USEFUL COURT OF APPEAL DECISIONS ON CLAIMANT CREDIBILITY AND JUDICIAL REVIEW OF MEDICAL ASSESSMENTS
September 21, 2016
Ali v AAI Limited  NSWCA 110 and Insurance Australia v Milton  NSWCA 156
Two recent cases handed down by the NSW Court of Appeal dealt with applications to review decisions made by Medical Assessors exercising functions within the NSW Motor Accidents Compensation Scheme, where the insurer put the claimant’s credit squarely in issue.
The decision in Ali v AAI Limited  NSWCA 110 involved issues of claimant credibility in the context of an assessment of their whole person impairment by the Medicare Assessment Service. In Insurance Australia v Milton  NSWCA 156, the credit issues arose during the course of an application to determine whether the claimant was eligible to become a lifetime participant in the Lifetime Care and Support Scheme.
In both cases, the Court of Appeal rejected the insurer’s submission that the decisions of the Assessors failed to engage appropriately with the credit issues, or provide adequate reasons for accepting the subjective information provided by the claimant regarding their level of impairment.
Ali v AAI Limited  NSWCA 110
The claimant was assessed by MAS Assessor Cameron as having a greater than 10% whole person impairment (WPI), which meant he would be entitled to recover damages for non-economic loss. An application for review lodged by the insurer was dismissed by the Proper Officer of the Motor Accident Authority. The insurer brought an application for Judicial Review in the Supreme Court, with the principal issue being the Assessor’s treatment of the claimant’s credit.
The insurer had provided the Assessor with surveillance footage directly contradicting the claimant’s self-reported level of functional impairment, and made plain in its Submissions that the claimant ought not be accepted as truthful. The insurer had also provided evidence suggesting that any impairment actually suffered by the claimant was wholly or partially attributable to psychiatric factors not causally connected to the motor vehicle accident.
In his reasons, the Assessor observed that the claimant was “inconsistent with his presentation”, and that his mini-mental status examination did not produce a valid score due to severely abnormal results. However, the Assessor did not expressly articulate a conclusion about the credibility of the claimant, or explain the weight he had accorded to the claimant’s complaints of impairment when determining the degree of WPI.
Wilson J of the Supreme Court set aside the decisions of both Assessor Cameron and the Proper Officer on the basis that the Assessor had failed to consider all relevant evidence in accordance with his obligation under the Motor Accidents Compensation Act 1999 (NSW). Her Honour held that, as there were “significant questions” raised regarding the claimant’s reliability that required resolution, “some explanation of the Assessor’s reasoning process” was required. She explained that in the absence of any account of the reasoning process undertaken by the Assessor, or of any account of the evidence accepted and rejected by him during the assessment, one could not determine whether Assessor Cameron had acted in accordance with his statutory obligations or simply “passed over” the evidence that went to credibility.
The claimant appealed successfully. Basten JA (Leeming and Simpson JJA concurring) held that the errors alleged by the insurer amounted to a challenge to the merits of the decision, rather than whether or not there was an error of law on the face of the record. Only the latter were within the scope of the jurisdiction of the Court in exercise of its supervisory jurisdiction.
His Honour accepted that the Assessor had a statutory obligation to provide reasons, and a further obligation to address all relevant considerations when making a decision regarding the WPI of the claimant. However, he reasoned that these obligations could be discharged through the provision of “brief reasons addressing the precise point”. In His Honour’s view, the Assessor’s reasons made clear that he had reviewed the surveillance footage, and had used this information – along with his findings on examination – to reach his conclusion regarding WPI. This was sufficient to meet the statutory obligation. His Honour further held that the claimant’s self-reported complaints were not an irrelevant consideration merely because they were unreliable, and that it was within the broad discretionary power accorded to the Assessor to conclude that the evidence was unreliable, yet still give it some limited weight.
On the secondary issue of causation of injury, his Honour held that the evidence of pre-accident impairment went to the question of psychiatric injury, so it was not relevant to Assessor Cameron’s determination regarding WPI for physical injury.
Though he agreed with the reasons of Basten JA, Leeming JA delivered a separate judgment rejecting the contention that the MAA Guidelines were delegated legislation that impose statutory obligations on Assessors. His Honour therefore reasoned that a mere failure to act in accordance with the Permanent Impairment Guidelines would not necessarily result in reviewable error.
Insurance Australia v Milton  NSWCA 156
The claimant was accepted as an interim participant in the Lifetime Care and Support Scheme (‘the LTCS’). That Scheme provides for the treatment and care needs of participants who receive certain serious injuries in motor accidents that result in particular impairments of physical or cognitive function. All participants enter the Scheme for a two year period as interim participants, and, after two years, are assessed to determine if they remain eligible for the Scheme, in which case they become a lifetime participant. When that decision was made in this claimant’s case, the Lifetime Care and Support Authority concluded that the claimant was not eligible to be a lifetime participant. The insurer disputed the decision, but it was confirmed by an LTCS Assessment Panel and LTCS Review Panel.
The insurer then brought an application for Judicial Review of the Review Panel’s decision in the Supreme Court. The Review Panel had been provided with evidence that the claimant had a strong wish to exit the LTCS, and that he had spent time researching the components of the Function Independence Measure (‘the FIM’, a test of various cognitive and physical aptitudes used to assess claimants with brain damage for their eligibility to enter or remain in the LTCS, deployed by both the Assessment Panel and Review Panel when considering disputes about whether claimants belong in the Scheme or not). The insurer contended there was strong evidence that the claimant had significantly exaggerated his level of independence and function when assessed for his lifetime LTCS participation, in an effort to distort the FIM Assessments and render himself ineligible to become a lifetime participant. Most notably, there were clear discrepancies between the level of function reported during the FIM Assessments and the level of function suggested by other medical records. Further, there was evidence that the claimant’s level of independence and function fluctuated significantly throughout the day, such that any information gleaned from clinical examination needed to be read in the context of other evidence in order to provide a reliable indicator of the claimant’s condition.
Beech-Jones J of the Supreme Court rejected the insurer’s application, concluding that the reasons of the Review Panel were adequate. His Honour concluded that the reasons provided by the Panel demonstrated that they were alive to the inconsistencies in the claimant’s self-reported condition, and had determined his FIM Assessment score using “their professional judgment to evaluate his level of functioning”. His Honour thus concluded that the Review Panel had revealed the “actual path of reasoning” deployed “in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”. The reasons thus met the standard for reasons of medical assessors espoused by the High Court in Wingfoot Australia Partners v Kocak  HCA 43.
The insurer’s appeal failed. Basten JA again delivered the leading judgment (with Leeming and Simpson JJA again concurring). His Honour concluded that the inconsistency in the claimant’s self-reported function was a factor to be considered by the Assessors of the Review Panel but this “did not require the Review Panel to set out in its reasons findings as to the claimant’s ‘credibility’ or ‘reliability’”. It was enough that the reasons demonstrated consideration of the issue and arguments before they used their professional judgment to make a decision.
On a narrow view, Ali and Milton represent a significant hurdle for insurers wishing to challenge decisions of Assessors who have accepted the subjective evidence of the claimant, notwithstanding contrary evidence impugning their credibility. These decisions suggest that the duty to provide reasons, under both the Motor Accidents Compensation Act 1999 (NSW) and Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), does not extend to a requirement to explain why conclusions have been reached regarding the reliability of claimant evidence, or indeed to expressly provide an opinion on claimant credibility where that is obviously in issue. Rather, as long as the reasons demonstrate that the Assessor has ‘considered’ the evidence going to credibility provided by the insurer as a ‘factor’ in his/her path of reasoning, this will be sufficient. The Court will infer that the Assessor has engaged with the issue and given such weight to the claimant’s subjective self-reported symptoms as he or she considers appropriate, having regard to all the material considered, and in the exercise of his or her professional judgment.
More broadly, these cases reinforce that the obligations of Medical Assessors to provide reasons for their determinations will be construed very narrowly, consistent with the decision of the High Court in Wingfoot Australia Partners v Kocak  HCA 43.
Authored by Peter Utiger, Partner, Alexander Winn, Paralegal, Newcastle
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