Dominice v Allianz Insurance [2016] NSWSC 1241

Background

The plaintiff [claimant] filed a summons in the Supreme Court seeking a declaration setting aside the Proper officer’s decision to allow a review of Assessor Ashwell’s Medcal Assessment Service (MAS) certificate.

Assessor Ashwell assessed the claimant to have significantly restricted range of movement of the shoulders approximately 10 months after Dr Kenna (insurer’s expert) found no restriction of movement. Despite Assessor Ashwell being “at a loss to explain why the shoulder movement has now decreased by such an amount” he never put the inconsistency to the claimant in accordance with clauses 1.42 and 1.43 of the Permanent Impairment Guidelines.

Clause 1.43 in states:

“Where there are inconsistencies between the assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies should be brought to the claimant’s attention… The claimant will then have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”

The insurer applied for review of the Certificate pursuant to section 63 of the Motor Accidents Compensation Act 1999 inter alia relying on clause 1.43. The Proper Officer allowed the review.

The Review panel ultimately found that injury to the shoulders was not caused by the subject accident.

Hearing

The summons alleged among other thingsthat the failure of the Assessor to put to the claimant the inconsistent findings in accordance with clause 1.43 of the Guidelines was an irrelevant consideration for the purposes of the medical assessment as the fundamental purpose of that clause is to only afford procedural fairness to the claimant.

Justice Fagan rejected that submission. He said at [13]:

“I consider that cl 1.43 has at least the purposes of affording procedural fairness to both parties, the claimant and the insurer, and of achieving accuracy in assessment. I make this construction directly from the language used in the paragraph. It contains no restriction of purpose to the protection of the complainant only. The language is wide enough to permit that it might be invoked in the interests of either party.

His Honour noted that clause 1.43 had only been invoked on behalf of the claimant in all of the cases brought to his attention during the hearing, but considered that is simply because it would usually be the claimant who would benefit from its application [at 15]:

“But there may also be cases, and I consider this to be one of them, where the assessor’s certificate may possibly overstate the measure of impairment if inconsistent findings have not been resolved by the assessor’s own analysis of them, yet he or she proceeds to certify a significant level of impairment without the complainant having been asked to explain. In such a case there could be, on that account, “reasonable cause to suspect that the medical assessment was incorrect in a material respect” – in the words of s 63(3).”

Decision

His Honour dismissed the Summons and ordered the claimant pay the insurer’s costs.

Implications

This case highlights the importance of clauses 1.42 and 1.43 of the Permanent Impairment Guidelines in ensuring, plausibility, accuracy and procedural fairness for both parties in MAS assessments. Consideration should always be given to whether a MAS Assessor has properly considered all the information before him or her, identified any inconsistencies, put them to the claimant and then provided an adequate analysis using his or her clinical skill and judgment to resolve the inconsistencies. If there are any deficiencies in this process, consideration should be given to applying for a review under section 63 of the Motor Accidents Compensation Act 1999.