Duck the bouncer! When documents are not considered ‘additional’ material for a further MAS assessment – McCosker v Motor Accidents Authority of New South Wales [2015] NSWSC 434

Author: Joseph Vermiglio

Judgement Date: 17th April, 2015

Citation: McCosker v Motor Accidents Authority of New South Wales [2015] NSWSC 434

Jurisdiction: Supreme Court [1]

In Brief


  • Material already in possession of a party at the time of an original Medical Assessment Service (MAS) assessment will not be considered ‘additional’ relevant material to support a further MAS assessment.
  • Medical reports which come into existence after the original MAS assessment but are based on material already in possession of the party at the time of the original MAS assessment, do not constitute ‘additional’ relevant material to support a further MAS assessment.

Background

The plaintiff was injured in a motor vehicle accident on 4 March 2006. Medical Assessor Kenna assessed the plaintiff’s physical impairment at 25% whole person impairment (WPI). The insurer lodged an application for further assessment relying on the clinical notes of Mr Robert Schwager, the plaintiff’s chiropractor and a report of neurologist, Dr Paul Spira.

The Proper Officer determined that the material contained in the two reports was additional and relevant and warranted a further assessment.

The plaintiff sought that the decision of the Proper Officer be quashed. The plaintiff alleged that whilst the chiropractor’s report and the neurologist’s report both came into existence after the MAS assessment, they were based on material which the insurer had prior to the MAS assessment and therefore could not be considered additional relevant material within the meaning of s 62(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) (MACA).


Decision

Button J referred to the decision of Singh v Motor Accidents Authority of NSW (No 2) NSWSC 1443. His Honour confirmed that the case of Singh stood for two propositions:

1. “Material that was in the possession of a party at the time of the original assessment cannot be relied upon by that party as additional information in support of an application for a further assessment.”
2. “Material that is an expert opinion substantially based upon material that was in the possession of the party at the time of the original assessment, even if the expert opinion was obtained after the original assessment, will also fall within the prohibition contained in the first proposition.”

Button J determined that the report by the chiropractor was merely a transcription of his earlier clinical notes. His Honour arrived at this conclusion because the chiropractor ceased treating the plaintiff four years prior to the production of his report and the report merely paraphrased his clinical records. Button J considered the report and clinical notes to come under the first proposition above.

His Honour rejected the plaintiff’s suggestion that the material was not relevant. He noted that these documents could have the potential to suggest the plaintiff had not been frank about her pre-existing condition. Accordingly, there was no error of the Proper Officer in characterising the document as relevant.

His Honour considered the report of the neurologist to come within the second proposition. The report of the neurologist was based on the report of the chiropractor which was merely a paraphrasing of the clinical notes already in the possession of the insurer. Accordingly, Button J concluded that these documents were also not additional relevant information.

Button J, held that the Proper Officer’s determination was founded upon a significant error of the law with regard to the interpretation of s 62(1)(a) MACA and should be quashed.


Implications

Insurers cannot expect a further MAS assessment to be granted based on material already in its possession at the time of the original assessment. Accordingly, insurers should provide all the medical evidence it wishes to rely upon at the first assessment.

Insurers wishing to challenge the claimant’s further application can do so on the same basis.

A mere transcript of illegible documents already in the possession of an insurer will not be considered additional relevant information. Nor will an expert report commenting on documents already in the insurer’s possession prior to the original assessment.

Where an insurer’s application for further assessment under s 62(1)(a) MACA is rejected because the documents relied upon are not ‘additional’, consideration should be given to an application under s 62(1)(b) as a CARS Assessor’s discretion to refer the dispute back to MAS is unfettered. The application may be supported if there is a risk of injustice.


  1. Button J