Introduction

This recent decision of the Supreme Court of NSW considered a PIC review application of a minor injury certificate under s7.26(1) of the Motor Accident Injuries Act 2017 (NSW) (‘the Act’) and provides guidance about the impact of surgery on threshold injury disputes, and the boundaries which apply to challenging decisions.

Background

The plaintiff was injured in a motor accident on 8 January 2019 in Belmore NSW and suffered injuries to his right knee and cervical spine.

A dispute arose between the plaintiff and the compulsory third party insurer on risk as to whether the injuries sustained were ‘minor’ (now ‘threshold’) injuries as defined in s1.6 of the Act. 

The history of the dispute was as follows:

• On 25 November 2019, Medical Assessor Wallace issued a certificate under s7.23(1) of the Act and determined the claimant had only a minor injury (now called a threshold injury)
• The plaintiff sought a review of that assessment by a medical Review Panel. On 14 April 2020 the medical Review Panel upheld the decision of Medical Assessor Wallace
• On 28 October 2020, the plaintiff filed an application for a further medical assessment pursuant to s7.24(2) of the Act
• On 8 February 2021, the plaintiff’s application for a further medical assessment was refused by the Commission
• On or about 30 July 2021 the plaintiff lodged a second application for further medical assessment in the Commission
• In that second application, the plaintiff relied upon a report from the plaintiff’s treating neurosurgeon, Dr Simon McKechnie, dated 8 June 2021 as ‘additional relevant information’. The plaintiff submitted that the report demonstrated that the plaintiff in fact had radicular pathology leading to right arm radicular pain resulting in surgery to his cervical spine (a foraminotomy). The plaintiff did not submit in the application that had he sustained a ‘consequential injury’ nor that the surgery itself was a ‘consequential injury.’
• The second application for further medical assessment was accepted and referred to Medical Assessor Assem
• By certificate dated 14 June 2022, Medical Assessor Assem determined the plaintiff sustained a soft tissue injury to his cervical spine, caused by the motor accident, which was a minor injury
• On 12 July 2022 the plaintiff filed an Application for Review of the Decision of Medical Assessor Assem
• On 9 September 2022 a PIC Delegate declined to refer the medical assessment for review by a Review Panel
• On 7 December 2022, the plaintiff commenced proceedings in the NSW Supreme Court pursuant to s69 of the Supreme Court Act 1970 (NSW). By that Summons, the plaintiff challenged the decision of Medical Assessor Assem and the Delegate.
• The plaintiff required, and was granted, an extension of time in which to challenge the decision of Assessor Assem (consistent with the Court’s long held view that parties are to be encouraged to exhaust all other rights of review before invoking the supervisory jurisdiction of the Court).

Plaintiff’s Arguments

The plaintiff raised four grounds of review in relation to the decision of the Medical Assessor as follows:

• The Assessor failed to consider whether the plaintiff’s consequential injury (described as the surgery to the cervical spine) was ‘minor’ or not, and in omitting to do so constructively failed to exercise jurisdiction;
• In failing to consider whether the surgery was a minor injury or not, the medical Assessor ‘failed to apply the lawful test of causation regarding consequential injuries’)
• The Assessor failed to exercise his jurisdiction and did not afford the plaintiff procedural fairness in failing to ‘respond to’ the plaintiff’s submission that the accident created a need for the surgery and that the surgery (the foraminotomy) rendered the plaintiff’s injuries non-minor; and,
• The Assessor failed to provide legally sufficient reasoning for why the surgery did not cause the plaintiff’s injuries to be non-minor.

The insurer argued contended the grounds of review advanced by the plaintiff represented an entirely new, and different, case, to that presented to the Medical Assessor whose decision the plaintiff sought to impugn. The insurer submitted that this, of itself, justified the Court refusing the plaintiff the relief sought. 

Chen J accepted the insurer’s submission and rejected all the plaintiff’s grounds for review and ordered the summons to be dismissed.

However, and helpfully, his Honour also made some observations about the merits of the plaintiff’s arguments, which provide assistance and guidance.

Consequential Injury

Chen J did not accept the argument that just because the ‘surgery was caused by the accident’, it followed that the surgery was ‘in the nature of a consequential injury.’

Chen J observed that, ordinarily, an accident-related injury creates a need for treatment, but said that treatment is not an ‘injury’, nor a ‘consequential injury’. 

His Honour stated (at paragraph [110]):

‘There is not, as seems to be suggested, a presumption of sorts that a minor injury becomes a non-minor injury merely because there is some form of surgery.’

Chen J noted that, in any event, the plaintiff had never advanced such a case to the Assessor, so it was not open to the plaintiff to recast the case at the review stage.

Procedural Fairness – A Failure to Exercise Jurisdiction

The plaintiff argued the Assessor did not deal in passing or in substance with the plaintiff’s case, given the Medical Assessor found the surgery was caused by the accident.

Chen J rejected this submission, saying ‘a constructive failure to exercise jurisdiction arises where the decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter‘.

In this case there was no consequential injury argument advanced to the initial Assessor, so there could not possibly be a failure of any kind to deal with such an argument, when the argument was not made to the Assessor in the first place.

Legally Sufficient Reasons – Context Required

Chen J considered that when there is a complaint about the adequacy of a Medical Assessor’s reasons, any evaluation of them must have regard to the context. In this case, his Honour considered the Medical Assessor’s reasons, and the path of reasoning, was clear and legally sufficient having regard to the arguments which had actually put to him by the plaintiff.

Practical Application

This judgement provides helpful guidance when assessing threshold injuries or responding to review applications. The key points to consider are:

• The mere fact that surgery is required after a motor vehicle accident does not, of itself, make the injury a non-minor (or non-threshold) injury
• Any evaluation of the adequacy and correctness of an Assessor’s reasons is necessarily context dependent
• Parties have to advance arguments at the initial Medical Assessment stage in order to complain about how the decision  smaker has dealt with those arguments on review or in a subsequent administrative law challenge.

Further information/assistance regarding the issues raised in this article are available from the authors Rohan Reddy, Senior Associate, Katherine Hickey, Lawyer or your usual contact at Moray & Agnew.