Wharram v CIC Allianz Insurance Limited

The Assessor's certificate

1. The Assessor first set out the list of injuries to be assessed. These included all of those which he ultimately rejected as being caused by the accident. The Assessor noted that the plaintiff's general practitioner medical history suggested that he had a history of vascular headaches, back pain, hypertension and a right shoulder injury in 2010.
2. Under the heading "History of the Motor Accident", the Assessor briefly summarised the accident, noted that an ambulance attended and that the plaintiff was taken to Wollongong Hospital. He recorded: There were multiple injuries. He had fractured ribs. There was a rupture of the spleen with laparotomy.
3. The following sections of the certificate read as follows: History of Symptoms and Treatment Following the Motor Accident Mr Wharram was discharged on 19 November 2016. He returned home with the assistance of his partner. He had assistance from her at her home for two to three months. Mr Wharram said that he was off work for about six months. He returned to work to suitable duties in the warehouse for six months and then returned to truck driving. Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident Mr Wharram had a partial medial meniscectomy at his right knee on 8 November 2017. This was already scheduled prior to the motor vehicle crash. Current Symptoms Mr Wharram said that his memory was poor. He has headaches. He rated his worst pain as his neck pain which he said was severe and limiting. He was worried about the side effects of medications. Mr Wharram said that he had stomach problems and had diarrhoea with multiple trips to the toilet each day. There are kidney stones. He has had three removed and there are more to be treated. Mr Wharram said that he had lower abdominal pain and his abdominal scar was itchy. Mr Wharram said that he was not enjoying life. He said he was restricted in his leisure activities. He said he was assisted by his partner with activities of daily living. Mr Wharram also reported sexual dysfunction which he thought may be related to the medications he was taking. Mr Wharram sees his local Doctor, Dr Brodsky, He also sees a neurologist, gastroenterologist and self funds treatment from an osteopath. Mr Wharram is working as a truck driver for four days per week. He does deliveries. He does not have heavy work to do as the materials are loaded and unloaded by forklift and a number of the tasks and the tie down mechanisms are automatic. He also works on overtime. Current and Proposed Treatment Current medications are Armaforce, Micardis, Sozol, Biaxsig, Endep, metamucil, Endone at a dose of approximately 150 to 200 mg per day, diclofenac, paracetamol and prazosin. 4. Findings on Clinical Examination Clinical Examination Mr Wharram is right handed, 183 in height and weighs 106 kg. This is a BMI of 32. Mr Wharram was co-operative and concentrated adequately. His memory to formal assessment was within normal limits. Mr Wharram scored 28/30 on the Mini Mental State Examination which is a normal score. At the cervical spine there was markedly and symmetrically reduced range of motion (to 40% normal) without muscle spasm or guarding and there were no radicular symptoms. There was variable movement at both shoulders which Mr Wharram said was due to pain from his neck. The maximum observed movement was abduction to 90 degrees, adduction to 20 degrees, flexion to 70 degrees, extension to 30 degrees, external rotation to 70 degrees and internal rotation to 60 degrees. There was a full range of motion in other upper extremity joints. Circumferences of the upper extremities were right 29 cm and left 29 cm. There were no neurological abnormalities in the upper extremities. No abnormality of the chest was detected. With reference to the abdomen there was a central laparotomy scar extending from the xiphisternum to distal to the umbilicus. There was no incisional hernia present. There was slight colour contrast and slight trophic changes. Tenderness was reported over the lower abdomen diffusely. Mr Wharram said that he had an ultrasound which had diagnosed a left inguinal hernia. This was not detected at the examination. At the lumbosacral spine there was markedly and symmetrically reduced range of motion (to 40% normal) without muscle spasm or guarding and there were no radicular symptoms. Straight leg raising was to 70 degrees bilaterally. There was a full range of motion in the lower extremity joints. There was no scarring over the right patella. There was a full range of motion at both knees. There was no crepitus at the knees and both knees were stable. Circumferences of the lower extremities were right 41.5 cm and left 41.5 cm. There were no neurological abnormalities in the lower extremities. Consistency of Presentation Mr Wharram was inconsistent in his presentation with reference to his shoulders. He said that variable pain produced variable restrictions of movement of the shoulders. 5. Review of Documentation Relevant Imaging Studies and Other Investigations There were no imaging studies to review. Summary of Relevant Documentation The ambulance form documents the incident on 28 October 2016. There was no loss of consciousness recorded and the Glasgow Coma Score was recorded as 15/15 on multiple occasions. The discharge summary from the Wollongong Hospital shows an admission from 28 October 2016 to 18 November 2016. It was noted that there were multiple rib fractures and grade 5 splenic laceration. An emergency splenectomy was performed. There was a postoperative CT which showed a thrombus in the splenic vein extending to the portal vein. Anticoagulants were commenced and recommended for six months. The clinical records of Dr Brodsky have been provided. These show a past history of hypertension, vascular headaches in 2003, back pain in 2007, gastrooesophageal reflux in 2010. The initial consultation after the motor vehicle crash was on 21 November 2016. There were subsequent consultations. I noted the photographs which appeared to be of Mr Wharram. The motor vehicle accident medical certificate completed by a doctor at the Wollongong Hospital listed grade 5 splenic injury, left posterior 7th and 8th rib fractures. The report of Dr Brearley dated 17 March 2017 is a medicolegal surgeon's report. He provided an assessment and an evaluation of whole person impairment. The report of Dr Yong dated 08 June 2017 is a medicolegal occupational physician's report. The report of Dr Stapleton dated 28 March 2017 is a medicolegal surgeon's report. He provided an assessment of whole person impairment. The report of Dr Conrad dated 20 November 2018 is a medicolegal surgeon's report. He provided an evaluation of whole person impairment. The report of Dr Truskett dated 03 June 2019 is a medicolegal surgeon's report. He provided an evaluation of whole person impairment. The operation report of Dr Lording dated 08 November 2017 shows a right knee arthroscopy, partial medial meniscectomy and chondroplasties. The report of Dr Caine dated 19 July 2017 was noted. I noted the medicolegal psychiatrist's report of Dr McClure dated 28 May 2019. The MRI of the brain on 28 February 2019 is reported as showing white matter changes. 6. Conclusions Diagnosis and Causation In the motor cycle crash on 28 October 2016 Mr Wharram sustained multiple rib fractures. He sustained abdominal injuries with a ruptured spleen which resulted in a splenectomy. He has had postoperative complications including a thrombus in the splenic vein. Mr Wharram did not sustain a traumatic brain injury. There is no recorded loss of consciousness. There is no evidence that is contemporaneous with the incident that he sustained significant injuries to his neck, back, right upper or right tower extremity. There is no evidence of a major staphylococcal infection, including septicaemia. There are subsequent gastrointestinal symptoms. Review of the general practitioner reports shows the use of multiple medications including opioids. Specific symptoms related to the neck and back are first recorded in the general practitioner records on 3 March 2017 at which back pain is noted. After that time with reference to the neck no symptoms are recorded up to the last consultation on 30 June 2017. Thus it is concluded that significant injuries did not occur in the neck or back related to the subject accident. Summary of Injuries Listed by the Parties and Caused by the Accident The following injuries WERE caused by the motor accident: • Ribs - left 7th and 8th fracture • Right patella - abrasion and contusion • Abdomen-thrombus splenic vein • Abdomen-scarring • Upper and lower digestive tract - nausea and diarrhoea (Emphasis added)
4. The Assessor then listed the injuries which he determined were not caused by the accident (set out at [6] above), and went on to make his assessment of whole person impairment.
5. In the Proper Officer's Statement of Reasons, having dealt with preliminary matters, the Proper Officer listed the issues in dispute as being: • Causation of cervical spine and lumbar spine injuries; • Insufficient reasons in relation to cervical spine and lumbar spine; and • Unqualified to assess upper and tower digestive tract injuries.
6. The Proper Officer then summarised submissions that were made by each of parties. She was satisfied that the Assessor had obtained a history from the plaintiff regarding his post-accident symptoms.
7. The Proper Officer concluded, in relation to the first two issues, as follows: 24. I note that the Assessor has referred to the claimant's history of the accident and history of symptoms and has set out a summary of evidence. I am satisfied that the Assessor has reached his finding on causation based not only on the medical evidence, but has also taken into account the history provided by the claimant and his clinical examination findings. In addition, I am satisfied that when considered as a whole, the Assessor has set out his reasons in sufficient detail so as to demonstrate his "actual path of reasoning". I am therefore not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect, on the ground of causation of cervical spine and lumbar spine injuries and insufficient reasons.
8. In relation to the third issue, the Proper Officer noted that the Assessor had included amongst the modules for which he was approved for inclusion was "digestive". There is no challenge to this determination.
9. For those reasons the Proper Officer was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect on that basis.

Submissions

1. Although six grounds of appeal were set out in the summons, senior counsel for the plaintiff distilled those grounds to identify three bases for challenging the decision of the Assessor. The first basis was an error in relation to the causation of the injuries. The plaintiff submitted that the Assessor failed in properly undertaking the task required of him under the medical and non-medical determinations set out in clause 1.6 of the Permanent Impairment Guidelines by reason of what follows.
2. The plaintiff submitted that the Assessor proceeded on the basis that the purported absence of contemporaneous record of complaint in clinical material was determinative of the causation and the occurrence, in this case, of significant injury to the neck and back. In that way, the plaintiff submitted, the Assessor failed to determine causation correctly. The plaintiff submitted that the Assessor's focus on contemporaneous record of complaint as determinative obscured any correct factual inquiry, particularly in a setting where there was no relevant pre-existing condition and no post-accident intervening event that explained the significant injury to the neck and back. The plaintiff submitted that a focus on the absence of evidence was an incorrect basis for fact finding. The plaintiff pointed to a number of authorities which referred to the difficulties of relying on contemporaneous documentary records or the absence of them.
3. The plaintiff submitted that the second basis giving rise to error was that the Assessor failed to engage with the plaintiff's clearly articulated argument that he had sustained injury to his neck and back in the accident. The plaintiff submitted that the Assessor did not engage with that argument because he did not have regard to the content of the documents placed before him, and did not in his clinical examination obtain a sufficient history from the plaintiff. In that way, the plaintiff submitted, the Assessor did not apply the medical determination and the non-medical determination set out in the Guidelines.
4. The third basis of error concerned the sufficiency of the Assessor's Reasons. The plaintiff submitted that the Assessor's report did not set out the actual path of reasoning to show the decision the Assessor arrived at. The plaintiff submitted that there was no probative evidence to support the decision maker's negative causation finding. The plaintiff submitted that, even if the Assessor's determination that there was no contemporaneous record of injury contained in the materials was accepted, there was no other evidence which denied the causal relationship between the lower back injury and the motor vehicle accident. There was no other evidence of a subsequent intervening event giving rise to the injuries to the neck and lower back, and the plaintiff's neck and lower back injuries had been accepted by the defendant's own medico-legal expert.
5. The defendant submitted that the absence of any contemporaneous evidence of injury to the neck and back was taken into account by the Assessor as only one element of his process of reasoning. In that way, the Assessor's conclusion, "Thus it is concluded that significant injuries did not occur in the neck or back related to the subject accident", cannot be taken to relate only to the absence of contemporaneous medical evidence. Rather, it relates to the whole of the analysis preceding that sentence in the report, including the history elicited from the plaintiff, the findings on clinical examination, the summary of the medical material, and the specific review of the records. Those records provided evidence of a delay of almost five months after the accident before there was any report of back pain, and more than eight months before there was any report of neck pain.
6. The defendant submitted that the nature of the motor accident was not such that injury to the neck and/or back was inevitable. The defendant submitted that there was no objective evidence of any significant injury to the neck or back on clinical examination.
7. In response to the submission that the Assessor had failed to engage with the plaintiff's clearly articulated argument, the defendant submitted that the injuries to the neck and back were included amongst those referred for assessment. In that way it was obvious that the Assessor was fully aware that the plaintiff was asserting that his neck and back injuries arose from the accident. The Assessor did not fail to engage with the argument. Rather, he engaged with the argument, and disagreed with it.
8. In response to the plaintiff's argument concerning a failure to set out a path of reasoning, the defendant submitted that the plaintiff's submissions appeared to suggest that it was not open to the Assessor to find that the neck and back injuries were not caused by the accident unless there was some subsequent intervening event giving rise to those injuries. The defendant submitted that this was to reverse the onus. The plaintiff had to prove that the alleged injuries were caused by the accident.

(a) Causation and reasons

1. The issues of causation and whether the Assessor has provided reasons which adequately show his path of reasoning in reaching his conclusion, are closely linked in this matter. The plaintiff submitted that the Assessor's approach to causation can be ascertained from what appears in section 6 of his report, and that demonstrates error. The defendant submitted that the final sentence of the conclusion in section 6 is one based on the material contained both in section 6 and in earlier sections of the report. The plaintiff said that, if the defendant is correct in that regard, the report does not disclose clearly or at all the Assessor's path of reasoning.
2. It must first be said that the Assessor's report is economical. The sections dealing with the plaintiff's pre-accident medical history, the history of the accident and his history of symptoms following the accident are very brief. A significant example of this is where the Assessor, in taking a history of the accident, says only, There were multiple injuries. He had fractured ribs. There was a rupture of the spleen with laparotomy. When the issue at the assessment concerned particularly whether there was permanent impairment to the neck and back, a failure to record what injuries the plaintiff claimed to have suffered in the accident impacts on any assessment of causation, and represents a defect in the path of reasoning to the Assessor's conclusion.
3. Further, in the section headed "History of Symptoms", nothing is in fact recorded of his symptoms. That is similarly significant when the Assessor has subsequently relied on contemporaneous records to conclude that he had no symptoms until March 2017.
4. Section 6 suffers from a number of difficulties. First, it does not purport to deal with the findings on clinical examination, and it does not make reference to the absence of pre- or post-accident injuries or disabilities. A substantial portion of section 6 focuses on documents said to be contemporaneous with the incident, and what are described as "significant injuries". With regard to the latter, the final sentence in section 6, when taken with the earlier reference to what was shown on contemporaneous reports, appears to suggest that the Assessor's focus was on significant injuries rather than the issue of permanent impairment. Indeed, the plaintiff submitted that in that way the Assessor had asked himself the wrong question. Clause 1.5 of the Guidelines makes clear that the assessment is to determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident.
5. A further reading of section 6 of the Assessor's report leads me to conclude that his conclusion "that significant injuries did not occur in the neck or back related to the subject accident" was based on what was contained in section 6 of the report and nothing else. The introductory word, "Thus", tends to support that construction of the Assessor's conclusion.
6. If it was based on anything else, the Assessor did not set out a line of reasoning to assist in such a conclusion. The term "significant injuries" is not a term of art in the assessment of permanent impairment. It seems clear that the Assessor was looking in the contemporaneous material to see if there were significant injuries because he says that there was no evidence contemporaneous with the incident that the plaintiff sustained significant injuries. Having made reference to the time when any complaints associated with the neck or back appeared, he concluded that "significant injuries" did not occur in those parts of the body related to the accident.
7. There are two further problems with that. First, the Assessor, in section 6, appears to have ignored what the plaintiff told him, recorded under the heading "Current symptoms" that "He rated his worst pain as his neck pain which he said was severe and limiting". He seems to have ignored the limitation of movement which he found when conducting his clinical examination and which was earlier noted in section 4 of the report. Secondly, he also appears to ignore the fact that there was no evidence of any pre-existing or post-accident trauma that would explain the pain and the limitation of movement. This is not a reversal of the onus as the defendant asserts. If there is no history of pre-accident or post-accident trauma or disability, that is a matter which the Assessor needs to factor in to the issue of causation. Although in the pre-accident medical history the Assessor refers to "back pain", it is not otherwise described either in relation to its nature or location. Further, in recording what the plaintiff sustained in the accident, the Assessor, apart from mentioning fractured ribs and a rupture of the spleen, simply refers to "multiple injuries", as I have noted.
8. Where none of those matters is mentioned or referred to in section 6 of the report, it is reasonable to conclude that the Assessor's conclusion in section 6 is based only on the matters discussed in that section of the report. If he intended that that conclusion took into account all of those other matters, the Assessor has failed to disclose his path of reasoning: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [48].
9. The Assessor's focus on contemporaneous records has deflected the Assessor from undertaking the causation enquiry that he was bound to undertake. The danger of fact finding based on contemporaneous material was highlighted by Basten JA in Mason v Demasi [2009] NSWCA 227 at [22]: [22] First, the trial judge was invited to discount the appellant's oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others: (a) the health professional who took the history has not been cross-examined about: (i) the circumstances of the consultation; (ii) the manner in which the history was obtained; (iii) the period of time devoted to that exercise, and (iv) the accuracy of the recording; (b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings; (c) the record did not identify any questions which may have elucidated replies; (d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording; and (e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history.
10. In a similar vein, Campbell J said in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [52]: Moreover, the juxtaposition between the statement that the material provided by the parties had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident with the following analysis of contemporaneous documentation persuades me that the Review Panel identified a wrong issue, namely, did treatment providers in the first month or so following the motor accident make a record of complaints of symptoms in the lumbar spine? Undoubtedly, it was relevant to consider that material in the process of determining the right question, but it was wrong to treat this consideration as decisive, not least because [e]xperience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v. Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]). The medical histories were taken in furtherance of a purpose which is not identical with the purpose of resolving the medical assessment matter before the Review Panel: Container Terminals Australia v. Huseyin [2008] NSWCA 320 at [8]; Mason v. Demasi [2009] NSWCA 227 at [2] and Gulic v. O'Neill [2011] NSWCA 361 at [24]. These statements were made in the context of the exercise by the Court of Appeal of its powers of rehearing pursuant to s.75A Supreme Court Act 1970. But they are apposite to the exercise by the Review Panel of its powers under s.63 of the Act, especially subs. (3A). In my judgment the identification of this wrong issue was jurisdictional error. (emphasis in original)
11. Similarly in Bugat v Fox [2014] NSWSC 888 R Hulme AJ said: [30] What Dr Ryan had said in his Certificate concerning causation was merely:- The documents which are germane in determining the presence or absence of an injury are those most contemporary with the time of the accident. The contemporary documents appear to be the report of the ambulance (Healthcare Record J487987, 12 July 2009), the discharge summary from Royal North Shore Hospital Emergency Department (12 July 2009), Dr Jayne Crew, Senior Resident Medical Officer. Based on the evidence in these documents I conclude that Ms Bugat injured her cervical spine, thoracic spine, chest and left knee in the index motor vehicle accident. [31] One of the pivotal questions for the Panel was whether the injuries of which the Plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the Plaintiff's claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the Plaintiff's statements which the Certificate discloses were made to the Panel to the effect that at the time of the accident she suffered "pain in her neck going out to both shoulders". [32] While I accept that, as an administrative decision maker, the Panel's reasons should not be subjected to "minute and detailed textual criticism in the hope of finding something on which to base an argument" - Allianz Australia Insurance Limited v Motor Accident Authority of NSW (2006) 47 MVR 46; [2006] NSWSC 1096 at [36] - in expressing themselves the way they have, the Panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.
12. The focus by the Assessor on contemporaneous records seems to have been misplaced because of the way the relevant doctors recorded matters. The first visit by the plaintiff to his GP after the accident was on 21 November 2016. As with a number of subsequent visits to this GP on 24 November, 2 December, 7 December, 19 December, 3 January 2017, 23 January, 1 February, 2 February, 6 February and 10 February, the doctor did not record any reason for the visits. All that was recorded was "surgery consultation". The first time any reasons for contact were recorded was by a different GP on 3 March 2017 where "back pain - buttock" was recorded. That method of record keeping only highlights the dangers, emphasised in the authorities to which I have referred, of making findings of fact or drawing firm conclusions from contemporaneous records.
13. Further, it is not illogical to accept that a person may not suffer what might be described as a significant injury in an accident but might, as a result of how that injury manifests in disability, result in permanent impairment. In that way, the focus on whether significant injuries were suffered was an illegitimate way of dealing with the issue of causation and amounted to the Assessor asking himself the wrong question. These matters demonstrate that the Assessor fell into error when assessing causation.

(b) Response to a clearly articulated case

1. I do not accept the plaintiff's submission that the Assessor failed to respond to the plaintiff's clearly articulated case concerning his neck and back. That case was said, at the hearing, to be one whereby, although specific traumatic injury might not have been able to be demonstrated at the time of the accident, there was, nevertheless, a development of the disability and impairment in the months after the accident. I am not at all convinced that that was a clearly articulated case put by the plaintiff at the time of the assessment. The case that was put was that he had suffered permanent impairment by reason of injuries and disabilities to his cervical and lumbar spine. The Assessor did not ignore that claim but, for the inadequate reasons which I have found, determined the matter against the plaintiff. It cannot be said in those circumstances that there was a failure to respond to a clearly articulated case in the way discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088.

Futility

1. The defendant submitted that, even if the Assessor did not satisfy his obligations in relation to the finding of causation, or did not provide an adequate path of reasoning to his conclusions, no order should be made quashing his certificate, on the basis that it would be futile to do so.
2. In this regard, the defendant first submitted that there was no challenge by the plaintiff to the findings on clinical examination. It next drew attention to those parts of the findings on clinical examination that are italicised in the portions of the Assessor's report set out at [13] above, and to the Diagnosis-Related Estimate (DRE) categories in relation to the spine contained in the Permanent Impairment Guidelines. The defendant submitted that the findings on clinical examination clearly place the plaintiff in DRE category I which provides nil percentage impairment. That is because the low back and neck pain was symmetrical, whereas the requirement to bring the plaintiff within DRE category II was that there either be guarding or non-verifiable radicular complaints or non-uniform range of motion, called dysmetria. The defendant submitted that these findings were quite unrelated to whatever view the Assessor took of the contemporaneous records. The findings would not have added any percentage of permanent impairment to what had otherwise been found by the Assessor. In that way, any errors in causation or the reasons had no bearing on the outcome of the clinical examination.
3. The plaintiff submitted in response that ordinarily the futility argument would be directed towards a submission that nothing would change if a further assessment was carried out. The plaintiff submitted that an argument that, even though there was error in relation to causation findings and reasons, one could confidently say that the assessment would remain the same, was misplaced. The plaintiff submitted that, if the Assessor had not focused on significant injuries at the time of the accident, but on impairment which may have come about since the time of the accident, the final determination of permanent impairment might have been different. Reference was made in that regard to Nguyen v Nguyen [2011] NSWSC 351.
4. The Motor Accidents Compensation Act 1999 (NSW) relevantly provides: 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): … (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. … 131 Impairment thresholds for award of damages for non-economic loss No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. 133 Method of assessing degree of impairment (1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part. (2) The assessment of the degree of permanent impairment is to be made in accordance with: (a) Motor Accidents Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force - the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition. (3) … (emphasis added)
5. In Nguyen, Hall J noted a submission by the insurer, Zurich, at [70] as follows: In aid of the restricted interpretation contended for by Zurich, attention was drawn to the phrase "injury caused by" . This was said to indicate that permanent impairment referred to in s.58(1)(d) had to be caused directly or immediately as a result of the accident.
6. In dealing with that submission, his Honour said: [97] The impairment threshold provisions for awards for non-economic loss in s.131, s.133(1) and s.58(1)(d) are directed to "the degree of permanent impairment of the injured person as a result of the injury ..." and whether that degree is greater than 10%. [98] There is, in my opinion, no warrant for reading the words "the degree of impairment of the injured person" as an impairment of and only of the particular part of a person's body injured in an accident. The reference to "permanent impairment" is expressed as related to the injured person ("of the injured person") as a result of the injury caused by the motor accident. The impairment in s.131 and related provisions is not restricted, as argued by Zurich.
7. If the Assessor had identified the injuries the plaintiff claimed to have suffered in the accident, and the symptoms which he experienced between the accident and, at least, the time when the contemporaneous records recorded a back complaint, rather than focusing on "significant injuries" suffered, and the absence in the medical records of neck and back complaints, it cannot be said with certainty that his assessment would have been the same. Additionally, the failure of the Assessor to account for the complaints of neck and back injury, notwithstanding any pre-accident or post-accident trauma or injury, strengthens that conclusion.
8. In any event, the plaintiff is entitled to have his assessment carried out correctly where the Assessor gives proper consideration to matters of causation and adequately explains his path of reasoning to his conclusions. That is because the errors which I have identified mean that the Assessor has not carried out his statutory task. The Certificate is thereby void and of no effect.
9. For those reasons, I would not as a matter of discretion, refuse to make an order setting aside the Assessor's certificate.
10. The parties agreed that the decision of the Proper Officer stands or falls on the outcome of the challenge to the Assessor's certificate.
11. In those circumstances, I make the following orders: (1) Extend time for the filing of the summons to 25 March 2020. (2) A declaration that the Certificate and the statement of reasons for the decision of the third defendant dated 18 August 2019 is void and of no effect. (3) An order setting aside the Certificate and the statement of reasons for the decision of the third defendant dated 18 August 2019. (4) A declaration that the decision and the statement of reasons for the decision of the fourth defendant dated 11 November 2019 is void and of no effect. (5) An order setting aside the decision and the statement of reasons for the decision of the fourth defendant dated 11 November 2019. (6) The first defendant is to pay the plaintiff's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2020