In brief
- The question of causation must be considered by a Medical Assessor or Review Panel when assessing whole person impairment.
- A Review Panel or Medical Assessor is not bound by the decision of another Assessor on a different statutory question.
- A Review Panel must conduct its own "fresh assessment" and form its own opinion on the medical assessment matter before it.
- The duty to afford procedural fairness does not impose an obligation on a Medical Assessor or Review Panel to put the Claimant on notice that an adverse decision will be made against them.
Background
The Supreme Court handed down its decision in Wood v Insurance Australia Group Limited trading as NRMA Insurance [2025] NSWSC 320 on 4 April 2025.
The Claimant sought judicial review of a Review Panel's assessment of 0% whole person impairment (WPI) in respect of the Claimant's physical injuries.
In April 2018, the Claimant underwent a microdiscectomy to his lumbar spine. On 13 February 2020, a PIC Medical Assessor ('first Assessor') concluded the right sided L5/S1 disc lesion, which led to the surgery, was related to the accident and the surgery was reasonable and necessary in the circumstances.
The parties then referred the WPI dispute to the PIC for determination. On 11 June 2021, a different Medical Assessor ('second Assessor') issued a Certificate accepting the Claimant sustained soft tissue injuries to the lumbar spine and left hip. As both of these injuries had resolved, the Assessor concluded an assessment of the degree of permanent impairment was therefore not required.
In 2022, following dismissal of the Claimant's review application by a PIC President's Delegate, the Claimant sought judicial review in the Supreme Court. A judge accepted the Delegate proceeded on the misconception the second Assessor was required to assess both causation and impairment when the dispute referred to that Assessor was only for the assessment of whole person impairment ('2022 decision'). The judge upheld the Claimant's application for judicial review and remitted the matter back to PIC.
On 21 May 2024, a Review Panel revoked the Certificate of the second Assessor and issued a Certificate certifying the Claimant only sustained a soft tissue injury to the lumbar spine which resulted in 0% whole person impairment.
The Claimant sought judicial review of the Review Panel's decision on the following grounds:
- The Panel erred by determining the right sided L5/S1 disc lesion and the subsequent surgery was not caused by the accident in circumstances where the medical assessment of the first Assessor was not within its remit.
- The Panel, in its reasoning, invalidly assumed an entitlement to 'set aside' the Certificate of the first Assessor, which was unchallenged by the Insurer.
- The Panel failed to observe the content and effect of the 2022 decision.
- The Panel failed to agree with the first Assessor in circumstances where the first Assessor's Certificate remains unchallenged.
- The Panel failed to apply itself to the real question to be decided, resulting in a failure to exercise its statutory function.
- The Panel's failure to bring the first Assessor's Certificate to the Claimant's attention and seek an explanation as to why that determination should be set aside and a contrary decision made, prior to issuing its own Certificate, created practical injustice and was procedurally unfair.
Supreme Court reasons
Justice Lonergan rejected all the Claimant's grounds for review.
Ground one
Justice Lonergan noted the Panel was determining a medical assessment dispute under section 58(1)(d) of the Motor Accident Compensation Act (MACA). In order to properly evaluate causation required under this section, it was necessary for the Panel to consider the question of causation in respect to the lumbar spine surgery. Therefore, Her Honour concluded the Panel carried out their statutory task properly and there was no error.
Ground two
Her Honour highlighted the Panel was not bound by the first Assessor's decision on a different statutory question. However, it was appropriate for the Panel, in completing its statutory function of determining the entire section 58(1)(d) question, to refer to and explain its reasons for its views, including the reasons for disagreeing with the findings made by the first Assessor.
Her Honour commented that any 'concession' of causation by a party to the proceedings was irrelevant and could not curtail, change or limit the Review Panel's task.
Ground three
Her Honour concluded the Panel was required, under section 58(1)(d), to carry out its own fresh assessment. For the Panel to rely on the 2022 decision would incorrectly place restrictions on the scope of its fresh assessment, when no such restriction could ever be applied.
Ground four
Her Honour observed the Panel did have regard to the first Assessor's decision and explained why it considered that decision to be incorrect and why it was not bound by it. Her Honour concluded all the Panel was required to do was to form its own opinion on the medical assessment matter, which it did.
Ground five
Her Honour highlighted ground five was without substance. Her Honour accepted the Panel exercised its statutory function in a manner that was consistent with the proper exercise of its statutory power and obligations.
Ground six
Her Honour noted the requirements of procedural fairness are quite different in the context of a review panel assessment when compared to a contested hearing.
Her Honour concluded the duty to afford procedural fairness did not impose an obligation on the Panel to put to the Claimant that it was going to make a finding of causation that was adverse to him or different to the first Assessor. The Panel was also not reviewing the second Assessor's decision. It was making its own fresh medical assessment as required under section 63(3A) of MACA.
Justice Lonergan refused the Claimant's application for judicial review with an order for costs.
Why this case is important
This case demonstrates the question of causation cannot be distinct from a Medical Assessor or Review Panel's assessment of whole person impairment under section 58(1)(d) of MACA. The two are intertwined, even if the issue of causation has already been dealt with by another Assessor assessing a different statutory question.
Further, this case reminds a Review Panel of its obligation to carry out its own "fresh assessment" and form its own opinion on the medical assessment matter before it when exercising its function under section 58(1)(d) of MACA.
Although this case primarily examined a Medical Assessor's obligations under section 58(1)(d) of MACA, the principles apply equally to claims under the Motor Accident Injuries Act 2017 (MAIA). The equivalent provision in MAIA is found in clause 2(a) of Schedule 2.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
