Allianz Australia Insurance Ltd v Argyle

[2022] NSWPICMP 109

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Ltd v Argyle [2022] NSWPICMP 109

CLAIMANT:

Gregory Argyle

INSURER:

Allianz Australia Insurance Ltd

REVIEW PANEL:

Principal Member John Harris
Dr Geoffrey Stubbs
Dr Margaret Gibson

DATE OF DECISION:

10 May 2022

CATCHWORDS:

MOTOR ACCIDENTS- The claimant was involved in a motor accident on 2 February 2016 when he sustained various soft tissue injuries; Held- The claimant suffered soft tissue injuries to the cervical and thoracic spines; on reassessment by both Medical Assessors there was nil impairment of these body parts; the Panel was not satisfied that there was injury to the lumbar spine due to the absence of contemporaneous notes, the absence of allegation of injury by the claimant in 2016 and 2017, the underlying degenerative problems and the problems caused by the underlying polyneuropathy; the description of the mechanism of the injury did not suggest traumatic insult to the shoulders. Any initial shoulder symptoms were caused by referred pain from the cervical and/or thoracic spines; the current shoulder problems were due to progression of adhesive capsulitis caused by poorly controlled diabetes; Panel was not prepared to accept that there was any restriction of movement in the shoulder was caused by the motor accident; claimant assessed at 0% whole person impairment; original assessment revoked.  

DETERMINATIONS MADE:  

The Panel revokes the certificate dated 16 March 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%:

·        cervical spine – soft tissue injury;

·        thoracic spine – soft tissue injury;

·        left shoulder – referred pain - Nguyen principle, and

·        right shoulder – referred pain - Nguyen principle.

BACKGROUND

1. Mr Gregory Argyle (the claimant) suffered injury in a motor accident on 2 February 2016 when a vehicle travelling in the opposite direction made an illegal right-hand turn and collided with the claimant’s vehicle.

2. Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay to Mr Argyle any damages under the Motor Accidents Compensation 1999 (the MAC Act).

3. The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the Act.[1]

   [1] See ss 57 and 58 of the MAC Act.

4. Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

5. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]

   [2] Clause 1.2 of the Guidelines.

6. The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor James Bodel and dated 16 March 2021.  The details of that assessment and a previous medical assessment conducted by Medical Assessor Sam Perla are set out later in these Reasons.

7. 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.[3]

   [3] Section 63(7) of the MAC Act.

8. On 3 June 2021, the delegate of 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.[4]

   [4] Section 63(2B) of the MAC Act.

9. Pursuant to s 63(3) of the Act and Schedule 1, clause 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 PIC.

CONDUCT OF THE REVIEW

1. 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.[5]

   [5] Section 41(2) of the PIC Act.

2. 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.[6]

   [6] Rule 128 of the PIC Rules.

3. The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]

   [7] Section 63(3A) of the Act.

4. The Panel issued a Direction calling for bundles of documents and directing the parties to address certain issues.

MEDICAL ASSESSMENT UNDER REVIEW

1. Medical Assessor Bodel examined Mr Argyle and provided a report dated 16 March 2021. The motor vehicle accident was described by the Medical Assessor in the following terms:

   “He states that as he proceeded along the road, suddenly an oncoming motor vehicle made an illegal U-turn across his path and ran into the right front corner of his vehicle. His drivers window was “shattered”. He could not open his door. He states that others helped him and he eventually was able to get out through the drivers door.”

2. Medical Assessor Bodel recorded a history that Mr Argyle immediately developed severe neck pain and shoulder girdle pain as well as pain in the interscapular region of the thoracic spine and intermittent low back pain.

3. Medical Assessor Bodel concluded that Mr Argyle suffered “a soft tissue injury to the cervical spine, thoracic spine and lumbar spine and rotator cuff pathology in both shoulders as a consequence of the motor vehicle accident”. He assessed a 25% permanent impairment of the cervical spine which was entirely pre-existing due to multilevel spinal fusion undertaken 40 years previously, 0% impairment of the thoracic spine and 5% impairment of the lumbar spine. The upper extremity impairments, assessed by reason of restriction of range of motion, were each assessed at 10% permanent impairment. Medical Assessor Bodel assessed the right upper extremity, left upper extremity and the lumbar spine applying the combined tables at 23% whole person impairment.

PREVIOUS MEDICAL ASSESSMENT

1. Medical Assessor Sam Perla provided a previous medical assessment issued under Part 3.4 of the MAC Act. The Medical Assessor concluded that Mr Argyle suffered soft tissue injuries caused by the motor accident to the cervical spine, left shoulder, right shoulder and thoracic spine. He described the motor vehicle accident in the following terms:

   “[H]e stated that there was a car parked on the opposite side of the road that suddenly undertook a U-turn across as he described “double yellow lines” and a collision occurred between his van and that vehicle.

   He recalls he was thrown forward and backwards in the cabin. He stated his head struck the windscreen. He denied loss of consciousness.”

2. Medical Assessor Perla recorded a history that Mr Argyle was transported to Blacktown Hospital and that he was immediately aware of “pain between both shoulder blades and also he thought both shoulders”.

3. At the time of that assessment Mr Argyle reported to Medical Assessor Perla “chronic pain, primarily between both shoulder blades together with bilateral shoulder pain and restricted range of movement”. Mr Argyle reported neck stiffness associated with the 1980 fusion but otherwise denied ongoing neck pain relating to that incident.

4. Medical Assessor Perla concluded that Mr Argyle sustained soft tissue injuries to the cervical spine, thoracic spine, left shoulder and right shoulder caused by the motor vehicle accident. The Medical Assessor assessed 5% permanent impairment of the right shoulder, 4% permanent impairment of the left shoulder and 0% impairment of the cervical and thoracic spine.

5. The application for assessment which resulted in Medical Assessor Perla’s examination and report did not allege that Mr Argyle suffered low back injury. That would explain the absence of reference by the Medical Assessor to a low back injury.

MATERIAL BEFORE THE REVIEW PANEL

1. The Panel had before it the following material:

   (a)   the extensive material which was before Medical Assessor Perla;

   (b)   the further material which was before Medical Assessor Bodel, and

   (c)   the various submissions filed in this Application including material which was attached to the Application and Reply.

2. The parties did not respond to that part of the Direction advising of any further material that should be before the Panel.

3. Shortly prior to the medical examination, the insurer filed further documents without explaining why they were filed at such a late stage. The absence of any explanation of why the documents were filed at that point is unsatisfactory, and the documentation was not as compelling as the insurer submitted.[8] This material related to complaints in the early 1990’s of left shoulder pain. Given the antiquity of the complaints we do not accept that the material shows a lack of credit as the insurer submitted. We consider the further material of marginal, if any weight and do not accept that those records undercut Mr Argyle’s credit.

   [8] Insurer’s submissions, 7 April 2022.

Medical records

1. The ambulance officer attended the scene and reported the following:

   “O/A pt was sitting in bus shelter officer at MVA scene. Ambulance inspector, police and fire/rescue were on scene. Pt stated that he was driver and sole occupant of van that accidentally rain into the rear right of a turning car. Pt also stated that he was travelling at 50 kms and skidded for approx 10 metres before collision. Pt was restrained by 3 point seat belt had no air bags deployed and no LOC or head strike. Pt self extricated and had full recollection of event. Pts pain/injuries are listed and all vitals as displayed with no change from baseline.”

2. The report referred to no immediate life threat and to “right ribs pain described as aching”.

3. Mr Argyle was then conveyed to Blacktown Hospital where he was an outpatient for approximately three hours.[9]  The triage nurse recorded pain in the right shoulder and right ribs, self-extricated, nil airbags deployed and denied hitting head.  Mr Argyle reported right shoulder pain but denied neck pain.

   [9] The discharge summary refers to a hospital attendance from 13.40 to 16.43.

4. Mr Argyle was then certified unfit to attend normal duties for two days.

5. The general practitioner, Dr Asar, provided a series of medical certificates commencing on 4 February 2016. The certificates serially diagnose injury to the neck, upper back and shoulders. A report dated 9 February 2016 from Dr Asar on referral to Quakers Hill Physiotherapy Centre referred to the motor vehicle accident when Mr Argyle sustained soft tissue injuries to the neck and upper back.

6. The clinical note of Dr Asa on 4 February 2016 is in the following terms:

   “W/C Review

   As involved in MVA on 2/2/16

   While Driving his van at work

   A car made U-turn in front of him

   Was taken to hospital

   C/O pain in his neck upper back and both shoulders

   Exam

   Neck movement slightly restricted

   No tender point on c/spine

   Shoulders have good ROM

   Soft tissues injury”

7. The clinical note of 9 February 2016 referred to “persistent neck and upper back pain”. On 12 February 2016, the general practitioner recorded that Mr Argyle had commenced physiotherapy and return to work plans were discussed. On 19 February 2016 the general practitioner noted that Mr Argyle was “well and improving”.

8. Mr Argyle commenced physiotherapy on 11 February 2016. Physiotherapy plans including those dated 29 February 2016 and 4 April 2016 refer to the cervical spine, thoracic spine and shoulder pain. A pain diagram contained in the physiotherapy notes and completed on 11 February 2016, specifies pain in the upper back, neck and both shoulders.

9. The clinical notes from Emerald Medical Centre commence on 8 April 2016. The clinical notes lack detail. On 17 May 2016, the doctor recorded a complaint of “not able to lift heavy loads”.   On 22 June 2016, the doctor recorded that Mr Argyle “feels better and was doing pre-injury duties”.

10. In a certificate dated 4 May 2016 Mr Argyle was certified fit for duties working 7.5 hours per day, five days per week with the following restrictions:

    (a)   lifting/carrying less than 10kg;

    (b)   pushing/pulling ability less than 10 kg;

    (c)   no frequent bending, and

    (d)   able to drive with a co-worker.

11. A rehabilitation closure report dated 24 June 2016 noted Mr Argyle was referred to it on 12 April 2016. A driving functional was conducted on 21 April 2016 when Mr Argyle demonstrated the functional ability to drive commercial vehicle. On 4 May 2016 a return-to-work goal was agreed with a return to pre-injury duties, that is the same job with the same employer. A grade suitable duties plan was prepared. The author observed that “this was a successful upgrade with Mr Argyle returning to pre-injury duties as a Service Technician Driver”.

12. The author notes that Mr Argyle was “compliant and motivated” throughout the return-to-work program and “at this stage he is managing all duty requirements”.

13. Dr Asar recorded on 11 July 2016 that Mr Argyle “has recovered from last MVA in Feb well” and “back to his normal duties”. Examination at that time reported that both shoulders had full range of motion. The lower back was also reported as “normal ROM”.

14. On 29 July 2016 Dr Asar reported pain in the upper back after Mr Argyle had started a new job. Examination referred to restricted range of movement in both shoulders and aggravation of upper back pain.

15. On 10 August 2016 Dr Asar noted a recent history of fall with pain in the sacrococcygeal region. Subsequent scans reported by Dr Brian Lam reported a mildly displaced fracture of the S4 segment.

16. In September 2016, Mr Argyle reported neck and upper back pain and electrical shock to both hands.

17. An MRI scan of the cervical spine dated 6 October 2016 referred to pain in the upper back radiating into both hands noting a previous cervical fusion and questioned myelopathy. Dr Craig Harris noted the fusion at C2 to C3 with a focal area of myelomalacia, mild canal stenosis at C3/4 and C4/5 and multilevel foraminal compromise.

18. Dr Asar then referred Mr Argyle to Dr Dowla. On initial review, Dr Dowla recorded a one-year history of pain in both hands following motor vehicle accident and whiplash injury and paraesthesia and numbness affecting fingers and toes. Dr Dowla opined that Mr Argyle was suffering from “very severe diabetic polyneuropathy”.

19. Mr Argyle was reviewed by Dr Dowla on 11 November 2016. Dr Dowla observed a slightly antalgic gait with ataxia and weakness, wasting of the hand intrinsics and absent knee and ankle jerks. Nerve conduction studies were performed which showed absent sensory action potential, radial sensory action potential was small and muscle action potentials were absent. Dr Dowla opined that the findings were typical of severe diabetic polyneuropathy.

20. Dr Dowla reviewed Mr Argyle on 18 November 2016 when blood tests were considered. In view of the “serious diabetic polyneuropathy and protracted neuropathic symptoms”, the doctor recommended a trial of Lyrica.

21. On 3 April 2017 Dr Dowla noted the neuropathic symptoms in the feet were under reasonable control with Lyrica. The doctor opined that there was “no focal neurological sign pertinent to radiculopathy”.

22. Dr Brian Hsu, surgeon, first reviewed Mr Argyle in October 2017. At the initial consultation the doctor recorded a history of neck pain and back pain, mainly in the periscapular area, since the motor vehicle accident in February 2016. Dr Hsu noted the MRI scan of the cervical spine demonstrated the C2/3 compression fractures and multi-level pathology from C3 to C7.

23. On review in December 2017, Dr Hsu noted that the bone scan showed mild uptake in the cervical spine and the MRI scan showed foraminal stenosis. The doctor recommended a cervical foraminal injection.

24. Dr Hsu reviewed Mr Argyle in August 2018 noting complaints of ongoing neck pain and upper limb symptoms. At that time, the doctor noted that the previous injections provided some pain relief although most of the pain had returned.  Dr Hsu recommended chronic pain management treatment with Dr Alan Nazha.

25. Mr Argyle was seen by Dr Alan Nazah, pain physician on 19 February 2019. At that time Mr Argyle’s main complaint was to his lower to mid-thoracic spine and cervical spine and stated that the pain was always present between his shoulder blades. The pain also was intermittent in the lumbar spine. Psychometric testing disclosed an extremely severe score for anxiety and depressions and severe for stress. Dr Nazah made various recommendations about pain medication with a goal of decreasing reliance upon pharmacotherapy.

26. On review in May 2019, Dr Nazah recorded a cessation of use of tramadol and Lyrica with assistance from other medication. Proposed treatment related to the use of pain medication to treat the myofascial component of the pain and request for a TENS machine and referral to a pain psychologist.

27. Dr Shanu Gambhir, neurosurgeon, examined Mr Argyle and provided a report dated 8 October 2018. The doctor recorded that Mr Argyle has “back pain for many years however, in the last couple of months his leg pain has become quite severe”. The history recorded by the doctor included “neurogenic claudication” and an inability to walk more than 10 m without rest. Dr Gambhir noted that the lumbar spine CT scan showed multiple level disc prolapse worse at L4/5 and recommended an MRI scan.

Qualified opinions

1. Dr Mohammed Assem was qualified by Mr Argyle and provided a report dated 2 September 2016. Dr Assem recorded a history that Mr Argyle sustained a whiplash injury to the cervical spine and upper back in the motor vehicle accident. He diagnosed intermittent neck discomfort, constant pain in the upper back and secondary limitation in shoulder movement.

2. Dr Assem provided a further report dated 24 February 2020 following an examination on that day. The doctor then recorded that Mr Argyle sustained “a whiplash injury to his cervical spine”. Current symptoms included intermittent neck discomfort with pain spreading to both shoulders, sharp pain in the thoracic spine which “spreads to his lower back”.

3. Dr Assem opined that the condition was consistent with DRE Category II for the cervical spine with secondary limitation in shoulder movement and DRE Category II for the thoracic spine.

4. Mr Gerard Glancy, psychologist was qualified by Mr Argyle and provided a report dated 9 March 2020. There was a report of a post-traumatic stress disorder following a violent assault some time previously.

5. Mr Glancy noted reports of chronic pain and diagnosed Mr Argyle with both post-traumatic stress disorder and a major depressive disorder. He assessed the impairment at 15% less 3% for a pre-existing disorder resulting in 12% due to the motor vehicle accident.

6. Dr Horace Ting, occupational therapist, opined that Mr Argyle had limited if any earning capacity.

7. Dr Anthony Smith, orthopaedic surgeon, was qualified by the insurer. In his first report dated 7 April 2017 he noted a history of injury to the neck, both shoulders, upper back, and thoracic spine. At that time, the doctor accepted that the motor accident was responsible for an exacerbation of pre-existing cervical degenerative disease.

8. In the subsequent report Dr Smith opined that there was an aggravation of asymptomatic degenerative disease from the motor accident which would have “ceased after three months at the most”. Dr Smith opined that Mr Argyle was “continuing to manufacture physical signs”.

1. Professor John Carter, endocrinologist provided a report dated 5 October 2018. The doctor noted a diagnosis of diabetes at three years of age with a long history of poorly controlled diabetes. Examination findings disclosed objective evidence of peripheral neuropathy and peripheral vascular disease and bilateral Dupuytren’s contractures.

2. Professor Carter opined that the diabetes was currently under better control than in recent years. The doctor also opined that there was no increased association between the Dupuytren’s contractures and diabetes with the motor vehicle accident.

3. Dr Paul Spira, neurologist initially examined Mr Argyle and provided a report dated 6 September 2018. The doctor provided a summary of the ambulance report and Blacktown Hospital notes and noted that Mr Argyle was discharged from hospital after a two-hour period. Mr Argyle informed Dr Spira that following discharge he developed interscapular pain and low-grade nausea which continued to accentuate despite the intake of medication.

4. The main pain complaints at that time were interscapular pain extending from the base of the neck to the low thoracic region and at times to the low back and sacral region. The doctor also recorded occasional complaints of pain down the arms, from the neck to the shoulders and emotional upset from the subject accident.

5. Dr Spira opined that the main consequence of the accident was a diffuse pain syndrome with Mr Argyle experiencing interscapular and low back pain with an emotional reaction to the motor accident. The doctor observed that subsequent return to work “accentuated his back pains” and recommended therapy for tension myalgia and psychological counselling.

6. Dr Spira opined that Mr Argyle sustained soft tissue injuries directly related to the motor accident involving the right shoulder and chest with subsequent development of diffuse myalgic syndrome of interscapular and low back pain. The previous serious cervical spine injury resulted in spinal cord trauma with persistence of long tract signs which were still readily elicitable. However, he did not regard the previous cervical trauma “to be linked to the effects of the subject accident”. The signs of hand wasting found on examination were attributable to the 1980 spinal cord trauma.

7. Dr Spira provided a second report dated 14 December 2020. The doctor recorded that the main consequence of the motor accident was persistent interscapular pain which extended to the cervical and suboccipital region and at times to the lumbo-sacral region. This was associated with bilateral suprascapular and shoulder pains and at times stabbing pain into the forearms.

8. Mr Argyle also reported occasional severe low back pain was accompanied with radiation into both buttocks. The right lower leg had given way on a number of occasions resulting in falls.

9. Dr Spira opined that Mr Argyle sustained a soft tissue trauma in the motor accident. Ongoing symptomatology and the level of disability was difficult to explain on the basis of that trauma and that psychological factors were contributing to the apparent physical disability. The doctor otherwise observed non-organic responses including a false straight leg raising test and opined that a reliable prognosis was not possible.

10. Dr Spira provided a further report after he was provided with a copy of the surveillance. He observed that most of the video showed Mr Argyle walking and engaged in shopping with a gait described as “a slight waddling quality” as contrasted with the “short-paced and slow gait” that he observed in the previous examinations in September 2018 and November 2020. The doctor opined that the waddling related to the 1980 spinal cord injury.

11. Dr Spira also opined that Mr Argyle was engaged in a variety of activities and did not appear to be significantly limited. The doctor referred to a specific activity where
    Mr Argyle was forward stooping at the hip to about 90 degrees was inconsistent with the limited straight leg raising shown on examination. Dr Spira concluded that the previous “straight leg raising test was false and the videos do not support the high level of disability”.

Claimant’s statement

1. Mr Argyle provided a statement dated 27 February 2020. He stated that prior to the accident he did not suffer any significant medical conditions and was independent in all his activities of daily living. He referred to a 1980 injury when he suffered fractures to his C2-3 vertebrae and underwent a spinal fusion from which he “recovered well” and “occasionally … felt some mild neck discomfort”.

2. At the time of the motor vehicle accident Mr Argyle was employed on a full-time basis as a washroom technician. Following the motor vehicle accident, he was off work for two weeks and then returned to modified duties.

3. Mr Argyle stated that he returned to full duties approximately one month after the accident and struggled with his duties. He stated that he had no choice but to resign due to manager hostility. He stated that he had constant pain between his shoulder blades and in the neck and intermittent pain in the lower back. Some six months after the accident he commenced using a walking stick.

4. Mr Argyle consulted Dr Brian Hsu in October 2017 because he was struggling with pain. He underwent a cervical spinal injection, which did not provide lasting relief. He was then referred to Dr Alan Nazah for review of his pain symptoms. Mr Argyle stated that he was unable to continue this treatment as he was not in a financial position to pay for treatment.

Other records

1. A document headed “QBE Connect First Contact Notification” is a workers compensation claim submitted in respect of the motor vehicle accident. The “parts of body affected” are specified in the document as the “neck, upper back and both shoulders soft tissue injury”.

2. The document includes a reference to the worker’s condition in the current terms:

   “No current work capacity until the 12.02.2016 has been referred to Elizabeth Hutton, Physiotherapist”.

3. This document appears to have been created shortly after the motor vehicle accident.

4. A claim form signed by Mr Argyle on 1 March 2016 referred to injuries suffered in the motor accident to the neck, left shoulder, right shoulder and back.

5. The claimant’s solicitors provided particulars to the insurer dated 2 November 2016. These particulars do not allege injury to the low back.

6. In its application dated 10 June 2020 requesting a further assessment, Mr Argyle submitted:

   “Injury to the lumbar spine was not referred to Assessor Perla for assessment. At that stage, the claimant was not symptomatic in the lower back and indeed denied any lower back pain, as well as any lower limb pain, numbness or paraesthesia to Assessor Perla upon questioning. The claimant submits additional relevant information about his lumbar spine pathology has come to light, such that assessment of lumbar spine injury by the MAS is now warranted.”

Surveillance

1. The Panel confirms that it has viewed the extensive surveillance video extending over approximately three hours.

2. On 11 June 2020, Mr Argyle was shopping at the supermarket. He has a somewhat rolling gate broad spacing of his footprints typical of disturbed distal sensation and consistent with diabetic polyneuropathy. He purchased goods and uses a self-service checkout. He is seen reaching to eye height when the shoulders flex to about 110° and lifting a bag at near arm’s-length into a supermarket trolley with the shoulders at least 90°.

3. The surveillance report indicates that there were no observations on 12 June 2020.

4. On 13 June 2020, Mr Argyle travelled to the Windsor Riverview Shopping Centre where he purchased lottery tickets. He drove a Falcon station wagon to Bunnings where he purchased a Melamine board. The board was placed onto the Bunnings trolley and later into the back of the station wagon. Mr Argyle shopped at the Woolworths store and appeared to have no trouble bending down to the lower shelves which are approximately 30 cm from the floor or in other places lifting his shopping basket onto a stack of boards at about shoulder height.

5. On 14 June 2020, Mr Argyle is seen mowing the front lawn for about 40 minutes. He emptied the catcher into the green waste bin on three occasions. He seems to have no difficulty manoeuvring the mower around confined spaces and even uses it to remove the leaves on the adjacent roadway. He bends over with his knees only slightly flexed to pick up articles from the front garden.

SUBMISSIONS

1. The insurer’s submission for a review of the medical assessment and the claimant’s response were principally directed to establishing or rebutting the issue of whether the assessment was “incorrect in a material respect”. The review is by way of new assessment of all matters with which the medical assessment is concerned and not by way of ascertaining and correcting error of the medial assessment.

2. In these circumstances it is unnecessary to repeat that portion of the submissions addressing error in the assessment by Medical Assessor Bodel. However, we address the submissions directed to the appropriate medical assessment.

3. The insurer submitted in the context of diagnosis and causation of injury and impairment to the lumbar spine. Reference was made to the clinical records which recorded a fall off a ladder in August 2016 and subsequent x-rays confirming a fracture at the S4 segment.  Furthermore, there was “no further record of lumbar spine complaint until 3 September 2018 when Mr Argyle complained of bilateral posterior leg pain”[10].

   [10] Insurer’s submissions, paragraph 5.8.

4. The insurer referred to other causal factors impacting upon the deterioration of
   Mr Argyle’s condition such as degenerative changes and upper motor neuron lesion.

5. The insurer referred to the findings made by Dr Spira of an absence of any injury to the cervical and lumbar spine, the opinion of Dr Smith that Mr Argyle had recovered and was manufacturing physical signs which were otherwise relevant to a finding of causation and assessment of impairment.

6. In respect of the determination of causation of the upper extremities, the insurer referred to the effects of the pre-existing condition including degenerative changes and upper motor neuron lesion caused by the 1980 accident.

7. The insurer referenced the surveillance and Dr Spira’s observations of inconsistency.

8. The insurer’s submissions were that absent the errors made by Medical Assessor Bodel, the correct assessments were provided by Medical Assessor Perla, that is 4% impairment to each upper extremity.

9. The claimant’s initial submissions were directed to whether the assessment was incorrect in a material respect.

RE-EXAMINATION

1. The Panel determined that Mr Argyle be re-examined by both Medical Assessors given the factual issues in dispute[11] which included the credit issues raised by the insurer in its submissions on review.

   [11] See also the discussion by Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [41], White and McCallum JJA agreeing.

2. The re-examination report is as follows:

   “Mr Argyle attended as arranged and assessed by Medical Assessor Stubbs and Medical Assessor Gibson. 

   Mr Argyle was first asked about his prior medical and surgical history.  He confirmed that on 13 January 1980, he had undergone spinal fusion surgery, this being performed by Dr Grant at Royal North Shore Hospital. He maintained that he was “perfectly okay” after that, and therefore had no symptoms prior to the subject accident. 

   Mr Argyle was diagnosed with insulin-dependent diabetes on 24 December 1963.  He uses insulin four times a day and he monitors his blood sugar levels by his phone.

   He denied involvement in any other accidents, nor had he sustained any other significant injuries prior to the subject accident.

   However, in 1990 Mr Argyle was assaulted whilst working at a Shell service station in Ryde.  He had suffered a fractured nose and fractured right ribs and had developed symptoms of PTSD following this work injury.

   By the time of the subject accident, Mr Argyle was working as a full-time travelling service technician, and he had been in the position since about 1998.  He was doing a lot of driving, travelling from site to site, checking bathroom facilities.  There was some manual handling involved which he estimated had involved him lifting weights of up to 40 kg.

   In relation to the subject accident, Mr Argyle had been driving a Hyundai iLoad van along the James Cook Drive from Granville.  He had been travelling at approximately 50 km per hour.  He was about 150 m from a traffic light when a Mitsubishi Utility crossed his path without giving way.  He was unable to stop in time.  His airbags had not deployed.  His windscreen was shattered with the impact.  He said his head struck the windscreen.  When asked why this was not mentioned in the ambulance report, he was unsure, but very certain as to what had happened.  He said that he could not open the van door, but a bystander came to his assistance and smashed the windscreen with a hammer.  Once the ambulance arrived, he was helped into a bus shelter.  Police rescue arrived. 

   He was asked about this the accident. He reports the accident much more dramatically than recorded in the ambulance notes. He says he struck his head and broke the windscreen, later he said that a passer-by broke the windscreen with a hammer to try and get him out of the vehicle as he could not open the doors as the cabin was deformed. He then he said he passed the keys to the passer-by who opened unlocked the door and opened it without difficulty. He was asked if the van had an auto locking system but said that this would not have been in effect the doors unlocked automatically electrical power was turned off Emmy: the battery of the Hyundi was thrown “40 m forward” as a consequence of the accident. The van was written off.

   Mr Argyle was conveyed to Blacktown Hospital in an ambulance.  He volunteered that at that stage, “the adrenaline was pumping” and so he was not aware of much in the way of immediate symptoms.  There was however some pain in the middle of the back between the shoulder blades which later extended down into his lower back. When asked he said that the low back pain was noted just a month after the subject accident.  He said that most of his pain he had noticed on the day of the accident had come on about 8 o’clock that evening. 

   Whilst at the hospital, his main complaint was right shoulder pain. 

   He was referred to Dr Hsu, spinal surgeon, and he had seen him on a few occasions and apparently surgery was advised. 

   Mr Argyle had made a claim for worker’s compensation.  When asked about an entry in his general practitioner’s clinical notes stating that he had fully recovered, he maintained that he had been forced back to work as the doctor had been pressured by an insurer representative. 

   Emerald Medical Centre Quakers Hill – April 2016 onwards: these begin 2 months after the motor vehicle accident and contain little information about physical findings or symptomatology but do confirm conflicts under WorkCover about `his return to work. Noting that he is doing his preinjury duties in a record made on 22 June 2016 “was doing preinjury duties, no problem, final certificate issues” and again on 11 July 2016 “well stable, has recovered from last MVA in February well. Back to his normal duties. In the Clinical exam of both shoulders he has a full range of movement, low back normal range of movement. Fit to return his new normal duties”.

   In August 2016, Mr Argyle was in a washroom and had tried to reach for an air freshener and he had fallen landing on both buttocks.  At this stage, he was working in a similar role to that he had been performing at the time of the subject accident and he had been in the job about a month.  He sustained a fractured S4 vertebrae. 

   He was asked about the sacral fracture recorded on 10 August 2016 by Dr Asar. He slipped on a wet lavatories floor landing heavily on his backside. He had low back pain. This was quite different from the pain he had neck, between the shoulder blades in the upper back he had from the accident. He understands the x-rays showed fracture of the sacral (S4) and never returned to work after this fall.

   When asked about the shoulder symptoms, he said this was “all through the car accident.” 

   Mr Argyle had attended Elizabeth Hudson for physiotherapy soon after the accident.  He was finding there was temporary relief (for about an hour afterwards).  He indicated that the treatment involved passive therapy as well as some instruction on use of a TheraBand. 

   He was aware of the video surveillance, and did not dispute the findings. He agreed that surveillance was of him and he did undertake the activities. He explained this as being both from benefits of pain medication and the fact that he has some good days and did not always need to use a walking stick.

   Mr Argyle’s current treatment is Palexia immediate-release tablets as required, and Palexia long-acting and meloxicam on a daily basis.  He denied requiring any pain medication prior to the subject accident.

   Mr Argyle volunteered, when asked about his current symptoms, that he had taken his analgesic medication at 4 a.m. and again at 11 a.m, so prior his arrival to this assessment. 

   He said that his neck was “okay”. The thoracic spine pain is there a lot of the time.  There was no low back pain at present.  He said there was numbness in both arms at times, on clarification the Panel established there were no non-verifiable radicular complaints.

   PHYSICAL EXAMINATION

   Mr Argyle said he has been using a walking stick intermittently and finds he uses it to help support his back. He appeared quite unstable if he was walking unaided. 

   On examination of the cervical spine, movements were significantly restricted in all planes to about one-third normal range. There was no asymmetry, muscle spasm or guarding.  

   On examination of the upper limbs, there was thenar and hypothenar wasting.  Power testing revealed equal strength bilaterally. There was bilateral Dupuytren's sparing the index finger. Upper limb reflexes were brisk bilaterally consistent with upper motor neuron lesion relating to his prior spinal cord injury. There were no radicular sensory findings.

   Upper limb circumferences were measured and found to be 34cm on the right arm, and 34.5cm on the left arm, forearms measured 29 cm on the right, 28 cm on the left.  He had muscle wasting about both shoulder girdles, right greater than left.

   On examination of the shoulders, movements were as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	80 °	100 °
Extension	20 °	15 °
Internal Rotation	20 °	25 °
External Rotation	20 °	25 °
Abduction	85 °	100 °
Adduction	25 °	30 °

On examination of both elbows:

Elbow Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	130 °	130 °
Extension	-10 °	-10 °
Pronation	80 °	90 °
Supination	45 °	45 °

On examination of the thoracic spine, movements were symmetrically reduced, lateral flexion two-thirds normal bilaterally and rotation two-thirds normal bilaterally.  There was no asymmetry, muscle spasm or guarding.

On examination of the lumbar spine, flexion and extension was to one-third normal.  Lateral flexion was to two-thirds normal bilaterally. Rotation was to two-thirds normal bilaterally.  There was no asymmetry, muscle spasm or guarding.

Lower limb reflexes were difficult to elicit, it was noted that left ankle movements were restricted.  This is related to the prior spinal cord injury.

On examination of the lower limbs, there was no radicular, sensory, or motor loss.  He was able to sit with both legs extended and reach to his shins bilaterally.

Lower limb circumferences thighs 50 cm, calves 38 cm bilaterally.

In the lower limbs the upper motor neurone disease is seen proximally. The knee jerk as well preserved and definitely brisk and there is mild increase in muscle tone. There is a stocking like diminution sensation beginning in the upper calves involving all of the feet, right equals left. The ankle jerks cannot be elicited, Babinski sign could not be elicited. The toes are clawed and show wasting of the small musculature. There are residual upper motor neurone signs in the lower limb but these are supplanted by diabetic peripheral neuropathy distally.

Neurological examination: there are two significant comorbidities, upper motor neurone from the cervical fracture and diabetic peripheral neuropathy. In the upper limbs shows upper motor neuron signs. The reflexes are hyperactive, the muscle has increased tone though not cogwheel rigidity, his clumsy and has notable wasting of the thenar or hypo-thenar musculature and clawing of the hands consistent with involvement of the ulnar nerves. If there is a diabetic peripheral neuropathy here the effects are mild. The upper motor neurone disease affects the lower cervical nerves rather more than the upper cervical nerves. (The fracture was between C2 and C3 was treated by posterior fusion.)

In the lower limbs the upper motor neurone disease is seen proximally. The knee jerk as well preserved and definitely brisk and there is mild increase in tone. There is a stocking like diminution sensation beginning in the upper carpet involving all of the feet, right equals left. The ankle jerks cannot be elicited, Babinski sign could not be elicited. The toes are clawed and show wasting of the small musculature. There are residual upper motor neurone signs in the lower limb but these are supplanted by diabetic peripheral neuropathy distally.

Further comments on mobility:

Mr Argyle is very stiff generally. Lumbar spine flexion is fingertips to knees. Both hips are stiff, the left will flex only to 90° the right to 120° providing the knees are flexed, with the knees are extended straight leg raising is only 70°. Both knees flex only to 90° and do not reach full extension, there is about 5° flexion fracture. Both ankles are in fixed plantarflexion of 5°. Principally due contracture calf musculature which is consistent with the spasticity of upper motor neurone lesions. Flexing the knees does not improve this is the condition has been long-standing. Ankle flexion is only to 30°. Effectively Mr Argyle needs some degree of heel lift to obtained plantar grade stance. Probably the reason the single leg stance is so bad as it was done without wearing shoes. The upper limb joints are also stiff. Both elbows have a mild fixed flexion flex contracture and flex to only 130°. Pronation is much better than supination, 90 versus 45°. Wrist flexion is nearly full wrist extension is only 45°. This is typical of an upper motor neurone injury with spasticity. Girth of the arms and forearms thighs and calves are right equals left slight increase in the right arm forearm versus the left reflecting

Cervical spine movement is 50% normal range in all directions. There is no guarding, point tenderness or spasm.

Mr Argyle has incidental Dupuytren’s contracture worse in the small fingers, less so in the ring and little fingers. Fortunately, there is no extension into the palm flasher, the tight bands are only in the fingers and the problem will be fairly benign.

FINDINGS

Legal principles

1. This is a new assessment of all the matters with which the medical assessment is concerned.[12]

   [12] Section 63(3A) of the Act.

2. 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[13] and Insurance Australia Ltd v Marsh.[14] 

   [13] [2021] NSWCA 287 at [40], [41] and [45].

   [14] [2022] NSWCA 31 at [11], [21] and [64].

3. The Panel adopts the re-examination report provided by the Medical Assessors and adds the following further reasons.

4. Clauses 1.5 – 1.7 of the Guidelines provide:

   “1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

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

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

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

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

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

   1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

5. A number of recent 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.

6. In Norrington v QBE Insurance (Australia) Ltd[15] 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.

   [15] [2021] NSWSC 548 (Norrington).

7. The Court stated:[16]

   “In the context of assessment under MACA, there is now a substantial body of authority that a panel which describes the question of causation solely on the basis of the existence of otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1).”

   [16] Norrington at [31].

8. The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[17] 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[18]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[19]).

   [17] [2016] NSWCA 229 at [64]-[66].

   [18] [2004] NSWCA 34 at [35].

   [19] [2014] NSWSC 888 at [31]-[32].

Nature of the motor accident

1. On 2 February 2016 Mr Argyle was a driver of a Hyundai that struck the rear corner of a utility making a U-turn across his path. The airbags did not deploy. He was taken by ambulance to Blacktown Hospital and assessed but allowed home. A little while later Mr Argyle consulted Dr Asar with complaints of neck, upper back and scapular pain. He was treated with rest and physiotherapy and was off work for two weeks. He struggled to work with both his old employer and in a new lighter job and has not worked since the end of 2016.

2. The recent history provided by Mr Argyle of the severity of the motor accident is different to the initial histories recorded by the ambulance officer[20] and the claimant’s earlier statement.[21]

   [20] See at [25] herein.

   [21]

Pre-existing medical background

1. Mr Argyle’s medical history is complicated, at the age of 20 years he was involved in a serious motor accident and required a C2/3 fusion and was a patient in the Royal North Shore Hospital Spinal Unit for seven months followed by further recovery time at the Mount Wilga Rehabilitation Hospital. Mr Argyle’s problems are further complicated as he is an insulin-dependent diabetic from early childhood.

2. There is therefore the difficulty in determining whether some of the problems are due to the fractured neck 40 years ago and/or the diabetic neuropathy.

Injuries to the cervical spine and thoracic spine

1. Within a very short period Mr Argyle was complaining of pain in the cervical and thoracic spine and into the interscapular region extending to the shoulders. The history of injury to those body parts is referred to in the clinical notes of the general practitioner, the physiotherapy notes and the claim form.

2. In QBE Insurance (Australia) Ltd v Shah[22] the Court referred to the absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”[23] between the motor accident and the alleged injury.
   His Honour noted:[24]

   “Soft tissue injury to the neck is commonly described in damages claims by drivers and passengers of motor vehicles that sustain rear end collisions, including where a front-end collision has ensued. The biomechanical causation of that type of injury self-evidently involves the body being heavily accelerated and then decelerated in the horizontal plane. The body is restrained by the upright back of the seat and by the seatbelt and it therefore moves forward suddenly then stops suddenly with the corresponding movement of the vehicle. It is well understood that this acceleration and deceleration of the body causes “whiplash” to the neck because of the inertia of the head. In contrast to such cases of soft tissue injury to the neck, there is no obvious or self-explanatory means by which the rotator cuff tendons of either shoulder could be or would be torn by the first defendant’s involvement in the collision that he has described.”

   [22] [2021] NSWSC 288 (Shah).

   [23] Shah at [36].

   [24] Shah at [16].

3. These observations are adopted. They equally apply to injury to the thoracic spine caused by a whiplash type injury in the motor accident.

4. There is a consistency of complaints by Mr Argyle in both the cervical spine and the thoracic spine following the motor accident.  Further, Mr Argyle continued to complain of pain in these regions despite returning to the pre-motor accident employment. We do not accept Dr Smith’s opinion because it is inconsistent with Mr Argyle’s recorded complaints in these regions.

5. Accordingly, we accept that the nature of the motor accident caused injury to the cervical and thoracic spine by reason of the whiplash mechanism imposed on those body parts when the accident occurred.

6. The cervical spine had a pre-existing condition due to the C2/3 fusion. That condition is complicated by the diabetic neuropathy.

7. Although Mr Argyle complains of neck and thoracic pain, there is no asymmetry in the movement pattern, no guarding or spasm and no non-verifiable radicular complaints.

8. Despite the continuity of symptoms in the thoracic spine, these are not sufficient to warrant a finding of DRE II. Mr Argyle is assessed at DRE I.[25]

   [25] See AMA 4 - 3/106.

9. In respect of the cervical spine, Mr Argyle has a pre-existing fusion at C2/3 due the injuries sustained in 1980. This results in an assessment of DRE IV for the cervical spine.  However, the present cervical spine condition caused by the motor accident is in the lower cervical spine. These symptoms are categorised as DRE I[26] and do not satisfy the criteria for DRE II.[27]

   [26] See AMA 4 – 3/103.

   [27] See AMA 4 – 3/104.

10. The condition in the lower cervical spine caused by the motor accident is separate from the fusion at C2/3. In accordance with clause 1.33 of the Guidelines, the claimant is assessed at 0% for the cervical spine injury rather than the assessment conducted by Medical Assessor Bodel of assessing the cervical spine at DRE IV and deducting the whole amount as a pre-existing condition.

Lumbar spine

1. Mr Argyle submitted that prior to the motor accident he was “fit and well and largely unrestricted having only occasional complaints in respect of his cervical spine arising from a previous motor accident”.[28] There was no prior history of problems with the lumbar spine. Mr Argyle submitted:[29]

   “It is significant to note that it has never been the claimant’s case that the lower back pain arose immediately after the accident. The claimant’s case is that a short period following the accident the claimant complained of neck and thoracic spine pain. The neck and thoracic pain worsened over time and symptoms from the thoracic spine pain extended over time beyond the thoracic spine into the lower back.”

   [28] Claimant’s further submissions, [6].

   [29] Claimant’s further submissions, [7].

2. The claimant referred to treatment in the lower back by the physiotherapist in February 2016 and findings by Dr Dowla in late 2016 and in April 2017 when the claimant referred to low back pain and neuropathic symptoms in the feet.

3. After reviewing various authorities, the claimant submitted:[30]

   “Hence the question for the RP does not turn on the absence of contemporaneous notes but whether it accepts that for a reasonably early point in time following the accident, the claimant complained of what is described as a diffuse back pain of which there is no evidence before the accident. It is trite that in the absence of any other relevant factor, the obvious inference is that trauma to other parts of the spinal column involved in this accident aggravated previously underlying but not symptomatic changes. The MRI performed as requested by
   

   [30] Claimant’s further submissions, [16].

   Dr Dowla, with subsequent ongoing complaints, clearly support the inference that such causal nexus exists in respect of the lower back complaints.”

4. The Panel does not accept that the lumbar spine was injured in the motor accident for the following reasons.

5. First, there is an absence of contemporaneous record of injury to the lumbar spine. The contemporaneous records, particularly those of the general practitioner and the physiotherapist provide a precise account of the initial complaints of pain which did not include a reference to the lumbar spine.

6. The claimant referred to the physiotherapy notes which he submitted revealed that he “did in fact have treatment on his back which included the lumbar spine down to L5 as early as February 2016”.[31] The submission did not include a reference to the specific note that supported this contention.

   [31] Claimant’s submissions in accordance with the Direction, [8].

7. The physiotherapy notes on 11 February 2016 show a pain diagram that does not include the lumbar spine. There is a reference in the notes on 11 February 2016 to complaints of pain from “upp T/S to T8”. This is obviously a short-hand reference to upper thoracic spine to T8, a level far above the lumbar spine.  These complaints are repeated throughout the notes. There are the occasional references to the lumbar spine in the notes. Contrary to the claimant’s submission, the notes refer to alternative causes of lumbar spine injury including “bending pick up from box yesterday”[32] and “bending and lifting at work yesterday”.[33]

   [32] Clinical note dated 25 February 2016.

   [33] Clinical note dated 6 April 2016.

8. We observe that it is not unusual for physiotherapy treatment to check beyond the areas of the injury for the purposes of treatment.

9. Secondly, Mr Argyle accepts that he did not complain of pain in the lumbar spine following the motor accident and did not allege in his 2016 particulars that there was injury to the lumbar spine. That submission means that there is no suggestion of inaccuracy or omission with the contemporaneous notes. In that respect the reference to “back” in the claim form completed one month after the accident is likely to refer to the thoracic spine rather than the lumbar spine.

10. Mr Argyle showed signs of paraesthesia and numbness in the fingers and toes, a slightly antalgic gait and absent knee and ankle jerks when assessed by Dr Dowla in the latter part of 2016. It is incorrect, as the claimant submitted, that he was “fit and well” prior to the motor vehicle accident. The claimant suffered from longstanding diabetes since an early age. The Panel agrees with the conclusion of Dr Dowla that the nerve conduction studies, and clinical examination associated with the lumbar spine and the leg symptoms were due to a severe diabetic polyneuropathy which caused protracted neuropathic symptoms. That condition has nothing do with the motor accident nor is there any medical evidence that the diabetic polyneuropathy was aggravated by the accident. The medical expertise on the Panel otherwise does not accept that there is any medical basis for an association between the severe diabetic polyneuropathy and the motor vehicle accident.

11. This conclusion is consistent with the uncontradicted opinion of Professor Carter, which we accept, that Mr Argyle had a long history of poorly controlled diabetes with objective evidence of peripheral neuropathy.

12. Thirdly, various specialists made no comment of any association between the motor vehicle accident and lumbar spine problems. Those specialists include Dr Assem who was qualified by Mr Argyle, Dr Smith who was qualified by the insurer and the treating specialists, Dr Dowla and Dr Gambhir. The lumbar spine was not referred by the claimant and was not considered by Medical Assessor Perla.

13. The claimant in his most recent submission relied on the initial opinion expressed by
    Dr Paul Spira in his report dated 6 September 2018. At that time Dr Spira concluded that Mr Argyle suffered a “diffuse pain syndrome with … interscapular and low-back pains”. In his second report the doctor again concluded that this arises from tension myalgia rather than damage to the hard structures of the back. In a further report after reviewing the surveillance, Dr Spira opined that the material did not support the “high level of disability claimed by Mr Argyle” and the straight leg raising test he conducted in December 2020 was “false”.

14. We are not required to accept the opinion provided by Dr Spira. It does not explain the underlying degenerative changes evident from the CT scan nor the underlying diabetic polyneuropathy. The examination findings by the Panel on re-examination were more consistent with the latter. Dr Spira otherwise did not have a history of the mildly displaced fracture to S4 sustained in August 2016.

15. Fourthly, Mr Argyle returned to work following the motor accident. It appears that
    Mr Argyle ceased this employment when he sustained a fracture at S4 in August 2016.

16. Fifthly, Mr Argyle referred to a deteriorating low back condition in 2018. The scan evidence showed multilevel disc prolapse. The most likely cause of that condition is the degenerative changes over an extensive period which have continued to deteriorate in the natural cause of that condition. We reject the claimant’s submission that there is an absence of a different explanation for the deteriorating condition as the natural course of a degenerative condition is on the probabilities, the likely explanation.

17. This conclusion as a deteriorating degenerative condition is independent of an acceptance that the claimant was asymptomatic in the lumbar spine prior to the motor vehicle accident. The evidence in support of that submission is otherwise not as one-sided as r Gambhir recorded in 2018 that Mr Argyle had back pain “for many year”.

18. For these reasons we do not accept that the lumbar spine was injured in the motor accident.

Shoulders

1. There are clear complaints of right shoulder pain at hospital[34] and bilateral shoulder pain in the period following the motor accident.[35]

   [34] See [27] herein.

   [35] See [29] – [30] herein.

2. The description of the mechanism of injury recorded by the ambulance officer and at the hospital does not suggest traumatic insult to either shoulder caused by the motor vehicle accident. However, within a very short period Mr Argyle was complaining of right shoulder pain (at the hospital) and a bilateral shoulder condition to Dr Asar.

1. It is not uncommon and medically plausible that a person can suffer referred pain from the cervical and thoracic spine extending bilaterally to the shoulders. That does not mean that there is a discrete injury to the shoulders but that the injured person is suffering the effects in that body part from the spinal injury.

2. In Nguyen v Motor Accidents Authority of New South Wales[36] the Court held that the impairment of the right shoulder arising from pain to the injured cervical spine satisfied the common law test of causation and the statutory formulation “as a result of injury”.  It was an error that there required to be a “primary and isolated” injury to the particular shoulder.

   [36] [2011] NSWSC 351.

3. Indeed, Dr Assem who was qualified by the claimant, assessed that portion of the claim on the basis of referred pain causing “secondary limitation in shoulder movement” whilst the two Medical Assessors held that there were soft tissue injuries to both shoulders.

4. The parties were referred to that part of Dr Assem’s opinion in September 2016 that shoulder limitation was assessed on the basis of it being secondary to spinal injury.[37]

   [37] Direction dated 23 June 2021.

5. We do not accept that the motor accident caused discrete pathology to either shoulder. This is evident from the mechanism of the nature of the motor accident, the initial complaints, contemporaneous clinical notes and Dr Assem’s opinion. 

6. The table of shoulder movement shows that Mr Argyle is consistent in range of motion. When he was assessed by the Medical Assessors on the Panel, Mr Argyle showed a consistent restriction in all movements of both shoulders. The clinical diagnosis of the Medical Assessors on the Panel from its examination is that Mr Argyle has adhesive capsulitis which is probable from his poorly controlled diabetes.

7. The Panel is also of the view that Mr Argyle’s mobility is now much poorer than what is seen in the video surveillance. This deterioration is probably due to the progression of the diabetic condition.

8. The Medical Assessors did not assess any loss of range of movement of the shoulders based on the Nguyen principle. In that regard, the Medical Assessors found, adopted by the Panel, that there was no ongoing radicular pain for the cervical and/or thoracic spine. Furthermore, the Medical Assessors found that there were no ongoing symptoms in neck or thoracic spine that were causing restriction of shoulder movements. This is explicable on the basis of the soft tissue injury which has resolved to the extent that it does not now cause radicular or referred pain. Accordingly, there is no assessable impairment based on the Nguyen principle.  

Conclusion

1. Although there are symptoms in the lower cervical spine and in the thoracic spine caused by the motor accident, these body parts are assessed at DRE I. There is also no assessable impairment of the shoulders caused by the motor accident. Based on these findings, the certificate of Medical Assessor Bodel is revoked. The replacement certificate is set out at the commencement of these Reasons.