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Diagnosis Related Estimate

Cupac v MAA & Ors [2010] NSWSC 631. Harrison AsJ. 28.06.10.

The plaintiff complained MAS assessor Dr David Maxwell found cervical and lumbar DRE I instead of II.

The Associate Justice quoted Martin v Kelly [2008] NSWSC 577 per Johnson J at [13]-[23]: limited role for judicial review, and referred to Kirk v Industrial Relations Comm’n (2010) 239 CLR 531, and Craig v Sth Aust (1995) 184 CLR 163.

Her Honour noted the statute and Guidelines.

Then [36], “To fall within DRE Category II the MAS Assessor would have to have made a positive finding that the decreased sensation in the right hand was a radicular symptom or sign, verifiable or non-verifiable. He did not do so. If the radicular signs were not present, he was not obliged to make a negative finding.

"In Vitaz v Westform [2010] NSWSC 667 Johnson J expressed this more eloquently. His Honour at [73] stated that he did not think it was necessary for an Approved Medical Specialist to systematically deal with each and every criterion he or she did not consider to be indicated in a particular case, simply so he or she can expressly say they did not apply. I respectfully agree. In my view the MAS Assessor correctly determined that, in respect of the cervical spine, Mr Cupac satisfied none of the diagnostic criteria for DRE Category II. Mr Cupac was correctly placed in DRE Category I for the cervical spine.” [36]

Nor was the lumbar categorization erroneous.

Harrison AsJ noted McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609, and said [in 65]: “… as this Court does not possess the clinical skill and expertise of a medically qualified assessor, it should only intervene if there are clear cases of jurisdictional error.”

The Proper Officer’s refusal to allow review of the assessment was untainted.

Summons dismissed with costs.

P: B K Nolan, inst NSW Compensation Lawyers. 1,2,3D: Crown Solcr submitting. 4D: K P Rewell SC, inst Moray & Agnew.

AMA 5>>


Crnobrnja v Motor Accidents Authority [2010] NSWSC 633. Hulme J. 17.06.10.

The plaintiff sought SCA ss 65, 69 mandamus and certiorari review of the MAA proper officer’s refusal to refer medical assessment to a review panel.

The plaintiff contended medical assessor Dr Truskett failed transparency requirements of the authority’s code of conduct for medical examiners, as well as failing to measure certain movements, and errors in DRE findings.

Hulme J referred to AMA IV, the MAA Guidelines for the Assessment of the Degree of Permanent Impairment of October 2007, and the MAA Medical Assessment Guidelines, particularly Ch 10 Reviews.

To DRE, Hulme J said [28]: “In this connection it is appropriate to recognise that in respect of none of the cervical, thoracic or lumbar spine did [Dr Truskett] refer either to there being ‘no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury of illness’ – other aspects of the description of DRE I. And although Dr Truskett had earlier referred to the radiological examinations, he nowhere said that they were conducted in circumstances of ‘lateral flexion and extension’. It seems to me that ultimately the question boils down to whether an assessor is obliged to refer, either expressly or by necessary implication, to each of the matters necessary to place a claimant in DRE Category I if that is what an assessor concludes.

“Given the different terminology in the descriptions of other categories, different considerations may well apply to them but the description in the AMA Guidelines of Category I requires the absence of each of five distinct matters, namely: significant clinical findings, muscle guarding, documentable neurological impairment, significant loss of structural integrity on lateral flexion and extension roentgenograms, and indication of impairment related to injury or illness.” [29]

Then [31], referring to MAA Guidelines 4.20: “Clearly relevant in this connection is clause 4.20 which … dictates that, ‘when allocating the injured person to a DRE category the assessor must reference the relevant differentiators and/or structural inclusion’. It must also be recognised that the clause is not printed in bold and thus not a directive as to how the assessment should be performed but given the obligation in an assessor to provide reasons, an obligation that must extend to reasons explaining or justifying the decision, it is difficult to see how an assessor can do so without referring, expressly or by implication, to either the absence of ‘objective clinical findings’ or all of the five matters listed in paragraph 29 above. 
“Thus I do not regard Dr Truskett’s assessment as complying with the obligation, contained in s61(9) of the Act to provide reasons,” his Honour said [32], shortly after adding: “Although muscular spasm may well be a significant clinical finding, the absence of only muscular spasm and neurological deficit does not justify a classification of DRE Category I” [in 33].

The second defendant proper officer’s review refusal was erroneous, for failing to address absence of some DRE I criteria, and misdirection in relation to the MACA test.

“Ms Nolan relied also on the references in the Second Defendant’s reasons, ‘there is no error’ and ‘I am not satisfied’. At face value these expressions are departures from the test in s 63(3) of the Act which involves the Proper Officer merely being ‘satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect … ‘. The statement ‘there is no error’ probably carries with it the implication that the Proper Officer was satisfied there was no reasonable cause to suspect error on the part of the assessor but the statements to the effect ‘I am not satisfied’ clearly do not,” his Honour said [39].

In [40]: “It is not sufficient simply to recite the relevant words of s 63(3) so to speak as a mantra, but in fact apply a different test as, at least in relation to some matters, the Second Defendant seems to have done.”

And, “Further demonstration of the Second Defendant’s failure to direct herself properly lies in her failure to recognise the number of errors to which I have referred in Dr Truskett’s assessment. Insofar as a number of these errors relate to the elements necessary to a finding of DRE Category I, they are clearly material.” [in 41]

The conduct breach alleged was that Dr Truskett had noted movements of the plaintiff undressing, although that had occurred behind a screen. Such blatant error was “a matter of considerable concern” but “it is impossible to conclude that the Second Defendant’s conclusion that the matter was not material was not open to her”: [in 43].

The third defendant insurer had not been able to prove prejudice in 12 months delay in the plaintiff bringing the suit.

On costs, the plaintiff had annexed some wrong documents.

Order the proper officer to send assessment for review, costs reserved, indicating 90% allowance to the plaintiff.

P: B K Nolan, inst NSW Compensation Lawyers. 1&2D: Crown Solcr. 3D: M A Robinson, inst Moray & Agnew.


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