaction required by s 62(1A). A further medical opinion based on the same material as was available at the time of the earlier assessment may, depending on the cogency of reasons for the opinion expressed, constitute additional information. So much seems to have been accepted by Meagher JA in Henderson v QBE Insurance at [106].’

(emphasis added)

The Jubb authority was cited with approval in AAI Ltd t/as AAMI v Chan [2021] NSWCA 19.

The proper officer’s threshold decision

In support of his application for further assessment, the plaintiff relied upon Jubb and Chan and attached supplementary medico-legal reports from two doctors whose primary reports were before the second review panel. He also attached a primary report from a new third doctor. All three doctors determined the requirement for lumbar fusion was causally related to the accident.

The proper officer was not satisfied the claimant’s application satisfied the threshold and in particular that the reports were “capable of having a material effect on the outcome of the previous assessment”. She considered the two supplementary medico-legal reports were effectively re-statements of those doctors’ previous opinions which, again, were before the second review panel. Furthermore, neither doctor had specified the timing of onset of radicular symptoms other than that it occurred after the accident. That aspect was important because the second review panel determined onset was four weeks after the accident.

The third doctor had been asked to assume onset immediately after the accident which was directly inconsistent with the panel’s findings. It was significant that the four week period was based upon a history provided by the plaintiff and supported by contemporaneous medical records.

In summary, the proper officer was not satisfied the three additional reports relied upon by the plaintiff contained any new information that was not previously considered by the second review panel.

The Court’s decision

Her Honour Associate Justice Harrison AsJ found there was no administrative error by the proper officer and dismissed the plaintiff’s summons.

As to the issue of the correct application of the relevant threshold test, her Honour noted the following at [97]:

‘It is clear that lack of contemporaneous documentation of complaints regarding the right lower limb until four weeks after the accident was a significant factor in the second [Review] Panel’s determination that the injuries sustained by the plaintiff were not caused by the motor vehicle accident. While the additional reports … provide further support to the theory of causation put forward by the plaintiff, the information referred to by these additional reports, notably the [contemporaneous medical records], had already been before the second [Review] Panel. Furthermore, the additional reports did not substantiate any arguments dispensing the second [Review] Panel’s theory of causation involving the lack of contemporaneous complaints regarding the plaintiff’s right lower limb during the four-week period after the accident. In my view, it was open to the Proper Officer to form the opinion that the additional material adduced was not capable of materially affecting the decision of the second Appeal Panel.’

Harrison AsJ found that the proper officer had applied the correct test (being the interpretation of the threshold prescribed in Jubb and Chan rather than Singh) and had carefully considered the contents of the three medico-legal reports relied upon by the plaintiff. Once that occurred, she was not satisfied the reports were “capable of having a material effect on the outcome of the previous assessment”. Although the proper officer had not expressly determined whether the reports constituted “additional relevant information”, that was not required once she found the other limb of the threshold was not satisfied.

Practical application

The mere fact expert evidence is obtained after a medical assessment occurs and contains a different opinion to that formed by a medical assessor or review panel will not automatically satisfy the threshold requirement for “additional relevant information”. Equally, though, the mere fact that “new” evidence considers an issue which was “alive” at the previous assessment does not of itself mean the information can’t be “additional” and “relevant”.

The following passage from Chan at [70] provides some clarification in this regard:

‘Whether or not additional relevant information is capable of having a material effect on the outcome of a previous assessment depends upon the reasons for the previous assessment and the nature of the additional information. For example, if the additional information contains a new opinion as to the mechanism of injury, then that would be a factor pointing towards its being capable of having a material effect on the outcome of the previous assessment. If on the other hand the additional information substantially overlaps with material already considered by an assessor or an Appeal Panel, then that would point against its being capable of having a material effect on the outcome. However, in either case this is a question of fact.’

Another example may be if a medical assessor or review panel was provided with both radiological images and a radiologist’s report in relation to a scan however considered only the report in determining the alive issue of causation. An expert report subsequently obtained with a different opinion on the issue of causation based upon review of the images and not just the report, the writer submits, ought now satisfy the threshold whereas that may not have been the position under Singh.

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