Status of MAS Assessments

Judgment date: 25 November 2011

Allianz Australia Insurance Limited and Serria Girgis and Ors [2011] NSWSC 1424

Supreme Court of NSW¹

In Brief

• The status of a Medical Assessment Service (MAS) Certificate in commenting upon causation of an injury is only relevant in assessing Whole Person Impairment (WPI) and the section 131 threshold.
• A Claims Assessor or a court is not bound by a Medical Assessor's determination as to causation when considering damages for economic loss.
• MAS Certificates in respect of treatment disputes are only binding in respect of the yes or no answer to the questions posed for assessment. The Medical Assessor's opinion of what is or may be reasonable treatment is not binding.

Background

The claimant was injured in a motor vehicle accident on 30 May 2008. The third insurer of the vehicle at fault admitted breach of duty of care. An application to assess whether the claimant's WPI was greater then 10% was lodged with MAS.

The injuries referred for assessment were:

Medical Assessor Dowd issued a Certificate stating that the claimant's WPI did not exceed 10%. He only assessed impairment resulting from injuries to the cervical and lumbar spines and found the other injuries referred were not caused by the accident.

A treatment dispute was also lodged with the questions referred for assessment being:

• Whether the claimant required 6 hours a week of domestic services from 30 May 2008 to date.
• Whether the claimant required 6 hours a week of domestic services for a further period of 20 years.

Medical Assessor Menogue certified that the claim for 6 hours from the date of the accident into the future was not reasonable and necessary. In addition he opined in his Statement of Reasons that the injuries to the claimant's cervical and lumbar spine caused a need for domestic assistance of 2 hours a week from the date of the accident to 6 months after the date of assessment.

The matter came before Claims Assessor Broomfield for General Assessment.

In assessing the claimant's damages he concluded that he was not bound by Assessor Dowd's Certificate on the causation of the injuries to the claimant's thoracic spine, left shoulder and right shoulder when determining questions of economic loss.

Further, Assessor Broomfield determined that he was only bound by Assessor Menogue's Certificate in respect of whether 6 hours per week for past and future domestic assistance was reasonable. He found he was not bound by Assessor Menogue's opinion of what was reasonable.

Assessor Broomfield assessed future economic loss on the basis of a buffer of $50,000.

The insurer sought administrative law relief in the Supreme Court.

The questions before Adams J were:

1. Whether the findings of a Medical Assessor on the causation of an injury are binding when assessing other heads of damage;
2. Whether the determination of a Medical Assessor in respect of a treatment dispute is binding other than only in respect to the questions proposed to the Medical Assessor; and
3. Whether the reasons given by Assessor Broomfield in respect of future economic loss were sufficient.

The Legislation

Part 3.4 Medical assessment

57 Definitions

In this Part:

• medical assessment matters means any of the matters referred to in section 58;
• medical assessor means a person appointed under this Part to make an assessment under this Part;
• medical assessors reviewpanel means a panel of medical assessors convened under this Part to review an assessment under this Part;
• medical dispute means a disagreement or issue to which this Part applies.

58 Application

1. This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters):
2. 1. Whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
   2. Whether any such treatment relates to the injury caused by the motor accident,
   3. (Repealed)
   4. Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
   5. (Repealed)
3. This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.

61 Status of medical assessments

1. The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.
2. Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.
3. ...

The Decision

Are MAS Certificates binding on the question of causation of an injury other than for purposes of assessing entitlement to non-economic loss damages?

Adams J found that causation is an essential element of determining the question of impairment. Causation is not an independent issue but is rolled up in determining the extent of the permanent impairment. As such, it is not open to attack the assessment on the extent of permanent impairment upon the basis that an injury giving rise to the assessment was not caused by the accident.

Adams J posed the question whether the issue of causation of an injury had significance to any other issue such as earning capacity. He found that it did not. He said it would have been easy for the legislator to draft such a provision if it was intended to apply to anything other than non-economic loss.

The conclusiveness of the certificate is only relevant to whether a claim for non-economic loss can be made. It may be that an assessor will make findings in relation to causation in coming to a conclusion on permanent impairment, but those findings are not medical assessment matters and are not certified. Adams J said at [36]:

Adams J considered that the changes to the Act by the Motor Accidents Compensation (Claims and Dispute Resolution) Act 2007 did not alter the position as found by the Court of Appeal in Pham v Shui² (Pham). In Pham, the Court found that a MAS certificate was only conclusive in respect of whether a person has greater than 10% WPI or not. Findings on causation of an injury contained within the reasons of a MAS assessor were not conclusive.

Adams J considered that he was bound by Pham.

Although he did not need to determine the question, Adams J stated that a finding as to causation of an injury when assessing entitlement to non-economic loss damages may be binding when assessing the quantum of those damages.

Adams J concluded however that Assessor Broomfield did not err when he regarded himself free to conclude on the evidence put to him that injuries to the right and left shoulder were caused by the motor vehicle accident when assessing the claimant's entitlement to damages other than non-economic loss.

Status of Treatment Disputes

Adams J found that s 58(1A) and (B) of the Act required the Medical Assessor to consider the matters in disagreement between the parties. He considered the certificate was only binding in respect of the dispute put to the Medical Assessor. If the Medical Assessor made a statement of what he or she considered reasonable within the body of the Statement of Reasons, that determination would not be binding. Adams J stated at [48]:

Adams J concluded that Assessor Broomfield was correct in finding himself bound by the Medical Assessor's rejection of the claim for care as defined by the dispute but was not bound by the Medical Assessor's statement as to what was the appropriate level of assistance to be provided.

Adequacy of Reasons

Adams J concluded that the adequacy of the reasons provided by Assessor Broomfield in respect of the buffer allowance of $50,000 for future economic loss was adequate. He explicitly relied upon the decision of Justice Hoeben in Allianz Australia Insurance Limited v Sprod and Ors³In that decision Hoeben J stated that it was not necessary that an assessor set out each step in the reasoning process if it is otherwise clear how he or she arrived at his or her conclusion.

Implications

The case is important as it clarifies the status of MAS certificates. It confirms that the status of certificates are the same as what they were before the amendments to the Act as found by the Court of Appeal in Pham.

There remains potential for CARS and MAS to come to different conclusions on causation. This will likely lead to dissatisfaction with the MAS and CARS process as the entitlement to damages caused by specific injuries is determined by more than one tribunal.

The decision also clarifies the status of MAS Treatment Disputes. The decision confirms that Treatment Disputes have a very limited scope. As far as determining questions of the reasonableness of domestic assistance claims they are not particularly useful at all. Given that the dispute is defined by the claimant's claim for care, all that can be achieved is a finding that the claimed level of care is not reasonable and necessary. However, the door remains open for an award up to the level of care claimed. They would, however, be of greater use in determining whether any specific treatment (such as surgery) proposed or performed was or is reasonable and necessary.

Footnotes

¹ Adams J

² [2006] NSWCA 373

³ [2011] NSWSC 1157