AAI Limited t/as GIO v Hawach
[2024] NSWPICMP 348
•30 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Hawach [2024] NSWPICMP 348 |
| CLAIMANT: | Abdallah Hawach |
| INSURER: | AAI Ltd t/as GIO |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 30 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; accident in July 2019; T-bone impact; absence of contemporaneous complaint of right knee injury; no report in claim form of right knee injury; Bugat v Fox referred to; claimant re-examined; present findings of restriction of symmetrical movement in lumbar and cervical spine not assessable; assessment of shoulders; inconsistent movements in examination before Medical Assessor; loss of range of movement not explicable based on minor pathology; motor accident did not cause left shoulder injury; initial shoulder complaints probably referred neck pain; Panel did not accept any assessable impairment of shoulders; Held – medical assessment revoked; claimant assessed at 0% impairment. |
| DETERMINATIONS MADE: | 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 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the Medical Assessment Certificate dated 21 December 2023 and certifies that the following injuries caused by the motor accident does not give rise to a permanent impairment greater than 10%: · cervical spine, and · lumbar spine. |
REASONS
BACKGROUND
On 3 July 2019 Mr Abdallah Hawach (the claimant) was injured whilst driving his motor vehicle. The insured driver failed to give way at a stop sign and collided with the claimant’s vehicle in a T-boned impact.[1]
[1] Claimant’s bundle, p 25, p 129.
AAI Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Hawach any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Herald and dated 21 December 2023 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
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 Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the CL Act.
[10] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor noted that the claimant had “clear features of pain syndrome” which were “out of proportion to the underlying pathology”. He diagnosed soft tissue injuries to the various body parts. The Medical Assessor noted that the claimant was of muscular build without calluses on his hands.
The Medical Assessor assessed impairment of the cervical and lumbar spine at 5% each and each shoulder at 7% permanent impairment.
MATERIAL BEFORE THE PANEL
The parties filed bundle of documents for the Panel’s consideration.
The insurer requested the Panel undertake a medical examination in light of the “nature of the injuries alleged and the physical examination required to assess the permanent impairment of the shoulder”.
The claimant submitted that the Review Panel should not be seen as providing the insurer with a “free kick”.[11] He submitted that the only failings by the Medical Assessor refer to the assessment of the cervical spine.
[11] Claimant’s bundle, p 17.
The claimant’s submissions are entirely misconceived and discussed later.
The Panel issued a direction calling for pre-existing clinical records and photographs showing vehicle damage.
The claimant responded to the direction and advised that he migrated to Australia in
August 2017, was generally fit and well and first attended a doctor following the motor accident. Photographs of accident damage were provided in these submissions.The insurer filed the Medical Assessment Certificate of Medical Assessor Hong as a late document. The insurer submitted:
“The Assessor comments on the claimant’s pre-accident history, history of the motor vehicle accident and treatment post-accident. The certificate will be of assistance to the Review Panel when determining permanent impairment of the physical injuries.”
The claimant initially indicated that he neither consented not objected to the late material.
After the Panel indicated to the parties that the medical assessment certificate was admitted subject to weight, the claimant then submitted:
“With respect, the Claimant believes this decision is incorrect. The decision of Assessor Michael Hong has been appealed by the Claimant and the outcome of that appeal is still pending. It is the Claimants position that the Certificate of Assessor Hong should not be admitted, at this stage, pending the appeal outcome. The Claimant must be afforded fairness and natural justice. Allowing the Certificate prior to the appeal being determined would undermine principals of fairness and natural justice which should be afforded to the Claimant. Accordingly, the Claimant objects to the admission of this document.
We kindly request that the Panel takes this into consideration and reviews their decision to allow the document to be admitted.”
The insurer’s submissions were of no assistance in identifying how the histories recorded by Medical Assessor Hong on an examination pertaining to assessment of psychological impairment assisted the Panel in assessing impairment of the physical injuries. We could not discern any assistance from an examination of that Medical Assessment Certificate. Absent specific submissions from the insurer, we could not identify anything in that Medical Assessment Certificate which assisted us in forming our determination on the assessment of impairment of the physical injuries.
In these circumstances it is unnecessary to address the claimant’s submission that he had been denied procedural fairness because an appeal had been lodged against the extent of psychological impairment found by Medical Assessor Hong.
As we previously noted, we admitted the Medical Assessment Certificate subject to weight. Absent proper submissions assisting the Panel, we could not identity anything in the histories which assisted us in our determination.
Pre-existing conditions
There are no pre-accident medical records. The histories contained in the reports are that the claimant was fit and healthy prior to the motor accident.
Medical records post-accident
The clinical note of the general practitioner (GP) dated 4 July 2019 referred to the motor accident causing neck and lower back pain radiating down the right leg and bilateral shoulder pains. It was noted that the claimant was employed as a form worker.[12]
[12] Claimant’s bundle, p 129.
On 9 July 2019 the GP noted ongoing neck, back and shoulder pains.[13] The GP noted similar complaints on 23 July 2019 and that medication was causing “GI upset”.[14]
[13] Claimant’s bundle, p 130.
[14] Claimant’s bundle, p 130.
On 26 August 2019 the GP noted that pains were “severe” with radiating pain down the arms and legs and the claimant was struggling with shoulder pains.[15] Subsequent clinical notes of the GP record similar issues.
[15] Claimant’s bundle, p 131.
The claim form dated 15 July 2019 reported physical injuries to the neck, lower back, bilateral shoulder and gastrointestinal.[16] The police report was a brief late statement of the motor accident.[17]
[16] Claimant’s bundle, p 25.
[17] Claimant’s bundle, p 39.
A letter from the GP to the insurer dated 14 October 2019 noted that the claimant continued to suffer neck, back and bilateral shoulder pains related to the motor accident.[18]
[18] Claimant’s bundle, p 296.
In November 2019 Dr Malik, psychiatrist diagnosed the claimant with post-traumatic stress disorder caused by the motor accident.[19]
[19] Claimant’s bundle, p 153.
An MRI scan of the lumbar spine dated 3 January 2020[20] noted low back pain radiating to the right leg. The MRI scan was normal with signs of desiccation at L3/4 with no herniation and normal foramina at L3/4.
[20] Claimant’s bundle, p 150.
An ultrasound of the shoulders dated 6 January 2020 noted a history of shoulder pain on abduction. The scan showed bilateral bursitis with an element of impingement.[21]
[21] Claimant’s bundle, p 230.
An MRI scan of the cervical spine dated 3 March 2020 showed broad disc osteophyte at C5/6 causing mild right foraminal stenosis.[22]
[22] Claimant’s bundle, p 184.
An Allied health recovery request dated 24 February 2020 noted neck, lower back, bilateral shoulder and bilateral elbow pain.[23]
[23] Claimant’s bundle, p 191.
An Allied health recovery request dated 29 June 2020 noted physical injuries to the cervical and lumbar spine and “shoulder injuries”.[24]
[24] Insurer’s bundle, p 82.
In a report dated 30 September 2020, Dr Gretel Davidson, pain physician, noted little progress with the claimant troubled by pain in the right side of the neck, right arm, leg and back.[25] The doctor opined that the claimant was disabled with features of chronic whiplash-disorder on a background of low mood and unhelpful cognitions.
[25] Claimant’s bundle, p 257.
An MRI scan of the cervical spine dated 18 May 2021 showed mild posterior building at C5/6 and C6/7 with no nerve root compression.[26] The lumbar spine MRI scan showed mild bugling at L4/5 and L5/S1 with no nerve root compression.
[26] Claimant’s bundle, p 232.
Qualified opinions
Dr McMahon, psychologist, was qualified by the insurer and provided a report dated
11 March 2020.[27] The doctor opined that the claimant had feigning spectrum behaviour as indicated by the failure of the Test of Memory Malingering.[27] Insurer’s bundle, p 35.
Dr Keller, occupational physician, was qualified by the insurer and provided a report dated
25 August 2020.[28] The doctor noted delayed onset of neck and lumbar spine symptoms and investigations consistent with mild age-related degenerative changes.[28] Insurer’s bundle, p 47.
Dr Keller noted inconsistent movement in the neck, shoulders and lumbar spine, unexplained numbness without anatomical explanation in the right upper and right lower limbs. The doctor opined that he was unable to find objective evidence to support the claim for physical injuries attributable to the motor accident.
Dr Keller provided a further report dated 18 January 2023.[29] The doctor stated:[30]
“It is not clear to me what physical injuries, if any he experienced as a result of the subject accident in 2019. His investigations to date reveal only degenerative changes in the cervical and lumbar spine and minor bursitis in his shoulders but does not explain the restricted range of motion demonstrated. Many of his physical symptoms have no organic explanation.
With careful consideration of the information available to me both at the time of my last assessment and today’s assessment I am unable to find objective evidence for musculoskeletal injuries caused by the accident that could explain his current symptoms or reported disability.”
[29] Insurer’s bundle, p 67.
[30] Insurer’s bundle, p 71.
Dr Vickery, psychiatrist, was qualified by the insurer and provided a report dated
22 April 2022.[31] The doctor opined that that the claimant satisfied the criteria for Somatoform Chronic Pain Disorder, or he was malingering.[31] Insurer’s bundle, p 55.
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 10 December 2021.[32]
[32] Claimant’s bundle, p 354.
Dr Bodel diagnosed a whiplash associated disorder of the cervical spine and a musculoligamentous injury to the lower back with minor bursitis and tendinitis in both shoulders. The doctor noted that the prognosis was guarded, he was surprised at the clinical presentation from a physical viewpoint given the time since the motor accident and the limited progress.
Dr Bodel assessed the cervical and lumbar spine based on asymmetry of movement with no radicular symptoms, each shoulder at 6% impairment and the right knee at 2% based on crepitus. This resulted in a combined impairment of 22%.
Dr Uthum Dias, occupational physician, was qualified by the claimant and provided a report dated 2 August 2022.[33]
[33] Claimant’s bundle, p 332.
Dr Dias noted symptoms in the right and left C6 dermatomes and right L4 dermatome consistent with non-verifiable symptoms. The right knee showed mild retropatellar crepitus. Both shoulders were said to have impingement secondary to acute rotator cuff strain with associated bursitis. Overall impairment was assessed at 25%.
Other records
A photograph of the claimant on Facebook in September 2021 showed him wearing gloves with well-muscled upper extremities.[34]
[34] Insurer’s bundle, p 28.
Records show overseas travel and a variety of traffic offences since the motor accident.[35]
[35] Insurer’s bundle, p 88.
The claimant provided a statement dated 23 February 2024 in response to an online investigation report and insurer’s submissions made “with the purpose of trying to discredit me”.[36] He said he was fit and healthy prior to the motor accident.
[36] Claimant’s bundle, p 374.
The claimant noted that various photographs were taken out of context and the photograph where he was wearing weightlifting gloves was taken five months prior to the motor accident.
The claimant stated that his traffic violations occurred after the motor accident and were due to his struggling mental health.
The claimant stated that his overseas travel was due to necessity. The first was to visit his ill mother and the second was to finalise paperwork in relation to the estate of his father.
The claimant stated that he is severely injured in the subject accident, is riddled with pain and the consequences of the injuries have significantly impacted on his life.
The claimant provided a photograph which showed significant damage to the front of the claimant’s vehicle.
Other medical assessment
Medical Assessor Hong provided a medical assessment certificate dated 26 February 2024. The Medical Assessor found that the motor accident caused a post-traumatic stress disorder and assessed impairment from the psychological injury at 7%.
SUBMISSIONS
Claimant’s submissions dated 28 April 2023[37]
[37] Claimant’s bundle, p 365.
The claimant noted that he was well prior to the motor accident.
The claimant noted that he attended his GP on the day after the motor accident for neck, low back and bilateral shoulder pain. Radicular symptoms were mentioned at various times. Subsequent treatment was undertaken by Dr Davidson, pain specialist. It was submitted that the claimant suffers from ongoing debilitating physical symptoms and significant psychological reaction. Dr Malik, psychiatrist diagnosed post-traumatic stress disorder.
The claimant submitted that he suffered physical injuries to the neck, both shoulders, mid-back, low back, left elbow and wrist, altered gait, referred pain in both upper and lower limbs, gastro-oesophageal reflux from medication and sleep disorder.
The claimant referred to the opinions of Dr Bodel and Dr Dias.
The claimant submitted that Dr McMahon made a baseless allegation of malingering which tainted Dr Keller’s opinion. Dr Keller’s opinion was said to be made following brief examinations without proper consideration of the injuries and “quite possibly having pre-judged hic case having regard to Dr McMahon’s opinion”.[38]
[38] Claimant’s bundle, p 369.
The claimant submitted that he had suffered “significant physical injuries” which support a finding greater than 10% based on the opinions of Dr Bodel and Dr Dias.
Claimant’s submissions dated 17 January 2024[39]
[39] Claimant’s bundle, p 1.
These submissions were filed opposing the review of the medical assessment.
The claimant noted that the cervical and lumbar spine were assessed based on reduced range of movement and radiculopathic symptoms.
The claimant submitted that both shoulders were injured in the motor accident and cls 6.51 and 6.52 of the Guidelines did not apply.
In respect of consistency the claimant submitted that the Medical Assessor noted an absence of calluses on his hands.
Insurer’s submissions dated 19 May 2023[40]
[40] Insurer’s bundle, p 7.
The insurer stated that it was unclear what physical injuries were being assessed but it assumed that they were the cervical spine, lumbar spine, right knee and both shoulders.
The insurer noted there was no independent account of the accident, no ambulance report or police report. It asserted that there was a continuing investigation of the circumstances of the motor accident.
The insurer noted that no pre-accident records were available.
The insurer submitted that there are no hospital records and no specialist treatment other than referral to a pain specialist. Imaging of the spine and shoulders showed no significant pathology.
The insurer referred to the records of Specialized Health which referred to high degrees of pain (24 June 2020, 7 July 2020, 9 July 2020, and 13 July 2020). Records in July 2020 revealed complaints of less pain.
The insurer submitted that the records are suggestive of a pain disorder rather than physical injury.
Dr Davidson, pain specialist, noted the MRI scan of the cervical spine demonstrated no changes consistent with the reported symptoms.
In a report dated 30 September 2020 Dr Davidson reported the claimant fell down a set of stairs. Records of Starlight Psychology dated 17 August 2020 refer to that fall including pain in the coccyx.
The insurer referred to the opinion of Dr McMahon in a report dated 11 March 2020. The doctor opined that the claimant failed the test of memory and malingering and there was feigning spectrum behaviour.
Dr Keller noted a number of inconsistencies particularly in terms of range of motion. The doctor observed the claimant’s arms were “large and muscular” with callused palms. The complaints of numbness in the arm and leg did not follow an anatomical distribution.
In a further report dated 17 January 2023 Dr Keller opined that the investigations only revealed degenerative changes with minor bursitis in the shoulders which did not explain the reduced range of motion and the physical symptoms had no organic explanation.
Dr Vickery opined that the claimant suffered from a Somatoform Chronic Pain Disorder.
The insurer noted that the claimant submits that his vehicle was written off but has provided no documentary evidence, despite repeated requests.
The insurer noted that Dr Bodel observed hand features suggestive of work and expressed surprise of the claimant’s clinical presentation.
The insurer referred to photographs suggestive that the claimant was involved with lifting weights. It also referenced repeated traffic offences and overseas travel.
In respect of the cervical and lumbar spine, the insurer relied on the opinion of Dr Keller and submitted that the scans did not support radicular symptoms.
The insurer noted that the claimant had bursitis in both shoulders, and it was unclear what mechanism gave rise to bilateral shoulder injury.
The insure noted that there was no contemporaneous report of right knee injury, and the finding of crepitus was unlikely to be related to the motor accident.
The insurer otherwise relied on cls 6.40 and 6.41 of the Guidelines.
Insurer’s submissions dated 18 December 2023[41]
[41] Insurer’s bundle, p 1.
These submissions sought leave to review the medical assessment. The insurer submitted that the MAC was “devoid of any reasoning in terms of each individual assessment of impairment”. It further submitted that it was unclear how the findings of chronic pain had been factored into the assessment particularly as cl 6.38 of the Guidelines provided that there can be no allowance for permanent impairment due to pain.
The insurer submitted that it was unclear how the Medical Assessor provided a bilateral shoulder impairment.
RE-EXAMINATION
Mr Hawach was examined by Medical Assessor Stubbs on 15 May 2024. The examination report is as follows:
“Medical assessment conducted by Assessor Stubbs at the PIC rooms on 15 May 2024. The matter is an impairment is impairment assessment view for injuries to the cervical spine, right knee chondromalacia patellae, lumbar spine, left shoulder and right shoulder both reported to be secondary to acute rotator cuff strain.
Contentious issues raised by the insurer include social media postings of photographs the first depicting Mr Hawach in gym gear prior to the MVA and a social gathering after the MVA. The other is driving record – multiple speeding offences following MVA. Both questions are addressed by Mr Hawach in his statement. These were discussed with Mr Hawach. The apparently well-muscled appearance is from working out with weights regularly and that he considers himself much less muscular now that at the time at the time of the first photograph. He ascribes those speeding offences down to the emotional stress from the accident.
Background: Mr Hawach is presently 38 years old. He came to Australia from Lebanon on in 2017 to join his brother who came to Australia some years before. He had trained in Lebanon as an electrician and was working as an electrician/construction worker, residency based on a partner’s visa. This and eight subsequent relationships broke up but he has since married and has an infant daughter. He and his present partner are living in a granny flat attached to his wife’s parents’ home. He has not been able to work since the motor vehicle accident and initially received income support from the third-party insurer. This has ceased and he is now working casually as an electrician for friends. The work is occasional and amounts to 2 to 3 hours per week. His wife receives a Centrelink benefit and childcare allowance but the family does not receive any other income. Prior to the accident he regarded himself as fit and well and not incapacitated by any prior injuries. He had a membership at an Anytime Fitness gymnasium and worked out with friends at various local branches of Anytime Fitness, with membership fees paid for by credit card.
The MVA occurred on 3 July 2019. A car approaching on his right-hand side at an intersection went through a give way sign. He could not avoid the collision and struck the other car the region of the passenger door. He was driving a 2007 Toyota RAV4. The other vehicle was a Toyota Kluger. Neither police nor ambulance was called. He did call his brother the accident with a friend who assisted in exchanging details with the other driver. The RAV4 was driven away from the accident was then home in Condell Park. Subsequently Mr Hawach sold the RAV4 to his brother were intended to carry out repairs. These were not performed the vehicle was subsequently sold to a third party. Mr Hawach is rather a vague about this.
He went to work for a day or two after the accident but increasing pain caused him to stop work. He attended his general practitioner and subsequently underwent a number of investigations. The reports, but not the imaging itself are available. Mr Hawach stated it was five years since the MRI of his spine, and he feels he should have another, as his back and neck has worsened. The clinical notes of the GP begin after the motor vehicle accident. He was sent for several investigations and for a course physical therapy from Gretel Davidson who told Mr Hawach that he had chronic pain and whiplash disorder. He went for a number of psychiatric consultations both arranged by his general practitioner and by the insurer. Is also had a number of IME examinations. These medications include tramadol (daily at first but now intermittently) and Lyrica and Panadeine Forte. He suffers from acute depression as a consequence of the motor vehicle accident.
Mr Hawach was asked about his gym membership. He said that he did not return to using the gymnasium after the accident. However, he seems to have continued membership payment up till the time that the CTP income support ceased. Payments were apparently a mixture of cash and credit card a now has a considerable debt owing as deductions for this card have continued under the terms of contract with Anytime Fitness.
He remains severely disabled and reports that he requires assistance from his wife with daily dressing, tasks such as doing up shoelaces. His neck and back symptoms are increasing. You can only lift modest weights of 4- 5 kg and there is pain spreading into his left leg and both shoulders. Symptoms are worst with constant posture. He says that he no longer owns a car and in any case he can only drive for around 20 to 30 minutes. A friend drove him to the PIC the medical examination and he hoped friend would also drove him home afterwards, but if not he would arrange an Uber. He was unable to explain the speeding offences recorded since his accident other than down to his mental stress.
His continuing symptoms include low back pain exacerbated by lifting and driving an increasing with constant posture either walking or sitting. Coughing and sneezing causes pain in the back. He has bilateral shoulder pain which makes it difficult to lift his infant daughter. The pain is from spreads from the neck on both sides to the arms generally right equals left with numbness and tingling sensations in the whole of the arms, but in particular the thumb and index finger the right side is right knee gives way.
Clinical examination –
Mr Hawach stood 174 cm tall and weighed 78 kg. He was wearing a tight-fitting crew neck long sleeved sweatshirt and matching black narrow gym pants and athletic shoes. He walked very slowly with a noticeable right sided limp. He could only just tip toe and heel toe walk and did not wish to hop or jump or squat as all these activities cause pain. He was able to get on and off the examination table by himself. He was noted to pull the sweatshirt on and off and over his head without difficulty with good movement of the shoulders. When this apparent freedom of movement dressing and undressing was brought to his attention in light of the very restricted range of motion shown in all parts of the clinical examination, he reported that the activities were painful, but he had to do them himself. When underdressed he has an athletic build with little subcutaneous muscle fat. Chest measured 92 cm, waist 79 and neck 41 cm. He has distinct tan marks suggesting he wears tank top and shorts a lot of the time.
Cervical spine: he is very guarded in his clinical examination. Voluntary movement only one quarter range in any direction symmetrically. There is no tenderness to light touch but a complaint of discomfort in all directions with all movements. Traction tests such as brachial stretch test was performed without apparent difficulty. Spurling’s test was resisted but direct compression cervical spine did not cause discomfort. The reflexes are brisk. There is a voluntary exaggeration of moment after the reflexes are elicited. This applies to all upper and lower limb reflexes. Tone is normal, there is no spasm or guarding girth of the arm is 37 cm right equals left, girth of the forearms 33 cm right equals left. Grip strength measures 4/5 on the right compared to the 5/5 on the left. There is no diminution in two-point discrimination but tingling and numbness is complained in a non-dermatomal distribution on both sides. Summary – none of the criteria for radiculopathy are met. There is no dysmetria, rather voluntary restriction of movement and there is no involuntary spasm or guarding. Therefore, DRE Category 1 is assessed.
Lumbar spine – active range of movement is very limited. Forward flexion is fingertips to knees as is side bending. Rotation is one third normal range. He resisted any extension of the spine. Spinal musculature is well-defined, tenderness is diffuse. There is no spasm or guarding. The ankle and knee jerks are brisk and symmetrical, but with the same exaggerated movement after-moment. Girth of the thighs is 53 cm right equals left girth of the calves is 30.5 cm right equals left. There is no increase in tone and no clonus. Numbness is complained of principally in the right leg in a non-anatomical distribution. Straight leg raising was 10° on the right active resistance and 30° on the left. When the slump test was performed with him leaning well forwards on the couch, he could actively extend both knees to full range without any change in lumbar posture. Summary – none of the criteria for radiculopathy are met. There is no dysmetria, rather voluntary restriction of movement and there is no involuntary spasm or guarding.
Therefore DRE Category 1 is assessed.
Upper limbs. The deltoids and the rest of the musculature were normal bilaterally. Sensory examination reveals non-dermatomal tingling opening involving all fingers of the left hand. Two-point discrimination is normal. Both shoulders show restricted range of motion. This is given in the table below and is the best-of-three goniometer measurements. The measurements are reasonably consistent between the sides but quite variable between the readings. The clinical impression is of active resistance to movement rather than painful restriction. This limitation of movement prevents comment on findings such as crepitus instability and impingement.
Right
Left
Flexion
60°
60°
Extension
10°
10°
Abduction
80°
80°
Adduction
zero
10°
Internal rotation
10°
10°
External rotation
10°
20°
Movements of the elbows, wrists and fingers are normal. Comment – there is voluntary limitation of movement with obvious discrepancy between what is seen in formal physical examination and what it is noted in other circumstances such as dressing and undressing. Therefore, goniometer measurements cannot be used to assess impairment. There are no findings of radiculopathy. There are no supporting signs of mechanical injury.
Lower limbs: the reflexes are brisk and symmetrical. Girth of the thigh 53 cm right equals left, and 30.5 cm right equals left in the calves. Voluntary motor strength is only 3/5 in formal testing and clearly inconsistent with his walking ability. There is diffuse complaint of tingling but no specific sensory findings. Movements of hips was resisted at 60° of hip flexion. Knee flexion was resisted at 90° right equals left, extension is full, and the knees are stable. There is no retro patella crepitus. The ankles have a full passive range of motion and normal stability. A sit up was resisted whilst lying supine but easily achieved by Mr Hawach getting off the examination table.
Opinion – despite the lesser muscle bulk seen in the photograph taken in gym gear about nine months before the accident and the subsequent photograph taken at his sister-in-law’s engagement about the same time after the motor vehicle accident,
Mr Hawach has an athletic build for is 38 years. The examiner found no specific signs of injury, despite the complaints and restricted range of movement seen in the formal physical examination. There was much better movement seen in the informal examination, this was pointed out to Mr Hawach. In assessment the examiner needs to rely on the presence of observable clinical signs which include muscle wasting, reflex changes, consistent nerve root tension tests for presence of joint crepitus, stability and swelling. None of these is present in the present clinical examination. Range of motion restriction was noted in the neck, shoulders, back and the lower limb attributable to voluntary limitation of movement. Weakness was inconsistent. Examiner’s conclusion is that whatever injuries Mr Hawach suffered in the motor vehicle accident have resolved. His reports of impairment are not supported by the physical examination.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[42]
[42] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[43] and Insurance Australia Ltd v Marsh.[44]
[43] [2021] NSWCA 287 at [40], [41] and [45].
[44] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination report provided by the Medical Assessors supplemented by the following further reasons.
The claimant’s submissions that the Review should not be seen as a “free kick” by the insurer are misconceived. The MAI Act provides that the review is a “new assessment”
(s 7.26(6)) and superior court authority have provided a wide interpretation of the scope of the review process.[45][45] See Meeuwissen v Boden [2010] NSWCA 253 at [19]; Wood v Insurance Australia Group Ltd [2022] NSWSC 1290 at [52]; Shaw v Insurance Australia Group Ltd [2023] NSWSC 1273 at [89]-[90].
Whilst this may be inefficient and contrary to the objectives of the motor accident scheme, this conclusion reflects binding authority on the clear wording, context and intent of the legislation concerning the scope of the review of a medical assessment.
The claimant’s submission otherwise misconstrues the nature of the insurer’s objection to the Medical Assessor’s findings of causation of bilateral shoulder injury.
There were submissions concerning Facebook photographs, overseas travel and traffic offences. We accept the photographs pre-date the motor accident and are irrelevant.
We do not consider the other issues raised by the insurer as relevant to an assessment of permanent impairment. Our conclusions on assessment of permanent impairment are based on the clinical findings by Medical Assessor Stubbs, the nature of the motor accident and the pathology shown on the scans.
Shoulder conditions
There are consistent complaints of bilateral shoulder symptoms following the motor accident. However, the references in the clinical notes are unclear as to whether the symptoms are referred pain from the neck and/or symptoms emanating directly from the shoulder joint.
The shoulder scans showed bilateral bursitis with an element of impingement.
The work history in the GP records refer to “form worker”[46] and there are otherwise histories of weightlifting. These actions are more likely to have caused bilateral bursitis due to the overhead action associated with these movements.
[46] See paragraph 32 herein.
There is otherwise no plausible medical basis how the left shoulder could have been injured in the subject motor accident. There is no history of impact into the left shoulder which was not restrained by the seatbelt.
It is likely that there was, immediately following the motor accident, some referred pain from the cervical spine which would explain the bilateral shoulder complaints. As the examination findings of the Medical Assessor shows, we do not accept that there are ongoing symptoms in the shoulders from any cervical spine injury.
Further, the findings of the Medical Assessor showed that we do not accept that the range of movement displayed by the claimant is a valid basis for assessing shoulder impairment. The extent of the loss of range of movement displayed by the claimant to Medical Assessor Stubbs is grossly inconsistent with the minor shoulder pathology shown on the scans.
Given the inconsistent shoulder movements observed by the Medical Assessor, we do not accept that the range of motion of those body parts is a valid method of assessment.[47] The inconsistencies of shoulder movement observed by the Medical Assessor were brought to the claimant’s attention and we do not accept his response as plausible.
[47] See cls 6.40. 6.41 and 6.50(d) of the Guidelines.
We are not satisfied that the motor accident caused any shoulder pathology. Based on the full range of movement shown by the claimant when removing the clothes, we do not accept that there is any assessable impairment of the shoulders either directly through shoulder injury caused by the motor accident or due to the principles set out in Nguyen v Motor Accidents Authority.[48]
[48] [2011] NSWSC 351.
Right knee
There is no recorded contemporaneous complaint of injury to the right knee. The absence of complaint is relevant but not determinative of the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[49] and AAI Ltd v McGiffen.[50]
[49] [2021] NSWSC 548 (Norrington).
[50] [2016] NSWCA 229 at [64]-[66].
An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[51] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue. The claimant did not report injury to the right knee in the claim form.
[51] [2014] NSWSC 888 at [31]-[32].
There was no mild retropatellar crepitus on medical examination that formed the basis of the right knee assessment provided by Dr Dias. Even if the right knee was injured in the motor accident, which we doubt, there is no assessable impairment of that body part.
The findings on the extent of permanent impairment means it is unnecessary to address the issue of the subsequent injury and any resulting impairment.
Cervical and lumbar spine
We accept, based on the contemporaneous complaints and the nature of the motor accident, that the claimant suffered soft tissue injuries to the cervical and lumbar spine.
The claimant presented with gross restriction of movement in both the cervical and lumbar spine. This loss of range of movement is not assessable under DRE category II as it is not asymmetrical. The extent of the loss of range of movement is otherwise inexplicable based on the minor pathology shown in the spinal scans and probably reflects the pain syndrome/behaviour commented upon by some of the medical practitioners.
The findings of the Medical Assessors otherwise show that there are no symptoms which justify a finding of DRE category II for either the cervical or lumbar spine.
CONCLUSION
The medical assessment certificate is revoked. A replacement certificate is issued at the commencement of these Reasons.
9
0