Decision-makers who resort to literature are not immune from the relevant principles of procedural fairness requiring disclosure and invitation for comment or submission

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Last updated: 22 Jun, 2021
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Originally Published by Andrew Gorman and Katherine Teague on Friday, February 5, 2021 8:41:03 AM


Is a Review Panel entitled to rely upon medical literature to make a decision that a party has not considered? The Supreme Court provides the answer in Raina v CIC Allianz Insurance Limited.


Author: Katherine Teague

Judgment date: 25 January 2021

Citation: Raina v CIC Allianz Insurance Limited [2021] NSWSC 13

Jurisdiction: Supreme Court of New South Wales (Common Law)*


Principle issue

  • If a decision maker relies upon evidence that is influential to the decision, a party should be afforded an opportunity to address any concerns arising from it. Failure to do so can amount to a denial of procedural fairness.

Background

The Claimant was involved in a motor vehicle accident on 20 September 2017, sustaining an injury to his cervical spine. His doctors recommended neurosurgery. The Insurer submitted the surgery was not reasonable and necessary or related to the injury.

The Insurer referred the dispute to SIRA and Professor Home, Occupational Physician, was appointed to examine the Claimant. The Claimant challenged whether Professor Home was appropriately qualified to assess neurological issues and requested a neurosurgeon be appointed instead. SIRA appointed Dr Drew Dixon, Orthopaedic Surgeon, to undertake the assessment.

Dr Dixon issued a Certificate certifying the Claimant sustained an injury to the cervical spine as a result of the accident and found in favour of the recommended procedures.

The Insurer lodged an Application for Review contending that Assessor Dixon's findings did not equate with the medical history of the Claimant's injury, including his complaints as recorded by his GP following the accident.

The Proper Officer referred the dispute to a Review Panel which was constituted by Professor Ian Cameron (Rehabilitation Specialist), Dr Geoffrey Stubbs (Orthopaedic Surgeon), and Dr Clive Kenna (General Practitioner with expertise in musculoskeletal medicine and pain management).

The Claimant challenged the constitution of the review panel, contending Professor Cameron and Dr Kenna do not have the appropriate qualifications to properly consider whether neurosurgery is required and whether neurosurgery is reasonable and necessary. This challenge was rejected.

The Claimant wrote to the Proper Officer refusing to attend the appointment on the basis that the Review Panel was improperly constituted.

The Review Panel subsequently issued a Certificate specifying that the Claimant suffered a soft tissue injury to the cervical spine and concluding that the proposed surgery was not reasonable and necessary.

The Claimant filed a summons in the Supreme Court of NSW to have the decisions of the Proper Officer refusing to reconstitute the Review Panel, and the Review Panel's Medical Assessment Certificate set aside and for the matter to be remitted to SIRA for reallocation to a different Proper Officer for reference to a different constituted Review Panel.

Issues

The Claimant contended the decisions of the Proper Officer and the Review Panel occasioned jurisdictional error, error of law on the face of the record or alternatively that the Proper Officer and the Review Panel constructively failed to exercise their statutory power in making the decision.

The Claimant argued the Review Panel denied him procedural fairness as the Panel considered 22 medical studies, of which only 2 had been referred to in the evidence. Further, the Claimant contended the failure to put him on notice of their intention to utilise the studies amounted to a denial of procedural fairness.

Additionally, the Claimant argued the Review Panel did not give him notice of the questions it had for him and so denied him the opportunity to respond. The Claimant also argued the Panel had power to request further information, by virtue of clauses 16.16; 16.19.6; and 16.21 of the Medical Assessment Guidelines, however the Panel failed to avail itself of this opportunity.

Furthermore, the Claimant submitted it is a requirement of clause 1.41 of the Guidelines that where there are inconsistencies between the medical assessor's clinical findings, and any medical records, the injured person must be given the opportunity to respond to the inconsistencies.

Finally, the Claimant argued the Review Panel erred by failing to apply the correct test for causation. The Claimant argued the Panel disregarded evidence of right-sided symptomology and found that the absence of contemporaneous evidence was determinative of causation.

The Insurer submitted the Review Panel did not deny the Claimant procedural fairness by referring to peer reviewed articles in making its assessment. The Insurer argued it was necessary for the Panel to refer to the articles on which it relied but in demonstrating its process of reasoning it chose to outline and summarise the materials it relied upon. Further, the Insurer argued the material was not a “critical factor” in the Panel’s decision.

Reasoning


Justice Campbell dealt with each of the Claimant's complaints individually, as follows:

The use of medical literature

His Honour found the Review Panel did not draw upon their accumulated medical knowledge, but rather they placed significant weight on the medical literature which was influential in their decision-making process. His Honour held the conclusions derived from the medical literature should have been drawn to the Claimant's attention for his comment.

This ground was made out.


Failure to draw perceived inconsistencies to the Claimant's attention and seek his response to them


The Claimant was provided an opportunity to present his case, and, in particular, explain the inconsistencies to the examining assessor, however he refused to attend the assessment. The Claimant was warned non-attendance may result in adverse findings being made. His Honour confirmed it is not a requirement for the Panel to provide a series of written questions for a Claimant to consider.

This ground was not made out.


Failure to respond to a substantial and clearly articulated argument


The Claimant put to the Review Panel in writing that within 24 hours of the accident he had developed excruciating pain, radiating down into his right arm. The Claimant's treating neurosurgeon, medico-legal expert and Assessor Dixon were also provided with this history from the Claimant.

His Honour held the Review Panel was entitled to reject the "established facts" on factual grounds and that it was entitled to make its own assessment on the facts in dispute.

This ground was not made out.


Failure to apply correct test of causation


Whilst the Review Panel found the Claimant's contemporaneous clinical records to be determinative to the question of legal causation, his Honour held the Review Panel answered the correct question as per section 5D(1)(a) of the Civil Liability Act.

This ground was not made out.

Decision

As the Claimant succeeded on one of his four grounds, the court ordered the Medical Assessment Certificates be set aside and remitted the matter to SIRA for reference to a differently constituted review panel.

Why this case is important

This decision confirms that decision-makers who place significant weight on material outside their experience, that is capable of influencing their decision, should ensure a party has been given an opportunity to present their case in response to it. Further, this case confirms the ability of decision-makers to reject previously accepted facts and to arrive at different conclusions regarding causation, so long as the test in section 5D of the Civil Liability Act has been correctly applied.



*Campbell J