Radko Gudas hit on Scottie Upshall

Last night, Tampa Bay Lightning defenseman Radko Gudas took out Florida Panthers forward Scottie Upshall with this questionable, high hit. The hit happened during the second period.

Today, it was announced that Gudas will not face a hearing for this hit. Obviously, not every hit si going to result in a hearing or a suspension.

Looking at the hit, it appears to be a violation of the NHl's rule 48. Thoughts?

48.1 Illegal Check to the Head – A hit resulting in contact with an opponent's head where the head is targeted and the principal point of contact is not permitted. However, in determining whether such a hit should have been permitted, the circumstances of the hit, including whether the opponent put himself in a vulnerable position immediately prior to or simultaneously with the hit or the head contact on an otherwise legal body check was avoidable, can be considered.