Allianz Australia Insurance Limited v Cadden
[2023] NSWPICMP 197
•8 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Cadden [2023] NSWPICMP 197 |
| CLAIMANT: | Russell Cadden |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Michael Inglis |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 8 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant injured in a motor accident on 27 April 2018 when the vehicle in which he was travelling was struck from behind; his vehicle was pushed forward and collided with the guardrail on the front lefthand side of the road in front of him; claimant alleged injury to the cervical spine, lumbar spine, right shoulder, left shoulder and right knee; Medical Assessor (MA) Bodell on 7 April 2022 assessed the degree of whole body impairment (WPI) at 15%; the insurer requested a review; MA Bodell found that the claimant suffered injuries to the lumbar spine, cervical spine, bilateral shoulder injury and right injury; he assessed the claimant as having a 5% WPI in the lumbar spine, 0% in the cervical spine, 6% in the right upper extremity, 2% in the left upper extremity and 2% in the right lower extremity, a total of 15%; a re-examination was conducted by MA Oates; Dr Oates diagnosed soft tissue injuries to the claimed body parts with the exception of the left shoulder; the claimant acknowledged that his left shoulder was not injured; in terms of WPI, Dr Oates assessed 5% of the lumbar spine and 5% of the right shoulder only; the Panel was required to form its own opinion; Insured Australia Group Limited v King and Insured Australia Group Limited v Marsh; Held – having regard to all the material before it, including the absence of reference to injuries to the right knee and left shoulder in the claim form, the Panel determined to revoke the certificate of Dr Bodel and determined that the injuries caused by the motor accident gave rise to a WPI not greater than 10%. |
| DETERMINATIONS MADE: | Medical Assessment – Whether the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is greater than 10%. Review Panel Assessment of whether the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is greater than 10%. Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act) 1. The Review Panel revokes the certificate dated 7 April 2022 (and issues a new certificate determining that the degrees caused by the motor accident give rise to a whole person impairment not greater than 10%.) |
REASONS
Background
Russel Cadden (the claimant) suffered injury on 27 April 2018 when the insured vehicle struck the rear of the claimant’s vehicle from the rear. The claimant’s vehicle was pushed forward and collided with the guardrail on the front left-hand side of the road in front of him.
The airbags were not deployed. The claimant says that his vehicle bounced off the railing on the left-hand side and then bounced into a car beside him on the right.
Allianz Australia Insurance Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay Mr Cadden any damages and/or statutory benefits under The Motor Accident Injuries Act 2017 (the MAI Act).
The issues in dispute are whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.
Mr Cadden alleges that he suffered permanent impairment to the following body parts caused by the motor accident:
(a) cervical spine;
(b) lumbar spine;
(c) right shoulder;
(d) left shoulder, and
(e) right knee.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the guidelines).
The guidelines are issued pursuant to s 10.2 of the MAI Act. The guidelines adopt the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the guidelines, the guidelines are definitive.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Bodel and dated 7 April 2022. The Medical Assessor assessed the degree of permanent impairment at 15%.
The details of the assessment are set out later in these Reasons.
The Review
The application for referral of the medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for the medical assessment for which the review is sought.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
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 decisionmaker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the 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.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
All Panel members have had no previous involvement with the claimant or with this matter.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl14F(2) of the PIC Act, the panel consists of two Medical Assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the 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 Reviewer or a Medical Assessor.
Rules 127 to 130 of the PIC Rules are made pursuant to Part 5B 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.
The review is by way of new assessment of all matters with which the medical assessment is concerned.
Statutory Provisions
Assessment under review
Medical Assessor Bodel provided a medical assessment dated 7 April 2022. The Medical Assessor determined that the claimant sustained soft tissue injury to the cervical spine, a soft tissue injury to the lumbosacral spine with a possible cartilaginous endplate injury, a partial thickness tear of the rotator cuff in the right shoulder and possibly in the left shoulder and an articular cartilage damage in the retropatellar region causing painful retropatellar crepitus in the right knee. The diagnosis of rotator cuff pathology in both shoulders was made absent any scans being available to Dr Bodel.
Medical Assessor Bodel undertook a whole person impairment (WPI) assessment on 24 March 2022. He was asked to assess injuries to the lumbar spine, cervical spine, bilateral shoulders, and right knee.
The claimant gave a history of the accident and informed Dr Bodel that that he had an immediate onset of neck and right shoulder girdle pain, lower back pain, and right knee pain.
He also reported a contusion to the right ankle at that time that settled within a few weeks.
Dr Bodel noted that the claimant was taken by ambulance to Blacktown Hospital where he was observed for a period. It was recorded at that time that he had, “no head injury, no neck pain, neurological symptoms, back pain, and right knee pain”.
Dr Bodel found that the claimant suffered injuries to the lumbar spine, cervical spine, bilateral shoulder injury, and right knee injury. He assessed the claimant as having a 5% WPI in the lumbar spine, nil % in the cervical spine, 6% in the right upper extremity, 2% in the left upper extremity and 2% in the right lower extremity, a total WPI of 15%.
MATERIAL BEFORE THE REVIEW PANEL
No material was provided by the claimant or the insurer other than the documents that had been uploaded onto the portal.
Claim form
The claim form dated 17 May 2018 specified the injuries as being:
“Findings:
L5/S1 level: Mild posterior disc bulge with mild impingement on the left S1 nerve root in the lateral recess noted.
L4/L5 level: Mild posterior disc bulge noted at this level with impingement on both L5 nerve roots in the lateral recess.”
Qualified opinions
Dr Evan Dryson, occupational physician, provided two reports dated 24 September 2020 and a further report dated 20 January 2021.
At the time of his examination of the claimant on 18 September 2020, Dr Dryson records complaints of symptoms only in relation to the neck and the lower back. In relation to the neck, Dr Dryson noted that rotation to the right was minimal, rotation to the left was half of the normal distance. Lateral flexion to the right was a little under half of the normal distance and to the left was a little over half of the normal distance. Extension was near-normal.
Flexion was half of the normal distance.
In relation to the low back, Dr Dryson reported that forward flexion was normal. Lateral flexion was mildly reduced and on the right hand was half of the normal distance on the left.
Extension was normal. Rotation was normal in both directions.
Dr Dryson also reported findings in relation to the lower limbs in the following terms.
“He reported decreased pinprick sensation in the right foot, in the second, third, and fourth toes, i.e., the L5 distribution. There was no weakness of L5 muscles or any other muscles.
Straight leg raising caused pain on the right at 45 degrees of elevation. Knee flexes were normal. There was some reduction in the right ankle reflex and the left was normal.”
Dr Dryson diagnosed aggravation of cervical spondylosis and aggravation of lumbar spondylosis with possible radiculopathy.
In his second report of 24 September 2020, Dr Dryson assessed DRE Cervicothoracic Spine Impairment Category II (AMA 4, page 3/110, Table 73) in that there were signs and symptoms of injury without radiculopathy. This he equated at 5% WPI.
In relation to the lumbar spine, Dr Dryson opined that the claimant met the criteria for Lumbosacral Spine Impairment Category II (AMA 4, page 3/110, Table 72) in that there were signs and symptoms of injury. As radiculopathy was not confirmed, he assessed WPI in respect of the lumbar spine at 5%.
In his report of 20 January 2021, Dr Dryson amended his WPI assessment in relation to the low back. That amendment followed enquiry from the claimant’s solicitor. In that report, Dr Dryson said relevantly:
“I have had a further look at my clinical findings. I did note a reduced right ankle reflex. I noted that this is served by the S1 nerve root.
Also, I noted altered sensation in the right foot involving the second, third and fourth toes, which I thought conformed to the L5 nerve root distribution; however, there is some overlap in dermatomes and the fourth toe would certainly be considered to represent an S1 innervation. I agree therefore that Mr Cadden can appropriately be assessed as meeting the criteria for Lumbosacral Spine Impairment Category III
(AMA-4, page 3/110, Table 72). This equals 10% whole-person impairment.”
There was also an assessment by Dr Anil Nair wherein he indicated that he was of the view that the claimant had a DRE Lumbar Category III level of accessible impairment with a 12% WPI.
In the cervical spine, he also found a DRE Cervical Category III level with a 15% WPI, giving a total of 25% WPI overall when these two are combined using the Combined Values Charts in the circumstance. As Dr Bodel noted in his report, Dr Nair’s assessment appears to be a possible work-related assessment, and there did appear to be the error of 12% for DRE Lumbar Category III rating, which should have been 10%.
Dr Robert Breit, orthopaedic surgeon, reported to the insurer on 1 December 2020. In his report, he records that the claimant provided a history that when he was taken to Blacktown Hospital immediately after the accident, he had neck and spinal pain as well as right knee pain where it had hit the dash.
Dr Breit also recorded at the time of his examination a complaint of low back pain and that the right leg was said to be weak although the claimant had no difficulties with squatting, but when he was kneeling, he would mainly weight bear on the left. Dr Breit also recorded a history of complaint of occasional neck pain and right shoulder pain.
Dr Breit records the following findings on examination:
“In the lumbar spine, there was generalised low tenderness over the region of the right L4-5 and L5/S1 facet joints as well. There was no tenderness in the cervical spine, no spasm and symmetrical loss of movement by half. The situation was the same in the thoracic spine.
In the lumbar spine, there was generalised low tenderness over the region of the right L4-5 and L5/S1 facet joints as well. He was able to walk on heel and tiptoe. Forward flexion was to the bottom of the knees with symmetrical extension and lateral flexion. In a seated position he could fully extend both legs; however formal straight leg raising on the right was 45 degrees and on the left 60 degrees with no evidence of sciatic nerve root irritability.
Neurologically, there was global diminution of sensation in the right leg but the loss was varying intensity. There was also global weakness involving knee flexion extension and all groups below the knee. Reflexes were normal.
Left shoulder movements were normal. On the right side, he was tender over the acromioclavicular joint and there was some restriction at 140 degrees elevation, 40 degrees extension and 120 degrees abduction, 40 degrees abduction and 80 degrees rotation in both directions. Limitation was due to a combination of shoulder and trapezial pain. There was no crepitus, no evidence of impingement, normal rotator cuff strengths and adduction with overpressure did not produce acromioclavicular joint pain.
There was no abnormality in the right knee.”
Dr Breit assessed WPI in the cervicothoracic spine at 0% in relation to the lumbosacral spine, Dr Breit said that the appropriate category which was DRE Category II which equated to 5% WPI.
In relation to the right shoulder, Dr Breit opined that pursuant to paragraph 3.1(j) and figures 38, 41 and 44 that equated to 7% upper extremity impairment which converted to 4% WPI.
In relation to the right knee, he stated that in his opinion there was no criteria that would result in quantum impairment. Total WPI therefore equated to 9%.
Submissions
Insurer’s submissions
In relation to the cervical spine, the insurer submits that the claimant’s cervical spine injury does not exceed the WPI impairment threshold. It notes that the claimant did not list the cervical spine as an injury in the application for personal injury benefits. The insurer disputes the findings of Dr Anil Nair and relies upon the findings of Dr Breit on examination that “there was no tenderness in the cervical spine, no spasm and symmetrical loss of movement by half”.
Concerning the lumbar spine, the insurer submits that the opinion of Dr Breit is reflective of the most current medical evidence and that the claimant has been consistently diagnosed with a whiplash type injury to the lumbar spine. It is submitted that the appropriate assessment of WPI in the lumbar spine is a rating of 5%.
The injury to the right knee is in dispute. The insurer submits that the claimant did not sustain any injury to the right knee in the subject accident amounting to permanent impairment.
It is noted that the claimant did not allege injury to the right knee in his application for personal injury benefits nor have any of his treating practitioners diagnosed or treated injury to that region since the accident.
Dr Breit concluded “there was no abnormality in the right knee and no criteria result in quantum impairment”.
With regard to the right shoulder, the insurer submits that the injury attracts a 4% WPI, again relying on the report of Dr Breit.
Although we do not have a specific submission, we understand that the insurer contends that the claimant did not suffer any assessable injury to the left shoulder.
Claimant’s submissions
The claimant does not contend that there is any assessable impairment to the cervical spine.
In relation to the lumbar spine.
The claimant submits that any error in Dr Bodel’s assessment is not material and that the proper assessment of the impairment is a WPI rating of 5%.
Concerning the right knee, the claimant submits that the insurer’s own medico-legal expert accepts the presence of an injury to the right knee. It is noted that the clinical records of Westmead Hospital contain reference to a right knee injury and an X-ray taken on that day. The claimant submits in relation to the left shoulder, that whilst it is conceded that Dr Bodel does not address causation for the left shoulder injury in great detail, the claimant respectfully submits that he has discharged his duty under the MAI Act and guidelines.
It is submitted that the Medical Assessor was entitled to make a finding of injury to the left shoulder despite the alleged absence of contemporaneous complaints in the material. The Medical Assessor is not bound to fight against the claimant on the issue of causation to the left shoulder injury in an absence of clinical notes and would be falling into error if he did so.
RE-EXAMINATION
The claimant was examined by Medical Assessor Oates. The examination report is as follows:
RUSSELL CADDEN
DOB: XXXX1983
Date of Accident: 27 April 2018
Date of Assessment: 10 October 2022
Mr Cadden states he is right hand dominant.
Pre-accident medical history and relevant personal details
At the time of the accident, Mr Cadden said he worked as an electrical site supervisor on road widening projects for Endeavour Energy Group. He started with them in August 2005, transferring to assist a company called Oz Connect in 2016, then returning to Endeavour in early 2019.
When he went back to Endeavour in 2019 after the accident and tried to work on the tools, he could not manage the physical demands of this work involving carrying heavy tool boxes, ladders and pulling heavy cables. He applied for a project supervisor job, was successful and commenced this in September 2019. There is very little heavy lifting. He is based at Camden and works in that local region.
He has had no previous problems with the back, neck, shoulders or knees. His general health has been good. He did have childhood asthma from which he recovered. He gets hay fever and takes Zyrtec or Claratyne as required. He has had no operations.
There have been no subsequent accidents.
He separated from his wife two months ago and a daughter aged eight lives with him and younger daughters aged six and three live with their mother. He lives in a house with his daughter and two dogs. He didn’t pursue any sports or hobbies prior to the accident as he was too busy with work, just allowing time for family activity and keeping up the yard work.
Since the accident, he tried to start playing baseball and played six games, but not since last summer because it was stirring up his back for the next few days. He can do anything at home, however bending tasks and whipper-snipping will stir up his back afterwards.
History of the motor accident
Mr Cadden said on 27 April 2018, he was the seat-belted driver of a Forrester Subaru SUV. He was exiting the motorway but was banked up in traffic in Lane 1 of the through lanes. A following utility closed in on him at high speed. He was speaking to his supervisor on Bluetooth at the time of the accident. He tried to steer his vehicle to the left but the utility hit the right rear of his vehicle and pushed the left front of his vehicle against the concrete guardrail. The tail of the Forrester then spun out to the right 90° and hit the rear of a van, which was ahead of him in the traffic line heading for the exit.
Airbags deployed. His head struck the airbag. His right ear was buzzing. Both his knees hit the dash under the steering column and his right shoulder hit the door and pillar. He was not knocked out and was not bleeding. He called 000. He self-extricated through the driver’s door. Police and ambulance attended.
Ambulance notes refer to immediate onset of thoracic and lumbar soreness. He was taken to Blacktown Hospital. The hospital notes indicate complaints of low back pain and right knee pain and seatbelt bruising was noted. He had X-ray of the chest, lumbar spine and right knee but there were no fractures.
He told me he developed marked bruising to the lower back and thoracic spine. He was discharged on simple analgesics. He was certified unfit for three days and then followed up with his general practitioner (GP). He remained off work. He was off for a total of three to four months and then returned to light duties on short hours, two days a week, working from home. When he was cleared to drive 15 minutes at a time after three months, he worked at a local depot.
He had a CT scan of the lumbar spine and was referred to Dr Damodaran, orthopaedic surgeon, Campbelltown. He was set for an MRI scan of the lumbar spine and cervical spine because he was complaining of pain on both sides of the neck, radiating to the upper trapezii and top of the right shoulder, but not into the arms. There was also pain on both sides of the lower back, right greater than left, radiating to the right gluteal muscles and hamstrings, and there was numbness around the right knee. There were pins and needles in the lateral right foot to the middle three toes.
The imaging showed right C3/4 disc osteophytes impinging the right C3 nerve root, minor posterior L4/5 and L5/S1 disc bulges. Dr Damodaran said there was no need for surgery and that he should do a core strengthening exercise program.
He had physiotherapy for about two months and then plateaued, and then had an exercise physiology strengthening program for about two months. He would take Tramadol if pain disturbed his sleep. He had no specific treatment for the right shoulder. He says there was no injury to the left shoulder.
Current status
He gets low back pain four or five times a week if he is sitting too long, greater than half an hour, and with attempted heavy lifting especially if combined with twisting. He can no longer lift his young children in and out of the bath.
His neck flares up every so often, about once or twice a month, like a bad stiff neck, with pain radiating to the right upper trapezius. He uses heat packs and Voltaren.
The right shoulder clicks and is painful every now and then, and sometimes the movement is limited.
The right knee is all right at the moment. He can climb stairs, squat, and kneel OK. He does have some difficulty with ladders at times. He sometimes gets interscapular twinges in the thoracic spine.
He can carry 20kg maximum. Walking is not limited, however he notices he catches his right foot on things at times. The limit with driving is 1.5 hours and then he gets excruciating low back pain. He can stand for three hours at a time with transfers. He notices his back gets tired after an eight-hour day at work. He is sleeping all right now but the sleep was terrible at first after the accident.
Current treatment
74. He is under the care of his GP, Dr Tran, Elderslie. He does home exercises as shown to him by the exercise physiologist. He takes Voltaren about three times a week for pain and applies hot packs to the back.
Investigations
From the file:
27 April 2018 – Chest x-ray - normal.
X-ray lumbar spine – Some straightening of lumbar curvature, possibly suggesting lumbar sprain.
X-ray right knee – Normal.
1 May 2018 – CT lumbar spine – Films reviewed. Report received on 17 April 2023. Impingement on both L5 nerve roots and left S1 nerve root in the lateral recess at L45 level and L5/S1 level due to posterior disc bulge. Mild L45 and L5 S 1 Canal stenosis.
No fracture or dislocation in the lumbar spine.
5 June 2018 – MRI cervical spine and lumbar spine – Right posterolateral disc osteophyte complex at C3/4 encroaching onto the origin of the right C3 nerve root with potential impingement. Other levels are satisfactory.
MRI lumbar spine – Early degenerative disc desiccation at L4/5 and L5/S1. There is bilateral degenerative L5/S1 facet joint arthropathy. A posterior bulging disc is present. There is no lateral recess or exit foraminal stenosis. There is a posterior bulging of L4/5 disc with no significant facet joint arthropathy or ligament thickening. No lateral recess or exit foraminal stenosis.
EXAMINATION
He was of tall slim build with height 180cm and weight 77.7kg. He says he has lost 7-8kg since late August 2022 because of stress from a marital breakdown. He stood erect and walked without a limp. He sat comfortably and could undress and redress and transfer on and off the examination couch without difficulty.
Lumbar spine
Lordosis was preserved. Flexion was two-thirds of normal range with complaint of right-sided low back pain. Extension was three-quarters of normal range. Lateral flexion was threequarters of normal range bilaterally.
No muscle spasm or guarding. Local tenderness right L5/S1 area. He could squat fully and walk on the heels and toes. Axial pressure test negative. Lower limb reflexes were symmetrical. Plantar responses were both flexor. Power was normal. Sensation was reduced in the lateral right foot and all the toes, but not in the remainder of the S1 dermatome.
Supine straight leg raising 80° bilaterally with negative stretch test. Thigh girth; right 44cm, left 43cm at 10cm above the superior patellar pole. Leg girth; right equals left equals 37.5cm at 15cm below the inferior patellar pole.
Thoracic spine
80. No guarding or tenderness. Rotation was three-quarters of normal bilaterally. No evidence of sensory loss.
Cervical spine
Normal contour. Full range of movement in flexion, extension, lateral flexion and rotation. No spasm or guarding. There was tightness in the upper trapezii and parascapular muscles bilaterally. No tenderness. Reflexes, power and sensation in the upper limbs were normal.
Upper arm girth; right equals left equals 31cm at 10cm above the elbow crease. Forearm girth; right 28.5cm, left 27.5cm at 5cm below the elbow crease.
Right and left shoulders
Left shoulder showed full range of movement in flexion, extension, abduction, adduction, external and internal rotation, and a negative impingement sign.
Right shoulder showed flexion 140°, 140°, 140°. Extension 50°. Abduction 140°, 140°, 140°. Adduction 40°. External rotation 90°. Internal rotation 30°, 40°, 40°. Movements measured with a goniometer.
Hawkins sign for impingement positive for the right shoulder.
Right and left knees
No tenderness. No swelling or deformity. Range of movement measured with a goniometer. Right knee 0-110° of flexion. Left knee 0-130° of flexion. Both knee joints were stable in anteroposterior and mediolateral directions. There was no crepitus or pain on patellar compression in either knee.
OPINION
Causation
The lumbar spine, thoracic spine, cervical spine, right knee and right shoulder soft tissue injuries were caused by the subject motor accident, based on contemporaneous medical evidence. This includes ambulance and hospital reports, which are concordant with the history obtained from Mr Cadden.
A left shoulder injury was not caused by the subject motor accident and this was acknowledged by Mr Cadden.
PERMANENT IMPAIRMENT
The injuries are still intermittently symptomatic, at this stage almost five years after the motor vehicle accident. The claimant has completed all active treatment as is considered to have reached MMI (maximal medical improvement). Thus, it is appropriate to assess permanent impairment. The impairment arising from each injury is discussed below.
Lumbar spine – soft tissue injury
Dysmetria of flexion and extension is present. There is no guarding, no non-verifiable radicular complaints following a complete spinal nerve root distribution, and insufficient criteria on which to base a diagnosis of lumbar radiculopathy. The clinical differentiators present place him in DRE Lumbosacral Category II giving 5% WPI.
Cervical spine – soft tissue injury
There is no dysmetria, no guarding, no non-verifiable radicular complaints, and no radiculopathy. Intermittent symptoms are present. This is a clinical differentiator for DRE Cervicothoracic Category I giving 0% WPI.
Bilateral shoulder injury
At the right shoulder, there is loss of active range of motion which is reproducible and results in assessable permanent impairment. Flexion 140° gives 3% upper extremity impairment. Abduction 140° gives 2%. Internal rotation 40° gives 3%. Adding these gives 8% upper extremity impairment, which is equivalent to 5% WPI.
The left shoulder injury was found to be not caused by the subject motor accident .
However, for the guidance of the parties, the clinical examination findings of full active range of motion in all six planes, viz., flexion, extension, abduction, adduction, internal and external rotation, of the left shoulder result in 0% WPI.
Right knee – soft tissue injury
There is no thigh atrophy on the right side. The range of movement present on the Panel reexamination today does not result in any assessable permanent impairment. There is no relevant diagnosis-based estimate on which to find an impairment, and although there was a history of direct trauma, there was no crepitation on physical examination nor patellofemoral pain on patellar compression at Panel examination, hence no assessable impairment arising from the arthritis table footnote.
Body Part or
System
AMA Guides/The
Guidelines
References
(chapter/ page/table)
Permanent
(YES/NO)
Current
%WPI*
%WPI* from pre-existing
OR subsequent causes
%WPI* due to motor accident 1 Lumbar spine AMA4, Chapter 3,
Table 72, page 110
DRE II
Yes 5 0 5 2 Cervical spine AMA4, Chapter 3,
Table 73, page 110
DRE I
Yes 0 0 0 3 Right shoulder AMA4, Chapter 3,
Table 3, page 20;
Figure 38, page 43;
Figure 41, page 44;
Figure 44, page 45
Yes 5 0 5 4 Right knee AMA4, Chapter 3,
Table 41, page 78;
Table 64, page 85; Table 62, page 83
footnote
Yes 0 0 0
The combined WPI arising from injuries caused by the subject accident is 10%.
Findings
The panel conducts a new assessment of all the matters with which the medical assessment is concerned. The panel adopts the examination findings of Medical Assessor Oates and adds the following brief reasons.
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 [2021] NSWCA 287 at [40] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 [11].
The provisions of The Civil Liability Act 2002 (the CL Act) applied to the MAI Act in determining issues of causation. Particularly ss 55D and 5E of the CL Act apply to the MAI Act. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, 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 encumbered 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 1
A of the Civil Liability Act 2002 (NSW), ss55D and 5E: see 3B(2)(a) of the Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
Various authorities have discussed error made by review panels and medical assessors in determining the issue of causation solely based on the absence or record in contemporaneous notes.
In Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548, the Court held that the panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen [2016] NSWCA 229 at [64] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]) and the existence of other evidence such as the injured person statement and the claim form (Bugat v Fox [2014] NSWSC 888 at [31]).
Right knee
The claimant made no reference to having suffered a right knee injury in his claim form. However, there is reference in the notes of the Blacktown Hospital that the claimant was complaining of right knee pain. Dr Breit accepted that the claimant could have sustained injury to his right knee in the accident.
Nevertheless, at the time of his examination, Dr Oates did not note any crepitus which was said to be apparent at the time of Dr Bodel’s examination. However, it is the opinion of the panel that the claimant had recovered from any injury he may have sustained to his right knee.
Left shoulder
105. There is no reference to injury to the left shoulder in the claim form. There was no note of a complaint of injury to the left shoulder in the clinical notes of the Blacktown Hospital. Dr Dryson records no complaint of injury or symptoms in relation to the left or right shoulder. The doctor specifically records a history obtained from the claimant that he did not injure his left shoulder in the accident. Dr Oates did not find any assessable impairment of the left shoulder at the time of his examination.
Right shoulder
There is no reference to any injury to the right shoulder in the claim form. There is no recorded complaint of injury or symptoms in the right shoulder in the clinical notes of Blacktown Hospital. Dr Dryson makes no reference to claimed injury or symptoms in the right shoulder but does record a complaint of intermittent neck pain radiating to the right shoulder but not down the arms. Dr Dyson did not assess any permanent impairment in the right upper extremity.
However, there is no evidence of any pre-accident symptoms in the right shoulder. Dr Oates opines and the panel accepts that the injury to the right shoulder was caused by the subject motor accident.
CONCLUSION
108. The certificate which assessed permanent impairment is revoked. The new certificate is attached at the commencement of these reasons.
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7
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