AAI Limited t/as GIO v Amos
[2022] NSWPICMP 397
•12 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Amos [2022] NSWPICMP 397 |
| CLAIMANT: | Jesse Owen Amos |
INSURER: | AAI Limited trading as GIO |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Dr Geoffrey Curtin |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| DATE OF DECISION: | 12 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident in 26 July 2018; assessment of permanent impairment under the Motor Accident Injuries Act 2017; lumbar spine, cervical spine, left shoulder, right shoulder, abdomen; treatment dispute about magnetic resonance imaging (MRI) of cervical spine and chiropractic treatment; Held – injury to left and right shoulder in accordance with referred pain from neck (Nguyen principle); 2% whole person impairment (WPI) assessed for each shoulder; soft tissue injury to cervical spine assessed 0% WPI; soft tissue injury to lumbar spine 0% WPI; musculo-skeletal injury to the abdomen resolved; total WPI 4%; MRI cervical spine reasonable and necessary diagnostic tool to determine if claimant had sustained a disc prolapse, annular disc tear or ligamentous injury; need for MRI scan caused by the accident; chiropractic treatment including mobilisation, deep tissue massage and dry needling accepted treatment modalities and reasonable and necessary treatment for injury; need for past chiropractic treatment caused by accident. |
| DETERMINATIONS MADE: | The Review Panel revokes the Certificate of Medical Assessor Farhan Shahzad dated 4 June 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is not greater than 10% and is 4%: · injury to the cervical spine; · injury to the lumbar spine; · injury to the left shoulder; · injury to the right shoulder, and · injury to the abdomen. The Review Panel revokes the certificate of Medical Assessor Farhan Shahzad dated 4 June 2021 and issues a new certificate as follows: The following treatment and care: · an MRI of the cervical spine, if undergone by the claimant, and · past chiropractic sessions for mobilisation, deep tissue massage and dry needling by Mr Nick Skalidas was reasonable and necessary and does relate to the injury caused by the motor accident. |
PANEL REASONS FOR DECISION
INTRODUCTION
On 26 July 2018 Jesse Amos (the claimant) was the front seat passenger in a vehicle which collided with the rear of a bus (the accident).
Mr Amos asserts he sustained the following injuries in the accident:
1. (a) injury to the cervical spine;
2. (b) injury to the lumbar spine;
3. (c) injury to the thoracic spine;
4. (d) injury to the right shoulder,
5. (e) injury to the left shoulder;
6. (f) injury to the abdomen;
7. (g) injury to the teeth and gums;
8. (h) fractured right orbit;
9. (i) injury to the nose;
10. (j) injury to the head resulting in vertigo, dizziness and headaches, and
11. (k) post-traumatic stress disorder.
Mr Amos has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Mr Amos under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Amos as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].
[1] Section 7.20 of the MAI Act.
A number of medical assessments were undertaken including the assessment of Medical Assessor Shahzad, the subject of this review.
Certificate of Medical Assessor Nichols
Medical Assessor Nichols issued a certificate dated 24 April 2021. Assessor Nichols found the following injuries caused by the accident gave rise to a permanent impairment of 0%:
· teeth – broken teeth, and
· gum – lacerations.
Certificate of Medical Assessor Fukui
Medical Assessor Fukui issued a certificate dated 20 June 2021. Assessor Fukui found the following injuries caused by the accident gave rise to a permanent impairment of 17%:
· Post-traumatic stress disorder.
Certificate of Medical Assessor Scoppa
Medical Assessor Scoppa issued a certificate dated 28 January 2022.[2] Medical Assessor Scoppa found the following injuries caused by the accident gave rise to a permanent impairment of 6%:
· body area: nose & air passage - fractured nasal bones with deviated nasal septum.
[2] AD3 p 1,772.
Dr Scoppa concluded the following injuries were not caused by the accident:
· body area: head: vertigo & dizziness, headaches.
Certificate of Medical Assessor Steiner
Medical Assessor Steiner issued a certificate dated 31 March 2021. Medical Assessor Steiner found the following injuries caused by the accident gave rise to a permanent impairment of 29%:
· eyes – fractured right orbit.
Certificate of Medical Assessor Shahzad
Medical Assessor Shahzad issued a certificate dated 4 June 2021.[3]
[3] AD3 p 37.
The following injuries were referred for assessment as to permanent impairment:
· cervical spine – cervico-thoracic injury;
· lumbar spine – lumbar spine injury;
· shoulder – left shoulder injury;
· shoulder – right shoulder injury, and
· abdomen – musculo-skeletal injury.
Medical Assessor Shahzad was also asked to determine the following treatment disputes:
· radiological investigations – whether the request for an MRI cervical spine was reasonable and necessary in the circumstances, and
· chiropractic – whether chiropractic sessions for mobilisation, deep tissue massage and dry needling by Mr Nick Skalidas were reasonable and necessary in the circumstances.
Medical Assessor Shahzad stated Mr Amos was employed by Sydney Wide Tree Cutting as a tree lopper at the time of the accident working between 8 and 12 hours per day.
He reported Mr Amos had been consulting a chiropractor on a weekly basis for a long time. The treatment involves dry needling, cracking and acupuncture. Mr Amos complained of back pain and intermittent stiffness in the neck associated with spasms. Mr Amos reported a sitting tolerance of half an hour and a standing and walking tolerance of 20 minutes. He also described struggles with bending and twisting, using stairs or inclines, squatting and kneeling.
Medical Assessor Shahzad found in relation to the cervical spine Mr Amos met the criteria for cervicothoracic spine impairment category II equivalent to 5% whole person impairment (WPI). He found asymmetrical loss in range of movement without any neurological compromise and no evidence of radiculopathy. In relation to the lumbar spine Medical Assessor Shahzad found Mr Amos had a DRE impairment category II equivalent to 5% WPI. In respect of the left shoulder Medical Assessor Shahzad assessed a 16% upper extremity impairment which converts to a 10% WPI. In respect of the right shoulder Medical Assessor Shahzad assessed a 15% upper extremity impairment which converts to a 9% WPI.
Medical Assessor Shahzad found the following injuries caused by the accident gave rise to a permanent impairment of 26%:
· cervical spine - cervico-thoracic injury;
· lumbar spine - lumbar spine injury;
· shoulder - left shoulder injury, and
· shoulder - right shoulder injury.
Medical Assessor Shahzad found injury to the abdomen, the musculo-skeletal injury had resolved and did not result in permanent impairment
Medical Assessor Shahzad also issued the following certificate under s 7.23(1) of the MAI Act:
· radiological investigations – the request for an MRI cervical spine was reasonable and necessary in the circumstances, and
· chiropractic – chiropractic sessions for mobilisations, deep tissue massage and dry needling by Mr Nick Skalidas was not reasonable and necessary in the circumstances.
The insurer has sought a review of the certificate of Medical Medical Assessor Shahzad. The assessment of Medical Assessor Shahzad is the subject of this medical review.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Shahzad was lodged on 22 March 2022 within 28 days of the date on which the combined certificate dated 15 February 2022 was made available to the parties on 22 February 2022.[4]
[4] Section 7.26 (10)(a) of the MAI Act.
On 14 June 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission). Accordingly, the President’s delegate referred the matter to this Panel to assess.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 3 August 2022 the Panel agreed an examination was required.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
12. “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
13. 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
14.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
15.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
16. This, therefore, involves a medical decision and a non-medical informed judgement.
17. 6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
18. “(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
19.(a) The reasonable cost of treatment and care,
20.(b) Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
21.(c) If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
22. (2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 26 July 2022 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the insurer uploaded to the portal a bundle of documents marked AD3 paginated from pages 1 to 1,951. The claimant uploaded to the portal a bundle of documents marked AD4 and AD5 paginated from pages 1 to 614.
Application for personal injury benefits
The claimant is now 36 years of age, and he was 32 years old at the time of the accident.
The claimant completed an application for personal injury benefits dated 8 August 2018.[6] He described the accident as follows:
23.“I was the passenger in a vehicle driven by another driver, when attempting to accelerate to overtake a bus in front of the car, the bus stopped, the driver hit the brakes but could not stop in time and collided with the rear-end of the bus at speed. My head hit the windscreen, broke my nose and injured my body.”
[6] AD3 p 52.
Mr Amos said he suffered injury to his head, face, nose, lip, teeth, neck, shoulder, left and right, back, lower back, right arm and leg.
Statement of Jesse Amos
Mr Amos provided a statement dated 14 January 2022.[7] The following paragraphs of that statement are relevant to the dispute before the Panel:
24. “6. … When the bus stopped suddenly and the driver hit the brakes, and because it could not stop in time, collided directly onto the back of the bus. My head hit the windscreen with force and the windscreen cracked from my 218 head impact. If it was not that I was wearing a seatbelt, I believe I could have died. I hit my mouth, my face, and my nose into the dashboard….
25. 7. I was bleeding profusely from my face and my nose. I lost consciousness again, all I remember then is while sitting on the side of the road is my nose bleeding, my neck, back and face were hurting with a fractured my nose, my teeth pushed back, my lips were also lacerated.
26. 14. I live with headaches, insomnia, have stiffness problem on my neck, pain in my lower back, which continues and also have bouts of dizziness….
27. 30. I was having chiro treatment about 8 sessions before the insurance stopped my treatment. ... I have been referred to MRIs from my neck and lower back but have not been able to attend because insurance has denied that.”
Photographs[8]
[7] AD5 p 602.
[8] AD3 p 309.
Photographs show the car impacting the rear of the bus and the significant frontal damage to the car including the cracked windscreen.
Photographs of Mr Amos show bleeding from the nose, a laceration of the lip and bruising of the upper left arm.
Records from NSW Police Force
In response to a Direction for Production the NSW Police Force produced a copy of the claimant’s criminal and traffic record.[9] The records show numerous offences dating from 2005 including a record of serious domestic violence offences.
[9] AD3 p 955.
The records also show a number of driving offences incurred subsequent to the accident, during periods when Mr Amos has suggested he rarely drove.
Bankstown Local Court
Extensive records were also produced by Bankstown Local Court detailing the claimant’s criminal and driving history. Those records disclose ownership of a supplement shop although Mr Amos has at all times asserted, he worked as a tree lopper in the years prior to the accident.
Sutherland Local Court
Documents produced by Sutherland Local Court relate to a domestic violence offence.
Letter from Mr E Katich of Sydney Wide Tree Cutting
In a letter dated 1 March 2022 Mr Katich stated Mr Amos worked with Sydney Wide Tree Cutting as a sub-contractor.[10] Mr Amos had worked with Sydney Wide Tree Cutting since 2012 and before the accident he had a more senior role as a team leader who had control and mentored and supervised younger labourers in job activities and the safe use of tools.
Treating medical records
[10] AD 5 p 596.
Ambulance records
Mr Amos was conveyed to hospital by ambulance.[11] The ambulance report stated the claimant was sitting on the grass with a nosebleed and denied any loss of consciousness. He ambulated to the ambulance and lay on the stretcher. He reported he struck his head on the windshield. He was assessed to have generalised neck and back pain and his nose looked as if it had been fractured.
[11] AD3 p 100.
Bankstown-Lidcombe Hospital
On 30 March 2008, the claimant attended the hospital after falling to the footpath whilst under the influence of ETOH.[12] He was subsequently treated for facial injuries.
[12] AD3 p 666.
On 17 July 2017, the claimant presented with neck pain and headache following a rear end collision.[13] He was driving with his seatbelt fastened and his head hit his arm on the steering wheel. Tenderness was noted at C5-T2 and L5-S1 levels.
[13] AD3 p 409.
On 1 January 2018, the claimant was transported to hospital by ambulance, after he was reportedly ‘manic and agitated’ from possible cocaine use and alcohol consumption.[14] The claimant also reported “severe back pain” on this occasion.
[14] AD3 p 707.
On 26 July 2018 following the accident, the claimant was conveyed to the hospital by ambulance.[15] He was admitted overnight. The claimant did not recall the event but complained of pain everywhere mainly over his back and neck pain.[16] The claimant underwent a CT of the cervical spine, of the brain and facial bones, of the abdomen and pelvis and an X-ray of the chest.
[15] AD3 pp100 and 699.
[16] AD3 p 110.
The CT scan of the head did not reveal any acute intracranial blood products. The CT scan of the facial bones reported:
28.“…there are comminuted fractures of the nasal bones along with overlying soft tissue gas in keeping with open fractures of the nasal bones. Extensive soft tissue swelling is seen in the nasal cavity with the fracture also involving the nasal septum, with displacement of up to approximately 3 – 4 mm. Bony fragment is also seen extending out into the subcutaneous soft tissues near the nasal bridge. There is a few mucous retention cyst in the maxillary sinuses”.
On 30 August 2018, the claimant attended in relation to a subsequent fall, where he was diagnosed with an orbital fracture.[17]
[17] AD3 pp 659 and 766.
On 17 February 2020, the claimant was transported by ambulance to the hospital, for treatment of a suspected Benzodiazepine overdose.[18]
[18] AD3 p 667 .
Royal Prince Alfred Hospital
Mr Amos attended Royal Prince Alfred Hospital on 30 August 2018 in relation to the fall and the subsequent orbital fracture.[19]
[19] AD3 p 876.
Mr Amos was admitted between 4 September 2019 and 5 September 2019. He underwent surgery, namely, right orbital floor reconstruction.[20]
[20] AD3 pp 509 and 869 and 902.
Dr Peter Voutos, general practitioner
On 6 June 2016 Dr Voutos reported Mr Amos had experienced anxiety and panic attacks since 2014.[21] Dr Voutos prescribed Valium.
[21] AD3 p 627.
On 9 August 2016, the claimant reported vertigo symptoms for two days. Dr Voutos prescribed Serc.[22]
[22] AD3 p 627.
On 24 July 2017 Dr Voutos reported the claimant had been in a rear end motor vehicle accident.[23] He went to hospital and underwent X-rays. He reported ongoing neck pain across his shoulders and lower back pain. The claimant was reportedly tender over the neck, lower back and trapezius with reduced range of motion in the neck and lower back. He was referred for a bone scan and he was also prescribed Endone and Valium.
[23] AD3 p 631.
On 16 May 2018, Dr Voutos treated the claimant in a house call for severe vertigo and prescribed Stemetil. Dr Voutos issued a medical certificate reporting the claimant was unfit to attend court because he had severe vertigo.
On 31 July 2018 Dr Voutos reported:[24]
29.“On 26/7 front passenger in MVA hit head on windscreen fractured nose bleeding went to Bankstown Hospital overnight. Had X-rays nose looks fractured lacerations upper inner lip neck aching arms acing. Examination: bruising resolving across abdomen. Left inner arm bruised entire spine in pain stiffness and spasms shoulders aching tender spinal muscles upper teeth pushed in in shock feeling terrified getting into a car front seat reduced ROM in neck and lower back. No upper or lower neuro signs. Nasal bridge swollen deviated upper part of nose BP 140/80”.
[24] AD3 p 632.
On 7 August 2018 Dr Voutos reported:[25]
30.“Surgery consultation
31.poor sleep headaches entire body in pain
32.dizzy for cont meds add serc”.
[25] AD3 p 633.
On 28 August 2018 Dr Voutos reported:[26]
33.“Surgery consultation.
34.Right side face tingling. Headaches. Dizzy BP 125/80 Need CT facial bones”.
[26] AD3 p 633.
On 30 August 2018 Dr Voutos reported:[27]
35.“Surgery consultation
36.Add notes from 28/8 he fell last Friday at the back of the yard onto an and hit
Right side face onto object and now periorbital bruising called pt to go to hospital stat due to orbital fracture”. [sic][27] AD3 p 634.
On 8 January 2019 Dr Voutos sought approval from the insurer for an MRI scan having regard to the claimant’s ongoing cervical and lumbar pain.[28]
[28] AD3 p 99.
On 31 January 2019 Dr Voutos reported he had reviewed the claimant who had ongoing cervical, thoracic and lumbar pain.[29] He sought approval from the insurer for eight sessions with a chiropractor. On 11 February 2019 and again on 11 March 2019 Dr Voutos sought further approval for chiropractic treatment with Nick Skalidas.
[29] AD3 p 141.
Dr Voutos provided a report dated 14 November 2019.[30] He reported initial complaints of neck, lower back, shoulders, chest and abdominal pain following the accident. Following a fall on about 24 August 2019 Mr Amos sustained right orbital floor and medial wall fractures and subsequently underwent a reconstruction of the right orbital floor. Dr Voutos described the claimant’s ongoing complaints as headaches, insomnia, neck pain, lower back pain, dizziness and symptoms of post-traumatic stress. He considered Mr Amos was unfit for work at that time, although he considered he may be fit for light work in another 12 months.
[30] AD3 p 265.
Dr Voutos provided a report dated 16 May 2022 in which he stated:[31]
37.“Since 2014 he has suffered from an anxiety disorder. He was initially prescribed Valium 5 mg on the 06/06.2016 for his anxiety disorder. His ability to engage in employment prior to the motor vehicle accident on 26th July 2018 was not impaired.
38.Prior to the motor vehicle accident on the 26th July 2018 Jesse Amos had recovered from his previous injuries. He has not required any prescriptions for analgesics for 11 months prior to the accident on the 26th July 2018.”
CT scan of the cervical spine, 26 July 2018
[31] AD5 p 598.
The report states:[32]
39.“There is a reversal of the normal cervical lordosis. No acute cervical spine fracture is seen. Visualised lung apices are clear. No frank CT evidence prevertebral soft tissue swelling is identified.”
CT abdomen and pelvis, 26 July 2018
[32] AD3 p 134.
The report concludes:[33]
40.“Contusions overlying the buttocks, larger on the left, with a possible haematoma containing active bleeding or small foci of calcification in the left gluteus maximus muscle.
41.No intra-abdominal or retroperitoneal haemorrhage. No intra-abdominal traumatic injury.”
[33] AD4 p 300.
X-ray report of the lumbar spine, 1 January 2018
The report states:
42.“Normal lumbar lordosis is maintained. Vertebral body heights are within normal limits. No radiographic features to suggest acute bone injury. L5/S1 disc and facet joint degenerative changes noted.”
CT report of the abdomen, 1 January 2018
The report states:
43.“No biliary or renal calculi. No hydronephrosis.”
CT report of the brain, facial bones and cervical spine, 26 July 2018
The report states:[34]
44.“No acute intracranial pathology identified.
45.Open and comminuted nasal bone fractures. The fracture also involves the nasal septum. No other acute facial bone fracture is identified.
46.No acute bony injury is seen in the cervical spine.”
CT report of the abdomen and pelvis, 26 July 2018:
[34] AD3 p 135.
The report states:[35]
47.“Contusions overlying the buttocks, larger on the left, with a possible haematoma containing active bleeding or small foci of calcification in the left gluteus maximus muscle.
48.No intra-abdominal or retroperitoneal haemorrhage. No intra-abdominal traumatic injury.”
Benchmark Rehab
[35] AD3 p 130.
Mr Amos was referred to Benchmark Rehab for an Initial Needs Assessment on 16 January 2019. In a progress report dated 6 March 2019 Mr Amos was said to be concerned with ongoing pain in his neck, back and shoulders along with anxiety related to travelling in vehicles and as such Mr Amos tries to not get out.
In a report dated 3 July 2019 Mr Amos reported he spent most of his time in bed due to back and neck pain. He also reported he was impacted psychologically and continued to be fearful when a passenger in a vehicle.
Medico-legal evidence
Dr Andrew Keller, occupational physician
Dr Keller assessed the claimant on 16 October 2019 and provided a report dated 5 November 2019.[36] Mr Amos reported he was in and out of consciousness at the scene of the accident and unable to stand or walk. He was conveyed by ambulance to hospital where he underwent investigations and was treated with analgesia.
[36] AD3 p 255.
Mr Amos reported some months after the accident he suffered a fall at home resulting in a fractured right zygoma and eye socket that was surgically treated.
Mr Amos reported he had been certified with no work capacity since the accident.
Mr Amos reported he was undergoing chiropractic treatments once a week to his neck, back and shoulders and was seeing a psychologist weekly. He was taking medication namely Endone, Tramadol, Valium, Serc, Imovane, Advil, Panadol and Nurofen. Dr Keller reported the claimant was essentially bed bound and suffered from intermittent neck pain and stiffness daily.
Dr Keller reported on formal presentation the range of motion in respect of the neck was flexion 30º, extension 0º, rotation to both sides 30º and flexion to both sides 30º. However, he reported at the end of the consultation Mr Amos had a greater and more normal range of motion.
Dr Keller reported on formal examination the following range of motion of the shoulders:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
NORMAL
Flexion
30°
130°
180º
Extension
0°
0°
60º
Adduction
40°
40°
45º
Abduction
90°
135°
180º
Internal Rotation
90°
90°
90º
External Rotation
90°
90°
90º
However, Dr Keller reported at other times during the consultation Mr Amos appeared to have normal range of motion in the shoulders.
He found there was a full symmetrical range of motion in both elbows, wrists and all fingers. Sensation to light touch was reported as reduced in the right ring and little fingers and the ulnar side of the forearm and upper arm but normal in the shoulder. Dr Keller commented this crossed multiple dermatomes and is not explained by the investigations undergone by the claimant.
Dr Keller reported inspection of the lumbar spine was normal, although the claimant reported tenderness to minimal skin contact over the lumbar spine. He reported the range of motion was extension 10º, flexion 60º, rotation to both sides 45º and flexion to both sides 45º.
Dr Keller also noted there was no spasm and the range of motion in the back appeared normal when getting in and out of the chair and on and off the examination couch.
Dr Keller reported sensation to light touch was reported as reduced in the right thigh and foot but normal in the calf and in the entire left lower limb. Straight leg raise on the bench was 60º and 90º on the left although he was able to sit with his legs at 90º on the bench. He showed no signs of nerve root tension and reflexes were present and symmetrical at the knees and ankles. Power was normal to the ankles to plantar and dorsiflexion was normal and symmetrical.
Dr Keller reported:
49.“On examination today there was inconsistent restrictions of motion in the cervical spine, inconsistent restriction of motion in both shoulders, inconsistent restriction of motion in the lumbar spine, there was reported altered sensation in the ulnar side of the right upper limb, in the right thigh and right foot without anatomical explanation.
50.His nose appeared straight and there was no nasal obstruction.
51.Based on the assessment evidence…I could find no objective findings of any persisting physical injuries that could be attributed to the subject accident”.
Dr Keller expressed the view Mr Amos may have benefited from physical treatments for up to three months following the accident.
Dr Evan Dryson, occupational physician
Dr Dryson assessed the claimant at the request of his lawyers and provided a report dated 21 October 2019.[37]
[37] AD4 p 179.
Dr Dryson reported at the time of the accident the claimant worked with Sydney Wide Tree Cutting which required him to cut trees, to use a chainsaw, to climb and to lift heavy portions of tree trunk. Mr Amos said at the time he was “bulked up” and was 120kg.
Mr Amos reported the following complaints relevant to this dispute:
· headaches, present every day;
· spasms of the neck, neck pain and decreased range of movement the neck;
· decreased range of movement in both shoulders, more marked on the right;
· pain radiating down the right arm into the ring and little fingers which are numb;
· loss of strength in the right arm;
· tendency to drop objects from the right hand;
· discomfort in the thoracic area;
· low back pain present all the time;
· walking limited to 20 minutes;
· standing limited to 20 minutes;
· sitting limited to 30 to 35 minutes;
· driving limited to 15 minutes;
· difficulty using stairs;
· Iimited bending, and
· numbness in the right thigh.
On examination of the neck Dr Dryson reported rotation was reduced to the right at one-half the normal range, reduced to the left at less than one half the normal range. Lateral flexion to the right was reduced at one half the normal range and to the left at three quarters the normal range. Extension was reduced to half the normal range. Flexion was markedly reduced being one fifth of the normal range.
Dr Dryson reported the following range of movement of the shoulders:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
NORMAL
Flexion
90°
90°
180º
Extension
25°
25°
60º
Adduction
45°
45°
45º
Abduction
80°
90°
180º
Internal Rotation
60°
45°
90º
External Rotation
60°
45°
90º
He also noted reduced grip strength on the right at 3kg compared to 7kg on the left. He found normal range of movement of the thoracic spine.
On examination of the lumbar spine Dr Dryson found forward flexion was reduced to half the normal range, retroflexion was reduced to three quarters the normal range, extension was reduced to two-thirds the normal range and rotation was reduced to half the normal range in both directions.
Dr Dryson reported normal power in all muscle groups in both legs but noted the claimant reported pain on straight leg raising at 30% with elevation of both sides. He had normal knee and ankle reflexes.
Dr Dryson concluded Mr Amos had sustained a permanent whiplash-associated disorder and was limited in his ability to twist his neck. Whilst he concluded Mr Amos had reduced range of motion in both shoulders, he could not say whether it was referred pain from the neck injury or internal injuries to the shoulders. He recommended further investigations. Whilst he found Mr Amos had back pain with reduced range of movement, he recommended further investigations.
Dr Doron Samuell, psychiatrist
Mr Amos was assessed by Dr Samuell who provided a report dated 18 December 2019.[38] He concluded Mr Amos suffered from a post-traumatic stress disorder as a result of the accident. He noted Mr Amos had taken Diazepam for anxiety prior to the accident.
[38] AD3 p 278.
Dr Stephen Allnutt, psychiatrist
Following his assessment of Mr Amos on 19 December 2019 Dr Allnutt provided a report dated 2 January 2020.[39]
[39] AD 4 p 112.
Dr Allnutt reported at the time of the accident Mr Amos worked as a tree lopper about eight hours a day, six days a week and had been doing that job for about eight years.
Dr Allnutt concluded the claimant since the accident Mr Amos had sustained an aggravation of post-traumatic stress symptoms with associated decline in functioning, consistent with an aggravation of a possible pre-existing anxiety disorder. He concluded the claimant’s capacity for work had been impaired since the accident.
Dr Allnutt reviewed the claimant and provided a report dated 9 December 2020.[40] He reported Mr Amos sat in his room all day, he could not sleep, he did not shower, he did not eat, he was not motivated, his concentration was poor, he did not want to see anybody, and he was depressed. He also reported if he was in a car, he felt anxious and had panic attacks.
[40] AD4 p 99.
He concluded even if Mr Amos had exaggerated some memory problems at the time of his assessment by Dr Levi it did not rule out an underlying psychiatric condition, only that he exaggerated at the time. His opinion was there had likely been an aggravation of a pre-existing anxiety disorder (with post-traumatic stress symptoms and claustrophobia).
Report of Matthew Buxton, vocational assessor
The claimant was assessed at the request of his lawyers on 14 August 2020. Mr Buxton provided a report dated 25 August 2020.[41]
[41] AD4 p 125.
Mr Buxton reported pain in the neck region, pain in the bilateral shoulders, pain in the lower back and tingling in his left hand which results in him favouring utilising the right hand. He also reported occasional right leg pain. He reported weight loss as a result of not conducting physical activity at work or in the gym.
Mr Buxton reported Mr Amos could sit for up to 30 minutes, stand for five minutes, walk on flat ground for 20 minutes, and lifting limited to five to six kilograms at waist height. He could push a shopping trolley with items up to five kilograms and drive for 10 minutes as a passenger but avoids driving due to fear. He avoids bending.
Mr Buxton reported Mr Amos had worked on a sub contractual basis with Sydney Wide Tree Lopping Service between 2012 and the date of the accident. The duties including ropework, use of a chainsaw, utilisation of a stump grinder, operation of an industrial
Reports of Dr Baron Levi, psychologist
The insurer relies upon reports of Dr Levi dated 18 September 2020, 22 September 2020 and 29 October 2020.[42] Dr Levi opined the claimant was deliberately exaggerating his symptoms and presentation. He also described the claimant as a poor historian and evasive. However, he also concluded the claimant had become negatively over focused on his symptoms since the accident and had become entrenched in a sick role.
[42] AD3 pp 312, 324 and 326.
Dr Levi opined there was evidence that Mr Amos presented with symptoms of post-traumatic stress disorder and anxiety before the accident and that those symptoms were exacerbated by the accident.
Dr Levi concluded having sighted the claimant’s premorbid and post-accident criminal activity in addition to his own assessment as well as reports of other assessors that Mr Amos presented with an antiosocial personality disorder which predated the accident. He concluded Mr Amos continued to manipulate and exaggerate his symptoms for personal gain.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 18 November 2020 in respect of the permanent impairment dispute.
The insurer refers to the records of Bankstown Hospital and notes the claimant reported neck and back complaints after the earlier accident on 17 July 2017 and on 1 January 2018 when he was transported to hospital reportedly “manic and agitated” he also reported severe back pain.
The insurer also notes the radiological investigations post-accident have not revealed any significant pathology.
The insurer raises concerns about the credibility and consistency of the claimant.
The insurer suggests the Centrelink records impugn the veracity of the claimant’s self-reporting where he continues to receive the carers payment for care provided to his mother but on the other hand asserts that he is incapacitated for employment.
The insurer also notes Dr Levi reported the claimant denied experiencing any depression or anxiety prior to the accident and when questioned by Dr Levi suggested his general practitioner (GP) had “made a mistake in the entry”. The insurer notes the GP records clearly document a significant and prolonged pre-accident history of psychological complaint. The insurer also notes the Medicare and Pharmaceutical Benefits Scheme (PBS) records show the claimant consistently purchased anti-depressant medication in the pre-accident period. The insurer submits the claimant’s denial raise questions as to his reliability as a historian.
The insurer provided further submissions dated 9 May 2022 in relation to the records produced by the NSW Police Force, Roads and Maritime Services (RMS), Sutherland Local Court and Bankstown Local Court which confirm the claimant has a substantial criminal history.[43]
[43] AD3 p 1,754.
The insurer submits the claimant’s record together with his failure to disclose his criminal history to Dr Baron-Levi, Dr Allnutt, Dr Dryson and Medical Assessor Fukui means the test of consistency ought to be applied to the assessment pursuant to clauses 6.40 and 6.41 of the Guidelines.
Claimant’s submissions
The claimant provided submissions dated 12 May 2020 in respect of the initial dispute.[44] The claimant relies upon the opinions of Dr Dryson and Dr Voutos and notes he had reported radiculopathy with reduced movement, spasms with tingling to his limbs with stiffness to the neck, occipital headaches, dizziness and weakness to his upper limbs.
[44] AD4 p 163.
The claimant provided submissions dated 22 December 2020.[45] It is submitted the claimant managed his physical symptoms under the care of Dr Voutos with pain medication including Tramadol, Endone and Valium.
[45] AD4 p 94.
The claimant provided submissions dated 18 April 2022.[46]
[46] AD4 p 4.
The claimant correctly notes that it is not the task of the medical assessor or the Panel to provide “critical analysis” of Dr Keller’s report or to weigh up whether Dr Keller or Dr Dryson had been right or wrong or who should be preferred. The claimant notes in Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 the Court of Appeal said at [40]:
52.“The function of the assessor is quite different. The assessor was obliged following the referral by SIRA to determine a quintessentially factual issue: the degree of permanent impairment suffered by Mr Keen caused by the motor accident, reduced to a percentage calculated in accordance with the Guidelines. As the High Court emphasised, speaking of the decisions of medical panels under the Accident Compensation Act 1985 (Vic) in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], the Medical Panel was not required to decide a dispute or make up its mind by reference to competing contentions or competing medical opinions:
53. ‘The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’”
The claimant also submits that the mere occasioning of a prior injury does not demonstrate there was any ongoing injury or impairment from that injury. Further the claimant submits the insurer has not provided any evidence there was a pre-existing impairment.
In terms of the claimant’s credibility the claimant submits it is a matter for consideration by the decision maker, noting in QBE Insurance Limited v Alawia [2016] NSWSC 1875, Justice Hulme stated that “how a matter is taken into account is a matter for the decision-maker. It may be dismissed, given little weight, or decisive weight.”
The claimant submits the test of consistency in the Guidelines relied upon by the insurer relates to consistency of clinical findings and is not a mechanism for the insurer to suggest the claimant is not credible or was inconsistent on the basis of his criminal history.
THE MEDICAL EXAMINATION
Mr Amos attended an examination with Medical Assessor Dixon on 21 September 2022.
History of the subject accident
This 36-year-old claimant was a front seat passenger in a small Laser written off when it hit the rear of a bus at speed on 26 July 2018. He sustained a facial injury on the steering wheel and the windscreen with injury to the nasal region with broken teeth and gum lacerations. He was taken to Bankstown Hospital where he was diagnosed with facial injuries, including a fractured nose. He also complained of back and neck pain. Several weeks later following a fall which he asserts occurred due to dizziness and vertigo he sustained a fracture of the right orbit and subsequently required plating of the orbit and zygoma fractures causing impairment of his vision.
He had ongoing pain in his neck, both shoulders and back and had chiropractic treatment which included massage, manipulation and dry needling.
He complained of ongoing pain and stiffness in both shoulders with difficulty elevating the arms above shoulder height due to trapezial muscle pain and had pain in the mid and upper cervical facet joint area with residual headaches. He reported some residual dizziness.
He indicated pain in the lower thoracic region of his back as well as the lumbosacral area radiating out to the lumbosacral facet joint region. He reported no sciatica on the day of the examination.
Examination
On examination he was 6 foot tall and weighed 95kg. There was stiffness of his cervical spine with flexion decreased by one third as was neck extension and lateral rotation by one third bilaterally and lateral flexion by one third bilaterally. There was tenderness of his trapezius muscles but not of the supraclavicular brachial plexuses. There was no neurological deficit in either upper limb. There was 2cm of wasting of his left upper arm. He is right handed. His grip strength is grade 4 out of 5 bilaterally and intrinsic power and thenar power were grade 5 out of 5. His reflexes were symmetrical and present and there were no objective sensory changes in the upper extremities.
There was stiffness on elevation of his shoulders with forward flexion 170 degrees, active abduction 160 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 70 degrees bilaterally associated with trapezial muscle pain. There was no tenderness of the deltoid muscle or the biceps groove today and shoulder girdle power was grade 4 out of 5 bilaterally.
There was mild stiffness on trunk rotation which was decreased by one quarter bilaterally without thoracic pain. On flexion extension however he had pain in the lower thoracic area and the lower lumbar region radiating to the lumbosacral facet joint region and flexion extension was decreased by one third and lateral flexion decreased by one quarter bilaterally. There was no spasm in the lumbar segment although there appeared to be tenderness adjacent to the lumbosacral facet joints and at the L4/5 level in the midline. His straight leg raise was 60 degrees associated with low back pain. His normal gait was satisfactory, but toe walking was associated with low back pain although heel walking was satisfactory, but his squat test was associated with low back pain.
His straight leg raise was 60 degrees and there was no neurological deficit or wasting of either lower limb. Both thighs measured 48cm and both calves were 40cm and his power was grade 5 out of 5 and there were no sensory losses. His reflexes were present and symmetrical.
Investigations
His investigations include a CT of the cervical spine on 18 July 2017 which showed no acute cervical spine fracture and X-ray of the lumbar spine on 1 January 2018 showed the lordosis had been maintained and the vertebral body heights were within normal limits. There were no radiographic features to suggest acute bony injury but there were L5/S1 disc and facet joint degenerative changes consistent with his findings today.
CT of the brain, facial bones and cervical spine on 26 July 2018 showed no acute intracranial pathology or acute bony injury to the cervical spine. It demonstrated open comminuted nasal bone fractures involving the nasal septum.
CT report of the abdomen and pelvis on 26 July 2018 showed contusions overlying the buttocks on the left with possible haematoma containing active bleeding or small calcification of the left gluteus maximus muscle.
CT of the facial bones on 5 September 2018 showed that there was fracture of the orbital floor with a metal plate in situ and positioned at the medial aspect of the defect.
SUMMARY AND OPINION
In summary this claimant was a front seat passenger in a small vehicle written off when it collided with the rear end of a bus. He was wearing a seat belt but still hit the windscreen with his face and sustained nasal fractures as well as neck and back strain injuries. His facial, subsequent orbital injury, vertigo, dizziness, headaches and psychological injury have been the subject of assessment by other Medical Assessors.
He has required Valium for spasm since the accident together with Endone and Panadeine Forte for pain relief. He takes Advil, Nurofen and Naprosyn as anti inflammatories and Somac for reflux, although he had laparoscopic hiatus hernia repair performed two years ago. He has finished chiropractic treatment and is not doing physiotherapy at present or having dry needling.
Consistency of presentation
On examination Medical Assessor Dixon noted the claimant’s presentation was straightforward, and he was consistent on repeated testing of his shoulders.
The Panel agrees with the claimant’s lawyers that the test of consistency in clauses 6.40 and 6.41 of the Guidelines is not a mechanism to suggest the claimant is not credible based on his criminal history.
In undertaking this assessment, the Panel also notes the significant facial injury sustained by the claimant in the accident, his presentation to Bankstown Hospital following the accident and the consistency of his complaints thereafter.
Left and right shoulder injuries
On examination his main restriction appeared to be elevation of both shoulders due to trapezial muscle pain. He had difficulty elevating the arms above shoulder height and has post traumatic stiffness due to his neck strain injury with trapezial muscle pain.
He had restricted range of motion due to pain and spasm in his trapezius muscles following his neck strain injury and has mild post traumatic stiffness evident on repeated testing.
The Panel finds the claimant has sustained a left shoulder injury and a right shoulder injury by reason of referred pain from the neck caused by the accident in accordance with the decision in Nguyen v The Motor accidents Authority of NSW & Zurich Australian Insurance Ltd[47].
[47] Nguyen v The Motor accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
The Panel assesses each shoulder at 3% upper extremity impairment (UEI) for each shoulder, giving 2% WPI for each shoulder.
This was based on 1% UEI for abduction of 160 degrees, 1% UEI for forward flexion 170 degrees, 1% UEI for the extension of 40 degrees, 0% UEI for the restricted adduction of 40 degrees, external rotation 80 degrees is 0% UEI and for the internal rotation 70 degrees is 1% UEI. This gives a total of 4% UEI for each shoulder, equating to 2% WPI for each shoulder.
Cervical spine
The Panel finds the claimant has sustained soft tissue injury to the cervical spine caused by the accident. The impairment for his cervical spine was DRE Category I. There was a known neck strain injury with some residual trapezial muscle spasm without dysmetria and no neurological deficit of either upper limb, no radicular complaint nor radiculopathy and apart from mild tenderness of the cervical facet joints regions bilaterally, he is rated at DRE I for cervical spine, which is 0% WPI.
Lumbar spine
The Panel finds the claimant sustained soft tissue injury to the lumbar spine caused by the accident. The Panel notes there was stiffness on flexion and extension and lateral flexion which was symmetrical. There was no sciatica, no radicular complaint on straight leg raise and his sciatic nerve root stretch test was negative. and his rating for his lumbar spine is DRE Category I which is assessed as 0% WPI.
Abdomen – musculo-skeletal injury
No complaint was made by the claimant in respect of his abdomen. Having regard to the CT report of the abdomen and pelvis of 26 July 2018 the Panel finds the claimant sustained musculo-skeletal injury to the abdomen caused by the accident. The Panel understood the condition had resolved and did not result in permanent impairment.
THE PANEL’S ASSESSMENT OF WHOLE PERSON IMPAIRMENT
The Panel finds the claimant has sustained 2% WPI for each shoulder.
Applying the Combined Values Chart the finding of 2% WPI for each shoulder the Panel finds a total of 4% WPI.
The Panel finds the following injuries caused by the accident give rise to a permanent impairment which is not greater than 10%:
· injury to the cervical spine;
· injury to the lumbar spine ;
· injury to the left shoulder;
· injury to the right shoulder, and
· injury to the abdomen.
Pre-existing/subsequent impairment
There is no pre-existing or subsequent impairment.
Apportionment
There is nil apportionment.
TREATMENT DISPUTE
MRI of the cervical spine
The Panel is asked to consider whether an MRI scan of the cervical spine was reasonable and necessary treatment and was caused by the accident.
Having regard to the extent of the facial injury sustained in the accident the Panel finds the sudden extension of the neck was sufficient to destabilise the cervical spine, to rupture the longitudinal ligament in the neck or to disrupt a disc. The Panel finds the need to undergo an MRI scan of the cervical spine was caused by the accident.
The investigation was sought on the recommendation of the claimant’s general practitioner and the Panel considers an MRI scan was a reasonable and necessary diagnostic tool to determine if the claimant had sustained a disc prolapse, annular disc tear or ligamentous injury caused by the accident.
The Panel is not aware whether the claimant has now undergone the MRI scan although there is no evidence before the Panel to demonstrate he has done so. However, whilst the Panel finds it was reasonable and necessary for the claimant to undergo the MRI scan the Panel is satisfied having regard to the examination of the claimant that if the scan has not been undertaken to date a future MRI scan is not reasonable and necessary where four years have now elapsed since the accident and where the Panel finds the claimant has sustained a soft tissue injury to the cervical spine.
The Panel considers the need to undergo an MRI scan was caused by the accident and was reasonable and necessary in the circumstances as a diagnostic tool.
Chiropractic treatment
The Panel finds that chiropractic treatment including mobilisation, deep tissue massage and dry needling are accepted treatment modalities for injuries to the cervical and lumbar spine. Deep tissue massage and mobilisation can release the muscles around the neck and the lower back and improve range of motion.
The Panel also notes the chiropractic treatment was recommended by the claimant’s general practitioner and the claimant found the treatment beneficial. The Panel finds the past treatment was reasonable and necessary and relates to the soft tissue injury caused by the accident.
The Panel notes the treatment has now ceased and whilst the Panel finds the past treatment to be reasonable the Panel does not consider there would be any therapeutic benefit to be gained by the claimant from future chiropractic treatment.
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