Allianz Australia Insurance Ltd v Vella

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Ltd v Vella [2022] NSWPICMP 86
CLAIMANT:	John Saviour Vella
INSURER:	Allianz Australia Insurance Ltd
REVIEW PANEL:	Principal Member John Harris Professor Ian Cameron Dr Drew Dixon
DATE OF DECISION:	4 April 2022
CATCHWORDS:	MOTOR ACCIDENTS- The claimant was involved in a motor accident on 18 April 2016 when he sustained various injuries; finding made the low back not injured in motor accident because of prior back injury, delay in complaints including in the claim form and onset of pain explicable by prior work injury and ongoing heavy lifting at work; findings made that claimant injured his cervical spine and right shoulder; the motor accident involved another vehicle colliding with the driver door resulting in direct impact into the shoulder; claimant had contemporaneous and consistent complaints of cervical spine and right shoulder symptoms; the claimant was examined by a Medical Assessors and found asymmetric movement in the cervical spine which was consistent with pathology; claimant had developed adhesive capsulitis following right shoulder surgery; Held- poor outcome from surgery which was causally related to the motor accident was assessable and compensable; Hunter v Insurance Australia Ltd applied; claimant assessed at 15% whole person impairment; original assessment revoked because injury findings differed from original assessment.
DETERMINATIONS MADE:	The Panel revokes the certificate dated 12 May 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is GREATER THAN 10%: · right shoulder injury, and · neck Injury.

REASONS

Background

Mr John Vella (the claimant) was injured in a motor accident on 18 April 2016 when another vehicle collided with the driver’s door of Mr Vella’s vehicle (the motor accident).
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Vella any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
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 MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
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.
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.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.

The review

Medical Assessor Crane issued a medical assessment dated 12 May 2021 determining that the claimant suffered soft tissue injuries to the lumbar spine, cervical spine and right shoulder. The Assessor stated that he made no comment on causation as that had previously been found by Assessor Bodel in the treatment dispute dated 17 March 2021.
Medical Assessor Crane assessed the lumbar spine at 5% and the right shoulder at 9% resulting in a combined impairment of 14% permanent impairment.
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
On 22 October 2021, the President’s delegate referred the medical assessment to the Review Panel (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 63(2B) of the MAC Act, Insurer’s bundle, page 831.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] 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 matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles.
On 18 March 2022 the insurer filed a late application attaching the report of Dr Seamus Dalton dated 24 January 2022 and email correspondence between the solicitors.[10] The claimant consented to the report being forwarded to the Panel. Despite the delay in making the application, the document is admitted.
[10] Document AD6
On 4 February 2022 the Panel issued the following further Direction which relevantly provided:
“The parties are referred to the decision of Vella v Allianz Australia Insurance Ltd [2021] NSWPICMP 214 and are directed to provide submissions on the relevance of the decision on this Review.
The insurer is to file and serve any submissions by close of business, 14 February 2022, on this matter.
The claimant is to file and serve any submissions in reply by close of business, 21 February 2022.”
The insurer filed submissions in response to the further Direction. It submitted that the treatment dispute was not conclusive as the medical assessment before it, citing Owen v Motor Accidents Authority[11]; Allianz Australia Insurance Ltd v Girgis[12]; Brown v Lewis[13] and Pham v Shui[14].
[11] [2012] NSWSC 650.
[12] [2011] NSWSC 1424
[13] [2006] NSWCA 587.
[14] [2006] NSWCA 373.
The insurer submitted that the prior certificate was not determinative but conceded that the Panel “may be persuaded by the treatment determination”.[15]
[15] Insurer’s submissions, [10].
The claimant filed no submissions in response to the further Direction.
On 9 March 2022 the Panel issued a subsequent Direction:
“The Panel refers to its direction dated 4 February 2022 and the insurer’s subsequent submission dated 14 February 2022. We note the insurer conceded that the “Review Panel may be persuaded by the treatment determination” although submitted, consistent with the authorities cited by it, that the decision was not determinative. We have received no submissions from the claimant.
Accordingly, the parties are on notice that the Panel may consider the causation findings on injury made in Vella v Allianz Australia Insurance Ltd [2021] NSWPICMP 214 (Vella (No 1)) on the lumbar spine (at [94] – [118]) and the right shoulder (at [119] – [127]) as part of its ultimate determination which we accept involves a new assessment on all matters.
The parties are directed to make any further submissions relating to this Direction, by close of business, 17 March 2022.”
Neither party responded to this direction.

Statutory provisions/Guidelines

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[16]. In Raina v CIC Allianz Insurance Ltd[17] 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
[16] See s 3B(2) of the Civil Liability Act 2002.
[17] [2021] NSWSC 13 (Raina) at [65].
s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.

Material before the review panel

The parties filed bundles of documents in accordance with the initial Direction. We adopt the following summary of the evidence set out in Vella (No 1) as an accurate summary of the material filed in this matter:
“31. There are various medical reports relating to the lumbar spine injury in June 2008 and subsequent surgery performed by Professor Sheridan to the L3/4 disc. In late 2011 Dr Mathew Giblin, Orthopaedic Surgeon, opined that
Mr Vella was unfit for work involving repetitive bending, heavy lifting or prolonged standing and assessed ongoing signs and symptoms of radiculopathy. Dr Miniter, Orthopaedic Surgeon, expressed a similar view in a report dated 28 November 2011.
32.   The clinical note of Dr Michael Sorani, General Practitioner, dated 30 January 2016 referred to localised right lower back pain with no pins or needles in the lower limbs.
33.   The clinical note of Dr Sorani on the day following the motor accident refers to complaints of right shoulder and neck pain.
34.   A Workcover certificate completed by Dr Michael Sorani dated 30 May 2016 referred to injury to the right shoulder and neck from the motor accident on 18 April 2016. Further certificates dated 27 June 2016, 18 July 2016, 16 August 2016, 5 September 2016, 12 September 2016, 23 September 2016, 7 October 2016 and 21 October 2016 are in similar terms. The absence of reference to the lumbar spine in the certificates is consistent with an initial absence of reference to that body part in the general practitioner’s clinical notes and complaint to the general practitioner during this period.
35.   An ultrasound and x-ray of the right shoulder dated 19 April 2016 is reported as showing a partial thickness tear of the supraspinatus tendon with no associated fracture.
36.   On 16 May 2016, Dr Sorani referred Mr Vella for physiotherapy for work related injury to the right shoulder. On 30 May 2016 Mr Pleffer, Physiotherapist, diagnosed right shoulder pain and impingement.
37.   Mr Vella first consulted Dr Dave, Orthopaedic Surgeon, on 21 July 2016. The doctor noted right shoulder pain following the motor accident with no relevant pre-existing history. Ongoing pain and restriction of movement suggestive of impingement was noted at examination. Dr Dave referred
Mr Vella for an MRI scan of the right shoulder.
38.   An MRI scan of the right shoulder dated 26 July 2016 showed a partial tearing of the supraspinatus.
39.   Dr Dave reviewed Mr Vella following the provision of the MRI scan and provided a further report dated 4 August 2016. Mr Vella complained of pain from the top of the right shoulder to the mid-arm region with signs and symptoms consistent with the MRI scan. Injections were rejected because Mr Vella stated that he had poor results from prior back injections. Mobic and physiotherapy were the initial treatment options, and surgery was considered if symptoms failed to improve.
40.   A motor accident personal injury claim form signed by Mr Vella on 5 August 2016 referred to the injuries from the motor accident being the right shoulder, neck and psychological. A medical certificate completed by
Dr Sorani was attached to the claim form and referred to the neck and right shoulder injuries.
41.   A CT scan of the cervical spine dated 19 August 2016 showed spondylotic changes at C5/6 with possible impingement on the C6 nerve root.
42.   A physiotherapist report signed by Grant Pleffer dated 22 September 2016 referred to neck and right arm pain.
43.   An MRI scan of the cervical spine dated 28 September 2016 refers to cervical spondylosis and discovertebral degenerative changes at C5/6 associated with bilateral C6 foraminal root compression. Mr Vella underwent a right shoulder injection at that time.
44.   Dr John Ireland, Orthopaedic Surgeon, examined Mr Vella and provided a report dated 22 September 2016. The doctor recorded a history of right shoulder and neck pain following the motor accident. Dr Ireland stated:
“I think at this stage, further investigations need to be carried out on his neck.
I note that his CT scan suggests some C6 nerve root impingement and an MRI would be beneficial and I would recommend that he perhaps go back and see Mark Sheridan who he has seen before about his back.
As to the shoulder, there is some evidence of subacromial bursitis and impingement and it may well be that he will need an arthroscopy and acromioplasty but I think this would probably be of lesser importance than resolving the situation with his neck.”
45.   By letter dated 30 September 2016, Dr Sorani referred Mr Vella to Professor Sheridan for “opinion and management of cervical discopathy – work related”. Included in the past history was reference to lumbar prolapse and more recently, supraspinatus tear in April 2016.
46.   Dr Peter Giblin, Orthopaedic Surgeon, was qualified by Mr Vella’s lawyers and provided a report dated 8 November 2016. Dr Giblin noted a history of a week off work with consultations with the general practitioner for neck and right shoulder pain. As part of the medical history, Dr Giblin noted a low back injury in 2011 resulting in a discectomy.
47.   Dr Giblin diagnosed soft tissue injuries to the cervical spine and right shoulder caused by the motor accident.
48.   Dr Leonard Lee, Psychiatrist, was qualified by Mr Vella’s lawyers and provided a report dated 7 November 2016. The doctor recorded presenting complaints of severe neck and right shoulder pain with subsequent onset of depression, flashbacks and nightmares.
49.   Mr Vella underwent a CT-guided right C6 perineural injection in December 2016.
50.   Mr Vella first consulted Professor Sheridan after the motor accident on 23 November 2016. At that time the doctor noted Mr Vella was “doing reasonably well from his lower back problems until his accident in April” and since that time he had persisting neck pain, right shoulder pain and “worsening of his lower back and leg pain”. An MRI of the low back was organised.
51.   An MRI scan of the lumbar spine referred to lower back pain and leg pain.
Dr Ganeshan concluded that the disc desiccation had progressed since the November 2009 study and there was a progressive disc protrusion at L2/3.
52.   Associate Professor Sheridan stated in January 2017 that an injection into the neck had settled symptoms “fairly well”. The MRI scan of the back was consistent with current pain.
53.   A statement was made by Mr Vella’s eldest son dated 12 January 2017.
Mr Nathan Vella then stated that he understood his father had sustained injuries to the neck, right shoulder and back in the motor accident as well as a psychological reaction to the accident.
54.   In February 2017 Associate Professor Sheridan noted a recent injection had given some relief but recent heavy lifting had cause further recurrence of back and leg pain.
55.   In January 2017 Mr Vella was referred for functional capacity assessment to gain an objective view of Mr Vella’s functional capacities.
56.   Dr Robert Breit, Orthopaedic Surgeon, was qualified by the insurer and provided a report dated 28 March 2017. Dr Breit noted a history of neck and right shoulder pain following the motor accident and stated that he was “unable to determine when this back pain actually started, he was somewhat evasive”.
57.   Dr Breit accepted that there were soft tissue injuries to the neck and right shoulder but that there was no injury to the low back. The doctor considered that some of the past physiotherapy had been excessive, and that Mr Vella should be taught a home exercise program.
58.   Dr Seamus Dalton, Sports Physician, was qualified by the insurer.
Dr Dalton initially concluded that Mr Vella suffered soft tissue injuries to the neck and right shoulder and that there had been a development of features of chronic adjustment disorder in association with chronic pain. The doctor did not accept that there was injury to the lumbar spine.
59.   Dr Dalton did not have Dr Herald’s records and expressed surprise that right shoulder surgery was undertaken. He felt that there was a “strong probability that this man will have a poor result due to exacerbation of his pre-existing pain disorder and the development of post-surgical capsulitis”. Dr Dalton accepted that Mr Vella had developed chronic pain with significant psychological issues which made management of physical symptoms difficult.
60.   In a report dated 9 December 2019, Dr Dalton observed that current complaints did not significantly differ from the previous assessment in mid-2018. Dr Dalton opined that that there was “no underlying pathology in
Mr Vella’s right shoulder which was causally related to the subject accident and that the surgery performed by Dr Herald “was not reasonably necessary in any event”. The basis of that opinion appears to be the poor outcome from surgery and that it was “unlikely to be beneficial in any event”.
61.   Dr Dalton referred to Mr Milazzo’s comments and opined that Mr Vella “has had multiple opinions and treatments, most of which are not reasonable or necessary”.
62.   A report dated 13 April 2017 noted that Mr Vella had commenced the REGAIN treatment program as part of a multidisciplinary pain management program.
63.   Dr Paul Edwards, Gastroenterologist reported in July 2017 that Mr Vella had severe abdominal pain following consumption of large doses of meloxicam and Voltaren. The likely diagnosis was NSAID induced gastric injury with a recommendation that NSAIDs be reduced. In August 2017
Dr Edwards noted improvement with proton pump inhibitors, Carafete and reduced consumption of NSAIDs.
64.   Dr Jonathan Herald, Orthopaedic Surgeon, provided a report dated 14 August 2017. The doctor diagnosed biceps tendinitis and rotator cuff tear and then recommended arthroscopic repair.
65.   In March 2018 Dr Herald noted good recovery from the back surgery although Mr Vella complained of ongoing neck and right shoulder problems. Dr Herald again recommended shoulder arthroscopy and biceps tenodesis. At the pain clinic in April, Mr Vella complained of persistent shoulder and neck pain. The doctor recommended pain medication as an anti-neuropathic agent.
66.   This surgery was performed later in April 2018. At surgery Dr Herald identified a high-grade partial thickness supraspinatus rotator cuff tear.
67.   In May 2018 Dr Herald noted improvement following surgery. The doctor noted an allergy to some medication and changed this to Panadeine forte. Further improvement was noted in June 2018.
68.   In October 2018 Dr Herald note that the neck was affecting recovery. There was also a delay with physiotherapy following surgery which attributed to the slow progress and development of a secondary frozen shoulder. In November 2018, Dr Herald noted that Mr Vella was doing an exercise programme but still had a lot of inflammation and pain. Deep tissue massage and an anti-inflammatory cream were recommended at that time.
69.   Dr James Wu, Pain specialist, examined Mr Vella in June 2018. The consultation related to right shoulder pain following surgery. In September 2018 Dr Wu noted persistent right shoulder pain, right sided neck pain and right arm pain. Physiotherapy and hydrotherapy had commenced and ongoing psychological issues with sleep disturbance were noted. Mr Vella was then seeing a clinical psychologist.
70.   Review at the pain clinic in December 2018 noted persistent right shoulder pain with restricted movement. Ongoing physiotherapy, hydrotherapy and clinical psychological management were recommended by Dr Wu. Dr Wu made similar recommendations in March 2019.
71.   In May 2019 Dr Wu recommended an ongoing multidisciplinary pain management approach due to persistent widespread pain.
72.   A physiotherapy consultant in a report dated 13 June 2019 recommended that Mr Vella’s treatment is not optimised by multiple health providers and that additional hydrotherapy support and exercise physiology cease. The consultant noted high levels of constant and persistent pain and recommended ongoing physiotherapy and pain management.
73.   In September 2019 Dr Wu noted ongoing right arm pain associated with coldness. The doctor recommended ongoing multidisciplinary pain management approach with ongoing psychological sessions.
74.   Dr Lee provided a further report dated 3 January 2020. He opined that
Mr Vella suffered from chronic pain, anxiety, depression and general impairment of functioning caused by the motor accident.
75.   Dr Dias, Occupational Physician provided a report dated 14 October 2019. The doctor noted an extensive work history of labouring work including the work with the pre-injury employer. The pre-injury employment was as a truck driver and general labourer working long hours involving repetitive heavy lifting and heavy manual handling of items. Past medical history included a work injury to the lumbar spine around 2009 which required an L3/4 microdiscectomy procedure performed by Dr Sheridan in 2010.
76.   The doctor recorded that Mr Vella made a full recovery by 2011 with no further ongoing lumbar symptoms.
77.   Dr Dias referred to the motor accident and noted that Mr Vella sustained an acute musculoligamentous strain to the lumbar spine although the “lower back symptoms were overshadowed by the pain he was felling in his neck and right shoulder at the time of the accident”.
78.   Dr Dias recorded that Mr Vella was placed on light duties at work after the accident but “essentially performed his normal duties as a driver and labourer”. Mr Vella’s employment was terminated in September 2016.
79.   Dr Dias opined that Mr Vella sustained an aggravation of degenerative cervical spondylosis and associated disc protrusion at C5/6, an aggravation of pre-existing degenerative lumbar spondylosis with an associated disc protrusion at L2/3 resulting in decompressive surgery in August 2017. In relation to the right shoulder, Mr Vella sustained a partial thickness supraspinatus tendon tear and underwent surgery in April 2018. He developed a chronic right shoulder postoperative adhesive capsulitis.”

To the above history the Panel notes Mr Pleffer’s report dated 30 May 2016 which stated that the “light duties are not quite light duties as he is driving all day and shovelling”.[18]
[18] Insurer’s bundle, page 133.
The insurer filed a further report of Dr Dalton dated 24 January 2022. Dr Dalton
re-examined Mr Vella on 30 November 2021.
The doctor noted that Mr Vella presented with a flat effect and reported “no improvement or deterioration” since the assessment in October 2019.
Dr Dalton noted moderate stiffness limiting rotation and lateral flexion in the cervical spine, with no guarding or spasm. Examination of the left shoulder demonstrated pain free movement with no loss of function. The doctor concluded that there was “little significant change in [Mr Vella’s] clinical presentation” although he opined that the shoulder appeared less irritable.
After reviewing updated materials, Dr Dalton made observations concerning the differences of opinion. He also referred to the “MAS Certificates of Assessment provided by Dr Palmegiani, Dr Bodel and Dr Crane” and observed that there was “some variability in the active range of motion recorded by various examiners”, particularly those recorded by Mr Castro. Dr Dalton observed that there were behavioural confounders and the assessment of the shoulder “cannot be considered permanent”.
Dr Dalton referred to his initial opinion dated 21 September 2018 and stated that he did not seek to alter that opinion. The doctor noted limited mobility and stiffness in the right shoulder consistent with post-traumatic/post-surgical capsulitis and muscle guarding and features of myofascial pain. He also opined that the various treatments, such as the surgery performed by Dr Herald in April 2018 were not “reasonable and necessary”.
Dr Dalton observed that Mr Vella “clearly has physical restrictions consistent with the underlying pathology and his previous surgery” although presenting with “some inconsistencies and psychological overlay”. The doctor opined that it was “unlikely” that Mr Vella will benefit from further treatment.
In addition to the above summary of evidence, Mr Vella was examined by
Medical Assessor Dixon. The examination report is set out later in these Reasons.

Submissions

Insurer’s submissions dated 7 May 2020[19]

[19] Insurer’s bundle, page 1

These submissions related to the treatment dispute. Insofar as they are relevant, the insurer noted the temporal delay in complaint of lumbar spine symptoms and the pre-existing condition. It otherwise submitted that the claimant suffered a soft tissue right shoulder injury only in the subject motor accident.

Insurer’s submissions dated 22 July 2021

The insurer referred to the failure by Assessor Crane to make a causation finding in respect of the right shoulder, lumbar spine and cervical spine and merely to adopt Assessor Bodel’s findings in the treatment dispute.
The insurer referred to the findings by Dr Giblin and Dr Miniter in 2011 and the clinical records from 2009 up until 30 January 2016, the latter which noted continued complaint of localised right lower back pain. It also referred to the absence of contemporaneous complaint to the lumbar spine in the months following the motor accident including the absence of physiotherapy treatment. It also noted that the referral by Dr Sorani to Professor Sheridan in September 2016 was for management of cervical discopathy.
The insurer referred to Dr Dalton’s opinion of an absence of lumbar spine injury caused by the motor accident, a cervical spine injury which had resolved and a soft tissue injury to the right shoulder which did not require the surgery proposed by Dr Herald. It then contradictorily submitted, that had Assessor Crane made his own findings then it is “unlikely he would have found the right shoulder, cervical spine and particularly the lumbar spine injuries as having been caused by the subject accident”.[20]
[20] Insurer’s submissions, [27].

Claimant’s submissions dated 5 October 2021

These submissions opposed the insurer’s application seeking to refer the matter to a Review Panel.
The claimant submitted that Assessor Bodel’s certificate was “conclusive evidence as to the issue of causation”[21] referring to s 61(2) of the MAC Act and clause 1.13 of the Medical Assessment Guidelines. It was submitted that if this proposition was correct then “almost all of the insurer’s submissions become irrelevant”.[22]
[21] Claimant’s submissions, [3.2].
[22] Claimant’s submissions, [9]

Re-examination

Mr Vella was examined by Medical Assessor Dixon of the Panel. The examination report is as follows:
“The claimant was referred for clinical assessment.
The claimant was driving a truck when he was hit on the driver’s side by another truck while in a driveway. He sustained a neck strain injury and a seatbelt injury to his right shoulder together with direct impact to the right shoulder.
It is noted that after the accident in April 2016 the claimant was only off work for a week and returned to work doing duties as a construction labourer. He was reviewed by his GP but it was not until November 24, 2016 that his GP noted that the claimant complained of low back pain with left thigh meralgia. This thigh pain has settled.
In 2010 he had had a micro-discectomy at the L3/4 level and the claimant reports a good result following this procedure after which he was able to return to manual work.
He reported on review on March 18 2022, that the pain was in the mid line of his lower back and there was no radicular complaint, no meralgia in the left thigh nor sciatica but he had difficulty with prolonged sitting and tended to lean forward while walking.     It is noted that two months prior to the subject motor vehicle accident, he had seen a doctor for back pain on 30/1/2016 but there is scant mention of any low back problems at the time of the subject accident, his GP Dr Michael Sorani and the physio report only neck and shoulder pain as did the IME report of Dr Matthew Giblin and even from the Psychiatrist who both referred to neck and right shoulder pain. The claimant has been back to see Professor Mark Sheridan his original spinal surgeon who had performed the micro-discectomy. Further surgery was undertaken at L2/3 in August 2017.
MRI’s were performed but the claimant indicates the pain is below the micro-discectomy levels.
On examination today he still had stiffness of the lumbar segment with flexion decreased by one third with extension decreased by one third, lateral flexion to the right and left was decreased by one quarter. There was a well healed old laminectomy wound in the mid-line in the upper lumbar segment and in the lower lumbar segment there was tenderness at the L4/5 level in the midline. There did not appear to be adjacent tenderness in the lumbo-sacral facet joints and straight leg raise was 70 degrees bilaterally without radicular complaint.   There was no neurological deficit or wasting of either lower limb and his Babinski sign was negative.
His normal gait was satisfactory but when he walked with a stooped posture which he attributed to his low back pain. He was unsteady on toe and heel walking and his squat test was associated with low back pain. There was no evidence of muscle spasm today nor dysmetria and no non-verifiable radicular complaint and his reflexes were symmetrical and there was no weakness nor loss of sensation or muscle atrophy. His sciatic nerve root tension signs were negative.
MRI of his lumbar spine arranged by Professor Sheridan showed progressive disc protrusion at L2/3 where he had previously been operated on but his symptoms today appeared to be below that.
The claimant reported today that he had told his GP at the time about low back pain but apparently it was not recorded. There appears to be a large temporal gap before his low back pain was mentioned and it does appear that the MRI study shows that the L2/3 disc lesion in the lumbar spine had progressed since an MRI study back in 2009.
I was able to assess from the claimant today that the back complaint was present at the time of the subject accident reported. However, I believe that his pre-existing disc lesion is more likely to have been aggravated when he returned to manual duties as a construction labourer, within a week of the subject motor vehicle accident.
There were no contemporaneous records of low back symptoms following the subject motor vehicle accident. It is also noted that the GP had recorded low back pain prior to the subject motor vehicle accident as recently as January 2016.
It is noted that when the claimant returned to heavy lifting after the accident, he was subsequently terminated in September 2016.   It was noted that it was more likely than not that the normal duties of a construction driver and labourer aggravated his back with associated L2/3 disc protrusion rather than the subject motor vehicle accident.
It was noted that his aggravation of the degenerative cervical spondylosis and disc protrusion at C5/6 and injury to his right shoulder were responsible for a partial thickness supraspinatus tendon tear which was repaired in 2018, but despite this he developed chronic adhesive capsulitis.
In summary, I was unable to elucidate any clear evidence of back strain injury reported in the subject accident.
The claimant still requires pain relief and is unable to take anti-inflammatories due to a past history of GORD (gastritis and reflux).
With regard to his right shoulder there was stiffness on shoulder elevation with flexion at 90 degrees and active abduction 70 degrees with impingement, extension 40 degrees, adduction 30 degrees, external rotation 70 degrees, internal rotation 40 degrees. There was tenderness of the deltoid muscle as far as its insertion and the trapezius muscle as well as in the biceps groove. His shoulder girdle power on the right was grade four out of five. The measurements were repeated and measured in accordance with clause 1.50 of the Permanent Impairment Guidelines. The left shoulder was also measured and found to have normal range of movement. I considered the measurements reliable.
There was stiffness of the cervical spine with flexion decreased by one quarter and neck extension by one third and lateral rotation decreased by one quarter bilaterally and lateral flexion to the left was decreased by one third, associated with right trapezial muscle pain and that to the right decreased by more than one third. The claimant satisfied the concept of non-uniform loss of spinal motion (dysmetria) in accordance with the definition in Table 8 of the Permanent Impairment Guidelines. There was no neurological deficit or wasting of either upper limb.
Assessment
The WPI for the right shoulder is from Pie Charts 38, 41, and 44 of AMA 4.
90 degrees flexion   - 6% UEI,
70 degrees abduction - 5% UEI,
40 degrees extension - 1% UEI,
30 degrees adduction - 1% UEI,
70 degrees external rotation 0% UEI,
40 degrees internal rotation 3% UEI giving 16% upper extremity impairment which equates to 10% WPI,
That for the injury to neck with dysmetria on flexion/extension and disc protrusion at C5/6 is DRE II, 5% WPI.
When these are combined it gives a total of 15% whole person impairment.”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned.
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[23] and Insurance Australia Ltd v Marsh.[24]
[23] [2021] NSWCA 287 at [40], [41] and [45].
[24] [2022] NSWCA 31 at [11], [21], [64]
As the insurer correctly submitted, the certificate of the prior Review Panel is only conclusive evidence for the purpose it was issued.[25]
[25] Owen at [35].
The claimant’s submission that Assessor Crane was bound by Assessor Bodel’s determination is wrong at law. In any event, the determination by Assessor Bodel was revoked in Vella (No 1).
The insurer emphasised the opinion of Dr Dalton although it did not attempt to address the contrary opinions expressed by a number of doctors. It would be an incorrect exercise of our power to accept an opinion without independently expressing our own reasons.

Lumbar spine injury

As the insurer correctly submitted, there is a complete absence of contemporaneous evidence suggesting injury to the lumbar spine following the motor accident. Such an absence is relevant but not determinative of the issue of causation: AAI Ltd v McGiffen.[26]
[26] [2016] NSWCA 229 at [64]-[66].
Mr Vella did not assert in the claim form that he injured his lumbar spine in the motor accident. In Bugat v Fox[27] the Court observed that the existence of complaint in the claim form was relevant to whether that body part was injured. Logically, the absence of reference in the claim form is also relevant.
[27] [2014] NSWSC 888.
Dr Giblin was qualified by Mr Vella in late 2016 and recorded no complaint that the lumbar spine was injured in the motor accident. There was also no complaint to Dr Lee in 2016 of low back pain caused by the motor accident, the psychiatrist qualified by the claimant.
Mr Vella returned to work one week after the motor accident. The physiotherapist noted in May 2016 that these duties were “not quite light duties” which involved shovelling.
There was a documented injury with prior surgery to the L3/4 disc. In January 2016
[28] Vella (No 1) at [104].
Dr Sorani recorded a complaint of right lower back pain. We agree with the view expressed in Vella (No 1) that “medical science supports a conclusion that adjacent level disc disease commonly occurs following single level disc surgery”.[28]
The first record of lumbar spine complaint following the motor accident is to Professor Sheridan who the claimant was referred to for the purposes of treating the cervical spine. Professor Sheridan then referred to a lifting incident at work although he recorded onset of back pain since the motor accident.
Further, the nature of the motor accident is relevant to the determination of causation noting the “biomechanical, anatomical, orthopaedic or other reasoning to support the putative traumatic causation”.[29]
[29] QBE Insurance (Australia) Ltd v Shah [2021] NSWSC 288 at [36].
Whilst it is possible that a motor accident can cause low back injury, the more likely explanations in the present case are the naturally occurring degeneration following surgery at the adjacent level some six years previously and lifting at work.
The claimant’s response that he advised his general practitioner does not explain the complete absence of complaint recorded by any medical practitioner for some six months after the motor accident. It otherwise does not explain the absence of complaint in the claim form and by two doctors (Dr Giblin and Dr Lee) who were qualified by the claimant in late 2016.
Both Dr Dalton and Dr Breit doubted the causative link between the motor accident and the pathology at L2/3.
We do not accept the opinions of Professor Sheridan and Dr Dias who support a causative link between the motor accident and the lumbar spine pathology. Both doctors have a history of onset or aggravation of back symptoms following the motor accident. For the reasons expressed, we do not accept that history. An incorrect history relying on the contemporality of symptoms with the subject incident greatly reduces the value of the medical opinion. That error alone greatly undercuts the value of the opinion as it is not based on a fair climate.[30]
[30] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
We do not accept Mr Vella’s history that he suffered increased back pain following the motor accident. We otherwise conclude that the lumbar spine was not injured in the motor accident.

Right shoulder injury

Mr Vella immediately complained of cervical spine and right shoulder symptoms following the motor accident. Those complaints are evidenced by the general practitioner, physiotherapist and in the claim form.
There was no evidence of prior complaint of cervical and right shoulder symptoms. The prior clinical notes are before the Panel. As previously mentioned, the only relevant reference is the clinical note dated 30 January 2016 which refers to low back pain.[31]
[31] Insurer’s bundle, page 285.
The clinical note of the general practitioner dated 19 April 2016 refers to both neck pain and trauma to the right shoulder when Dr Sorani identified localised tenderness to both the paracervical region and to the right AC joint.[32] The physiotherapist in May 2016 referred to right shoulder pain and impingement.[33]
[32] Insurer’s bundle, page 286.
[33] Insurer’s bundle, page 133.
Mr Vella stated in his claim form that the insured vehicle “collided into my right hand driver’s side door”.[34] He then referred to shoulder pain and neck pain. This reasonably contemporaneous history is consistent with the version given to Medical Assessor Dixon when Mr Vella stated that the impact was with the driver’s side door and there was direct impact with the right shoulder. It is also entirely consistent with the report of pain to the general practitioner immediately following the motor accident localised to the right shoulder and the neck.
[34] Insurer’s bundle, page 17.
The right shoulder scan evidence in 2016 showed a partial thickness tear of the supraspinatus tendon. All medical practitioners in 2016 accepted that there were injuries to the right shoulder and neck including Dr Giblin and Dr Dave.
Dr Breit, who was qualified by the insurer, accepted in March 2017 that there were soft tissue injuries to the right shoulder and the cervical spine.[35]
[35] Insurer’s bundle, page 235
Initially, Dr Dalton accepted, in a report dated 21 September 2018 that there were soft tissue injuries to the neck and right shoulder “in the subject accident”.[36] The doctor then indicated that the soft tissue injury to the neck had resolved. With respect to the right shoulder, Dr Dalton noted the lack of information from clinical examination findings and that the assessment “was further hampered by the development of a pain disorder”.[37] He opined that the fact that the claimant had undergone recent surgery was unfortunate and could lead to the development of post-surgical capsulitis.
[36] Insurer’s bundle, page 248.
[37] Insurer’s bundle, page 250.
Dr Dalton provided a further report dated 9 December 2019[38] when he noted that the complaints did not differ significantly from those reported in August 2018. He opined that Mr Vella had degenerative disc disease, predominantly at the C5/6 level, which did not result from the motor vehicle accident. The doctor again noted post-traumatic capsulitis with some resolution from the previous examination. The doctor questioned whether any shoulder pathology was caused by the motor accident.
[38] Insurer’s bundle, page 255.
Dr Dalton provided a further report dated 24 January 2022 which we have summarised earlier in these Reasons. The doctor did not have the benefit of the reasons provided in Vella (No 1) and continued to express the opinion that the surgery performed was not “reasonable and necessary”. We observe that the examination occurred on 30 November 2021, some three weeks after the decision of the earlier Review Panel was issued. Dr Dalton’s further report is dated 24 January 2021. He otherwise confirmed his previous opinions on causation.
The Medical Review Panel in Vella (No 1) concluded that Mr Vella sustained a partial supraspinatus tear because:[39]
(a)   the clinical notes and contemporaneous histories show no history of prior right shoulder symptoms;
(b)   the conclusion was supported by three treating shoulder specialists, and
(c)   the contrary opinion expressed by Dr Dalton was made in the absence of analysis as to when recovery occurred.
[39] Vella (No 1) at [124] – [127].
The opinion on causation in Vella (No 1) was brought to the parties’ attention without any responding submission as to why that opinion was inaccurate.

The Panel endorses the reasoning in Vella (No 1) set out above. We add further reasons on the right shoulder injury including that the mechanism of impact into the driver’s door is entirely consistent with the pathology noted on the shoulder scans given the traumatic impact into the right shoulder. Further, the contemporaneous note made by the general practitioner noted localised tenderness in the right AC joint which is entirely consistent with injury to the supraspinatus tendon.
For these reasons we find that the motor accident caused a partial supraspinatus tear of the right shoulder.

Cervical spine injury

The clinical notes and contemporaneous histories establish both an absence of cervical spine symptoms prior to the motor vehicle accident and continuous symptoms since the motor accident.
Dr Dalton noted that there was a pre-existing degenerative condition in the cervical spine. The doctor opined that the effects of the cervical spine injury caused by the motor accident ceased. His opinion that the pathology was pre-existing does not address the issue of aggravation to an asymptomatic condition and does not attempt to explain how the condition resolved given the continuous complaint of symptoms.
We accept that Mr Vella had a pre-existing degenerative condition in the cervical spine. That condition was asymptomatic prior to the motor accident. The issue is whether the motor accident aggravated that condition and whether the effects of the aggravation are ongoing.
The Panel in Vella (No 1) concluded that the claimant suffered an aggravation of degenerative changes in the neck, particularly at the C5/6 level resulting in nerve root compression caused by the motor accident.[40] That conclusion was based on:[41]
(a)   the absence of pre-accident cervical spine complaint;
(b)   contemporaneous and consistent complaints of neck symptoms since the motor accident;
(c)   the description of the cervical spine complaints and consistent medical treatment to the neck over an extended period, and
(d)   the mechanism of the motor accident causing a whiplash injury.
[40] Vella (No 1) at [141].
[41] Vella (No 1) at [142] – [144].
The insurer relied on Dr Dalton’s opinion which is rejected for the reasons set out above. The insurer otherwise did not refer to Dr Breit’s opinion who was also qualified by it and supported the claimant’s case on injury to the cervical spine.
Mr Vella’s case is otherwise supported by the opinions expressed by Dr Giblin and Dr Dias and the consistent neck complaints recorded in the medical reports.
The Panel is satisfied that Mr Vella sustained neck injury aggravating asymptomatic degenerative pathology, particularly at C5/6. The nature of the motor accident clearly supports an ongoing permanent aggravation. The reasoning in Vella (No 1) is compelling and adopted by a differently constituted Panel supplemented by these further Reasons. Our conclusion is otherwise consistent with the underlying facts we accept[42] and consistent with the preponderance of the medical evidence.
[42] Set out at [79].

Causal relationship between motor accident and impairment

The motor accident need only be a material contribution between the motor accident and the impairment.[43] As the Court held in Hunter v Insurance Australia Ltd,[44] it is sufficient that there is an indirect but foreseeable consequence to establish causation.[45]
[43] Clause 1.7 of the Guidelines.
[44] [2021] NSWSC 623 (Hunter)
[45] Hunter at [20].
The right shoulder surgery was recommended by treating specialists due to ongoing restriction of movement and shoulder pain in the context of pathology that was caused by the motor accident and warranted surgery. Those symptoms were caused by the motor accident. Mr Vella developed adhesive capsulitis following this surgery which is detailed in the reports of the treating surgeon.[46] Indeed Dr Dalton in his latest report accepted that there were physical restrictions in the right shoulder “consistent with the underlying pathology and his previous surgery”.
[46] Claimant’s bundle, page 86.
The Panel accepts that the surgical treatment was causatively related to the motor accident. Accordingly, the consequences of surgery treating the effects of the motor accident are assessable.
Based on our earlier reasons on the nature of the cervical spine injury and the continuity of complaints, we are satisfied that the present neck condition is also caused by the motor accident.

Assessment of impairment

The Panel adopts the most recent and precise assessments of Medical Assessor Dixon. We are not bound by earlier assessments, and we are required to undertake a new assessment.
The recent report of Dr Dalton raised issues of consistency and suggestions that the loss of range of movement was not permanent. Whilst the insurer made no submissions as to the relevance of the recent report for our task, we have closely considered its content. Given Dr Dalton’s opinion of lack of consistency and potential improvement, who also opined that no further treatment would assist, we have considered these comments as part of our overall task. We observe that
Medical Assessor Dixon did not find inconsistency in his examination. Like, Dr Dalton, both doctors opined that there was adhesive capsulitis following the surgical procedure undertaken by Dr Herald.
The impairment of the cervical spine is consistent with the cervical spine pathology. The claimant is assessed at DRE Category II for the cervical spine based on non- uniform loss of range of motion (dysmetria) and assessed at 5% impairment.[47]
[47] See AMA 4, page 104, and Table 8 of the Guidelines.
The impairment of the right upper extremity has been assessed in accordance with clauses 1.50 – 1.51 of the Guidelines. Medical Assessor Dixon has otherwise specified the various charts for assessing the shoulder in AMA 4. The right upper extremity is assessed at 10% impairment. There was no assessable impairment of the left shoulder which requires any relevant deduction.
Given Dr Dalton’s opinion on inconsistency, we note that Medical Assessor Dixon’s assessment was similar to the right shoulder assessment made by
Medical Assessor Crane in early 2021. We otherwise did not have the benefit of any assessment by Dr Dalton although there is a suggestion in his report that the shoulder assessment is not permanent.
There is no basis to make a deduction pursuant to clause 1.31 of the Guidelines as there is no evidence of any impairment in the same region that existed before the relevant motor accident.
We reject the suggestion that the effects of the right shoulder surgery should be discounted. The surgery was causally related to the motor accident. A less than desirable outcome does not mean that the consequences of the surgery are unrelated to the motor accident. There is no basis to make any deduction in accordance with clause 1.34 of the Guidelines.
We accept that the impairment is permanent despite the recent opinion expressed by Dr Dalton. We note that Dr Dalton otherwise commented that further treatment will not assist. Accordingly, any further improvement would seemingly arise in the absence of treatment and of its own accord. We consider this scenario unlikely.
The motor accident occurred some six years previously and the shoulder surgery was undertaken in April 2018. In the clinical view of the expertise on the Panel, it is unlikely that the range of shoulder movement will change after such an extensive period. We accept that both assessments are permanent.

CONCLUSION

We have concluded, like Medical Assessor Crane, that the permanent impairment as a result of injury caused by the motor accident is greater than 10%. However, our reasons are different from Medical Assessor Crane as we have not accepted injury to the lumbar spine. The replacement certificate is set out at the commencement of these Reasons.

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Citations

Allianz Australia Insurance Ltd v Vella [2022] NSWPICMP 86

Cases Citing This Decision

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Cases Cited

13

Statutory Material Cited

0

Allianz Australia Insurance Ltd v Vella [2021] NSWPICMP 214

Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650

Allianz Australia Insurance Ltd v Girgis [2011] NSWSC 1424

[2022] NSWPICMP 86

4 April 2022