Additional whole person impairment for treatment effects: not as easy as 1, 2, 3! – IAG Limited t/as NRMA Insurance v Gilshenen [2015] NSWSC 1165

Author: Antonia Vo

Judgement Date: 20th August, 2015

Citation: IAG Limited t/as NRMA Insurance v Gilshenen [2015] NSWSC 1165

Jurisdiction: Supreme Court of New South Wales [1]

In brief

Medical Assessment Service (MAS) assessors retain the discretion to determine the extent of a claimant’s physical impairment without treatment and to assign additional whole person impairment (WPI) for treatment effects under cl 1.28 of the Motor Accidents Authority Permanent Impairment Guidelines (the Guidelines).


Background

The claimant was involved in two motor vehicle accidents. The first accident occurred on 29 November 2006 and the second accident occurred on 6 June 2007. GIO and NRMA were the relevant insurers, respectively.

The claimant suffered from restricted movement of the neck and exhibited dystonia, that is, muscle dysfunction characterised by spasms or abnormal muscle contraction. She underwent Botox injections to relax the muscles and relieve the spasms once every 12 weeks.

On 21 July 2014, MAS Assessor Fitzsimons issued a MAS Further Certificate determining that the claimant’s injuries were a result of the first accident, giving rise to 11% WPI, comprised as follows:


  • Right shoulder – 4% WPI
  • Left shoulder – 4% WPI
  • Effects of treatment – 3% WPI.

In relation to treatment, MAS Assessor Fitzsimons had regard to cl 1.28 of the Guidelines which provides as follows:

“Where the effective long-term treatment of the effects of an injury result in apparent, substantial or total elimination of a physical impairment, but the Claimant is likely to revert to the fully impaired state if treatment is withdrawn, the assessor may increase the percentage of the whole person impairment by 1, 2 or 3% whole person impairment.” (original emphasis)

In MAS Assessor Fitzsimons’ opinion, the claimant’s impaired state was serious and she considered it appropriate to add an additional 3% WPI for treatment.

MAS Assessor Fitzsimons also found that none of the injuries referred for assessment were causally related to the second accident.

The Proper Officer noted AAMI’s submission that the three terms ‘apparent’, ‘substantial’ and ‘total elimination’ in cl 1.28 equated to 1, 2 and 3% WPI, respectively.

However, the Proper Officer also had regard to cl 7.21 of the Guidelines, which provided as follows in the context of psychological impairment:

“The Assessor may increase the percentage of whole person impairment by 0% whole person impairment (no or negligible treatment effect), 1% whole person impairment (a mild treatment effect), 2% whole person impairment (a moderate treatment effect) or 3% whole person impairment (a full remission).”

The Proper Officer therefore determined that a 3% increase was appropriate only where that treatment had resulted in “full remission”. Accordingly, he was satisfied there was reasonable cause to suspect material error and referred the matter to a Review Panel for assessment.


Supreme Court

NRMA filed a Summons seeking judicial review of the decision of the Proper Officer.

In Fagan J’s opinion, whilst cl 1.28 allowed an additional percentage of 1, 2 or 3%, this simply described a range of 1% to 3%. There was no reason to apply 1% WPI to the ‘apparent’ elimination of impairment, 2% WPI to ‘substantial’ elimination and 3% WPI to ‘total elimination’.

His Honour also noted that cl 7.21 had been very specifically drafted in relation to psychiatric disorders and it had not been intended that cl 1.28 operate in the same way.

Fagan J therefore held that on the proper construction of cl 1.28, MAS assessors were permitted to allow any percentage in the range of 1, 2 or 3% WPI to any ‘apparent … elimination of a physical impairment’ where the claimant was likely to revert to his or her fully impaired state if treatment was withdrawn.

Further, it was a matter for the MAS Assessor to determine whether the claimant’s ‘apparent’ elimination of impairment was substantial or total. This approach had been properly adopted by MAS Assessor Fitzsimons.

Accordingly, the Proper Officer erred in determining there was reasonable cause to suspect that MAS Assessor Fitzsimons’ assessment had been incorrect and referring the matter to a Review Panel.


Implications

MAS assessors retain a discretion to determine the extent of a claimant’s physical impairment without treatment and assign additional WPI for treatment effects under cl 1.28 of the Guidelines.


  1. Fagan J.