To what extent is MAS obliged to compel the provision of evidence for its consideration?

A recent decision by the Supreme Court considers whether a Review Panel within the Medical Assessment Service (MAS) has a duty to obtain or compel the parties to obtain relevant documentation under the 1.17 and 1.18 of the Permanent Impairment Guidelines. The decision also explores whether the parties were afforded procedural fairness when the medical assessment went ahead without the documentation.

 

Author: Michael Li
Judgment Date: 6 December 2019
Citation: Transport Accident Commission (Vic) v Kaddour [2019] NSWSC 1738
Jurisdiction: Supreme Court of NSW*

Principles

• Clauses 1.17 and 1.18 of the Permanent Impairment Guidelines (the Guidelines) do not identify a duty to obtain or compel others to obtain required documentation.


• In many of the processes under the Motor Accidents Compensation Act 1999 (NSW) and the Motor Accidents Injuries Act 2017 (NSW) such as internal reviews of mostly at fault and minor injury decisions, it is important to afford procedural fairness to the parties whenever it is possible their interests may be affected.

Background

The Claimant sustained injuries in a motor accident. In issue was the extent of his whole person impairment. The Insurer sought judicial review in respect of a certificate issued by a Review Panel of the Medical Assessment Service.

The Review Panel asked the parties to provide copies of clinical notes relating to the Claimant's psychiatric history within a certain timeframe before they conducted the medical assessment. Neither party was able to obtain the documents. Nor did they ask the Review Panel for further time to obtain the documentation or request the Review Panel abstain from conducting the assessment. Accordingly, following the expiry of the timeframe, the medical assessment went ahead in the absence of the psychiatric records.

The Insurer contended that the Review Panel erred in performing the assessment without obtaining the documents. The Insurer also submitted it was denied procedural fairness by the Review Panel conducting the assessment in the absence of the documentation.

Decision

Was the Review Panel under a legal duty to abstain from the medical assessment in the absence of the documents?

The Insurer argued the legal duty flowed from paragraphs 1.17 and 1.18 of the Permanent Impairment Guidelines which state:
1.17 The medical assessor must evaluate the available evidence and be satisfied that any impairment:
…
1.18.1 An assessment of the degree of all the available evidence including:
…(our emphasis)
Basten J found that it was implausible for the Guidelines to be the source of a legal duty because they were not legislation or delegated legislation.¹

His Honour went on to find that the wording of clauses 1.17 and 1.18 provided no basis for the supposed duty. He referred to the phrase, 'available evidence' and said this wording was inadequate to impose an obligation on the Review Panel to search for or require others to search for evidence which had not been provided and was not in the possession of the parties.

Was the Insurer afforded procedural fairness?

His Honour observed that the legal basis for the complaint of procedural unfairness was not well-articulated. Nevertheless, he addressed the Insurer's submissions, namely:

1. The Review Panel had performed the medical assessment adverse to the Insurer's interests without giving the Insurer an opportunity to counter;


2. The Review Panel's conduct gave the expectation it would not proceed until the documents were provided or, in the absence of the documentation, that the Review Panel would afford the parties an opportunity to provide submissions.

In respect of (1), his Honour found that the Insurer never intended, nor did the Insurer's conduct indicate, that it wished to counter the proposed course of action by the Review Panel despite having ample opportunity to do so. Accordingly, this argument failed.

In respect of (2), his Honour found no evidence presented by the Insurer to prove it was made to hold such an expectation or that the Insurer, in fact, held that expectation. Accordingly, this argument also failed.

Why this case is important

The case is another reminder that applications for judicial review must identify the legal basis for an alleged error. In this case, the Court questioned whether the Permanent Impairment Guidelines could be the source of a legal duty. Putting that to one side, the Court found clauses 1.17 and 1.18 of the Guidelines do not create a duty upon the Medical Review Panel Assessors to take on an inquisitorial role and search for relevant documents, nor could they compel the parties to obtain those documents. Likewise, the Review Panel was not obligated to wait for the relevant documentation before performing its assessment.

The case also reminds Insurers that allegations of breach of procedural fairness require:

1. A legal basis for procedural fairness to apply in the circumstances;


2. Identifying specific conduct of a body which would be averse to a party submitting to that body's authority; and


3. Identifying the denial of opportunity to such a party to counter the adverse conduct.

When considering the application of this decision to claims under the Motor Accidents Injuries Act 2017 (NSW), Insurers should always afford claimants an opportunity to counter or contribute to the process when a decision is being made that could be averse to their position.

*Basten J

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¹ See paragraph 21.