Allianz Australia Insurance Limited v Begnell
[2023] NSWPICMP 435
•1 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Begnell [2023] NSWPICMP 435 |
| CLAIMANT: | Jeremy Begnell |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Cameron Thompson |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Ian Wechsler |
| DATE OF DECISION: | 1 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents compensation Act 1999; claimant suffered injuries in a motor accident on 19 November 2017 when as the driver of a vehicle which was proceeding through an intersection a vehicle being driven in a slip lane collided with the front passenger side of the claimant’s vehicle; dispute as to whether the degree of permanent impairment as a result of injuries to the visual system caused by the accident is greater than 10%; Medical Assessor (MA) determined that the claimant’s visual disturbance due to conversion insufficiency was caused by the accident and his visual snow, cortical and subcortical and visual abnormality, photophobia and presbyopia were not caused by the accident and assessed the whole person impairment (WPI) to the visual system at 5% with no pre-existing or subsequent causes; claimant sought review; Held – Panel found that whilst there is no evidence that the claimant suffered a head injury in the accident, convergence insufficiency can be related to chronic neck problems and there is consistent and contemporaneous evidence from the claimant and recorded in the treating medical records of the claimant suffering from continuing pain in the neck after the accident for which he has undergone extensive treatment; Panel was satisfied that the claimant suffered a deceleration injury to his neck in the accident and that this injury caused or materially contributed to his visual impairment due to his symptoms of convergence insufficiency, ghosting and double vision; the symptoms and ghosting from the convergence insufficiency is worsened under higher illumination which has caused the symptoms of glare intolerance; the symptoms of presbyopia and a small distance refractive error are not related to the accident and are constitutional in nature; the degree of permanent impairment as a result of the injury to the visual system assessed at 5% with no pre-existing or subsequent causes; certificate of MA confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Delaney dated |
REASONS
BACKGROUND
The claimant, Jeremy Begnell, suffered injuries in a motor vehicle accident on
19 November 2017. The claimant was the driver of a vehicle which was proceeding through an intersection when a vehicle being driven in a slip lane to the left of the claimant’s vehicle collided with the front passenger side of the claimant’s vehicle (the accident).The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
Allianz Australia Insurance Limited (the insurer), is liable for the driver of the vehicle which struck the claimant’s vehicle for liability to pay the claimant any damages under the MAC Act.
The present dispute between the parties is whether the “degree of permanent impairment as a result of the injury caused by the accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
The claimant alleges that he suffered impairment to the following body parts caused by the accident:
(a) cervical spine;
(b) skin – scarring, and
(c) visual system.
The Motor Accident Permanent Impairment Guidelines (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.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment certificate the subject of this review was conducted by Medical Assessor Delaney and is dated 16 November 2021. Medical Assessor Delaney found that the following injury was caused by the accident:
(a) visual disturbance due to convergence insufficiency.
Medical Assessor Delaney found that the following injuries were not caused by the accident:
(a) visual snow, cortical and subcortical and visual abnormality, photophobia and presbyopia.
Medical Assessor Delaney determined that the whole person impairment to the claimant’s visual system was 5% with no pre-existing or subsequent causes.
THE REVIEW
The application for review of the medical assessment to a Review Panel (the Panel) was made by the claimant on 1 March 2022.
On 20 April 2022, the President’s delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.[3]
[3] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14(F)(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s 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 Medical Assessor.[4]
[4] 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.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
On 9 August 2022, the claimant was examined by Medical Assessor on behalf of the Panel.
THE ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Delaney for assessment:
(a) injuries to the visual system as follows:
(i)visual snow;
(ii)visual disturbance;
(iii)cortical and subcortical and visual abnormality;
(iv)photophobia, and
(v)presbyopia.
Medical Assessor Delaney obtained a history from the claimant that he worked in his own business which involved the delivery of advertising material and that he had no visual problems before the accident.
Medical Assessor Delaney recorded that the claimant told him that he was wearing a seatbelt at the time of the accident when he was struck by another vehicle and that he recalled his car being knocked into the air at one stage and that it landed with a significant impact, but the airbags did not deploy. Following the accident, the claimant was in shock and he remained on the ground until the ambulance arrived, but then was able to walk and was transported home by his wife. On the same afternoon he attended the Norwest Private Hospital where he denied any head strike or head injury and a CT scan was carried out of his brain which showed no abnormalities.
With regards to further treatment, Medical Assessor Delaney records that the claimant subsequently attended Dr Samarawickrama describing fuzziness of his vision, but Dr Samarawickrama could not find any significant abnormalities and was unsure of Mr Begnell’s symptoms and no treatment was prescribed. This consultation occurred on 2 February 2018 and the claimant was then not reviewed by an ophthalmologist until seeing Dr Philip Myers on 31 August 2018 at which time he complained of snowing of the vision, photophobia and horizontal double vision. Dr Myers provided an opinion that he was suffering from cortical and subcortical visual abnormalities due to a closed head injury and that his eye movement disorder was likely to be due to probable brain stem trauma.
Medical Assessor Delaney notes that the claimant was assessed by the ophthalmologist, Medical Assessor Michael Steiner, to provide a certificate concerning whether treatment was reasonably necessary by the ophthalmologist and orthoptist. Dr Steiner concluded that the treatment investigations were reasonable and necessary to properly examine the patient presenting of the symptoms noted in his report. In the opinion of Dr Steiner there was a variable degree of double vision when focusing on close objects and the claimant was had presbyopia (a physical aging of change where the eye loses the ability to focus clearly on new objects) and that this is due to normal age changes, but that with the appropriate spectacles he could read the small print easily in both eyes. Dr Steiner also noted that the extra ocular muscle imbalances related to the closed head injury and visual snow has been reported following a motor vehicle accident.
A Review Panel, which included Medical Assessor Delaney, reviewed Dr Steiner’s findings and the Panel concluded it had not caused the assessable head injury as there was no evidence of the impact to the head nor cerebral insult nor any symptoms of head injury.
The Panel noted that “extra ocular muscle imbalance can occur in the absence of any head strike as the result of sudden neck movement or spinal movements and these were likely to have occurred in the accident”. The Panel concluded that they could not exclude these symptoms as presented to the treating doctors and therefore they found that the investigation and treatment in relation to the claimant’s eye conditions and complaints were reasonable and necessary. After being treated by the ophthalmologist, Dr Samarawickran and Dr Myers and the orthoptist, Leanne Cox, for optic treatment, the claimant was eventually prescribed weak distance glasses as well as reading glasses in the initial trial of prisms in the glasses was not satisfactory and a pair of single vision distance glasses and near glasses were prescribed. Medical Assessor Delaney notes that the claimant told him that these significantly reduced his symptoms of double vision and difficulty focusing on close objects.
In the opinion of Medical Assessor Delaney, the claimant’s presbyopia was not caused by the accident.
In the opinion of Medical Assessor Delaney, the claimant’s symptoms of conversion insufficiency have not been caused by a specific brain injury but rather a disturbance of the ocular muscle coordinating the system caused by the effect of sudden neck or spinal movements in the accident as documented in the Review Panel’s determination, which concluded that these injuries were likely to have occurred in the accident.
In the opinion of Medical Assessor Delaney, the claimant’s symptoms of visual disturbance are due to his convergence insufficiency and weakness, and his symptoms of presbyopia are due to normal psychological age or changes. His glare intolerance is a non-specific response to various effects of head injuries, but there is no impairment of the visual system, nor any ocular cause for the photophobia. In addition, there is no documented cause for symptoms of visual snow nor any other evidence of cortical or subcortical and visual abnormality as the claimant did not have a head strike, or any evidence of a closed head injury.
Medical Assessor Delaney concluded that the claimant’s visual disturbance due to conversion insufficiency was caused by the accident, and the claimant’s visual snow, cortical and subcortical and visual abnormality, photophobia and presbyopia were not caused by the accident.
Medical Assessor Delaney assessed the whole person impairment to the claimant’s visual system caused by the accident at 5% with no pre-existing or subsequent causes.
THE ASSESSMENT OF MEDICAL ASSESSOR MEAKIN
There was a separate application for assessment of the dispute in relation to the whole person impairment arising from the following injuries:
(a) cervical spine – soft tissue injuries;
(b) disc rupture at C5/6;
(c) aggravation of degenerative change in adjacent cervical discs, and
(d) skin - scarring.
That application was referred for determination to Medical Assessor Meakin. Medical Assessor Meakin examined the claimant and issued a certificate dated 15 June 2021 certifying that the above injuries were caused by the motor accident and that the whole person impairment arising from the injury to the claimant’s cervical spine is 25% with no pre-existing or subsequent causes. Medical Assessor Meakin assessed the whole person impairment arising from the claimant’s scarring at 0%.
The insurer lodged an application for review of the assessment certificate of Medical Assessor Meakin on the basis that the assessment was incorrect in a material respect. On 19 April 2022, the President’s delegate accepted the review application and referred it to a Review Panel.
The Review Panel which was constituted to determine the review of the certificate of Medical Assessor Meakin is a different panel to that which was allocated for determination of the review application in relation to Medical Assessor Delaney’s certificate. It comprises of Member Thompson and Medical Assessors Dixon and Cameron.
STATUTORY PROVISIONS AND 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 [BG1] “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 (MAC) 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 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 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. In particular, ss 5D and 5E of the CL Act apply to the MAC Act.[7] In Raina v CIC Allianz Insurance Ltd[8] 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 theCivil Liability Act 2002 (NSW), ss. 5D 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.”
[7] See s 3B(2) of the CL Act.
[8] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE PANEL
The Panel issued directions requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the Review.
In response to these directions, the insurer uploaded to the portal at AD5 an index and bundle of documents paginated from pages 1 to 425 (IB). The claimant uploaded to the portal at AD6 a bundle of documents paginated from pages 1 to 59 (CB).
The Panel has read and considered the documentation relied upon by the parties on this review as identified in paragraphs 38 and 39 above in making its findings and determinations.
SUBMISSIONS
Insurer’s MAS 2A Submissions[9]
[9] IB p 1.
These submissions were lodged by the insurer in relation to the MAS 2A Application and primarily relate to the claimant’s physical injuries other than his vision impairment.
They refer to the assessment of Medical Assessor Michael Steiner in respect of the treatment dispute in relation to the claimant’s eye complaints dated 5 June 2019. The insurer notes in particular that Medical Assessor Steiner accepted that the claimant’s eye complaints were caused by a closed head injury sustained in the accident despite the fact that when examined by ambulance service staff at the scene of the accident, the claimant denied sustaining an injury, and when he attended Norwest Hospital on the evening of the accident he denied any head strike, head injury or visual disturbance.[10]
[10] IB p10 paragraph 4.14.
The insurer applied for a review of Medical Assessor Steiner’s Certificate which was referred to a Review Panel which concluded that the subject accident had not caused an assessable head injury as there was no evidence of a significant impact to the head or a cerebral insult, nor any other symptoms of head injury.
That Review Panel noted that ocular muscle imbalance can occur in the absence of any head strike and can result from a sudden neck or spinal movements and that these were likely to have occurred in the claimant’s accident, and it determined that it could not exclude these symptoms as presented to the treating doctors as being related to the accident, and found that the treatment received in respect of the claimant’s eye complaints and required in the future was/is related to the subject accident and reasonable and necessary.[11]
[11] IB p12 paragraph 4.23.
In these submissions the insurer disputes the findings of Medical Assessor Steiner and the Review Panel and maintains that the claimant’s eye complaints were not caused by the accident.
The insurer submits that if the Guidelines were applied to the treatment dispute, the Review Panel would have been found to have applied the incorrect test of causation.
The insurer submits that the Review Panel in the present case adopted a similar approach to the issue of causation as was adopted by the Review Panel in Allianz Australia Insurance Limited v Mackenzie and Ors;[12] however, unlike the Review Panel in Mackenzie, the Review Panel in the present case were not addressing the issue of permanent impairment and as such the Guidelines did not apply. It submits that the Guidelines will apply to any assessment under the subject application and as such the Medical Assessor must consider the issue of causation of the claimant’s eye complaints in accordance with the Guidelines.
[12] [2014] NSW SC67.
The insurer submits that if the Guidelines are properly applied, the Medical Assessor will find that in the absence of the claimant sustaining any head or brain injury in the subject accident, his eye complaints were not caused by the subject accident, and in support of this position the Insurer relies upon the following:
(a) the ambulance report which recorded that the claimant self extricated immediately following the accident and denied sustaining any injuries;
(b) the Norwest Private Hospital records relating to the claimant’s attendance on the afternoon of the subject accident at which time he denied any head strike or head injury and examination did not reveal any evidence of a head injury, and further the claimant denied any visual disturbance, and
(c) Dr Siri-Wardena’s records which reveal that the claimant did not report any closed head injury on the day following the accident and did not complain of problems with his vision until consultation on 15 January 2018, almost two months post accident.[13]
Insurer’s MAS 5A Submissions[14]
[13] IB pp 15-16.
[14] IB p 406.
These submissions were lodged by the insurer in support of its application for the review of the Certificates of Medical Assessors Meakin and Delaney. They address Medical Assessor Delaney’s certificate at paragraphs 5 and 6.[15]
[15] IB pp 415-419.
The insurer notes that Medical Assessor Delaney accepted that the claimant’s vision disturbance was related to convergence insufficiency and weakness and was caused by the subject accident.
It submits that it is clear from Medical Assessor Delaney’s Certificate that he adopted the same reasoning as the Review Panel’s determination in relation to the review of Medical Assessor Steiner’s Certificate, where the Review Panel ultimately found that they “could not exclude these symptoms, as presented to the treating doctors as being related to the accident”.
It submits that whilst the Review Panel’s findings were in relation to a treatment dispute and as such were not required to undertake their assessment in accordance with the Guidelines, Medical Assessor Delaney was required to undertake his assessment in accordance with the Guidelines.
The insurer submits that if the Guidelines applied to the treatment dispute, the Review Panel in that matter would have been found to have applied the incorrect test of causation, referring to the decision in Mackenzie. It submits that Medical Assessor Delaney was tasked with assessing permanent impairment and as such was required to follow the Guidelines and could not merely adopt the findings on causation made by the Review Panel in relation to Medical Assessor Steiner’s Certificate, which clearly reversed the onus of proof by accepting on the face of insufficient evidence to the contrary that the claimant did sustain an eye injury as a result of the subject accident.[16]
[16] IB p 418 paragraph 5.2.
In relation to causation, whilst the insurer accepts that Medical Assessor Delaney considered the medical determination of causation, ie. that the accident could have caused the injury to the visual system, it submits that Medical Assessor Delaney has not adequately addressed the non-medical determination, being that the accident did cause an injury to the visual system.
In support of this, the insurer submits that Medical Assessor Delaney did not have adequate or any regard to the lack of clinical evidence of eye complaints in the period immediately following the accident and that there is no record in the Certificate of Medical Assessor Delaney having taken a history from the claimant as to when exactly his eye complaints commenced. He did not take a history of the onset of eye complaints and only recorded that the claimant told him that he saw two ophthalmologists and was referred to an orthoptist for orthoptic treatment.
The insurer submits that without having taken any history of the onset of eye complaints, Medical Assessor Delaney has not turned his mind to the non-medical determination, that is that the accident did cause the claimant’s eye complaints, and that this constitutes a material error.
The insurer submits that if Medical Assessor Delaney had regard to the Guidelines, he would have found that causation of the claimant’s eye complaints was not made out and as such any impairment relating to these complaints was not related to the subject accident.
Claimant’s MAS 5R Submissions[17]
[17] CB p 1.
These submissions were relied upon by the claimant in response to the insurer’s application for a review of both Medical Assessor Meakin’s and Medical Assessor Delaney’s Certificates.
With regards to Medical Assessor Delaney’s Certificate, the claimant submits that Medical Assessor Delaney was one of several members of the Commission to find a nexus between the claimant’s visual impairment and the accident. It also submits that this nexus was found by Medical Assessor Steiner and was subsequently confirmed by a Review Panel which included Medical Assessor Delaney.
The claimant submits that the foundation for the causation finding was that the claimant had no prior symptoms or complaints before the accident and that within days of the accident he complained of dizziness.
The claimant submits that the diagnosis of visual snow is arrived at by each of the Medical Assessors independently and that it has been and remains a consistent diagnosis.
The claimant refers to the insurer’s complaint that there is a material error in Medical Assessor Delaney’s Certificate because he adopted the same reasoning in finding causation when assessing whole person impairment as the Review Panel did.
The claimant submits in response to this that by deferring to the Review Panel Certificate, Medical Assessor Delaney was only adopting the summary of the objective evidence supporting the diagnosis and causation, and that he independently addressed the issues of diagnosis and causation between paragraphs 25 and 27 of the certificate and that these reasons are sound.
The claimant further submits that even if this position is wrong, and even if the insurer establishes a technical error, the insurer is fundamentally unable to establish that the error is material because there is a uniform diagnosis of finding of causation, that finding is informed by common law, and, even if not expressly said so, accords with the Guidelines and a further assessment will not materially change the outcome.
Insurer’s submissions in response to the claimant’s reply submissions[18]
[18] IB p 421.
These submissions were relied upon by the Insurer in reply to the claimant’s MAS 5R submissions.
They address Medical Assessor Delaney’s certificate at paragraph 3. The insurer notes the claimant’s allegation that Medical Assessor Delaney did not follow the findings of the Review Panel in relation to Medical Assessor Steiner’s certificate on causation and merely adopted the summary of the objective evidence supporting the diagnosis and causation, and the claimant’s allegation that Medical Assessor Delaney independently addressed issues of diagnosis and causation.
The insurer disputes these contentions and maintains that it is clear from Medical Assessor Delaney’s certificate that he has adopted the same reasoning as the Review Panel who are not bound by the Guidelines. The insurer again submits that the finding of the Review Panel in relation to Medical Assessor Steiner’s Certificate that they could not exclude the claimant’s ongoing eye complaints and symptoms as presented to the treating doctors as being related to the accident did not comply with the Guidelines and that this error is material because if it was rectified it would be found that the claimant’s visual complaints were not caused by the subject accident.
RE-EXAMINATION
The claimant was examined by Medical Assessor Wechsler on 9 August 2022. The examination report is as follows:
“Mr Begnell saw me on the 9 August 2022 at my office in Burwood. He was unaccompanied.
General history(a) Date of Injury
19 November 2017.
(b) Patient’s Principal Visual Complaints
Visual disturbance where he sees snow in his visual fields.
Glare intolerance improved slightly with photochromatic glasses.
Ghosting of images which increase in all directions of gaze.
Mr Begnell wears near and distance glasses, which help to minimise the symptoms of visual snow and seeing ghosting of images.(c) Job Description/Employment/Background
Mr Begnell is currently doing domestic duties since March 2022. He has previously worked as a security guard for twenty-one months but has discontinued this work because of extreme fatigue. Prior to the motor vehicle accident Mr Begnell ran his own business with his wife delivering pamphlets. Since the motor vehicle accident he was unable to work in this capacity and the business had to be discontinued twelve months after the motor vehicle accident as his wife could not continue working in the business in a solo capacity.
After Mr Begnell obtained the Higher School Certificate. He worked in a post office until 2004 when he started running his business with his wife.(d) Pre-existing Medical Conditions
Nil.
Mr Begnell has had no ophthalmic problems before the motor vehicle accident. He has not required glasses. In particular, Mr Begnell did not suffer from headaches whilst studying for the HSC or running a business or working at the post office. Mr Begnell could do prolonged reading before the motor vehicle accident.(e) Subsequent Medical Conditions
Nil.
Clinical history and treatment
On the 19 November 2017 Mr Begnell was driving a car when it was hit by another car and landed at 45º. Mr Begnell does not remember the impact but remembers finding himself at 45º to the horizontal. He does not recall a direct head injury and he remembers extricating himself from the car. He was wearing a seatbelt at the time but the air bags were not deployed, possibly due to the car being airborne before landing at 45º. He had an abrupt deceleration injury.
When he extricated himself from the car, he was examined by the ambulance team for forty minutes. Initially Mr Begnell felt all right but “in a state of shock” and his wife took him home.
Two or three hours after the motor vehicle accident, Mr Begnell noticed he could not lift his arm above the horizontal and he developed increasing neck pain. Ten hours after the accident he experienced overwhelming high neck pain where the neck joins the brain at the occipital area. He described the pain as if his neck was on fire. Mr Begnell was admitted to Norwest Private Hospital where MRI scans and CT scans were made of the brain and the neck and he was given narcotic analgesia. Mr Begnell stayed overnight and became a frequent visitor to Norwest Hospital for increasing opiate or narcotic analgesia.
Two weeks after the motor vehicle accident, this severe neck pain was finally manageable, and this coincided with Mr Begnell experiencing other symptoms which were not noticeable before because of this overwhelming neck pain. Two weeks after the motor vehicle accident, Mr Begnell noticed he had ringing of the ears or tinnitus. He also had a visual disturbance where he saw snow over his entire visual field.
Mr Begnell describes this as if looking through a windscreen when it is raining but the window wipers do not work. Mr Begnell also noticed he had increasing glare intolerance and that he had ghosting of images. He did not have frank double vision but when he looked at an object he saw a ghost immediately next to it. This ghosting of image increased when he looked away from the primary position in any of the directions of gaze. The separation of the ghost was horizontal when he looked in the horizontal direction and vertical when he looked in the vertical direction or oblique when he looked in the oblique direction. These visual symptoms have persisted unchanged to this day.
In January 2018, Mr Begnell consulted an optometrist who prescribed reading glasses which did not alter his symptoms. He subsequently saw his general practitioner, who referred him to an ophthalmologist, Dr Samarawickrama, whom he saw on 2 February, 2018. This ophthalmologist could not find an ophthalmic anomaly and suggested clinical ophthalmic surveillance and to be reviewed in six months.
Mr Begnell’s visual symptoms persisted unabated, so he saw another ophthalmologist in the same practice, a Dr Phillip Myers, on 31 August, 2018. Dr Myers concluded that Mr Begnell was suffering from cortical and subcortical visual anomalies due to a closed head injury from the motor vehicle accident. Dr Myers also noted an eye movement disorder which was likely to be due to probable brain stem trauma.
Dr Myers noted that Mr Begnell had convergence insufficiency as well which was related to his neck injury or possible brain trauma from the motor vehicle accident.
Dr Myers referred Mr Begnell to an orthoptist, a Ms Liane Wilcox, for exercises to strengthen this convergence. Mr Begnell found these convergence strengthening exercises impossible to do both mentally and physically.
Dr Myers suggested prisms as well but Mr Begnell was concerned that the prisms could not be incorporated into his wraparound glasses which have a photochromatic tint which partially improves his symptoms of visual snow and ghosting of images.
Mr Begnell has been under the care of the orthopaedic spinal surgeon, Dr Hsu, because of his intense headaches and has had two operations. The first neck operation was in May 2018 in the form of a C5/6 and C6/7 ACDF (anterior cervical decompression and fusion) but he still had persistent headaches. Dr Hsu then performed a C4/5 guided injection in December 2018 which gave the Claimant temporary relief and finally he had a very successful neck operation where the vertebrae between C3 and T1 were fused in May 2019. This second operation cured his headaches.
Since the motor vehicle accident, Mr Begnell has only been able to read for twenty minutes and he finds this mentally and physically exhausting and gives up reading.
Mr Begnell was given two pairs of glasses, a distance wraparound glasses with photochromatic tint, and reading glasses, which have slightly improved his symptoms.Current status
Mr Begnell has persistent symptoms of visual snow previously described. These symptoms have become more manageable with his photochromatic tinted glasses.
Mr Begnell has persistent symptoms of glare intolerance which has become more manageable with his wraparound tinted photochromatic glasses.
Mr Begnell has persistent symptoms of ghosting of images where the separation of the ghost from the original seems to increase with any direction of gaze. When he looks horizontally the separation of the ghosts with the original target is horizontal whereas if he looks vertically the separation becomes vertical. Mr Begnell does not have frank symptoms of double vision provided he wears the appropriate glasses. Mr Begnell has persistent tiredness whilst reading and can only read for twenty minutes even with his reading glasses and he cannot absorb the reading material and gives up the reading. He had none of these symptoms prior to the motor vehicle accident. Mr Begnell dates the onset of symptoms from two weeks after the motor vehicle accident and feels that the symptoms would have been present even earlier but the two weeks after the motor vehicle accident was so clouded with the intense pain that he was not aware of any other aspects of his body in that critical two week period.
Other relevant conditions
Mr Begnell has symptoms of tinnitus which has been attributed to the motor vehicle accident. Mr Begnell had severe neck pain responding to the second neck surgery.
Mr Begnell has treatment for PTSD and chronic fatigue. Mr Begnell uses antihypertensives because of anxiety induced raised blood pressure and he is currently using Propranolol and an anti-depressant called Valdoxan, which helps him sleep.
Examination findings
Mr Begnell’s distance vision without correction was 6/6-2 for the right eye and 6/6-1 for the left eye.
With his current spectacle correction he could see 6/6 in both eyes.
Mr Begnell’s near vision without correction was J12 for the right eye and J12 for the left eye.
With his near vision correction, Mr Begnell could see J6 for the right eye and J4 for the left eye.
With a +2.0 dioptre right and left sphere, Mr Begnell could see J1 for the right eye and J1 for the left eye.
Mr Begnell uses a minor astigmatic hypermetropic correction for distance glasses which is +0.50 sphere and a +0.25 cyl at 98º for the right eye and for the left eye there is a +0.50 sphere with a +0.25 cyl at 9º.
On testing the pupils, they were equal and central and responded normally to direct and consensual light stimulae and accommodation stimulae.
The extraocular movements were full apart from convergence.
On cover testing, the eyes were straight for distance but there was an exophoria for near with and without glasses.
There is marked decrease in convergence. These signs are indicative of convergence insufficiency. There were no true symptoms of double vision but symptoms of ghosting. My attempts to plot fields of binocular single vision on a bjerrum screen at one metre was inconclusive, but with his glasses Mr Begnell could see clearly without double vision, but he had ghosting of images in all directions of gaze.
All these clinical features are indicative of convergence weakness or convergence insufficiency.
There was no sign of any cranial nerve palsy affecting the extraocular muscles or eye movements except for the decreased convergence which is not related to a cranial nerve palsy.
The ocular adnexae were normal and, in particular, there was no infero orbital nerve anaesthesia which is sometimes seen in blowout fractures of the orbit.
The conjunctiva and the cornea were normal.
The anterior chamber was quiet with no evidence of uveitis.
The media examination was normal.
The retinal examination was normal.
The ocular pressures were normal being 15mm/Hg in both eyes.
Visual fields to confrontation were normal.
The colour vision was normal.
Stereoscopic vision was normal.
An ocular coherent tomogram showed normal macular, optic disc and ganglion cell morphology.Opinion and diagnosis and causation
Mr Begnell has persistent symptoms of ghosting of images and difficulty reading for more than twenty minutes. When I examined his extraocular movements there was decreased convergence and there was an exophoria or latent divergent squint for near both with and without his glasses. These signs of decreased convergence and exophoria for near are diagnostic of convergence insufficiency.
Convergence insufficiency is a weakness in the ability to hold both medial rectae at the near point to do prolonged reading. Mr Begnell says that he observed that his symptoms of convergence insufficiency started two weeks after the motor vehicle accident, but in my view they could have started within that two weeks as he was completely incapacitated with severe neck pain requiring admission to hospital. It is of particular note that Mr Begnell had no symptoms of convergence insufficiency prior to the motor vehicle accident. Convergence insufficiency often presents in teenagers when they are studying for exams like the Higher School Certificate. It is noteworthy that Mr Begnell had no symptoms while studying as a teenager and his only symptoms of reading intolerance or ghosting of images occurred two weeks after the motor vehicle accident.
Convergence insufficiency can be related to chronic neck problems as the patient has difficulty holding the eyes at the near point for reading because of severe neck pain. It is noteworthy that Mr Begnell gives a history of an abrupt deceleration injury which resulted in a neck injury. This is consistent with the contemporaneous clinical records of the Claimant’s treatment post accident and the consistency of his complaints of neck pain. On the balance of probabilities, the motor vehicle accident caused a deceleration injury to the upper part of the neck which precipitated Mr Begnell’s convergence insufficiency. This convergence insufficiency explains Mr Begnell’s ghosting of images which increases in all directions of gaze as well as Mr Begnell’s inability to read for more than twenty minutes.
Convergence insufficiency symptoms usually arise in the teenage years associated with increasing study at school. Mr Begnell has been free of convergence insufficiency symptoms all his life until two weeks after the motor vehicle accident when his pain from his neck was finally controlled. I am satisfied that the injury to the Claimant’s neck in the accident caused or materially contributed to his visual impairment due to convergence insufficiency.
Mr Begnell has symptoms of snowing of his visual fields which has occurred two weeks after the motor vehicle accident. Symptoms of snowing of the visual fields have been documented and the cause is unknown. I am not satisfied that there is sufficient evidence to conclude that the symptoms of visual snow were caused or materially contributed to by the motor vehicle accident.
Mr Begnell’s symptoms of glare intolerance did occur two weeks after the motor vehicle accident. Apart from the convergence insufficiency, I could not find any other cause for the glare intolerance. It is likely and medically plausible that the symptoms of ghosting from the convergence insufficiency is made worse with higher illumination and this would give rise to Mr Begnell’s symptoms of glare intolerance.
Mr Begnell has developed a small refractive error for distance and he has developed presbyopia where he needs reading glasses. Mr Begnell does require even stronger reading glasses than he is currently wearing. The onset of presbyopia tends to occur at the age of 45 and Mr Begnell is 46. It is my opinion that Mr Begnell’s symptoms of presbyopia and his small distance refractive error are not related to the motor vehicle accident and are constitutional in nature.
Consistency of presentation and conclusion
Mr Begnell’s history and examination is consistent with all the information in the enclosures.
My conclusion is that Mr Begnell’s symptoms of ghosting and poor reading tolerance is directly related to convergence insufficiency which was precipitated by his neck injury resulting from the motor vehicle accident on 19 November 2017.
Mr Begnell’s symptoms of presbyopia and a small distance refractive error are not related to the motor vehicle accident and are constitutional in nature. Mr Begnell’s symptoms of seeing snow in the visual fields cannot be directly attributed to the motor vehicle accident due to lack of evidence.
Further treatment and prognosis
Mr Begnell was not able to tolerate the orthoptic exercises and was reluctant to have his glasses altered with prisms. I doubt if prisms in his glasses would help the symptoms. He does not have frank double vision but symptoms of ghosting of images. Mr Begnell’s convergence insufficiency will persist for the foreseeable future, but I do not anticipate his symptoms deteriorating further. I do not anticipate any further visual problems for Mr Begnell.
Stability of injury
Mr Begnell’s visual symptoms have not changed since two weeks after the motor vehicle accident. I do not anticipate any further change in his convergence insufficiency and I would regard his injury as stable.Assessment of permanent impairment of vision
As stated in clause 1.242 of the Guidelines, the American Medical Association Guides to Evaluation of Permanent Impairment Fourth Edition (AMA4) is used for the assessment of permanent impairment of the visual system. In clause 1.243, it is noted that if the injured person was not wearing glasses at the time of the injury the uncorrected vision must be used for WPI calculations.
Hence, I will use the AMA4 for calculation of Mr Begnell’s whole person impairment and I will use Mr Begnell’s uncorrected right and left distance vision for WPI assessment.
As Mr Begnell has reached the presbyopic age group, I will use Mr Begnell’s corrected near vision for both eyes.
Mr Begnell has no problem with visual acuity or visual field.
Mr Begnell’s symptoms of diplopia are not frank double vision but ghosting of images.
In view of Mr Begnell’s persistent symptoms of ghosting of images due to convergence insufficiency, I assess 5% visual impairment to the right eye and 5% impairment of the vision in the left eye (see para 3, p 8/209 AMA4).
Therefore, there is a 5% visual loss in the right eye and a 5% visual loss in the left eye.
A 5% visual loss in the right eye combines with a 5% visual loss in the left eye resulting in 5% visual system impairment in both eyes (see table 7, p 8/219 AMA4).
A 5% impairment of the visual system results in a 5% whole person impairment (see table 6, page 8/218 AMA4).
Therefore, the total assessed whole person impairment arising from the injury to the visual system is 5%.
Body Part or system Date of Injury AMA 4 Guides Chapter 8, Page/Table Current % WPI % WPI from pre-existing OR subsequent causes Total % WPI Visual System 19/11/2017 para 3, p 8/209
table 7, p 8/219
table 6, p 8/2185% 0% 5% Summary
Mr Begnell has suffered convergence insufficiency which has resulted in 5% whole person impairment to his visual system. This has resulted as a complication of his neck injury which occurred as a result of a motor vehicle accident on 19 November 2017.”
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[19] and Insurance Australia Ltd v Marsh.[20]
[19] [2021] NSWCA 287 at [40], [41] and [45].
[20] [2022] NSWCA 31 at [11], [21], and [64].
The Panel adopts the examination report of Medical Assessor Wechsler in its reasons and adds the following further reasons.
Causation
The Panel disagrees with the submission of the insurer that if the Guidelines are properly applied there will be a finding that, in the absence of the claimant sustaining any head or brain injury in the accident, his eye complaints were not caused by the accident.
Whilst the Panel agrees that there is no evidence the claimant suffered a head injury in the accident, it is the opinion of the Panel that convergence insufficiency can be related to chronic neck problems.
There is consistent and contemporaneous evidence from the claimant and recorded in the treating medical records of the claimant suffering from continuing pain in the neck after the accident for which he has undergone extensive treatment.
The Panel is satisfied that, on the basis of the evidence in relation to the circumstances of the accident and the clinical and treating records relied upon by the parties, that the claimant suffered a deceleration injury to his neck in the accident and that this injury caused or materially contributed to his visual impairment due to his symptoms of convergence insufficiency, ghosting and double vision. Further, in the opinion of the Panel, on the balance of probabilities, the claimant’s symptoms and ghosting from the convergence insufficiency is worsened under higher illumination which has caused the claimant’s symptoms of glare intolerance.
However, in the opinion of the Panel, the claimant’s symptoms of presbyopia and a small distance refractive error are not related to the motor accident and are constitutional in nature.
Impairment assessment
The Panel assesses that the degree of permanent impairment as a result of the injury to the claimant’s visual system caused by the accident is 5% with no pre-existing or subsequent causes.
CONCLUSION
For the above reasons, the Panel confirms the Certificate issued by Medical Assessor Delaney dated 16 November 2021.
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