The extent of the Proper Officer's obligation as the s 62 gatekeeper

Originally Published by Andrew Gorman and Bethany Mahler on Tuesday, March 9, 2021 12:55:44 PM

What is a Proper Officer required to consider when determining whether a further medical assessment should be allowed? The Court of Appeal of NSW provides the answer in AAMI v Chan.

 

Author: Bethany Mahler
Judgment date: 25 February 2021
Citation: AAI Ltd t/as AAMI v Chan [2021] NSWCA 19
Jurisdiction: Supreme Court of New South Wales – Court of Appeal¹

Principle

• The Proper Officer's role in respect of an application for further medical assessment is to apply the precise wording of the Act, including asking whether the additional information is capable of having a material effect on the outcome of the previous assessment. The role stops short of requiring a prediction that the altered outcome is more probable than not.

Background

Dr Chan claimed to have suffered injuries to his neck and right shoulder in a motor vehicle accident on 14 December 2014.

A dispute arose as to whether Dr Chan's injuries yielded a whole person impairment greater than 10%. The dispute was determined by a Medical Assessor however, the certificate was challenged by Dr Chan as the Medical Assessor found his right shoulder injury was not caused by the accident. A Review Panel constituted by the State Insurance Regulatory Authority (SIRA) provided a new certificate and reasoning. The Review Panel upheld the Medical Assessor's certificate, accepting the right shoulder injury was not a result of the accident.

Dr Chan then applied for a further medical assessment under section 62 of the Act, relying on new reports from his medical experts as constituting additional relevant information. The Proper Officer dismissed the application on the basis that the additional information was not capable of having a material effect on the outcome of the previous assessment because the causation arguments presented by the experts were not based on any new findings that had not already been considered by the Review Panel.

Dr Chan sought judicial review of the Proper Officer's decision on the basis there was jurisdictional errors and/or errors on the face of the record. The Primary Judge concluded the Proper Officer had posed the wrong question and improperly limited the scope of her inquiry.

The Insurer appealed to the Court of Appeal.

Decision

The Court allowed the appeal and reinstated the Proper Officer's decision because there was no error of law or jurisdictional error. The question for determination on the application for judicial review was not whether the opinion was right or wrong, but whether it had been properly formed, or else was vitiated by reviewable error. The Proper Officer had asked herself the precise question posed by s 62(1A), namely whether the new evidence was capable of having a material effect on the outcome of the previous assessment.

The Court explained at [24]:

"That is not a high bar. It does not involve a prediction that the further medical assessment will, more probably than not, lead to a materially different outcome."

On a fair reading of her reasons, the Proper Officer concluded that the matters concerning causation advanced in the new evidence had already been considered and rejected by the review panel, and on that basis she found that they were not capable of changing the outcome of the previous assessment.

The Court added, at [26]:

"It is not for the Proper Officer himself or herself to guess the outcome of any further assessment. But it is necessary for the Proper Officer to form a view on whether the additional information has the capacity to have an effect on the outcome, and whether any such effect is material."

The Court emphasised that its role was not to consider the merits of the evidence but whether the Proper Officer had erred at law, explaining at [104]:

"The language of s 62(1A) might fairly be regarded as calling for an objective approach. …. Judicial review of such a judgment is limited to determining whether the Proper Officer’s opinion has been properly formed according to law. Thus, the characterisation of the additional relevant information is a matter to be considered by the Proper Officer and not one to be determined by a court afresh in a judicial review application."

Final result

The Court of Appeal allowed the appeal and set aside the Primary Judge's orders, therefore upholding the Proper Officer's decision.

Why this case is important

This case serves as another reminder that the characterisation of additional relevant information by the Proper Officer is not ordinarily something that can be revisited in a judicial review application. The role is not to predict that new information will, more probably than not, lead to a different outcome. If they ask the precise question posed by s 62 and conduct an evaluation of the evidence presented, it will be difficult to disturb their findings.

¹ Gleeson JA, Leeming JA and Emmett AJA.