PROCEDURAL FAIRNESS IN MAS ASSESSMENTS CUTS BOTH WAYS
July 14, 2017
Dominice v Allianz Australia Insurance Ltd  NSWCA 171
Date of Judgment: 12 July 2017
The NSW Court of Appeal (Basten, Simpson and Emmett JJA) has unanimously upheld the decision of Fagan J that Clause 1.43 of the Permanent Impairment Guidelines 2007 (the Guidelines) can be relied on by insurers (as well as by claimants) as a basis to seek review of a Medical Assessment Service (MAS) Assessor’s determination, where the Assessor makes such a determination without exploring inconsistencies between clinical presentation and medical records or histories with the claimant.
The Appellant, Ms Dominice, was injured in a motor vehicle accident on 25 July 2013 when a vehicle insured by Allianz Australia Insurance Limited (Allianz) ran into the rear of her car. She alleged injuries to the right knee, neck, upper back, both shoulders and lower back as well as shock.
In NSW motor accident claims, in order to qualify for damages for non-economic loss (general damages or pain and suffering), a claimant must demonstrate that he or she has sustained a greater than 10% whole person impairment (assessed in accordance with certain prescribed criteria). The MAS determines disputes as to whole person impairment, and this case involved an insurer’s complaint about how the MAS Assessor conducted the dispute and reached his determination.
Dr Ashwell was appointed by the Medical Assessment Service to assess the permanent impairment caused by the subject accident. He determined Ms Dominice had 18% whole person impairment arising from the combination of injury to the cervical spine, right upper extremity, left upper extremity and the right lower extremity.
However, Dr Ashwell recorded a number of inconsistent findings on examination and stated he was at a loss as to why Ms Dominice had decreased range of shoulder movement, as compared to the range of movement exhibited during examination with Dr Kenna (qualified by Allianz) 10 months earlier.
Allianz applied to the proper officer to refer the Certificate of Dr Ashwell to a Review Panel pursuant to s63(1) of the Motor Accidents Compensation Act 1999 (NSW), submitting that he failed to comply with the requirements of Clause 1.43 of the Guidelines, which prescribe that where there are inconsistencies between the Assessor’s clinical findings and information obtained through medical reports and/or observations of non-clinical activities, the inconsistencies should be brought to the claimant’s attention.
The proper officer accepted the application, stating she was satisfied the Assessor found inconsistency between the information obtained through medical reports and on examination, but failed to bring those inconsistencies to Ms Domince’s attention. Therefore, she was satisfied there was reasonable cause to suspect Dr Ashwell’s assessment was incorrect in a material respect.
Supreme Court proceedings
Ms Dominice filed a Summons in the Supreme Court asserting the proper officer’s decision was affected by an error law on the face of the record, or by jurisdictional error. His Honour Judge Fagan rejected the grounds of review and determined:
- Clause 1.43 of the Guidelines applied to both parties to an assessment and not just to accord procedural fairness to a claimant.
- By statutory construction of s63(3) of the Motor Accident’s Compensation Act 1999 (NSW), the proper officer’s decision as to his or her satisfaction of a material error in the medical assessment is only reviewable for legal error, and not on its merits.
- While the proper officer’s written reasons were brief, they provided clear reasons explaining how she came to her decision to refer the assessment to a review panel.
The primary basis for the appeal was whether the primary judge erred in finding Clause 1.43 of the Guidelines could be applied to the benefit of an insurer.
The Court of Appeal unanimously agreed with the primary judge that Clause 1.43 of the Guidelines required a medical assessor who detects inconsistency between clinical findings and information obtained through medical records or observations of non-clinical activities to draw those inconsistencies to the claimant’s attention in order to provide an opportunity for explanation.
It was held the primary judge was correct to find that in the ordinary course, one would expect Clause 1.43 to be beneficial to claimants, but the purpose of the clause was not so limited. An insurer can also rely on it to support an application to review a decision where there are unexplained inconsistencies between clinical presentation and medical records or histories. A conclusion by the MAS Assessor drawn in the face of inconsistent medical records, and without exploration or explanation, is capable of satisfying the proper officer that the decision may be incorrect in a material respect.
To explain this, Simpson JA said at [71):
It may very well have been that, had Dr Ashwell engaged Ms Dominice with respect to the inconsistencies, he would not have been able to state the conclusion that he did. That is the potential material error on which the proper officer formed her satisfaction.
The case is also interesting for the observation of Basten JA concerning just what the proper officer needs to be satisfied of in order to allow an application to go to a review panel. He adverted to the plain words of s63(3), which required the proper officer have ‘reasonable cause to suspect that the medical assessment was incorrect in a material respect’. He observed that in the instant case, the proper officer had directed herself as to that test by referring to a reformulation enunciated by Justice Campbell in Elliott v Insurance Australia t/as NRMA Insurance[i], namely that the level of suspicion necessary to engage the power to refer the matter to a review panel ‘need not rise above anything other than a state of unease’. Basten JA cautioned, at :
The abandonment of the statutory language in favour of a paraphrase is to be (disapproved of). It did not lead to error in the present case, but it could well do so in other circumstances. The statutory language is not obscure, nor difficult to apply. Conclusions expressed in accordance with the language of the statute are less likely to invite applications for judicial review.
The decisions of the primary judge and the Court of Appeal are of assistance to insurers seeking to review MAS assessments where an Assessor has failed to address inconsistent information contained in medical material or inconsistent observations on clinical examination with a claimant.
Where appropriate, it may be beneficial to annex short submissions to MAS forms pointing out differences in range of movement demonstrated by a claimant at different points in time, particularly those recorded by a treating GP or physiotherapist.
Authored by Judith Waldock, Partner & Jamie Quach, Senior Associate, Sydney.
[i]  NSWSC 1848 at .
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