Bath v Allianz Australia Insurance Ltd
[2025] NSWPICMP 481
•3 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Bath v Allianz Australia Insurance Ltd [2025] NSWPICMP 481 |
CLAIMANT: | David Bath |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Dr Ian Cameron |
MEDICAL ASSESSOR: | Dr Les Barnsley |
DATE OF DECISION: | 3 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) of single Medical Assessor; assessment of whole person impairment (WPI); accident on Sydney Light Rail; claimant fell with mobility scooter when Light Rail stopped suddenly; issue of causation in respect of alleged injuries to shoulders; Held – shoulders not injured in accident due to lack of contemporaneous complaint, pain behaviours and cognitive issues; WPI assessed at 5% from injury to cervical spine and thoracic spine caused by motor accident; injuries to left and right shoulder, scarring and damage to spinal stimulator not caused by motor accident; MAC revoked and new MAC issued. |
DETERMINATIONS MADE: | The Review Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga dated 10 December 2024 and certifies: 1. The following injuries caused by the motor accident give rise to a permanent impairment of 5% which is NOT greater than 10%: · cervical spine – soft tissue injury, and · thoracic spine – soft tissue injury. 2. The following injuries referred for assessment were NOT caused by the motor accident: · right shoulder – tear of rotator cuff tendon requiring rotator cuff tendon repair and reverse shoulder joint replacement surgery; · left shoulder – tear of rotator cuff tendon requiring surgery and reverse shoulder joint replacement; · skin – scarring at the surgical repair sites of right shoulder and left shoulder, and · cervical spine – damaged spinal stimulator. |
STATEMENT OF REASONS
INTRODUCTION
Mr David Bath, (the claimant) is a 70-year-old man who suffered injury on 2 March 2019. The claimant was a passenger on the Sydney Light Rail when a sudden stop caused the claimant to fall along with his mobility scooter.
A claim was lodged upon Allianz Australia Insurance Limited who is the compulsory third party insurer of the vehicle considered at fault. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The subject issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Nelukshi Wijetunga. She issued a certificate dated 10 December 2024. The Medical Assessor certified that the injuries caused by the accident give rise to a permanent impairment of 17% and is greater than 10%.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer, and the President’s delegate 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.[1]
[1] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
Interim directions were issued by the Panel requiring the parties to lodge bundles of all documents relied upon. Those bundles were received in compliance with the direction.
The Panel convened a teleconference and determined that a re-examination of the claimant was required. This occurred on 20 June 2025 with Medical Assessor Cameron and Medical Assessor Barnsley in Hornsby.
The Panel reconvened via teleconference on 1 July 2025.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[5]
[5] Clause 6.2 of the Guidelines.
Guidelines
Causation of injury is addressed from cl 1.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury.[6] Clauses 1.6 and 1.7 provides:
“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.”
[6] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act):[7]
[7] See s 3B(2) of the CL Act.
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
ASSESSMENT SUBJECT TO REVIEW
Medical Assessor Wijetunga examined the claimant on 9 December 2024 and issued a certificate and reasons dated 10 December 2024. The Medical Assessor found that all injuries referred for assessment (left and right shoulder, cervical spine and thoracic spine) were caused by the motor accident and give rise to a permanent impairment of 17%. The Medical Assessor declined to provide an impairment assessment of the left shoulder injury on account of the injury not yet being permanent. It was stated that the impairment should be capable of assessment 12 months after surgery.
The Medical Assessor noted a long and complicated medical history and stated that it was difficult to clarify the nature of the accidents and subsequent severity of symptoms. The Medical Assessor questioned the claimant as to the lack of contemporaneous shoulder complaint after the accident and he explained that he believed that they acknowledged the accident, but it appears the specialist were more concerned about decreasing opiates rather than any concern for new injuries. The Medical Assessor considered this to be plausible response.
Following examination, the Medical Assessor found a 5% whole person impairment of the cervical spine, due to a DRE category II impairment with note of dysmetria demonstrated range of motion. There was no muscle spasm or guarding and no verifiable or non-verifiable radiculopathy.
In respect of the thoracic spine, the reasons of the Medical Assessor note a DRE category I impairment on account of no muscle spasm, symmetrical spinal motion and no muscle guarding or spams and no verifiable or non-verifiable radicular complaints. Despite these findings the permanent impairment table set out in the reasons lists a DRE category II impairment of 5% whole person impairment.
The right shoulder injury was assessed at 8% whole person impairment on account of loss of range of motion.
SUBMISSIONS
Claimant’s original submissions dated 5 July 2024
The report of Dr Bentivoglio dated 30 November 2023 is relied upon in submitting that the permanent impairment from injuries caused by the accident are greater than 10%.
Dr Bentivoglio diagnosed the claimant as having a right upper extremity and scarring injury caused by the accident giving rise to a 26% whole person impairment. An assessment of the left shoulder injury was not performed on the basis that the injury was not stable.
Insurer’s original reply submissions dated 18 July 2024
The insurer summarises evidence that documents the claimant’s very clear complex and vast medical history. Also noted is the subsequent incident of 26 November 2021 when the claimant fell and a complaint of right shoulder injury is noted. The insurer submits that the right shoulder injury is not caused by the accident.
In respect of the cervical spine, and left shoulder and aggravation of pre-existing back injury the insurer states they do “…not respond to the allegations of impairment to the left shoulder, cervical spine or ‘aggravation of pre-existing back injury’ as there is no evidence to support any assessable impairment pertaining to the subject accident.”
Insurer’s review submissions dated 19 December 2024
The insurer submits the Medical Assessor was in error for failing to conduct an appropriate assessment of impairment by not performing a deduction for pre-existing impairment, specifically of the right shoulder. In addition, the insurer submits the Medical Assessor failed to assess subsequent impairment of the right shoulder.
It is also submitted the Medical Assessor failed to comply with cls 6.40 and 6.41 in respect of inconsistencies.
Claimant’s review submissions in reply dated 31 December 2024
The claimant submits that the Medical Assessor properly complied with the Guidelines by not making a deduction for pre-existing impairment noting the lack of reliable objective range of movement evidence of the right shoulder at the time of the accident.
It is further denied that the Medical Assessor failed to put various inconsistencies to the claimant. It is noted that the claimant is 70 years of age with a long and complex medical history and as such he did the best he could when considering his medical history.
DOCUMENTATION
The Panel has considered all documents included in the parties’ voluminous bundles that have been lodged in accordance with Panel directions. The Panel has also considered the documents included in the insurer’s application to admit late documents uploaded on
26 March 2025 – I-Med radiology records.
The insurer also lodged a further application to admit late documents (Glebe Family Medical Practice Records) that was uploaded on 1 July 2025. Which is after the examination, and the day of the Panel’s second teleconference and when these reasons were substantially completed.
In submissions the insurer asserts that Rule 67C(5) of the Personal Injury Commission Rules 2021 (Rules) (which prohibits the introduction of documents after a medical examination has taken place) is not applicable to review panel proceedings, as it is defined by rule 5(7) of the Rules.
The Panel acknowledges the submission, however, does not accept that panel review proceedings are not also medical assessment proceedings. In this regard, the “enabling legislation”, being the MAI Act, deals with reviews of medical assessments in Division 7.5 “medical assessment”. In any event, exercising its discretion, the Panel has decided to not consider the late material on the basis of which Rule 67C(5) is premised. That is, it would be an example of procedural unfairness. Furthermore, the Panel is satisfied that it has adequate information upon which to assess the dispute.
There is a large amount of documents, owing to the claimant’s complex medical history. The Panel has not referred to each document within these Reasons, however, that should not be taken to mean that all documents were not considered. The Panel has referred to some documents that are directly relevant and give the required detail to understand the Panel’s Reasons, however, the conclusions of the Panel have been reached in the context of the entirety of the material.
Ambulance report
NSW Ambulance attended the scene and transported the claimant to St Vincents Hospital. The report documents the “tram” coming to a sudden stop and the claimant falling onto his left side landing on his head. There is a query as to whether the claimant lost consciousness. The claimant complained of headache, dizziness and had generalised neck pain. He also had pain alongside the left side of his body including shoulder and hip. A haematoma on the left frontal lobe of the head was noted.
Letter from St Vincent’s Hospital dated 2 March 2019
The document notes the claimant attending the emergency department and the diagnosis is listed as “fractures – rib, sternum, larynx, trachea – ribs, closed”. This diagnosis appears to be an error and is not commensurate with the balance of the medical evidence. It would appear to be an administrative error. The body of the letter, however, notes the mechanism of injury of the claimant falling from mobility scooter onto left side and head. The claimant had no loss of consciousness and his Glasgow Coma Score is noted as 15. The claimant is noted to have been in significant pain “8/10” almost all over body pain. Lateral thigh paraesthesia, neck pain, back pain was voiced. A history of chronic back pain was noted with the claimant being on continuous morphine infusion.
Abrasions to the left forehead were noted and cervical spine tenderness in addition to tenderness of the thoracic and lumbar spine. Radiology was ordered of the head, cervical, thoracic and lumbar spine and left hip. No mention of either shoulder is specifically noted.
Royal Prince Alfred Hospital
The notes are from 1 January 2017 onwards. The claimant is noted to consult the pain clinic at the hospital prior to the accident for chronic pain. He had a permanent intrathecal morphine pump in situ from at least February 2017.
The file notes the claimant attended the hospital on 7 March 2019 after the accident and discharged the next day. The discharge summary notes the claimant having an opioid dependence and presented with worsening widespread pain and left hip pain after the accident. A loss of consciousness after the fall was noted. The claimant is recorded as reporting worsening pain in the left chest and left hip, sharp and throbbing and spontaneous shooting pain down bilateral toes. Tenderness at the chest wall, lower lumbar spinal region and paraspinal region noted.
The claimant presented to the hospital again on 2 April 2019 with a note of secondary acute exacerbation of chronic pain as a result of the accident. The notes record the claimant being unwell the past three days with an increased level of pain in the back, both knees, hips and left ankle.
The claimant presented to the hospital on 3 October 2021 following a fall from standing height and he had imaging of the right shoulder, humerus, forearm, wrist, knee, brain and spine. No injuries noted therefrom.
General practitioner (GP), Dr Nugent – Glebe Family Medical Practice
The claimant is noted as a new patient on 5 January 2017 and a complex background of chronic pain and multimorbidity is noted.
The claimant is first seen after the subject accident on 7 March 2019. There is a note of rib fractures and multiple areas of bruising. Right lower shin wounds were cleaned. He was due to attend again on 11 March 2019 but did not attend because he was too sore. On
18 March 2019 it was noted the claimant went to hospital. He is noted as slowly improving but still sore down the left side. He was noted as being in severe pain on 1 April 2019 and not improving since the fall.
On 6 May 2019 the claimant was noted to have worse pain in knees and shoulder and on
4 July 2019 pain had been particularly bad in the left arm.
On 31 October 2019 the claimant is noted to have “acute right shoulder pain” with it being sore since accident “last year”. On 4 November 2019 the claimant is seen again predominantly due to psychological struggles, however, the claimant was noted to be sore in both shoulders.
An ultrasound was noted to demonstrate a supraspinatus of the right shoulder on
13 November 2019.
RE-EXAMINATION
Medical Assessor Barnsley and Medical Assessor Cameron reassessed Mr David Bath at Hornsby on 20 June 2025. He was accompanied by his daughter, Tammy. He had been transported to the appointment by his daughter.
Medical Assessor Barnsley provided an explanation of the Review Panel procedures.
Past history
Mr Bath had a back injury in 1985 in a fall from a tractor while working on a farm. He subsequently had a lumbar spinal fusion. There was further surgery.
Due to chronic pain at about the lower lumbar level, there was a spinal stimulator inserted, and later a morphine pump from the Pain Clinic at Royal Prince Alfred Hospital. Mr Bath said that the treatment from the Clinic and Dr Ditton was helpful. There has been a morphine pump since 2005. This has required monthly refills.
Mr Bath has been in receipt of a Disability Support Pension since that time (around 2005).
Mr Bath initially stated that he had not had neck or shoulder problems before the motor vehicle accident.
It was noted that the GP records showed right shoulder problems in 2014. There were investigations and a specialist consultation. Mr Bath said that the shoulder pain had settled after an injection.
It was noted that the clinical records show ongoing chronic right shoulder pain. This was brought to Mr Bath’s attention. After reflection, Mr Bath said that there had been some ongoing mild shoulder pain up until the accident.
There had been an assault in 2014, and right shoulder pain was noted at that time.
Mr Bath said that there was no residual restriction in movement at the right shoulder.
He has had total knee replacements bilaterally. Mr Bath said that these were successful procedures.
Mr Bath said that he had used a mobility scooter for longer distances. He said that he also used crutches.
History of motor accident
On 2 March 2019 Mr Bath was a passenger on the light rail. He was on his mobility scooter, and was parked facing the centre of the carriage with the front of the light rail to his left. He said that the train stopped suddenly, the scooter tipped onto its left side, and he was thrown to the floor.
Mr Bath said that he was thrown to his left. He felt that he briefly lost awareness. He is uncertain what part of his body was impacted. He said that he tried to get up, but he had worse back pain. He also said that he had pain from both shoulders. He also said that there was left sided neck pain.
Ambulance attended and he was taken to St Vincents Hospital. It was noted that the St Vincents Hospital records did not include mention of shoulder pain. Mr Bath said that was incorrect. The Medical Assessors also noted mention of a rib fracture and injury to the trachea, which appears to be incorrect. He was discharged home after assessment with the understanding he would attend a previously arranged appointment at the Royal Prince Alfred Hospital pain clinic the next day.
Mr Bath went to the Pain Clinic the next day. He was concerned because they said the morphine dose was to be reduced.
Five days after the accident there was a review at Royal Prince Alfred Hospital that does not mention shoulder pain. This was brought to Mr Bath’s attention and he said that was incorrect.
There was a further later review at which shoulder pain is not recorded. Again, Mr Bath said that was incorrect.
Subsequent events
Mr Bath said that there has been ongoing back, neck and shoulder pain. He said that he also had numbness in the lateral four fingers in the right hand. He said that there was also numbness in both feet since the accident (this was numbness and pain).
There has been shoulder surgery. At the left shoulder there have been three operations with the last a shoulder replacement. It was noted that the rotator cuff was intact on imaging after the subject accident.
At the right shoulder there have been two surgical procedures. Firstly, there was a rotator cuff injury and the second a shoulder replacement.
Current status
Mr Bath said that there is ongoing neck pain felt on the left side. There is low back pain. There is bilateral shoulder pain. Mr Bath stated that his sleep is often unsettled.
Current medications are Oxycontin 40mg twice daily, Morphine by pump. He said that the spinal cord stimulator is not currently operative. There is also an anticoagulant, apixaban (for irregular heart beat), Coversyl and some other medications. Mr Bath could not remember these, and details were obtained from his daughter and his phone records.
Examination
Mr Bath is right handed, 180cm in height and weighs approximately 135kg. This is a BMI of 39.
Mr Bath was assisted to stand. There were pain behaviours present.
There were low back scars and also abdominal scarring. These were from the lumbar fusion and spinal stimulator and pump insertion. There were bilateral shoulder scars consistent with the history of joint replacement.
At the lumbar spine there was markedly and symmetrically reduced range of movement (to 50% normal). There was allodynia over the lumbar spine without muscle spasm or guarding. Straight leg raising was reduced to 30 degrees due to precipitation of low back pain. There was no leg pain and hence he had a negative sciatic stretch.
At the cervical spine there was markedly and asymmetrically reduced range of movement (to 50% generally and to 40% on extension and lateral flexion to the left). There was no muscle spasm or guarding at the cervical spine.
At the thoracic spine there was markedly and symmetrically reduced range of movement (to 50% normal). There was no muscle spasm or guarding.
Waddell’s signs were positive with reference to the reported spinal pain. Specifically, there was widespread allodynia on palpation of the lumbar spine, pain on simulated lumbar rotation and pain on light axial compression of the head.
At the right shoulder ranges of movement were flexion 100 degrees, extension 50 degrees, abduction 70 degrees, adduction 10 degrees, external rotation 10 degrees, internal rotation 90 degrees. All movements were limited by pain and were accompanied by vocalisations, grimacing and complaints of severe pain.
At the left shoulder ranges of movement were flexion 70 degrees, extension 50 degrees, abduction 80 degrees, adduction 10 degrees, external rotation 10 degrees, internal rotation 70 degrees. All movements were limited by pain and were accompanied by vocalisations, grimacing and complaints of severe pain.
The Medical Assessors considered it inappropriate to repeat the measurements given the level of distress precipitated by testing active movements.
In the upper extremities there was difficulty concentrating for strength testing and complaints of shoulder pain were precipitated by any arm movement. Nociceptive inhibition was present, manifesting as global weakness in both limbs.
In both upper extremities there was intact sensation to light touch across all dermatomes, but subjective variation in sensibility (ie it felt different) in the left C8 dermatome.
Upper extremity circumferences were measured 10cm above and below the lateral epicondyle. They were 39cm bilaterally above the elbows and 32cm bilaterally below the elbows.
On testing power in the lower limbs, there was no myotomal power loss. There was global weakness due to pain which was accompanied by pain behaviours, specifically crying out, grimacing and complaints of pain. Co-contraction of lower extremity muscles were noted during power testing.
In the lower extremities knee jerks were present and ankle jerks were present. There was a stocking type sensory loss to light touch over both feet.
Circumferences of the lower extremities were measured 10cm above the upper pole of the patella, and 10cm below the lower pole of the patella: above knee - right 58cm, left 58cm; below knee right 41cm, left 41cm.
On brief cognitive assessment performed by Medical Assessor Cameron, Mr Bath was not fully oriented in time. He had difficulty with concentration and calculation. He is not able to read and write. He scored 20/30 using the mini mental state examination.
Summary
In the light rail accident on 2 March 2019 Mr Bath sustained soft tissue injuries predominantly to his cervical spine.
There is an absence of evidence that Mr Bath sustained injuries to his shoulders in the subject incident.
The examination was compromised by significant pain behaviours in a man with an established chronic pain history and cognitive dysfunction. It is noted that he is taking significant amounts of psychotropic medications including high dose opioids.
Mr Bath has a very long history of chronic pain that has predisposed him to have continuing chronic pain after the subject motor incident.
Causation
The injuries caused by the subject incident are:
·cervical spine – aggravation of pre-existing degenerative disease, and
·thoracic spine - aggravation of pre-existing degenerative disease.
These are the listed injuries expressed in usual medical terminology with the exceptions listed below. There is no evidence that the spinal stimulator was damaged in the subject motor incident.
The following injuries are not caused by the motor accident:
· right shoulder - tear of rotator cuff tendon requiring rotator cuff tendon repair and reverse shoulder joint replacement surgery;
· left shoulder - tear of rotator cuff tendon requiring surgery and reverse shoulder joint replacement, and
· skin – scarring at the surgical repair sites of right shoulder and left shoulder.
The Panel noted that Mr Bath stated that he had a brief loss of consciousness at the incident, so we have no specific details as to the way he fell, what structures were struck or how he landed. However, the documentation is consistent with the claimant falling to his left side. This means that it is possible he fell onto, a shoulder. The Medical Assessors therefore accepted that the accident could have caused injury to a shoulder or shoulders, solely on the basis that he had a fall.
The Medical Assessors are of the opinion that to conclude that a shoulder injury did in fact take place in this setting it would be expected that there would be immediate symptoms of shoulder pain. Although Mr Bath claimed this was the case, there were no recorded complaints from either shoulder for a considerable time after the incident. Mr Bath was unable to adequately explain this lack of documentation. In the setting of demonstrable cognitive impairment, and unresolvable inconsistencies in the history, the panel lends weight to the contemporaneous medical records, from several sources, which lack mention of early shoulder pain, particularly at St Vincent’s Hospital where several injuries are noted with corresponding radiology ordered. No mention of shoulder pain is included in hospital notes and no radiology undertaken of the shoulders. Further, the Prince Alfred Hospital makes no reference to shoulder pain in the visits after the accident. In addition, the Panel notes the subsequent fall that precipitated complaints of acute right shoulder pain. There is no evidence at all that the claimant fell to his right side in the motor accident. The Panel therefore considers that, on the balance of probabilities, the accident did not cause injuries to the shoulders.
The Panel noted that the only mention of pain in the shoulder region around the time of the accident was in the ambulance record, which mentioned “pain along the left side of the body, including shoulder and hip”. This seems to be describing the extent of left sided pain, rather than a specific injury to the shoulder and/or hip. This observation is in contrast to the assessments at St Vincent’s Hospital accident and emergency where no specific shoulder pain was recorded, but diffuse pain was noted. The Panel lends weight to the formal medical assessment performed in a controlled hospital setting. It is quite reasonable to expect some discomfort from a fall onto the left side, causing “L) side of body pain” but in the setting of a specific shoulder injury, the Panel would have expected persisting or worsening pain to be apparent and reported at St Vincent’s Hospital, and Royal Prince Alfred Hospital.
Mr Bath has had degenerative arthritis at bilaterally at his shoulders that have gradually become more symptomatic and that is not connected with the subject accident.
The GP records have the claimant complaining of right shoulder symptoms since 2014, with a note of right shoulder pain for over ten years as at June 2014. Ultrasounds prior to the accident demonstrated a full thickness incomplete tear of the supraspinatus.
Having considered all evidence and findings on examination, the Panel does not accept, on the balance of probabilities that the claimant suffered a left or right shoulder injury caused by the accident.
PERMANENT IMPAIRMENT
Cervical spine – soft tissue injury
The neck injury (injury to the cervicothoracic spine) is assessed with reference to the Diagnosis Related Estimate method from Chapter 3.3h of AMA4. Mr Bath has asymmetric loss of range of movement and non-verifiable radicular complaints with reference to this spinal region, and therefore DRE Cervicothoracic Category II (5% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE category III in this spinal region.
Thoracic spine – soft tissue injury
The thoracic spine injury (injury to the thoracolumbar spine) is assessed with reference to the Diagnosis Related Estimate method from Chapter 3.3g of AMA4. Mr Bath has “complaints and symptoms only” with reference to the thoracolumbar spine, and therefore DRE Thoracolumbar category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE category II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation.
CONCLUSION
The Panel finds the claimant suffered the following injuries caused by the motor accident that give rise to a 5% whole person impairment which is NOT greater than 10%:
· cervical spine – soft tissue injury, and
· thoracic spine – soft tissue injury.
The Panel finds the following injuries referred for assessment were NOT caused by the motor accident:
· right shoulder – tear of rotator cuff tendon requiring rotator cuff tendon repair and reverse shoulder joint replacement surgery;
· left shoulder – tear of rotator cuff tendon requiring surgery and reverse shoulder joint replacement;
· skin – scarring at the surgical repair sites of right shoulder and left shoulder, and
· cervical spine – damaged spinal stimulator.
The medical certificate of Medical Assessor Wijetunga dated 10 December 2024 is therefore revoked and a new certificate is provided at the beginning of these reasons.
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