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Nguyen commentary number 2 judgement

Nguyen judgment

NGUYEN V THE MOTOR ACCIDENTS AUTHORITY OF NSW & ZURICH AUSTRALIAN INSURANCE LTD [2011] NSWSC 351

JUDGMENT DATE: 3 MAY 2011

In Nguyen, Hall J held at [94] that;

“application of common law principles would 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 a natural and direct consequence of spinal injury”.

Points to consider and address when assessing cervical spine injury and reduced shoulder motion.

Assessment

  • Assess cervical spine injury with respect to relevant differentiators
  • Comment on shoulder motion, noting any restriction, location of symptoms (shoulder joint v AC joint v related to trapezius muscle/ somatic), quality of movement, tests for impingement, muscle strength and bulk  as relevant (whether shoulder is listed by the parties as an injury or not)
  • Record ROM both shoulders (provide degrees of motion)

History

Record history of symptoms, documentation of symptoms etc.

Determination

If shoulder restriction, comment on:

  • Is there an impairment [cl. 1.11]
  • Whether it is permanent [cl. 1.21]
  • Passive v active ROM [Cl. 2.4(ii)]. Relevance of findings
  • Whether the ROM  can be reliably assessed having regard to tests of consistency [cl. 1.42, 1.43, 2.4(iv)] (discuss with claimant)
  • How is it 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, it cannot be assessed.

If ROM inconsistent, it should not be used as a valid parameter of impairment [Cl. 4.2 (iv)]. Are other methods of assessment applicable [cl. 2.4(v)]. Consider clause 2.9.  If so, explain reasoning.

Ultimately the decision depends on the clinical judgment of the Assessor, who should explain all reasoning behind the decision.


Issued by:

Injury Strategy Branch

March 2013