Judgment date: 25 January 2019
Citation: Kerr v Insurance Australia Limited  NSWSC 133
Jurisdiction: Supreme Court of New South Wales
The Plaintiff lodged an application for medical assessment of physical injuries and was assessed by Assessor Ian Cameron in September 2017. The Assessor found that the accident caused injuries to the Plaintiff's chest, ribs, cervical spine, left shoulder, right shoulder, right ankle and right foot (assessing a combined 10% WPI). The Assessor found that injuries to the thoracic spine, lumbar spine, left hip and right knee were not caused by the accident.
The Plaintiff lodged an application to review the MAS assessment in relation to the findings regarding the lumbar spine and right knee, which was dismissed by the proper officer.
The proceedings were heard by her Honour Justice Harrison on 31 August 2018. Judgment was handed down on 25 February 2019.
The Plaintiff's application listed 13 separate injuries for assessment and attached a bundle of clinical records of about 190 pages with no index. The Plaintiff did not provide any written submissions.
Interestingly, the Plaintiff was examined at the request of the Insurer by Dr Keller, an occupational physician, in March 2017. Dr Keller found that the Claimant suffered sternal fractures and a rib fracture as well as soft tissue strains to the neck, low back and right leg. Dr Keller assessed a 5% WPI in the lumbar spine, deducting 50% for pre‑existing impairment. Assessor Cameron, in his Certificate and Reasons, referred in detail to the contemporaneous medical records commencing with the Liverpool Hospital notes on the day of the accident.
The Plaintiff was only able to identify three references to her back in the material considered by Assessor Cameron. The Emergency Department notes recorded a mere reference to "back" without any description of injury. The handwritten progress notes of Liverpool Hospital contained the following reference:
"Back – bruise L post-lower ribs, no midline tenderness".The court found that neither reference constituted evidence of an injury to the back caused by the motor vehicle accident.
The third reference was in Dr Keller's report. The court noted that this report was prepared eight months after the accident and by its very nature does not constitute contemporaneous evidence of a back injury caused by the accident, rather it merely establishes that at the time of examination the Plaintiff reported that she sustained an injury to her lower back.
Whilst the Plaintiff made several submissions, the primary submission was, firstly, whether the Assessor failed to address the alleged injuries to the lumbar spine and knee and, secondly, whether the Assessor failed to engage with the available evidence as to causation of these injuries. Her Honour found that the Plaintiff had an opportunity of establishing causation in her application, by way of written submissions and the provision of medico‑legal evidence but noted that the application did not contain any submissions or medico‑legal evidence, rather 191 pages of clinical records with no index. Her Honour found that the MAS Assessor did not fail to respond to the Plaintiff's argument as there was none.
Her Honour found that the Assessor did engage with the evidence on causation as he addressed the mechanism of injuries, noting the lack of clear definition of injuries to the lumbar spine and right knee.
The Plaintiff submitted that the Assessor had not applied the correct test of causation. Her Honour found that a MAS Assessor's statutory duty is to find and record impairment as it existed at the date of examination. In this case, the Assessor made findings that the alleged injuries were not clearly defined and that there was no evidence of specific injury to the right knee or low back.
Her Honour noted that an Assessor's Statement of Reasons must explain the actual path of reasoning by which the Assessor arrived at his opinion. She found that the Assessor had provided adequate reasons and that he was not obliged to engage issues which were not raised as substantial or clearly articulated arguments in the application.
The Plaintiff's summons was dismissed with an order that the Plaintiff pay the Defendant's costs.
The decision highlights the need for parties to carefully consider what medical records and reports should be attached to an application for assessment of permanent impairment and whether the assessor would be assisted by written submissions in support of the application.
In this case her Honour made reference to the lack of medico‑legal reports or any written submissions in the application, noting that the Plaintiff had chosen to simply attach a bundle of clinical records comprising 190 pages. Whilst we consider that Assessor Cameron's reasons were sufficiently articulated, the deficiencies in respect to the application were clearly a factor in the outcome.