Bayliss v Allianz Australia Insurance Limited
[2024] NSWPICMP 491
•19 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Bayliss v Allianz Australia Insurance Limited [2024] NSWPICMP 491 |
CLAIMANT: | Andrew Bayliss |
INSURER: | Allianz |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Les Barnsley |
DATE OF DECISION: | 19 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; degree of whole person impairment (WPI); claimant was employed as a transit driver for an airline at the time of the accident; claimant was walking over the tarmac at Sydney Airport when a transit bus reversed into the claimant; claimant was struck in the back and right calf region; claimant was knocked forward and had to perform an evasive manoeuvre to avoid being run over by the transit bus; claimant returned to work approximately 1 month after the accident on restricted duties; claimant complained of continuing problems with his right upper limb; insurer wholly admitted liability for the claim; Medical Assessor found 8% WPI; Held – Medical Review Panel found 11% WPI; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the Certificate dated 16 August 2023 and issues a new certificate determining that: (a) the following injuries caused by the motor accident give rise to a permanent impairment of 11% whole person impairment IS GREATER THAN 10%: · right shoulder rotator cuff tear with surgical repair complicated by capsulitis, and · scarring. |
STATEMENT OF REASONS
INTRODUCTION
Andrew Bayliss (the claimant) was employed as a transit driver for an airline at the time of the accident. The claimant was walking over the tarmac, around 8.00am on 3 February 2019 at Sydney Airport. A transit bus reversed into him. The claimant was struck in the back and right calf region. He was knocked forward and had to perform an evasive manoeuvre to avoid being run over by the transit bus. He was able to regain his feet and was taken to a nurse employed by the airline. The claimant returned to work approximately one month after the accident on restricted duties. He has not been able to return to his usual role. He complains of continuing problems with his right upper limb.
Allianz (the insurer) indemnifies the owner and/or the driver of the vehicle at fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The insurer wholly admitted liability for the claim.
The issue in dispute is the degree of permanent impairment of the claimant that has resulted from injuries caused by the accident.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act, the claimant was seen by Medical Assessor David McGrath on 9 August 2023, who certified as follows:
“The following injuries caused by the motor accident give rise to a permanent impairment of 8% WPI and IS NOT GREATER THAN 10%:
·Right shoulder rotator cuff tear with surgical repair complicated by capsulitis”
Medical Assessor McGrath made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects. Scarring was not referred to the Medical Assessor for assessment. The parties agreed that the claimant’s scarring should be assessed by the Panel for the sake of convenience.
THE REVIEW
The claimant sought a review of Medical Assessor McGrath’s certificate on the basis that it was incorrect in a material respect. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submitted that Medical Assessor McGrath failed to:
(a) give proper, genuine and realistic consideration to the matter the subject of assessment;
(b) give adequate reasons, and
(c) take into account a relevant consideration.
The claimant’s submissions draw attention to alleged typographical errors in the certificate and alleged failure to explain why the views expressed by Dr Gehr were not accepted. Objection also was made to the fact that Medical Assessor McGrath did not assess impairment arising from scarring caused by the right shoulder rotator cuff surgical repair.
The claimant’s application for review was opposed by the insurer which dismissed the alleged typographical errors as being immaterial to the outcome. The insurer noted (correctly) that Medical Assessor McGrath was not obligated to provide reasons for not agreeing with Dr Gehr and not bound by Dr Gehr's view. The insurer submitted that there is no error, as the Medical Assessor carried out his task in performing an assessment of range of motion, on the day of the assessment.
President’s delegate Golnaz Mojtahedi issued a Determination of an Application for Review of a Medical Assessment on 23 November 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of the President’s delegate’s satisfaction was stated as follows:
“The claimant has outlined various particulars in the application which he says result in reasonable cause to suspect that the medical assessment was incorrect in a material respect. One of these particulars is that the Medical Assessor failed to give adequate reasons and respond to articulated submissions.”
Therefore, pursuant to s 7.26 of the MAI Act, the application was accepted.
The Review Panel is to assess whole person impairment arising from each of the following injuries:
· right shoulder rotator cuff tear with surgical repair complicated by capsulitis, and
· surgical scarring.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Review Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 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 American Medical Association Guides (AMA 4) Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the American Medical Association Guides (AMA 4) Guides as follows:
‘Causation means that a physical, chemical or biological 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 judgment.
6.7There 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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) claimant’s review submissions dated 24 October 2023 (previously summarised).
(b) Report dated 22 November 2022 by Dr Eugene Gehr[TR1] , orthopaedic surgeon, to the claimant’s solicitors.
Dr Gehr was provided with the claimant’s statement dated 25/10/2022, clinical notes of Dr Hugh Jones, clinical notes from Sports Physio South and clinical notes from Dr Thakkar. Dr Gehr notes that the claimant underwent open arthroscopic capsular release of his right shoulder and rotator cuff repair at the hands of Dr Jones. He references correspondence from Associate Professor Justin Paoloni, sports physician, and Dr Pramod Thakkar, general practitioner (GP), and Dr Rama Krishnan, GP, which are too extensive to summarise. Dr Gehr similarly references various Medical Certificates and Allied Health Treatment recovery requests. He refers to a MRI right shoulder dated 16 September 2021, an ultrasound right shoulder dated 21 February 2019 and
X-ray right wrist dated 11 February 2019. Dr Gehr describes the circumstances of the accident in similar terms to Medical Assessor McGrath. Dr Gehr describes the history of symptoms and treatment following the accident. The claimant underwent two separate surgeries performed by Dr Jones as previously noted. The claimant informed Dr Gehr that he had pain over the right shoulder most of the time. Dr Gehr conducted a physical examination using a Goniometer and/or inclinometer. All measurements were repeated three times but are not recorded by Dr Gehr in his report. Dr Gehr says that the claimant has markedly reduced range of motion in his right shoulder. The prognosis is poor. Dr Gehr provides the following diagnosis:“Right shoulder rotator cuff tear with surgical repair complicated by capsulitis requiring a second surgical procedure with capsular release. However, he has persisting pain and loss of range of motion. He also had a biceps tenodesis.”
Dr Gehr provides opinions as to the claimant’s activities of daily living, likely future treatment needs and employability, which are not relevant for the Review Panel’s consideration. He assesses 12% whole person impairment for the right shoulder and 1% whole person impairment for scarring using the WorkCover Guidelines.
(c) Statements dated 16 June 2022 and 25 October 2022.
(d) Clinical note of Dr Jones.
(e) Clinical notes of Med Clinic Panania.
(f) Clinical notes of Sports Physiotherapy South.
The insurer relied upon the following material which the Review Panel has considered:
(a) insurer’s submissions in reply to application for review dated 7 November 2022 (previously summarised).
(b) Insurer’s Commission’s reply (permanent impairment dispute) dated 23 February 2022 with annexures.
(c) Certificate of Medical Assessor McGrath dated 16 August 2023.
(d) Decision of President’s delegated dated 23 November 2023.
The insurer did not rely upon any independent medical evidence.
RE-EXAMINATION
The claimant was assessed on 31 May 2024 by Medical Assessor Drew Dixon whose report is as follows:
“PIC Panel Examination
Andrew Bayliss (R-M21463/23-02-01)
Date of Accident: 3 February 2019
31 May 2024
Pre-Accident Medical and Personal History
This 62 year old married claimant lives with his wife in a two level house. He has difficulty with heavy household cleaning chores which he shares with his wife. He has difficulty with yard work which is done by his son.
He has worked for Qantas for almost 10 years as a transit bus driver and accepted redundancy in 2021 after injuries in the subject motor vehicle accident.
Past Health
His past health includes diabetes, for which he has insulin injections and he takes Metformin. He has a history of an umbilical hernia repair and had an acute myocardial infarction in 2017.
He reports no previous significant motor vehicle accidents or injuries and has no history of right shoulder conditions.
Since the motor vehicle accident, he has not been able to return to recreations such as touch football, bicycle riding or surfing.
History of motor vehicle accident
At 8:00 am on 3 February 2019 he was walking over the tarmac at Sydney Airport when a transit bus backed into him, striking his back and his right calf. He was knocked forward and sustained abrasions to his right knee and pain in his right wrist. He attended the nurse at Qantas who dressed his abrasions and he had review by his GP a week later, with pain in his right shoulder and right wrist. While the right wrist settled, he still has some pain in his right shoulder but he returned to work on restricted duties for one month but never returned to bus driving.
History of symptoms and treatment
He is aware of his shoulder becoming stuck at work when he tried to tuck his shirt in and his work mates had to put his shoulder back into place and he felt there was subluxation of the shoulder.
He was referred to Dr Palioni, a sports physician, and had multiple PRP injections without sustained benefit.
He was referred to Dr Hugh Jones, orthopaedic shoulder specialist, and had arthroscopic rotator cuff repair to his right shoulder on 1 May 2021 at St George Private Hospital, Sydney. There was no more locking of his shoulder after that but there was persisting stiffness and on 24 March 2022 he had arthroscopic capsular release without sustained benefit. His recovery from both operations was uneventful.
Current Symptoms
He reports pain and stiffness in his right shoulder with pain in the deltoid pectoral groove, pain in the deltoid and posteriorly over the scapula region with trapezial muscle pain. He has difficulty lifting and carrying heavy objects with his right arm, due to shoulder pain and weakness. He has difficulty sleeping on his shoulder at night due to pain.
He is conscious of his biceps tenodesis scar and wears a rash shirt to cover it when out in the sun.
Current and Proposed Treatment
He continues with physiotherapy exercises at home with therabands and light weights. He has taken Mobic previously for shoulder pain. He ceased exercise physiology due to pain.
He sees his local doctor as required and his shoulder specialist has referred. No further surgery is proposed at this at this stage nor PRP injections.
Examination
On examination at the PIC rooms on 31 May 2024 he was 173cm tall and weighed 80kg. He presented in a straight forward manner and there was no embellishment and he was consistent on range of motion testing of his right and left shoulders.
On examination of his right shoulder there was some wasting of the shoulder girdle, particularly the supraspinatus muscle belly. He had stiffness of elevation with forward flexion 110 degrees, active abduction 80 degrees, extension 30 degrees, active adduction 30 degrees, external rotation 80 degrees and internal rotation 30 degrees and there was tenderness of the biceps groove and the anterolateral deltoid and the trapezius muscle overlying the scapula, which showed no winging.
There was a full range of motion of his left shoulder with flexion 180 degrees,
abduction 180 degrees, extension 50 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 80 degrees.He had a symmetrical range of motion of his cervical spine without tender areas and there was no neurological deficit or gross wasting of either upper limb.
Impairment
His impairment for the shoulder is from is 16% upper extremity impairment which equates to 10% whole person impairment.
That for the scarring is from the TEMSKI Scale 6.18, Page 136, 1% whole person impairment, which was similar to that found by Dr Eugene Gehr, in his IME report dated 22 November 2022. The main scar was where he had his biceps tenodesis which was 4cm long and there was tethering and puckering of the proximal scar with loss of contour and the visible suture marks and although the scar appeared reasonably healed, he was able to really localise the scar, which was visible with summer clothing and he remains conscious of the scar. He likes to keep it covered up in the sun and is aware of minor contour defect with mild trophic changes and it shows colour contrast.
This gives a total from the Combined Values Chart of 11% whole person impairment.
These findings today are consistent with those found by the Assessor in his MAC dated 16 August 2023 and the range of motion is similar to that found by Dr Eugene Gehr, in his IME of 22 November 2022.”
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel adopts the examination findings and reasons of Medical Assessor Dixon with which Medical Assessor Les Barnsley concurs.
[5] Section 7.26(6) of the MAI Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the bases of their assessment which is not greatly different to that provided by Medical Assessor McGrath. The range of motion found by Medical Assessor Dixon is similar to that found by Dr Gehr.
[6] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor McGrath on 16 August 2023 should be revoked. The new Certificate appears at the commencement of these reasons.
[TR1]As per Style Guide - initials are not to be used
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