Medical Disputes referred to MAS should in turn be referred by MAS

Principles

1. The Proper Officer of the Medical Assessment Service (MAS) has a duty, as distinct from a discretion, to refer a medical dispute to an Assessor in the same ambit as it was framed by the referring party.
   
   
2. The ambit of a MAS Assessment is determined by the ambit of the medical dispute contained in the referral, whether by the parties, CARS Assessor or Court.
   
   

Background

The insurer lodged a MAS 1A seeking an assessment of the claimant's past and future need for treatment and domestic assistance.

The insurer defined the dispute information as a range; for example, zero to eight hour per week of domestic assistance or zero to six sessions of psychological counselling sessions.

The significance of expressing the nature of the dispute as a range was that the Medical Assessor would be obliged to include the determination, within that range, in the certificate which would, in turn, become conclusive evidence.

The Proper Officer, after corresponding with the parties, determined that the questions to be answered by the Medical Assessor were whether a certain number/frequency of treatment of domestic assistance was reasonable and necessary. For example, whether eight hours of domestic assistance was reasonable, as opposed to whether a range of zero to eight hours was reasonable. The Proper Officer observed that it was open to the Medical Assessor to note in their reasons, whether he or she considered any treatment within the range was causally related or reasonable and necessary. The Proper Officer explained that the dispute was properly formulated as "all or nothing" because the Claimant had not agreed that a range was in dispute.

The insurer sought judicial review of the Proper Officer's decision on the basis that it was infected by errors of law.

Decision

Justice Adamson held that the insurer was entitled to have the medical dispute which it referred to the Authority, referred to the Medical Assessors "…and not merely an expurgated version of it, which had been filleted and edited by the Authority in consultation with the Claimant." (65)

Justice Adamson observed that the reference in s 60(2) of the Act to "the medical dispute" is correctly construed as a medical dispute which a party or a Court/Claims Assessor has referred to the Authority. She explained that "It could hardly have been the intention of Parliament to confer a power on the Authority to redraft the terms of a medical dispute referred by a court or claims assessor, as opposed to ascertaining that it corresponded with the definition of "medical dispute" (65). Her Honour concluded that the Authority does not have a discretion whether to refer a medical dispute; it has a duty to do so. There is no requirement for the responding party to agree with the ambit of the dispute framed by the referring party.

Justice Adamson determined that the Proper Officer failed to discharge the duty under s 60(2) of the Act by not referring the whole medical dispute as framed by the insurer.

Why this Case Note is important

When lodging applications for assessment of treatment disputes (including those for domestic assistance), insurers should take care to state a range, for example from zero to six hours per week of gratuitous domestic assistance (assuming six hours per week are claimed by the claimant).

According to this decision, MAS must accept the referral in those terms so the Medical Assessor can provide a binding and conclusive decision on the number of sessions/hours, if any, which are required. This will ensure a degree of certainty for insurers in quantifying the claim and assessing risk at a CARS Assessment or Hearing.

Arguably, the principle in this case can be applied broadly to any MAS disputes, even for those that have been ousted by the Supreme Court by way of judicial review.

Often only certain parts of MAS decisions are challenged, whether by way of a review application of judicial review. If such applications are successful, the dispute at hand is reverted back to a Medical Assessor or the Review Panel. Applying the principle in this case, the Authority must ask the new Medical Assessor or Review Panel to consider afresh, the ambit of the medical dispute as it was originally framed by the referring party, not just the part of the MAS decision which was challenged.

The Proper Officer has no statutory authority to re-define a medical dispute as he or she sees fit. The medical dispute must be assessed as it was referred by the applicant.

A similar approach is likely to apply to equivalent provisions in the Motor Accident Injuries Act 2017 (MAIA). Section 7.20 of MAIA reads similarly to section 60 of the MACA which indicates that the Disputes Resolution Service (DRS) has a duty to refer the medical dispute in the same ambit as it was framed by the referring party. Section 7.23 of MAIA also reads similarly to section 63 of the MACA, which indicates that only the Certificate, as distinct from the attached reasons, constitutes conclusive and binding evidence.

Insurers should therefore adopt the same approach when lodging medical dispute applications to the DRS under MAIA, and state a range as opposed to a distinct number to ensure the certificate constitutes binding evidence.