AAI Limited v Fitzpatrick  NSWSC 1108
August 11, 2015
On 10 August 2015, the Supreme Court of NSW upheld an insurer’s challenge to a MAS Assessor’s determination that a claimant (Mr Fitzpatrick, the defendant in the Supreme Court proceedings) had a greater than 10% whole person impairment, as well as a challenge to a subsequent decision of the Proper Officer not to grant the insurer a review of the MAS Assessor’s decision.
Peter Utiger of our Newcastle office acted for the successful insurer.
The plaintiff, AAI, applied for judicial review of a MAS assessment performed by Assessor Crocker, and also the decision of the Proper Officer of the Motor Accidents Authority dismissing AAI’s application for review of Assessor Crocker’s MAS Certificate.
Mr Fitzpatrick was injured in a car accident in November 2005. He alleges he suffered injury to the cervical spine and left shoulder as a result of the accident.
In October 2008, Mr Fitzpatrick was assessed by MAS and the medical assessor found he had a 5% whole person impairment (‘WPI’) of the cervical spine and that the left shoulder had a full range of movement and the injury had basically resolved.
On further MAS assessment in September 2011, the medical assessor again found 5% WPI related to the cervical spine, but this time found 2% WPI related to the left shoulder.
In a third assessment conducted by Assessor Croker in 2014, MAS certified that Mr Fitzpatrick had a 21% WPI – 15% related to the cervical spine and 7% related to the left shoulder.
Supreme Court challenge
AAI challenged both the validity of the 2014 assessment and the later review decision, asserting there had been jurisdictional error and other errors of law, including failure to give reasons and constructive failure to exercise jurisdiction.
AAI firstly submitted that Assessor Crocker had failed to take into account crucial radiological and medical evidence.
Mr Fitzpatrick had had almost total body x-rays taken in hospital on the day of the accident, and no abnormality was detected. He also had an MRI of the cervical spine taken in 2006 which was reported to show no abnormality. It was not until subsequent scans of the cervical spine were taken in 2010, 2011 and 2012 that abnormalities were detected. Those abnormalities were not present on the earlier scans. Similarly, x-rays and ultrasound of the left shoulder taken in November 2008 were reported as normal, and it was not until 2009 that there was an MRI scan which, for the first time, identified abnormality in the left shoulder.
AAI further submitted that Assessor Crocker failed to set out adequate reasons in regards to causation. In particular, Assessor Crocker failed to set out how Mr Fitzpatrick’s condition and permanent impairment at the time of his medical examination was causally related to an injury suffered in the subject accident, in light of the earlier radiological evidence and physical findings of previous MAS assessors.
Schmidt J found that while a MAS Assessor’s given reasons do not have to be elaborate, they must disclose the actual path of reasoning by which the Assessor arrived at the opinions formed on each of the issues which had to be resolved.
Her Honour observed that where there is a medical controversy over a particular issue, a more expansive explanation may need to be given.
Her Honour found that MAS Assessor Croker had to reveal what use he made of the information he had been provided with in coming to his conclusions. It was insufficient simply to record in his reasons that he referred to it.
Her Honour found that Assessor Croker’s reasons did not refer to any deterioration, nor did they adequately disclose the basis on which the Assessor came to conclude that there had been such significant change in the degree of WPI from the earlier MAS assessments.
Her Honour found:
It is insufficient, nevertheless, for an Assessor simply to identify in that form to the questions posed, the material supplied and considered, what clinical examination of the applicant revealed and then to state the conclusions reached on the questions which had to be answered.
An Assessor is also required to reveal the reasoning process which led to each of the conclusions reached. That not only requires active intellectual engagement with whatever is relevant to a resolution of each issue referred for assessment, but also a consideration of the competing views urged by the parties as to that issue. It also requires an explanation to be given of how that has led the Assessor to the particular conclusion arrived at, given the material on which the conclusion rests.
She also found:
He had to resolve the medical dispute lying between the parties by reference to all of the issues referred for assessment. They concern not only the level of Mr Fitzpatrick’s impairment as at the date of assessment, but also whether the then condition of his cervical spine and left shoulder had been caused by the accident.
In reaching his conclusions on the questions referred, Assessor Croker had to consider what was in issue in accordance with the applicable Guidelines relevant to each issue, including causation. How each of the issues referred was resolved, also had to be explained in the reasons given.
In addition, Her Honour noted:
There had, however, been numerous radiological investigations into Mr Fitzpatrick’s spine and shoulder, shortly after the accident and subsequently which Mr Croker said he had reviewed or noted. That clinical information appears to be relevant to the resolution of the dispute, but what impact it had on the conclusions reached was not revealed.
Given what was in dispute, there had to be some fuller explanation given to what the objective evidence established, then the reference Dr Croker made to degenerative changes having been shown in September 2011 and November 2012 MRI examinations, listing the information he had been provided with and indicating that it had been considered.
Her Honour further found:
Nor did Dr Croker refer to the matters advanced by AAI, which reveal the nature of the medical dispute he had to deal with. These matters were not otherwise addressed by reference to the relevant diagnostic findings or medical opinions relevant to the resolution of that dispute.
It must accordingly be accepted, as AAI contended, that Dr Croker failed to meet his statutory obligation to give reasons. The brief reasons given simply do not reveal, as they had to, the actual path of reasoning by which he arrived at the opinions which he had to form on each of the matters which had been referred to him; on the conclusions which he reached as to the underlying condition which he had identified; or on the matters on which the particular medical dispute lying between Mr Fitzpatrick and AAI rested.
Her Honour was also satisfied that AAI had established that the Proper Officer failed to identify the error into which Dr Crocker had fallen. Her Honour found that can only have been the result of the Proper Officer also failing to have regard to the relevant material and falling into jurisdictional error. (see Craig v South Australia  HCA 58; (1995) 184 CLR 163 at 170).
Her Honour further found that the Assessor’s failure to give required reasons was itself gave rise to reasonable suspicion that the medical assessment was incorrect in a material respect. Her Honour considered that approach adopted by the Proper Officer involved a constructive failure to exercise jurisdiction (see Minister for Immigration and Multicultural Affairs v Yusuf  HCA 30; (2010) 206 CLR 323 at  – ).
Her Honour remitted the MAS dispute to another Assessor for determination.
A MAS Assessor must consider what is in issue in accordance with the applicable Guidelines relevant to each issue, including causation, and must explain in the reasons given how each of the issues has been resolved. An Assessor is required to reveal the reasoning process which led to each of the conclusions reached, and that requires active intellectual engagement with the relevant issues and an explanation as to how that led the Assessor to a particular conclusion.
This decision can be called in aid of a submission to the Proper Officer that a failure to give adequate reasons alone is sufficient to justify the Proper Officer granting the party aggrieved a review of the assessment.
Authored by Peter Utiger, Partner, Newcastle.
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