How late is too late? – Does a significant delay in the issuing of a Certificate render it invalid?

Key principles

• A Review Panel is not, when evaluating the medical records before them, assessing past impairment at the time when the documents were prepared or anticipating any future impairment which may arise. Rather, the focus of the Panel must be to evaluate the historical records for the purposes of assessing a Claimant’s current impairment.
• The Medical Assessment Guidelines and Permanent Impairment Guidelines, although expressed in mandatory form, are aspirational and the mere failure to comply with a guideline will not render a later step, such as the issuing of a Certificate, invalid.
• The application of the Guidelines and the AMA4 Guides is a matter for Medical Assessors and not the Court.

Background

The Supreme Court handed down its decision Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099 on 29 August 2024.

The Claimant sought judicial review of a Review Panel’s determination of 7% whole person impairment (WPI) in respect of the Claimant’s physical injuries.

The Claimant was injured in a motor vehicle accident on 17 April 2017. In December 2021, she was assessed by two PIC Medical Assessors above the threshold (20%) for musculoskeletal injuries and a respiratory/sleep disorder.

On application for review by the Insurer, a Review Panel assessed the Claimant on 17 August 2022 and 4 November 2022. However, the Review Panel did not issue its two Certificates until January 2024, more than one year after assessing the Claimant.

The Review Panel concluded there was no respiratory impairment and assessed the Claimant’s musculoskeletal injuries at 7% WPI, below the threshold.

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

1. In respect of the sleep disorder Certificate:
   1. Through the 14-month delay between its re-examination of the Claimant and the issuing of its Certificate, the Panel failed to assess the Claimant’s impairment “as it is at the time of the assessment”, as required under clause 1.21 of the Permanent Impairment Guidelines (‘the Guidelines’).
   2. The Panel failed to afford the Claimant procedural fairness due to the excessive delay; and
   3. The Panel erred in its conclusion that clause 1.38 of the Guidelines precluded it from identifying a sleep disorder as a secondary injury.
2. In respect of the physical injuries Certificate:
   1. Through the 17-month delay between its re-examination of the Claimant and the issuing of its Certificate, the Panel failed to assess the Claimant’s impairment “as it is at the time of the assessment”, as required under clause 1.21 of the Guidelines;
   2. Alternatively, the 17-month delay constituted a breach of clauses 16.22 and 16.24 of the Medical Assessment Guidelines (“MAG”); and
   3. The Panel failed to afford the Claimant procedural fairness due to the excessive delay.

Supreme Court reasons

Acting Justice Basten rejected all the Claimant’s grounds for review.

Grounds 1(a) and 2(a)

Acting Justice Basten observed that clause 1.21 of the Guidelines does not refer to any time limit between the date of a medical examination and the date on which a Certificate is issued. Rather, it refers to the need to assess current, rather than past or future, impairment.

His Honour concluded the Review Panel, in its Certificate, clearly directed its assessment to the Claimant’s degree of impairment at the time of re-examination. This is because the Claimant did not draw to the Panel’s attention, during the period of more than one year whilst the Panel’s decision was pending, any material deterioration in her condition or injuries.

Ground 2(b)

His Honour accepted that whilst the Claimant’s application was a “pending” and “unheard” application on the day the Commission was established, upon the issuing of the original WPI Certificates in December 2021, the application transformed into and satisfied the definition of a “completed pre-establishment proceeding” under the Personal Injury Commission Act 2020 (PIC Act). This means, the new PIC Rules governed the review and the MAG did not apply to the proceedings before the Review Panel.

His Honour highlighted, even if the temporal limits of MAG did apply, there was no error because those limits are merely aspirational and a failure to comply with it does not render any later step invalid.

Grounds 1(b) and 2(c)

Acting Justice Basten considered the reasons provided by the Review Panel and concluded there was no procedural unfairness to the Claimant because the Certificate was very detailed and reported on every aspect of the review, including the history of the original medical examination, the parties’ submissions and the re-examination conducted by the Medical Assessor.

His Honour accepted, given the clear, comprehensive and logical reasons provided by the Panel and the specific observations it referred to, such as the measurements recorded by the Assessor on re-examination, the Certificate was prepared contemporaneously and the Panel’s capacity to assess the Claimant’s impairment was not reduced, despite the delay.

Ground 1(c)

His Honour accepted the Panel was entitled to adopt the approach it did when assessing the Claimant’s sleep disorder under clause 1.38 of the Guidelines. This is because the body part or system referred to for assessment was “respiratory”. Therefore, once the Panel was satisfied there was no impairment of the respiratory system, the Claimant was not entitled to any degree of impairment related to that system.

His Honour commented that a manifestly unreasonable reading of the AMA4 Guides or a refusal to apply them, would be reviewable. Anything short of that, including the construction and application of the Guidelines and the AMA4 Guides, are matters for Medical Assessors and not the Courts.

Acting Justice Basten refused the Claimant’s application for judicial review with an order for costs.

Why this case is important

The decision in Bucca highlights, for cases falling under MACA, any temporal limits referred to in the Medical Assessment Guidelines and Permanent Impairment Guidelines are aspirational and the mere delay or failure to comply with those limits does not render a later step, such as the issuing of a Certificate significantly after the assessment took place, invalid. Other factors need to be considered, such as the reasons contained within the Certificate itself and whether any further submissions made during the period of the delay were considered by an Assessor prior to issuing their Certificate.

Further, the case underscores the important and distinct role Medical Assessors have in the application of the Guidelines and the AMA4 Guides when assessing whole person impairment.

Although this case primarily relates to the Medical Assessment Guidelines and the Permanent Impairment Guidelines, the same principles apply equally to the Motor Accident Guidelines for MAIA cases.