AAI Limited t/as GIO v Ryan
[2023] NSWPICMP 44
•15 February 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Ryan [2023] NSWPICMP 44 |
| CLAIMANT: | Thomas Ryan |
INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 15 February 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 15 September 2017 whilst riding a bicycle when he was struck by the insured vehicle and thrown on to the kerb of the road; the medical dispute concerned whether the degree of impairment of the injury caused by the motor accident was greater than 10%; the claimant had ongoing dysmetria in the cervical spine and assessed at 5% consistent with previous assessments in the matter; the claimant underwent a left shoulder arthroscopic lateral clavicle excision and minimal subacromial decompression bursectomy; the claimant was assessed by the Medical Assessor (MA) on the Panel at 7% for loss of range of motion of the shoulder; the claimant contended that an allowance for resection under Table 27 of American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th Edition (AMA 4) should also be included; clause 1.65 of the Motor Accident Permanent Impairment Guidelines Version 1 (Effective from 1 June 2018) provides that section 3.1M of AMA 4 (pages 58-64 which contains Table 27) “should be rarely used in the context of motor accident injuries” and that the MA “must take care to avoid duplication of impairments”; section 3.1m of AMA 4 noted that “impairments from the disorders considered in this section are usually estimated by using other criteria”; clause 1.65 is consistent with the note in section 3.1m of AMA 4; an assessment in this matter which included an allowance for both the resection and the assessable loss of range of movement would involve a “duplication of impairments” given the extent of the loss of range of motion; no allowance made for the resection; Held – claimant assessed at 5% permanent impairment in respect of the cervical spine and 7% for the left shoulder; original assessment confirmed. |
| 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/NOT GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: The Panel confirms the certificate of Medical Assessor Home dated 1 March 2022 that the permanent impairment caused by the motor accident is greater than 10%. |
REASONS
BACKGROUND
Mr Thomas Ryan (the claimant) was injured in a motor accident on 15 September 2017 whilst riding a bicycle when he was struck by the insured vehicle and thrown on to the kerb of the road.[1]
[1] Insurer’s bundle, p 27.
The insurer insured the owner and driver of the vehicle for liability to pay Mr Ryan any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the psychological injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines Version 1 Effective from 1 June 2018 (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[4] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[4] Section 60 of the MAC Act.
Medical Assessor Home issued a certificate dated 1 March 2022 which is subject of this review. The Medical Assessor accepted that there was a soft tissue injury to the left knee with an unrelated pigmented villonodular synovitis complaint of unknown aetiology which was assessed at 0% using the methodology in AMA 4 and the Guidelines. He otherwise noted there was ongoing mild anterior and medial ache in the left knee with no loss of motion or joint crepitus.
The Medical Assessor assessed the cervical spine at 5% and the left shoulder at 9% resulting in a combined impairment of 14%.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[5]
[5] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessment to the Review Panel (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.[6]
[6] Section 63(2B) of the MAC Act.
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[7] 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).
[7] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] 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 matter solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles of documents that should be considered. The parties provided respective bundles.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘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:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[11]. In Raina v CIC Allianz Insurance Ltd[12] 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.”[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
EVIDENCE
The parties filed bundles of documents in accordance with the initial Direction.
Pre-accident material
Physiotherapy records in October and November 2013 noted left shoulder, neck and thoracic spine symptoms.[13]
[13] Claimant’s bundle, pp 127 - 129.
Initial records
Emergency discharge note from St Vincent’s Hospital dated 15 September 2017 referred to left acromioclavicular joint (ACJ) tenderness and complaints of left wrist pain.[14]
[14] Insurer’s bundle, p 33.
X-rays of the chest, thoracic spine, left ribs and left knee dated 19 September 2017 showed no fracture or bone abnormality.[15]
[15] Claimant’s bundle, p 147.
On 20 September 2017 Dr Lee referred the claimant to the Sports Medicine Clinic for injuries to the left shoulder, left knee and left paravertebral lumbar spine.[16]
[16] Insurer’s bundle, p 35.
A referral by Dr Lee to Dr Rae dated 28 September 2017 referred to “ongoing severe left shoulder pain and lumbar back pain”.[17]
[17] Claimant’s bundle, p 159.
An ultrasound of the left shoulder dated 21 September 2017 showed a partial thickness supraspinatus tear and mild post-traumatic acromioclavicular synovitis. [18]
[18] Claimant’s bundle, p 169.
The medical certificate by Dr Richard Lee dated 22 September 2017 referred to an examination on 18 September 2017.[19] The doctor certified injuries to the left shoulder (left supraspinatus tear and traumatic ACJ synovitis), L5/S1 discopathy with nerve root compression and left knee pain.
[19] Insurer’s bundle, p 31.
The MRI scan of the left shoulder and cervical spine dated 20 October 2017 reported a clinical history of left upper arm numbness and weakness in hand.[20] The MRI scan of the left shoulder showed minor ACJ stress reaction, mild bursitis and no rotator cuff tear. The scan of the cervical spine showed mild bulging at C4/5 and C5/6 with no neural compromise.
[20] Insurer’s bundle, p 48.
A clinical note, presumably from the physiotherapist or from Dr Rae, sports physician dated 25 October 2017, noted that the shoulder and neck were “sore” but the knee and back were “fine”.[21]
[21] Claimant’s bundle, p 133.
An Allied health recovery request dated 30 January 2018 noted injuries to the left knee, left shoulder, left lower cervical spine and left hip.[22]
[22] Insurer’s bundle, p 38.
A clinical note, presumably from a physiotherapist dated 2 March 2018 noted tenderness in the neck and left shoulder.[23]
[23] Claimant’s bundle, p 130.
A treatment request with Capital Clinic Physiotherapy dated 8 May 2018 noted constant left shoulder pain and intermittent left sided neck pain.[24]
[24] Insurer’s bundle, p 44.
An ultrasound of the left shoulder dated 19 September 2018 showed left supraspinatus tendinopathy and subdeltoid bursitis.[25]
[25] Claimant’s bundle, p 42.
An MRI scan of the left shoulder dated 3 December 2018 showed no tendinosis, bursitis or acromioclavicular joint arthritis.[26]
[26] Claimant’s bundle, p 32.
An MRI scan of the left knee dated 5 March 2019 noted a clinical history of ongoing pain on weight bearing since the motor accident. The MRI scan showed an ovoid lesion within the posterior intercondylar notch likely due to nodular form of pigmented villonodular synovitis (PVS).[27]
[27] Claimant’s bundle, p 53.
A report from Camperdown physiotherapy dated 11 March 2019 noted ongoing left shoulder and neck pain.[28]
[28] Claimant’s bundle, p 57.
Treating specialist reports
Dr Katherine Rae, sports and exercise physician, provided a report dated
25 October 2017.[29] The doctor noted a referral from Dr Lee for severe left shoulder and lumbar back pain following the recent motor accident.[29] Claimant’s bundle, p 139.
Dr Rae noted that the claimant “has been seeing a physiotherapist for his left hip, knee, back and neck and shoulders, and all areas are improving apart from the left shoulder”. The doctor noted tenderness in the lower cervical spine and diagnosed a left ACJ sprain and facet joint sprain/possible disc injury in the lower cervical spine.
Follow up by Dr Rae three weeks later (presumably on or about 25 October 2017, that is the date of the report), noted the knee and back “were no longer bothering him” but that the claimant had undergone the MRI scan of the left shoulder and cervical spine “as they were not improving”. The doctor noted that the scan of the left shoulder showed sub-acromial bursitis and the scan of the cervical spine showed disc bulging at C4/5 and C5/6 with no neural compromise and no other acute injury.
Dr Rae opined that the condition should settle with conservative treatment and recommended ongoing physiotherapy.
Dr Chris Smithers, orthopaedic surgeon, provided a series of reports in relation to treatment of the claimant’s left shoulder which included a trial of cortisone injections. In June 2019 Dr Smithers performed a left shoulder arthroscopic lateral clavicle excision and minimal subacromial decompression bursectomy.[30] Approximately 8 mm of lateral clavicle was excised and 2 mm from the acromion side of the AC joint.
[30] Claimant’s bundle, p 11.
Dr Smithers referred the claimant to Dr Jeffrey Petchell, orthopaedic surgeon, for a further opinion. Dr Petchell provided a report dated 12 March 2019 recommending further treatment for the left shoulder consistent with that proposed by Dr Smithers.[31]
[31] Claimant’s bundle, p 50.
Dr Richard Boyle, orthopaedic surgeon, examined the left knee and provided a report dated 9 April 2019.[32] The doctor noted an ongoing clicking and catching sensation in the knee subsequent to the motor accident. The scan showed an “incidental finding” of a nodule in the posterior aspect of the left knee. The doctor recommended a left posterior synovectomy and biopsy.
[32] Claimant’s bundle, p 54.
Claim form
The claim form is dated 15 January 2017 [sic 2018] and specified injuries to the left shoulder, neck, middle back and left knee.[33]
[33] Insurer’s bundle, p 28.
Qualified opinions
Dr Robert Breit, orthopaedic surgeon, provided a report dated 29 May 2018.[34] The doctor opined that the rotator cuff impingement and some ACJ contusion is a residual to the motor accident and all other soft tissue injuries have resolved.
[34] Insurer’s bundle, p 50.
Dr Breit then assessed impairment at 10% based on non-symmetrical loss of movement in the cervical spine (5%) and loss of range of movement of the left shoulder (5%).
In a further report dated 23 April 2019[35] Dr Breit noted that the claimant wished to proceed with a distal clavicular excision. The doctor also noted ongoing neck stiffness which was managed “by moving around”.
[35] Insurer’s bundle, p 62.
Dr Breit accepted that there was a soft tissue injury to the cervical spine and ACJ. Impairment had not stabilised as the claimant was pursuing surgery.
In a further report dated 16 December 2020 Dr Breit noted arthroscopic distal clavicular excision as well as partial acromioplasty. In June 2019 there was surgery to the left knee removing the area of PVNS.
Dr Breit again assessed impairment at 10% in accordance with his previous assessment.
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 10 March 2021.[36] Dr Bodel opined that the motor accident caused an injury to the AC joint and rotator cuff tear of the left shoulder, whiplash disorder to the cervical spine, soft tissue injuries to the wrist, low back and a direct blow to the left knee.
[36] Claimant’s bundle, p 1.
Dr Bodel assessed the neck at 5% and the left knee based on mild restriction at 4%. He assessed the left shoulder for loss of range of motion at 10% upper extremity impairment and added a further 10% upper extremity impairment of the resection arthroplasty. This resulted in a combined whole person impairment of 18%.
SUBMISSIONS
Insurer’s submissions dated 17 March 2022[37]
[37] Insurer’s bundle, p 1.
These submissions addressed alleged error with respect to the certificate of Medical Assessor Home including that there was error in combining the impairment from a distal clavicle arthroplasty under Table 27 with the loss of range of motion.
The insurer noted that Table 27 referred to “Distal clavicle (isolated)” where there was no meaning of “isolated”. It submitted:
“[T]he implication appears to be that the impairment rating for a distal clavicle resection arthroplasty is not applicable if the resection arthroplasty is part of a more complex procedure.”
The insurer relied on the “Medical Assessor Guidance Note – Number 9” which it attached to and adopted in its submissions. It emphasised the preamble in cl 3.1m that impairments considered in that clause are “usually estimated by using other criteria”.
The insurer submitted that the Medical Assessor has failed to explain how Table 27 can be combined with range of motion in circumstances where Dr Breit came to a different view.
The insurer submitted that causation of injury to the cervical spine was in dispute. It referred to the absence of contemporaneous evidence and that the first clinical mention of cervical spine symptoms was on 30 January 2018 (AHRR report dated
30 January 2018). The claim form noted injury to the cervical spine. The form was dated 15 January 2017 and probably was written on 15 January 2018.The claimant underwent an MRI scan of the cervical spine in October 2017 which appeared to have been requested to investigate left arm numbness and weakness as is evident from the clinical details of the report.
Claimant’s submissions dated 29 March 2022[38]
[38] Claimant’s bundle, p 184.
These submissions opposed the application to review the Medical Assessment.
The claimant noted that the left shoulder operation involved distal clavicle resection, bursectomy to allow visualisation of the AC joint and excision of approximately 2 mm from the acromion side of the AC joint. He submitted that the surgery was “minimally invasive procedures”, that the distal clavicle procedure was the main procedure and that the bursectomy and acromioplasty were “secondary procedures”.
This operation could be distinguished from the examples given in the Guidance Note such as a surgical repair of a rotator cuff injury which is a major operation and to which a distal clavicle resection would have been secondary. Accordingly, the Medical Assessor was entitled to make an assessment for the claimant’s resection arthroplasty in accordance with Table 27 of AMA 4.
In relation to the whether the motor accident caused injury to the cervical spine, the claimant referred to the clinical note of Dr Rae dated 4 October 2017 and the report dated 25 October 2017. The insurer’s submission that the first clinical reference of injury to the cervical spine was on 30 January 2018 was incorrect.
The claimant otherwise referred to both Dr Bodel’s and Dr Breit’s opinion that there was injury to the cervical spine.
RE-EXAMINATION
Mr Ryan was examined by Medical Assessor Dixon on 3 February 2023. The examination report is as follows:
“There is a dispute between the claimant and the insurer about the degree of permanent impairment.
The permanent impairments disputes to be assessed by the Panel included the left shoulder, left knee and cervical spine. These were previously assessed by Medical Assessor Alan Home who issued a Medical Assessment Certificate on
1 March 2022 following assessment of the claimant on 21 February 2022.
The claimant relies upon the report of Dr James Bodel and the insurer relies on the report of Robert Breit.
I have considered the documents and reply.
The history of the motor vehicle accident is as stated by the MA. The claimant was the rider of a motorcycle hit on the right-hand side causing him to fall onto the footpath onto his left side. He subsequently had complaints of left wrist, left shoulder, neck, chest, back and left hip pain and was taken to St Vincent’s Hospital where imaging showed no fractures. He subsequently had referral to an orthopaedic surgeon and had cortisone injections and had review by a shoulder surgeon. Eventually in June 2019 he had AC joint excision arthroplasty and excision of the lateral clavicle and a small portion of the acromion at the Mater Hospital. His convalescence was uneventful.
With regard to his left knee, he had clicking within the joint and had a PVNS lesion within the knee. He came under the care of Dr Boyle who excised the nodule and subsequent MRI showed no evidence of recurrence of the lesion, although some pre-operative clicking occurs intermittently.
Current symptoms – he has persisting left sided neck pain with stiffness and left sided occipito frontal headaches and intermittent paraesthesia of his left index and middle fingers. In the left shoulder he has difficulty elevating the arm above shoulder height and difficulty reaching objects up high and loading his left arm and doing heavy lifting and carrying with his left arm due to shoulder pain. He also experiences left shoulder pain and paraesthesia in his hands while riding his bicycle.
Today, he confirmed that he still had anteromedial pain in his left knee with difficulty with stairs, walking on slopes and had a walking tolerance on level ground of one hour but reported no swelling of his joint and had a reasonable sitting tolerance. He was unable to run and he avoided kneeling and heavy lifting.
His partner helps with household cleaning although they also engage a commercial cleaner and he manages most household chores including bench height cleaning and putting clothes in the washing machine. His partner does the garden and he undertakes his share of the shopping.
There is no proposed treatment.
On general presentation today he was 187cm tall and weighed 88kg. On examination of his cervical spine there was dysmetria with flexion decreased by one quarter with neck extension decreased by one third and rotation to the right decreased by one quarter and that to the left by one third and flexion to the right decreased by one half due to pain in his left trapezius muscle and left lateral flexion decreased by one third. There was some guarding of the trapezius muscle. There was tenderness of the trapezius muscle and mid and upper cervical facet joints on the left. There was no neurological deficit of either upper limb. His reflexes were symmetrical and there was no wasting. His grip strength, thenar power and intrinsic power in both hands was grade 5 out of 5 and there were no objective sensory changes.
On examination on his left shoulder there was forward flexion of 130 degrees, active abduction 100 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 60 degrees and shoulder girdle power on the left was grade 4 out of 5. There was tenderness of the left trapezius and posterolateral deltoid over the lower rhomboid muscle today and in the biceps groove. Shoulder girdle power was grade 4 out of 5. There was no winging of the left scapula on resisted protraction. There was mild impingement on abduction. His arthroscopic portals have healed well and are non-tender and barely visible.
He had a full range of motion of his other shoulder where his right shoulder girdle power was grade 5 out of 5.
The measurement of the range of motion were repeated to ensure consistency and measured by a goniometer. The repeated measurements showed consistency.
In his left knee, flexion was restricted from 0 degrees to 120 degrees. There was no effusion. The left knee was stable and there was no abnormal joint crepitus. There was a click on straightening his knee but no evidence of patellofemoral subluxation and his apprehension test was negative. He was tender on the anteromedial joint line and his McMurray’s sign was equivocal. There was an inverted L shaped incision at the back of his left knee where the vilis nodule had been excised and this had healed reasonably and was not related to the subject motor vehicle accident.
There was no wasting of his quadriceps muscles and no wasting of either thigh or either leg below the knee. He had a full range of motion of his right knee 0 degrees through to 140 degrees and that knee was stable. There was retropatellar crepitus in this uninjured knee.
His normal gait was satisfactory as was toe and heel walking but there was discomfort in his left knee on squat testing.
In summary this claimant was reviewed for the Panel to assess the injuries to his neck, left shoulder and left knee. The findings today indicate that for the cervical spine, he has had a known neck strain injury with post traumatic stiffness with dysmetria and has radicular complaint with left sided occipitofrontal headache and intermittent paraesthesia of the left index and middle fingers while riding a bicycle and has trapezial muscle pain with spasm and this is consistent with an impairment of DRE II, 5% WPI.
That for his left shoulder where he has post traumatic stiffness is from Pie Charts 38, 41 and 44, Pages 43-45, AMA IV, 11% upper extremity impairment equates to 7% WPI.
That for his left knee where he has mild stiffness is from Table 41, Page 78, AMA IV, 0% WPI.
This gives a total of 12% WPI.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
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[39] and Insurance Australia Ltd v Marsh.[40]
[39] [2021] NSWCA 287 at [40], [41] and [45].
[40] [2022] NSWCA 31 at [11], [21], [64].
We adopt the examination findings of Medical Assessor Dixon supplemented by the following further reasons.
The insurer did not dispute that the motor accident caused injury to the left shoulder and left knee. There was also clear evidence of injury to the lumbar spine which did not require assessment.
Cervical spine injury
The insurer’s submission that there is no reference in the clinical records to neck injury until 30 January 2018 is incorrect.
There is a clinical note dated 25 October 2017 of neck pain which is probably that made by Dr Rae.
The report dated 25 October 2017 notes an attendance three weeks earlier when there was a complaint of neck pain and that the MRI scan of the cervical spine and left shoulder was then undertaken because “they were not improving”. That conclusion is consistent with the fact that scans of the cervical spine were taken on
18 October 2017.[41][41] Claimant’s bundle, p 149.
The clinical record of Sports Medicine at Sydney University for 4 October 2017 which are probably Dr Rae’s clinical notes, refer to cervical spine pain and records:[42]
“?FJ sprain ? disc injury C-sp”.
[42] Claimant’s bundle, p 158.
Given the history taken by Dr Rae, we conclude that one of the reasons for the claimant undergoing the MRI scan of the cervical spine in October 2017 was that the claimant was then suffering from ongoing neck pain. We reject the insurer’s submission that the scan of the cervical spine was (solely) organised due to left arm symptoms.
The October 2017 report otherwise recorded a history that the claimant was then receiving physiotherapy for the neck.
Whilst there is an omission of reference to the neck in some early records in September 2017, the insurer incorrectly submitted there is no clinical reference of neck pain until 30 January 2018.
We interpret Dr Rae’s report that there was complaint of neck pain three weeks prior to 25 October 2017 which is consistent with the clinical note of 4 October 2017. We conclude that the cervical spine MRI scan was undertaken at that time because of ongoing cervical pain.
Furthermore, we observe the reference to left hand weakness in October 2017 is consistent with radicular symptoms from the cervical spine.
The absence of complaint is relevant but not determinative of injury.[43] The hospital note is limited to a discharge summary which occurred on the day of the motor accident. The other absence is in the various records of the general practitioner who does not refer to the cervical spine in various brief records of the injuries sustained in the motor accident. That absence of complaint in September 2017 is contrasted with the clear records of Dr Rae which include a detailed report dated 25 October 2017 referring to cervical spine symptoms and the clinical note dated 4 October 2017.
[43] AAI Ltd v McGiffen [2016] NSWCA 229 at [64]-[66].
The claimant was struck whilst riding a motor vehicle and fell onto his left-hand side on the kerb. It is medically plausible that the motor accident could have caused injury to the cervical spine. Our conclusion is consistent with the opinions expressed by both Dr Breit and Dr Bodel that the motor accident caused injury to the cervical spine.
The claimant’s consistent version, recounted to various doctors and included in the claim form, is that he sustained an injury to the cervical spine. There are at least documented complaints of cervical pain from 4 October 2017. Accordingly, we accept the claimant’s history and accept that he injured his cervical spine in the motor accident.
The assessment of the cervical spine is 5% based on the examination findings of Medical Assessor Dixon. Whilst we are required to form our own opinion, that assessment is consistent with prior assessments of the cervical spine.
Left shoulder
The parties made submissions concerning whether an allowance should be made for the dissection in addition to loss of range of motion.
The insurer referred to Medical Assessor Guidance Note – Number 9 which states that it is “not legally binding” and is issued in the interests of promoting accuracy and consistent medical assessments. The insurer extracted portions of the Guidance Note in its submissions which are set out earlier in these Reasons.
We agree with the claimant’s submissions that the shoulder surgery was mostly dissection. However, that does not answer the question whether an allowance provided by Table 27 (impairment after arthroplasty) and loss of range of motion should both be used in the assessment of impairment.
Neither party referred to cl 1.65 of the Guidelines which provides that s 3.1m (pages 58-64 which contains Table 27) of AMA 4 “should be rarely used in the context of motor accident injuries” and that the medical assessor “must take care to avoid duplication of impairments”. However, the insurer correctly submitted that s 3.1m of AMA 4 noted that “impairments from the disorders considered in this section are usually estimated by using other criteria”. Clause 1.65 is consistent with that note in s 3.1m of AMA 4.
In our view, an assessment in this matter which included an allowance for both the resection and the assessable loss of range of movement would involve a “duplication of impairments” given the extent of the loss of range of motion.
We are not required, as the insurer suggested, to consider Dr Breit’s interpretation of the Guidelines. We have provided our reasons for reaching the conclusion that on the present facts we will not include an allowance for both arthroplasty and loss of range of motion. This conclusion is consistent with cl 1.65 of the Guidelines and the note in s 3.1m.
We also note that the impairment assessment of 7% for loss of range of movement of the left shoulder is slightly greater than previous assessments which are now somewhat outdated. However, the increase in loss of range of motion caused by the motor accident is not unexpected given the significant left shoulder injury which can result in slightly greater loss over time. This is what has occurred in the present matter.
Left knee
Whilst the left knee was injured and there are residual symptoms from the motor accident, there is no assessable impairment of that body part.
Pre-existing or subsequent injuries causing impairment
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[44] concerning the issue of onus.
[44] [2022] NSWPICMP 66 at [118]-[120].
We note that the left shoulder and cervical spine were symptomatic in 2013 and the claimant underwent physiotherapy at that time. However, there is an absence of reference to treatment after that time.
Clause 1.31 of the Guidelines requires a deduction for “pre-existing impairment”. However, there is no basis to make any deduction as we are not satisfied that there was any objective evidence of pre-existing impairment.
Permanent impairment
We are satisfied that the assessable impairments were caused by the motor accident based on the contemporaneity and consistent complaints to the cervical spine and the left shoulder.
We are also satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
CONCLUSION
We have made slightly different assessments from that found by Medical Assessor Home. However, both the Medical Assessor and the Panel are satisfied that the claimant’s permanent impairment caused by the motor accident is greater than 10%. Accordingly, for different reasons, we confirm the original certificate.
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