Supreme Court New South Wales

• Medium Neutral Citation: Huni v Allianz Australia Insurance Ltd [2014] NSWSC 1584
• Hearing dates: 17/10/2014
• Decision date: 14 November 2014
• Jurisdiction: Common Law
• Before: Garling J

Decision

(1) Decision of the third defendant made in matter number 2013/02/2823 on 19 February 2014 be set aside.

(2) Matter remitted to the second defendant for determination of the application of the plaintiff for review submitted on 20 December 2013 to be considered and determined by the Proper Officer of the Motor Accidents Authority in accordance with law.

(3) Direct that the Proper Officer who made the determination on 19 February 2014, not carry out the further determination, in the matter 2013/02/2823.

(4) Order the first defendant to pay the plaintiff's costs.

• Catchwords: ADMINISTRATIVE LAW - judicial review - appeal from decision of proper officer - dismissal of application for review of medical assessor - proper officer not satisfied there was reasonable cause to suspect medical assessment was incorrect in a material respect - whether proper officer misapprehended nature of limits of functions and powers under Motor Accidents Compensation Act 1999 - whether proper officer should have been satisfied that there was reasonable cause to suspect medical assessment was incorrect in a material respect - whether decision of proper officer was infected with jurisdictional error or error of law on the face of the record of the decision - definition of impairment - assessor obliged to take shoulder impairment into account in assessing whole person impairment - assessor obliged to reach a conclusion notwithstanding inconsistency in range of motion - proper officer ought to have had a suspicion that medical assessment was incorrect in a material respect - proper officer misapplied Guidelines - error demonstrated - remitted for fresh determination
• Legislation Cited: Motor Accidents Compensation Act 1999; Interpretation Act 1987
• Cases Cited: Nguyen v Motor Accidents Authority of NSW [2011] NSWSC 351; (2011) 58 MVR 296
• Category: Principal judgment
• Parties: Memory Huni (P); Allianz Australia Insurance Ltd (D1); Motor Accidents Authority of NSW (D2); The Proper Officer of the Motor Accidents Authority of NSW (D3)
• Representation: Counsel: S Gibb SC / S McSpedden (P); K Rewell SC (D1); Submitting appearance (D2); Submitting appearance (D3); Solicitors: Napier Keen Solicitors (P); Sparke Helmore Lawyers (D1); Crown Solicitor's Office (NSW) (D2, D3)
• File Number(s): 2014/150760
• Publication restriction: N/A

Judgment

1 By an Amended Summons filed on 29 May 2014, the plaintiff, Memory Huni, brought proceedings against three defendants, Allianz Australia Insurance Ltd ("Allianz") as the first defendant, the Motor Accidents Authority ("MAA") as the second defendant, and the Proper Officer of the MAA as the third defendant.

2 The second and third defendants filed submitting appearances, and took no active role in the proceedings.

3 The Amended Summons sought the following relief:

"1. An order in the nature of certiorari setting aside the whole of the decision of the third defendant, the Proper Officer, Motor Accidents Authority of New South Wales made in matter number 2013/02/2823 on 19 February 2014: being the decision whereby he declined to refer the matter to a review panel of at least 3 medical assessors under s 63(3) of the Motor Accidents Compensation Act 1999 ('the Act'), which section would have applied if he was satisfied (as he should have been) that there was a reasonable cause to suspect the medical assessment made by Assessor Preston ('the Assessor') on 19 November 2013 was incorrect in a material respect.

2. An order remitting the matter to the second defendant, the Motor Accidents Authority of New South Wales for determination by the Proper Officer according to law.

3. An order that the first defendant, Allianz Australia Insurance Ltd, pay the plaintiff's costs."

4 In the Amended Summons, the plaintiff sets out the three grounds which she suggests are sufficient to sustain the relief sought.

5 The grounds are:

"(a) The Proper Officer misapprehended the nature or limits of his functions or powers under s 63(3) of the Act and cl 16.12 of the Medical Assessment Guidelines ("the Guidelines") in that he went about making his decision as to the referral under s 63(3) of the Act by:

(i) Having regard to the fact that the Assessor had considered that "there were 'no features from the examination or accompanying medical documentation that identify a separate soft tissue injury in the ... left shoulder'" and thereby being satisfied that there was no reasonable cause to suspect the medical assessment was incorrect in a material respect. The Proper Officer, if he had properly apprehended his functions and if he concluded that the Assessor may have determined the assessment of impairment of the left shoulder on the basis that there was no separate soft tissue injury, should have concluded that there was reasonable cause to suspect the assessment was incorrect in a material respect because a separate injury to the left shoulder is not required to establish impairment of the left shoulder: see Nguyen v Motor Accidents of NSW [2011] NSWSC 351; (2011) 58 MVR 296.

(ii) By concluding that the Assessor "proceeded to assess the left shoulder under the neck injury". The Assessor did not do this or purport to do this. It is not possible to assess impairment of the left shoulder under the Guidelines and the AMA Guides to the Evaluation of Permanent Impairment 4th Edition, American Medical Association ("the Guides") by using the relevant provisions of the Guidelines and the Guides that relate to impairment of the neck. The conclusion of the Proper Officer to this effect was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

(ii) Failing to take into account the relevant matter, namely that the Assessor had failed to make any assessment of impairment of the left shoulder. The Proper Officer had regard to the manner in which the Assessor had proceeded to assess range of movement and correctly concluded that the Assessor found there was inconsistency in range of movement of the left shoulder. The Proper Officer considered that the finding of the Assessor of such inconsistency was sufficient to permit the Assessor, as she did, not to make an assessment of impairment of the left shoulder which was an erroneous test. Under cl 2.4(v) of the Guidelines the Assessor was required to use discretion in considering what weight to give to other available evidence to determine if an impairment in the left should was present. The Proper Officer should have, but did not, take this relevant matter into consideration.

(iii) Making an irrational and illogical finding that the absence of clinical findings (apart from reduced grip strength) was sufficient to conclude there [was] not reasonable cause to suspect the assessment was incorrect in a material respect. The Proper Officer should have considered whether, a[s] it appears there was, a failure by the Assessor to use discretion to give weight to other available evidence such as restriction of range of movement (albeit inconsistent), history, contemporaneous records and reported symptoms. By the Proper Officer making his decision in this way he took into account the irrelevant consideration as to the limited nature of clinical findings and failed to take into account relevant consideration, namely the failure by the Assessor to consider other available evidence to then make a discretionary assessment as to impairment.

(iv) The Proper Officer took into account an irrelevant consideration namely cl 1.40 of the Guidelines which was not applicable in the circumstances.

(b) The Proper Officer should have been satisfied, in the terms of the threshold of satisfaction in s 63(3) of the Act, that there was reasonable cause to suspect the medical assessment made by Assessor Preston on 19 November 2013 was incorrect in a material respect.

(c) By reason of these matters, the Proper Officer's purported decision under s 63(3) of the Act was infected with jurisdictional error or there was error of law on the face of the record of that decision (which decision includes the Proper Officer's reasons)." (sic)

6 By the conclusion of the oral submissions, not all of the grounds remained relevant.

Factual Background

7 The facts in the matter are largely not in dispute.

8 The plaintiff was born in October 1970. She was injured in a motor vehicle accident on 29 November 2012. In respect of that accident, Allianz admitted breach of duty of care.

9 On 12 September 2013, the plaintiff's solicitor submitted the requisite form to the MAA, applying for an assessment as to the plaintiff's level of impairment in respect of her injuries arising out of the accident.

10 That application was accompanied by over 75 pages of medical certificates, medical reports, correspondence and a statement of the plaintiff. The plaintiff's medical treatment history of accident related injuries and disabilities can be adequately gleaned from those documents.

11 On 15 October 2013, Allianz submitted a reply to the plaintiff's application.

12 In that form, Allianz listed:

"... the injuries caused by the accident that you consider currently give rise to an assessable degree of permanent impairment ...".

13 The standard parts of the form enjoined Allianz not to include in that part of the form injuries that "... cannot give rise to a permanent impairment ...", because those injuries would not be referred for assessment of the plaintiff's whole person impairment.

14 Listed by Allianz under the location of the injury and injury type, are soft tissue injuries to the cervical spine, the lumbar spine, the left hip, the left leg, the left shoulder, and the left arm. As well, incontinence is listed as a soft tissue injury. In addition to these physical injuries, Allianz also lists psychological trauma. Annexed to the response submitted by Allianz, was over 50 pages of reports, medical opinions and submissions.

15 The application for an assessment of the plaintiff was referred to a medical assessor, Dr Sally Preston ("the medical assessor"). She undertook an assessment on 19 November 2013. On 27 November 2013, she issued a Certificate under Pt 3.4 of the Motor Accidents Compensation Act 1999 ("MAC Act") as to whether the degree of the permanent impairment of the plaintiff as a result of the injury caused by the motor accident was greater than ten per cent.

16 The Certificate records the following determination:

"The following injuries caused by the motor accident give rise to a permanent impairment which is 5%:

● Cervical spine

● Lumbar spine"

17 That Certificate was accompanied by detailed reasons for the assessment. It will be necessary to return to those detailed reasons in due course.

18 On 20 December 2013, the plaintiff submitted an application for a review of Dr Preston's medical assessment. That application for review was accompanied by, amongst other documents, a statutory declaration of the plaintiff describing her meeting with the medical assessor, and the nature and extent of the physical examination which was undertaken. It included the details of the discussion which took place between the plaintiff and the medical assessor. Accompanying the application for review was a set of submissions described as "Reasons in Support" prepared and signed by the plaintiff's solicitor.

19 On 6 February 2014, Allianz lodged a reply to the plaintiff's application for a review which was accompanied by submissions.

20 On 19 February 2014, the Proper Officer of the Medical Assessment Service of the MAA ("the Proper Officer") refused the application of the plaintiff for a review, and issued a Statement of Reasons for his decision with respect to the application.

21 It is this decision which is the subject of challenge in these proceedings.

Reasons of Medical Assessor

22 I have earlier referred to the Certificate which was issued by the medical assessor. Attached to the Certificate are ten pages of reasons explaining how she reached those conclusions. It is only necessary to set out the relevant parts of those reasons.

23 The medical assessor drew attention to the history of the motor vehicle accident, including that on the evening of the accident the plaintiff reported experiencing pain in her neck, low back, left shoulder and left leg.

24 The medical assessor then encapsulated the history of symptoms and treatment. That history summarises the doctors who were consulted, the imaging studies, the analgesics provided and the physiotherapy sessions.

25 The reasons then proceed to describe current symptoms. They include this description:

"Her neck pain is experienced at the base of the skull and the left side and is worse with driving. She reports pain going in to the shoulder and a burning sensation in that region as well as intermittent pain going down the left arm in to the elbow. At times she reports that the whole left arm feels numb and without power. ... Mrs Huni has noted restricted movement in the left shoulder."

26 The medical assessor undertook a clinical examination. As part of the neurological component of that examination of the upper limbs, the medical assessor determined that there was a reduced grip strength.

27 The medical assessor moved to assess the upper extremity. She reported in the following terms:

"UPPER EXTREMITY

On examination of the upper extremity there was no abnormality in attitude. Range of movement was restricted in all directions but inconsistent on repeat testing. Active range of movement is recorded in the accompanying table.

Shoulder Movements	Active ROM MeasuredRIGHT	Active ROM MeasuredLEFT
Flexion	180°	60-120°
Extension	40°	0-20°
Adduction	40°	10-20°
Abduction	170°	30-90°
Internal Rotation	80°	0-60°
External Rotation	80°	0-30°

No restriction was noted in range of movement at the elbows in flexion and extension. Examination of the writs and small joints of the hands was unremarkable."

28 The medical assessor commented on the consistency of the plaintiff's presentation. She said:

"Inconsistency was noted on examination today particularly on testing the range of movement in the left shoulder. Despite repeated testing, consistent range of movement was not obtained with wide variability on repeat testing. When questioned regarding this as well as advising Mrs Huni of the implications, she advised that it was due to pain in the left shoulder with movement."

29 The medical assessor then undertook a review of documentation with which she had been provided. The summary of relevant documentation noted diagnoses and reports, recording various injuries, including an injury to the left shoulder, or else symptoms being reported with respect to the left shoulder. As well as symptoms, restrictions in movement of the left shoulder were reported over time. Prior to the medical assessment, the most recent report noted was dated 20 September 2013. Of that report, the medical assessor recorded this:

"...notes restricted range of movement in the cervical spine with better range of movement to the right side than the left. Restricted range of movement noted in lumbar spine and in the left shoulder in all directions."

30 The medical assessor expressed the view that there was no separate identifiable injury to the left shoulder joint. She said that the examination findings and history were consistent with somatically referred pain in the left arm from the cervical spine. The medical assessor went on to consider the permanency of impairment, and purported to make determinations as to the permanent impairment:

"... in accordance with the American Medical Associations Guides to the Evaluation of Permanent Impairment (4th edition) and the Motor Accident Authority's Permanent Impairment Guidelines (1 October 2007)."

31 The medical assessor made a determination about a degree of impairment with respect to the cervical spine. She then said:

"A separate calculation with respect to the left upper limb was not possible given the inconsistent range of movement in the left shoulder on repeat testing. (Section 1.43 Motor Accident Authority Permanent Impairment Guidelines October 2007)."

Application for Review

32 As earlier noted, an application for review was submitted to the Proper Officer on 20 December 2013. Accompanying that application was a statutory declaration from the plaintiff in which she gave a general account of the assessment process.

33 The plaintiff notes that she complained to the medical assessor of pain in her neck extending into the left shoulder and arm. The plaintiff described a series of tests which the medical assessor conducted with respect to the range of movement in her left and right arms. She said:

"She requested that I raise the left arm in particular ranges of movement initially on four separate occasions. Each time I raised my left arm I felt pain extending from my neck into my left shoulder and left arm. After each of the initial four episodes in raising my left arm the pain level increased in severity. Each time I attempted to raise my arm I found that I could raise it less and less because of the increased level of pain."

34 The plaintiff then described a further physical examination undertaken by the medical assessor whilst she was lying down on the examination bed. She then said this:

"When she had completed the examination with me laying on the bed she then asked me to again sit up on the side of the bed in the same position I had been when she was previously testing my neck and shoulders ... She then proceeded to ask me to move my head from side to side and asked me to again raise my arms in the same fashion as she had previously. I raised my right arm initially and then my left arm. On this occasion I was asked to raise both arms on two occasions in all the same range of movements as previously. I noticed that I was getting a lot of pain to the left side of my neck and in my left shoulder and left arm. The pain level was higher than when she conducted the initial assessment of the left shoulder."

35 The plaintiff describes a further examination of her back, which was conducted by the medical assessor asking her to bend forwards and twist from side to side. The plaintiff's account goes on:

"When she completed this examination she again asked me to sit on the side of the bed and again move my head from side to side and raise my arms. This was the third occasion I was asked to raise my arms. On this occasion I was only asked to raise my right and left arm on one occasion in a particular range of movement. I was able to raise my left arm to about shoulder height but definitely not above my shoulder. I was still experiencing pain to about the same level that I had experienced during the second examination of my shoulder."

36 The plaintiff gives an account of her discussion with the medical assessor about the raising of her left arm. She says:

"Towards the end of the first assessment of my left shoulder, she said to me words to the affect: 'You are not raising your arm consistently.' I said to her 'It's because I am in pain'. She then asked me where the pain was and I said to her 'I have pain in my neck on the left side and in my left shoulder and my left arm is becoming powerless'. "(sic)

37 The plaintiff notes that when the second and third assessments of her arm movement were undertaken, no similar question was asked of her by the medical assessor.

38 In the final paragraph of her statutory declaration, the plaintiff records this with respect to the medical assessor's report:

"I am aware that in her report she records a range of movement for flexion of the left shoulder up to 120°. I understand this would equate to being able to raise my left arm above shoulder height. I deny that I was ever able to raise my left arm above shoulder height during the examination."

39 Together with that statutory declaration, the plaintiff submitted some imaging reports and four pages of submissions in support of the application for review.

40 Senior counsel for Allianz accepted that notwithstanding the somewhat discursive terms in which the submissions by the plaintiff's lawyer were put to the Proper Officer, the substance of what the Proper Officer was being asked to do in considering whether to refer the matter for a review by a Medical Panel, was that there should have been an assessment of an identifiable whole person impairment with respect to the plaintiff's left shoulder, and that there had been no assessed impairment. In senior counsel's terms he accepted:

"What was being put to the Proper Officer, although not in so many words, was that the results of Dr Preston's clinical examination, when taken together with the other material provided to her, established that there was an assessable impairment of the left shoulder."

41 Senior counsel also accepted that the test to be applied by the Proper Officer was whether he had reasonable cause to suspect that there was material before the medical assessor which established an assessable impairment and which had not been referred to or dealt with by the medical assessor: s 63(3) MAC Act.

The Proper Officer's Decision

42 The introduction to the Statement of Reasons for the Proper Officer's decision notes the history and the medical assessor's finding. It then says this:

"2. The applicant now seeks to have the assessment of Assessor Preston reviewed on the basis that it is incorrect in a material respect. The applicant relies on the particulars set out in the application form and attached submissions.

3. The respondent does not agree that a review is warranted in this matter and addresses the issues raised by the applicant.

4. Section 63 of the Act provides that if the Proper Officer is satisfied that there is a reasonable cause to suspect that the medical assessment is incorrect in a material respect, the review application will be accepted and referred to a Medical Review Panel."

43 The Proper Officer goes on to note that the submission of the applicant is that the medical assessment is incorrect in the following respect "... left shoulder assessment methodology".

44 The Proper Officer then turned to determine the issue before him. He said:

"7. The first issue for me to decide is whether there is reasonable cause to suspect that the left shoulder causation decision is incorrect in a material respect. In my view there is not."

The Proper Officer then went on to note:

"7. ... On pages 7-8 the Assessor provides a summary of the relevant documentation on file before concluding at the top of page 9, that there were "no features from examination or accompanying medical documentation that identify any separate soft tissue injuries in the ... left shoulder joints."

8. In any event, this issue is largely otiose as from my reading of the applicant's submissions it is clear that the applicant's position is that the left shoulder injury should have been found to have been causally related by virtue of the Nguyen judgement. I note the Assessor has not included the left shoulder as a separate injury because of my above reasons in paragraph 7. It is clear the Assessor proceeded to assess the left shoulder under the neck injury which recognises the Nguyen judgement that the left shoulder restrictions can be assessed.

9. Therefore, even if the Assessor was incorrect to find that there was no separate injury to the left shoulder, such an argument is otiose as the Assessor proceeded to assess the left shoulder under the neck injury. Such an assessment would be identical to the methodology for a discrete left shoulder injury. Accordingly there can be no issue that the Assessor failed to properly apply the Nguyen judgement or that there is any reasonable cause to suspect any material error here." (sic)

45 The Proper Officer then went on to consider the medical assessor's methodology for assessment. With respect to this issue, the Proper Officer said:

"16. Even if I accept the applicant's argument, the Assessor would be essentially making an allowance of impairment due to pain. The Assessor would be recognising that the claimant had increasingly reduced range of motion for all planes of motion at each repetition and providing impairment on the explanation of increasing pain. This is expressly prohibited by virtue of clause 1.40 of the MAA Guidelines." (sic)

46 The Proper Officer went on to consider the alleged failure of the medical assessor to use a Goniometer for the left shoulder assessment. A Goniometer is an instrument which measures movement in the shoulder and arm. The Proper Officer dismissed the failure to use the Goniometer on the basis that the use of such instrument was not clinically indicated having regard to the wide variation in shoulder movements detected by the medical assessor. The Proper Officer also concluded that, in any event, even if such an instrument was used the range of outcomes would still have been the same, and that such range of motion outcomes could not have been used as a valid parameter for impairment evaluation.

47 Accordingly, he concluded that he was not satisfied that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect, and he issued his decision dismissing the application for review accordingly.

Relevant Legislation and Guidelines

48 The obligation of the Proper Officer is contained in s 63 of the MAC Act. It is in the following form:

"63 Review of medical assessment by review panel

(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor 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) ...

(3) The proper 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 proper 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 assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

(5) ..."

49 The MAA has issued Permanent Impairment Guidelines pursuant to s 44 of the MAC Act. These Guidelines have the status of Statutory Rules because the provision of s 40 and s 41 of the Interpretation Act 1987 are applicable to them. The Guidelines are based on an American Medical Association publication, commonly known as AMA 4 Guides, but there are significant departures from that publication. Clause 1.2 of the Guidelines notes that they "... are definitive with regard to the matters they address".

50 Since the proceedings are dealing with the extent of permanent impairment, it is useful to note the definition in cl 1.11 of the Guidelines of impairment. Impairment is

"... defined as an alteration to a person's health status. It is a deviation from normality in a body part or organ system and its functioning."

51 Clauses 1.19 and 1.20 describe the process of evaluation of impairment. They are in the following form:

"1.19 The assessor should consider the available evidence and be satisfied that there:

(i) was an injury to the part being assessed caused by the accident;

(ii) is a defined diagnosis that can be confirmed by examination; and

(iii) is an impairment as defined at 1.11 of the MAA Guidelines.

1.20 An assessment of the degree of permanent impairment involves three stages:

(i) A review of medical and hospital records, including:

all available treating and medico-legal doctor notes and reports (general practitioner, specialist and allied health), both prior to and following the accident; and

diagnostic findings from all available relevant investigations.

(ii) An interview and a clinical examination, wherever possible, to obtain the information specified in the MAA Guidelines and the AMA 4 Guides necessary to determine the percentage impairment; and

(iii) The preparation of a report using the methods specified in these MAA Guidelines which determines the percentage permanent impairment together with the evidence, calculations and reasoning on which the determination is based. The applicable parts of the MAA Guidelines and the AMA 4 Guides should be referenced."

52 Clause 1.40 is also of relevance having regard to the content of the reasons of the Principal Officer. This clause deals with the assessment of pain which is required by some Tables. Where that task is required, the clause provides:

"Because of the difficulties of objective measurement, assessors should make no separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA 4 Guides should not be used". (emphasis in original)

53 Of particular relevance to the question are the Guidelines dealing with consistency. They are in the following form:

"Consistency

1.42 Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of claimants' efforts. The assessor must utilise the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the assessor should modify the impairment estimate accordingly, describing the modification and outlining the reasons in the impairment evaluation report.

14.3 Where there are inconsistencies between the assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies should be brought to the claimant's attention, e.g. inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The claimant will then have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness."

54 Chapter 2 of the Guidelines deals with impairment of the upper extremity. Clause 2.2 of the Guidelines notes that the assessment of the upper extremity involves "... a physical evaluation that can utilise a variety of methods".

55 Clause 2.4 is introduced by a cautionary note, which warns that:

"Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination ..."

56 The balance of clause 2.4 is of relevance. It is as follows:

"2.4 ... Range of motion is assessed as follows:

(i) A goniometer should be used where clinically indicated.

(ii) Passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements.

(iii) If the assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions.

(iv) If there is inconsistency in range of motion then it should not be used as a valid parameter of impairment evaluation. ...

(v) If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present."

57 As is apparent, the impairment guidelines of the MAA are in part reliant upon the AMA 4 Guides. Clause 2.2 of those Guides says this, in part:

"Tests of consistency, such as the one described to check the patient's lumbosacral spine range of motion ... are good but imperfect indicators of patient's efforts. The physician must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment be evaluated. If in spite of an observation or test result the medical evidence appears not to be of sufficient weight to verify the impairment of a certain magnitude exists, the physician should modify the impairment estimate accordingly, describing the modification and explaining the reason for it in writing."

Nguyen v Motor Accidents Authority of NSW [2011] NSWSC 351

58 Both parties drew attention to the decision of this Court in Nguyen. In Nguyen's case, the claimant alleged that she suffered permanent impairment as a result of a motor vehicle accident in which she sustained the soft tissue injury to the cervical spine resulting in a spread of discomfort to the left shoulder.

59 The medical assessor had concluded that Ms Nguyen did not suffer a degree of permanent impairment greater than ten per cent. In his reasons, he determined that the claimant had suffered soft tissue injury to the neck, and that there was no evidence of primary or isolated injury to either shoulder. He said this:

"The left and right shoulder symptoms are somatic in nature and the significant restricted range of movement involving the right shoulder noted today is directly related to her cervical injury.

There is no evidence whatsoever supporting causation between the subject accident and any primary and isolated injury to either the right of left shoulder in the subject motor vehicle accident."

Nguyen at [12]

60 The claimant, Ms Nguyen, sought a review of that assessment and contended in submissions to the Proper Officer that the assessor erred by failing to provide for, and include in, his assessment of a percentage of permanent impairment, the loss of flexion and extension, adduction and abduction or internal and external rotation of Ms Nguyen's left and right shoulders.

61 Hall J considered closely the role of the medical assessor in determining permanent impairment. His Honour identified the questions necessary to be determined when assessing permanent impairment under the MAC Act. He said:

"87 In accordance with those provisions, what is assessable under the Act is "permanent impairment" of an injured person where such impairment is "a result of" the injury.

88 "Injury" will commonly be physical injury (that is, personal or bodily injury) although s 3 also gives it an extended meaning to include psychological or psychiatric injury.

89 The provisions of the Act generally are built around three concepts:-

● A motor accident.

● Injury caused by a motor accident.

● Permanent impairment as a result of such injury.

90 The second and third concepts both involve causal concepts.

91 A bodily injury may or may not cause or give rise to impairment. The term "impairment" is not defined in the Act. The expression "permanent impairment" , as earlier noted and extracted above, is defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed).

92 It is trite to say, and in accordance with ordinary human experience, that injury to one part of a person's body can affect or lead to impairment in both the part directly injured and in a related or connected part."

62 Importantly, at [98] Hall J concluded that there was no statutory or other basis for reading the words "the degree of impairment of the injured person" as an impairment of, and only of, the particular part of the person's body which was injured in the accident. His Honour went on to conclude that in light of the fact that the medical assessor had concluded that the impairment of the right shoulder was directly related to the cervical injury:

"119. ... Such a direct connection, in my respectful opinion, satisfies both common law principles of causation and the statutory formulation "as a result of" (the injury). In other words, it is unnecessary for the requisite causal connection to be established to give the expression "as a result of" some broad or artificial meaning. It is, in my opinion, in context, to be given its ordinary meaning. The medical assessment that was required to be carried out in the present case pursuant to s 60 of the Act was to establish the plaintiff's permanent impairment (as an injured person as a result of the motor accident) that required an assessment of the injury to the cervical spine and its direct effects on related areas including, in particular, the plaintiff's right shoulder."

63 Hall J went on to conclude that as the medical assessor had proceeded upon a different basis, namely that it was necessary for the claimant to establish a primary and isolated injury to one or other shoulder, the assessment had been erroneous in a material respect, and that it followed that the Proper Officer's refusal to refer the matter for review was also erroneous.

Plaintiff's Submissions

64 Although the plaintiff's written submissions were broadly based, in oral submissions the plaintiff made it plain that the principal complaint was that the medical assessor had proceeded erroneously in determining that there was no contribution to the five per cent whole person impairment which she found by reason of the plaintiff's left shoulder impairment. The plaintiff submitted that the medical assessor erred because she did not proceed in accordance with the Guidelines to make a clinical assessment of the impairment of the left upper limb on all of the available evidence. She submitted that this error was obvious from two things, namely:

(a) the assessor did not say that that was what she had done; and

(b) there was no assessment included with respect to the left shoulder in the final determination of whole person impairment, where demonstrably there was as a matter of history and upon examination by the medical assessor, a restriction on range of movement in the left shoulder.

65 The plaintiff submitted that so obvious was this error the Proper Officer could only have concluded that he had reasonable suspicion of material error in accordance with s 63 of the MAC Act, sufficient to order a review.

66 The plaintiff also submitted that by reference to the least demonstrated restriction of shoulder movements, the effect on the whole person impairment of the plaintiff would have been material. Ultimately, I do not understand those calculations to have been in contest, as demonstrating that if error on the part of the medical assessor was established, then such error was a material one.

Defendant's Submissions

67 The defendant submitted, ultimately, that the Proper Officer's decision was correct because the medical assessor had conducted the assessment in accordance with the Guidelines. The defendant submitted that, in accordance with those Guidelines, having regard to the range of movement, and lack of consistency in the results of the testing of the range of movement in the left shoulder, the medical assessor was not permitted to find that there had been any impairment of the left upper extremity.

68 Further, the defendant submitted that even if the medical assessor accepted the complaints of the plaintiff that the movements were restricted due to pain the application of clause 1.40 of the Guidelines meant that the assessor could not make any separate allowance for permanent impairment due to pain.

69 As senior counsel for the defendant submitted:

"My proposition is that there was no basis on which the medical assessor could have made an assessment of impairment of the left shoulder ... in accordance with the Guidelines."

70 Senior counsel accepted that it followed from that submission that the medical assessor did not make any assessment of impairment of the left shoulder. Senior counsel accepted that the assessor had not included in the assessment of five per cent whole person impairment any allowance for any impairment of the left shoulder. This is what the authority of this Court in Nguyen's case required.

Discernment

71 The medical reports and history provided to the medical assessor demonstrated that as a matter of history, when she was injured in the motor vehicle accident, the plaintiff sustained an injury to her neck which caused symptoms in her left shoulder.

72 The medical assessor correctly found that there was no discrete left shoulder injury caused by the accident. The medical assessor was also correct to approach the assessment of permanent whole person impairment of the plaintiff by considering whether, as a consequence of the injury to the cervical spine, there was a contribution to the whole person impairment from the symptoms in the left shoulder.

73 The definition of impairment in clause 1.11 of the Guidelines embraces an alteration to the health status as a person constituted by a deviation from normality in a body part and in its functioning. Here there was little doubt, based upon all of the material, that the plaintiff had an impairment, as that term is defined, of her left shoulder which was the consequence of her cervical spine injury.

74 The authority of this Court in Nguyen's case meant that the assessor was obliged in considering the degree of whole person impairment of the plaintiff to take into account such impairment as she judged to exist in the plaintiff's left shoulder. In making a clinical assessment, and in reaching a clinical judgment, the medical assessor was required to use all of the available material with which she had been supplied, and the results of her clinical examination, and bring to bear on that material her clinical assessment and judgment. In carrying out that exercise, the medical assessor was also obliged to comply with the Guidelines where they were applicable.

75 As senior counsel for Allianz accepted, the assessment of the impairment of the left shoulder in this case could have been undertaken by reference to a range of matters including, if satisfactorily established, a diminution in the range of movement in the left shoulder. However, senior counsel for Allianz submitted that, having regard to the provisions of clause 1.43 of the Guidelines, and having found inconsistencies in movement, the medical assessor was obliged to disregard, and not to use the range of motion, as a valid parameter of impairment evaluation (clause 2.4(iv)).

76 Here the medical assessor, having reached a conclusion that there was inconsistency in the range of motion detected at examination, went on to conclude that, as set out above in [31], a separate calculation was not possible with respect to the left upper limb.

77 Senior counsel for Allianz submitted that this conclusion was one reasonably open to the medical assessor and, accordingly, her assessment of the whole person impairment was not erroneous in a material respect, from which it would follow that the Proper Officer's decision was correct.

78 I am unable to agree. What the medical assessor was required to do was to make a clinical judgment about the degree of permanent impairment of the whole person. There was an impairment in the plaintiff's left shoulder. So much is obvious from the medical reports and the medical history with which the medical assessor was provided. As well, the existence of such impairment was also obvious on clinical examination because there was, during each examination of the range of movement, a diminution in the range of movement and not to an insignificant extent.

79 Accepting, as this Court must, that the medical assessor formed the view that due to the inconsistency in the movement she could not determine an appropriate calculation and could not use the range of motion as a "valid parameter" of impairment evaluation, nevertheless, as clause 1.42 of the Guidelines observes, the medical assessor:

"... should modify the impairment estimate accordingly, describing the modification and outlining the reasons the impairment evaluation report."

80 In short, the medical assessor is not excused from proceeding to make any assessment of the impairment. In assessing that impairment, the medical assessor, by the application of the entire gamut of her clinical skill and judgment and by reference to history, examination and all other relevant facts, matters and circumstances, is obliged to reach a conclusion.

81 That conclusion may, in some cases, be that there is no permanent impairment judged to exist. On the other hand, it may that there is a percentage of permanent impairment judged to exist. But, the medical assessor is not excused by reason of the presence of inconsistency in the range of motion detected from engaging in that assessment. The medical assessor is obliged, in accordance with the Guidelines, not to include the range of motion as a valid parameter. That does not mean that the medical assessor must completely ignore the results obtained on the range of motion examination, but must consider them in conjunction with all other material to reach a clinical judgment.

82 In this case, the medical assessor did not do so. She contented herself with determining that, since a separate calculation was not possible, she should not proceed to make any allowance for the whole person impairment.

83 To the extent that the Proper Officer's determination was to the contrary of this analysis, then it was erroneous because the Proper Officer ought to have had a suspicion of the kind necessary to order a review. However, there is, in my opinion, a further error in the Proper Officer's reasons.

84 In paragraph 16 of the Proper Officer's reasons which I have set out above in [43], the Proper Officer called in aid of his conclusion, that the provisions of clause 1.40 of the Guidelines precluded the medical assessor from taking into account pain which was expressed to be occurring whilst the plaintiff's left shoulder was being assessed when it was being moved through the range of motion.

85 The Proper Officer concluded that the medical assessor was being asked to make "... an allowance of impairment due to pain". The Proper Officer held that this was contrary to clause 1.40 of the Guidelines.

86 In my view, that is a misreading of the Guidelines. Clause 1.40 is limited in its application by the words in the first sentence, namely, that some of the tables relative to impairment require pain associated with a particular neurological impairment to be assessed. It is that pain which the Guideline requires medical assessors to exclude from any separate allowance.

87 There is no suggestion in the material provided to me that the medical assessor was engaged in a task of assessing pain associated with a particular neurological impairment contained within some of the tables in the Guidelines. To the extent that the Proper Officer's decision depended upon the argument that clause 1.40 supported the absence of any assessment by the medical assessor of the impairment of the plaintiff's left shoulder, then that decision was wrong and contrary to law.

88 The existence of pain, particularly in this case, where the evidence before the Proper Officer did not suggest that the medical assessor did not accept the complaints of pain nor, in the reasons accompanying her certificate of assessment, did the medical assessor suggest or even hint that she was unable to accept the complaints of pain, there is no reason to regard the pain as excluded from being one of the facts, matters and circumstances relating to the plaintiff, including her history and physical examination to which the medical assessor was obliged to have regard.

Relief

89 For the reasons which I have described above, I am satisfied that the Proper Officer fell into error in failing to have a reasonable suspicion that the medical assessor had fallen into error.

90 The error was a material one. In my view, the whole person assessment of the plaintiff undertaken by the medical assessor was erroneous and in a material respect. The Proper Officer ought to have referred the matter to a review panel for a further medical assessment.

91 In those circumstances, relief ought be granted which has the effect of setting aside the decision of the Proper Officer and requiring the application for review to be considered in accordance with the law.

92 It would be appropriate for the application for review lodged by the plaintiff to be considered by a different Proper Officer than the one who undertook the review process which has been the subject of this judgment.

Orders

93 I make the following orders:

(1) Decision of the third defendant made in matter number 2013/02/2823 on 19 February 2014 be set aside.

(2) Matter remitted to the second defendant for determination of the application of the plaintiff for review submitted on 20 December 2013 in accordance with law;

(3) Direct that the Proper Officer who made the determination on 19 February 2014, not carry out the further determination, in matter 2013/02/2823.

(4) Order the first defendant to pay the plaintiff's costs.

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Decision last updated: 19 November 2014