So you have submitted additional information, but is it relevant? Surveillance of claimant considered in a medico-legal report – Insurance Australia Ltd t/as NRMA Insurance v Asaner [2016] NSWSC 1078

The claimant was assessed by Dr Johnson from the Medical Assessment Service. Dr Johnson's certificate dated 9 March 2015 certified 14% whole person impairment (WPI).

The insurer applied to have the claimant referred again for medical assessment, on grounds of 'additional relevant information about the injury' in accordance with s 62(1)(a) of the MACA. The new medical evidence post-dated Dr Johnson's certificate and included a surveillance DVD obtained on 24 April 2015, an investigator's report dated 8 May 2015 and a second report by Dr Harvey-Sutton dated 11 June 2015.

Dr Harvey-Sutton's second report said that the surveillance "leads to confirm the conclusion in the principal report", (which had been considered by Dr Johnson) and she could not "identify continuing signs of injury or disability".

The Proper Officer of the State Insurance Regulatory Authority (SIRA) refused the application for further assessment as he was not satisfied that the additional information was 'relevant', or capable of having a material effect on the outcome of the previous assessment as required by s 62(1A).

The insurer sought orders in the Supreme Court of New South Wales (the Supreme Court) to set aside the Proper Officer's decision.

The insurer submitted that the Proper Officer erred in three ways, being that:

1. He misconstrued the expression 'additional relevant information' by assuming that new evidence supporting previously expressed conclusions could never be additional relevant information
   
   
2. He failed to personally view the DVD surveillance
   
   
3. He did not consider the surveillance independent of Dr Harvey-Sutton’s second report and whether, if standing alone, it was capable of changing the outcome of the previous assessment.

In his judgment, Campbell J opined that the Proper Officer should have considered the issue of relevance through the medical opinion of Dr Harvey-Sutton, who viewed the surveillance when coming to her opinion about inconsistencies between the claimant’s presentation at the previous medical assessment and the surveillance footage.

His Honour decided that the Proper Officer incorrectly limited himself by restricting the meaning of the phrase 'additional relevant information' to opinions that dealt with issues not previously considered.

The question of whether the additional information was capable of having a material effect on the outcome of the assessment raised medical issues and it was the medical opinion of Dr Harvey-Sutton that responded to the question. His Honour found that the Proper Officer should have given weight to what Dr Harvey-Sutton concluded from the surveillance, rather than his own lay impression of the relevance of the surveillance.

The Proper Officer also concluded that the supplementary report by Dr Harvey-Sutton, which explained the significance of the surveillance material, should be treated as being merely confirmatory of her previous views. His Honour decided that the Proper Officer's opinion adopted a construction of s 62(1)(a) of the MACA which the New South Wales Court of Appeal rejected in Jubb v Insurance Australia Ltd.² The Proper Officer wrongly concluded that 'additional relevant information' excludes information 'concerning issues which have already been considered by the previous medical assessor'.

His Honour highlighted that 'deterioration of the injury' and 'additional relevant information' in s 62(1)(a) of the MACA are statutory alternatives to be used as separate grounds. The terms should not be interpreted interchangeably.

His Honour set aside the Proper Officer's decision to refuse the insurer's application for a further medical assessment. He referred the matter back to the SIRA.

In this case, the Supreme Court reaffirmed the correct approach in interpreting s 62(1)(a) of the MACA when considering an application for further assessment.

Firstly, the Supreme Court affirmed that new material constitutes 'additional relevant information' when it relies on an expert who provides an opinion on new material which was not made available in the initial assessment. In this case, the Supreme Court found that the Proper Officer should have given weight to the opinion of Dr Harvey-Sutton, who expressed her view on the relevance of the surveillance footage, instead of relying on his/her own lay impression of the surveillance.

Secondly, once the question of 'relevance' is satisfied, an applicant must prove that the information is 'such as to be capable of having a material effect on the outcome of the previous assessment' pursuant to s 62(1)(a) of the MACA. Applicant's must also ensure that the new material they rely upon is capable of giving rise to a contrary finding from the initial assessment to successfully claim that it is capable of having a 'material effect on the outcome'. Here, the subsequent opinion of Dr Harvey-Sutton who commented on the new surveillance footage could result in a finding different to the initial assessment.