Can a medical assessor assess injuries that fall outside of the ambit of the medical dispute referred to them?

In both matters, the Supreme Court found in NRMA's favour, set aside the certificates issued in respect of the medical assessments and remitted the matters to the PIC for re-determination. Her Honour Justice Adamson (who heard both matters) held that the medical assessor in Toole, and the Panel in Cahill, had acted beyond their jurisdiction and denied procedural fairness by assessing injuries that had not been referred for assessment.

In Toole, key findings included:

• The ambit of the dispute was clear from the terms of the referral and did not include an L2 fracture. Her Honour highlighted that while there may be cases where the ambit of the referral is a question of fact which is for the medical assessor (or review panel) to determine, in this case, the injuries referred were stated with precision and did not include a fracture to L2. Nor did the medical reports submitted by either party indicate that there had been a fracture to L2. Therefore, the medical assessor mistook the extent of her jurisdiction by including an injury in her certificate which had not been referred to her expressly.
• Her Honour [at 51] held that the medical assessor mistook the extent of her jurisdiction by including an injury in her certificate which had not been referred to her expressly and which did not fall within the ambit of what had been referred to her. This error was not one of fact since it was not the result of the medical assessor’s construction of the terms of the referral as a matter of her professional judgment but rather was one of jurisdiction because the medical assessor disregarded the terms of the referral and, in doing so, went outside the bounds of the medical dispute between the parties. It was found that the medical assessor constructively failed to exercise her jurisdiction by failing to assess the actual medical dispute which had been referred to her for assessment and, instead, assessing a matter which had not arisen, whether by way of dispute or otherwise.
• Her Honour indicated that if a medical assessor proposes to go beyond the dispute between the parties which has been referred for assessment, procedural fairness requires the medical assessor to inform the parties of that intention before making the assessment. Practical justice requires that, in this event, the parties be given the opportunity of making submissions and, potentially, adducing further evidence. Had this occurred, the parties could have informed the medical assessor that a fracture to L2 did not form part of the referral and that neither party contended that an L2 fracture constituted an injury or impairment caused by the motor accident.
• Her Honour accepted that, once the medical assessor’s decision is set aside, the decision of the delegate also falls away since it is founded on the validity of the medical assessor’s decision. 

In Cahill, key findings included:

• There was no reference in any of the material or submissions before the Panel to a tear of lumbar disc cartilage, the Panel made no reference to a tear of lumbar disc cartilage in its comprehensive summary of the medical evidence, the examination conducted by the medical assessor did not reveal any basis for detecting a tear in the lumbar disc cartilage and neither party submitted that the injury to the lumbar spine was a non-threshold injury because of a tear in the lumbar disc cartilage.
• The Panel’s reasons fell short of the standard set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot). It failed to set out the actual path of reasoning that led to the finding that the claimant had suffered a non-threshold injury to his lumbar spine in circumstances where the only basis on which the claimant relied on was the presence of radiculopathy of which the Panel had found only one clinical sign.
• Procedural fairness required the Panel, when proposing to determine a crucial matter on a basis on which neither party had adduced evidence or made submissions, to draw the matter to the parties’ attention in order to give them the opportunity to provide material and make submissions about it. The failure to do so, resulting in the Panel’s determination that the lumbar spine injury was a non-threshold injury, involved a denial of procedural fairness. 

These recent decisions emphasise the need for medical assessors to confine their assessment strictly to the injuries expressly referred to them. If a medical assessor (or panel) intends to consider injuries outside the referral, the parties should be notified and provided with an opportunity to make submissions or adduce further evidence, to ensure procedural fairness.

The decisions also serve as a reminder for legal practitioners to carefully define injuries and to review medical certificates for any findings that fall outside the referred scope.