Supreme Court New South Wales

• Medium Neutral Citation: Goodwin v Motor Accidents Authority of New South Wales [2014] NSWSC 40
• Hearing dates: 10 December 2013
• Decision date: 12 February 2014
• Before: Bellew J

Decision

1.The decisions of the second defendant of 6 June 2013:

(a)refusing the plaintiff's application for correction of the Certificate issued by Assessor David Johnson on 2 April 2013; and

(b)referring the assessment made by Assessor David Johnson to a Medical Review Panel pursuant to s. 63 of the Motor Accidents Compensation Act 1999

are each set aside;

2.The matters are remitted to the first defendant to be dealt with according to law.

3.The third defendant is to pay the plaintiff's costs.

• Catchwords: ADMINISTRATIVE LAW - judicial review- where plaintiff injured in a motor vehicle accident - where her injuries assessed by medical assessor - where assessor issued certificate containing error - where application made to for referral of assessment to review panel on the basis of the assessment having been incorrect in a material respect - where simultaneous application to correct the error in the certificate - whether approach adopted by decision maker in respect of either application was erroneous in law
• Legislation Cited: Motor Accidents Compensation Act 1999 NSW
• Cases Cited: Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266; [2006] NSWSC 1090; (2006) 47 MVR 74; Craig v The State of South Australia (1995) 184 CLR 163; Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253; (2010) 56 MVR 453
• Category: Principal judgment
• Parties: Rebecca Ann Goodwin - Plaintiff; Motor Accidents Authority of New South Wales - First defendant; Proper Officer Motor Accidents Authority of New South Wales - Second defendant; Insurance Australia Group Limited trading as NRMA Insurance - Third defendant
• Representation: Counsel: S W Gibb SC and A L McSpedden - Plaintiff; M A Robinson SC and Olivia Dinkha - Third defendant; Solicitors: Napier Keen - Plaintiff; Gillis Delaney Lawyers - Third defendant
• File Number(s): 2013 / 217024
• Publication restriction: Nil

Judgment

INTRODUCTION

1 By summons filed on 17 July 2013 the plaintiff seeks judicial review of two decisions of the second defendant. Those decisions arise out of a claim made by the plaintiff pursuant to the Motor Accidents Compensation Act 1999 NSW ("the Act"). The summons is supported by an affidavit of Wayne Gregory Keen of 31 July 2013 which was read without objection.

2 The first and second defendants have each filed a submitting appearance, save as to costs. The relief sought by the plaintiff is opposed by the third defendant.

THE FACTS

3 The facts giving rise to the application are not in dispute. I draw the following summary of those facts from the affidavit of Mr Keen.

4 The plaintiff was involved in a motor vehicle accident on 12 November 2011. She alleges that on that day, the vehicle she was driving was involved in a collision with another vehicle, as a consequence of which she suffered a number of injuries, both physical and psychological. The third defendant is the Compulsory Third Party Insurer of that other vehicle.

5 On 22 February 2013 the first defendant arranged for the plaintiff to undergo a medical assessment by Dr David Johnson ("the assessor") in relation to her injuries. A letter confirming that assessment stated (inter alia) as follows:

"This medical dispute has been referred to you to certify:

• The list of the injuries referred and whether they were each found to have been caused by the accident.

• The degree of permanent impairment of the injured person as a result of each of those injuries referred that were found to be caused.

• Whether the degree of permanent impairment of the injured person as a result of those injuries referred that were found to be caused, is greater than 10 percent" (emphasis in original).

6 The letter set out seven separate injuries to be assessed, the third of which was described as:

"Right shoulder - soft tissue injury"

7 It is the assessment of the injury to the plaintiff's right shoulder which is relevant for present purposes.

8 The plaintiff's injuries were assessed on 25 March 2013. On 2 April 2013 the assessor issued a certificate pursuant to Part 3.4 of the Act which stated (inter alia) the following:

"The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10 %

• Cervical spine - soft tissue injury

• Thoracic spine - soft tissue injury

• Right shoulder - soft tissue injury

• Chest - soft tissue injury"

9 The certificate was accompanied by a statement of reasons which included the following at p. 7-8:

UPPER EXTREMITY

Examination of the left shoulder was normal.

The right shoulder was mildly tender over the rotator cuff anterolaterally and there was a positive impingement sign. Stressing of the rotator cuff of the right shoulder caused discomfort. There was a restricted range of motion with pain in the right shoulder, measured with a goniometer:

Shoulder movements	Active ROM Measured Right	Active ROM measured Left
Flexion	140º	180º
Extension	60º	70º
Adduction	30º	45º
Abduction	120º	180º
Internal rotation	60º	90º
External rotation	50º	90º

10 It should be noted that on the copy of the assessor's reasons which was in evidence before me, handwritten numbers appeared beside each of the recorded measurements of the range of movement of the plaintiff's right shoulder. Each of those numbers corresponded to the level of Upper Extremity Impairment (discussed below) constituted by the range of movement in each case. Similar handwritten numbers appeared beside each of the recorded measurements of the range of movement of the left shoulder, but the injury to the left shoulder is not relevant for present purposes. Senior counsel for the plaintiff informed me during the course of the hearing that on his instructions, none of the handwritten numbers were on the document when it was originally received by his instructing solicitor. I accept that to be the case. There is no evidence which might establish how these notations came to be on the document, or who may have put them there.

11 In the course of his reasons, the assessor cited the "AMA Guides fourth edition". This was a reference to the fourth edition of the Guides to the Evaluation of Permanent Impairment issued by the American Medical Association ("the Guides"), by reference to which assessments of whole person impairment are made for the purposes of the Act. He also cited "UEI" which was a reference to "Upper Extremity Impairment". Under the Guides, the assessment of the level of UEI is used as the basis of calculating the degree of whole person impairment which is constituted by a shoulder injury.

12 As noted in [9] above, the assessor set out the ranges of movement which he found to be present in the plaintiff's right shoulder at the time of his assessment. Those ranges of movement are set out in column 2 in the table below. The application of the Guides (the relevant provisions of which are set out in column 3 in the table) to those ranges of movement produces the degree of UEI which appears in column 4:

Shoulder movements	Active ROM	Relevant Provision of the Guides	Percentage UEI
Flexion	140º	Table 38 p. 43	3%
Extension	60º	Table 38 p. 43	0%
Adduction	30º	Table 41 p. 44	1%
Abduction	120º	Table 41 p. 44	3%
Internal rotation	60º	Table 44 p. 45	2%
External rotation	50º	Table 44 p. 45	1%

13 The assessor did not set out, in his reasons, the separate UEI percentages which appear in column 4 above. However, there is no issue between the parties that the application of the relevant provisions of the Guides to the ranges of movement of the plaintiff's right shoulder which were found by the assessor at the time of the assessment, give rise to a total UEI of 10%. The application of the provisions of Table 3 on page 20 of the Guides to a UEI of 10% leads to a whole person impairment of 6% arising out of the injury to the plaintiff's right shoulder.

14 However, at pp. 14 and 15 of his reasons the Assessor (in reference to the plaintiff's right shoulder injury) stated the applicable UEI to be 11%. That was not consistent with the application of the Guides to what he found to be the ranges of movement in the plaintiff's right shoulder, and which were set out in the table at p. 8 of his reasons. Further, the application of the Guides to a UEI of 11% leads to a whole person impairment (arising from the shoulder injury) of 7%. In circumstances where the assessor also concluded that the injury to the plaintiff's cervicothoracic spine gave rise to a whole person impairment of 5%, the plaintiff's total whole person impairment was assessed at 12%.

THE APPLICATION FOR REVIEW OF THE ASSESMENT

15 On 7 May 2013 the third defendant made an application to the Proper Officer (the second defendant) pursuant to s. 63 of the Act, for a review of the assessment. The submissions made in support of that application included the following:

"The insurer submits that the assessor has significantly erred in awarding 7% whole person impairment for the right shoulder at page 15, under the heading "Degree of Permanent Whole Person Impairment" The insurer submits that Assessor Johnson has incorrectly calculated right shoulder range of motion and therefore permanent impairment on the day of the assessment.

.....

When reviewed, it is clear that the ranges of motion recorded at page 8 significantly differ to assessor Johnson's determination at page 14. Assessor Johnson's calculations at page 8 of his assessment report under the heading "Upper Extremity" suggests a lesser permanent impairment rating. Therefore given that assessor Johnson does not provide rationale and further workings for his calculations under the heading "Findings on Clinical Examination" or at any other point within the assessment report, this constitutes a 'material' rather than 'obvious' error.

In conclusion the insurer submits that it has provided the Proper Officer with a reasonable cause to suspect that the medical assessment of Ms Goodwin by assessor Johnson was incorrect in a material respect. The insurer submits that the Proper Officer is therefore obliged, under s. 63 of the Motor Accidents Act (sic) and the principles enclosed within Meeuwissen v Boden [2010] NSWCA 253, to refer the matter to the Review Panel for further consideration of these pertinent issues.

As outlined above, we believe the assessor has made an error material to the outcome of whole person impairment on the day of assessment."

16 The plaintiff's solicitor filed a reply to the third defendant's application on 10 May 2013, accompanied by submissions in response. Those submissions included the following:

"On page 8 of his report (the assessor) sets out the findings for the range of motion of the right shoulder at the top of the page. At page 14, 3rd paragraph down, he sets out that the range of motion for the right shoulder equates to 11% which, for upper body impairment, relates to 7% percent whole person impairment using table 3 on page 20 of AMA 4. The various findings for the range of motion total 10% not 11% as the Doctor has indicated and therefore the WPI readings for the right shoulder should be 6% rather 7% as the Doctor has indicated. That, in our submission, is an obvious error. It is simply a mathematical error in the calculation of the correct amount for WPI. It is not a material error as to the outcome of the assessment and nor is it an incorrect assessment. The combination of the permanent impairment guidelines and AMA 4 set out that shoulders have to be assessed on range of movement as one of the preferred methods for assessing impairment. Assessor Johnson has clearly done that and has set out his findings which can be found on page 8 of the report...On the basis that the finding for the right shoulder should have been 6% rather than 7%, with the combination of the neck injury at 5% the applicant still exceeds the WPI threshold. It is therefore not a case where the insurer is able to establish a material error under section 63 of the Act and in our submission therefore the application should be rejected. At the same time however, the obvious error should be corrected by the Doctor and a new certificate should issue.

Please construe our reply application as also an application to correct an obvious error in the assessor's report."

17 The final paragraph of those submissions was a reference to Chapter 17 of the Medical Assessment Guidelines ("the guidelines") which are referred to below.

THE DECISION OF THE PROPER OFFICER

18 By letter of 6 June 2013, the Proper Officer advised as follows:

"The Proper Officer has considered the application for review of the Medical Assessment in this matter and is satisfied that there is reasonable cause to suspect that the assessment is incorrect in a material respect. This application is accepted and will be referred to a Medical Review Panel".

19 The letter enclosed a statement of reasons, to which further reference is made below.

THE RELEVANT STATUTORY PROVISIONS

20 Section 61 of the Act deals with the status of medical assessments and requires (inter alia) an assessor to whom a medical dispute is referred to issue a certificate as to the matters referred for assessment. Section 61(11) provides:

"If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error."

21 Section 63 of the Act, pursuant to which the third defendant's application to the Proper Officer was made, is in the following terms:

63 Review of medical assessment by review panel

(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

(2A) If a medical assessment under this Part (a "combined certificate assessment") is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based.

(3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.

(4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

(5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review.

(6) Section 61 applies to any new certificate or new combined certificate issued under this section.

(7) The MAA Medical Guidelines may limit the time within which an application under this section may be made.

22 Chapter 16 of the guidelines includes the following provisions applicable to an application under s. 63:

Proper Officer Determination

16.11 The Proper Officer is to consider the application for review within 10 days of the due date for compliance with the requirements of clause 3.15.

16.12 The Proper Officer may only refer a matter to a Review Panel if satisfied of the factors set out in s. 63(3), that there is reasonable cause to suspect the assessment of the single Medical Assessor is incorrect in a material respect, having regard to any relevant information submitted including:

16.12.1 The review application, and any reply to it, and the particulars and any supporting information set out in those documents;

16.12.2 Any other applications and replies and / or MAS Certificates in relation to the same claimant, not limited to the same matter, after the parties have been provided with copies of these documents; and

16.12.3 The object of the Act and the object of MAS.

16.13 For the purposes of s. 63 the word "material" includes that it is relevant and capable of altering the outcome of a dispute about:

16.13.1 Reasonable and necessary treatment, from "not reasonable and necessary" to "reasonable and necessary" or vice-versa;

16.13.2 Related treatment from "not related" to "related" or vice-versa; or

16.12.3 Permanent impairment, from "not greater than 10 percent whole person impairment" to "greater than 10 percent whole person impairment" or vice-versa.

16.14 If the Proper Officer is not satisfied that there is reasonable cause to suspect the assessment of the single Medical Assessor is incorrect, in a material respect the Proper Officer may dismiss the application.

16.15 The Proper Officer shall advise the parties as to whether the application is accepted and will be referred to a Review Panel or is dismissed, supported by a brief statement of reasons, within 5 days of considering the application.

23 Chapter 17 of the guidelines deals with applications to correct a certificate issued by an assessor in a case where there is obvious error:

Division 5 - Corrections and costs

Chapter 17 - Corrections by Assessor

17.1 If a party to an assessment considers that an Assessor or Review Panel has made an obvious error in a certificate, that party may make an application to the Proper Officer to have the error corrected within 30 days after the date on which the certificate under either clause 13.3, 13.5, 13.9 or 16.24 was sent by MAS to the parties.

(Note: This period is different to the obvious error correction period at CARS, which is set at 21 calendar days after the CARS certificate of assessment was issued, which is timed to be consistent with the period for accepting a CARS assessment. Instead, this MAS obvious error correction period is timed to be generally consistent with the period of time for lodging a MAS review as set out in Chapter 16 of these Guidelines).

17.2 Any such application is to be made in writing, setting out details of the obvious error and the terms of the suggested correction.

17.3 The party making the application is to send a copy of the application to the other party.

17.4 Examples of obvious errors in the certificate include, but are not limited to:

17.4.1 a clerical or typographical error in the certificate;

17.4.2 an error arising from an accidental slip or omission;

17.4.3 a defect of form;

17.4.4 an obvious inconsistency between the certificate and the reasons explaining the certificate.

17.5 Within 5 days of receiving the application the Proper Officer shall acknowledge the application by writing to both parties, and the Proper Officer may seek any further submissions from the parties.

Proper Officer referral to Assessor

17.6 The Proper Officer shall consider the application within 10 days of acknowledging receipt of the application under clause 17.5 and, if satisfied that there may be an obvious error in the certificate, refer the matter back to the Assessor or Review Panel concerned. In considering whether or not there may be an obvious error in the certificate, the Proper Officer shall consider any submissions from the parties.

17.7 The Proper Officer shall within 5 days of making such a decision under clause 17.6:

17.7.1 write to the Assessor or Review Panel concerned, referring the matter back to them for consideration; and

17.7.2 write to the parties advising them of the Proper Officer's decision, providing brief reasons.

24 Clause 1.6.11 of the guidelines provides that the term "certificate" means:

"A certificate issued under section 61(1), including the reasons for any finding under section 61(9)".

THE ERRORS ASSERTED BY THE PLAINTIFF

25 The plaintiff submitted that the Proper Officer erred in two respects, namely:

(i) refusing the application for correction of the assessor's certificate ("the first error"); and

(ii) accepting the application for review and determining that there was reasonable cause to suspect that the assessment of the plaintiff's injuries was incorrect in a material respect ("the second error").

THE FIRST ERROR

26 The starting point of the submissions of senior counsel for the plaintiff was the Proper Officer's conclusion that in order to be obvious, it was necessary for the asserted error to be apparent on the face of the certificate, such that it could be corrected by reference to the certificate alone.

27 In short, senior counsel submitted that such conclusion reflected the fact that the Proper Officer had adopted an approach which was legally erroneous. The error, it was submitted, arose from the fact that such approach was generally inconsistent with the guidelines, and amounted to jurisdictional error, or error of law on the face of the record, because the Proper Officer had identified a wrong issue, or asked himself the wrong question.

28 Senior counsel for the defendant submitted that what the plaintiff in fact sought was a review on the merits, a course which was not permissible. He further submitted that in order to be "obvious", it was necessary for the error to be readily apparent, clear and not merely arguable, and that there was no such error in the present case. Finally, senior counsel submitted that even if such an error was made out, a person in the position of the Proper Officer should not be burdened with the task of having to recalculate that which was more appropriately within the domain of a qualified medical practitioner.

29 I accept that it is important not to blur the distinction between a merits review on the one hand, and judicial review on the other (see Kelly v Motor Accidents Authority of NSW [2006] NSWSC 1444; (2006) 46 MVR 553 at [59]). It is not my function, in determining the present application, to engage in a review of the merits of the Proper Officer's decision, nor is it my function to determine whether there was, in fact, an obvious error in the certificate. However in my view, the third defendant's attempted categorisation of the present application as a merits review fails to appreciate the true nature of the plaintiff's position. The plaintiff contends that in determining the application for correction of the certificate, the Proper Officer adopted an approach which was legally erroneous because he identified the wrong issue or asked himself the wrong question (see Craig v The State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]; 351. That position does not, in any way, reflect a merits review.

30 For the reasons that follow, I consider that the Proper Officer erred in the manner for which the plaintiff contends.

31 The Proper Officer, having concluded (in paragraph 10 of his reasons) that the assessor had miscalculated the total impairment related to the plaintiff's right shoulder injury, proceeded to find that this was not an obvious error. In particular, he said (at paragraph 11 of his reasons):

"...the respondent submits that this error should be considered an "obvious error" and be corrected accordingly. However, in accordance with the MAS Guidelines, an obvious error must be apparent on the face of the certificate".

32 He then went on to say:

"Correction of this error requires reference to the AMA 4 Guidelines and calculations to be made. As more than the certificate alone is required to confirm this error, the error cannot be considered an obvious error".

33 In my view, there are a number of difficulties arising from these conclusions.

34 Firstly, it is not clear what the assessor meant by his references to the "face of the certificate" or "the certificate alone". The certificate issued by the assessor certified (inter alia) that the plaintiff's injuries (which included her right shoulder injury) gave rise to a whole person impairment which was greater than 10%. Accompanying the certificate, and in fact incorporated in the same document, were the assessor's reasons. As I have noted, the guidelines define a "certificate" to include the reasons of the assessor. The Proper Officer's reference to "the certificate alone" leaves me to conclude that he drew some distinction between the certificate on the one hand, and the reasons of the assessor on the other. That approach was one which was not consistent with the definition of the term "certificate" as it appears in the guidelines.

35 The Proper Officer did not identify the particular provision(s) of the guidelines upon which he relied to conclude that in order to be obvious, an error must be apparent on the face of the certificate. I was not referred to any such provision(s) in the course of argument. Chapter 17 of the guidelines deals with applications for correction of certificates. In my view, there is nothing within that Chapter, nor within the guidelines as a whole, which would support the approach taken by the Proper Officer.

36 The reference, by the Proper Officer, to the necessity for the error to be apparent on the face of the certificate suggests that he may have had in mind the decision of Johnson J in Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266; (2006) 47 MVR 74; [2006] NSWSC 1090. In that case, his Honour was dealing with the meaning of the term "obvious error" in the context of s. 94(6) of the Act. Section 94(4) imposes an obligation upon a claims assessor to issue a certificate as to an assessment of a claim under the Act as soon as practicable after the assessment is made. Section 94(6) is in the following terms:

"If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error".

37 It will be apparent that s. 94(6) is directed not to errors in certificates of medical assessors, but to errors in certificates of claims assessors. It will also be apparent that in order to issue, or to approve of the issue, of a replacement certificate, the Principal Claims Assessor must be satisfied that the original certificate contains an obvious error. This may be compared with the provisions of Chapter 17 of the guidelines, which provides that the Proper Officer be satisfied that the certificate may contain such an error.

38 More importantly however, Johnson J observed (at [144]) that the proper construction of the term "obvious error" as it appeared in s. 94 required identification of its meaning in the relevant statutory context. It was in those circumstances that his Honour went on to observe that errors caught by that provision must be readily apparent on the face of the certificate and/or the accompanying statement of reasons. He concluded that the words of s. 94(6) confined the attention of the principal claims assessor to the certificate and/or accompanying reasons in order to determine if there was an obvious error.

39 In the present case, part of the relevant statutory context in which the meaning of the term "obvious error" is to be considered are the provisions of Chapter 17 of the guidelines. There is nothing within that Chapter which confines the attention of the Proper Officer to the certificate alone, as opposed to the accompanying reasons. In fact, the definition of the term "certificate" suggests the contrary.

40 Moreover, clause 17.4 of the guidelines cites examples (which are not exhaustive) of what may constitute an obvious error. Those examples include (at 17.4.4) where there is "an obvious inconsistency between the certificate and the reasons explaining the certificate". The guidelines therefore contemplate that in determining whether there may be an obvious error, the decision maker may go beyond the contents of the certificate itself, and consider the accompanying reasons. The Proper Officer's conclusion that an obvious error must be apparent on the face of the certificate reflected an approach which was at odds with the provisions of clause 17.4.4.

41 For these reasons, the first error is made out.

THE SECOND ERROR

42 It was submitted on behalf of the plaintiff that in the event that I were to find that the first error was made out, it would not be necessary to consider the second. However as the matter was fully argued, it is appropriate that it be considered.

43 Senior counsel for the plaintiff submitted, in effect, that the second error came about as the result of the Proper Officer addressing the wrong issue. He submitted that for the purposes of an application under s. 63, what must be incorrect in a material respect is the medical assessment, not the certificate which is issued as a consequence of that assessment. He submitted that in the present case there was nothing to suggest that there was any error in the actual assessment process, and that the error identified by the Proper Officer was an error in the calculation which resulted from that assessment. He submitted that this reflected the Proper Officer having placed emphasis upon the result of the assessment, rather than the process of assessment itself, and that such an approach was erroneous because it reflected the fact that the Proper Officer had identified the wrong issue, or asked himself the wrong question.

44 In summary, senior counsel for the third defendant again submitted that the plaintiff's application amounted to a review on the merits, and that no legal error was discernable. He further submitted that even if error were found, it was not of sufficient significance to warrant intervention by this court and that, in any event, there were other avenues open to the plaintiff pursuant to which it was open to her to challenge the medical assessment.

45 Senior counsel for the third defendant also submitted that inherent in the plaintiff's complaint, was the necessity to subject the reasons of the Proper Officer to detailed analysis and scrutiny. He submitted that such an approach was impermissible in a matter of this nature.

46 I have set out, in paragraph [9] above, that part of the assessor's reasons which relates to his examination of the plaintiff's right shoulder. Against that background, the Proper Officer reached the following conclusion (at paragraph 10 of his reasons):

"Accordingly, as submitted by the applicant, it would appear that the Assessor has miscalculated the total impairment related to the claimants right shoulder injury. While a difference of 1% may not change the present assessment from greater than 10% to not greater than 10%, it is nevertheless an error and the parties are entitled to an accurate assessment. As such, I am satisfied of reasonable cause to suspect a material error".

47 In Meeuwissen v Boden (2010) 78 NSWLR 143; 2010] NSWCA 253; (2010) 56 MVR 453, Basten JA (Beazley JA and Sackville AJA agreeing) identified (commencing at [19]) a number of matters which supported the conclusion that the phrase "in a material respect" as it is used in s. 63 refers to the process by which the relevant outcome is achieved. In particular, his Honour said:

"First, what must be incorrect in a material respect is the "medical assessment" and not the certificate which results from the assessment. The subject matter of a medical assessment is a "medical dispute": s. 63(1). A "medical dispute" is defined to mean "a disagreement about one of the matters (referred to as "medical assessment matters") set out in s. 58(1). These include whether the degree of permanent impairment is greater than 10%: s. 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s. 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error".

 

48 In determining the application under s. 63 in the present case, the Proper Officer was required to consider whether there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. The error identified by the Proper Officer, according to his reasons, was an error made by the assessor in the process of calculating the degree of whole person impairment. That calculation was based on the findings made on assessment. The nature of the error identified by the Proper Officer which led him to reach the conclusion set out in [46] above was one which went to the outcome, as opposed to the process, of assessment. There is nothing contained in the Proper Officer's reasons in which he identified any error in the process of the assessment itself.

49 In these circumstances the Proper Officer erred. In my view, that error is apparent on the face of the Proper Officer's reasons. Its identification is not dependent upon such reasons being subject to minute and detailed scrutiny.

50 For all of these reasons, the second error is also made out.

CONCLUSION

51 I make the following orders:

(1) The decisions of the second defendant of 6 June 2013:

(a) refusing the plaintiff's application for correction of the Certificate issued by Assessor David Johnson on 2 April 2013; and

(b) referring the assessment made by Assessor David Johnson to a Medical Review Panel pursuant to s. 63 of the Motor Accidents Compensation Act 1999

are each set aside.

(2) The matters are remitted to the first defendant to be dealt with according to law.

(3) The third defendant is to pay the plaintiff's costs.

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Decision last updated: 12 February 2014