Overview

The relevant takeaways from this decision include the following:

• With respect to sleep disorders, the Court agreed with the Review Panel’s finding that there was no allowable degree of whole person impairment that could be assessed under the AMA4 Guides or Permanent Impairment Guidelines as a result of the sleep complaints arising from pain. His Honour stated that he was ‘affirmatively satisfied that the Panel’s reasoning was correct’
• Although the delay by the Review Panel in completing the reviews was ‘excessive and unexplained’, there was no real and substantial risk that the delay impacted upon the Panel’s ability to make a proper assessment of permanent impairment.
• For disputes that engage the Personal Injury Commission Rules 2021, there are no temporal timeframes placed upon Review Panels
• Unexplained and excessive delays in the issuing of medical assessment certificates giving rise to judicial review proceedings can give rise to a potential costs order against the Personal Injury Commission, even in circumstances where the delay was found not to give rise to an error of law.

Introduction and Background

The plaintiff (represented by GMP Lawyers) lodged a Motor Accident Claim Form against QBE Insurance (Australia) Ltd (represented by Moray & Agnew Lawyers) as a result of a motor vehicle accident that occurred on 17 April 2017. The claim was brought under the Motor Accidents Compensation Act 1999 (MACA).

The plaintiff lodged an application for assessment of permanent impairment with (what was then known as) the Medical Assessment Service (MAS), seeking assessment of her physical injuries.

On 7 July 2021, Assessor Home issued a certificate assessing the musculoskeletal injuries as giving rise to 12% whole person impairment. On 12 November 2021, Assessor Grainge issued a certificate assessing a respiratory sleep disorder as giving rise to 8% whole person impairment. A Combined Certificate (WPI – Physical) dated 8 December 2021 certified the claimant’s injuries as being greater than 10% whole person impairment.

The insurer lodged review applications with respect to the assessments of Assessors Home and Grainge, which were accepted by the Personal Injury Commission. A Review Panel was constituted by the Commission under Section 63 of MACA. The same panel was formed to deal with both assessments.

On 9 January 2024, the Panel issued a certificate assessing 0% whole person impairment as a result of the respiratory sleep disorder. On 12 January 2024, the Panel issued a certificate assessing 7% whole person impairment as a result of the musculoskeletal injuries.

The plaintiff thereafter filed a Summons with the NSW Supreme Court, alleging the following errors of law:

• The 14 and 17 month delay between the re-examination and the issuing of the certificate by the Review Panels constituted a breach of Clause 1.21 of the Permanent Impairment Guidelines, as the Panel failed to assess impairment ‘as it is at the time of the assessment’
• The Panel failed to afford procedural fairness to the plaintiff as a result of the excessive delay
• The Panel erred in finding that the Permanent Impairment Guidelines precluded an assessment of whole person impairment for a sleep disorder caused by pain, as per Clause 1.38 of the Permanent Impairment Guidelines.

Procedural Issues and Delays in Commission Decisions – Key Takeaways

One of the issues raised by the plaintiff was an allegation that the Medical Assessment Guidelines applied to the Review Panels. This was relevant as, unlike the Personal Injury Commission Rules 2021, the Medical Assessment Guidelines set out a 90 day period in which Review Panels should issue their determination.

The plaintiff also alleged that the Panels had failed to comply with Clause 1.21 of the Permanent Impairment Guidelines, as the delay meant that the Panel’s evaluation did not ‘consider the impairment as it is at the time of the assessment’.

Basten JA rejected those allegations and made the following relevant findings with respect to the correct guidelines and the delay:

• A review application constitutes a new set of proceedings for the purposes of Clause 14B, Schedule 1 of the Personal Injury Commission Act 2020 (PIC Act). While the original WPI dispute was lodged before the establishment of the Personal Injury Commission on 1 March 2021, review applications lodged about that WPI dispute in December 2021 under Section 63 of MACA were neither ‘pending proceedings’ nor an ‘unexercised right’ at the time the Commission was established. Accordingly, the Personal Injury Commission Rules 2021 applied to the review applications
• The right to lodge a review application with the President of the Commission only arises after the Certificate (or Combined Certificate) is issued and the original dispute is finalised
• For proceedings to which the Personal Injury Commission Rules 2021 apply, there is no statutory (or otherwise prescribed) time constraint on the conduct of the Review Panel
• While not applicable to the Review Panels in this matter, even if the Medical Assessment Guidelines had applied, the 90 day period set out in those guidelines for Review Panel’s to complete their assessment is best described as ‘aspirational’ and does not represent a jurisdictional limit on the Panel’s function. As such, there is no jurisdictional error simply because the Panel issued a decision after the 90 day period
• Clause 1.18 of the Permanent Impairment Guidelines confirms that a medical assessment involves 3 stages, a review and evaluation of all the available evidence, an interview and clinical examination (wherever possible), and the preparation of a Certificate. The Clause 1.21 requirement that ‘the evaluation should only consider the impairment as it is at the time of the assessment’ serves as a reminder to medical assessors that their focus is on the current level of impairment, rather than past conditions or anticipated future changes
• His Honour did observe that there was ‘no doubt that the delay [in the issuing of the Certificates] was unacceptable’. Nevertheless, it was held that the plaintiff had not established how the delay impacted upon the Review Panel decisions, or the quality of the decisions. As such, no error of law had been established.

If there is a relevant delay in a medical assessment by a medical assessor or panel, this will not constitute an error of law unless it can be demonstrated that the delay caused some impact upon the determination. Unfortunately, there is no time limit on deliberations of a Review Panel, and production of their certificate.

In any event, any timeframe that was or could be set by guidelines would not have the effect of setting a jurisdictional limit on the medical assessor or panels function, as established by the enabling legislation. Any such timeframes would best be described as ‘aspirational’.

Sleep Disorders and Permanent Impairment – Key Takeaways

With respect to the plaintiff’s allegation that the Review Panel had erred in determining that there was no permanent impairment assessable with respect to sleep fragmentation caused by pain, His Honour made the following relevant findings:

• The plaintiff had referred the injury ‘respiratory/sleep disorder’ to the Commission for assessment of permanent impairment. Assessor Grainge had diagnosed ‘chronic insomnia and sleep fragmentation’, however, he found that the plaintiff’s ‘respiratory examination was unremarkable’ and ‘cardiovascular examination was also unremarkable’. Assessor Grainge assessed 8% whole person impairment for the sleep condition, although this was done ‘without reference to any part of the AMA4 Guides’.
• Clause 1.38 of the Permanent Impairment Guidelines states that medical assessors ‘must not make separate allowance for permanent impairment due to pain’, although His Honour accepted that pain may be assessed through the impairment of another body part or system (i.e. an application of the Nguyen principle). This principle is limited, however, as follows:

‘… it is only by having regard to a body part or system affected by injuries resulting from an accident in a way provided for in the AMA4 Guides that a level of permanent impairment can be determined’ [70] (Emphasis added).

• His Honour confirmed that the plaintiff had identified the respiratory system as the relevant body part to be assessed. Once the Panel was satisfied that there was no degree of permanent impairment of the respiratory system ‘the plaintiff was not entitled to any degree of permanent impairment related to that system’. In this respect, His Honour went on to state, at [73]:

‘If the proper construction of the Permanent Impairment Guidelines, with the AMA4 Guides, is a question of law to be resolved by this Court, in my view the approach adopted by the Review Panel has not been shown to be erroneous. Indeed, if the Court’s view were relevant, I am affirmatively satisfied that the Panel’s reasoning was correct’.

This decision confirms that medical assessors need to identify the part of the AMA4 Guides or relevant guidelines under which they purport to assess permanent impairment with specificity. If there is no impairment to a relevant body system, permanent impairment cannot be assessed for that body system.

Delays in Medical Assessment Decisions and Cost Consequences

Notably, His Honour commented that, although submitting appearances were filed for the President and the Review Panel, they ‘proffered no evidence as to the reasons for the delay’. At [80], His Honour stated as follows:

‘In the course of the hearing, the Court raised an issue as to whether the insurer sought an order for costs against the Commission. Such an order would turn on the responsibility of the Commission for the delay of the Review Panel in issuing its certificates, which delay formed the basis of the application for judicial review by the plaintiff.

If the plaintiff were successful, the insurer would be liable not only for its own costs, but also for the costs of the plaintiff. If the insurer were successful, it would be entitled to an order for costs against the plaintiff, but with a real possibility that, as a practical matter, costs would not be recoverable.

If the insurer were to seek costs against the Commission, the Commission would need to be given an opportunity to be heard, as the President’s submitting appearance did not extend to an adverse costs order.'

His Honour gave the insurer 14 days in which to move the Court for a costs order against the Commission.

Where there is an unexplained, excessive and ‘unacceptable’ delay from the Commission determining an application, which delay is relied on by an aggrieved party to commence proceedings for judicial review, the Court may entertain a costs order against the Commission.

Conclusion

This decision clarifies a number of issues relating to the applicable guidelines in pre-establishment proceedings, what needs to be established in order to show that delay in a medical assessment constitutes an error of law, and the correct interpretation of the AMA4 Guides and Permanent Impairment Guidelines with respect to assessment of pain.

Insurers and claimants should ensure that medico-legal experts and medical assessors properly identify the basis by which they calculate whole person impairment, and ensure that assessment complies (and is permitted by) the AMA4 Guides and the relevant guidelines. An assessment of whole person impairment is limited to that which is allowed by the AMA4 Guides and the relevant guidelines.

Further information / assistance regarding the issues raised in this article is available from the authors, Michelle Landers, Partner, and Jackson Clarence, Associate, or your usual contact at Moray & Agnew.