Author: Kinga Zugaj   
Judgment Date: 25 May 2017
Citation: Donna Bruce v QBE Insurance (Australia) Limited [2017] NSWSC 320
Jurisdiction: Supreme Court of New South Wales [1]
Principles

 

  • If there is an impairment of a body part following a motor vehicle accident, but no specific injury to that body part, the impairment is still assessable if symptoms causing the impairment originate and/or radiate from a body part that was the site of an injury caused by the accident, in accordance with the principle in Nguyen v Motor Accidents Authority of NSW (Nguyen).2
  • However, a medical assessor must first be satisfied that there is in fact an assessable permanent impairment to that body part, before considering whether the principles of Nguyen apply.
  • A Medical Assessment Service (MAS) certificate must be read as a whole when determining whether the analysis and conclusions are adequately reasoned and set out in the certificate.
Background

The plaintiff was involved in a motor vehicle accident on 9 April 2014, in which she allegedly sustained injury to her neck, shoulders, back, and pelvis. Following the accident, the plaintiff complained of pain in her neck radiating to her shoulders and arms. She also complained of reduced movement of the shoulders due to pain, with paresthesia in the arms.

A dispute arose between the parties, centring on whether the accident caused an assessable degree of impairment to the shoulders.

The Medical Assessor examined the plaintiff and was satisfied that she sustained soft tissue injury to the cervical spine, thoracic spine, lumbar spine, and pelvis; however, he was not satisfied that the alleged injuries to the shoulders were caused by the subject accident.

In his statement of reasons, the Medical Assessor noted that he considered all supporting clinical material and video surveillance of the plaintiff, observing no major restriction in her physical abilities while shopping. He considered the plaintiff’s complaints of ongoing symptoms of pain with associated pins and needles. On examination, the Medical Assessor could not identify any specific injury to either shoulder joint, and noted that her shoulder movements were variable and inconsistent at the time of his assessment. The plaintiff advised that this was due to pain. Accordingly, the Medical Assessor concluded that he was not satisfied there was any assessable permanent impairment as a result of the subject accident.

Pursuant to pt 3.4 of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff sought a review of the MAS certificate on the grounds that the medical assessment was incorrect in a material respect. It was submitted that the Medical Assessor had not included an impairment of the shoulders in his assessment, which resulted from referred pain from the neck, in accordance with Nguyen. The Proper Officer of the Medical Assessment Service (the Proper Officer) determined that a review was not warranted.

Subsequently, the plaintiff filed a summons in the Supreme Court of New South Wales (the Supreme Court) seeking declaratory and other relief to have the MAS certificate set aside. The plaintiff submitted that the Medical Assessor had not properly assessed and/or properly explained his reasoning in concluding that there was no permanent restriction of movement in either shoulder demonstrated.

Decision

Lonergan J held that when the MAS certificate was read as a whole, the conclusions in the assessment were sufficiently clear and adequately exposed the Medical Assessor’s reasoning.

His Honour noted that:

“Reliance on Nguyen is misconceived because the principle in Nguyen is in essence that where there is an impairment of a body part following a motor vehicle accident, but no specific injury to that body, there can still be impairment assessable if symptoms causing the impairment originate and/or radiate from a body part that was the site of an injury caused by the accident.”3

In this case, the Medical Assessor was satisfied that the subject accident caused a soft tissue injury to the plaintiff’s neck, but was not satisfied there was any impairment, regardless of its origin. It was therefore not necessary for the Medical Assessor to consider the question of whether any impairment in either shoulder had its origin in the injury to the neck.

It was held that there was no failure on the part of the Proper Officer as there was no reasonable cause to suspect that the medical assessment carried out by the Medical Assessor was incorrect in a material respect.

Why this case is important

It is established that if there is an impairment of a body part following a motor vehicle accident, but no specific injury to that body part, there can still be impairment assessable if symptoms causing the impairment originate and/or radiate from a body part that was the site of an injury caused by the accident. This is confirmation of the now well‑established Nguyen principle.

However, the Supreme Court’s decision confirms that if a Medical Assessor is satisfied that there is no impairment to the relevant body part – typically a shoulder – he or she does not need to consider the source of the symptoms causing the complaint.

 

[1] Lonergan J.

[2] [2017] NSWSC 351.

[3] Ibid [46].

[4] Ibid [43].

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