Allianz Australia Insurance Limited v Whitehurst
[2023] NSWPICMP 4
•12 January 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Whitehurst [2023] NSWPICMP 4 |
| CLAIMANT: | Margaret Dorothy Whitehurst |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 12 January 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 3 May 2018 when her vehicle was rear-ended by the insured vehicle; the medical disputes concerned the degree of impairment of the injury caused by the motor accident was greater than 10% and the provision of various physiotherapy; the claimant had ongoing dysmetria in the cervical spine assessed at 5%; the claimant had a pre-existing condition in the lumbar spine by reason of the prior L5/S1 fusion which is assessed at 20%; the pre-existing condition is evident from the CT scan dated 29 December 2017 which showed previous L5/S1 laminectomy and fusion; the current symptoms are at the same level of the impairment as the pre-existing impairment and there is no additional impairment; there was no injury to the femoral nerve because this is medically inexplicable from a rear-end collision; the claimant had consistent complaints of femoral nerve discomfort prior to the motor accident; ongoing complaints after the motor accident are explained in their entirety by the pre-existing condition; the report by the claimant was that shoulder loss of movement was due to interscapular pain; clinically, interscapular pain should not cause loss of shoulder movement; the interscapular pain was muscular related and probably due her kyphosis/posture; there was no traumatic injury to either shoulder; the present examination did not establish loss of shoulder movement due to the cervical spine injury; accordingly, there is no shoulder impairment caused by the motor accident; findings made that the physiotherapy under the treatment plan were reasonable and necessary and caused by the accident; Held – claimant assessed at 5% permanent impairment in respect of the cervical spine. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment The Panel revokes the certificate dated 15 March 2022 and a combined certificate dated 12 May 2022 and issues a new certificate and combined certificate determining that the injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%: Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care and The Review Panel confirms the certificate dated 15 March 2022. |
REASONS
BACKGROUND
Ms Dorothy Whitehurst (the claimant) suffered injury on 3 May 2018 when the insured vehicle struck the rear of the claimant’s vehicle pushing it into a vehicle in front.[1]
[1] Insurer’s bundle, p 12.
Allianz Australia Insurance Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Whitehurst 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%” and whether certain physiotherapy treatment is reasonable and necessary in the circumstances and caused by the motor accident. These constitute medical disputes within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
Ms Whitehurst alleges that she suffered 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’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
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 15 March 2022. The Medical Assessor assessed the degree of permanent impairment at 25%. He also found that the request for physiotherapy dated 4 March 2021 from Pilates Focus was both reasonable and necessary and related to the injury caused by the motor accident. The details of the assessment are set out later in these Reasons.
Medical Assessor Steiner provided an assessment on loss of vision. The Medical Assessor did not find that there was loss of vision caused by the motor accident. Medical Assessor Bodel then issued a combined assessment dated 22 June 2022.
No review was filed from the assessment issued by Medical Assessor Steiner.
THE REVIEW
The application for referral of a 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 which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
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.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, p 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (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 Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
STATUTORY PROVISIONS
Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
“(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,
….
(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.”
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts.
That conclusion is consistent with Schedule 2 of the MAI Act that defines a medical assessment matter as “whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)” (emphasis added).
Clause 2 (b) of Schedule 2 of the MAI Act was amended with the inclusion of the words “or to be provided” were inserted into the provision. The amendment followed a previous Commission decision rejecting the power under the MAI Act to determine a claim for future treatment.[9]
[9] Obeid v AAI Ltd [2022] NSWPICMP 76.
ASSESSMENT UNDER REVIEW
Medical Assessor Bodel provided a medical assessment dated 15 March 2022. The Medical Assessor determined that the claimant sustained soft tissue strains to the cervical and lumbar spines and right and left shoulders. The cervical and lumbar spines were assessed at DRE II (5% impairment), the right shoulder at 10% impairment and the left shoulder at 8%.
The Medical Assessor also determined that the request for physiotherapy contained in the Allied health recovery request dated 4 March 2021 was reasonable and necessary in the circumstances and related to the injuries caused by the motor accident.
OTHER MEDICAL ASSESSMENTS
Medical Assessor Allan concluded that the claimant suffered from Post-Traumatic Stress disorder caused by the motor accident.[10]
[10] Insurer’s bundle, p 480.
Medical Assessor Parmegiani assessed the permanent impairment of the psychological condition at 8%.[11]
MATERIAL BEFORE THE REVIEW PANEL
[11] Insurer’s bundle, p 1,439.
The insurer provided an extensive bundle of documents supplemented by a short bundle from the claimant.
Pre-existing records
In January 2017, Dr Mark Davies, neurosurgeon, noted prior laminectomy and fusion in 2002.[12] Current symptoms included intermittent numbness in the right leg involving the right foot and anteromedial thigh. Other symptoms included right groin pain and deep pain and dragging feeling in the lower abdomen. Dr Davies doubted that abdomen pain was related to the spinal pathology and noted the fusion was “relatively intact”.
[12] Insurer’s bundle, p 304.
In September 2017 the claimant underwent a bilateral L5/S1 transforaminal block and bilateral hypogastric plexus block.[13] The clinical notes refer to persisting right groin pain.
[13] Insurer’s bundle, pp 147-178.
The clinical note of Dr Doust dated 30 October 2017 refers to “pain radiating from R groin down medial aspect of R leg to calf. R foot tingling and numb. L foot numb also.”[14]
[14] Insurer’s bundle, p 227.
In November 2017 the claimant underwent a right femoral nerve pulsed radiofrequency ablation.[15]
[15] Insurer’s bundle, pp 115-146.
In December 2017 Dr Doust noted pelvic pain and dragging sensation with prior laminectomy in 2001 and spinal fusion in 2004.[16]
[16] Insurer’s bundle, p 229.
The CT scan of the lumbar spine dated 29 December 2017 noted previous L5/S1 laminectomy and fusion with placement of pedicle screws and rods and grade 1 spondylolisthesis at L5/S1.[17]
[17] Insurer’s bundle, p 244.
In February 2018 Dr Mark Nallaratnam, cardiologist, noted chest pain syndrome following coronary angiogram in 2017 complicated by a pseudo aneurysm and ongoing pain issues.[18] In March 2018 Ms Whitehurst suffered a collapse, had sensory symptoms in the left face and arm and migraine headaches.[19]
[18] Insurer’s bundle, p 182.
[19] Insurer’s bundle, p 205, p 232.
On 2 March 2018 Dr Davies reviewed recent bone scan, CT of the abdomen and MRI of the thoracic spine and concluded that there was no obvious spinal cause for the abdominal and groin pain.[20]
[20] Insurer’s bundle, p 307.
On 19 March 2018, Dr Natalie Hitches, neurologist noted daily headaches and facial numbness with “significant occipital and cervical paraspinal muscle tenderness”.[21]
Contemporaneous records
[21] Insurer’s bundle, p 309.
Discharge summary from St Vincent Hospital date 9 May 2018 referred to cervical spine pain, lower back and generalised abdominal pain, headache and pain to right leg.[22] Dr Coxin reported that the MRI scan of the cervical spine dated 4 May 2018 showed no cord injury and opined:[23]
“Subtle interspinous interlaminar oedema at the C3-4 and C4-5 level with subtle facet effusions at these level, probable low-grade ligament and facet sprain due to the recent trauma.”
[22] Insurer’s bundle, p 325.
[23] Insurer’ bundle, p 328.
The discharge summary from President Private Hospital dated 9 May 2018 refers to neck and low back pain following the motor accident.[24]
[24] Insurer’s bundle, p 24.
The clinical note of Dr Doust dated 31 May 2018 referred to the motor accident and that the claimant thought that her head hit the steering wheel. Initial symptoms included pins and needles down both arms and numbness in fingers. Pain was noted in the neck, lower abdomen and right knee.[25]
[25] Insurer’s bundle, p 233.
The certificate dated 31 May 2018 refers to “cervical sprain, low abdominal pain, R knee contusion following MVA”.[26] The letter from Dr Doust dated 31 May 2018 noted “soft tissue injuries sustained in a motor vehicle accident”.[27]
[26] Insurer’s bundle, p 19.
[27] Insurer’s bundle, p 216.
On 8 June 2018 Dr Doust noted right knee pain was worse and right inguinal pain since last visit. The neck was still in a soft collar.[28] The X-ray and ultrasound of the right knee dated 13 June 2018 showed no significant abnormality.[29]
[28] Insurer’s bundle, p 234.
[29] Insurer’s bundle, p 246.
By letter dated 20 June 2018, Dr Doust referred Ms Whitehurst for physiotherapy under the “enclosed care plan” for neck, thoracic and knee pain”.[30]
[30] Insurer’s bundle, p 280.
An Allied Health recovery request dated 28 June 2018 sought approval for the payment of treatment to the cervical and thoracic spines.[31]
[31] Insurer’s bundle, p 684.
Physiotherapy records for the period from June to August 2018 specified treatment to the cervical spine.[32]
[32] Insurer’s bundle, pp 1,184-1,186
On 4 July 2018 the claimant underwent a caudal epidural block and right knee intra-articular injection.[33]
[33] Insurer’s bundle, p 48.
Discharge summary dated 10 July 2018 referred to acute exacerbation of chronic back pain after motor accident.[34]
[34] Insurer’s bundle, p 338.
Ultrasound of the right shoulder dated 25 February 2022 showed small partial thickness articular surface tears. No full-thickness rotator cuff tear was identified.[35]
[35] Insurer’s bundle, p 1,489.
Claim form
The claim form dated 12 June 2018 did not specify the injuries sustained in the motor accident. The claimant stated:[36]
“I had a pre-existing back condition and right femoral nerve condition which were made worse by the 3/5/18 injury.”
[36] Insurer’s bundle, p 13.
The medical certificate attached to the claim form refers to the motor accident injuries as “interspinous ligament damage C3-4 & C4-5”. Spinal fusion at L2-L4 is listed as a pre-existing factor as well as “prior chronic pain” in that region as a matter affecting recovery.
Specialist treating records
The claimant was reviewed by Associate Professor Cordato, neurologist, in November 2021 following increase in dysaesthesia and pain in the right arm and leg following recent coronary angiography.
In February 2022 Associate Professor Cordato noted that the MRI scan showed bilateral C6/7 foraminal stenosis on the right and ligamentous injury at C6/7 with adjacent oedema. He opined that these were chronic effects of the whiplash injury.[37] Nerve conduction studies dated 17 January 2022 were normal.[38]
[37] Insurer’s bundle, p 772.
[38] Insurer’s bundle, p 775.
Qualified opinions
Dr Drew Dixon, orthopaedic surgeon, provided a report dated 24 September 2020.[39] The doctor noted full range of movement in the left shoulder with significant restriction of range of motion in the right shoulder and that the “left shoulder and right knee have settled”.
[39] Claimant’s bundle, p 2.
Dr Dixon assessed DRE Category II for the cervical and lumbar spines (5% each) and 7% impairment of the right shoulder. He otherwise assessed 2% for femoral neuralgia and apportioned one-half due to a pre-existing condition.
Dr Ian Barrett, orthopaedic surgeon, was qualified by the insurer and provided a report dated 31 January 2020.[40] Dr Barrett noted cervicothoracic symptoms with referral of pain to both shoulders and intermittent tingling to the right middle and ring fingers. Pain in the right groin has worsened with radiation of pain into the right thigh and to the right great toe.
[40] Insurer’s bundle, p 749.
Dr Barrett diagnosed soft tissue injuries to the neck and back. The neck was assessed as 5% (DRE II). The doctor noted that the claimant was previously 20% as a result of the prior fusion and there was no additional impairment attributable to the motor accident.
Dr Graham George, psychiatrist qualified by the insurer, opined that the claimant suffered from chronic post-traumatic stress disorder in combination with mild persistent depressive disorder secondary to exacerbation of chronic pain.[41]
[41] Insurer’s bundle, p 388.
SUBMISSIONS
Claimant’s submissions dated 1 March 2021[42]
[42] Insurer’s bundle, p 557.
The claimant referred to the assessment of Dr Dixon dated 24 September 2020 and submitted that the claimant suffered injuries to the cervical and lumbar spines, right and left shoulders, right knee, vision impairment and psychological injury.
The claims for the upper extremities were based on both soft tissue injury to the shoulders and restricted range of movement from radicular pain.
Claimant’s submissions dated 25 July 2022[43]
[43] Claimant’s bundle, p 1,482.
These submissions were filed opposing the insurer’s application to review the assessment issued by Medical Assessor Bodel.
A preliminary submission related to the provision of Dr Barrett’s report. That issue is not relevant to our determination as the report is before the Panel.
The claimant submitted that she was asymptomatic at the time of the motor accident as she had undergone a pelvic nerve block on 16 January 2018.
The claimant submitted that the diagnosis of bilateral shoulder injury was based on a history of pre and post-accident symptoms and an assessment of the shoulders. The ultrasound dated 25 February 2022 identified partial thickness articular surface tears. The claimant otherwise noted that Dr Barrett’s opinion supported a loss of range of movement of both shoulders from radicular pain.
Claimant’s submissions dated 30 September 2022[44]
[44] Claimant’s bundle, p 1.
The claimant referred to its “treating and medico legal evidence [submitted] to date.” This evidence was included in the extensive bundle filed by the insurer.
Insurer’s submission dated 6 April 2021[45]
[45] Insurer’s bundle, p 578.
The insurer submitted that the claimant did not meet the DRE category II for the cervical spine referring to the absence of neurological deficit (Dr Dixon). It also noted that there was pre-existing migraines and pre-existing arthritis.
The insurer submitted that the right and left shoulders were not injured in the motor accident referring to the absence of contemporaneous complaint. It otherwise noted that Dr Dixon did not assess any impairment of the left shoulder.
The insurer noted the initial right knee complaint and that Dr Dixon reported full range of motion.
The insurer noted the pre-existing lumbar spine complaints and submitted that there was “no evidence to support that the subject motor vehicle accident has aggravated the pre-existing lumbar spine injury”. It also submitted that the right femoral nerve injury causing radiculopathic symptoms preceded the motor accident.
The insurer otherwise noted that the pre-existing lumbar spine condition was DRE category III based on the prior fusion and longstanding radiculopathic symptoms.
Insurer’s submissions dated 19 July 2022[46]
[46] Insurer’s bundle, p 1,450.
These submissions were made seeking a review of the Medical Assessment.
The insurer noted Dr Barrett’s opinion which provided that there was a pre-existing condition of the lumbar spine assessed at 20%. It submitted that Dr Barrett opined that the neck and back injuries had “sufficiently recovered”. The Panel observes that this submission is somewhat inconsistent with Dr Barrett’s assessment for the cervical spine.
The insurer referred to Dr Dixon’s opinion dated 24 September 2020 when he opined that the left shoulder had recovered. It was submitted that this showed inconsistency by the claimant or raised the need for an alternative mode of assessment.
RE-EXAMINATION
Ms Whitehurst was examined by Medical Assessor Moloney. The examination report is as follows:
“Mrs Whitehurst attended the medical suites at PIC on 14 December 2022. She was accompanied by her son, Mr Whitehurst who remained for the interview and examination. She is age 78.
Pre accident history
Prior to the accident, Mrs Whitehurst was working as an art teacher at South Sydney Juniors club and also at Penshurst. She had been teaching for 10 to 15 years prior to the accident. Mrs Whitehurst is a widow and lives alone.
There was a past history of the lumbar laminectomy in 2001 and spinal fusion in 2004. There was also a pelvic block in January 2018. She stated at that time she was struggling to walk with severe pain and attributes the lumbar disc problems due to her early occupation as an acrobat. There is also a past history of cardiac conditions which was treated with coronary stents.
History motor accident and subsequent treatment
Mrs Whitehurst was the driver of her car and stationary when hit from the rear which caused her car to be pushed under a tabletop truck in front of her. She was wearing a seatbelt at the time, but airbags were not deployed. The ambulance attended the scene and removed her over the back seat with care due to neck pain and pins and needles down the arms. She was taken St Vincent’s Hospital and remained for 2 weeks and after that at further rehabilitation at President Hospital. Initially there was severe neck spasm and pain with tingling down both arms. She stated she had difficulty holding her head up. There was also pain in the right knee and left shoulder. There was a rib fracture and partial collapse of the lung which resolved without any surgical intervention.
After discharge from hospital, her GP referred her to physiotherapy, which was helpful and also to Dr Yu, a pain specialist. Dr Yu repeated the pelvic block which was of no benefit and also inserted a spine stimulator which gave no benefit and in fact increased the pain and was removed.
About 5 or 6 weeks after the accident, there was a sudden increase in low back pain which radiated down the right leg and a repeat pelvic block gave some benefit.
Further accidents
Mrs Whitehurst was involved in a second motor vehicle accident in February 2022 when she ran into another car was driving. She states that no further injury resulted from the collision.
Current symptoms
At present, the most severe pain is persistent in the right groin, right buttock which radiates across to the left, numbness over the coccyx and numbness down the right lateral thigh and lateral calf. There is also tingling and numbness in the entire right foot with total numbness in the 4th and 5th toes. This pain increases with walking for more than 10 minutes or prolonged sitting. She also gets increased pain if she sleeps on the right side.
The right shoulder was painful and radiated into the right trapezius muscle. There is a sharp intrascapular pain and further radiation of pain from the right trapezius muscle to the right arm over the shoulder with the initial tingling down the right arm. At present there is pain down the right arm especially the 3rd and 4th fingers. There is a slight pain also in the left arm in a similar distribution.
At present she has difficulty going upstairs and relies on using her arms on the handrail. Due to this she is selling her unit which has 1 1/2 flights of stairs to the front door. It is painful getting in and out of the car and since the accident she has ceased painting with oils due to the need to have her arms elevated. Mrs Whitehurst is able to drive but finds it painful to turn her head. She can’t do any heavy housework or carry heavy shopping.
Present treatment
Present medication is Endone one or one and a half tablets per day, Panadol 2 twice a day, Endep 10 mg at night, Valdoxin 25 mg at night, Lyrica 25 mg at night and glucosamine. She has physiotherapy on a fortnightly basis with some benefit and has an appointment with Dr Yu the day after our interview.
Clinical examination
Mrs Whitehurst walked into the rooms with an antalgic gait and had a walking stick in the right hand. She looked uncomfortable during the interview and stated she is right-handed. His height was measured at 163 cm and weight 67 kg.
Cervical spine
On testing range of movement, flexion was 50% of expected range with extension limited to 20% of expected range. Side bending was 40% of the expected range as was rotation. Thus, with the limitation extension dysmetria is present.
On palpation there was tenderness over the paravertebral muscles bilaterally in the entire cervical spine and tenderness over the upper thoracic spines and mid thoracic spine region. There is a prominent kyphosis of the upper spines.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and a global decrease in sensation to light touch in the right upper arm and hands. This was not in a dermatomal pattern. No muscle wasting was apparent with the circumference of the upper arms 26 cm bilaterally (10 cm above the olecranon process) and at the maximum circumference in the forearms 23 cm bilaterally.
Shoulders
On palpation there was tenderness over both scapulae, but no crepitus was noted on passive movement. Gentle passive movement was 120° flexion in both arms. Active movement was measured using a goniometer and repeated 3 times. Mrs Whitehurst states that the limitation in range of movement was due to an increased pain in the intrascapular region but there was no referral of pain from the cervical spine during this examination. There was no specific pain in the shoulder joint region.
Shoulder Movements Active ROM Measured
RIGHTActive ROM Measured
LEFTFlexion 90° 80° Extension 40° 40° Adduction 40° 30° Abduction 40° 60° Internal Rotation 60° 80° External Rotation 80° 80° Lumbar spine
Mrs Whitehurst walked with an antalgic gait and was unable to walk on heels and toes or squat due to poor balance. On testing range of movement, flexion was 50% of expected range and extension was 30% of expected range. Side bending was 60% of expected range bilaterally. Straight leg raise when lying was 80° on the left and zero on the right but when seated was 80° bilaterally with negative sciatic nerve root tension signs.
On neurological examination of the lower limbs, power was normal on the left but minimal in the entire right leg. Reflexes were equal bilaterally but weak. On testing sensation, there was a decrease in sensation over the lateral right thigh and calf and dorsum of right foot. No muscle wasting was apparent with the circumference of the lower thighs 38 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 33 cm bilaterally.
Mrs Whitehurst stated that it was too painful to attempt to flex her right hip which resulted in spasm in the upper right thigh.
Right knee
On testing range of movement, both knees had a flexion of 130° with 0° extension. No ligament laxity was noted, and no effusions were present. Mrs Whitehurst states that she gets a very occasional sharp pain in the knee but basically it is asymptomatic.
Comments on consistency
At the time of my examination, right hip movement could not be assessed but at the time Assessor Bodel examined her in March 2022, there was a full range of hip movement. She stated that the deterioration was due to a dramatic increase in pain since then. The left shoulder has deteriorated in the past 2 years. Dr Dixon recorded that the left shoulder had settled with 0% WPI and Assessor Bodel had flexion of 120 degrees and abduction of 90.
Permanent Impairment
Cervical spine
Dysmetria on testing ROM is 5% WPI. The same findings as Dr Bodel and Dr Dixon.
Lumbar spine
Symptoms and signs, at present involve the same level as previous fusion with increased pain combined with the previous injury to the right femoral nerve. Thus WPI is 20%-20% =0 % WPI
Right knee
Resolved with no impairment.
Shoulders
Mrs Whitehurst feels that she had shoulder pain since the MVA but it was initially neck pain radiating into the arms, mainly the right side. The first investigation was an ultrasound of the right shoulder in February 2022 (nearly 4 years after the MVA) which reported small articular surface tears which would not cause the loss of ROM noted. The left shoulder had a full ROM when Dr Dixon examined her in 2020. Deterioration since then is not related to the MVA.
The Nguyen principle does not apply as at the time of my examination, shoulder movement didn’t cause any neck pain and cervical spine movement didn’t result in any shoulder pain. In fact, on testing ROM of the shoulders, limitation in movement was due to interscapular pain.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[47] The Panel adopts the examination findings of Medical Assessor Moloney and adds the following brief reasons.
[47] Section 7.26(6) of the MAI Act.
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[48] and Insurance Australia Ltd v Marsh.[49]
[48] [2021] NSWCA 287 at [40], [41] and [45].
[49] [2022] NSWCA 31 at [11], [21], [64].
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAI Act[50]. In Raina v CIC Allianz Insurance Ltd[51] 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), ss5D 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.”
[50] See s 3B(2) of the Civil Liability Act 2002.
[51] [2021] NSWSC 13 (Raina) at [65].
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[52] 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.
[52] [2021] NSWSC 548 (Norrington).
The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[53] 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[54]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[55]).
[53] [2016] NSWCA 229 at [64]-[66].
[54] [2004] NSWCA 34 at [35].
[55] [2014] NSWSC 888 at [31]-[32].
Cervical spine
The motor accident caused injury to the neck as is evident from the contemporaneous notes and consistency of complaints. There is ongoing impairment in the neck region due to dysmetria.
Various doctors assessed the claimant’s impairment of the cervical spine as DRE category II.
The Panel is satisfied that the present impairment was materially caused by the motor accident. The findings on examination establish that the claimant is assessed at DRE category II and is assessed at 5%.
Lumbar spine
We accept that the motor accident caused an increase in pain in the lower lumbar region.
The claimant had a pre-existing condition in the lumbar spine by reason of the prior L5/S1 fusion which is assessed at 20%.[56] The pre-existing condition is evident from the CT scan dated 29 December 2017 which showed previous L5/S1 laminectomy and fusion.
[56] AMA 4, par 3.3g, p 102.
The current symptoms are at the same level of the impairment as the pre-existing impairment and there is no additional impairment.
Whilst there was an increase in pain caused by the motor accident, there has been no increase in the level of permanent impairment.
Accordingly, the impairment for the lumbar spine after the deduction for pre-existing impairment pursuant to cl 6.31 of the Guidelines is 0%.
Femoral nerve
The claimant suffered pre-existing symptoms in the femoral nerve which is referenced in the clinical records at various times and as recently prior to the motor accident in March 2018.[57]
[57] Report of Dr Davies.
We do not accept that there was injury to the femoral nerve because this is medically inexplicable from a rear-end collision. Further, Ms Whitehurst had consistent complaints of femoral nerve discomfort prior to the motor accident. Ongoing complaints after the motor accident are explained in their entirety by the pre-existing condition.
The Panel does not accept that there was injury. aggravation or an exacerbation of the femoral nerve condition caused by the motor accident. Accordingly, there is no assessable impairment of that condition.
Shoulders
There was no contemporaneous complaint of pain in either shoulder. That is relevant but not determinative of injury. Further, there was no record in the initial physiotherapy notes of treatment to either shoulder.
The nature of the motor accident does not explain a mechanism of injury to either shoulder.
The ultrasound dated 25 February 2022 identified partial thickness articular surface tears. The existence of partial thickness tears is normal given the claimant’s age. Further, the period of time between the date of the ultrasound and the motor accident, when there was an absence of complaint for a significant period is not suggestive of the pathology being caused by the motor accident.
The shoulder condition has obviously deteriorated since the examination undertaken by Dr Dixon in 2020. At that time there was no restriction of movement in the left shoulder. Again, the loss of motion of the left shoulder since that time is explicable by the aging process and does not suggest any relationship to the motor accident.
Loss of range of movement in the shoulders was noted by Dr Barrett by reason of referred pain from the cervical pain and would be assessable and compensable. Medical Assessor Moloney specifically tested for impairment due to referred pain from the cervical spine and found none.
The assessment by Medica Assessor Moloney showed that the loss of movement was reported by Ms Whitehurst as due to interscapular pain. Clinically, interscapular pain should not cause loss of shoulder movement. The interscapular pain reported by Ms Whitehurst was muscular related and probably due her kyphosis/posture.
We are not satisfied that there was traumatic injury to either shoulder. Further, the present examination by Medical Assessor Moloney did not establish loss of shoulder movement due to the cervical spine injury. Accordingly, there is no shoulder impairment caused by the motor accident.
Right knee
The motor accident caused injury to the right knee. This condition has resolved as is evident from the recent examination and the claimant’s history. This conclusion is otherwise consistent with the assessment undertaken by Dr Dixon in 2020.
There is no permanent impairment of the right knee.
TREATMENT AND CARE DISPUTE
Reasonable and necessary in the circumstances
Ms Whitehurst is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[58], Grove J stated:[59]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[58] [2003] NSWCA 52 (Clampett).
[59] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[60]
[60] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[61] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[61] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
The claimant has ongoing symptoms in the cervical spine which may benefit from further physiotherapy. This type of treatment is recognised by medical experts and is an appropriate medical treatment for the claimant’s symptoms. The treatment is relatively inexpensive.
We accept that the request for physiotherapy dated 4 March 2021 from Pilates Focus is both reasonable and necessary treatment.
Did the treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson[62]. These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[62] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[63] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[63] [2018] NSWSC 1710 at [29] (Phillips).
By reason of our earlier findings, we accept that the ongoing cervical spine condition is caused by the motor accident.
CONCLUSION
The certificate which assessed permanent impairment is revoked. The new certificate is attached at the commencement of these Reasons.
The certificate determining the treatment dispute is confirmed.
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