An injury must be shown for there to be impairment, even though pain is a type of impairment

Allianz Australia Insurance Limited v Yangzom [2025] NSWCA 104

In Brief

• Whether pain in a body region shows injury to that body region must be determined before the degree of impairment can be assessed. This is so even though pain is itself a type of impairment.
• The obligation to provide adequate reasoning is discharged where a gap in the reasoning may be filled as a matter of necessary inference on a fair reading of the reasons.

Facts

The Court of Appeal handed down its decision in Allianz Australia Insurance Limited v Yangzom [2025] NSWCA 104 on 16 May 2025.

This is an appeal of a judicial review decision regarding a PIC medical assessment finding permanent impairment below 10% and a Delegate’s decision refusing a review of that assessment.

The review focused on the Medical Assessor’s finding that there was no assessable impairment in the arms or buttocks, despite the claimant having pain and numbness in those body regions and having cervical spine and lumbar spine injuries.

The primary judge found that the medical assessor did not correctly apply the principle in Nguyen v Motor Accidents Authority (NSW) [2011] NSWSC 351 (“Nguyen”) and did not provide adequate reasons. The primary judge also identified a number of other errors. Please see our case note of the primary judge’s decision here.

Court of Appeal’s Reasons

The Court handed down a unanimous decision allowing the appeal.

The Court stated that the task for the medical assessor in determining whether the injuries as referred for assessment were injuries caused by the accident includes determining whether the symptoms complained of established injury in the first place (at [67]).

The Court found that pain is not, of itself, an injury within the meaning of the MAIA. This is because pain does not meet the definition of an above-threshold injury, which is significant in the operation of the MAIA (at [60]). The Court stated, however, that the presence of pain may well be a symptom of injury, and that pain is a type of impairment ([62]-[64]).

The Court construed the Medical Assessor’s statement “the presence of pain in a body region is not indicative of an injury to that body region” as conveying the uncontroversial proposition that pain to a body region does not, of itself, establish that there is an injury to the body region, because this is the more likely construction given the Medical Assessor’s training and expertise as compared to the competing construction that pain could not be a sign or symptom of injury.

The Court construed the Medical Assessor’s statement that there was “no assessable impairment” in the arms or buttocks as that he did not find any impairment in these body regions. The Court reconciled the Medical Assessor’s record of “chronic pain” with the finding of “no assessable impairment” by inferring that the chronic pain was not in the arms or buttocks.

Regarding the Medical Assessor’s finding that “there was no direct effect of spinal symptoms in the cervical or lumbar spine causing permanent impairment in another body part”, the Court noted that the primary judge only found error because her Honour assumed that the Medical Assessor did not consider whether or not the arm or buttock symptoms were secondary to the spinal injuries. The Court stated that there is no basis for this assumption and that the natural reading of the Medical Assessor’s statement is that the arm and buttock symptoms did not constitute permanent impairment.

Regarding the adequacy of the Medical Assessor’s reasoning, the Court emphasised the principle of reading the reasons as a whole and applying a “beneficial construction”[1], and filling gaps by necessary inference[2]. The Court found that the true force of the Medical Assessor’s reasoning is tolerably clear from a reading of the medical assessment as a whole, being that there was no injury to the claimant’s arms or buttocks.

The Court addressed the other errors identified by the primary judge (as were brought before the Court on appeal) as follows:

1. The Assessor quoting from an older version of the Guidelines and stating that there was no radiological imaging to review – the Court found that these do not require determination because the primary judge did not find legal error in them.
2. Inconsistency observed by the Assessor not being drawn to the Claimant’s attention – the Court found that attention must have been drawn to this because the Assessor recorded her response.
3. The Assessor not having made three repetitions in measuring active range of motion – this requirement was not applicable because the measurements were inconsistent due to pain.
4. The Assessor stating that there was no radiological imaging to review
5. The Assessor not discussing a cervical spine MRI report – the Court found that the Assessor likely found the report to be irrelevant because it showed degenerative changes only. Further, given the interpretation of the report by another medical specialist (that it was “reassuring”), not considering the report is not a failure to exercise jurisdiction.

The appeal was allowed and the claimant’s application for judicial review of the medical assessment was dismissed.

Key Learnings

This decision clarifies that whether pain in a body region shows injury to that body region must be determined before the degree of impairment can be assessed, even though pain is itself a type of impairment.

The Court of Appeal’s decision also demonstrates that a medical assessment certificate is to be read as a whole, applying a beneficial construction, and allowing gaps to be filled by necessary inference.

[1] As referred to by the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291, and 271-272

[2] Leeming JA held in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6]