Nguyen case note and commentary

Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351

Judgement date: 3 May 2011

Facts

The claimant was injured in a motor accident in 2007. A dispute arose between the claimant and insurer about whether the claimant’s degree of permanent impairment was greater than 10% and therefore whether the claimant was entitled to make a claim for non-economic loss.

The claimant lodged an application with the Medical Assessment Service (MAS) for assessment of injuries to the cervical spine and both shoulders. The medical assessor found 5% permanent impairment arising from the neck injury and determined that any impairment to the claimant’s shoulders was not causally related to the accident. The medical assessor concluded that there was “no evidence of primary and isolated injury to either shoulder…” [26] and that “the significant restricted range of movement involving the right shoulder noted today is directly related to her cervical injury” [28].

An application for review was lodged claiming that the assessment was incorrect in a material respect, in that the medical assessor “failed to assess any WPI for the loss of shoulder movement”. [44] The review application was dismissed by the Proper Officer Reviews (PO) who found that the requirements of section 63 of the Motor Accident Compensation Act 1999 (1999 Act) were not satisfied as no material error was made out.

Supreme Court Summons

The claimant sought relief in the Supreme Court seeking to set aside the certificate of the medical assessor and the decision of the PO on the grounds that:

the medical assessor failed to assess impairment of the upper extremities
the PO failed to take action to correct the error, and that
the PO erred in using clause 1.19 of the Permanent Impairment Guidelines 2007* to limit the assessment of impairment under s58(1)(d) of the Act.

Issues

Did the 1999 Act alter, constrain or limit the application of common law principles relating to causation?
Was the loss of range of motion of the shoulders a result of the injury caused by the motor accident?

Judgement

Justice Hall held that “Application of common law causation principles would, in my opinion, support the conclusion that impairment in one or both of the [claimant’s] upper limbs consequent upon injury to the cervical spine would be compensable as the natural and direct consequence of spinal injury” [94]; and that, the words in section 58(1)(d) of the (1999 Act) “as a result of” should not be given a broad construction..”.

His Honour considered that the impairment of the right shoulder was directly related to the cervical injury and that such a direct connection “satisfies both common law principles of causation and the statutory formulation ‘as a result of’ (the injury)”. Therefore the medical assessment of permanent impairment required “an assessment of the injury to the cervical spine and its direct effects on related areas including, in particular, the [claimant’s] right shoulder” [119].

His Honour made the following orders:

that the certificate of the medical assessor was made contrary to law
that the decision of the PO was made contrary to law, and,
that the matter be referred back to MAS to be determined according to law.

Commentary

This judgement effectively set aside the approach taken since the commencement of the (1999 Act) by medical assessors in relation to impairment of the shoulders arising from an injury to the neck. Medical assessors must be mindful of this judgement when conducting assessments.

In this case the focus was upon whether “the provisions of the [1999] Act operate to alter, constrain or limit common law principles so as to disentitle an injured person to have what might be described as consequential impairment taken into account in the assessment of permanent impairment.” [95]

It should be noted that His Honour did not specifically consider the question of whether the restrictions in shoulder range of motion in this case amounted to a permanent impairment. When assessing similar cases medical assessors should carefully consider the advice provided in the current guidelines on the assessment of permanent impairment issued by the State Insurance Regulatory Authority (SIRA), and in particular:

whether any presenting restrictions are permanent, and have become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment
whether the range of movement can be reliably assessed, having regard to the advice on consistency.

To ensure a robust decision and minimise the likelihood of further disputation medical assessors should take particular care to fully explain their reasons for finding, or not finding, a permanent impairment of the shoulders in such cases, with reference as necessary to the relevant clauses of the current guidelines on the assessment of permanent impairment issued by SIRA.

Points to consider and address when assessing cervical spine injury and loss of shoulder range of motion (ROM)

Assessment

Assess cervical spine injury with respect to relevant differentiators
Is a shoulder injury listed by the parties
Examine and record: shoulder ROM; location of symptoms (shoulder joint, AC joint, is it related to trapezius muscle or somatic); quality of movement; tests for impingement, and muscle strength and bulk.

History

Record history of symptoms and documentation of symptoms etc.

Determination

If loss of shoulder ROM found, comment on:

is there an impairment
is any impairment permanent
passive v active ROM
relevance of findings
whether the ROM can be reliably assessed having regard to tests of consistency
any inconsistency must be discussed with the claimant
how is the loss of ROM of the shoulders consequent upon injuries to the cervical spine
if satisfied there is a permanent and assessable impairment, this should be assessed and combined with any permanent impairment for the cervical spine
if not permanent, any loss of ROM of the shoulders cannot be assessed
if there is inconsistency in range of motion then it should not be used as a valid parameter of impairment evaluation and medical assessors should refer to the section on inconsistency in the relevant guidelines for advice
if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present, and
reasoning must be provided on the methodology used to determine impairment.

*The Motor Accident Guidelines, Part 6 Permanent impairment and the permanent impairment guidelines 2017 overturn Clause 1.19 of the permanent impairment guidelines 2007.