What is the definition of ‘uninjured’ as it appears in the Permanent Impairment Guidelines?

A recent decision by the Supreme Court considers what 'uninjured' means in the context of clause 1.51 of the Permanent Impairment Guidelines. In addition, whether or not all three Assessors of the Review Panel are required to conduct the examination was considered.

 

Judgment date: 11 April 2019
Citation: Lu v AAI Ltd t/as AAMI
Jurisdiction: Supreme Court of NSW*

Principles


  • In the context of assessment of medical disputes under the Motor Accidents Compensation Act 1999 (the Act) there is no requirement that any re-examination of an injured Claimant must be conducted by all three members of a Review Panel.  A re-examination by only two of the three Assessors of a Review Panel does not necessarily vitiate a Review Panel Certificate, but may in some circumstances.
  • For the purposes of clause 1.51 of the Permanent Impairment Guidelines (the Guidelines), a contralateral uninjured shoulder may be used as a baseline even in circumstances where that uninjured joint has previously been injured so long as that injury had resolved by the time of the whole person impairment assessment.

Background

The Plaintiff, Weiping Lu, was a house painter who allegedly sustained injury to his shoulders, neck and back in a motor vehicle accident.

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:

  1. That his neck injury did not exhibit non-verifiable radiculopathy; and
  2. That his 'uninjured' right shoulder could be used as a baseline under clause 1.51 of the Guidelines.
The Plaintiff also alleged that the reasons by the Review Panel for each of the above decisions were inadequate.

Decision

Are all three Assessors on a Review Panel required to conduct the examination?

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:

  1. The right shoulder had been injured in the accident and therefore could not be considered 'uninjured'; or
  2. The right shoulder could not be considered 'uninjured' because an MRI showed, "moderate grade tendinopathy of the supraspinatus with mild tendinopathy of the infraspinatus and sub capsularis…"
Her Honour reasoned that the Plaintiff's evidence that his right shoulder was 'normal' was evidence enough to conclude it was 'uninjured' notwithstanding the presence of 'injury' on MRI.  Her Honour found there was no error demonstrated in the Review Panel's finding and that the pathway of reasoning was disclosed by the Review Panel.

Why this case is important

The Court's conclusion about what is considered 'uninjured' in clause 1.51 of the Guidelines could be considered a common sense approach.  Although the Plaintiff's right shoulder had objective evidence of injury, the evidence from the Plaintiff himself was that his shoulder was 'normal'.  If the MRI results had excluded the possibility of using the Plaintiff's right shoulder as a baseline, then there could be many instances where unrelated pathology which does not manifest symptoms could interfere with the proper application of the Guidelines.

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.

*Adams J