Allianz Australia Insurance Limited v Long
[2024] NSWPICMP 629
•5 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Long [2024] NSWPICMP 629 |
CLAIMANT: | Michael Long |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Terence O’Riain |
MEDICAL ASSESSOR: | Richard Haber |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 5 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant injured when truck crashed into cycling group; insurer’s application for review of Medical Assessor’s (MA) 12% whole person impairment (WPI) assessment; subject accident caused haemopneumothorax; insurer submitted MA failed to apply clauses 1.5 to 1.7 of the Motor Accident Permanent Impairment Guidelines on causation; pulmonary function tests from 2015 and 2020; supranormal lung function diminished after accident; MA deducted lung function after accident from pre-accident lung function to measure impairment; MA did not test pulmonary functioning; Held – upon re-examination the Review Panel found the haemopneumothorax had resolved; no permanent impairment to measure; Medical Assessment Certificate revoked and replaced. |
DETERMINATIONS MADE: | Medical Assessment – Permanent impairment Review Panel Certificate Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 after the Panel reviewed whether the subject motor accident caused injuries to the claimant resulting in permanent impairment greater than 10% 1. The Panel revokes Medical Assessor’s Grainge’s certificate dated 23 October 2022 and issues a new certificate. 2. The motor accident caused a haemopneumothorax, which is now resolved, and no permanent impairment can be assigned to that condition. |
REASONS
BACKGROUND
On 3 December 2016 Mr Long was riding in a group of cyclists that was hit by a truck from behind.
An ambulance took Mr Long to St Vincent's Hospital for emergency medical services. The healthcare providers diagnosed fractured ribs 1 through 7 on the left side, a left-sided haemopneumothorax, a left-sided distal clavicle fracture and a left-sided flank and iliac crest haematoma.
A thoracic surgeon operated on 7 December 2016 to remove 600ml of clotted blood. The surgeon noted extensive rib fractures, which had not penetrated thoracic space. Mr Long was released from hospital on 14 December 2016.
There have been a series of disputes in this claim between this insurer, insurers for past accidents and the claimant about the permanent impairment rating. The Personal Injury Commission (Commission) and the preceding entities have convened earlier medical assessments and review panels.
The claimant applied for Review under s 63 of the Motor Accidents Compensation Act 1999 (the MAC Act) to review Medical Assessor Christopher Grainge’s assessment dated
11 February 2022.
Responding to the insurer’s application the President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor Christopher Grainge’s certificate dated 11 February 2022 (the Review) regarding permanent impairment.
This review deals with Medical Assessor Grainge’s assessment regarding lung function, specifically the haemopneumothorax, which it is agreed occurred in the subject accident.
Medical Assessor Grainge assessed the permanent impairment arising from the claimant’s haemopneumothorax injury in 2016 rated at 12%. The assessment certificate was based on comparing pulmonary function testing from 2015 for a sleep study and another test in 2020. The 2020 testing showed a significant loss of lung function from the supranormal capacity
Mr Long had before the accident. This capacity developed from his competing in cycling.
The Medical Assessor did not test Mr Long’s pulmonary functioning when he examined
Mr Long.
The President’s delegate referred the medical assessment to the Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the application’s particulars.[1]
[1] Section 63(2B) of the MAC Act.
The Commission has arranged for this Panel to assess:
· left sided haemopneumothorax.
STATUTORY PROVISIONS
The statutory provisions, authorities on causation and the relevant Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.
Assessment under Review
Original Medical Assessor’s findings
These are set out in Appendix B.
Matters considered and decided by the Review Panel
The Review Panel considered all aspects of the assessment under review.
The Panel met on 29 February to discuss how this review should proceed.
The Panel considered the parties’ submissions which are set out at Appendix C.
The Panel decided re-examining the claimant was required so Medical Assessor Haber examined Mr Long on behalf of the Panel on 27 March 2024. There was delay due to illness and travel, so the examination eventually took place on 14 August 2024 at the Medical Assessor’s rooms.
REVIEW PANEL FINDINGS
Documentation
The Panel considered the documentation set out in Appendix D.
Clinical examination
Mr Long attended at Medical Assessor Haber’s rooms as arranged. He was unaccompanied.
History from Mr Long
On the day of the accident the claimant was cycling at about 6:00am when the truck struck him. An ambulance took him to Royal Prince Alfred Hospital (RPA) where he was found to have fracture of seven ribs on the left side, three of them being shattered. He had a punctured lung as well as fracture of the left clavicle, which was in a sling for about eight weeks. He also had compression of T9 vertebra. He had bruises on the left side of the body especially around the left hip. He was an inpatient for about 10 days. He had a drainage of the left sided pneumothorax. He then had physiotherapy and rehabilitation.
Six months after the accident he started to work again but after a month or so, he had to give up because he could not cope, especially because of pain in the left hip.
He has severe sleep apnoea which he had before the accident but since the accident it has become worse, and he has much lower blood oxygen saturation now.
Current symptoms
When he recently visited Perisher, he found it difficult to breathe especially if he walked up a couple of flights of stairs. He becomes breathless if he rushes or walks uphill quickly.
He wakes up feeling short of breath if he does not have the sleep apnoea machine on.
He has constant pain which is in the localised area on the left side of the middle of the chest, which is worse if he breathes deeply.
His symptoms are getting worse.
He is tender to touch in the front of the chest on the left side at the site of the fractured ribs.
He wears compression stockings to control the cramps in the legs, but also to help the pain in the left hip.
He stopped work because he could not handle the pressure, so he lost some contracts. A psychologist told him that he has anxiety, but this was not followed up.
Current medication
He takes Voltaren tablets daily.
He takes a number of vitamins including vitamin D, vitamin C and multi-B.
Social history
He has never smoked and does not drink alcohol.
He was a large event organiser for the last 15 to 20 years.
Before the subject accident he was a competitive cyclist.
Past history
Mr Long was injured in earlier road accidents:
(a) on 12 May 2008 he fell and injured his left side, that left him with chest pain and shortness of breath;
(b) on 2 December 2012 resulting in cervical and thoracic fractures with a head injury, and
(c) on 8 April 2014, rear end collision with whiplash injury to the cervical spine, left arm and side of face.
He has had other falls due to losing control of his bicycle resulting in injury, but not to this body part.
Physical examination
He weighed 72kg and was 180cm tall. His BP was 130/80. He had some tenderness on deep pressure in the middle of the left side of his chest at the site of old rib fractures. He had normal chest expansion; normal breath sounds without any adventitious sounds. His right shoulder appeared to be lower than the left when he was upright.
Available documents
He brought chest X-rays to the meeting, which were taken on 10 December 2016. These showed obliteration of the left costo-phrenic angle and rib fractures.
A chest X-ray taken by Alfred radiology on 9 March 2017 no longer showed the obliteration of the left costo-phrenic angle, but it also showed a thoracic vertebra collapse. The cardiac outline appeared at the upper limit of normal.
No official report was available for either of these X-rays.
Testing
Medical Assessor Haber tested Mr Long’s pulmonary function during this examination using a spirometer.
STUDY OF THE LUNG FUNCTION REPORTS
Date
FEV1
“Normal”
FVC
“Normal”
AGE
7 Jan 2015
4.43L
3.92 L
5.16 L
4.97 L
55
8 July 2020
3.3 L
3.80 L
4.17 L
4.87 L
60
14 Aug 2024
3.70 L
3.70 L
4.80 L
4.78 L
64
The relevant guidelines are cls 1.229 to 1.232 for assessing respiratory conditions.[2] These refer assessors to AMA 4.
[2] See Appendix A for relevant guidelines and explanation of abbreviations.
The above figures are based on AMA 4 guide from the tables for normal values considering his height of 180cm and the age as stated ‘Normal’ results are based on age and height hence the results considered to be normal are different for different ages as listed on the table 2 and 4 on pages 156 and 158 respectively. Before the accident his tests were significantly above normal range but currently practically within average normal results.
The claimant turns 64 later this year so that is rounded up as it is appropriate for measuring capacity.
Summary of injuries
The haemopneumothorax and fractured ribs were caused by the accident and have mainly resolved with residual symptoms as described above. Spirometry results are within normal limits currently whereas before the accident, these results were above normal.
Panel deliberations
The Panel met again on 27 August 2024.
There were no examples of inconsistencies.
The Panel decided to adopt Medical Assessor Haber’s examination report and the impairment assessment as evidence.
Mr Long’s condition is sufficiently stable and unlikely to change due to any effects of the subject accident.
The Panel compared the 2015 testing, then the 2020 followed by the testing in August 2024. There was a significant change from the 2015 testing and the 2020 testing. However, the current lung function is within normal limits for a man of Mr Long’s age and height.
There were no pre-existing impairments to deduct. The Panel considered the relevant clinical information gathered before the subject accident established that the claimant’s lung function had been above normal.
There had been no intervening illnesses, accidents or lifestyle habits which could explain the lung function loss that Mr Long experienced, apart from the chest injury in the subject accident, which caused the haemopneumothorax.
Before the accident Mr Long was very fit and his lung function accordingly then was above average. The most recent test is considered within average normal range but not above it. Mr Long would have been used to being very fit at an above normal level for his age, whereas with the passage of nine years and the effect of the accident, his current lung function test is within normal limits. He may feel more restricted in his breathing compared to his pre-accident situation.
That could be a matter of reduced fitness as he has not been as physically active e.g. going to gym as he was previously. Spirometry tests measure the function of the lung at its best. It is normal to experience variable shortness of breath on exertion. This depends on many factors, that exist outside of the subject accident.
A spirometry test reflects the best available function of his lungs which is under normal circumstances dependent on many variable factors including adequacy of sleep, stage of the mind/anxiety and many other factors.
The structural issue being the haemopneumothorax, which the subject accident caused, is now completely resolved.
On that basis the Panel cannot assign any permanent impairment in that body part.
The Panel’s examination and testing yielded different outcomes to the earlier assessments.
Panel decision
The Review Panel found that the motor accident caused the haemopneumothorax.
The Review Panel found that condition has completely resolved.
Conclusion
The Review Panel’s permanent impairment findings about the injuries caused by the motor accident are different to Medical Assessor Phillip Grainge’s assessment dated
11 February 2022.
Accordingly, the Review Panel will revoke this certificate and issue a new Permanent Impairment certificate.
Each Panel member has reviewed this decision and agreed with the findings.
Review Panel
Personal Injury Commission
APPENDICES
APPENDIX A
Statutory Provisions
Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
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 a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides 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 on 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:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
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 Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), 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.”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC Act.
Clauses 1.229 to 1.232 of the Guidelines state: “The system of respiratory impairment classification is based on a combination of forced vital capacity (FVC), forced expiratory volume
(FEV1) and diffusing capacity of carbon monoxide (DCO) or measurement of exercise capacity (VO2 max). Chapter 5 (pages 153–167, AMA4 Guides) should be infrequently used in assessing impairment following a motor accident. Healed sternal and rib fractures do not result in any assessable impairment unless they result in a permanent impairment of respiratory function.
Table 8 (page 162, AMA4 Guides) provides the classification of respiratory impairment. A footnote to the table reinforces that conditions other than respiratory disease may reduce maximum exercise capacity and medical assessors must carefully interpret the clinical presentation of the injured person.
The medical assessor must provide a specific percentage impairment for permanent impairment due to respiratory conditions. Table 8 (page 162, AMA4 Guides) must be used to classify the injured person’s impairment. Classes 2, 3 and 4 define a range of WPI percentages. The medical assessor must provide a specific percentage impairment within the range for the class that best describes the clinical status of the injured person. Class 2 (10-25% WPI) will need careful consideration.
Use of Tables 2 to 7 (pages 156–161, AMA4 Guides) may give rise to an inaccurate interpretation of lung function and impairment due to age or race. Where appropriate Tables 2 to 7 should be replaced with relevant guidelines from a substantial body of peer-reviewed research literature, which must be referenced.”
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.
APPENDIX B
Original Assessor’s findings
Medical Assessor Grainge did not carry out his own pulmonary function testing. He did not explain why, as he was required to assess the permanent impairment at the examination. He assessed 12% permanent impairment to the claimant's respiratory system based on pulmonary function tests performed by the claimant's treating specialist Dr Desai on 7 January 2015 showing FEV1 of 4.43 (107% predicted) and FVC of 5.61 L (107% predicted) and a DL CO of 35.5 (108% predicted) demonstrating that Mr Long had supranormal lung function. In chapter 1 of AMA 4, individuals where pre-existing pre-injury values differ from population listed values, the examiner may depart from the population listed normal values to determine an impairment rating, using the pre-injury and pre-illness "normal" values. In this case, Mr Long had pre-injury pulmonary function tests, which contained sufficient information to determine impairment. Dr David Bryant tested pulmonary function on 8 July 2020, which showed and FEV1 of 3.3 L (88.8% predicted), and FVC 4.17 L (88.3% predicted) TLC of 6.47 L, 84.9% DL CO of 26.57 (84.6%). As such, Mr Long had a fall in his effort EV one, FVC and DL CO from 107%, 107% and 108% predicted to 89%, 88% and 85% predicted. As this fall would give him a reduction of 20 percentage points in his lung function before and after the accident, this is equivalent to class II impairment, i.e. FEV1, FVC or DL CO of between 60 – 79% predicted. The Medical Assessor found in Mr Long's case there is pulmonary functional testing showing he was supranormal before the accident, and hence this degree of impairment, at the lower end of class II impairment, was appropriate in this case.
APPENDIX C
Parties’ disputes and issues
Claimant’s submissions
There were no submissions provided on this body part.
Insurer’s submissions
Medical Assessor Grainge did not comply with the AMA4 Guides and the Motor Accident Permanent Impairment Guidelines (Guidelines) requirements in clauses 1.5 to 1.7 when undertaking his assessment, particularly on causation and impairment assessment
APPENDIX D
Documentation
The Review Panel considered the following documentation:
Medical Assessor Grainge’s certificate issued on 23 October 2022;
The insurer’s review application and attached documents;
The claimant’s reply and attached documents;
The Presidential delegate’s reasons issued 19 September 2023 referring this matter to a Review Panel;
All the documents which were provided to Medical Assessor Grainge before the assessment under review, and
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