On 10 November 2021, the Supreme Court issued an interesting decision in the matter of Chahrouk v Allianz Australia Insurance Limited [2021] NSWSC 1457 (10 November 2021).

The matter involved a dispute over a “minor injury”, particularly in relation to a SLAP (Superior Labrum from Anterior to Posterior) tear in the right shoulder.  The initial medical assessment had determined that the right shoulder injury was not caused by the accident.  Review was granted and the Panel accepted that there had been an injury to the right shoulder, on the basis that she had made early complaints of right shoulder pain to the GP. 

Imaging showed the presence of multiple tears of the supraspinatus tendon and also a SLAP lesion.

The Panel determined that:

The imaging findings are not related to trauma. There are many studies that demonstrate that they are commonly present in asymptomatic people of Mr Chahrouk’s age.

The imaging findings with reference to the right shoulder are degenerative and are not related to the subject motor vehicle crash. Had a tendon rupture occurred in the crash there would have been significant immediate pain requiring urgent and early medical consultation.

The Claimant argued that the Panel did not specifically deal with the presence or causation of the SLAP lesion (as opposed to the tendon tears) and moreover that the reference to "many studies" was a reliance on extrinsic material without notice or giving him a chance to respond.

The Court determined that the Panel had made the following errors:

1. Denial of procedural fairness by failing to provide any adequate reasoning as to why it was that the right shoulder injury, being a SLAP tear, was determined to be a soft tissue injury and as to why the claimed injuries to the right shoulder (in particular, the claimed SLAP tear) were not causally related to the accident.
    
2. Denial of procedural fairness by failing to respond to a “substantial and clearly articulated argument” on causation, in relation to the SLAP tear.  The argument was essentially that:
   1. there was no prior medical attention to the area;
   2. the Claimant had seen a doctor with contemporaneous complaints within days of the accident; and
   3. even if there was some pre-existing degeneration, the accident was a material aggravating factor.

In relation to the “many studies” argument, the Court did not determine that this was in itself an error, saying that:

The difference between this case and Briggs, Dagher, Robson and Raina, is that in each of those cases the decision-maker was found to have relied in whole or in a material way on a study or studies not disclosed to the parties before the decision was made.

Here, the use of the term "many studies" simply conveyed that it is a trite medical fact that the pathology identified on MRI scanning here, is commonly found in asymptomatic people of the plaintiff’s age.

Had the Review Panel simply made that statement, without referring to "many studies", it would be accepted as basic medical knowledge to which no objection could be taken on judicial review.

It is to look at the Review Panel's reasons with an eye finely attuned to error, to seek to set aside the Review Panel's decision simply because the Review Panel states that this medical fact is supported by "many studies", as one would expect every medical fact is.

From this case we can see the importance of clearly explaining any argument (or counter argument) on causation, in relation to each and every specific injury alleged.   One cannot ensure that a medical assessor does in fact consider the argument, but at least there will be grounds to seek Review. 

In addition, where a specific scientific study is material to a decision, then it ought to be identified in the decision, but a Panel is entitled to rely on settle medical facts and theories without elaborating on the source of that knowledge.

If you have a query relating to any of the information above, please don't hesitate to get in touch with Holman Webb's Insurance Group today.