Allianz Australia Insurance Limited v Macri

[2024] NSWPICMP 25

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Limited v Macri [2024] NSWPICMP 25

CLAIMANT:

Vic Macri

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Drew Dixon

MEDICAL ASSESSOR:

Shane Moloney

DATE OF DECISION:

16 January 2024

CATCHWORDS:

MOTOR ACCIDENTS – The claimant suffered injury when he came off a motor bike on 9 October 2019; immediate treatment sought regarding fractured nose; fractured nose assessed as 8% whole person impairment (WPI) by Medical Assessor (MA) Curtin; the dispute related to the assessment of WPI under the Motor Accident Injuries Act 2017 of cervical spine, lumbar spine, both shoulders, right ankle, right hand, left elbow, and left knee; review of certificate of MA Bodel who assessed 5% WPI in respect of injury to lumbar spine; question as to causation of lumbar spine injury, cervical spine injury, both shoulders, left elbow; Held – no complaint, no investigation and no treatment of lumbar spine, cervical spine, left elbow and left knee; Panel not satisfied on balance of probabilities injury caused by accident; right shoulder injury caused by accident where slid to the right when came off bike, complained to GP on 27 February 2020 of right shoulder pain since accident; right shoulder assessed based on restricted range of motion at 4% WPI; left shoulder injury not caused by accident where no complaint until 26 October 2020 and where claimant unsure whether he sustained injury to left shoulder; soft tissue injury and abrasion to right hand resolved; right ankle injury caused by accident where complained to GP on 27 February 2020 of right ankle pain since accident; ongoing pain but normal range of movement of right ankle; right ankle assessed at 0% WPI; Combined Certificate determined 12% WPI.

DETERMINATIONS MADE:  

MOTOR ACCIDENT INJURIES ACT 2017

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%

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

1.     The Review Panel revokes the certificate of Medical Assessor Neil Berry dated
8 September 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment which is 4%:

·        right shoulder – rotator cuff injury;

·        right ankle – soft tissue injury, and

·        right hand – soft tissue injury and abrasions (resolved).

2.     The Review Panel determines that the following injuries were not caused by the accident:

·        injury to the cervical spine;

·        injury to the lumbar spine;

·        injury to the left shoulder;

·        injury to the left elbow, and

·        injury to the left knee.

ASSESSMENT OF TREATMENT AND CARE
Certificate issued under s 7.23(1) of the MotorAccident Injuries Act 2017

3.     The Review Panel revokes the certificate of Medical Assessor Neil Berry dated 8 September 2022 and issues a new certificate determining:

·        the left shoulder arthroscopic rotator cuff repair surgery dated 22 March 2021 does not relate to the injury resulting from the accident, and

·        the left shoulder arthroscopic rotator cuff repair surgery dated 22 March 2021 was reasonable and necessary in the circumstances.

COMBINED CERTIFICATE

4.     The Review Panel revokes the Combined Certificate of Medical Assessor Geoffrey (Paul) Curtin dated 1 December 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10%:

·        right shoulder – rotator cuff injury;

·        right ankle – soft tissue injury;

·        right hand – soft tissue injury and abrasions (resolved);

·        facial injury – fractured nose, and

·        partial nasal airway obstruction.

Reasons

5.     This is to certify that permanent impairment was assessed by a Medical Review Panel comprising Member Susan McTegg, Medical Assessor Drew Dixon and Medical Assessor Shane Moloney and by Medical Assessor Geoffrey (Paul) Curtin.

6.     Details of the assessments and full reasons are given in the following certificates:

Assessment 1

Certificate of the Medical Review Panel dated 21 December 2023

7.     The permanent impairment in relation to the following injuries is 4%:

·        right shoulder – rotator cuff injury;

·        right ankle – soft tissue injury, and

·        right hand – soft tissue injury and abrasions (resolved).

Assessment 2

Certificate of Medical Assessor Geoffrey (Paul) Curtin dated 29 November 2022

8.     The permanent impairment in relation to the following injuries is 8%:

·        facial injury – fractured nose, and

·        partial nasal airway obstruction.

9.     Using the Combined Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4^th edition, the combined permanent impairment is 12%.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

1. On 9 October 2019 Mr Vic Macri (the claimant) was the rider of a motor bike travelling on James Ruse Drive when he fell off his bike after swerving to avoid a vehicle changing lanes (the accident).

2. Mr Macri has brought a claim for common law damages for injuries sustained in the accident under the Motor Accident Injuries Act 2017 (the MAI Act).

3. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Macri under the MAI Act.

4. Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

5. A dispute has arisen as to whether the degree of permanent impairment sustained by Mr Macri as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2(a) of the MAI Act.

6. The claimant sought an assessment of the permanent impairment dispute in respect of the following injuries:

   ·        face (abrasions, broken nose);

   ·        left elbow;

   ·        right hand;

   ·        left shoulder;

   ·        left knee;

   ·        right ankle;

   ·        right shoulder;

   ·        cervical spine, and

   ·        lumbar spine.

7. A dispute has also arisen pursuant to the provisions of s 3.24 of the MAI Act as to whether the following treatment:

   ·        left shoulder arthroscopic rotator cuff repair surgery dated 22 March 2021

   relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2(b) of the MAI Act.

8. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]

   [1] Section 7.20 of the MAI Act.

9. A dispute in respect of the facial injury was referred to Medical Assessor Geoffrey (Paul) Curtin. He issued a certificate dated 29 November 2022 in which he certified the following injuries give rise to a WPI of 8%:

   ·        facial injury – fractured nose, and

   ·        partial nasal airway obstruction.

10. Another dispute as to permanent impairment and the treatment dispute was referred to Medical Assessor Neil Berry. He issued a certificate dated 8 September 2022.

11. The insurer has sought a review of the medical assessment of Medical Assessor Berry. It is the certificate of Medical Assessor Berry which is the subject of this review.

DOCUMENTS CONSIDERED

1. The Review Panel issued a Direction to the parties on 27 February 2023 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer uploaded to the portal a bundle of documents marked AD3 paginated from pages 1 to 163. The solicitor for the claimant uploaded to the portal a bundle of documents marked AD6 paginated from pages 1 to 44. The solicitor for the insurer had earlier uploaded to the portal a bundle of documents paginated from pages 1 to 54 marked A1 which were also reviewed and considered by the Review Panel.

RELEVANT LEGAL AUTHORITY

Permanent impairment dispute

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Guidelines issued pursuant to Division 10.2 of the MAI Act which adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]

   [2] Clause 1.2 of the Guidelines.

2. Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

   “6.6   Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

   This, therefore, involves a medical decision and a non-medical informed judgement.

   6.7    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.”

3. Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:

   (a)     loss or asymmetry of reflexes;

   (b)     positive sciatic nerve root tension signs;

   (c)     muscle atrophy and/or decreased limb circumference;

   (d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

   (e)     reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

Treatment dispute

1. Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:

   “(1)    An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-      

   (a)The reasonable cost of treatment and care,

   (b)Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,

   (c)If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.

   (2)     No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”

CERTIFICATE OF MEDICAL ASSESSOR BERRY

1. The following injuries were referred to Medical Assessor Berry for assessment:

   ·        cervical spine – WAD (whiplash associated disorder), pain, reduced ROM (range of movement), radiculopathy;

   ·        left elbow – soft tissue injury, abrasions;

   ·        left shoulder – left rotator cuff, full thickness supraspinatus and tendon tear and a background of marked tendinosis;

   ·        right shoulder – full thickness supraspinatus tendon tear with tendon delamination propagating into the upper infraspinatus, biceps tendinosis, fraying of the superior labrum, rupture of the longhead of biceps and inflammation of the AC joint;

   ·        right hand – abrasions, grazes;

   ·        lumbar spine – lower back pain, radiculopathy;

   ·        left knee – soft tissue injury, abrasions, and

   ·        right ankle – focal lucent lesion, oedema.

2. The following treatment disputes was referred to Medical Assessor Berry for assessment:

   ·        whether the left shoulder arthroscopic rotator cuff repair surgery dated 22 March 2021 is causally related to the injury sustained in the accident, and

   ·        whether the left shoulder arthroscopic rotator cuff repair surgery dated 22 March 2021 is reasonable and necessary in relation to the injury sustained in the accident.

3. Medical Assessor Berry examined the claimant on 1 August 2022 and issued a certificate dated 8 September 2022.[3] Medical Assessor Berry reported after falling off his motorbike Mr Macri was able to get himself up from the accident, suffering multiple injuries but still managed to drive his bike home. His wife then took him to Westmead Hospital where he was examined and discharged the same night. Medical Assessor Berry reported Mr Macri continued to suffer pain in the neck, back and right ankle.

   [3] A1 p 14.

4. On examination of the cervical spine Medical Assessor Berry found a full range of flexion, extension, right and left rotation with discomfort at the extremes of left rotation and extension. There was no muscle spasm and no muscle guarding and no alteration of spinal contour.

5. On examination of the lumbar spine Medical Assessor Berry reported three quarters of the normal range of flexion, extension was half range and rotation was half range. He found flattening of the lumbar lordosis but no paraspinal muscle spasm.

6. Medical Assessor Berry found restriction of movement in the right shoulder but no wasting, swelling or dropping of the shoulder. He found the right elbow, wrist and forearm was normal. He found a normal range of movement of the left shoulder and elbow. He found the left wrist and hand was normal. Reflexes in both upper extremities were intact.

7. He recorded the following range of movement of both shoulders:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	130 °	180 °
Extension	40 °	50 °
Internal Rotation	50 °	90 °
External Rotation	50 °	90 °
Abduction	130 °	180 °
Adduction	40 °	50 °

1. Medical Assessor Berry found the following injuries caused by the accident had resolved:

   ·        left elbow – soft tissue injury;

   ·        right hand – abrasions and grazes; and

   ·        left knee – soft tissue injury and abrasions.

2. Medical Assessor Berry concluded there had been no significant injury to the shoulders noting the MRI scans showed rotator cuff tears in both shoulders with tendinosis and wasting of the muscles indicating the findings predated the accident. He certified the following injuries were not caused by the accident:

   ·        left shoulder – rotator cuff injury, and

   ·        right shoulder – rotator cuff injury.

3. He found the claimant had suffered a soft tissue injury to the right ankle as it went under the pedal but noted whilst Mr Macri experienced pain, he had a normal range of movement.

4. Medical Assessor Berry certified the claimant had sustained soft tissue injury to the cervical spine, to the lumbar spine and to the right ankle.

5. He placed Mr Macri in Diagnosis-Related Estimates (DRE) model Category II in relation to the lumbar spine on the basis there was a history of injury, attacks of spasm of the paraspinal muscles, no evidence of radiculopathy with normal reflexes and normal sensation. He noted no unilateral muscle wasting and no nerve root tension sign assessing a 5% WPI.

6. He assessed 0% WPI for the cervical spine and the right ankle.

7. He found the left shoulder arthroscopic repair did not relate to injury caused in the accident and was not reasonable and necessary in the circumstances.

REVIEW PROCEDURE

1. An application for review of the medical assessment of Medical Assessor Berry was lodged on 12 December 2022 within 28 days of the date on which the Certificate of Medical Assessor Berry was made available to the parties on 2 December 2022.[4]

   [4] Section 7.26(1)(b) of the MAI Act.

2. On 25 October 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[5]

   [5] Section 7.26 of the MAI Act, AD2 p 6.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (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.[6]

   [6] Rule 128 of the PIC Rules.

4. The review is by way of a new assessment of all matters with which the medical assessment is concerned.

5. On 1 June 2023 the Panel agreed an examination was necessary.

EVIDENCE BEFORE THE PANEL

Statement of Vic Macri

1. Mr Macri provided a statement dated 13 March 2020. At paragraph he states:

   “The motor bike slid out from under me over to the left side of road and hit the grassy island that borders onto the roadway. My body rolled over a couple of times across to the right into lane two and I stopped physically near the traffic lights.”

2. And at paragraph 48 he states:

   “My injuries from this accident that I was aware of after the accident was damage to my nose, I had grazing on my hands and knees. And I felt sore in my right shoulder and back.”[7]

   [7] AD6 p 10.

Pre-accident treating medical evidence.

1. On 4 June 2018 Dr Cordaro, general practitioner (GP) recorded recurrent left ankle swelling and pain. He also reported upper calf pain intermittently.[8] He reported Mr Macri stood for 13 hours per day and when he did not work his foot felt okay.

   [8] AD3 p 148.

2. On 8 October 2018 Mr Macri saw Dr Andrew Wines with a 12 month history of increasing discomfort in the lateral aspect of his left hind foot. He diagnosed tibialis posterior tendinosis and accessory navicular.

3. Mr Macri underwent surgery, namely left tibialis post reconstruction, calcaneal osteotomy and R4 screw and excision of accessory navicular on 9 January 2019.[9]

   [9] AD3 p 74.

4. On 1 August 2019 Mr Macri underwent surgery, namely the removal of the left R4 sinus tarsi screw.

5. On 4 November 2019, Dr Wines reviewed the claimant and reported he was coming along well and that a considerable proportion of his pre-operative pain was no longer present. He noted Mr Macri reported mild residual discomfort over his sinus tarsi and altered sensation distal to his lateral wound. He did not make any reference to the accident or suggest any increased pain post-accident.

Post-accident treating medical evidence.

Westmead Hospital[10]

[10] AD3 p 41.

1. The discharge plan records nine hours earlier the claimant “lost balance of bike, slid to the right side, nose scraped road, fall stopped with outstretched hands”. On examination two small lacerations to the nose were noted and opposed with steristrips. There was swelling, no epistaxis and no septal haematoma. It was recorded there were “no other injuries”, no neck, chest, abdomen, pelvis or back pain.

1. On 11 October 2019 Mr Macri consulted Dr Kong. The clinical entry only refers to surgery consultation although Dr Kong referred Mr Macri to Dr Novakovic with a probably broken nose.[11]

   [11] AD3 p 125.

2. On 5 February 2020 Dr Kong reported he filled out the form for the compulsory third party claim for the accident.[12] In a Certificate of capacity/certificate of incapacity dated 5 February 2020 Dr Kong, GP recorded a diagnosis of “broken nose”.[13] He certified Mr Macri fit for pre-injury work from 9 October 2019.

   [12] AD 3 p 142.

   [13] AD3 p 93.

3. On 27 February 2020 Dr Kong recorded:

   “Long consult

   claiming now that he has had ankle and shoulder pain since accident

   worse on R side

   pt tells me that on 9/10/19

   was on motorbike

   swerved to avoid car that cut him off then he fell off

   approx. at 30km/hr

   see hospital summary

   on 11/10/19

   I saw pt when the only symptom he c/o at the time was his injured nose

   pt claims now that he had shoulder and ankle pain post accident

   O/E today worse on R side for both

   decreased abduction R shoulder

   R ankle pain

   ? talar pathology

   Plan – R ankle x ray

   R shoulder x ray and MRI scan – Rotator cuff tear.”[14]

   [14] AD3 p 141.

4. In a Certificate of capacity/certificate of incapacity Dr Kong dated 12 March 2020 Dr Kong provided the following diagnosis:

   “Broken nose; Right Shoulder Rotator Cuff Tear; Right Ankle -? Osteochondral lesion for further investigation”.[15]

   [15] AD3 p 127.

5. The same day Dr Kong referred Mr Macri to Dr Trantalis for management of his rotator cuff tear. He reported “He says he fell off on outstretched arms and has been c/o pain and limited abduction since then”.[16]

   [16] AD3 p 131.

6. On 1 April 2020 Dr Kong referred Mr Macri back to Dr Wines noting he had been complaining of right ankle symptoms since the accident in late 2019.[17]

   [17] AD3 p 134.

7. On 19 October 2020 Dr Kong reported “pt now says he has L shoulder pain and symptoms identical to R shoulder – attributes this to MVA in 2019 but says he didn’t mention it before as it has only become more of a problem more recently”.[18]

   [18] A1 p 79.

8. The next consultation was with Dr Ong on 14 April 2021 in respect of an injury to the left second toe. An X-ray showed a dorsal dislocation of the DIP (distal interphalangeal) joint of the second toe and a fracture of the middle phalanx, unrelated to the accident.

Report of Dr Andrew Wines

1. On 16 November 2020 Dr Wines reviewed the claimant.[19] He stated he presented with a
   

   [19] A1 p 54.

   12 month history of discomfort in his right ankle following the accident. He noted the pain was of variable intensity and exacerbated by weight bearing activity.

2. On examination Dr Wines reported the right ankle was mildly swollen although it had a functional range of motion. He stated:

   “Two MRI scans confirm a medial talar dome osteochondral lesion with minimal underlying bone marrow oedema. There is evidence of previous anterior talo-fibular and calcaneo-fibular ligament injuries and an accessory navicular”.

3. Noting his right ankle was manageable Dr Wines concluded he did not require intervention and discussed the use of topical and oral anti-inflammatory medication.

Reports of Dr John Trantalis and Dr Michelle Caudwell

1. On 20 April 2020 Dr Michelle Caudwell, orthopaedic fellow for Dr Trantalis reported to Dr Kong.[20] She reported the following history:

   “He describes coming off his motor bike in moderate speed and landing on his extended arm. He denies any dislocations or episodes previously with his right shoulder. Since then he has had intermittent right anterior and superior shoulder pain.”

   [20] AD3 p 100.

2. Whilst the review was conducted by telemedicine Dr Caudwell reported:

   “He is visualised to have at least 160 degrees of forward elevation and 70 degrees of external rotation. Internal rotation to the mid thoracic region. This appears quite symmetrical to what was visualised on his contralateral side”.

3. Dr Caudwell reported an MRI demonstrated “a full thickness supraspinatus tear with retraction back to the level of the humeral head. There was also ACJ osteoarthritis and biceps tendinosis”.

4. Dr Trantalis furnished a report to Dr Kong dated 1 February 2021.[21] He reported the MRI scans demonstrated bilateral rotator cuff tears with retraction of the supraspinatus tendon to the mid part of the humeral head. Dr Trantalis stated he discussed with Mr Macri the risks and benefits of surgery.

   [21] A1 p 56.

5. Mr Macri underwent a left shoulder arthroscopic rotator cuff repair and biceps tenodesis and acromioplasty on 22 March 2021.[22]

   [22] A1 p 58.

6. Dr Trantalis furnished a report dated 20 May 2021.[23] He reported the following history:

   “Mr Macri was a right hand dominant fifty nine year old gentleman who had a motor bike accident in November of last year. His shoulder was normal before this injury and he unfortunately came off his motor bike at moderate speed and landed onto his extended arm. He sustained an injury to his shoulder including a right rotator cuff tear and also a rupture of the longhead of biceps and an injury to his AC joint”.

   [23] AD6 p 35.

7. Dr Trantalis reported Mr Macri suffered from right shoulder pain and weakness and was recovering from surgery performed in March. He concluded there was a direct causal connection between the “incident and injury sustained by Mr Macri”.

8. On 25 October 2021 Dr Trantalis reported Mr Macri had made good progress following the left shoulder arthroscopic rotator cuff repair with good functional range of motion and good power on testing the shoulder.[24]

   [24] A1 p 78.

Imaging

X-ray nasal bones, 11 October 2019 – the findings were reported as follows:

“There are mildly displaced nasal bone fractures. No fracture is seen elsewhere. Clinical correlation is recommended.”[25]

[25] AD3 p 162.

Right shoulder X-ray dated 27 February 2020 – the report concludes:

“The AC and glenohumeral joints are congruent. There is early AC joint arthrosis with mild subchondral sclerosis and spurring evident. Alignment appears maintained. There is flat acromial undersurface with a small outlet spur. The glenohumeral joint space is preserved. Mild sclerosis at the supraspinatus insertion is noted consistent with insertional enthesopathy. No fracture is seen. There is no focal bone lesion.” [26]

[26] AD3 p 52.

Right ankle X-ray dated 27 February 2020 – the report concludes:

“There is a focal lucent lesion involving the medial margin of the talar dome which extends transverse over 8 mm. this is indicative of an osteochondral lesion. This would be better evaluated on MRI. No acute fracture is seen. The ankle joint space is maintained. The subtalar joint space is not well defined and there is sclerosis in the region of the subtalar joint. These features do suggest a probable coalition. Again MRI would better evaluate. No acute fracture seen elsewhere. There is a probably accessory navicular.” [27]

[27] AD3 p 53.

MRI right shoulder dated 3 March 2020 – the report concludes:

“Full thickness supraspinatus tendon tear with tendon delamination. The tear propagates into the upper infraspinatus. There is biceps tendinosis. There is fraying of the superior labrum. There is advanced AC joint arthrosis.”[28]

[28] AD3 p 133.

MRI right ankle dated 16 March 2020 – the report concludes:

“Chronic appearing osteochondral lesion of the talar done with chondral thinning but no significant chondral flap is seen. There is a small ankle joint effusion. There is evidence of previous tears to the deltoid ligament and lateral ligaments without acute tear. There is a type II accessory navicular with oedema the synchondrosis suggesting instability. Mild plantar fasciosis. Mild oedema within the sinus tarsi.” [29]

[29] AD3 p 137.

MRI right shoulder dated 26 October 2020 – the report concludes:

“Full-thickness supraspinatus tendon tear and a background of marked tendinosis. The tendon margin is thinned. There is mild reduction in muscle bulk. There is an articular sided tear of the upper infraspinatus. There is biceps tendinosis. There is a small posterosuperior labral tear and there is advanced AC joint arthrosis.”[30]

[30] AD6 p 16.

MRI right ankle dated 26 October 2020 – the report concludes:

“No significant changes compared with previously although there is no joint effusion of the ankle joint the current study. There is no new ligamentous or chondral injury. Mild oedema again noted at the level of the type II accessory navicular.”[31]

MRI right shoulder dated 26 October 2020 – the report concludes:

“Overall appearances are similar to previously. There is however a slight reduction in muscle bulk of the infraspinatus compared with previously. No significant tear propagation.”[32]

MRI left shoulder dated 26 October 2020 – the report concludes:

“Full thickness supraspinatus tear and a background of marked tendinosis. The tendon margin is thinned. There is a mild reduction in muscle bulk. There is an articular sided tear of the upper infraspinatus. There is biceps tendinosis. There is a small posterosuperior labral tear and there is advanced AC joint arthrosis.” [33]

Medico legal evidence

[31] AD6 p 17.

[32] AD6 p 23.

[33] AD6 p 26.

Dr James Bodel, 16 June 2022

1. Dr Bodel assessed the claimant on 16 June 2022 at the request of the claimant’s lawyers.[34]

   [34] AD6 p 27.

2. The insurer objected to the admission of the report on the basis it was not to hand at the time the original application for an assessment of permanent impairment was lodged and where it was not considered by Medical Assessor Berry at the time of his assessment. The insurer notes no reason has been provided for the late submission of the report. Furthermore, the insurer notes Dr Bodel did not have an accurate history of the claimant’s pre-accident medical condition, does not address the degenerative change shown on the various scans and does not adequately address causation.

3. Noting the objects of the Personal Injury Commission (Commission) which require the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible the Panel proposes to admit the report of Dr Bodel subject to consideration of the weight to be afforded to his opinion.

4. Dr Bodel reported the following history:

   “He braked and tried to avoid collision but was unable to do so. He also lost control of the bike while braking. It slid to the left-hand side and he landed on his outstretched right arm. He injured both ankles and both shoulders, as well as his neck and lower back.
   The police and ambulance did not attend. He states that his wife saw the accident and he was picked up and taken to Westmead Hospital. No x-rays were taken at that time, but he was observed in the hospital between about 6-11pm and then discharged home. He later came under the care of his local doctor. He had x-rays taken of the facial injuries and was found to have a fractured nose.
   He had pain in both ankles and pain in both shoulders as well as the neck and facial injuries..
   He had problems with the right ankle, worse than the left and he was sent to see Dr Andrew Wines, an orthopaedic surgeon….”

5. In relation to past medical history Dr Bodel reported the claimant had been previously quite well, he had nil previous claims and nil subsequent accidents or injuries.

6. Dr Bodel undertook an assessment of permanent impairment and concluded the claimant had sustained a total WPI of 25%.

7. However, Dr Bodel did not obtain a correct history. He was apparently not aware the claimant had undergone surgery to his left foot and ankle on 8 October 2018 and that he returned to see Dr Wines, following the accident, on 4 November 2019 for a post-operative follow up when no mention was made of injury sustained in the accident. Dr Bodel was apparently not aware the only injury reported by Westmead Hospital following the accident was to the nose, nor was he aware that the first recorded complaint of injury to the right ankle and right shoulder was not until 27 February 2020, some 20 weeks post-accident. Furthermore, Dr Bodel was apparently not aware that there are no references to the lumbar spine in the clinical records of the general practitioner and no imaging of the lumbar spine.

8. Where the history relied upon by Dr Bodel is incorrect, his conclusions are unreliable, and the Panel does not propose to give the report any weight.

SUBMISSIONS

Insurer’s submissions

1. The insurer provided submissions dated 19 December 2022 in support of the application for review.

2. The insurer disputes causation of any lumbar spine injury noting:

   ·        there has been no imaging of the lumbosacral spine;

   ·        on examination at Westmead Hospital, some nine hours after the accident there were two small lacerations to the nose. The record states, “no other injuries” and no X-rays were arranged;

   ·        the claimant saw a GP at Drummoyne on 11 October 2019 when he was referred for a nasal X-ray, prescribed antibiotics and referred to Dr Novakovic, ear, nose and throat specialist (ENT);

   ·        the claimant did not attend Dr Novakovic. He telephoned his GP on 16 October 2019 and Dr Kong told him the X-ray showed a broken nose. There is no reference to other injuries;

   ·        the Certificate of capacity/certificate of fitness of Dr Kong dated 5 February 2020 only refers to a broken nose;

   ·        on 27 February 2020 Dr Kong recorded the claimant was now claiming he had had ankle and shoulder pain since the accident. An X-ray of the right shoulder and right ankle was arranged, and

   ·        there are no references to the lumbosacral spine and the claimant continued to work nine hours a day six days a week in an industry which he says was quite heavy until he was dismissed in January 2021.

1. The insurer submits even if causation is established there is no basis on which it could be assessed as DRE 2. Where there are no structural irregularities, the insurer notes the DRE categories are as follows:

2. The insurer notes non-verifiable radicular complaints are symptoms such as shooting pain, burn sensation and tingling that follow the distribution of a specific nerve root but there are no objective findings. Further it is noted that signs of radiculopathy include:

   ·        loss or asymmetry of reflexes;

   ·        positive sciatic nerve root tension signs;

   ·        muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

   ·        muscle atrophy and/or decreased limb circumference.

3. The insurer notes at page 5 of his report Medical Assessor Berry specifically found “no paraspinal muscle spasm”. The insurer submits Medical Assessor Berry was not entitled to accept the history of spasms from the claimant without observing that to be the case.

4. The insurer notes there were no findings of muscle guarding, asymmetrical movement of the spine or non-verifiable radicular complaints as required for a DRE 2 finding.

5. The insurer submits at best injury to the lumbar spine fell within DRE Category 1 which is 0% WPI.

6. The insurer provided submissions dated 17 March 2022 in respect of the permanent impairment dispute. A number of those submissions were repeated by the insurer in the submissions dated 19 December 2022 and are addressed above.

7. The insurer argues the only injury sustained was a fracture to his nose.

8. The insurer notes the claimant concedes he had a pre-existing ankle problem. He underwent a reconstruction of the tendon using internal screws on 14 January 2019. The screw was removed on 1 August 2019. When reviewed by Dr Wines on 4 November 2019 Dr Wines reported the bulk of the preoperative pain was no longer present. He mobilised well with a barely perceptible limp. There was no reference to the accident.

9. The insurer notes the claimant had scans performed on both shoulders which showed significant degenerative change consistent with his age and his background of heavy manual occupations. Whilst the claimant underwent an arthroscopic release of the left shoulder on 22 March 2021 the insurer denies the surgery was related to injuries sustained in the accident.

10. Medical Assessor Sally Preston issued a certificate dated 13 April 2021 in which she found no causal connection between injury to the neck and shoulders and the accident. She certified that physiotherapy treatment was not reasonable and necessary and related to the accident.

11. Further, the insurer submits the fact the claimant was able to ride his bike, a heavy Harley Davidson, from the scene with a bent frame which meant he could not steer left, was inconsistent with any physical injury apart from the nose.

12. The claimant was not certified unfit for work after the accident and continued working in a heavy role. The claimant left work for reasons unrelated to the accident and then underwent surgery, which the insurer submits is also unrelated.

13. The insurer submits there are also factual issues about alleged right sided injuries given the insurer understands the claimant fell onto his left side.

14. The insurer submits while there were later complaints of right ankle injury, injury to the cervical spine and both shoulders they were not caused by the accident. There is significant degenerative change in the shoulders which was pre-existing and the changes in the right ankle were similar to those found pre-accident.

15. The insurer notes there is no reference at all in the records of injury to the left elbow, right hand, left knee or lumbar spine.

Claimant’s submissions

1. The claimant provided submissions dated 27 January 2023.

2. The claimant disputes the assertion there is a lack of contemporaneous complaint of injury to the lower back. The claimant was interviewed by Coleen Pont, an investigator engaged by Allianz on 10 March 2020. In paragraph 48 of a statement dated 13 March 2020 the claimant references injury to the right shoulder and back.

3. The claimant submits that an examination on a particular day is not indicative of a lack of history of spasms. The claimant was entitled to provide a history of spasms.

4. Further the claimant notes Medical Assessor Berry reported:

   “Mr Macri demonstrated three quarters of the normal range of flexion, extension was half range and rotation was half range. There was flattening of the lumbar lordosis but no paraspinal muscle spasm.”

5. The claimant submits asymmetric loss of range of motion qualifies for DRE lumbar category II.

THE MEDICAL EXAMINATION

Introduction

1. Mr Macri attended an examination with Medical Assessor Dixon on 17 October 2023.

2. The Panel subsequently became aware of the necessity to clarify with the claimant the history. Accordingly, at the request of the Panel Mr Macri participated in a further videoconference with Medical Assessor Dixon and Medical Assessor Moloney on 15 December 2023.

History provided by Mr Macri

1. Mr Macri had previous reconstruction of his left tibialis posterior tendon on 10 January 2019 at Royal North Shore Private Hospital with calcaneal osteotomy and excision of accessory navicular. He made satisfactory progress following this operation. He had the screw removed from his left sinus tarsi in early August 2019.

2. On 9 October 2019 the claimant was riding his motorbike in the right hand lane along James Ruse Drive towards Parramatta when the insured vehicle changed lanes, causing him to swerve and fall off his motorbike. He managed to ride his bike home to Oatlands before his wife took him to the Emergency Department of Westmead Hospital.

3. He was examined and then discharged the same evening complaining of pain in his neck, back and his right ankle which had gone under the pedal of the motorbike.

4. Mr Macri subsequently saw his GP who referred him for X-rays. He was off work for three to four weeks before returning to work as a retail manager in a supermarket in Cabramatta on restricted duties. He stopped work in February 2020, where he was doing part-time shop management working 20 hours a week.

5. Mr Macri stated on 27 February 2020 he complained to Dr Kong, that he had been experiencing right ankle pain since the accident as well as pain in the shoulders, more marked on the right.

6. Due to continuing pain in his left shoulder, Mr Macri underwent arthroscopic shoulder repair at Kareena Private Hospital on 22 March 2021 through his private health insurance. When he was reviewed by Medical Assessor Berry on 1 August 2022 he complained of pain in the neck on rotation to the left and reported that his left shoulder pain had settled completely following surgery.

1. He reported residual pain in his right shoulder and could not lie on it. He experienced recurrent spasm of his lower back on the right and he reported his knee injuries have settled. He reported his right hand and left elbow have settled. He still had ongoing pain in his right ankle, but this did not prevent him from walking.

2. He is currently working 40 hours part-time in the Opera House doing maintenance work, mainly underground, and avoids any heavy lifting or carrying due to shoulder brachalgia.

3. He prefers not to take medication.

Claimant’s presentation

1. He was consistent in presentation, and he had a straight forward manner. There was no embellishment.

The examination

Cervical spine

1. On examination, Mr Macri was 162cm tall and weighed 74kg.

2. He had symmetrical range of motion of his cervical spine with mild tenderness of the right trapezius muscle and there was no neurological deficit of either upper extremity or gross wasting.

Left and right shoulders

1. He had a good result from his arthroscopic surgery to the left shoulder with active abduction 150 degrees, forward flexion 60 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 70 degrees.

2. In the right shoulder there was stiffness on abduction with impingement at 140 degrees, forward flexion 150 degrees, extension 40 degrees, adduction 40 degrees, external rotation 70 degrees and internal rotation 60 degrees.

3. Shoulder girdle power on both sides was grade 4 out of 5 and at the right shoulder he had tenderness in the biceps groove and the anterolateral deltoid.

4. There was 2cm of wasting of his right upper arm compared with the left. Both forearms measured 24cm, 10cm below the elbow.

The left elbow

1. He had a full range of motion of both elbows.

The right hand

1. He had discomfort in his right wrist where he had abrasions to his right hand which had healed. The range of motion of both wrists was satisfactory as was the range of motion of the thumbs and fingers of both hands. The range of motion of both elbows was full and abrasions at the left elbow had healed.

The lumbar spine

1. The lower back showed lumbar stiffness with dysmetria with flexion decreased by one third and pain on back extension which was decreased by one half. There was mild erector spinae muscle spam on the right and tenderness in the right paralumbar and lumbosacral facet joint area. On straight leg raise at 60 degrees, he reported buttock and thigh sciatica. There was some pain in the right groin on straight leg raise. His reflexes were brisk, and his power was grade 5 out of 5 and his Babinski signs were negative. There was 1cm of wasting of his right thigh and no wasting of his right leg below the knee.

The right ankle

1. On examination Mr Macri had a full range of motion of his ankles and toes. His normal gait testing was satisfactory, but he did have some sciatica on toe and heel walking on the right.

The left knee

1. Mr Macri had a full range of motion of the left knee with no instability.

History reported during videoconference.

1. Mr Macri reiterated that he hit the road and sustained a fracture of his nose and bleeding.

2. He reported after the accident he went back to work at the supermarket lifting cartons. He then complained of shoulder pain and saw Dr Trantalis. Dr Trantalis reported right shoulder pain and weakness after Mr Macri came off his motor bike at moderate speed and landed onto his extended arm. There was no mention of the left shoulder.

3. Mr Macri was asked about the injury to his left shoulder. He could not remember how he fell from the bike, but noted he was worried about his nose.

4. Dr Trantalis recommended he undergo surgery to the right shoulder; however, Mr Macri underwent surgery to the left shoulder. When he was asked how he came to have surgery to the left shoulder Mr Macri stated he underwent surgery to the left shoulder because he required the right arm to undertake his day to day activities. The Panel finds this a surprising response.

5. Mr Macri reported he left the supermarket role in 2020 over a dispute, but not related to any physical problems.

6. Mr Macri was asked about the alleged injury to the lumbar spine. He was informed the available records suggest he had had no treatment and there is no record of lumbar spine imaging studies. Mr Macri was very vague. He thought he might have injured his lumbar spine when he lifted his Harley Davidson and moved it off the road. However, he was unable to say when it got sore. He reported he attended an osteopath and had therapeutic massage of his lumbar spine. He did not have any records and could not recall when he attended the naturopath.

7. Mr Macri was unable to say how his neck got sore and how he injured it. He conceded he did not complain about his neck and had not undergone any imaging of the cervical spine.

Imaging

1. Medical Assessor Stubbs reviewed the imaging made available by the claimant.

2. X-rays of the right shoulder on 27 February 2020 showed degenerative changes with supraspinatus tendinopathy.

3. An MRI of the right ankle on 16 March 2020 showed an osteochondral lesion of the talar dome with chondral thinning.

4. An MRI of the right shoulder on 6 October 2020 showed full thickness supraspinatus tear with biceps tendinosis and advanced AC (acromioclavicular) joint arthrosis.

5. An MRI of the right ankle on 26 October 2020 showed a type 2 accessory navicula bone without any evidence of ligamentous or chondral injury.

6. An MRI of the left shoulder on 26 October 2020 showed advanced AC joint arthrosis and a full thickness supraspinatus tear on a background of marked tendinosis. The tendon margin was thinned and there was reduction in muscle bulk.

DIAGNOSIS AND CAUSATION

1. In Briggs v IAG Limited trading as NRMA Insurance Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[35] His Honour stated at [70]-[72]:

   “70.   This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

   ‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

   ‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’

   71.    The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:

   ‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’

   72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

   [35] Briggs [2022] NSWSC 372.

The lumbar spine

1. The insurer disputes causation of the lumbar spine injury.

2. Mr Macri informed Medical Assessor Dixon that following the accident he attended hospital and was discharged the same evening complaining of pain in his neck, back and his right ankle.

3. In fact, the only complaint recorded at the hospital was to his nose and it is specifically noted there were no other injuries to the neck, chest, abdomen, pelvis or back. When Mr Macri saw his GP two days later, he was referred to Dr Novakovic with a broken nose and the Certificate of capacity dated 5 February 2020 only refers to a “broken nose”.

4. On 27 February 2020 Dr Kong reported Mr Macri was now claiming he had experienced ankle and shoulder pain since the accident. He made no complaint about the lumbar spine.

5. In fact, there is no record of treatment or investigation sought at any time in relation to the lumbar spine. The only mention of the lumbar spine is in the statement he provided to an investigator on 13 March 2020, five months post-accident when he stated he felt sore in the right shoulder and back.

6. When questioned about injury to the lumbar spine the only explanation Mr Macri was able to provide was, he thought he might have injured it when he lifted his Harley Davidson and moved it off the road. He was unable to say when his lumbar spine became sore and, other than the suggestion that he saw a naturopath, no records are available, and he was unable to state when he accessed that treatment or how often.

7. Noting the onus rests on the claimant the Panel is not satisfied on the balance of probabilities that the claimant sustained an injury to the lumbar spine caused by the accident.

The cervical spine

1. Mr Macri did not at any time report any complaint of neck pain relating to the accident and nor did he undergo any imaging of his cervical spine. He did not even reference injury to the neck in the statement he provided to the investigator on 13 March 2020.

2. It is theoretically possible that when he hit the road with an open face helmet, he may have extended his neck and sustained an injury to his neck. However, that is mere speculation. Indeed, even Mr Macri was unable to say when his neck became sore.

3. Where there has been no complaint, no investigation and no treatment and noting the onus of proof rests on the claimant the Panel is not satisfied on the balance of probabilities that the claimant sustained an injury to his cervical spine caused by the accident.

The right shoulder

1. The discharge summary of Westmead Hospital suggests the claimant stopped his fall with his outstretched hands.

2. On 27 February 2020 Dr Khong reported Mr Macri complained of right shoulder pain present since the accident. He underwent an X-ray of the right shoulder on 27 February 2020 which showed degenerative changes with supraspinatus tendinopathy. In his certificate of capacity dated 12 March 2020 Dr Kong reported Mr Macri had sustained a right shoulder rotator cuff tear.

3. Mr Macri consulted Dr Trantalis, orthopaedic surgeon. In his report dated 20 May 2021 Dr Trantalis stated the claimant came off his motor bike at moderate speed and landed onto his extended arm. He diagnosed an injury to the right shoulder including a right rotator cuff tear and also a rupture of the longhead of biceps and an injury to his AC joint.

4. Dr Trantalis felt there was a direct causal connection between the accident and the injury sustained by the claimant to his right shoulder. Whilst the MRI scans show the presence of degenerative change, there is no pre-accident history of complaint. The contemporaneous clinical notes of Westmead Hospital reported Mr Macri slid to the right side and his nose scraped the road. The Panel finds the mechanism of the accident could have caused or contributed to the right shoulder injury. Where Mr Macri complained of right shoulder pain since the accident when he saw Dr Kong on 27 February 2020, where he underwent an X-ray the same day the Panel accepts the opinion of Dr Trantalis and finds the accident did cause or contribute to the occurrence of the rotator cuff injury.

5. Mr Macri continues to have pain and stiffness in his right shoulder but is undecided whether to have arthroscopic surgery to that shoulder as it took him up to two years to recover from the surgery to his left shoulder.

6. The right shoulder does show post traumatic stiffness and impingement and it is probable that in the foreseeable future, arthroscopic surgery will be required.

7. The Panel finds the claimant sustained a rotator cuff injury to the right shoulder caused by the accident.

The left shoulder

1. The Westmead Hospital clinical notes reported the claimant lost balance of his bike, slid to the right side, his nose scraped the road, and his fall was stopped with his outstretched hands.

2. The initial shoulder complaint reported by Dr Kong and subsequently by Dr Trantalis was to the right shoulder.

3. The first complaint relating to the left shoulder occurred on 19 October 2020, some 12 months post-accident when Dr Kong reported it had only become a problem more recently. The first investigation of the left shoulder was the MRI on 26 October 2020.

4. Whilst Mr Macri initially told Medical Assessor Dixon he injured both shoulders in the accident he was questioned further about his shoulder complaints during the subsequent teleconference when he was unable to confirm he sustained injury to his left shoulder in the accident.

5. In his statement dated 13 March 2020 Mr Macri stated he felt sore in his right shoulder but made no mention of his left shoulder.

6. Mr Macri subsequently underwent arthroscopic repair of the left shoulder at Kareena Private Hospital in March 2021 with a good result.

7. Where there was no complaint of injury to the left shoulder until approximately 12 months post-accident, where Mr Macri is uncertain as to whether he sustained injury to the left shoulder, and where in that initial 12 month period he actively sought treatment for the right shoulder with no mention of the left shoulder, the Panel is not satisfied on the balance of probabilities that the claimant sustained an injury to the left shoulder caused by the accident.

The left elbow

1. Other than the suggestion that Mr Macri stopped his fall with his outstretched hands there is no complaint of injury to the left elbow.

2. Where there has been no complaint, no investigation and no treatment and noting the onus of proof rests on the claimant the Panel is not satisfied on the balance of probabilities that the claimant sustained an injury to his left elbow caused by the accident.

The right hand

1. In his statement dated 13 March 2020 Mr Macri stated he had grazing on his hands and knees. Noting Mr Macri slid to the right and stopped his fall with his outstretched hands the Panel is satisfied the claimant sustained soft tissue injury and abrasions to his right hand caused by the accident.

2. However, any soft tissue injury to the right hand has long resolved.

The left knee

1. There is no reported complaint, no investigation and no treatment of any injury to the left knee. Furthermore, there are no current complaints relating to the left knee.

2. Where there has been no complaint, no investigation and no treatment and noting the onus of proof rests on the claimant the Panel is not satisfied on the balance of probabilities that the claimant sustained an injury to his left knee caused by the accident.

The right ankle

1. The Panel notes when he came off his bike Mr Macri slid to the right side.

2. On 27 February 2020 Dr Khong reported that Mr Macri was complaining he had suffered from right ankle pain since the accident.

3. On 1 April 2020 Dr Kong referred Mr Macri back to Dr Wines noting he had been complaining of right ankle symptoms since the accident.

4. Mr Macri reported ongoing pain in his right ankle although he had a normal range of movement.

5. The Panel finds Ms Macri sustained a soft tissue injury to the right ankle caused by the accident.

ASSESSMENT OF PERMANENT IMPAIRMENT

Right shoulder

1. The claimant sustained a rotator cuff injury to the right shoulder.

2. The Panel relies on Figures 38, 41 and 44 on pages 3/43, 3/44 and 3/45 of the AMA 4 Guides. Utilising Figure 38 flexion of 150º = 2% upper extremity impairment (UEI), extension of 40º = 1% UEI. Utilising Figure 41 abduction of 140º = 2% UEI. Utilising Figure 44 internal rotation of 60º = 2% UEI. The total UEI of 7% converts to a 4% WPI under Table 3 on page 3/20 of the AMA 4 Guides.

3. The Panel finds the claimant has sustained a 4% WPI of the right upper extremity arising out of injury to the right shoulder caused by the accident.

Right ankle

1. Whilst the Panel finds the claimant sustained a soft tissue injury to his right ankle, on examination he had a normal range of movement. The Panel finds the claimant sustained 0% WPI for his right ankle.

Right hand

1. The soft tissue injury and abrasions to the right hand have resolved and do not result in any permanent impairment.

TREATMENT DISPUTE

Treatment dispute

1. The following treatment disputes were referred for assessment:

   ·whether the left shoulder arthroscopic rotator cuff repair surgery dated 22 March 2021 relates to the injury resulting from the accident, and

   ·whether the left shoulder arthroscopic rotator cuff repair surgery dated 22 March 2021 was reasonable and necessary in the circumstances.

2. The Panel accepts the left shoulder arthroscopic rotator cuff repair was reasonable and necessary in the circumstances having regard to the full thickness supraspinatus tear demonstrated on the MRI undergone on 26 October 2020.

3. Having the Panel finds the left shoulder arthroscopic rotator cuff repair did not relate to the injury resulting from the accident where the Panel has found the claimant did not sustain an injury to the left shoulder caused by the accident.

CONCLUSION

1. The Panel revokes the certificate of Medical Assessor Neil Berry dated 8 September 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI which is 4%:

   ·        right shoulder – rotator cuff injury;

   ·        right ankle – soft tissue injury, and

   ·        right hand – soft tissue injury and abrasions (resolved).

2. The Panel determines that the following injuries were not caused by the accident:

   ·        injury to the cervical spine;

   ·        injury to the lumbar spine;

   ·        injury to the left shoulder;

   ·        injury to the left elbow, and

   ·        injury to the left knee.

3. The Panel revokes the certificate of Medical Assessor Neil Berry dated 8 September 2022 and issues a new certificate determining:

   ·        the left shoulder arthroscopic rotator cuff repair surgery dated 22 March 2021 does not relate to the injury resulting from the accident, and

   ·        the left shoulder arthroscopic rotator cuff repair surgery dated 22 March 2021 was reasonable and necessary in the circumstances.