Australia

Further exploration of meaning "additional relevant information" in the context of s 62 (1)(a) further medical assessment

A comment on Alavanja v NRMA Insurance [2010] NSWSC 1182

Australia Insurance

Judgment date: 26 October 2010

Alavanja v NRMA Insurance [2010] NSWSC 1182

Supreme Court of New South Wales¹

In Brief

Confirmation of the principles in Garcia v Motor Accidents Authority of New South Wales².
To constitute "additional relevant information" a further opinion of a medical expert must contain new information not previously before the assessor. Differences of opinion and differing assessments of whole person impairment alone cannot constitute "additional relevant information".
The objective of the Act, to encourage early resolution of compensation claims, is confirmed.

Background

The plaintiff was involved in a motor vehicle accident on 9 April 2006. She alleged she sustained injuries to her cervical spine, thoracic spine and right shoulder in the accident.

The plaintiff made an application to the Medical Assessment Service (MAS) for assessment of her permanent impairment. The matter was allocated to Assessor Menogue, who issued an assessment certificate on 11 September 2007, indicating the plaintiff's whole person impairment was not greater than 10%. The plaintiff then made two separate applications for further assessment pursuant to s 62(1)(a) of the Motor Accidents Compensation Act 1999. She relied on four statements of herself and members of her family and a medico-legal report of Dr Matalani.

The proper officer of MAS refused the plaintiff's first application for further assessment on the basis that the reasons cited by the plaintiff – being criticism of Assessor Menogue's assessment – would not have a material effect on the outcome of the further application.

The second application for further assessment made by the plaintiff cited similar reasons as the first, in addition to drawing reference to the comments of Dr Matalani on causation of the plaintiff's injuries. The plaintiff maintained the opinion of Dr Matalani provided a contemporaneous record of complaint to injury to the neck, thoracic spine and right shoulder which was not previously before Assessor Menogue.

The second application for further assessment was also refused by the proper officer on the basis that whilst the information might be additional and relevant, it did not effectively demonstrate how it was capable of altering the outcome of the previous assessment.

The plaintiff sought relief in the Administrative Division of the Supreme Court of New South Wales seeking an order to compel the proper officer to refer the plaintiff for further medical assessment.

Supreme Court Decision

In reviewing the plaintiff's application the court gave considerable consideration to the meaning of "additional" within the context of s 62 of the Act, and the view expressed in Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056:

"An expert medical opinion as to the cause of injury is relevant evidence and is "about the injury". Further, to the extent that an opinion has not previously been expressed (by any expert) it results in the opinion being "additional information" not previously considered. In those circumstances, an opinion expressed by a medical expert, in circumstances where the Assessor had not previously received expert opinion of that kind, would be "additional relevant information about the injury".

The plaintiff maintained Assessor Menogue did not have the benefit of the information "of that kind" being the statements of the plaintiff and her family members and the expert opinion of Dr Matalani, which constituted "additional relevant information".

The material that was initially before Assessor Menogue comprised the opinions of Dr Giblin and Dr Todorovic who confirmed the plaintiff's complaint of injury to the cervical spine, thoracic spine and right shoulder. The court considered this material in the context of the material upon which the plaintiff now sought to rely. Specific emphasis was placed on the fact that whilst Dr Matalani took a lengthy history about the plaintiff's contemporaneous complaints, his opinion on causation was in a similar vein to the previous opinions of Dr Todorovic and Dr Giblin which were previously before the MAS Assessor. Relevantly, Davies J indicates:

"It seems to me that if material before the Assessor has expressed an opinion that particular injuries were caused by the accident, the fact that another expert says the same thing but using different or greater analysis will not mean the information is additional. This is because there was an opinion to that effect before the Assessor which, on the face of the Assessor's report, was considered. If the opinion has been expressed, as here, the particular injuries are related to the accident, the precise way the doctor explains why he thinks that is so, cannot amount to additional relevant information."

The court also considered the material contained in the statements of the plaintiff and members of her family could not constitute "additional relevant information" because Assessor Menogue had previously taken a history from the plaintiff in relation to the circumstances of the accident and its sequelae in terms of injury and disability.

Lastly, it was concluded that a party should not be entitled to refer a matter for further medical assessment simply because they obtained a medical report which said something different from previous reports considered by an assessor.

Implications

This decision confirms the view expressed in Garcia v Motor Accidents Authority of New South Wales being that "additional relevant information" is additional information relevant to the assessment that was not previously available to the assessor. However, it seeks to narrow the range of material that can be considered "additional".

That is, a medical opinion which covers the same ground as the material that was previously before the assessor cannot comprise additional relevant information. This includes evidence from an expert not previously before the assessor where the expert opinion arrives at similar findings to the material that was before the original assessor. Arguably, to constitute "additional relevant information" the new material must disclose a fact, observation or finding which was not previously available.

This decision confirms the notion that parties cannot, and should not, be entitled to continue to refer matters for further assessment purely on the basis of a fresh medical report, and to do so is inconsistent with the objectives of the Act, which is to encourage early resolution of compensation claims.

¹ Davies J
² [2009] NSWSC 1056

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