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The duty of Medical Assessors and Review Panels to ensure procedural fairness.

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Introduction

Claimants and insurers alike may utilise section 7.26 of the Motor Accident Injuries Act 2017 (‘the Act‘) to refer a medical assessment decision to a panel for review. During such a review, a medical panel has a duty to not only respond to arguments put forward in submissions, but also provide detailed reasoning for their final determinations regarding specific alleged injuries that are under review. While these duties are not specified within the Act, the Supreme Court of New South Wales provided guidance in Chahrouk v Allianz Australia Insurance Limited.

Author: Roni Aloe
Judgment date:
10th November 2021
Citation:
Chahrouk v Allianz Australia Insurance Limited
Jurisdiction:
Supreme Court, Harrison AsJ

Principles

In the exercise of its obligations under section 7.26 of the Act to review medical assessment decisions, a Medical Review Panel must not deny procedural fairness by:

  1. failing to respond to substantial and clearly articulated arguments within submissions, or
  2. failing to provide adequate reasoning when making determinations in response to submissions.

Background

On 14 July 2018 the plaintiff, a taxi driver, was injured in a motor accident. He lodged a claim for damages against the Insurer claiming that he had sustained injuries to his neck, left and right shoulder, and lower back as well as suffering post-traumatic stress disorder. The injury to the right shoulder comprised a Superior Labrum Anterior to Posterior Tear (”SLAP Tear”) which was a major point of contention between the parties.

The insurer decided that the plaintiff’s injuries were minor injuries for the purposes of the Act and this decision was affirmed on Internal Review. A dispute was, in turn, referred to the Dispute Resolution Service (as it was then known), and this was allocated to a Medical Assessor.

It was decided by the Medical Assessor that the injuries were soft tissue injuries which were not causally linked to the accident. Pursuant to section 7.26 of the Act, the plaintiff lodged an application to review the Medical Assessor’s certificate. The application was lodged on the basis that the certificate produced by the Medical Assessor contained several material errors. This application was ultimately accepted for referral to a Review Panel.

Upon reviewing the matter, the Review Panel issued a review certificate pursuant to section 7.23 of the Act finding that the Medical Assessor was incorrect as the injury to the right shoulder was in fact causally linked to the subject accident. It also certified however that the injury was a “Minor Injury” pursuant to section 1.6 of the Act. Among other things, the Review Panel explained that there are many studies that demonstrate the imaging findings in the shoulder are commonly present in asymptomatic people. It found that the imaging was consistent with degenerative change and not caused by the accident, emphasising that had a tendon rupture occurred in the crash, there would have been immediate pain requiring urgent medical attention.

The plaintiff applied to the Supreme Court for judicial review of the decision made by the Medical Review Panel on several grounds, including failing to respond to arguments, failing to provide reasons, relying on extraneous material, and failing to enquire.

Decision

Failing to respond to arguments and provide reasons

Justice Harrison observed that the right shoulder injury included a SLAP tear which is a cartilage injury that is distinct from a tendon injury. She concluded that the Review Panel failed to adequately distinguish between the SLAP tear and a rupture. Having found that the former was caused by the accident, the Review Panel failed to refer to it in its path of reasoning that arrived at the conclusion that the injury to the shoulder was degenerative and thus a minor injury. The plaintiff had made a substantial and clearly articulated argument on this issue. The Review Panel’s failure to respond to that argument demonstrated error.

Reliance on extraneous material

The parties agreed that there is a permissible spectrum of reliance on and use of extrinsic material. The court emphasized that an expert tribunal is entitled to draw upon its expertise in making a determination, and resort to professional literature forms part of that expertise. However, this is not immune from the relevant principles of law requiring disclosure and a request for comment or submission as an aspect of procedural fairness. It was argued that the Review Panel failed to notify the parties of its intention to rely on “many studies”, explain what those studies were, and invite comment. However, the court concluded that the reference to “many studies” was simply an expression of what is commonly known medical knowledge and there was no obligation to list the individual studies in their decision. There was no denial of procedural fairness, nor a failure to give reasons.

Failing to enquire

The plaintiff complained that the Review Panel failed to enquire as to precisely when he felt the onset of pain, and that they did not draw to his attention that this was a critical factor. The court observed that the Review Panel accepted that the plaintiff complained of right shoulder pain within 2 days of the accident. It was obliged to ask about the circumstances of the accident, the plaintiff’s immediate symptoms and the treatment undertaken. It did these things. It was not obliged to identify to the plaintiff which parts of his history would be critical to its consideration, and which would not.

The first mentioned ground having been upheld; the decision of the Review Panel was set aside.

Why this case is important

The obligation for procedural fairness imposes a positive duty on Medical Assessors and Review Panels to ensure that their decisions include a detailed line of reasoning which acknowledges and responds to all substantial and clearly articulated arguments put forward. When considering the existence of error, parties should ask themselves whether an argument that is critical to the outcome was responded to and answered with a sound path of reasoning.

Decision makers are entitled to draw on their expertise but must give the parties an opportunity to be heard if relying on specific studies or material that may be significant in informing their conclusions. However, a failure to afford procedural fairness is unlikely to arise where there is a mere reference to a reliance on “many studies”.

Contributors

Roni Aloe
Law Graduate

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