The Causation Obligation – PIC WPI Assessments: Allianz Australia Insurance Ltd v Salucci [2023] NSWSC 1593

Key principles

• Both a Medical Assessor and a Medical Review Panel must consider whether the injuries giving rise to permanent impairment were caused by the accident, even if causation is not a specific issue referred by the parties.
• Both a Medical Assessor and Medical Review Panel must provide adequate reasons to support its conclusions, with reference to the totality of the evidence, the parties’ submissions and the applicable guidelines.

Background

In Allianz Australia Insurance Ltd v Salucci [2023] NSWSC 1953, the matter before the Supreme Court was the Insurer’s application for judicial review of the Review Panel’s determination of 24% whole person impairment (WPI) in respect of the Claimant’s physical injuries.

The Claimant was injured in a motor vehicle accident in May 2017 (the subject accident). He was also involved in an earlier motor vehicle accident where he sustained a significant injury to his cervical spine.

In respect of the subject accident, the Claimant was assessed by a PIC Medical Assessor in 2022 below the threshold (5%). The PIC Medical Assessor accepted that only the Claimant’s thoracic spine, lumbar spine and left hip injuries were caused by the subject accident. The remainder of the injuries referred for assessment were found by the Assessor to be unrelated to this accident.

On application for review by the Claimant, a Review Panel concluded the Claimant suffered injuries to his thoracic spine, lumbar spine, left hip, cervical spine and right ulnar nerve and assessed whole person impairment at 24%. In coming to this conclusion, the Review Panel refrained from dealing with the issue of causation. The Panel formed the view that they had no power to consider causation because the only issue referred to them was the assessment of WPI and the parties did not place causation in dispute.

The Insurer sought judicial review of the Review Panel’s decision on the following grounds:

1. The Review Panel erred by misconceiving its statutory task under section 58(1)(d) the Motor Accidents Compensation Act 1999 (MACA) in only determining the Claimant’s permanent impairment, without determining causation.
2. The Review Panel failed to provide adequate reasons in support of its findings for the cervical spine and right elbow.

Supreme Court reasons

Acting Justice Schmidt accepted both of the Insurer’s grounds for review.

Ground One

The Review Panel relied on the comments of Button J in Insurance Australia Ltd Trading as NRMA Insurance v Brown [2019] NSWSC 1236 (‘Brown’) and Wright J in Wood v Insurance Australia Group Ltd trading as NRMA Insurance [2022] NSWSC 1290 to support their approach of refraining from determining the issue of causation.

Acting Justice Schmidt highlighted that Section 58(1)(d) of MACA concerns not only the question of the degree of permanent impairment resulting from the Claimant’s injuries but also whether those injuries were caused by the accident.

Her Honour confirmed that it was explained by the Court in Brown that, even in a case where the parties are not in dispute about causation, it has to be considered in the assessment of permanent impairment. Furthermore, Button J also observed in Brown that the ‘applicable guidelines provide a complex, prescriptive mechanism as to how both an Assessor and a Panel are to determine a question of causation.’

However, in the present case, Her Honour noted the parties had in fact provided submissions relating to the original PIC medical Assessor’s conclusions about causation which were before the Review Panel. Based on those submissions, the issue of causation was clearly a live issue which should have been addressed by the Review Panel in accordance with the applicable guidelines. By failing to do so, the Review Panel misunderstood the law and erred in its approach.

Ground Two

Acting Justice Schmidt J accepted the reasons given by the Review Panel in support of their findings regarding the impairment in the cervical spine, radiculopathy and right arm were inadequate. This is because the Panel failed to:

1. review and evaluate relevant medical evidence and medico-legal reports in their Certificate and explain how these reports influenced their conclusions,
2. refer to the requirements of radiculopathy, under the applicable guidelines, and explain what conclusions was reached about them, and
3. explain how the sensory disturbance observed in the Claimant’s cervical spine was an impairment caused by the accident.

The Insurer’s review application was remitted back to the President for determination.

Key Learnings

The decision in Allianz Australia Insurance Ltd v Salucci confirms that a Review Panel, as part of its statutory task under section 58(1)(d) of MACA, must consider the issue of causation when assessing whole person impairment, having regard to the applicable guidelines.

The Panel must conduct “a fresh” assessment, which requires not only conducting their own assessment and formulating their own clinical findings but also consideration of the arguments advanced by each parties in the submissions before them and relevant medical evidence and medico-legal reports. The reasons provided by the Review Panel must reflect these considerations and refer to applicable guidelines to support their conclusions.

Importantly, whilst the decision in Salucci examined a Medical Assessor’s obligations under section s 58(1)(d) of MACA, the principles apply equally to claims under the Motor Accident Injuries Act 2017 (MAIA).  The equivalent provision in MAIA – which is found in clause 2(a) of Schedule 2 – is relevantly the same and, in particular, calls for an assessment of WPI resulting from injuries “caused by the motor accident”.