Haasjes v Coates Hire Operations Pty Ltd

DETERMINATION OF REVIEW PANEL
CITATION:	Haasjes v Coates Hire Operations Pty Ltd [2022] NSWPICMP 441
CLAIMANT:	Ronald Haasjes
INSURER:	Coates Hire Operations Pty Ltd
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	14 September 2022
DATE OF REPLACEMENT DECISION:	7 November 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 25 January 2017 when his right hand was crushed between Armorzone water-fill barriers and the combing rail of a truck suffering partial amputations of the little and ring fingers; the Panel originally assessed impairment at 12% including an allowance for sensory loss; the insurer asserted that the Panel had made an obvious error by not halving the figure allowed for sensory loss in accordance with a paragraph that provided the sensory loss is to be 50% of that due to imputation; section 61(11) of the Motor Accidents CompensationAct1999 (1999 Act) provides that a Medical Assessor (MA) and a Panel under section 63(6) of the 1999 Act can correct a certificate if it contains an obvious error; the claimant did not concede obvious error; the parties made no submissions on the meaning of the provision; reference made to Goodwin v Motor Accidents Authority of New South Wales which provided that the error can be obvious from the reasons; the operative words of section 61(11) of the 1999 Act is that the certificate “contains an obvious error”; the provision does not restrict what can be considered in determining whether there is an “obvious error”; medical disputes frequently concern the degree of permanent impairment; the scope of that dispute under the 1999 Act contained in the certificate requires the application of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4) as amended by the Motor Accident Permanent Impairment Guidelines (Guidelines); provided the error is “obvious” the language of the provision does not restrain the decision maker from looking at AMA 4 and the Guidelines in determining whether the certificate contains an obvious error; the error is contained in the certificate because it repeats the error from the reasons; clause 17.4 of the Guidelines provided examples of obvious error including “an accidental slip or omission”: Newmont Yandel Operations Pty Ltd v The J Aron Corporation referred to; the finding on the assessment of sensory loss was also an accidental slip or omission which can be corrected as an example of an obvious error; Held – sensory loss recalculated; claimant reassessed at 10% permanent impairment; replacement certificate issued.
DETERMINATIONS MADE:	REPLACEMENT CERTIFICATE Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF permanent impairment OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: The Panel revokes the certificate dated 14 September 2022 and issues the following replacement certificate: The degree of permanent impairment as a result of the injury caused by the motor accident is not greater than 10%.

REASONS

Background

Mr Ronald Haasjes (the claimant) was involved in a motor accident on
25 January 2017 during the course of his employment with Coates Hire Operations Pty Ltd (Coates Hire). Mr Haasjes right hand was crushed between Armorzone water-fill barriers and the combing rail of a truck suffering partial amputations of the little and ring fingers.
Coates Hire is the owner of the motor vehicle liable to pay Mr Haasjes any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
Mr Haasjes suffered amputations of the tips of the right ring and little fingers and sustained sensory loss in these fingers as a result of the motor accident.
On 14 September 2022 the Panel issued a certificate accompanied by reasons which assessed the claimant’s permanent impairment at 12% (the previous decision).[1] The previous decision is to be read with this decision.
[1] Haasjes v Coates Hire Operations Pty Ltd [2022] NSWPICMP 360 (Haasjes).
By letter dated 7 October 2022 the insurer contended that the impairment calculations were based on an obvious error. That error was alleged to be the assessment of the calculation of sensory loss of the ring and little fingers.

The previous decision

The previous decision noted that guidelines may be issued with respect to the assessment of the degree of permanent impairment.[2] The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[2] Haasjes at [4] – [5].
[3] Clause 1.2 of the Guidelines.
The relevant examination findings by the Medical Assessors on the Panel of sensory loss were:
“Skin sensation was marked out using a 5 mm spaced pinwheel. Sensation for two-point discrimination and light touch in both arms, forearms, and left hand and in the right thumb, index and middle fingers of the right hand on volar and dorsal aspects. Movements of both hands are full and fingers including normal flexion at the proximal interphalangeal joints of both the ring and small fingers but with a 20° loss of flexion at the distal interphalangeal joint of the small finger. There is a most unpleasant intrusive sensation response on the palmar aspects of the amputated fingers at the proximal interphalangeal level, dysaesthesia. There is no two-point discrimination, there is complete anaesthesia as well. The distribution of the abnormal sensation is well-defined and corresponds to the terminal branches of the ulnar nerve and the radial sided branch of the median nerve to the ring finger. Mr Haasjes has hypersensitivity in the amputated digital nerve stumps. Injured nerves often become hyperexcitable when trapped in scar tissue. This is called stump neuroma.
Figure 3 of AMA 4 p 18 assigns a 5% impairment of the hand for each amputation at the distal interphalangeal joint level for the ring and small fingers. This totals 10% hand impairment. Table 2 of AMA 4 p 19 equates 10% hand impairment to 9% upper extremity.
There is total sensory loss for the radial palmar branch of the median nerve to the ring finger and the ulnar branch of the ulnar nerve to the ring finger, and the radial and ulnar palmar branches of the ulnar nerve to the little finger.”
The Panel’s assessment of permanent impairment was contained in the following paragraphs of the previous decision:
“97.   The impairment of the little finger and ring finger due to amputation at the DIP is 5% hand impairment for each finger (Figure 3 AMA 4).
98.     The sensory loss of the radial and ulnar sides of the ring and little finger is 5% hand impairment for each finger. The Medical Assessors have previously explained why the claimant has a 100% sensory loss for each finger (Figure 4 of AMA 4).
99.     Pursuant to Figure 1 of AMA 4 the loss due to amputation of the DIP of each finger is combined with the sensory loss. Accordingly, the loss for the ring and little finger is each assessed at 10% hand impairment. These losses are added pursuant to Figure 1 resulting in 20% hand impairment for both fingers which equates to 18% upper extremity impairment (UEI) (Table 2 AMA 4). We also note that the requirement to add or combine as required by Figure 1 of AMA 4 is confirmed by clause 1.54 of the Guidelines.
100. This loss is combined with the further 2% UEI for the right shoulder which totals 20% UEI. Pursuant to Table 3 of AMA 4 this equates to 12% whole person impairment.
101. We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
102. Medical Assessor Curtin assessed the permanent impairment of the skin at 0%. No review was sought against that assessment. This certificate is combined with that assessment.”

Application for the correction due to “obvious error”

The review process is provided by s 63 of the MAC Act. Relevantly, s 63(6) provides that s 61 applies to any new certificate issued under that section.
Section 61(11) of the MAC Act provides:
“If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error.”
In its application the insurer requested that the “Proper Officer amend the obvious error contained in the Review and issue an amended decision”. We note that the “Proper Officer” does not amend the obvious error of the Review Panel but refers the matter back to the Panel for determination.
The claimant did not oppose the matter being referred back to the Review Panel.[4] His limited submission was:
“While the Claimant does not concede an obvious error exists as alleged, the Claimant does not oppose the matter being referred back to the Review Panel for their verification.”
[4] Correspondence dated 24 October 2022.
A subsequent communication to the Panel through the Commission portal was that this was “the extent of the Claimant's submissions”.
The insurer’s submissions on the obvious error in the calculation of sensory loss were:
“9.     The Medical Assessor’s assessed total sensory loss of the ring and little finger. In accordance with page 21 of AMA4, a 100% sensory loss receives 50% of the amputation impairment value of that level.
10.    The amputation hand impairment value at the DIP level is 10% for both fingers. Therefore, the hand impairment rating for the sensory loss is 5% for both fingers and not 10% as found by the Medical Assessors.
11.    There is therefore a 15% hand impairment and not 20% as assessed by the Medical Assessors.
12.    Table 2 of AMA 4 translates 15% hand impairment to 14% upper extremity impairment.
13.    Combining the 2% upper extremity impairment for the right shoulder results in a total of 16% upper extremity impairment, not 20% as assessed by the Medical Assessors.
14.    Pursuant to Table 3 of AMA4, 16% upper extremity impairment equates to 10% whole person impairment and not 12% as assessed by the Medical Assessors.”
The parties otherwise made no submissions on the meaning of “obvious error”.
The Panel’s findings on impairment due to sensory loss for 5% hand impairment is not specified in the decision but was based on Figure 5 of AMA4. That table specifies the assessment of sensory loss for the radial and ulnar sides of the fingers. The ulnar side of the little finger is 3% and the radial side of that finger is 2%. The assessments are reversed for the ring finger. Accordingly, pursuant to Figure 5 the total sensory loss of the little and ring finger separately is 5% hand impairment.
The error in the calculation of sensory loss is clear from related passages in AMA 4 which provide that total sensory loss is assessed at 50% of the impairment due to amputation. Those parts are:
(a)     Paragraph 3.1a (AMA4, page 15):
“Impairment due to total sensory loss only is considered to be 50% of that due to amputation.”
(b)     Paragraph 3.1c (AMA 4, page 21) under the heading “Sensory Impairment Reading”:
“Total transverse sensory loss (greater than 15mm two-point discrimination) is a 100% sensory loss and receives 50% of the amputation impairment value for that level.”
(c)     Figure 17 (AMA 4, page 30):
This table shows amputation impairment and total transverse sensory impairment at the various joints in the fingers and shows that the total transverse sensory impairment is half of the amputation impairment.
It is clear that the total sensory loss of the ring and little fingers should each have been assessed at 2.5% hand impairment. We erred by failing to half the figure provided by Figure 5 in accordance with the paragraphs set out in the preceding paragraph
Section 61(11) provides for correction where the certificate contains an “obvious error”.
In Goodwin v Motor Accidents Authority of New South Wales[5] Bellew J considered the meaning of “obvious error” in the context of s 61(11) of the MAC Act. His Honour stated:
“In the present case, part of the relevant statutory context in which the meaning of the term ‘obvious error’ is to be considered are the provisions of Chapter 17 of the guidelines. There is nothing within that Chapter which confines the attention of the Proper Officer to the certificate alone, as opposed to the accompanying reasons. In fact, the definition of the term ‘certificate’ suggests the contrary.
[5] [2014] NSWSC 40 (Goodwin).
Moreover, clause 17.4 of the guidelines cites examples (which are not exhaustive) of what may constitute an obvious error. Those examples include (at 17.4.4) where there is ‘an obvious inconsistency between the certificate and the reasons explaining the certificate’. The guidelines therefore contemplate that in determining whether there may be an obvious error, the decision maker may go beyond the contents of the certificate itself, and consider the accompanying reasons. The Proper Officer's conclusion that an obvious error must be apparent on the face of the certificate reflected an approach which was at odds with the provisions of clause 17.4.4.”
The reference by his Honour to the “guidelines” are to the Medical Assessment Guidelines (MA Guidelines) made under s 44 of the MAC Act. The MA Guidelines are to be contrasted with the Motor Accident Permanent Impairment Guidelines which contains the methodology for the assessment of permanent impairment.
The relevant portion of the MA Guidelines provides:
“17.1 If a party to an assessment, or an Assessor considers that an Assessor or Review Panel has made an obvious error in a certificate, that party may make an application to the Proper Officer to have the error corrected by the MAS Assessor or review panel within 30 days after the date on which the certificate under either clause 13.3, 13.5, 13.9 or 16.23 was sent by MAS to the parties. (Note: This period is different to the obvious error correction period at CARS, which is set at 21 calendar days after the CARS certificate of assessment was issued, which is timed to be consistent with the period for accepting a CARS assessment. Instead this MAS obvious error correction period is timed to be generally consistent with the period of time for lodging a MAS review as set out in Chapter 16 of these Guidelines.)
17.2 Any such application is to be made in writing to the Proper Officer, setting out details of the obvious error and the terms of the suggested correction.
17.3 The party making the application is to send a copy of the application to the other party.
17.4 Examples of obvious errors in the certificate include, but are not limited to:
17.4.1 a clerical or typographical error in the certificate;
17.4.2 an error arising from an accidental slip or omission;
17.4.3 a defect of form; or
17.4.4 an obvious inconsistency between the certificate and the reasons explaining the certificate.
17.5 The Proper Officer shall acknowledge the application by writing to both parties, and refer the matter to the Assessor or Review Panel.”
Section 61(11) provides for the correction where the certificate contains an obvious error. There is no reason to read those words down to limit their operation. In Goodwin the Court held that the terms of the section allow for the error to be obvious from the reasons as well as the certificate. The reasons in the previous decision clearly refer to the Guidelines which were incorrectly applied in this matter.
The operative words of s 61(11) is that the certificate “contains an obvious error”. The provision does not restrict what can be considered in determining whether there is an “obvious error”. Medical disputes frequently concern the degree of permanent impairment. The scope of that dispute under the MAC Act, contained in the certificate, requires the application of AMA 4 as amended by the Guidelines.
Provided the error is “obvious”, it is our view that the language of the provision[6] does not restrain the decision maker from looking at AMA 4 and the Guidelines in determining whether the certificate contains an obvious error. The error is contained in the certificate because it repeats the error from the reasons. In the present case that error was assessing 12% permanent impairment in the reasons from a misapplication of AMA 4 on the issue of the assessment of sensory loss and then incorporating an assessment of impairment over 10% into the certificate.

26.The error was in the calculation of impairment due to sensory loss rather than an error in the assessment of the presence of sensory loss. The latter involves a judgment process which would not normally fall within the province of “obvious error”.
[6] See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69]-[71] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41.

The relevant provisions in AMA 4 provides that total sensory loss is half that of the assessment for amputation. The original error of allowing the full rather than half the amount for sensory loss clearly falls within the meaning of “obvious” when AMA 4 is properly considered. Whilst the claimant did not concede that there was an obvious error, it made no contrary submission contesting the insurer’s submission on the error made by the Panel in the calculation of the assessment for sensory loss.
The certificate contains an obvious error. The Panel in these circumstances is required to issue a replacement certificate.

Accidental slip or omission

Clause 17.4 provides examples of an obvious error and include an “error arising from an accidental slip or omission”. The examples in cl 17.4 are not exhaustive.
In Newmont Yandel Operations Pty Ltd v The J. Aron Corporation[7] the Court of Appeal considered the scope of the meaning of an “error arising from an accidental slip or omission in r 36.17 of the Civil Procedure Rules 2005 (the slip rule). The Court noted that an overriding purpose of the Civil Procedure Act, 2005 and the rules of court was to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. Accordingly, the Court noted that it must “give effect to the overriding purpose when interpreting the relevant words of the provision and when exercising the discretion to correct the error or mistake”.[8]
[7] [2007] NSWCA 195 (Newmont).
[8] Newmont at [26]-[27].
There is an obvious different statutory context between the words “error arising from an accidental slip or omission” used in the Civil Procedure Rules and those used in the MAC Act. Noting the obvious differences, the principles discussed in Newmont have relevance to the meaning of “accidental slip or omission”.
The Personal Injury Commission (the Commission) is constituted by the Personal Injury Commission Act 2020 (the PIC Act). The objects of the PIC Act include that the Commission “resolve the real issues in proceedings justly, quickly, cost effectively and with a s little formality as possible”.[9] Pursuant to the provisions of the PIC Act, Medical Assessors are appointed by the President for such purposes including the exercise of powers under the MAC Act.
[9] PIC Act, s 3.
Adopting the propositions referenced in Newmont to the application of the slip rule for an accident slip or omission, the error made by the Panel was immediately recognisable and “goes without saying”.[10]
[10] Newmont at [111].
The solution to the error entails no controversy as is understood by the authorities.[11]
[11] Newmont at [140].
The solution, in this case the correction of the assessment involves no evaluative or discretionary judgment. The error was not with respect to the existence or the extent of the sensory loss but rather the calculation based on the examination findings. Based on the findings of the sensory loss, the assessment is half that allowed for the assessment of the amputation.

Finally, the extent of the assessment of impairment of the fingers was clearly in issue.
Accordingly, the finding on the assessment of sensory loss was an accidental slip or omission which can be corrected as an example of an obvious error.

ASSESSMENT

The impairment of the little finger and ring finger due to amputation at the DIP is 5% hand impairment for each finger (Figure 3 AMA 4).
The total sensory loss of the radial and ulnar sides of the ring and little finger is 2.5% hand impairment for each finger, that is half the assessment for the amputation.[12] This figure is rounded to 3% hand impairment for each finger.[13]
[12] See [16].
[13] See cl 1.39 of the Guidelines.
Pursuant to Figure 1 of AMA 4 the loss due to amputation of the DIP of each finger is combined with the sensory loss. Accordingly, the loss for the ring and little finger is each assessed at 8% hand impairment. These losses are added pursuant to Figure 1 resulting in 16% hand impairment for both fingers which equate to 14% upper extremity impairment (UEI) (Table 2 AMA 4). We also note that the requirement to add or combine as required by Figure 1 of AMA 4 is confirmed by cl 1.54 of the Guidelines.
This impairment (14%) is combined with the 2% UEI for the right shoulder which totals 16% UEI. Pursuant to Table 3 of AMA 4 this equates to 10% whole person impairment.
Although we have reached the same overall assessment (10%) as that submitted by the insurer, our method of assessment is slightly different. This is because the insurer did not separately assess each finger in its proposed calculations.

Conclusion

The certificate issued on 14 September 2021 contains an obvious error and must be corrected. The replacement certificate is attached at the commencement of these Reasons.

[2022] NSWPICMP 441

14 September 2022