AAI limited t/as Suncorp Insurance v Proctor
[2024] NSWPICMP 707
•10 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI limited t/as Suncorp Insurance v Proctor [2024] NSWPICMP 707 |
CLAIMANT: | Jan Proctor |
INSURER: | AAI limited t/as Suncorp Insurance |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 10 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant was involved in a motor vehicle accident north of Grafton; claimant was driving along the Pacific Highway in a northerly direction; claimant was wearing a seatbelt; the insured vehicle crossed the median strip and collided head-on with the claimant’s vehicle; claimant was knocked unconscious; claimant was transported by ambulance to Lismore Base Hospital where she was admitted and remained for a few days; the insurer admitted liability for the claim; medical dispute as to whole person impairment (WPI); insurer initially disputed that the accident caused an L4 endplate fracture; insurer conceded 10% WPI for cervical and lumbar spine but maintained it was entirely pre-existing contrary to its own expert evidence; parties agreed re-examination not necessary; Held – Medical Review Panel (Panel) accepted opinion of insurer’s expert radiologist that end-plate fracture caused by accident; Panel confirmed Medical Assessment Certificate and Combined Certificate for 12% WPI. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 (the Act) 1. The Review Panel confirms the certificate dated 5 September 2023 and the Combined Certificate dated 15 March 2024 both issued by Medical Assessor Philip Truskett. |
STATEMENT OF REASONS
INTRODUCTION
Jan Proctor (the claimant) was involved in a motor vehicle accident on 9 April 2017 just north of Grafton (the accident). The claimant was driving her Hyundai i20 Sedan along the Pacific Highway in a northerly direction. The claimant was wearing a seatbelt. Her daughter was in the front passenger seat. The insured vehicle was approaching in the other direction. It suddenly crossed the median strip and collided head-on with the claimant’s vehicle which spun out of control. It was struck by a following vehicle. The claimant was knocked unconscious. The claimant was transported by ambulance to Lismore Base Hospital where she was admitted and remained for a few days.
AAI limited t/as Suncorp Insurance (the insurer) indemnifies the owner and the driver of the vehicle at-fault for liability to pay to the claimant any damages under the Motor Accidents Compensation Act 1999 (the Act). The insurer admitted liability for the claim.
The issue in dispute is the degree of permanent impairment that the claimant has suffered as a result of injuries to the cervical spine, lumbar spine, left shoulder, abdomen, right hip and right leg, caused by the accident. The insurer places in issue causation of an L4 endplate fracture of the lumbar spine.
ASSESSMENT UNDER REVIEW
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 58(1)(d) of the Act, the claimant was referred for assessment by Medical Assessor Philip Truskett, who certified on 5 September 2023 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 10% which IS NOT GREATER THAN 10%:
- Cervical spine – C6 posterior element fracture, healed, stable, undisplaced with no radiculopathy.
- Lumbar spine – L4 vertebral body fracture
Medical Assessor Truskett made no adjustment for pre-existing/subsequent impairment nor treatment effects.
Medical Assessor Truskett found that the following injuries WERE caused by the motor accident:
· Cervical spine – fracture of C6 vertebral body posterior element, healed, stable, undisplaced with radiculopathy
· Lumbar spine L4 endplate fracture
· Left shoulder – musculo ligamentous injury
Medical Assessor Truskett found that the following injuries caused by the motor accident have resolved:
· Abdomen – soft tissue injury
· Right leg – soft tissue injury
· Right hip – soft tissue injury
OTHER ASSESSMENTS
The Review Panel notes that Medical Assessor Kenneth Howison assessed 2% whole person impairment arising from loss of hearing and tinnitus caused by the motor accident. That is not the subject of the present review. It is not known if that assessment was accepted by the parties. Subsequently, Medical Assessor Truskett issued a Replacement Combined Certificate on 15 March 2024 that the combined permanent impairment is 12%, which presumably is the reason that the insurer challenged Medical Assessor Truskett’s initial assessment.
THE REVIEW
The insurer made an application, under s 63 of the Act, to refer the medical assessment to a Review Panel, on the ground that the medical assessment was incorrect in a material respect. The insurer relied on the particulars set out in the application and supporting documentation.
The insurer submitted that none of the qualified experts diagnosed the claimant with a L4 endplate fracture as a result of the subject accident, and that the available medical evidence did not support such a diagnosis, contrary to Medical Assessor Truskett’s finding.
The insurer submitted that Medical Assessor Truskett failed to adequately consider the following relevant material:
(a) Discharge summary of Lismore Base Hospital, including a CT trauma series, performed on 9 April 2017 (A23).
(b) MRI scan of the cervical and lumbar spine performed on 24 April 2019 (R9).
(c) Report of Dr Smith dated 1 March 2022 (R4).
(d) Reports of Dr Rosenthal dated 14 December 2020, 9 August 2022, 9 October 2022 and 20 December 2022 (AD3 – AD6).
(e) Report of Dr Bodel dated 16 February 2022 (A12).
The insurer disputes that the claimant sustained any injury to her lumbar spine in the accident. The insurer further submits that the claimant’s complaints, in relation to her lumbar spine, pre-existed and/or are unrelated to the accident.
The insurer submitted that, as Doctors Rosenthal, Smith and Bodel did not diagnose any fracture of the lumbar spine, and as there was no evidence of any fracture in the CT trauma series performed on 9 April 2017, nor the MRI scan of the lumbar spine performed on
24 April 2019, Medical Assessor Truskett was required to disclose his pathway of reasoning for his determination that the claimant suffered a L4 endplate fracture.The insurer made no submissions in relation to, nor did it challenge, Medical Assessor Truskett’s other findings.
The insurer’s application for review was opposed by the claimant. It was submitted for the claimant that the accident involved a very substantial head-on collision which was capable of causing an L4 endplate fracture. The claimant disputed that Medical Assessor Truskett failed to adequately consider the relevant information cited by the insurer in its submissions. The claimant also disputed that Medical Assessor Truskett failed to provide sufficient reasons citing the following passages:
“22.1Although she did have pre-existing symptoms of degenerative disease of her neck and back, her complaints to her local medical officer were infrequent. I am of the view that she has sustained a right C6 pedicle fracture and an L4 endplate fracture as described above.
22.2The claimant was involved in a significant motor vehicle accident with a head-on collision at speed, loss of control and impact with another vehicle. Contemporaneous CT scan of her neck demonstrated a right C6 pedicle fracture. This was subsequently documented in a CT scan of her neck on 30 August 2017. Given the nature of her injury, I believe this to be real. In relation to her lumbar spine, the vertebral endplate fracture at L4 in keeping with a significant flexion injury which would be in keeping with the severity of the motor vehicle accident she sustained.”
The claimant concluded that there is no reasonable suspicion that Medical Assessor Truskett erred in any (material) way.
President’s Delegate Racher Brittliff issued a Determination of an Application for Review of a Medical Assessment on 10 April 2024 which stated the satisfaction of the President’s Delegate that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated as follows:
“Medical Assessor Truskett did not provide information about where the L4 fracture was described (above). It is not clear from Medical Assessor Truskett’s reasons what evidence he relied on to determine that the claimant had suffered an L4 endplate fracture”.
The President’s Delegate was satisfied there is reasonable cause to suspect that Medical Assessor Truskett provided insufficient reasons for his finding that the claimant sustained an L4 endplate fracture caused by the accident.
Accordingly, the review application was accepted and was referred to the Review Panel, which is to assess the following injuries:
The body part
Description
Abdomen
Soft tissue injury
Cervical spine
Fracture of C6 vertebrae, disc herniation of C5/C6
Right hip
Soft tissue injury
Right left
Soft tissue injury
Lumbar spine
L4/L4 disc herniation and L4 bone trauma
Left shoulder
Soft tissue injury/musculoskeletal injury
The Review Panel notes that the insurer served, as a late document, a report dated
6 May 2024 by Dr John Korber, radiologist (B1). Dr Korber referred to reports by Dr Rosenthal, Dr Gabriel, Dr Smith and Dr Bodel, as well as various diagnostic reports. He viewed a lumbar spine CT performed on 9 April 2017 and a lumbar spine CT performed on 30 October 2017.The insurer’s solicitor asked Dr Korber to provide his opinion in relation to whether the imaging provided suggests that the claimant sustained an L4 endplate fracture as a result of the accident. Dr Korber replied as follows:
“Yes. There is a fracture line seen in three planes in the CT of the day of the accident. This is subtle and would be easily missed, as clinically it would be of little consequence and would not require treatment, but it is present.”
The insurer’s solicitor also asked Dr Korber to provide his opinion in relation to whether the imaging provided suggests evidence of any injury to the lumbar spine that was caused by the subject accident. Dr Korber replied as follows:
“Yes. There is a definite fracture line on the right lateral anterior body of L4 that is seen in three planes. There is also some soft tissue swelling in this region. The fracture is slightly unusual and demonstrates some healing by the time of the second CT. Compression is 13% when compared to the vertebral body above and below at the time of injury but has changed insignificantly 6 months later.”
It does not appear that Dr Korber was asked to express an opinion as to whole person impairment arising from his found injury to the lumbar spine.
In its further submissions dated 12 June 2024, the insurer confirmed that, in the light of
Dr Korber’s opinion, the insurer does not press the dispute in relation to causation of the L4 lumbar spine fracture. The insurer accepts that Medical Assessor Truskett’s assessment of 5% whole person impairment for the lumbar spine, in accordance with Table 70 of AMA 4, is correct. Further, there is no dispute that the claimant suffered a C6 posterior element fracture, which the insurer confirms attracts 5% WPI.That said, the insurer relies upon the opinion of Dr Rosenthal, who diagnosed 5% WPI for the cervical spine and 5% WPI for the lumbar spine due to pre-existing conditions. The insurer says this ought to be subtracted from her current WPI, giving rise to a total of 2% WPI attributable to the accident-related hearing loss certified by Medical Assessor Howison, which is not a dispute before the Review Panel.
The insurer accepts Medical Assessor Truskett’s findings in relation to the injuries to the abdomen, right hip and right leg.
The insurer conceded that, with the claimant’s consent, the issues in dispute are limited to the cervical spine and lumbar spine.
The claimant submitted in response that there is no objective evidence of pre-existing symptomatic permanent impairment for the following reasons:
“As noted in Assessor Truskett’s certificate, whilst there were complaints of pre-existing degenerative diseases of her neck and back over the years prior to the motor accident, these were infrequent and there is no objective evidence in the medical records to establish that the claimant was suffering symptomatic permanent impairment at the time of the subject motor accident.”
The claimant submits that, based upon the foregoing evidence, Medical Assessor Truskett was correct to find that there was no pre-existing impairment, let alone the 10% whole person pre-existing impairment, for which the insurer contends, based upon Dr Rosenthal’s opinion.
In relation to the opinion of Dr Rosenthal, the claimant submits that the Review Panel would attach no weight to it, for the following reasons:
“His opinion as set out in his report is hard to follow and indeed contradictory. In his report dated 9 August 2022, Dr Rosenthal indicates he believed that any symptoms the claimant now experiences relate to a pre-existing condition. He then proceeds in his report dated 19 October 2022 to say that the claimant’s symptoms relate to the subject motor accident, before in his later report dated 20 December 2022, reverting to saying that the claimant’s symptoms are pre-existing. Dr Rosenthal also fails to adopt the correct methodology, as required by paragraph 1.33 of the Guidelines, for assessing the claimant’s pre-existing impairment with reference to objective clinical records, as at the time of the accident, and then deducting this from the current whole person impairment……. relating to and caused by the subject accident, which methodology the insurer is now trying to contrive from some of his opinions in some of his reports.”
The claimant then observed that a physical re-examination was not necessary, with which the insurer agrees.
In its final further submissions, the insurer disputed that the sole basis for its review application was a dispute about causation of an L4 lumbar spine fracture. The insurer noted that its review application also was based upon Medical Assessor Truskett’s alleged failure to adequately consider relevant information and failure to provide sufficient reasons. The relevant information included several documents and reports, including those of Dr Rosenthal, wherein he determined that the claimant’s permanent impairment was pre-existing.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Part 3.4 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 60 of the Act and on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Review Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 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 American Medical Association Guides (AMA 4) Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the American Medical Association Guides (AMA 4) Guides as follows:
‘Causation means that a physical, chemical or biological 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 judgment.
6.7There 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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) Submissions dated 21 February 2024 opposing insurer’s review application (previously summarised).
(b) Report dated 16 February 2022 by Dr James Bodel, orthopaedic surgeon.
Dr Bodel notes that the claimant was involved in a significant motor accident on the Pacific Highway north of Grafton. The insured vehicle lost control, crossed onto the wrong side of the road and struck the claimant’s vehicle head on. Both vehicles were travelling near the speed limit prior to the impact. The claimant’s airbags were deployed and she was knocked unconscious. The claimant was transported to Lismore Hospital and remained there as an inpatient for three days.
Dr Bodel summarises the injuries caused by the motor accident as follows:·Closed head injury and laceration to the mouth
·Dental damage
·Fracture of the C6 vertebral body and disc injury at C5/C6
·Injury to the left shoulder
·Disc injury at the L4/L5 level in the lumbar spine
·Blant abdominal trauma
·Injury to the right hip and right leg
·Psychological sequelae
Dr Bodel says that the reports of the CT scans, MRI scans and other tests are consistent with the films that he examined. Dr Bodel says that the diagnostic material shows some pathology, particularly at the L4/L5 level in the lumbosacral region. He says that the Ambulance reports and the Lismore Base Hospital clinical notes are consistent with the observations. He assesses whole person impairment as follows:
·5% for the cervicothoracic spine
·5% for the lumbosacral spine
·7% for the left upper extremity
Dr Bodel says there is a total of 16% whole person impairment in this case.
(c) Report of CT lumbar spine performed on 30 October 2017 by Dr Geier.
(d) Report of MRI cervical spine reported on 30 August 2017 by Dr Duncan Snodgrass.
(e) Letter dated 2 November 2017 from Professor Joe Ghabrial, orthopaedic and spinal surgeon, to Dr Smith.
Professor Ghabrial says that MRI scanning on 27 July 2017 showed C6 facet joint fracture with narrowing of the foramina at that level. CT scan of the lower back confirmed superior aspect of vertebral body fracture of the endplate and disc protrusion compressing the exiting L5 nerve root bilaterally.
(f) NSW Ambulance report dated 9 April 2017.
(g) Lismore Base Hospital clinical notes comprising 155 pages.
(h) Waratah Medical Services clinical notes comprising 160 pages.
(i) Clinical notes from other treatment providers comprising some 1200 pages.
The insurer relied upon the following material which the Review Panel has considered:
(a) Review application submissions (previously summarised).
(b) Reply submissions.
(c) Records of Lakes Radiology.
(d) Records of Lumus Imaging.
(e) Records of PRP Gosford.
(f) Reports dated 11 May 2022, 10 August 2022 and 1 March 2022 by Dr Anthony Smith, orthopaedic surgeon.
Dr Smith refers to notes describing the claimant’s previous neck and back problems, relating to degenerative disease, which were aggravated in the motor accident. Dr Smith expected that the claimant should have recovered within a few months of the motor accident. Dr Smith says that the opinion expressed by Dr Bodel do not cause him to alter his opinions. Dr Smith opined on 1 March 2022 as follows:
“On today’s clinical examination, there is nothing objectively wrong with her regarding the lumbosacral spine. With regard to her cervical spine, the slight restriction of neck movement is consistent with the degenerative changes seen in the investigations of the neck.”
Dr Smith assessed 0% whole person impairment for the cervical spine and the lumbosacral spine.
(g) Reports dated 14 December 2020, 9 August 2022, 19 October 2022 and 20 December 2022 (previously summarised) by Dr Thomas Rosenthal, occupational physician.
Dr Rosenthal assesses 5% whole person impairment for the cervical spine and 5% whole person impairment for the lumbosacral spine which he relates to the claimant’s pre-existing conditions. Dr Rosenthal says that those impairments are not related to the injuries caused by the motor accident .
Dr Rosenthal notes that the claimant spent four days in Lismore Hospital following the accident. She apparently was diagnosed with a fracture of her C6 vertebrae. She was put in a neck brace for ten weeks. The claimant developed back symptoms and right leg symptoms but initially these were not investigated by the hospital. The claimant subsequently attended Gold Coast Hospital and then her GP. Eventually, scans were done on her lumbar spine which revealed an injury to her L4/L5 disc. Dr Rosenthal records that the claimant had a mild right shoulder injury in the past with some ongoing right shoulder discomfort. She fractured a wrist many years ago. The claimant denied any pre-existing conditions, other health issues, other accidents or injuries.
In his initial report dated 14 December 2020, Dr Rosenthal opined as follows:
“There is a soft tissue injury to the cervical spine and possible aggravation of degenerative changes. There was a fracture of the C6 facet joint but the latest MRI showed no ongoing evidence of this. In the lumbar spine, there is a possible disc injury at L4/L5 with right leg radicular symptoms.”
At that time, almost four years post-accident, Dr Rosenthal thought that the claimant is not considered to be sufficiently recovered but is medically stable. Dr Rosenthal said that the claimant’s injuries were a direct result of the motor accident.
In his report dated 9 August 2022, Dr Rosenthal reviewed clinical documents produced by Tristar Medical Centre and Dr Smith’s reports (above). He noted the opinions expressed by Dr Smith (previously summarised). Dr Rosenthal noted the history of complaints dating back to 2008 in regards to lower back pain which was diagnosed as lumbar radiculopathy on 29 July 2011 requiring investigation and physiotherapy. Dr Rosenthal noted a workplace incident on 15 December 2016 resulting in neck and arm pain. Dr Rosenthal concludes that the past medical history provided by the claimant at her initial assessment in 2020 was not accurate. Dr Rosenthal noted that the asymmetry of spinal movement, which was present at his initial assessment, had resolved at the time of Dr Smith’s assessment. Dr Rosenthal concludes as follows:
“Thus, in regard to the injuries to her neck and back, the C6 fracture has healed. She had soft tissue injuries to her neck and back but there was no permanent aggravation of pre-existing spinal degeneration. Her symptoms now appear to relate to a pre-existing condition. The injuries caused by the motor accident have resolved.”
In his subsequent report dated 19 October 2022 following a re-examination of the claimant, Dr Rosenthal said that the MRI scans of the cervical spine and lumbar spine previously noted from 2019 showed general degenerative changes but there was an L4/L5 disc abnormality and protrusion reported in the 24 April 2019 MRI of the lumbar spine. Dr Rosenthal reviewed Dr Bodel’s report dated
16 February 2022 (above) and Dr Coughlan’s report from 31 July 2021 which indicated that he was not expecting the claimant to need surgery on her lumbar spine at that time. Dr Rosenthal opined as follows:“As noted, she had a C6 facet joint fracture which now presumably has healed. It has not been reported in the latest MRI. There is a disc injury at L4/L5 with right leg radicular symptoms. She has ongoing symptoms from aggravating degenerative changes in the cervical spine and aggravating L4/L5 disc abnormality. The symptoms are reasonable and related to the motor accident. The neck and back complaints are related to the accident. The issue with her left shoulder remains undiagnosed but there is no indication that there was any injury to her left shoulder initially from the subject accident.”
Dr Rosenthal repeated his assessment of 5% whole person impairment for the cervicothoracic spine and 5% whole person impairment for the lumbosacral spine, both as a consequence of pre-existing or unrelated conditions. It does not appear that the alleged historical inaccuracies, to which Dr Rosenthal referred in his previous report, were put to the claimant
In his final report dated 20 December 2022 following a re-examination of the claimant, Dr Rosenthal stated that the injuries caused by motor accident have resolved. He opined that her present complaints and difficulties relate to her pre-existing degeneration. Confirms the opinion provided in his report dated 9 August 2022 and alters the opinions provided in his report dated 19 October 2022 which he notes are conflicting.
Not all of the insurer’s material has been summarised due to the concessions made by the insurer.
RE-EXAMINATION
Medical Assessor Christopher Oates’ findings are as follows[BG1] :
Jan Proctor
PIC Medical Review Panel re-examination by Teams video conference
Present were the claimant, Jan Proctor, and Medical Assessor, Christopher Oates, on behalf of the Panel. The video conference took place on 25/7/2024 at 2.00pm as arranged.
Ms Proctor was in her solicitor’s office at the time.
The video and audio quality were satisfactory.
Date of Accident: 9/4/2017
In view of submissions by the parties, the objective of this video conference was to explore in greater detail the past history and the status of Ms Proctor’s neck and back at the time of the subject accident.
Medical Assessor Oates reviewed the pre-accident medical evidence on hand with Ms Proctor. She had an incomplete recall of events.
1. Referring to the GP record of November 2008, Ms Proctor stated she was working in a nursing home doing cleaning and mopping part-time, as she also had childcare responsibility for her young daughter. She developed low back pain radiating to both legs, worse on bending, and had an X-ray showing degenerative changes. She does not recall having any medication or physical therapy. She said she is a not a ‘medication person’. She ended up leaving this job because of problems with obtaining childcare. She believes her back must have settled down from this episode and added that normally her back did not stop her undertaking her usual activities. There was no further GP record about the back at this time.
2. In May 2012, there was a GP note regarding falling on the tailbone and developing back pain. Ms Proctor said she did not recall this incident and thinks it must have settled down.
3. In July 2012, there was reference in the GP record to an episode of neck and right shoulder pain. The record stated that there was no specific incident involved. At first, the claimant said that she could not recall this incident. She thought that at the time she was working for the dole at Lifeline, steaming clothes as they were donated and hanging the clothes, but the manager of the store pressured the floor staff to “hard sell” their clothing to the customers. She had other jobs in work for the dole, including working in a Salvos disposal store and also in the activities room at a nursing home.
4. In May 2013, there was a GP reference to back and flank pain which was investigated and treated as a urinary tract infection. She does not recall this. She added that she is not prone to UTIs.
5. There was an GP record entry of 13/12/2016 referring to right shoulder pain for a long time, had an earlier evaluation years ago. The claimant said at first she did not recall anything about this, then later remembered an incident where she had taken the weight of a large female patient whom she was helping from bed to a chair, when the patient sagged unexpectedly. On reflection she thought that this was the episode where she told the GP there was no incident involved because she did not want to get the nursing home resident into trouble, referring back to the GP record July 2012. At this stage, there was also mention of right heel pain diagnosed as plantar fasciitis, which she remembers very well. This was of spontaneous onset and also settled down spontaneously, and there has been no recurrence. She thinks she had physiotherapy for this condition at Toukley.
6. The Medical Assessor referred the claimant to a report of 15/12/2016 in the GP records and she recalled this episode when a large male staff member tripped over in the St Vincent’s disposal shop and fell onto her and she instinctively reached out with her arm to try and stop him falling. She had sudden onset of neck pain radiating to the left shoulder and arm. She could not recall exactly what part of the arm. She couldn’t recall any specific treatment, such as medications or physical therapy, but said she got relief from hot baths.
7. The claimant was referred to an entry of 24/1/2017 which mentioned, “Aches and pains” and other symptoms, which she said was due to menopause. She can’t recall the site of the aches and pains. She was sent for blood tests. She thinks either those tests or some other earlier tests had shown high level of serum iron. The Medical Assessor mentioned the term hemochromatosis and she thinks this was the term applied to her, but she has never had a venesection treatment. She also said, when asked about any family history of this condition, that she wouldn’t know as she was adopted.
8. 21/2/2017 - There was an entry reported regarding neck and left shoulder pain, and diagnosis of osteoarthritis for which she was sent for an x-ray of the neck. A prescription for Celebrex was included but she said again she was not a ‘medications person’ and can’t recall if she had the script filled or actually took any. The record also stated her neck movements were all painful and restricted, and an x-ray of the neck done on 21/2/2017 showed a deviation to the right with loss of cervical lordosis consistent with muscle spasm. The claimant could not recall in any detail the position of her neck or whether it was stuck in one position or significantly stiff at the time, but did not dispute what was reported in the GP record.
9. There was a GP entry of 23/2/2017 where she was given Tramadol tablet prescription but again she could not recall if she actually took them. She also didn’t recall having any physiotherapy for her neck. She went to SE Queensland at this stage to visit her sons and grandchildren, and can’t recall having any treatment. At this point, she mentioned a friend of hers, Janine, a physiotherapist, who gave her treatment at some stage for her neck but she can’t remember if it was before or after the accident. She had lived in the same area in the Central Coast but has since moved to the Sunshine Coast and she was not sure when.
10. 7/3/2017 - She was sent for ultrasound scans of both shoulders showing bursitis. She recalls being told she had bursitis.
11. An entry of 16/3/2017 recommended sending her for cortisone injections for both shoulders but the claimant said she did not attend, as she didn’t like the idea of injections.
12. 26/4/2017 – This was the first report after the subject motor vehicle accident referring to a fracture of C6 with pain in the right leg, no back pain and no back tenderness, and she was diagnosed with neck pain and radiculopathy. She says this GP did not record her complaints of low back pain, which she remembers mentioning to him, and she then added that he left the practice later on for a reason not known to her.
The Medical Assessor asked the claimant whether she could recall if her neck and left shoulder were still symptomatic and stiff and restricted just before the subject motor vehicle accident from the incident of mid-December 2016. She said she could not have still been suffering from neck and left shoulder pain and restricted movement of the neck, as she would not have been able to drive a manual Hyundai i20 (her car) from the NSW Central Coast up to Queensland at the time when she had her accident.
After this car was written off, she then bought a replacement car which was also a manual, but she had to get rid of this because she could not longer handle the gear shift because of neck and left shoulder pain after the subject motor vehicle accident.
Comment
Putting aside the difficulty in recalling past events demonstrated by the claimant, her final comment with respect to the ability to drive a manual car would suggest that there was no significant persisting stiffness or asymmetry of the neck at the time of the motor vehicle accident from the previous injury of 15/12/2016.
MA Christopher Oates
On behalf of the Panel
25/07/2024Prior to the examination, I had some doubts about there being no cervical dysmetria immediately prior to the motor accident, in view of the cervical spine X-ray report which pre-dated the motor accident. However, upon questioning, the claimant gave a convincing reason why that would not have been the case, without hesitation. That reason was her ability to drive her manual vehicle from the Central Coast to South East Queensland without difficulty.
The impairment remains the same as that assessed by Medical Assessor Truskett. Although a cervical X-ray before the accident suggested the presence of neck muscle stiffness which would likely result in dysmetria, there is no other documented medical evidence of dysmetria actually being present. On close questioning, the claimant denied she had a stiff neck at the time she drove her manual car to Queensland, some time in the period between the X-ray and the date of the motor accident.
With reference to clauses 6.31 and 6.32 of the Guidelines, there is no accurate information and data to indicate that a pre-existing symptomatic permanent impairment existed at the time of the motor accident, contrary to the opinions which Dr Rosenthal has expressed.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] Medical Assessor Oates has explained the bases of his assessment, at the time of his assessment, with which Medical Assessor Assem concurs.
[5] Section 63(3A) of the Act.
[6] Insurance Australia Group Limited v Keen [2021] NSWCA 287
As is often the case, the views expressed by the parties’ respective qualified orthopaedic surgeons are diametrically opposed. The Review Panel does not accept the opinions of Dr Smith as they are at odds with all other examining medical experts. Dr Rosenthal accepts Dr Smith’s opinions uncritically. The Review Panel accepts the claimant’s submissions in relation to Dr Rosenthal’s reports. The Review Panel places great weight on the views expressed by the expert radiologist, Dr John Korber, who accepts that the claimant sustained an L4 endplate fracture as a result of the motor accident. The Review Panel notes that Dr Korber was provided with the opinions expressed by Dr Rosenthal and Dr Smith which he did not accept.
The Review Panel agrees with Medical Assessor Truskett that the claimant suffered accident-related impairments to her cervical spine and her lumbar spine, as a matter of medical determination, and as a matter of non-medical factual determination.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Truskett on 5 September 2023, and the Combined Certificate issued by Medical Assessor Truskett on 15 March 2024, should be confirmed.
[BG1]Check if ok added paragraph ?
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