Judgment date: 11 April 2019
Citation: Lu v AAI Ltd t/as AAMI
Jurisdiction: Supreme Court of NSW*
The Plaintiff's injuries were assessed by a MAS Review Panel. They assessed whole person impairment at not greater than 10%. He challenged their decision on the ground that only two of the three members of the Review Panel conducted the examination. He also took issue with two of their findings, namely:
There have been differing Supreme Court judgments on this issue with no appellate court consideration of it. Justice Adams concluded that neither the Act nor Guidelines have a strict requirement for all three Review Panel members to conduct the examination. However, that is not to say some instances will give rise to the necessity for all three Assessors to be present.
In the present case, the fact that only two Assessors conducted the examination did not vitiate the decision.
Did the Claimant's neck exhibit 'non-verifiable radiculopathy'?
A finding of non-verifiable radiculopathy requires a Claimant to have complained of certain symptoms consistent with a specific nerve root but in the absence of objective signs of nerve root dysfunction.
The Plaintiff complained of numbness and tingling in three of his fingers. The Review Panel recorded this finding but did not state that the symptoms were consistent with the dermatomal pattern of a specific nerve root. Her Honour said, "…the Review Panel… were aware of these symptoms… [and they]… were not considered by the Review Panel as constituting non-verifiable radiculopathy".
Her Honour observed that based on the above there was no evidence that the symptoms followed a specific nerve root. Further, her Honour said she was not satisfied that the Review Panel failed to consider the Claimant's reported symptoms in this case. Accordingly, the pathway of reasoning was disclosed and there was no error with the reasons by the Review Panel.
Is a contralateral joint 'uninjured' if it had been injured in the past but resolved by the time of the WPI assessment?
The Plaintiff injured both shoulders in the accident. On examination, the left shoulder exhibited restriction of movement consistent with an assessment of 11% upper extremity impairment (UEI) and the right shoulder 6% UEI. However, in discussions with the Review Panel, the Plaintiff described his right shoulder as 'normal'. The Review Panel concluded the right shoulder injury had resolved and used its restricted range of motion as a baseline under clause 1.51 of the Guidelines. The result was that the Plaintiff's left shoulder's 11% UEI was reduced by 6% to 5% which corresponded to a whole person impairment of 3%.
The Plaintiff submitted this was an error for two reasons:
This decision also reinforces the principle that the reasoning by administrative decision‑makers should not be examined with an eye keenly attuned to find error. The absence of a specific statement that the Plaintiff's radicular-type cervical spine symptoms did not follow a dermatomal pattern did not invalidate the finding that there was not non‑verifiable radiculopathy in this instance. However, it should be considered that her Honour's finding in this respect was in the context that the Review Panel had made it clear they were aware of the presence of the symptoms and made it clear they had considered it.