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The Proper Officer must be careful not to exercise judgment at the expense of applying statutory criteria

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Author: Laurette Rizk

Judgment date: 6 October 2021

Citation: Oeding-Erdel v Allianz Australia Limited [2021] NSWSC 1264

Jurisdiction: Supreme Court of New South Wales, McCallum JA

Can the Proper Officer of SIRA lawfully determine applications for review of medical assessments based on their merits? The Supreme Court of NSW provides the answer in Oeding-Erdel v Allianz Australia Limited.

 

Principles

The Proper Officer is required to apply statutory criteria, and that criteria only, when determining applications. A Proper Officer cannot use their own judgment or interpretation of evidence as the basis for their decisions.

Background

Ms Oeding-Erdel (“the Claimant”) claimed to have suffered physical and psychological injuries in a motor vehicle accident in 2016.

A dispute arose as to whether the Claimant’s physical injuries yielded a whole person impairment greater than 10%. The Claimant attempted to challenge the Medical Assessor’s Certificate. She then applied for further medical assessment of an unassessed TMJ injury.

The Claimant sought judicial review of the following decisions:

1. The Proper Officer’s dismissal of a review application concerning the Medical Assessor’s determination of whole person impairment (neck and spine only).

2. The Proper Officer’s dismissal of an application for further medical assessment relating to the TMJ injury, which was not assessed in the first application.

3. The Proper Officer’s dismissal, without reasons, of a request for the claims assessor to refer the dispute regarding the TMJ injury for further assessment.

The Insurer conceded that the second and third decisions should be set aside.

The first decision is of central importance. The Proper Officer had dismissed the review application, having examined the Certificate from a medical perspective. The Proper Officer’s reasoning included her own interpretation of the evidence and the radiological imaging reviewed by the Assessor.

The Claimant asserted that the Proper Officer had misconstrued her statutory function in dismissing the application. Her primary argument was that the Proper Officer did not engage with whether there was a “reasonable cause to suspect” that the Certificate was “incorrect in a material respect“. It was alleged that the Proper Officer did not ask that precise question, as stipulated by s 63 of the Act.

Decision

McCallum JA found that the Proper Officer unlawfully determined the application on the merits. Therefore, the Proper Officer did not act within the scope of her statutory function.

At [36] of the Judgment, her Honour stated:

“She clearly determined the application on the basis of a view as to the substance of the grounds raised. That required the medical expertise she did not possess in order to arrive at conclusions she was not authorised to draw. Her conclusions plainly related to the correctness of the Assessor’s decision rather than the question whether there was “reasonable cause to suspect that the medical assessment was incorrect in a material respect” (emphasis added).

The Court emphasised that the Proper Officer is not permitted to apply medical judgment. The application of medical judgment requires expertise that is a “clear overreach” of the Proper Officer’s role.

Final result

The Supreme Court set aside all the Proper Officer’s decisions.

The matter was remitted to the Personal Injury Commission to be re-determined.

Why is the case important?

This case serves as a reminder that when considering applications for review of medical assessments, the Proper Officer is strictly bound by s63 of MACA (or in the case of applications under MAIA, s7.26) which is whether there is “reasonable cause to suspect” that the Certificate was “incorrect in a material respect“. The decision may be set aside if instead it is based on a review of the merits of the application itself.

Contributors

Laurette Rizk
Lawyer

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