On 21 September 2010 the Court of Appeal, comprising Beazley JA, Basten JA and Sackville AJA, considered the operation of section 63 of the Motor Accident Compensation Act 1999. Judgment was published on 1 October 2007.
Section 63 of MACA permits a party to apply to the MAA Proper Officer for referral of a MAS assessment to a review panel. The Proper Officer must refer the matter if he/she “is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect”.
This case considers the definition of the term “material” as applied by section 63. The judgment addresses whether an error in an assessment can oblige the Proper Officer to refer it for review in circumstances where correction of the error is not likely to affect the claimant’s entitlement to damages for non-economic loss.
Facts
Steven Meeuwissen was injured in a motor vehicle accident on 22 May 2000. MAS certified whole person impairment at less than 10%. He later obtained a fresh assessment on grounds of deterioration of his condition.
He applied for review of the second assessment on grounds that it contained error. The Proper Officer determined that if the error identified in the MAS certificate was rectified WPI would increase from 4% to 10%. The impairment would thus remain below the section 131 threshold. She opined: “whilst there may have been an error in the assessment … this error is not material to the assessment”; “… I am not satisfied that there is a reasonable cause to suspect that the assessment is incorrect in a material respect”. She declined to refer the matter for review.
Supreme Court Judgment
The Proper Officer’s refusal to refer the matter for review was the subject of proceedings before Latham J. His Honour concurred with the Proper Officer’s decision. The claimant appealed.
Court of Appeal Judgment
The lead judgment, unanimously endorsed, was drafted by Basten JA.
The issue was succinctly described: “Is an assessment ‘incorrect in a material respect’ where an impairment not taken into account could not, if taken into account, give rise in total to a degree of permanent impairment in excess of 10%?” [9].
This question can also be phrased as: “Whether it was necessary for consideration of the omitted impairment to be capable of reaching a figure in excess of 10% for the assessment to have been incorrect in a material respect” [11].
The Court of Appeal considered various judgments addressing definitions of “material” when applied in an administrative sense. Those decisions provided limited assistance.
The Court of Appeal noted that what must be incorrect in a material respect is the medical assessment, not the resultant certificate. Therefore a medical assessment can be incorrect in a material respect irrespective of whether the certificate is affected by the error.
The Court of Appeal observed that “in a material respect” is less precise than “capable of having a material effect on the outcome of the previous assessment”. The latter language is employed at section 62(1A) in relation to referral for further assessment on grounds of deterioration or additional relevant information. The Court of Appeal thus observed that section 62 sets a higher hurdle (for purposes of further assessment) than is set by section 63 (for purposes of review of an assessment).
The Proper Officer is required to refer a matter when “there is reasonable cause to suspect” that an assessment is wrong. She is a “gatekeeper, not a decision maker” [23]. She is not required to assess the impairment that might arise if an error is cured. She is merely obliged to identify “possible error” [22] as a condition of referral for review.
Where there is reasonable cause to suspect a significant error, fairness requires that a review proceed so that the claimant obtains a decision reached in accordance with the law. The Act’s intention is to ensure that a flawed assessment process is corrected and a proper assessment is issued. Whether a valid assessment is reached should not depend on whether a defective assessment, if cured, might exceed the section 131 threshold.
The Court of Appeal concluded that the Proper Officer:
“clearly misapprehended the scope of the power. She accepted that the impairment which had been ignored was capable of giving rise to a level of permanent impairment greater than the impairments which had been taken into account (potentially increasing the level of impairment from 4% to 10%). Such an omission cannot be dismissed as trivial, insignificant or immaterial. Accordingly, the Proper Officer was wrong to conclude, on the approach she adopted, that the assessment was not ‘incorrect in a material respect’. The error arose from misconstruction of section 63” [25].
The Court of Appeal set aside the decision not to refer the matter to a review panel. Power to refer the matter for review is not vested in the Court. It referred the matter back to the Authority for reconsideration of the merits of the application according to a construction of the Act that accords with the Court of Appeal’s reasoning.
Implications
The Court of Appeal decided that whether an assessment is incorrect in a ‘material’ respect is not to be exclusively determined by reference to whether correction of the error would enable satisfaction of the section 131 threshold. The Proper Officer should not decide not to correct an error merely because that correction would not alter entitlement to damages for non-economic loss.
The Court of Appeal did not define the qualities of an error that would allow the error to be characterised as ‘not material’. It identified that a claimant has a right to the provision of an assessment without error.
A simple reading of the judgment will suggest that any error that has influenced the MAS assessor’s clinical formulation and/or assessment of impairment ought to be reviewed pursuant to section 63.
For further information, please contact a member of our Insurance team:
Dean Newell | Partner
T 61 2 8233 9717
Matthew Seisun | Senior Associate
T 61 2 8233 9716
