Pain can be impairment: Yangzom v Allianz Australia Insurance Limited [2024] NSWSC 870

In Brief

• The PIC Medical Assessor is required to consider both the injuries the claimant suffered and the cause of any impairment. Pain and numbness can be valid indicators of impairment.
• An impairment is compensable even when the body part which became impaired was not directly injured in the accident.

Facts

The Supreme Court handed down its decision in Yangzom v Allianz Australia Insurance Limited [2024] NSWSC 870 on 18 July 2024.

The Claimant made an application in the PIC for resolution of whether her permanent impairment exceeds 10% whole person impairment. The plaintiff claimed she had suffered injuries to her arms, buttocks, cervical and lumbar spine, right knee and both shoulders.

The PIC Medical Assessor found there to be “no significant clinical findings” in relation to either the cervical and the lumbar spine injuries and stated that “[t]he Nguyen judgement issues do not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part”.

The Assessor found there to be no assessable impairment in the arms or buttocks, stating that “the presence of pain in a body region is not indicative of an injury to that body region”.

The PIC Medical Assessor concluded that injuries to the Claimant’s arms and buttocks were not caused by the accident; that she had suffered permanent impairment to the other claimed body parts but that her WPI was only 4%, 2% for each shoulder.

The PIC Delegate dismissed the Claimant’s application for review. The Delegate referred to the statutory test, the arguments advanced, the reasons given by the assessor and quoted from the Guidelines. The Delegate also repeated the Assessor’s incorrect quote of an outdated version of the Guidelines.

The Claimant sought judicial review of the decisions of both the Assessor and the Delegate.

Supreme Court Reasons

Acting Justice Schmidt stated that, pursuant to clause 6.17 of the Motor Accident Guidelines (“the Guidelines”), the assessor is required to consider both the injuries the claimant suffered and the cause of any impairment. Her Honour stated that pain can be indicative of injury and impairment, which an assessor needs to assess.

Acting Justice Schmidt reaffirmed the Supreme Court’s decision in Nguyen v Motor Accidents Authority (NSW) [2011] NSWSC 351 (“Nguyen”) that an impairment is compensable even when the body part which became impaired was not directly injured in the accident.

Further, her Honour highlighted that the Guidelines provide that conditions not covered by the Guidelines might be found to indicate an impairment and are to be assessed by analogy to a similar condition: cl 6.24.

Acting Justice Schmidt found that the reasons the Assessor gave for his conclusions about the Claimant’s arms and buttocks reflected a misunderstanding of the Guidelines and Nguyen. Due to this misunderstanding, the Assessor failed to consider whether the ongoing symptoms in the Claimant’s arms and buttocks could have evidenced injury to these body parts or impairment of these body parts due to injury to other body parts. In any event, the Assessor erred in not explaining why these symptoms could not have been caused by the Claimant’s spinal injuries.

Her Honour also identified other errors in the assessment as follows:

1. The assessor had quoted from a provision which was no longer contained in the applicable Guidelines, which casts doubt on his adherence to the applicable guidelines ([44]).
2. The Claimant had been prescribed muscle relaxants, which was not taken into account in the assessment ([77]).
3. Inconsistency observed by the Assessor was not drawn to the Claimant’s attention ([80] to [82]).
4. The certificate does not suggest that the Assessor attempted three repetitions in measuring active range of motion when the Assessor found the measurement to be unreliable ([85], [86]).
5. The Assessor did not provide reasons for not applying Table 3 of the AMA 4 Guides ([87]).
6. The Assessor 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 ([93]).
7. The Assessor did not provide reasons for how an MRI scan report, which reported nerve root impingement, supported the conclusion that the only permanent impairment the Claimant suffered was in her shoulders ([94]).

Acting Justice Schmidt found that the Delegate fell into legal error, because it was apparent that the Assessor did not follow Nguyen and that the Assessor did not disclose the path of reasoning for various conclusions in the assessment.

Her Honour was critical of the Delegate’s statement that “pain is not a valid indicator of impairment and the claimant does not particularise how there is impairment to these alleged injuries” as reflecting a misunderstanding of how the Guidelines deal with pain. Her Honour found that references to “the ongoing pain, soft tissue and nerve injury” are sufficient particularisation of the impairments.

Further, her Honour held that a delegate is required to undertake an evaluative exercise on a review application and that merely “referring to the statutory test, the arguments advanced, the reasons given by the assessor and quoting from the Guidelines” do not establish that this evaluative exercise has been undertaken.

In addition, her Honour held that the Delegate’s use the Assessor’s incorrect quote of an outdated version of the Guidelines reflected legal error in the delegate’s approach to his statutory task.

Lastly, Acting Justice Schmidt reaffirmed that for a review application to succeed, there is no need to establish that a proper assessment would have resulted in a different conclusion about whether the compensable threshold is reached.

Both the Assessor’s decision and the Delegate’s decision were set aside. The matter was returned to the PIC.

Key Learnings

The decision in Yangzom v Allianz Australia Insurance Limited [2024] NSWSC 870 confirms that:

• Pain can be indicative of impairment, which an assessor needs to assess even when the body part which became impaired was not directly injured in the accident.
• References to, for example, “ongoing pain, soft tissue and nerve injury” are sufficient particularisation of the impairments.
• A delegate is required to undertake an evaluative exercise on a review application. Inadequate reasons may show that this evaluative exercise was not undertaken.

The Court highlighted clause 6.24 of the Guidelines which provides that if an impairment does not correspond to conditions already covered by the Guidelines, it is to be assessed by analogy to a similar condition.