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Nguyen case note and commentary

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

Judgment Date: 3 May 2011

Facts

The claimant was injured in a motor accident in 2007 and a dispute arose between the claimant and the 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) seeking assessment of injuries to the cervical spine and both shoulders.

The 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 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 Assessor “failed to assess any WPI for the loss of shoulder movement”. [44] The review application was dismissed by the Proper Officer (PO) who found that the requirements of s.63 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 Assessor and the decision of the PO on the grounds that the Assessor failed to assess impairment of the upper extremities; that the PO failed to take action to correct the error; and that the PO erred in using the MAA Permanent Impairment Guidelines (MAA Guidelines) clause 1.19 to limit the assessment of impairment under s58(1)(d) of the Motor Accident Compensation Act (the Act).

Issue

Two primary issues in the case were;

  • Was clause 1.19 of the MAA Guidelines, which refers to “the part being assessed” inconsistent with s 58(1)(d) of the Act which requires an assessment of permanent impairment “as a result of the injury caused by motor accident”?
  • Was the impairment of the shoulders a result of the injury caused by the motor accident?

Judgment

Justice Hall held that: “application of common law causation 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 the natural and direct consequence of spinal injury” [94]; and that, the words in s.58(1)(d) of the Act “as a result of” should not be given a broad construction [96].

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 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 judgment effectively sets aside the longstanding approach taken since the commencement of the Act by assessors in relation to impairment of the shoulders arising from an injury to the neck. In particular, it refers to clause 1.19 of the MAA Guidelines and the article in the Permanent Impairment Assessment Newsletter volume 1 issue 2 (July 2002), which deals specifically with shoulder restriction arising from a neck injury.

Assessors must be mindful of this recent judgment when conducting assessments.  It may not be lawful to rely on clause 1.19 to argue that shoulder restrictions should not be assessed unless there has been a shoulder injury with a defined diagnosis.

In this case the focus was upon whether “the provisions of the 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 movement in this case amounted to a permanent impairment that is assessable under the Guidelines.

When assessing similar cases in the future, Assessors should carefully consider the relevant clauses applicable to any impairment assessment, and in particular:

  • whether any presenting restrictions are permanent – that is “static, well stabilised and unlikely to change substantially, regardless of treatment” (clause 1.21 MAA Guidelines); and,
  • whether the range of movement can be reliably assessed, having regard to the tests of consistency referred to in the MAA Guidelines (clauses 1.42, 1.43 and 2.4).

Where a permanent and assessable impairment is found, this should be assessed and combined with any permanent impairment assessed for the neck. 

It is suggested that, to ensure a robust decision and minimise the likelihood of further disputation, 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 clauses 1.21, 1.24, 1.42, 1.43 and 2.2 to 2.9 of the MAA Permanent Impairment Guidelines.