Jurisdictional facts – when does fact become fiction? – Lithgow v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWSC 1104

The plaintiff was injured in a motor accident on 19 March 2012. One of her significant injuries was to the lumbar spine which was the subject of a single level fusion in July 2014. At the time of the surgery, the plaintiff did not claim the cost of the procedure from the insurer.

A dispute as to the plaintiff’s entitlement to non-economic loss damages arose and she was subsequently assessed by a MAS assessor who found a whole person impairment in excess of the statutory threshold. The MAS Assessor concluded that the spinal injury giving rise to the fusion was caused by the accident.

The insurer later lodged an application for further assessment of the dispute, relying upon evidence which was not in its possession at the time of the initial assessment. That evidence suggested the need for surgery was unrelated to the accident.

The Proper Officer accepted the application for further medical assessment but proposed to deal with it as an application for assessment of a treatment dispute. This would allow a medical assessor to determine whether the lumbar spine fusion was both reasonable and necessary and causally related to the subject accident. While the insurer was content with this proposal, the plaintiff submitted that the dispute should proceed to assessment on whether the surgery was reasonable and necessary only. The plaintiff argued that a referral of the dispute for assessment on the question of causation would amount to an error of law as causation had already been determined by an assessor.

Despite the plaintiff's position, the treatment dispute was assessed on both issues and a finding was made that the lumbar spine surgery did not relate to the injuries sustained in the accident.

The plaintiff challenged the decision, arguing that State Insurance Regulatory Authority (SIRA) acted outside its jurisdiction when it purported to refer the medical dispute to an assessor for further medical assessment in circumstances where the material before SIRA did not establish that she had made any such claim. She also argued that the subsequent assessor should have considered himself to have been bound by the causation finding made by the first assessor.

Adamson J dismissed the plaintiff’s application. Her Honour held that a medical dispute can arise under s 58(1)(a) or (b) of the MACA even where no specific claim for treatment expenses has been made.

The Court held that, as long as it was open to SIRA to consider that there was a medical dispute, as there was a disagreement about a matter under pt 3.4 of the MACA, SIRA was obliged under s 60(2) to refer it for medical assessment.

Further, her Honour found that, while a MAS certificate is conclusive evidence in any court proceedings or in any assessment by a claims assessor, it does not bind other MAS assessors, although it should generally be taken into account. An assessor is obliged to make an independent assessment based on all the material before them. As such, the second assessor was entitled to reach his own findings on causation.

This case illustrates the breadth of medical assessment procedure encompassed by s 60 of the MACA. It permits assessment of any medical dispute as defined in s 58. Insofar as treatment disputes are concerned, the procedure does not import a qualification that requires a claim for treatment expenses to have been made.

The case also confirms that a further assessment must take into consideration all the material before the assessor on that occasion. While that material may include a determination on relevant matters made by another assessor, including causation, that determination is not binding on the subsequent assessor.