Yangzom v Allianz Australia Insurance Limited [2024] NSWSC 870
In this case, Justice Schmidt of the Supreme Court reinforces the importance of strictly adhering to the laws and procedures that govern the way medical assessments and administrative decisions are to be conducted. The appropriate procedure applicable to the review of decisions extends to undertaking an evaluative exercise as to whether there is a reasonable cause to suspect that the assessment was incorrect, and whether the error made was material to the assessment.
Background
In June 2018, Ms Yangzom (“the Plaintiff”), a Tibetan immigrant and school cleaner, was hit by a utility vehicle while crossing the road. As a result of the accident, the Plaintiff alleged sustaining injuries to her arms, buttocks, cervical and lumbar spine, right knee, and both shoulders.
A medical dispute concerning the Claimant’s degree of permanent impairment was referred to the Personal Injury Commission. In November 2023, the Claimant was assessed by Assessor Cameron who concluded that the injuries to her arms and buttocks had not been caused by the accident. He assessed 4% whole person impairment attributed to the shoulder injuries.
The Plaintiff sought to have the medical assessment reviewed in accordance with section 7.26(2) of the Motor Accident Injuries Act 2017 (NSW) (“the Act”). In January 2024, the President’s Delegate refused the application.
This judgment concerns the Plaintiff’s application for Judicial Review of the decisions of both the Medical Assessor and the President’s Delegate.
Issues
The Plaintiff sought a judicial review claiming that both the Assessor and President’s Delegate had fallen into legal error on the basis that:
- The Assessor failed to comply with the assessment standards as prescribed in the Motor Accident Guidelines (“the Guidelines”).
- The Assessor misapplied the principle in Nguyen v Motor Accidents Authority (NSW) [2011] NSWSC 351.
- The President’s Delegate failed to exercise his statutory function under section 7.26 of the Act on the basis that he misconceived the task he was required to undertake and failed to address the Plaintiff’s arguments.
Decision
The Assessor
The Court was satisfied that the Assessor fell into legal error on the basis that he failed to comply with the applicable Guidelines.
When explaining his conclusions about the right shoulder, the Assessor referred to a provision that no longer appeared in clause 6.40 of the Guidelines, “Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of claimants’ efforts”. These words appeared in the predecessor Guidelines.
The Assessor incorrectly found that the Claimant’s injuries to her arms and buttocks were not related to the accident although the available evidence does not explain the history of the injuries other than the subject accident. In addition, the Assessor did not assess permanent impairment in these regions despite Clause 6.38 of the Guidelines requiring pain associated with a particular neurological impairment to be assessed.
The Assessor misapplied the principle found in Nguyen which provides that if a claimant has not sustained a direct injury to a body part but is experiencing symptoms such as referred pain, then that referred pain is an assessable injury. The Court found that the Assessor failed to consider whether the Plaintiff’s injuries to her cervical and lumbar spine and both shoulders also caused the symptoms in her arms and buttocks, as required by the Guidelines.
The Assessor failed to assess whole person impairment as outlined in the Guidelines by failing to take into account the Plaintiff’s treatment, failing to put to the Plaintiff any inconsistencies with his assessment, improperly assessing the range of motion in her upper extremities, and failing to consider the relevant evidence in his assessment of the spine.
In addition to the above, the Assessor failed to provide adequate reasoning for his findings.
The President’s Delegate
The Court was satisfied that the President’s Delegate failed to undertake his statutory task provided in section 7.26 of the Act, in that, the Delegate failed to turn his mind to the matters on which the Plaintiff relied to establish that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The Court stated that it is not sufficient to merely refer to the matters advanced and then to quote the Guidelines and reasons given. The statutory task involves “an evaluative exercise” of:
- Whether there is a reasonable cause to suspect that the assessment was incorrect, and
- Whether the error made was material to the assessment.
Accordingly, the “low statutory bar to referral for review” found not to have been met, was due to legal error. The obligation, in this case, required the Delegate to consider whether the law, namely the rule in Nguyen, had been applied.
Final result
The Court set aside both the decision of the Assessor and the President’s Delegate and ordered that the matter be remitted to the President of the Personal Injury Commission to be decided according to law.
Why this decision was important
- Strict adherence to the Guidelines and statutory requirements – Medical Assessors and Delegates must meticulously follow the procedures and laws prescribed.
- Accurate interpretation of the law – Medical Assessors and Delegates must have an understanding of the relevant legal principles sufficient to conduct an evaluative exercise.
Essentially, the case underscores the need for rigorous standards in medical assessments and the potential disputes that may arise should laws and procedures not be strictly adhered to.
This article was written by Lawyer Rita Hajjar, with review by Principal Andrew Gorman. Please contact Andrew if you have any questions or would like further information.
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