Insurance Australia Ltd v Clewley – [2015] NSWSC 1805

On 15 February 2016 the Supreme Court upheld an administrative law challenge made by IAL to a decision of the Proper Officer of the Medical Assessment Service not to refer a matter for further assessment.

The operative MAS certificate was a certificate of the MAS review panel issued on 12 February 2015 after an examination on 2 December 2014. The certificate assessed Mr Clewley’s whole person impairment at 12% – 5% relating to the cervical spine and 7% to the left shoulder.

In the words of the Court:

“Only the injury to the cervical spine and alleged symptoms in his left arm are significant for the purposes of these proceedings. The claimant says that the cervical spinal injury has caused dystonia (meaning spasm or abnormal contraction) in the muscles of the left side of his neck, leading to torticollis (an irresistible turning of the head resulting in it being held persistently to the left side).”

The MAS review panel had material before it including (relevantly) specialist reports of Dr Day and Dr Steel (neurosurgeons) and of Dr Fung, Dr Tisch and Dr Fearnside (neurologists), as well as reports of AHC Investigations and footage obtained by them on 15 April 2011, 23 July 2012 and 16 January 2013 which MAS review panel’s certificate described as showing:

“[Mr Clewley] carrying out normal activities with no evidence of reduced neck movements or torticollis. He reported that due to his appearance during periods of torticollis he did not go out and that the video surveillance had obviously been carried out during periods of muscle relaxation when he did go out”.

Also before the MAS review panel was a summary of footage taken on 9 May 2012, but not the footage itself from that date. The panel requested the footage, but it was not forthcoming, probably because IAL did not obtain a copy until 3 June 20151. The footage was not commissioned by IAL but by AXA claims, in relation to a separate claim by Mr Clewley.

Reports of Professor Spira dated 12 November 2012, 4 April 2013 and 19 December 2013 were in existence, and the last mentioned of these reports had commented on footage other than the 9 May 2012 footage.

Judge Fagan went on to recount that:

“After noting that there had “been a degree of disagreement over the cause of the ongoing intermittent left torticollis”, the MAS review panel cited in a summary way the opinions of Drs Fung and Fearnside (that the claimant’s dystonia was psychogenic) and of Dr Tisch who described it as “post-traumatic cervical dystonia with occasional short-term remissions”. “Psychogenic” means “of psychic origin, or dependent on psychic conditions or processes, as a mental disorder”. If this was the nature of Mr Clewley’s dystonia it might be difficult to see how it could have been caused by a motor accident. The panel however reached the following conclusions:

“The panel noted that Mr Clewley did have intermittent episodes of remission from his left cervical dystonia but believed that this was only a short term improvement and that his underlying condition would now be considered as permanent for assessment.

The panel had extensive discussions concerning the diagnosis and believed that post-traumatic cervical dystonia was the preferred diagnosis. It noted that there were a number of inconsistencies in history, surveillance findings and physical presentation which could point to a psychogenic component in the condition but the panel could not rule out an underlying organic condition.”

Once IAL obtained the footage dated 9 May 2012, it applied to the Proper Officer of MAS on 16 July 2015 for further assessment under s 62 of the Motor Accidents Compensation Act 1999 (NSW) (Act) on the basis of “additional relevant material”, being the digital footage of Mr Clewley taken on 9 May 2012; and a report of Professor Spira dated 12 June 2015 which included a comment on it.

The Proper Officer’s reasons for refusing the application for further assessment referred to the decision of Davies J in Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 (at 35) which indicated:

“It seems to me that if material before the Assessor has expressed an opinion that particular injuries were caused by the accident, the fact that another expert says the same thing but using different or greater analysis will not mean the information is additional. This is because there was an opinion to that effect before the Assessor which, on the face of the Assessor’s report, was considered…”.

The Proper Officer then noted the applicant’s submission that the surveillance film was described as being of greater ‘impact’ than the surveillance report alone, and commented:

“This strongly suggests that the film is saying ‘the same thing but using different or greater analysis’ as described in Alavanja. The Medical Review Panel, at the time of issuing its certificate, was aware that the issue of inconsistency had been raised by the insurer. On pages 7 and 8 of the certificate, the Medical Review Panel provided a list of some of the inconsistencies dating from December 2010 to June 2014. This included an entry in relation to the claimant’s activities on 9 May 2012. Therefore the Medical Review Panel was aware of, and considered, the inconsistency in the claimant’s presentation. The same may be said of the further report of Prof Spira which is enclosed in the application for further assessment. In the applicant’s submissions it is noted that Prof Spira’s conclusion that there was no diagnosis and no impairment on the basis that the Claimant was ‘simulating disability’ was the conclusion in his previous report ‘which was before the Medical Review Panel’ (page 5). The Medical Review Panel had therefore already considered this opinion. Considering Alavanja, I am not satisfied that it is additional relevant information.”

Judge Fagan noted that, as held in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 per Basten JA at [36], the Court will examine only the manner in which the Proper Officer arrived at a conclusion, in order to determine whether the opinion has been properly formed according to law.

His Honour found that the Proper Officer erred in applying the passage quoted from the judgment of Davies J in Alavanja, which was concerned with expert medical opinions, to the surveillance DVD of 9 May 2012, noting that the typed description of the surveillance agent’s observations made at the time the film was recorded was an accurate shorthand version of what was shown on the footage (the claimant driving to pick up a piece of furniture), but was a wholly inadequate description of those aspects of Mr Clewley’s movements on that day which would be relevant to the veracity of his reportage of symptoms, and he inferred that the Proper Officer had not viewed the footage.

His Honour went on the find that:

“In para 4 of the proper officer’s reasons he concluded that because the review panel was aware of some evidence of inconsistency between the claimant’s presentation to examining doctors and his conduct and physical functionality at times when he would not have expected to have been observed, therefore the panel were aware of the issue of inconsistency and an item of evidence which did no more than provide illustration or proof of the inconsistency would therefore not be “additional”. This is illogical and constitutes a failure of the proper officer to recognise that individual items of evidence, all going to the same issue, may each constitute discrete pieces of “information” within the meaning of s 62 and therefore may be “additional” if not previously presented to the panel. The proper officer’s reasoning is erroneous as a matter of law because he has conflated an issue (which was before the tribunal) with the items or body of evidence bearing upon that issue (one of which, the 9 May 2012 surveillance DVD, was not before the panel).”

In relation to the Proper Officer’s dismissal of Professor Spira’s 12 June 2015 report as not “additional”, His Honour found that the Proper Officer erred in limiting himself to consideration of the ultimate conclusion in each of Professor Spira’s reports.

Judge Fagan noted that:

“Professor Spira’s opinion of 12 June 2015 contains these significant elements:

  1. An opinion that comparison of the claimant’s posture and activities when he believes himself not to be observed with the symptoms he presents at medical examinations indicates feigning and simulation.
  2. A “considerable literature has developed … highlighting a controversy regarding [the] very existence” of “post-traumatic dystonia following peripheral injury”. The Professor cites and quotes from three research papers published in 2010 and 2011 tending to suggest that the purported disorder involves psychogenesis “or even deliberate display of combinations of symptoms”.
  3. Fluctuations in dystonia, as described by Mr Clewley and referred to by Dr Tisch as “spontaneous remissions” and as constituting “spasmodic torticollis”, are medically unheard of. In 44 years as a specialist neurologist Professor Spira has “never seen the variability within one day demonstrated by Mr Clewley and [he doubts] that Prof Tisch has either. Fluctuations over the range demonstrated by Mr Clewley are not just rare in cervical dystonias but are absolutely unique”.”

His Honour found that the Proper Officer failed to evaluate the second and third of those elements of the report which he described as “distinct, fresh pieces of information” and commented that:

“This involved erroneous conflation of the Professor’s ultimate conclusion with the information upon which he supported it. The conflation led to the proper officer not considering at all whether the two points of information referred to in [36] were “additional”.”

The significance of the decision is to highlight that the following can be additional relevant information:

  • Additional items of evidence which go to an issue already before MAS.
  • An expert opinion which comes to the same conclusion as another which is already before MAS, but which is based on additional information (in this case reference to research papers and clinical experience).