Court says 'no no' to a clinical assessment on de novo review – AAI Limited t/as GIO v Cooley [2016] NSWSC 434

The claimant was injured in a motor vehicle accident on 21 December 2012. The claimant's injuries were initially assessed by Medical Assessment Service (MAS) Assessor Cuneen (the assessor) at 0% whole person impairment (WPI). The claimant applied to the Proper Officer for a review of the assessment pursuant to s 63 of the MACA, on the basis that the assessment was incorrect in a material respect. The Review Panel revoked the previous certificate of the assessor and issued a fresh certificate certifying that the claimant's injuries gave rise to 11% WPI.

AAI Limited t/as GIO (the insurer) invoked the jurisdiction derived from s 69 of the Supreme Court Act 1970 (NSW) to set aside the decision of the Review Panel and remit the matter to the State Insurance Regulatory Authority of New South Wales (SIRA) for reallocation to a differently constituted Review Panel, to determine the matters referred to it according to law.

The insurer challenged the validity of the Review Panel's decision on various grounds, and submitted that it failed to perform its statutory duty to undertake a de novo review (that is, consideration of all aspects of the assessment afresh) of the medical assessment as required by s 63(3)(a) of the MACA.

The insurer's main ground of review was that the certificate of the assessor was a flawed document, which, if the Review Panel had properly considered the results of the clinical examination of the assessor, would have obliged them to undertake their own clinical assessment.

The claimant submitted that the question to determine, was whether, on a proper construction of Allianz Australia Ltd v Rutland ² (Rutland), there was a legal error of the kind that the insurer contended for. The claimant submitted that even if the error was found, the insurer was complicit in the circumstances in which the Review Panel was led into error by not alerting the Review Panel to the perceived inconsistencies in the assessor's certificate.

In the Supreme Court of New South Wales, Fullerton J noted that the Review Panel considered afresh all aspects of the assessment under review. In her Honour's opinion, that approach was borne out in significant part by the detailed consideration given to the material provided to the assessor, prior to his assessment, and the detailed consideration given to that material in the course of the Review Panel undertaking their own assessment.³

Her Honour was convinced that the Review Panel's decision amply demonstrated that the Review Panel discharged its statutory duty pursuant to s 63(3)(a) of the MACA to undertake a fresh assessment of the claimant's total WPI and, in doing so, exercised its own independent judgment on the question of permanent impairment.⁴

Her Honour noted the decision in Rutland looked at this very issue of the de novo review. In Rutland, the only injury under assessment was a psychiatric injury the claimant had suffered when she learnt that her sister had died in a motorcycle accident. The claimant submitted that what the New South Wales Court of Appeal identified in Rutland are matters to be taken into account when a clinical examination is called for. In particular, it was established that a clinical assessment is an important tool in cases where psychological injury is being assessed.

Her Honour confirmed that Rutland was not authority for the proposition that there is a statutory obligation to undertake a clinical examination in every case referred to a Review Panel by the Proper Officer. It is for the Review Panel to determine whether, in the exercise of its discretion in the particular case referred to it, there is a need for it to undertake a clinical examination in the proper performance of its statutory duty.

Her Honour concluded that the Review Panel undertook a proper analysis of the material in its possession, and the inconsistencies in the certificate of the assessor were simply typographical and not the source of a discrepancy or irreconcilable inconsistency.

This decision reinforces the principle that when conducting a de novo review, a Review Panel does not necessarily need to carry out a clinical examination of a claimant.

When dealing with a review application, insurer's should turn their mind to whether or not there is a legal, factual or medical necessity for the Review Panel to undertake a clinical examination and make persuasive submissions in this regard. Ultimately however, the discretion will lie with the Review Panel.