Judicial Review of Medical Assessment in Motor Accidents Case

The court set aside the decisions of the Motor Accidents Authority of NSW regarding the assessment of the plaintiff's injuries due to errors in calculation and referred the matter to a Medical Review Panel.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v Motor Accidents Authority of New South Wales [2014] NSWSC 40 Hearing dates: 10 December 2013 Decision date: 12 February 2014 Before: Bellew J Decision: 1.The decisions of the [NAME] defendant of 6 June 2013: (a)refusing the plaintiff's application for correction of the Certificate issued by [NAME] on 2 April 2013; and (b)referring the assessment made by [NAME] to a Medical Review Panel pursuant to s. 63 of the Motor Accidents Compensation Act 1999 are each set aside; 2.The matters are remitted to the first defendant to be dealt with according to law. 3.The [NAME] defendant is to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW - judicial review- where plaintiff injured in a motor vehicle accident - where her injuries assessed by medical [NAME] - where [NAME] issued certificate containing error - where application made to for referral of assessment to review panel on the basis of the assessment having been incorrect in a material respect - where simultaneous application to correct the error in the certificate - whether approach adopted by decision maker in respect of either application was erroneous in law Legislation Cited: Motor Accidents Compensation Act 1999 NSW Cases Cited: Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266; [2006] NSWSC 1090; (2006) 47 MVR 74 [NAME] v [NAME] (1995) 184 CLR 163 Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253; (2010) 56 MVR 453 Category: [NAME] judgment Parties: [NAME] - Plaintiff Motor Accidents Authority of New South Wales - First defendant [NAME] Authority of New South Wales - [NAME] defendant [COMPANY] trading as [NAME] - [NAME] defendant Representation: Counsel: [redacted] [NAME] and [NAME] - [NAME] defendant Solicitors: [redacted] [NAME] - [NAME] defendant File Number(s): 2013 / 217024 Publication restriction: Nil

Judgment

INTRODUCTION 1By summons filed on 17 July 2013 the plaintiff seeks judicial review of two decisions of the [NAME] defendant. Those decisions arise out of a claim made by the plaintiff pursuant to the Motor Accidents Compensation Act 1999 NSW ("the Act"). The summons is supported by an affidavit of [NAME] of 31 July 2013 which was read without objection. 2The first and [NAME] defendants have each filed a submitting appearance, save as to costs. The relief sought by the plaintiff is opposed by the [NAME] defendant.

THE FACTS 3The facts giving rise to the application are not in dispute. I draw the following summary of those facts from the affidavit of [NAME]. 4The plaintiff was involved in a motor vehicle accident on 12 November 2011. She alleges that on that day, the vehicle she was driving was involved in a collision with another vehicle, as a consequence of which she suffered a number of injuries, both physical and psychological. The [NAME] defendant is the [NAME] Party [NAME] of that other vehicle. 5On 22 February 2013 the first defendant arranged for the plaintiff to undergo a medical assessment by [NAME] ("[NAME]") in relation to her injuries. A letter confirming that assessment stated (inter alia) as follows: "This medical dispute has been referred to you to certify: + The list of the injuries referred and whether they were each found to have been caused by the accident. + The degree of permanent impairment of the injured person as a result of each of those injuries referred that were found to be caused. + Whether the degree of permanent impairment of the injured person as a result of those injuries referred that were found to be caused, is greater than 10 percent" (emphasis in original). 6The letter set out seven separate injuries to be assessed, the [NAME] of which was described as: "Right shoulder - soft tissue injury" 7It is the assessment of the injury to the plaintiff's right shoulder which is relevant for present purposes. 8The plaintiff's injuries were assessed on 25 March 2013. On 2 April 2013 [NAME] issued a certificate pursuant to Part 3.4 of the Act which stated (inter alia) the following: "The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10 % + Cervical spine - soft tissue injury + Thoracic spine - soft tissue injury + Right shoulder - soft tissue injury + Chest - soft tissue injury" 9The certificate was accompanied by a statement of reasons which included the following at p. 7-8: UPPER EXTREMITY Examination of the left shoulder was normal. The right shoulder was mildly tender over the rotator cuff anterolaterally and there was a positive impingement sign. Stressing of the rotator cuff of the right shoulder caused discomfort. There was a restricted range of motion with pain in the right shoulder, measured with a goniometer: Shoulder movements Active ROM Measured Right Active ROM measured Left Flexion 140º 180º Extension 60º 70º Adduction 30º 45º Abduction 120º 180º Internal rotation 60º 90º External rotation 50º 90º

10It should be noted that on the copy of [NAME]'s reasons which was in evidence before me, handwritten numbers appeared beside each of the recorded measurements of the range of movement of the plaintiff's right shoulder. Each of those numbers corresponded to the level of Upper Extremity Impairment (discussed below) constituted by the range of movement in each case. Similar handwritten numbers appeared beside each of the recorded measurements of the range of movement of the left shoulder, but the injury to the left shoulder is not relevant for present purposes. Senior counsel for the plaintiff informed me during the course of the hearing that on his instructions, none of the handwritten numbers were on the document when it was originally received by his instructing solicitor. I accept that to be the case. There is no evidence which might establish how these notations came to be on the document, or who may have put them there. 11In the course of his reasons, [NAME] cited the "AMA Guides fourth edition". This was a reference to the fourth edition of the Guides to the Evaluation of Permanent Impairment issued by the American Medical Association ("the Guides"), by reference to which assessments of whole person impairment are made for the purposes of the Act. He also cited "UEI" which was a reference to "Upper Extremity Impairment". Under the Guides, the assessment of the level of UEI is used as the basis of calculating the degree of whole person impairment which is constituted by a shoulder injury. 12As noted in [9] above, [NAME] set out the ranges of movement which he found to be present in the plaintiff's right shoulder at the time of his assessment. Those ranges of movement are set out in column 2 in the table below. The application of the Guides (the relevant provisions of which are set out in column 3 in the table) to those ranges of movement produces the degree of UEI which appears in column 4: Shoulder movements Active ROM Relevant Provision of the Guides Percentage UEI Flexion 140º Table 38 p. 43 3% Extension 60º Table 38 p. 43 0% Adduction 30º Table 41 p. 44 1% Abduction 120º Table 41 p. 44 3% Internal rotation 60º Table 44 p. 45 2% External rotation 50º Table 44 p. 45 1%

13The [NAME] did not set out, in his reasons, the separate UEI percentages which appear in column 4 above. However, there is no issue between the parties that the application of the relevant provisions of the Guides to the ranges of movement of the plaintiff's right shoulder which were found by [NAME] at the time of the assessment, give rise to a total UEI of 10%. The application of the provisions of Table 3 on page 20 of the Guides to a UEI of 10% leads to a whole person impairment of 6% arising out of the injury to the plaintiff's right shoulder. 14However, at pp. 14 and 15 of his reasons [NAME] (in reference to the plaintiff's right shoulder injury) stated the applicable UEI to be 11%. That was not consistent with the application of the Guides to what he found to be the ranges of movement in the plaintiff's right shoulder, and which were set out in the table at p. 8 of his reasons. Further, the application of the Guides to a UEI of 11% leads to a whole person impairment (arising from the shoulder injury) of 7%. In circumstances where [NAME] also concluded that the injury to the plaintiff's cervicothoracic spine gave rise to a whole person impairment of 5%, the plaintiff's total whole person impairment was assessed at 12%.

THE APPLICATION FOR REVIEW OF THE ASSESMENT 15On 7 May 2013 the [NAME] defendant made an application to the [NAME] (the [NAME] defendant) pursuant to s. 63 of the Act, for a review of the assessment. The submissions made in support of that application included the following: "The [NAME] submits that [NAME] has significantly erred in awarding 7% whole person impairment for the right shoulder at page 15, under the heading "Degree of Permanent Whole Person Impairment" The [NAME] submits that [NAME] has incorrectly calculated right shoulder range of motion and therefore permanent impairment on the day of the assessment. ..... When reviewed, it is clear that the ranges of motion recorded at page 8 significantly differ to [NAME]'s determination at page 14. [NAME]'s calculations at page 8 of his assessment report under the heading "Upper Extremity" suggests a lesser permanent impairment rating. Therefore given that [NAME] does not provide rationale and further workings for his calculations under the heading "Findings on Clinical Examination" or at any other point within the assessment report, this constitutes a 'material' rather than 'obvious' error. In conclusion the [NAME] submits that it has provided the [NAME] with a reasonable cause to suspect that the medical assessment of [NAME] by [NAME] was incorrect in a material respect. The [NAME] submits that the [NAME] is therefore obliged, under s. 63 of the Motor Accidents Act (sic) and the principles enclosed within Meeuwissen v Boden [2010] NSWCA 253, to refer the matter to the Review Panel for further consideration of these pertinent issues. As outlined above, we believe [NAME] has made an error material to the outcome of whole person impairment on the day of assessment." 16The plaintiff's solicitor filed a reply to the [NAME] defendant's application on 10 May 2013, accompanied by submissions in response. Those submissions included the following: "On page 8 of his report ([NAME]) sets out the findings for the range of motion of the right shoulder at the top of the page. At page 14, 3rd paragraph down, he sets out that the range of motion for the right shoulder equates to 11% which, for upper body impairment, relates to 7% percent whole person impairment using table 3 on page 20 of AMA 4. The various findings for the range of motion total 10% not 11% as the Doctor has indicated and therefore the WPI readings for the right shoulder should be 6% rather 7% as the Doctor has indicated. That, in our submission, is an obvious error. It is simply a mathematical error in the calculation of the correct amount for WPI. It is not a material error as to the outcome of the assessment and nor is it an incorrect assessment. The combination of the permanent impairment guidelines and AMA 4 set out that shoulders have to be assessed on range of movement as one of the preferred methods for assessing impairment. [NAME] has clearly done that and has set out his findings which can be found on page 8 of the report...On the basis that the finding for the right shoulder should have been 6% rather than 7%, with the combination of the neck injury at 5% the applicant still exceeds the WPI threshold. It is therefore not a case where the [NAME] is able to establish a material error under section 63 of the Act and in our submission therefore the application should be rejected. At the same time however, the obvious error should be corrected by the Doctor and a new certificate should issue. Please construe our reply application as also an application to correct an obvious error in [NAME]'s report." 17The final paragraph of those submissions was a reference to Chapter 17 of the Medical Assessment Guidelines ("the guidelines") which are referred to below.

THE

DECISION OF THE [NAME] 18By letter of 6 June 2013, the [NAME] advised as follows: "The [NAME] has considered the application for review of the Medical Assessment in this matter and is satisfied that there is reasonable cause to suspect that the assessment is incorrect in a material respect. This application is accepted and will be referred to a Medical Review Panel". 19The letter enclosed a statement of reasons, to which further reference is made below.

THE RELEVANT STATUTORY PROVISIONS 20Section 61 of the Act deals with the status of medical assessments and requires (inter alia) an [NAME] to whom a medical dispute is referred to issue a certificate as to the matters referred for assessment. Section 61(11) provides: "If a medical [NAME] is satisfied that a certificate under this section contains an obvious error, the medical [NAME] may issue a replacement certificate to correct the error." 21Section 63 of the Act, pursuant to which the [NAME] defendant's application to the [NAME] was made, is in the following terms: 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the [NAME] officer of the Authority to refer a medical assessment under this Part by a single medical [NAME] to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (2A) If a medical assessment under this Part (a "combined certificate assessment") is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (3) The [NAME] officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the [NAME] officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical [NAME], or revoke that certificate and issue a new certificate as to the matters concerned. (5) If on the review of a medical assessment of a single medical [NAME] on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review. (6) Section 61 applies to any new certificate or new combined certificate issued under this section. (7) The MAA Medical Guidelines may limit the time within which an application under this section may be made. 22Chapter 16 of the guidelines includes the following provisions applicable to an application under s. 63: [NAME] Determination 16.11 The [NAME] is to consider the application for review within 10 days of the due date for compliance with the requirements of clause 3.15. 16.12 The [NAME] may only refer a matter to a Review Panel if satisfied of the factors set out in s. 63(3), that there is reasonable cause to suspect the assessment of the single [NAME] is incorrect in a material respect, having regard to any relevant information submitted including: 16.12.1 The review application, and any reply to it, and the particulars and any supporting information set out in those documents; 16.12.2 Any other applications and replies and / or MAS Certificates in relation to the same claimant, not limited to the same matter, after the parties have been provided with copies of these documents; and 16.12.3 The object of the Act and the object of MAS. 16.13 For the purposes of s. 63 the word "material" includes that it is relevant and capable of altering the outcome of a dispute about: 16.13.1 Reasonable and necessary treatment, from "not reasonable and necessary" to "reasonable and necessary" or vice-versa; 16.13.2 Related treatment from "not related" to "related" or vice-versa; or 16.12.3 Permanent impairment, from "not greater than 10 percent whole person impairment" to "greater than 10 percent whole person impairment" or vice-versa. 16.14 If the [NAME] is not satisfied that there is reasonable cause to suspect the assessment of the single [NAME] is incorrect, in a material respect the [NAME] may dismiss the application. 16.15 The [NAME] shall advise the parties as to whether the application is accepted and will be referred to a Review Panel or is dismissed, supported by a brief statement of reasons, within 5 days of considering the application. 23Chapter 17 of the guidelines deals with applications to correct a certificate issued by an [NAME] in a case where there is obvious error: Division 5 - Corrections and costs Chapter 17 - Corrections by [NAME] 17.1 If a party to an assessment considers that an [NAME] or Review Panel has made an obvious error in a certificate, that party may make an application to the [NAME] to have the error corrected within 30 days after the date on which the certificate under either clause 13.3, 13.5, 13.9 or 16.24 was sent by MAS to the parties. (Note: This period is different to the obvious error correction period at CARS, which is set at 21 calendar days after the CARS certificate of assessment was issued, which is timed to be consistent with the period for accepting a CARS assessment. Instead, this MAS obvious error correction period is timed to be generally consistent with the period of time for lodging a MAS review as set out in Chapter 16 of these Guidelines). 17.2 Any such application is to be made in writing, setting out details of the obvious error and the terms of the suggested correction. 17.3 The party making the application is to send a copy of the application to the other party. 17.4 Examples of obvious errors in the certificate include, but are not limited to: 17.4.1 a clerical or typographical error in the certificate; 17.4.2 an error arising from an accidental slip or omission; 17.4.3 a defect of form; 17.4.4 an obvious inconsistency between the certificate and the reasons explaining the certificate. 17.5 Within 5 days of receiving the application the [NAME] shall acknowledge the application by writing to both parties, and the [NAME] may seek any further submissions from the parties. [NAME] referral to [NAME] 17.6 The [NAME] shall consider the application within 10 days of acknowledging receipt of the application under clause 17.5 and, if satisfied that there may be an obvious error in the certificate, refer the matter back to [NAME] or Review Panel concerned. In considering whether or not there may be an obvious error in the certificate, the [NAME] shall consider any submissions from the parties. 17.7 The [NAME] shall within 5 days of making such a decision under clause 17.6: 17.7.1 write to [NAME] or Review Panel concerned, referring the matter back to them for consideration; and 17.7.2 write to the parties advising them of the [NAME]'s decision, providing brief reasons. 24Clause 1.6.11 of the guidelines provides that the term "certificate" means: "A certificate issued under section 61(1), including the reasons for any finding under section 61(9)". THE ERRORS ASSERTED BY THE PLAINTIFF 25The plaintiff submitted that the [NAME] erred in two respects, namely: (i)refusing the application for correction of [NAME]'s certificate ("the first error"); and (ii)accepting the application for review and determining that there was reasonable cause to suspect that the assessment of the plaintiff's injuries was incorrect in a material respect ("the [NAME] error"). THE FIRST ERROR 26The starting point of the submissions of senior counsel for the plaintiff was the [NAME]'s conclusion that in order to be obvious, it was necessary for the asserted error to be apparent on the face of the certificate, such that it could be corrected by reference to the certificate alone. 27In short, senior counsel submitted that such conclusion reflected the fact that the [NAME] had adopted an approach which was legally erroneous. The error, it was submitted, arose from the fact that such approach was generally inconsistent with the guidelines, and amounted to jurisdictional error, or error of law on the face of the record, because the [NAME] had identified a wrong issue, or asked himself the wrong question. 28Senior counsel for the defendant submitted that what the plaintiff in fact sought was a review on the merits, a course which was not permissible. He further submitted that in order to be "obvious", it was necessary for the error to be readily apparent, clear and not merely arguable, and that there was no such error in the present case. Finally, senior counsel submitted that even if such an error was made out, a person in the position of the [NAME] should not be burdened with the task of having to recalculate that which was more appropriately within the domain of a qualified medical practitioner. 29I accept that it is important not to blur the distinction between a merits review on the one hand, and judicial review on the other (see [NAME] v Motor Accidents Authority of NSW [2006] NSWSC 1444; (2006) 46 MVR 553 at [59]). It is not my function, in determining the present application, to engage in a review of the merits of the [NAME]'s decision, nor is it my function to determine whether there was, in fact, an obvious error in the certificate. However in my view, the [NAME] defendant's attempted categorisation of the present application as a merits review fails to appreciate the true nature of the plaintiff's position. The plaintiff contends that in determining the application for correction of the certificate, the [NAME] adopted an approach which was legally erroneous because he identified the wrong issue or asked himself the wrong question (see [NAME] v [NAME] (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]; 351. That position does not, in any way, reflect a merits review. 30For the reasons that follow, I consider that the [NAME] erred in the manner for which the plaintiff contends. 31The [NAME], having concluded (in paragraph 10 of his reasons) that [NAME] had miscalculated the total impairment related to the plaintiff's right shoulder injury, proceeded to find that this was not an obvious error. In particular, he said (at paragraph 11 of his reasons): "...the respondent submits that this error should be considered an "obvious error" and be corrected accordingly. However, in accordance with the MAS Guidelines, an obvious error must be apparent on the face of the certificate". 32He then went on to say: "Correction of this error requires reference to the AMA 4 Guidelines and calculations to be made. As more than the certificate alone is required to confirm this error, the error cannot be considered an obvious error". 33In my view, there are a number of difficulties arising from these conclusions. 34Firstly, it is not clear what [NAME] meant by his references to the "face of the certificate" or "the certificate alone". The certificate issued by [NAME] certified (inter alia) that the plaintiff's injuries (which included her right shoulder injury) gave rise to a whole person impairment which was greater than 10%. Accompanying the certificate, and in fact incorporated in the same document, were [NAME]'s reasons. As I have noted, the guidelines define a "certificate" to include the reasons of [NAME]. The [NAME]'s reference to "the certificate alone" leaves me to conclude that he drew some distinction between the certificate on the one hand, and the reasons of [NAME] on the other. That approach was one which was not consistent with the definition of the term "certificate" as it appears in the guidelines. 35The [NAME] did not identify the particular provision(s) of the guidelines upon which he relied to conclude that in order to be obvious, an error must be apparent on the face of the certificate. I was not referred to any such provision(s) in the course of argument. Chapter 17 of the guidelines deals with applications for correction of certificates. In my view, there is nothing within that Chapter, nor within the guidelines as a whole, which would support the approach taken by the [NAME]. 36The reference, by the [NAME], to the necessity for the error to be apparent on the face of the certificate suggests that he may have had in mind the decision of [NAME] in Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266; (2006) 47 MVR 74; [2006] NSWSC 1090. In that case, his Honour was dealing with the meaning of the term "obvious error" in the context of s. 94(6) of the Act. Section 94(4) imposes an obligation upon a [NAME] to issue a certificate as to an assessment of a claim under the Act as soon as practicable after the assessment is made. Section 94(6) is in the following terms: "If the [NAME] is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the [NAME] may issue, or approve of the [NAME] issuing, a replacement certificate or statement to correct the error". 37It will be apparent that s. 94(6) is directed not to errors in certificates of medical assessors, but to errors in certificates of [NAME] assessors. It will also be apparent that in order to issue, or to approve of the issue, of a replacement certificate, the [NAME] must be satisfied that the original certificate contains an obvious error. This may be compared with the provisions of Chapter 17 of the guidelines, which provides that the [NAME] be satisfied that the certificate may contain such an error. 38More importantly however, [NAME] observed (at [144]) that the [NAME] construction of the term "obvious error" as it appeared in s. 94 required identification of its meaning in the relevant statutory context. It was in those circumstances that his Honour went on to observe that errors caught by that provision must be readily apparent on the face of the certificate and/or the accompanying statement of reasons. He concluded that the words of s. 94(6) confined the attention of the [NAME] to the certificate and/or accompanying reasons in order to determine if there was an obvious error. 39In the present case, part of the relevant statutory context in which the meaning of the term "obvious error" is to be considered are the provisions of Chapter 17 of the guidelines. There is nothing within that Chapter which confines the attention of the [NAME] to the certificate alone, as opposed to the accompanying reasons. In fact, the definition of the term "certificate" suggests the contrary. 40Moreover, clause 17.4 of the guidelines cites examples (which are not exhaustive) of what may constitute an obvious error. Those examples include (at 17.4.4) where there is "an obvious inconsistency between the certificate and the reasons explaining the certificate". The guidelines therefore contemplate that in determining whether there may be an obvious error, the decision maker may go beyond the contents of the certificate itself, and consider the accompanying reasons. The [NAME]'s conclusion that an obvious error must be apparent on the face of the certificate reflected an approach which was at odds with the provisions of clause 17.4.4. 41For these reasons, the first error is made out. THE [NAME] 42It was submitted on behalf of the plaintiff that in the event that I were to find that the first error was made out, it would not be necessary to consider the [NAME]. However as the matter was fully argued, it is appropriate that it be considered. 43Senior counsel for the plaintiff submitted, in effect, that the [NAME] error came about as the result of the [NAME] addressing the wrong issue. He submitted that for the purposes of an application under s. 63, what must be incorrect in a material respect is the medical assessment, not the certificate which is issued as a consequence of that assessment. He submitted that in the present case there was nothing to suggest that there was any error in the actual assessment process, and that the error identified by the [NAME] was an error in the calculation which resulted from that assessment. He submitted that this reflected the [NAME] having placed emphasis upon the result of the assessment, rather than the process of assessment itself, and that such an approach was erroneous because it reflected the fact that the [NAME] had identified the wrong issue, or asked himself the wrong question. 44In summary, senior counsel for the [NAME] defendant again submitted that the plaintiff's application amounted to a review on the merits, and that no legal error was discernable. He further submitted that even if error were found, it was not of sufficient significance to warrant intervention by this court and that, in any event, there were other avenues open to the plaintiff pursuant to which it was open to her to challenge the medical assessment. 45Senior counsel for the [NAME] defendant also submitted that inherent in the plaintiff's complaint, was the necessity to subject the reasons of the [NAME] to detailed analysis and scrutiny. He submitted that such an approach was impermissible in a matter of this nature. 46I have set out, in paragraph [9] above, that part of [NAME]'s reasons which relates to his examination of the plaintiff's right shoulder. Against that background, the [NAME] reached the following conclusion (at paragraph 10 of his reasons): "Accordingly, as submitted by the applicant, it would appear that [NAME] has miscalculated the total impairment related to the claimants right shoulder injury. While a difference of 1% may not change the present assessment from greater than 10% to not greater than 10%, it is nevertheless an error and the parties are entitled to an accurate assessment. As such, I am satisfied of reasonable cause to suspect a material error". 47In Meeuwissen v Boden (2010) 78 NSWLR 143; 2010] NSWCA 253; (2010) 56 MVR 453, [NAME] ([NAME] agreeing) identified (commencing at [19]) a number of matters which supported the conclusion that the phrase "in a material respect" as it is used in s. 63 refers to the process by which the relevant outcome is achieved. In particular, his Honour said: "First, what must be incorrect in a material respect is the "medical assessment" and not the certificate which results from the assessment. The subject matter of a medical assessment is a "medical dispute": s. 63(1). A "medical dispute" is defined to mean "a disagreement about one of the matters (referred to as "medical assessment matters") set out in s. 58(1). These include whether the degree of permanent impairment is greater than 10%: s. 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s. 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error". 48In determining the application under s. 63 in the present case, the [NAME] was required to consider whether there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. The error identified by the [NAME], according to his reasons, was an error made by [NAME] in the process of calculating the degree of whole person impairment. That calculation was based on the findings made on assessment. The nature of the error identified by the [NAME] which led him to reach the conclusion set out in [46] above was one which went to the outcome, as opposed to the process, of assessment. There is nothing contained in the [NAME]'s reasons in which he identified any error in the process of the assessment itself. 49In these circumstances the [NAME] erred. In my view, that error is apparent on the face of the [NAME]'s reasons. Its identification is not dependent upon such reasons being subject to minute and detailed scrutiny. 50For all of these reasons, the [NAME] error is also made out.

CONCLUSION 51I make the following orders: (1)The decisions of the [NAME] defendant of 6 June 2013: (a)refusing the plaintiff's application for correction of the Certificate issued by [NAME] on 2 April 2013; and (b)referring the assessment made by [NAME] to a Medical Review Panel pursuant to s. 63 of the Motor Accidents Compensation Act 1999 are each set aside. (2)The matters are remitted to the first defendant to be dealt with according to law. (3)The [NAME] defendant is to pay the plaintiff's costs.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2014