Yangzom v Allianz Australia Insurance Limited

Supreme Court of NSW|2024-07-02|Before: Schmidt AJ

Solicitors: L C Muriniti & Associates (Plaintiff) Sparke Helmore Lawyers (First Defendant) Crown Solicitor's Office (Second and Third Defendant) File Number(s): 2024/00106109 Publication restriction: Nil

Conclusions

For reasons which follow, I am satisfied that the orders which Ms Yangzom seeks must be made, given the legal errors into which both the assessor and the delegate fell.

Issues

There was no issue between the parties about the operation of the statutory schemes; the requirement for the assessment of a medical dispute to be undertaken in accordance with the applicable Motor Accident Guidelines: s 7.21 of the Motor Accident Injuries Act; the resulting role of the assessor and the obligation to give reasons for the conclusions arrived at; the role of the President on a review application; or this Court's role on a judicial review application such as this.
There was thus no issue that: 1. the assessor's function was to form and give his own opinions on the dispute referred for assessment, by applying his own medical experience and expertise to what arose to be assessed, not to adjudicate between competing arguments or opine on the correctness of others' opinions: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]; 2. the assessor had to give reasons for the conclusions he arrived at about what lay in issue between the parties, disclosing the actual path of reasoning by which he arrived at his conclusions: Wingfoot at [48]. Such reasons are later "not to be construed minutely and finely, with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6; 3. an application for review of such an assessment may only be made on the ground that "it was incorrect in a material respect" and it may only be referred for review if the President 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": my emphasis, ss 7.26(2) and (5) of the Motor Accident Injuries Act; 4. this required suspicion did not establish a high bar for referral for review, or require the making of any findings of fact: Insurance Australia trading as NRMA Insurance v Liu [2023] NSWSC 1604 at [68]; 5. that was because the delegate's function involved the identification of possible error, not a determination that the assessment was incorrect in a material respect: Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 at [22]; 6. the Court's task on this review does not involve an appeal from the decision of the assessor or delegate, or a determination of whether they were right or wrong; 7. what must be shown is that their decisions were not properly formed according to law: Buck v Bavone (1976) 135 CLR 110 at 118-119; [1976] HCA 24. For example, that they were based on a misconstruction of the legislation, paid regard to something to which the statute prohibited regard being had, failed to pay regard to something to which statute insisted regard must be had, or because they were irrational, illogical and not based on findings or inferences supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [38]; [2004] HCA 32; The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432; [1944] HCA 42; and 8. it is not sufficient merely to establish "error on the face of the record". That the opinion is vitiated on administrative law grounds must be shown: AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 at [28].
There was also no issue that in his reasons the assessor had quoted from a provision which was no longer contained in the applicable Guidelines. The delegate quoted this aspect of the assessor's reasons, but did not identify the error. That this error established that the decisions were not properly formed was, however, still in issue.
Also in issue between the parties was whether the assessor: 1. had not complied with the applicable Guidelines which governed the assessment, as he had to; 2. had not disclosed, as the Guidelines required, the rationale for the methodology of assessment he had adopted; 3. had not considered or given necessary weight to relevant post accident clinical findings and investigations; 4. had failed to consider the significance of the restricted range of motion of Ms Yangzom's spine and whether this was the result of her neck and/or shoulder injury; 5. had misunderstood and misapplied the principle in Nguyen v Motor Accidents Authority (NSW) [2011] NSWSC 351, which also applied to the assessment; 6. had arrived at legally unreasonable conclusions; 7. had failed to give the required reasons for the decisions arrived at; and 8. had fallen into legal error as a result, as well as jurisdictional error;
Also in issue was whether the delegate had misconceived the task he had to undertake and had failed to address the clearly articulated arguments Ms Yangzom had advanced, with the result that he had failed to exercise his statutory function under s 7.26 of the Motor Accident Injuries Act. Ms Yangzom claiming that this gave rise to both error on the face of the record and jurisdictional error, which also required his decision to be set aside and the matter remitted to the Commission to be dealt with according to law.

How the assessor fell into legal error

I am satisfied that the assessor did fall into legal error, not having complied as he had to with the applicable Guidelines; having misunderstood and failed to apply what had been decided in Nguyen, with the result that the assessment was not conducted in accordance with principles which bound the assessment; not disclosing, as he had to, his rationale for various conclusions he had arrived at; and also failing to comply with the obligation to give reasons for his conclusions, disclosing his path of reasoning.
That all involving as it did relevant errors of law, I am satisfied that justice does require that the orders which Ms Yangzom seeks be made.

Ms Yangzom's claims

Ms Yangzom's assessment application raised claims of impairment to both of her shoulders, her right knee, her right arm to her right hand, both her cervical and lumbar spine, as well as injury to her lower back and neck. It was supported by her medical records, reports of treating specialists and the results of radiological investigations, as well as the reports of Dr Bodel and Dr Conrad, her statement, a chronology and the submissions she advanced.
These were the claims the insurer did not accept, that giving rise to the parties' medical dispute.
In her statement Ms Yangzom explained the accident and its ongoing consequences. They included not being able to move her right shoulder, ongoing problems and pain in her back, neck and right knee, with some improvement over time, but a continuing inability to undertake all of her former duties at work. She also explained the various pain her injuries caused and the treatment which had been recommended and that which she had pursued. She described still suffering pain in her neck and arms which caused throbbing in her head, but said that her main problems were then with her shoulder and right knee and her restricted movement.
The case advanced in submissions referred to various reports which evidenced Ms Yangzom's ongoing and deteriorating pain; her injuries not having healed; and conditions caused by the accident, including some which required surgical treatment, including a potential knee replacement, conservative management having failed.
Ms Yangzom's claim was explained to include that she had been struck on the left, causing her to fall onto her right shoulder and right knee, and that her left shoulder problem had also developed as a result of the accident. Disc pathology in her neck had been diagnosed, with the result that her left shoulder had become affected, as had her upper limbs, as medical records and testing of her limbs reflected. The blow to her left side had also resulted in a lumbar spine injury affecting her pelvis and joints.

The insurer's response

In its response, the insurer's position was that Ms Yangzom had not suffered permanent impairment of her right upper extremity exceeding 10%, relying on Dr Gothelf's opinions. The insurer contended that she had suffered no impairment of her right knee, that explaining why it had refused a request for right knee arthroscopy and later a knee replacement.
The insurer also disputed that she had suffered any impairment of her cervical or lumbar spine, MRI reports having identified degenerative changes not caused by the accident. It also disputed any permanent impairment of her neck and relied on her prior complaints in relation to her lower back and left shoulder.

The assessor's certificate

In his certificate, the assessor explained: 1. the injuries referred for assessment; 2. that he had considered the parties' submissions and the documents provided and that he had also examined Ms Yangzom; 3. that she had given a history of the accident, which included: * being struck on the left side, falling onto her right side and particularly hurting her knee and right shoulder; * later returning to work anxious about retaining her job, but being unable to manage her full-time duties and eventually being retrenched, still suffering ongoing symptoms, especially on her right side; * Her ongoing symptoms, which included right knee pain, which limited her walking; * also suffering pain in her right shoulder, neck and arm, as well as some left leg pain; * the difficulties all of this continued to cause her; and * medications she was taking, which did not refer to a prescribed muscle relaxant.
The results of his clinical examination were also explained. They included: * markedly and symmetrically reduced range of motion to 50% of normal in her cervical spine, but no muscle spasm, muscle guarding, dysmetria or non-verifiable radical complaints; * inconsistent movement in both shoulders which Ms Yangzom said was due to variable pain, the degree of which he explained; * moderate and symmetrically reduced range of motion in the thoracic spine, which was 60% of normal, also not accompanied by muscle spasm, muscle guarding, dysmetria or non-verifiable radical complaints; * inconsistent movement of the right knee with observed movement being zero to 110 degrees, full range of motion in the left knee and no neurological abnormalities; * no scarring, or neurological abnormalities in the lower extremities and full range of motion in lower joints; and * inconsistent movements at multiple body regions, explained by the pain Ms Yangzom said prevented her from moving them more fully.
The assessor said he had considered the documents provided: at [5]. Curiously, at [17] under the heading "Summary of relevant radiological and medical imaging and other investigations", the assessor said that there were no imaging studies to review. But earlier, under the heading "Review of Documentation" and "Summary of relevant documentation", he had referred not only to GP's certificates of capacity and clinical records; but also to investigations such as ultrasounds, X-rays and MRIs of the right knee and shoulder; as well as the reports of treating experts who had been consulted about the right shoulder, right knee and neck pain with radiation to the right hand: at [16].
He also there referred to Ms Yangzom's 2021 statement and the various medico legal reports, noting that Dr Conrad's 2021 findings in relation to permanent impairment were different to those present at the time of his assessment, as were those of Dr Bodel in June 2022. He also referred to Dr Gothelf's 2021 report, about which he made no observations.
It must thus be accepted that the assessor did have radiological and imaging studies to consider.
The assessor then turned to his diagnosis and reasons. He concluded that in the accident Ms Yangzom had sustained soft tissue injuries to her right knee and right shoulder; she may have sustained a fracture of the greater tuberosity of the right humerus; and had also sustained injuries to her left shoulder, cervical and lumbar spine: at [18]. He also found that she had ongoing chronic pain with significant reduction in activity and chronic disability.
At [19], under the heading "Causation and reasons", the assessor found that the injuries caused by the accident were: Cervical spine - soft tissue injury Lumbar spine - soft tissue injury Right knee - soft tissue injury Right shoulder - probable fracture of the greater tuberosity of the humerus and soft tissue injury Left shoulder - soft tissue injury
He observed that the laceration to the right knee had healed and there was no residual scarring.
But at [21] the assessor found the injuries to Ms Yangzom's right arm, left arm and buttocks, were not caused by the accident. Contrary to the reasons given in respect of the other injuries he had concluded had been caused by the accident, which rested in part on Ms Yangzom's ongoing pain, the only reasons given for these conclusions were that "The presence of pain in a body region is not indicative of an injury to that body region. Furthermore, there is no assessable impairment in this body region": at [21].
The assessor then turned to consider the permanency of the impairments he had found.
After referring to applicable definitions of permanent impairment in the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition, the AMA4 Guides, and expressing the view that "stability has been reached and impairment is permanent", the assessor turned to the permanent impairment table: at [22]. He concluded at [23]: "Cervical spine - soft tissue injury The neck injury (injury to the cervicothoracic spine) is assessed with reference to the Diagnosis Related Estimate method from Chapter 3.3h of AMA4. Ms Yangzom has "no significant clinical findings" with reference to this spinal region, and therefore DRE Cervicothoracic Category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation. The Nguyen judgement issues do not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part. Lumbar spine - soft tissue injury The lumbar spine injury (injury to the lumbosacral spine) is assessed with reference to the Diagnosis Related Estimate method. Ms Yangzom has "no significant clinical findings" with reference to the lumbosacral spine, and therefore DRE Lumbosacral Category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation. The Nguyen judgement issues do not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part. Right knee - soft tissue injury Range of movement of this knee was zero to 11O degrees. With reference to Table 41, page 78 AMA4, this is assessed at 0% WPI. There are no other applicable methods of impairment evaluation for this injury. Right Shoulder - probable fracture of the greater tuberosity of the humerus and soft tissue injury Due to pain, movements of this shoulder were inconsistent. In this regard the Motor Accident Guidelines, section 6.40 are noted: "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 judgment 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 outline the reasons in the impairment evaluation report". It is, in the judgment of the assessor, not appropriate to rely on the measured range of motion in this case. The clinical information does not show that there are major significant pathological changes present in this shoulder. Therefore the assessment of permanent impairment is made by analogy and it is determined that the impairment would be equivalent to mild crepitation ((Section 6.24 of the Motor Accident Guidelines) and see Table 19 page 59 AMA4 Guides) at the acromioclavicular joints (see Table 18, page 58 AMA4 Guides) and therefore would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation. Left Shoulder - soft tissue injury Due to pain, movements of this shoulder were inconsistent. In this regard the Motor Accident Guidelines, section 6.40 are noted: "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 judgment 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 outline the reasons in the impairment evaluation report". It is, in the judgment of the assessor, not appropriate to rely on the measured range of motion in this case. The clinical information does not show that there are major significant pathological changes present in this shoulder. Therefore the assessment of permanent impairment is made by analogy and it is determined that the impairment would be equivalent to mild crepitation ((Section 6.24 of the Motor Accident Guidelines) and _see Table 19 page 59 AMA4Guides) at the acromioclavicular joints (see Table 18, page 58 AMA4 Guides) and therefore would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation. Body Part or System AMA4 Guides/ Guidelines References Permanent (YES/NO) Current %WPl* from pre-existing OR %WPI* due to motor accident (chapter/ page/table) %WPI* subsequent causes 1 Cervical spine- soft tissue injury Chapter 3, page Yes 0 0 0 103 (AMA4) 2 Lumbar spine- soft tissue injury Chapter 3, page Yes 0 0 0 102 (AMA4) 3 Right knee Chapter 3, Table Yes 0 0 0 -soft tissue injury 41, page 78 AMA4 4 Right shoulder- probable fracture and soft tissue injury Chapter 3, Table 19 page 59 AMA4 Yes 2 0 2 5 Left shoulder- soft tissue injury Chapter 3, Table 19 page 59 AMA4 Yes 2 0 2

What did the Motor Accident Guidelines require the assessor to do?

In so approaching the assessment I am satisfied that the assessor did not adhere, as he had to, to the applicable Guidelines.

The quote from the incorrect Guidelines

It was the State Insurance Regulatory Authority Motor Accident Guidelines Version 9.1, which commenced on 1 April 2023 which applied at the time of the assessment.
The parties agreed that when explaining his conclusions about the right shoulders at [23], the assessor referred to words which no longer appear in cl 6.40 of the Guidelines, "Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of claimants' efforts". These words did appear in the predecessor guidelines, the Motor Accident Permanent Impairment Guidelines, at cl 1.40, and they have been referred to in earlier cases: for example AAI Limited v Fraser [2021] NSWSC 938 at [33].
How the assessor came to make this error was not established. Use of an outdated precedent was suggested as a possible explanation. That is possible, other aspects of cl 6.40 being similar to its predecessor. But the error does cast doubt on his adherence to the applicable guidelines. As do other aspects of the reasons given.

Impairment

Clause 6.17 of the Guidelines required the assessor to be satisfied that the available evidence established that Ms Yangzom's impairments arose from an injury caused by the accident. That required the assessor to consider both the injuries she had suffered in the accident and the cause of any claimed impairment.
"Impairment" is defined in cl 6.9 to mean "an alteration to a person's health status. It is a deviation from normality in a body part or organ system and its functioning. Hence, impairment is a medical issue and is assessed by medical means."
As the insurer accepted at the hearing, pain can follow injury. The onset of pain can thus evidence that an injury has been suffered. The continuation of pain can evidence a resulting alteration to a person's health status, or a deviation from normality of the affected body part or system and its functioning, has occurred, with resulting impairment. That is for an assessor to determine.
Clause 6.17 required the medical assessor to evaluate the available evidence to be satisfied that the impairments Ms Yangzom claimed she had suffered fell within the definition, they having arisen from injury caused by the accident.
Light will be shed on what injury was caused by an accident by the account which the injured person later gives about the accident and the injuries suffered. So, too, may other evidence, including contemporaneous records such as ambulance or hospital reports, for example, as well as medical records of treatments received after an accident, which an injured person did not require before. They will also shed light on resulting impairment.
The histories which Ms Yangzom gave explained both the accident, the injuries which she suffered and their ongoing consequences, which included pain in various of her body parts. The assessor did not find her to be an unreliable historian, nor did he suggest that her limited language skills had posed an issue, as they had in the past. There was also no suggestion that she had suffered the various ongoing pain about which she complained after the accident, beforehand.
The hospital records established the injuries Ms Yangzom was treated for during her admission. Other medical records, investigations and reports establish those for which she later received treatment.
The assessor found that Ms Yangzom had ongoing pain, which had become chronic and had resulted in significant reduction in activities, as well as chronic disability. But in explaining why he concluded that the accident had not caused injury to her arms and buttocks, or the numbness in her arms and soft tissue and nerve injury in her buttocks, he shortly said that "[t]he presence of pain in a body region is not indicative of an injury to that body region. Furthermore, there is no assessable impairment in this body region": at [21].
What the assessor meant by this is not entirely clear. But, what was so explained does not appear to accord with how he treated the other injuries which he found had been caused in the accident to her spine, shoulders and right knee, or his conclusions about the chronic pain and resulting disability which she suffered.
On the limited explanation given at [21], I am satisfied that it must be accepted that in so approaching the question of whether impairment of her arms and buttocks had been caused by the accident, the assessor did not adhere to the Guidelines. They recognising as they do both that the presence of pain can be indicative of injury, as well as of resulting impairment.
That accords with cl 6.38, which indicates that some tables provided in the Guidelines require pain associated with a particular neurological impairment to be assessed. Because of the difficulty of objective measurement, it requires assessors not to make separate allowance for permanent impairment due to pain and not to use Chapter 15 of the AMA4 Guides. It also notes that each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.
It follows that it was not open to the assessor to proceed on the basis that he did. Namely, that the ongoing pain in Ms Yangzom's arms and buttocks, for which there was no suggested explanation in her history other than injury caused in the accident, could not have evidenced either that they had been injured in the accident, or that injury to other body parts in the accident had also resulted in their impairment.

Causation

The question of causation of impairments had to be determined as part of the assessment: cl 6.5. It required the relevant provisions of the AMA4 Guides and the common law principles that would be applied by a court or the Personal Injury Commission, in considering such issues, to be applied by the assessor. The AMA4 Guides required consideration of whether "a physical, chemical or biologic factor contributed to the occurrence of a medical condition": cl 6.6. It follows that the assessor had to verify both whether the alleged factor not only could have caused or contributed to an impairment, but that it did, the latter involving a non-medical judgment.
That required the assessor to determine whether claimed injuries and associated impairments were caused or materially contributed to by the motor accident: cl 6.7.
Contrary to the view the assessor took, this exercise had to be undertaken in accordance with what was decided in Nguyen. The assessor's reasons establish that he did not attempt this. To the contrary, in respect of both the claimed injury to her cervical and lumbar spine, for example, he observed that "[t]he Nguyen judgment issues do not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part": [23].
But why ongoing pain in the arms and buttocks could not have been caused by injury which Ms Yangzom had suffered in the accident to her neck or spine, was not explained.
What arose to be considered included that on admission to hospital, after Ms Yangzom had been struck by the Ute on her left side and was knocked to the ground, where she landed on her right side, she complained about injury to both sides of her body. In her accident notification form she described having a resulting tender lower lumbar/sacral spine, bruising to the right pelvis and right hip, painful bruising to the left hip, a laceration to the right knee which required stitches, a tender right patella, and a painful right shoulder. She later received treatment for symptoms consistent with various body parts having been injured in the accident, including her neck and spine.
The parties' dispute was about whether, as a result of these injuries, she suffered any impairment in the body parts she pursued by her compensation claim. This was what had to be resolved by the assessor in the way the applicable Guidelines required. They provide for compensation for impairment resulting from an accident, even when a body part which became impaired, was not then directly injured.
That was what was explained in Nguyen. There, Hall J observed that a bodily injury may or may not cause or give rise to impairment and that in accordance with ordinary human experience, injury to one part of the body can affect or lead to impairment in both the part directly injured and in a related or connected part: at [91]-[92].
His Honour thus explained that in determining "the degree of permanent impairment of the injured person as a result of the injury ..." and whether that degree is greater than 10%, there was no warrant for reading those words as encompassing only an impairment of the particular part of a person's body injured in the accident: at [97]-[98].
His Honour also observed that it was well known that the result of injury to one part of the body, such as the back, may result in impairment not only to the injured back, but also to "other parts constitutionally associated or linked to the back such as the upper or lower limbs". That is "well understood and lies in the fact that trauma to the back may interfere with or cause interference to or impingement of the nerve roots associated with the spinal column (eg, pain (sciatica) or loss of function in the limbs)": at [99]-[100].
In that case it was concluded that injury to the back had also resulted in permanent impairment of the right shoulder. Neither the assessor nor proper officer having recognised this, their decisions were found to have been vitiated by an error of law and the assessor's certificate and the proper officer's decision both had to be set aside: [126]-[128]. Similar errors were made in this case.
The Guidelines contemplate that the result of injury to one body part does not impose a limit on compensable impairment to that part. Contrary to the assessor's approach, the onset and continuation of pain in other associated or linked body parts following such injury may reflect that they, too, have been impaired.
That is for an assessor to determine, in accordance with the Guidelines. That required the assessor to consider whether the pain and numbness Ms Yangzom variously complained about were the result of injury to some other body part.
Despite having concluded not only that there had been injury, but also permanent impairment, to Ms Yangzom's cervical and lumbar spine, as well as to her left and right shoulders caused by the accident, the assessor did not consider whether those injuries had also caused the pain and numbness which she suffered in her arms, and the pain, soft tissue and nerve injury in her buttocks, as the Guidelines required.
The reasons the assessor so shortly gave for his conclusions about her arms and buttocks reflected both his misunderstanding of the applicable Guidelines and what had been decided in Nguyen, by which he was bound. By those few words, the assessor also failed to disclose, as he had to, the path of reasoning which had led him to his conclusions: cl 6.18.
Had he attempted to do so, he may have realised his errors and avoided them.

What the assessment of whole person impairment required

Clause 6.18 required the assessment of the degree of Ms Yangzom's permanent impairment to be conducted in 3 stages: 1. review and evaluation of all the available evidence, including medical evidence, medico-legal reports, diagnostic findings and other relevant evidence; 2. an interview and a clinical examination, wherever possible, to obtain the information specified in the Guidelines and the AMA4 Guides necessary to determine the percentage impairment; and 3. preparation of a certificate using the methods specified in the Guidelines to determine that percentage, including the calculations and reasoning on which the determination is based, referring to the applicable parts of the Guidelines and the AMA4 Guides.
But the assessor had to consider impairment as it was at the time of the assessment: cl 6.21. That admits the possibility of either improvement or deterioration of an impairment, but an assessment cannot include an allowance for predicted deterioration: cl 6.22.
The Guidelines accept that some injuries may not result in assessable impairment, the example given being uncomplicated healed sternal and rib fractures: cl 6.23. They also contemplate that conditions not covered by the Guidelines might be found which indicate an impairment, in which event they are to be assessed by analogy to a similar condition: cl 6.24.
In determining whole person impairment, the assessor also had to take account of the results of past treatment: cl 6.25. Yet while long term treatment had to be considered, he concluded the effects of Ms Yangzom's ongoing treatment to be "not applicable". Why that was so, was not explained.
If such treatment had resulted in apparent, substantial or total elimination of a physical permanent impairment and the injured person was likely to revert to the fully impaired state if the treatment was withdrawn, the percentage of WPI could be increased by up to 3%: cl 6.26. That did not apply to analgesics or anti-inflammatory drugs used for pain relief.
Ms Yangzom had long been prescribed muscle relaxants, which did not fall into this exclusion, but that was not taken into account on the assessment, even though the assessor found no muscle spasms present.
The Guidelines are also concerned with consistency. Assessors must use "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": cl 6.40.
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 medical assessor must "modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report": cl 6.40. But assessment by analogy is not provided for, in such a case, as it is in others.
In the event of inconsistencies between the assessor's clinical findings and information obtained through medical records, they must be brought to the injured person's attention, who must also be given an opportunity to confirm the history and/or respond to the inconsistent observations, to ensure accuracy and procedural fairness: cl 6.41. The example given is inconsistency demonstrated between range of shoulder motion when undressing and during the physical examination.
As was the insurer's case, both the assessor and some earlier reports referred to inconsistencies being observed. In Dr Bodel's report an explanation was given of translation difficulties and corrections made to factual observations in Dr Gothelf's report, with the aid of the interpreter then assisting.
But the assessor's certificate does not suggest that the inconsistences he observed were drawn to Ms Yangzom's attention, or that she was given an opportunity to address what the assessor had observed, as the Guidelines required.

The upper extremity

Range of motion is identified to be a suitable method for evaluating impairment of the upper extremity. It can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed: cl 6.50.
That it was variation, rather than inconsistency in range of motion because of the pain Ms Yangzom was experiencing, was on her case, not appreciated by the assessor. This is difficult to resolve, given the limited reasons which the assessor gave about what he observed.
The method of assessment specified includes use of a goniometer where clinically indicated; passive range of motion to ascertain the clinical status of a joint and, if measurement of active range of motion is not reliable, measurement with at least three consistent repetitions. But if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation: cl 6.50(d).
The certificate does not suggest that the assessor attempted three repetitions in his testing, as the Guidelines also indicate.
For the assessment of the shoulder, it is the AMA4 Guides, which specifies how range of motion should be measured: at 3.1j. A table there specifies how those measurements are to result in a calculation of whole person impairment: table 3. Unlike Dr Conrad, Dr Gothelf and Dr Bodel, the assessor does not appear to have applied this table.
The reason for this is unclear. The assessor did use the equivalent provisions of the AMA4 Guides, for the assessment of Ms Yangzom's knee.

The spine

For the assessment of the spine the Guidelines require assessors to use the diagnosis-related estimate, DRE method, outlined in the AMA4 Guides, as modified by the Guidelines: cl 6.111. It requires evidence of neurological deficits and uncommon, adverse structural changes, such as fractures and dislocations. The DREs are differentiated according to verifiable clinical findings, using standard medical procedures: cl 6.112.
The range of motion model and Table 75 of the AMA4 Guides are not to be used for spinal impairment evaluation: cl 6.116. Table 6.7 of the Guidelines allocates an injured person with low back pain, neck pain or symptoms to DRE I, and those with such pain as well as guarding, or non-verifiable radicular complaints or non-uniform range of motion (dysmetria) to DRE II. It does not provide for those suffering pain who have uniformly reduced range of motion, as the assessor concluded Ms Yangzom had.
An assessment must include "a comprehensive accurate history, a review of all relevant records available at the assessment, a comprehensive description of the individual's current symptoms, a careful and thorough physical examination and all findings of relevant diagnostic tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The medical assessor should record whether diagnostic tests and radiographs were seen or whether they relied on reports": cl 6.120.
Clause 6.129 explains that DRE I applies when the injured person has symptoms, but there are no objective clinical findings by the medical assessor. DRE II applies when the medical assessor does make clinical findings in accordance with 'Description and Verification' (pages 102-107, AMA4 Guides) and the amendments in clause 6.125. But "symmetric loss of movement is not dysmetria and does not constitute an objective clinical finding".
In the certificate, under the heading "Summary of Documents Considered", the assessor indicated that he had considered the documents provided by the parties. Under the heading "Review of Documentation", he referred to various records, imaging and reports. Despite this, he made no reference to whether any of the imaging he had referred to were or were not concordant with Ms Yangzom's symptoms on examination or his findings.
This approach does not accord with the obligation to include all findings of relevant diagnostic tests available at the assessment and that imaging findings used to support the impairment rating be concordant with Ms Yangzom's then current symptoms and the assessor's findings on examination. No reference was made, for example, to a 2021 MRI which had identified an annular bulge at C7-TI with severe facet hypertrophy on the left, as well as foraminal narrowing impinging on the exiting left nerve root. Nor was there any explanation of how this supported the conclusion that the only permanent whole person impairment Ms Yangzom had suffered was in her shoulders.
If the assessor did consider this imaging, which he did not refer to, how it was that it was concordant with the symptoms and findings on his examination, was not explained.
The result that the assessor did not consider or explain in his reasons, as he needed to, the path of reasoning which led him to reject Ms Yangzom's case about the much greater extent of injuries and resulting impairment which she had suffered in the accident, given all that she relied on, must be accepted.

The reasons were inadequate

In Insurance Australia Group Ltd t/as NRMA v Keen [2021] NSWCA 287; (2021) 399 ALR 765 it was explained that "the reasons required to be given by a medical assessor must be sufficient to explain the actual path of reasoning by which the opinion is reached and in sufficient detail to enable a court to see whether that opinion involves any error of law": at [43].
Given all that I have already explained about the deficiencies of the reasons which the assessor gave, that he also failed to meet the applicable requirements in relation to the giving of reasons must also be accepted.

Did the delegate undertake his statutory task?

For reasons which follow, I am also satisfied that while the delegate referred to the statutory task which s 7.26 of the Motor Accident Injuries Act imposed, the proper officer failed to turn his mind, as he needed to, to the matters on which Ms Yangzom relied to establish that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
That requires engagement with the case which an applicant for review pursues. It is not sufficient merely to refer to the matters advanced and then to quote from the Guidelines and the reasons given. The statutory task involves requires an evaluative judgment of both whether there is reasonable cause to suspect that the assessment was incorrect and whether any error made was material to the assessment.

Ms Yangzom's review application

By the submissions which supported her application, Ms Yangzom contended, in short, that the statutory power to refer the assessment for review had to be exercised, the assessor having failed to consider clinical evidence such as:

Cervical spine - neck pain and symptoms of radiculopathy and pain radiating to the hand; muscle spasm; MRI imaging of damage to the discs; asymmetrical restriction of movement and guarding;
the pain and numbness in her arms and nerve injury and pain in her buttocks.
Thoracic spine - restriction of movement caused by shoulder injury and muscle spasm;
Lumbar spine - muscle spasm; tenderness, guarding and dysmetria, as well as asymmetry;

The assessor had also not disclosed the basis of the inconsistency in movement of the shoulders found, nor his methodology, as cl 6.24 required. Nor did he disclose measurement of range of motion by 3 repetitions as cl 6.50 required. He had made no reference to radiological findings inconsistent with his clinical examination, which were consistent with her ongoing deterioration, which was not the equivalent of mild crepitation he had found by impermissible analogy, in the case of her shoulders.
Ms Yangzom contended that this reflected the assessor's failure to consider whether the accident had caused injury which had resulted in the radicular symptoms she later suffered in her arms and buttocks. That was despite the radiological investigations and resulting reports on which she had relied, supporting the conclusion that their resulting impairment had been caused by the accident. That reflected the assessor's misapplication of the principles in Nguyen.
The applicable Guidelines, which adopted AMA4 Guides, required for the DRE I finding that there be no clinical history of guarding or radicular complaints. Non-verifiable radicular complaints being defined to be symptoms such as shooting pain, burning sensation and tingling, which follow the distribution of a specific nerve root, but where there are no objective clinical signs of dysfunction of the nerve root: Table 6.8. In her case, there was a significant relevant history which the assessor did not take into account.
The assessor had used an analogy to arrive at some of his conclusions, but had failed to provide the required rationale for adopting that analogy as cl 6.24 required. Nor was the requirement to measure range of motion with at least three repetitions adhered to: cl 6.50. Further, no reference was made to relevant investigations, which in 2018 had identified a partial tear in a tendon, or later reports of subsequent deterioration, which were all consistent with reduced movement.
There was also no suggestion that the assessor had undertaken the required repetition of measurement of range of motion of the right knee, even though available records were inconsistent with the assessor's measurement, suggesting that it was incorrect. MRI studies to which no reference was made had shown significant degeneration, consistent with injury in the accident having resulted in advanced osteoarthritic changes, as well as the formation of a large cyst in the bone in the patella. Despite which, the insurer had refused to pay for recommended joint replacement surgery.
It followed that the assessor had not disclosed his path of reasoning in the required way and that he had not explained the account he had taken of the relevant history, with the result that he had arrived at conclusions inconsistent with that history.

The insurer's response

The insurer's reply submissions included that Ms Yangzom had failed to make submissions demonstrating why the alleged errors were material to the outcome and that the assessor had not erred in any way material to the ultimate outcome.
Range of movement had not been used by the assessor to assess impairment of her shoulders, because that had been found to be inconsistent and so the assessor had used his clinical judgment, as the Guidelines required, cl 6.50(e) giving him discretion in considering what weight to give other available evidence. Reliance was also placed on guideline 6.40. The reasons given for the conclusions reached, including by way of analogy, thus satisfied the requirements discussed in Wingfoot.
There was thus no reasonable cause to suspect a material error in the assessment.
Assessment of the spine had to be undertaken at the time of the assessment: cl 6.113. Clause 6.18 required consideration of the available evidence, the interview and the examination, applying the Guidelines. That did not require an analysis of every piece of information considered: Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46].
There was also a difference between a history of guarding and a history of muscle spasm. Contrary to Ms Yangzom's case, she had no history of guarding of the spine. It was also open to the assessor to disagree with earlier conclusions, so long as he complied with the applicable guidelines, which required the assessment to be undertaken, as he did.
The different findings in respect of the knee flexion were consistent with improvement in its range of motion. The assessor had noted the differences. Their mere existence could not establish error. His measurements were consistent with that of others earlier undertaken.
The assessor's conclusions about the Nguyen principle and there having been no direct effect of spinal symptoms causing impairment on other parts, also correctly led to the conclusion that they had not been injured in the accident. The assessment that the presence of pain was also not indicative of injury to that body region was also correct, as was the conclusion that there was no assessable impairment in those regions.
That was consistent with findings that there was full range of motion of upper extremity joints, no neurological abnormalities, no radicular complaints in the thoracic or lumbar spine, negative nerve tension signs, full range of motion in the lower extremities without neurological abnormality and Ms Yangzom walking with normal gait and chronic pain not attracting impairment.
Ms Yangzom's case also did not establish materiality. The evidence did not establish that any error, even if made, would result, if corrected in an alternate assessment, in a WPI exceeding 10%. Referral was only mandatory if materiality was established. The application thus had to fail.

The delegate's reasons

In his short reasons the delegate explained Ms Yangzom's claim and the assessor's findings about the injuries which had been caused by the accident, before turning briefly to her submissions and his reasons. The delegate's conclusion that he was not satisfied "of reasonable cause to suspect that the medical assessment is incorrect in a material respect", was explained by: 1. his summary of Ms Yangzom's submissions, which relied on different conclusions other experts had reached; her complaint that use of an analogous injury had not been explained; the fact that consistent repetition of range of motion had not been obtained; and that the assessor had misapplied or misunderstood the principle in Nguyen: at [7]-[9]; 2. clause 6.21 of the Guidelines, which required the impairment to be considered at the time of assessment and the assessor's reasons indicating that "while the Assessor considered the other medical opinions, the Assessor is obliged to rely on his own clinical findings on examination": at [10]; 3. clause 6.121 of the Guidelines, which was quoted, and the assessor's certificate indicating that he had considered and summarised the radiological report findings. His clinical assessment not suggesting impairment "in the magnitude of greater than DRE Category I for all spinal regions": at [12]; 4. there being no requirement that the assessor use range of motion in the assessment of the bilateral shoulders in the presence of pain. But if it was used, cl 6.50 applied, which was quoted: [13]. 5. clause 6.40, which was also quoted, and the assessor concluding that due to pain, movements of the bilateral shoulders were inconsistent. He then used his discretion in assessing the shoulders by analogy, using the mild crepitation provisions of the AMA4 Guides, the reasons given being clear and consistent with the Guidelines. The result was that there was no reasonable cause to suspect that the assessment of the shoulders was incorrect in a material respect: at [14]-[15]; 6. the certificate illustrating that the assessor had obtained multiple range of motion measurements by reason of the assessor providing "maximum observed movements" for the bilateral shoulders and knee: at [16]. 7. the assessor's finding of no assessable impairment with respect to the alleged injuries to the arms and buttocks, and conclusion that "[a]gain, pain is not a valid indicator of impairment and the claimant does not particularise how there is impairment to these alleged injuries": at [17].

The delegate also fell into legal error

Orders setting aside the delegate's decision cannot be made as the result of any error of fact. They depend on relevant error of law being established.
Referral for review depended on the delegate concluding that there was reason to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in Ms Yangzom's application. That involved the consideration of whether there had been possible error.
A consideration of the assessor's claimed errors thus required the medical dispute he had to assess, what the Guidelines required, what was decided in Nguyen and what the assessor actually did, all to be considered. Given the errors Ms Yangzom advanced, this required a consideration of various of the obligations the Guidelines imposed.
That there might be reason to suspect that the errors which Ms Yangzom advanced had been made and were material to the assessment of her claim, was apparent on the face of the assessor's certificate. Despite having concluded that she was not only suffering chronic pain as the result of the accident, but also chronic disability as well as significant reduction in activities, her WPI was found only to be 4%. That was the result of Nguyen not having been followed and the assessor having taken the view that pain which she was still suffering was not relevant to the assessment.
I am satisfied that the reasons given establish that the delegate's conclusion that the low statutory bar to referral for review had not been met by Ms Yangzom, was the result of legal error.
A delegate referring to the statutory test, the arguments advanced, the reasons given by the assessor and quoting from the Guidelines, does not establish that the evaluative exercise which the Act requires on a review application has been undertaken, that exercise requiring as it does something further. Namely, an evaluation of whether it is possible that the claimed errors were made
The reasons which the delegate gave establish that he did not undertake that required evaluation. That having the result that his conclusion was not properly formed and vitiated by reviewable error.
There was no issue that the delegate, in quoting what the assessor had incorrectly said about cl 6.40 of the current Guidelines, fell into the same error as the assessor. That this made any difference to the task the delegate had to undertake and reflected legal error, was still in issue.
I am satisfied that it did, reflective as that error was of the delegate's incorrect approach to his statutory task.
The delegate observed that the reasons given were "clear and consistent" with the AMA4 Guides and the Guidelines. But without consideration of what they required, given the medical dispute being assessed, which also required the approach explained in Nguyen to be followed. Neither the assessor nor the delegate identified this.
Had the required evaluative exercise been undertaken, that would not have occurred.
Had it been undertaken, contrary to the delegate's observation, it would have been recognised that the assessor did not summarise the radiological report findings which he had to consider. Had he done so, the assessor may have come to different conclusions about Ms Yangzom's claimed impairments, given her history of injury, resulting radiating pain and muscle spasm which she had suffered and for which she was treated, which imaging on which she relied to establish her claimed impairments had supported.
Had the delegate evaluated the matters which Ms Yangzom advanced in the necessary way, the assessor's observation that "pain is not a valid indicator for impairment and the claimant does not particularise how there is impairment in these alleged injuries", would have been identified as reflecting a misunderstanding of how the Guidelines deal with pain, as well as a failure to disclose the path of reasoning which had led to this conclusion.
Ms Yangzom had relied on Nguyen to establish her claimed impairments. Contrary to the delegate's view, they had been particularised. The assessor described this in his references to the ongoing pain, soft tissue and nerve injury which she complained she continued to suffer, as the result of the accident, including in her arms and buttocks. On the review application his conclusions about the relevance of Nguyen to the assessment of the impairment of various of her body parts was challenged as involving relevant error.
The assessor's failure to disclose the path of reasoning by which he arrived at his conclusions on various aspects of the assessment, with the result his seemingly inconsistent final outcome, was also not recognised by the delegate or addressed in his reasons. That is also reflective of his failure to undertake the required evaluative task.
All Ms Yangzom had to establish was that what she had advanced provided a reason to suspect that the assessor had been incorrect in a material respect. It must be accepted that this was not considered by the delegate, as it needed to be.
The delegate's failure even to identify the relevance of Nguyen to Ms Yangzom's claims precluded him from considering whether there was reason to suspect that the assessor was incorrect in not following what was there decided, or whether this could have been material to its outcome.
Contrary to what was implied by the insurer's submissions on this application, for her review application to succeed Ms Yangzom did not have to establish that, if the assessor's errors had not been made, a proper assessment of her claim would have resulted in the conclusion that the impairments she suffered exceeded the compensable limit.
That involves medical questions which can only be determined by a medical assessor or review panel on consideration of the relevant material and the results of the clinical examination, in accordance with the applicable Guidelines and following what was decided in Nguyen.
In the result, the delegate also having fallen into legal error as he did, I am satisfied that the insurer's resistance of the orders sought in relation to his decision cannot succeed.

Costs

The usual costs order under the Uniform Civil Procedure Rules is that costs follow the event. In this case that is an order that the insurer bears Ms Yangzom's costs, as agreed or assessed.
Unless the parties approach with short written submissions within 14 days, that will be the Court's order.

Orders

For these reasons I order that: 1. Both the decision of the assessor and the delegate be set aside; 2. The matter be remitted to the President of the Personal Injury Commission to be decided according to law; and 3. Unless the parties approach with short written submissions within 14 days, Allianz Australia Insurance Limited to bear Ms Yangzom's costs, as agreed or assessed.

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: 18 July 2024

Motor Accidents Injuries Act 2017(NSW)

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