Bogdanovski v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 75
•11 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Bogdanovski v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 75 |
CLAIMANT: | Blagoja Bogdanovski |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 11 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident on 12 June 2021; claimant suffered aggravation of chronic hip condition and other injuries; the dispute related to whether the degree of permanent impairment was greater than 10%; claimant re-examined; chronic pre-accident history of left hip and right knee pain; previous prognosis that claimant would eventually come to surgery; complaints of increased left hip [TO1] pain following motor accident supported by contemporaneous complaints; claimant underwent left hip replacement within 12 months of motor accident; Held – finding that the motor accident brought the surgery forward; discussion of causal test: AAI Ltd v Phillips and Secretary, and New South Wales Department of Education v Johnson referred to; deduction of left hip due to pre-existing severe cartilage thinning under clause 6.131 of the Motor Accident Guidelines; left elbow, left shoulder and scarring assessed; no relevant principles in assessment. |
DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment 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% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the Medical Assessment Certificate dated 19 December 2023 and certifies that the degree of permanent impairment of the claimant that has resulted from the injuries caused by the motor accident is greater than 10%: · left shoulder; · left hip; · left elbow, and · scarring. |
REASONS
BACKGROUND
On 12 June 2021 Mr Blagoja Bogdanovski (the claimant) was injured in a motor accident. The claimant was driving his vehicle when the insured vehicle crossed the centre line, and the cars collided head-on.[1]
[1] Claimant’s bundle, p 3.
AAI Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Bogdanovski any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Mr Bogdanovski “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 MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Harrington and dated 19 December 2023 (the medical assessment certificate).
The injuries to the left shoulder, left elbow, left hip and right knee were referred for assessment.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
On 16 October 2024 the Panel met and issued the following direction:
“1. The claimant is to produce, by close of business, 30 October 2024 the following documents and access to the following X-ray:
(a)Clinical records of the GP for the two-year period preceding the motor accident; and
(b)Actual X-ray dated 16 June 2021 (Insurer’s bundle, p 301; electronic version and express permission that this can be accessed by the Panel).
2. The Panel notes that carpal tunnel is referenced by Dr Lee and the scarring is assessed (Claimant’s bundle, p 71/72). Whilst these body parts were not part of the referral, they formed part of the claim: see Mandoukas v Allianz Australia Insurance Ltd [2024] NSWCA 71 at [90]; Skates v Hills Industries Ltd [2021] NSWCA 142 at [30] and [44]-[50]. The Panel expresses a preliminary view that these body parts are part of the claim and can be assessed. The insurer can file and serve written submissions on this matter by close of business, 30 October 2024.”
The only response was a letter dated 11 November 2024 by the claimant who had engaged a new firm of solicitors. That letter requested a delay in the medical examination which was initially scheduled for 13 November 2024. The medical examination was rescheduled.
However, neither party responded to the direction requesting further information or a response to our preliminary view.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the CL Act.
[10] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor noted the claimant sustained a serious fall in 2004 to both knees which caused the development of progressive changes and leading to a right patellofemoral compartment arthroplasty. The claimant was otherwise aware of pre-existing arthritis in the left hip which was diagnosed in 2010 and required investigations and previous treatment.
The Medical Assessor noted the opinion of Dr Powell that the arthritic left hip was pre-existing, and surgery would have likely occurred irrespective of the motor accident.
The Medical Assessor concluded that the motor accident did not substantially contribute to the hip replacement and the soft tissue injury of the right ankle had resolved. The Medical Assessor accepted that the motor accident caused symptoms of carpal tunnel caused by the direct blow against the central console and the claimant was left with very mild residual altered sensation in the ulnar distribution.
The Medical Assessor accepted that the motor accident aggravated asymptomatic, chronic changes in the left elbow and caused left shoulder symptoms with a slight loss of movement. The left shoulder and left elbow were each assessed at 5% with no relevant deduction. The left hip and right knee were assessed at 15% and 4% respectively but 100% deduction was made for either pre-existing or subsequent causes.
MATERIAL BEFORE THE PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
The claimant was assessed by Medical Assessor Ostinga in April 2006 in respect of the work injury on 23 January 2004.[11] The right elbow was assessed at 4% based on ulnar nerve sensory loss and loss of extension, the right knee at 2% due to chondromalacia patella and the lumbar spine at 6%.
[11] Claimant’s bundle, p 333.
An X-ray of the pelvis and left hip dated 8 June 2010 showed bilateral mild hip osteoarthritis.[12]
[12] Claimant’s bundle, p 344.
In June 2013 the claimant underwent a right patellofemoral replacement.[13] Subsequent records from the treating surgeon, Dr Caldwell, referred to ongoing right knee symptoms including crepitus on the lateral side of the knee.[14]
[13] Claimant’s bundle, p 395.
[14] Insurer’s bundle, p 225.
In 2014 the claimant underwent a series of PRP injections around the right patella.[15]
[15] Insurer’s bundle, pp 229 - 233.
An MRI scan of the left hip dated 1 June 2016 showed moderate osteoarthritis of the left hip joint with superior joint space loss/chondromalacia and associated cysts. An X-ray of the right knee confirmed the patella femoral arthroplasty.[16]
[16] Claimant’s bundle, p 345.
In June 2016 Dr Young, orthopaedic surgeon, noted the right patellofemoral knee replacement in 2013 and left hip soreness on and off since the 2004 injury. The doctor noted that the left hip was stiff, woke the claimant at night with pain in the thigh and occasionally in the groin. Dr Young noted that the left hip would ultimately come to replacement but at that time symptoms were not substantial enough to warrant surgery.
An MRI of the right hip dated 15 August 2016 showed moderate osteoarthritis of the joint with moderate cartilage loss and cyst formation.[17]
[17] Claimant’s bundle, p 350.
In January 2017 Dr Young provided a quotation for a left hip replacement[18] noting that the left hip was “much sorer” with pain in the left groin and thigh. The left hip had become stuck on a number of occasions when standing.[19]
[18] Claimant’s bundle, p 355.
[19] Insurer’s bundle, p 208.
An MRI scan of the left knee dated 20 June 2017 showed 10mm cartilage defect and degenerative change in the medial patella femoral joint.[20]
[20] Claimant’s bundle, p 240.
Dr Hopcroft was qualified by solicitors who previously acted for the claimant in relation to the 2004 work injury and provided a report in November 2017 recommending a left total hip replacement.[21]
[21] Claimant’s bundle, p 356.
On 29 November 2018 the claimant was seen by Dr Myers who noted a large lump within the palm and wondered whether it was a Dupuytren’s nodule.[22] Following an MRI scan, Dr Myers noted erosions and capsular changes in the third MCP joint and marrow oedema consistent with arthroplasty Involving the third MCP joint.[23]
[22] Claimant’s bundle, p 164.
[23] Claimant’s bundle, p 163.
In June 2019 Dr Dunkley noted that the right knee was irritable and had crepitus.[24]
[24] Insurer’s bundle, p 50.
On 30 June 2021 the claimant underwent release of the Dupuytren’s contracture.[25]
[25] Claimant’s bundle, p 167.
The claimant was seen by Dr Dunkley, orthopaedic surgeon, for the left hip up until
16 October 2019.[26] At that time the doctor noted that the X-rays of the hips showed arthritis particularly in the left side which was described as moderate. The right patellofemoral replacement remained in good position with no sign of loosening.[26] Claimant’s bundle, p 195.
Dr Dunkley suspected that in the long run the claimant would require left hip replacement and revision of the right sided replacement but the symptoms and level of pain at that time were not sufficient to warrant the surgical procedures.
In a statement dated 25 February 2019 the claimant noted significant injury to his right knee which required him to put pressure on the left side. The claimant stated that he had been suffering left hip pain since approximately 2009 which had progressively worsened over the years.[27]
[27] Claimant’s bundle, p 322.
Medical records post-accident
The initial hospital notes refer to pain in the outer edge of the right foot, pain in the left elbow and sharp pain in the left groin when ambulating.[28]
[28] Claimant’s bundle, p 75.
The X-ray of the right ankle dated 12 June 2021 noted swelling but no evidence of any bony fracture.[29]
[29] Claimant’s bundle, p 77.
The personal injury benefits claim form dated 23 June 2021 referred to the motor accident causing injuries to the left arm (elbow, upper am), left hip, right knee and right foot.[30] A certificate of capacity dated 23 June 2021 referred to soft tissue injury to the right ankle and the left knee and aggravation of osteoarthritis of the knee joints.[31]
[30] Claimant’s bundle, p 3.
[31] Insurer’s bundle, p 15.
The ultrasound and X-ray of the left shoulder, left elbow and left hip dated 14 July 2021 showed:[32]
· acute subacromial bursitis of the left shoulder;
· old partial tear of the common extensor with elbow joint effusion with suspicion of injury to the distal biceps tendon, and
· synovitis of the hip joint consistent with acute on chronic osteoarthritis with further thickening of the competing bursa with an old full thickness tear of the gluteus medius.
[32] Claimant’s bundle, p 34.
The MRI scan of the left elbow dated 21 July 2021 showed a partial undersurface tear of the common extensor origin with biceps tendinopathy and olecranon bursitis.[33]
[33] Claimant’s bundle, p 36.
Dr George referred the claimant to Dr Kemp on 29 July 2021 for treatment of the left shoulder.[34]
[34] Insurer’s bundle, p 33.
On 9 August 2021 Dr Kemp noted that the claimant developed adhesive capsulitis and some subacromial irritability in the left shoulder and recommended appropriate treatment.[35] The doctor noted that the claimant was being reviewed by Dr Dunkley in relation to left hip pain and by Dr Myers in relation to the left elbow discomfort.
[35] Claimant’s bundle, p 38.
Dr Kemp recorded that the claimant was not aware of any immediate issue with the left shoulder but had been struggling reaching away from his body and changing views and driving a manual bus.
The claimant was seen by Dr Dunkley on 11 August 2021 with a complaint of new pain in the left hip following the motor accident. The doctor noted groin pain which was certainly emanating from the arthritic hip and laterally based hip pain over the greater trochanter.[36]
Dr Dunkley recommended an MRI scan.[36] Claimant’s bundle, p 206.
Physiotherapy notes dated 16 August 2021 noted multiple injuries from the motor accident with previous treatment for the left shoulder, left elbow and left hip.[37]
[37] Claimant’s bundle, p 79.
The MRI scan of the left hip dated 3 September 2021 showed advanced osteoarthritis with mild intra-articular effusion, anterior lateral tear with cyst and sub medius bursitis.[38]
[38] Claimant’s bundle, p 39.
On 8 September 2021 Dr Dunkley, orthopaedic surgeon, noted the recent MRI scan and that the claimant was keen to avoid surgery for as long as possible. The doctor suspected that surgery will be required to replace the hip but recommended the continuation of conservative management at that time.[39]
[39] Claimant’s bundle, p 41.
Motor nerve conduction studies dated 28 September 2021 were within normal limits.[40]
[40] Claimant’s bundle, p 42.
A report from the physiotherapist dated 21 September 2021 noted recent treatment of the left hip and shoulder with slow progress.[41] On 30 November 2021 the physiotherapist noted that the motor accident caused a significant exacerbation of the pre-existing hip injury.[42]
[41] Claimant’s bundle, p 92.
[42] Claimant’s bundle, p 104.
On 13 October 2021 Dr Kemp noted that shoulder movement had improved with stretching exercises and that the presentation and changed from a picture of capsulitis to one of subacromial instability consistent with a rotator cuff pathology.[43]
[43] Claimant’s bundle, p 43.
On 14 October 2021 the claimant underwent guided ultrasound PRP injection in the left elbow.[44]
[44] Claimant’s bundle, p 168.
On 28 October 2021 Dr Andrew Myers, orthopaedic surgeon, noted the nerve conduction studies did not confirm any major damage to the ulnar nerve but commented that the claimant had classic symptoms of cubital tunnel. The doctor recommended that further time be allowed following the PRP injection into the lateral epicondylitis and a further decision would be made about a proposed left cubital tunnel release subsequently.[45]
[45] Claimant’s bundle, p 53.
On 24 November 2021 Dr Kemp noted that the shoulder pain continued to settle, the claimant would benefit from further rotator cuff strengthening exercises and it was reasonable for the claimant to return to work.[46]
[46] Claimant’s bundle, p 54.
Dr George, general practitioner, provided a report dated 27 November 2021.[47] The doctor opined that the motor accident caused a soft tissue injury to the right ankle, soft tissue injury to the left elbow, aggravation of left knee osteoarthritis, common extensor tendon tear of the left elbow and bursitis and aggravation of osteoarthritis in the left hip.
[47] Claimant’s bundle, p 55.
The claimant underwent a left total hip replacement in June 2022.[48]
[48] Claimant’s bundle, p 200 and insurer’s bundle, p 54.
On 7 March 2023 Dr Myers noted that repeat nerve conduction studies confirmed carpal tunnel and cubital tunnel both required releasing as well as a PRP injection to the epicondylitis.[49]
[49] Claimant’s bundle, p 152.
On 6 April 2023 Dr Dunkley noted the claimant had fallen through a roof landing on a table and then the concrete floor landing on his right side.[50]
[50] Insurer’s bundle, p 52.
On 1 May 2023 the claimant was reviewed by Dr Kemp for opinion in relation to pain in the right shoulder for many years but worse over the last 12 months.[51]
[51] Claimant’s bundle, p 192.
On 17 May 2023 the claimant underwent a left carpal tunnel release and left cubital tunnel release and PRP injection into the left lateral epicondylitis.[52]
[52] Claimant’s bundle, p 60.
Qualified opinions
Dr Chris Walls, occupational physician, was qualified by the insurer and provided a report dated 15 October 2021.[53] The doctor noted that the claimant had developed widespread body pain affecting the left elbow, hip and shoulder.
[53] Claimant’s bundle, p 45
Dr Yuk Kai Lee, orthopaedic surgeon, was qualified by the claimant’s solicitors and provided a report dated 8 September 2023.[54] The doctor noted that current complaints included numbness in the ulnar fingers of the left hand, painful elbow in the medial side, improvement in the left hip and left shoulder and improvement in the right ankle. The right ankle was assessed at 3% and the left lower extremity due to the hip replacement at 20% with a deduction for loss of cartilage interval.
[54] Claimant’s bundle, p 61.
Dr Lee noted the applicant underwent left hip replacement in June 2022 and surgery to transpose the ulnar nerve release of the carpal tunnel on the left side in May 2023. Dr Lee noted that the carpal tunnel had recovered, and the impairment of the left upper extremity was 4%.
Dr Lee assessed the impairment of the hip at 20% and made a deduction due to loss of cartilage interval and assessed the right ankle at 3%. The scarring was assessed at 1% due to the left elbow and left hip.
Dr Richard Powell, orthopaedic surgeon, was qualified by the insurer and provided a report dated 4 January 2023.[55] The doctor opined that the motor accident caused an aggravation of underlying degenerative changes including rotator cuff pathology and subacromial bursitis in the left shoulder which had not resolved and a soft tissue injury to the left elbow subsequent to the development of lateral epicondylitis and cubital tunnel syndrome.
[55] Insurer’s bundle, p 18.
Dr Powell opined that the total hip replacement was required to address long-standing pre-existing degenerative pathology within the left hip and the claimant would have required the surgery irrespective of the effects of the motor accident.
SUBMISSIONS
Claimant’s submissions dated 13 July 2023[56]
[56] Claimant’s bundle, p 14.
The claimant submitted that he suffered the following injuries caused by the motor accident:
· acute left elbow, an extensible tear;
· synovitis of the hip;
· soft tissue injury to the right ankle;
· aggravation of osteoarthritis knee;
· tear and adhesive capsulitis shoulder, and
· psychological injury.
The claimant referred to the following evidence:
(a) application for personal injury benefits dated 22 June 2021;
(b) X-ray and ultrasound dated 14 July 2021 and 21 July 2021;
(c) report of Stephen Kemp dated 9 August 2021 noting that there was a diagnosis of adhesive capsulitis and subsequent reports dated 13 October 2021 and
24 November 2021;(d) hospital notes dated 12 June 2021 which refer to the ankle injury;
(e) NextGen report dated 16 August 2021 which referred to these multiple injuries including left hip pain with symptoms of bursitis and subsequent clinical notes referring to ongoing hip and shoulder symptoms;
(f) report of Dr Walls dated 15 October 2021 which referred to pain affecting the left elbow, hip and shoulder;
(g) NextGen report dated 30 November 2021 where there are reports of numbness in the ulnar nerve and median nerve distributions;
(h) report of Dr George dated 27 November 2021 which referred to injuries to the right ankle, left elbow, left knee, left elbow, left shoulder and left hip;
(i) report of Dr Myers dated 28 October 2021 which noted classic symptoms of cubital tunnel, and
(j) operation report dated 17 May 2023 in relation to the left carpal tunnel and cubital tunnel syndrome procedure.
Claimant’s submissions dated 11 June 2024[57]
[57] Claimant’s bundle, p 7.
These submissions sought leave to review the medical assessment.
The claimant submitted that the Medical Assessor failed to explain why the assessment of the left hip and right knee was not due to the motor accident in circumstances where there was no intervening event. The Medical Assessor noted that even though he had degenerative changes in the left hip and right knee these conditions were “clearly entirely asymptomatic prior to the accident”.
The claimant submitted that the assessments for the prior conditions for the left hip and right knee were wrong as he was able to engage in employment.
The claimant submitted that the Medical Assessor failed to assess the carpal tunnel scar and a scar over the left medial epicondyle.
The claimant submitted that the Medical Assessor failed to comply with cl 6.50 of the Guidelines as there was no mention of the Medical Assessor assessing passive range of motion to assert the clinical status.
Insurer’s submissions dated 3 August 2023[58]
[58] Insurer’s bundle, p 8.
The insurer addressed the various injuries allegedly caused by the motor accident.
In respect of the left elbow the insurer referred to the X-ray dated 16 June 2021, ultrasound dated 14 July 2021, MRI scan dated 21 July 2021 and Dr Powell’s reports.
In respect of the left hip the insurer submitted that the claimant suffered from significant pre-existing bilateral hip problems since a fall in 2004 and referred to:
(a) Dr Halpin in June 2013;
(b) Bursa injection in early 2014;
(c) Dr Dunkley’s opinion dated 1 June 2016;
(d) Dr Young’s opinion in January 2017;
(e) X-ray of the pelvis and left hip dated 18 April 2018;
(f) Dr Dunkley’s opinions in 2018 and 2019 of the need for hip replacement;
(g) X-ray dated 16 June 2021 which showed moderate degenerative arthroplasty in both hip joints loss of joint space medially and subsequent stand showing acute on chronic osteoarthritis, and
(h) Dr Powell’s opinion that the total hip replacement was required to address long-standing pre-existing degenerative pathology unrelated to the motor accident.
In respect of the right ankle the insurer submitted:
(a) the evidence indicated a soft tissue injury only (hospital records, X-ray and
Dr George’s opinion);(b) the claimant advised Dr Powell that right ankle symptoms had settled, and the doctor did not assess any impairment, and
(c) there is an absence of subsequent treatment or request for imaging to the area consistent with its submission that there are no ongoing right ankle issues.
The insurer submitted that the claimant suffered from significant pre-existing bilateral knee issues since 2004 which included a patella femoral arthroplasty and referred to the following evidence:
(a) report of Dr Dunkley dated 1 May 2013 and 1 June 2016 which noted prior surgery;
(b) bone scan dated 5 June 2014 showing extensive degenerative changes in the knee;
(c) right knee X-ray dated 15 October 2019 showing prior knee replacement and degenerative changes in the patellofemoral joint compartment;
(d) the post-accident X-ray of the right knee dated 16 June 2021 was consistent with the pre-existing pathology. The claimant did not report ongoing symptoms to the right or left knee to November 2022, and
(e) the insurer submitted that any assessable impairment of the right knee was entirely pre-existing.
In respect of the left shoulder injury the insurer submitted:
(a) left shoulder injury was not reported at the hospital or in the application for personal injury benefits;
(b) an ultrasound the left shoulder dated 14 July 2021 showed degeneration and bursitis in full thickness tear of the supraspinatus partial thickness tear of the subscapularis;
(c) Dr Kemp diagnosed adhesive capsulitis in August 2022;
(d) Dr Powell diagnosed left shoulder soft tissue injury which included aggravation of underlying degenerative changes and rotator cuff pathology and bursitis but no diagnosis of a tear, and
(e) the insurer accepted that the claimant may have sustained a soft tissue injury to the left shoulder but did not concede any assessable impairment.
Insurer’s submissions dated 27 June 2024[59]
[59] Insurer’s bundle, p 2.
These submissions opposed leave to review the medical assessment.
The insurer submitted that it is not the Medical Assessor’s role to determine which injury should be referred for assessment and that was determined by the referral. The onus was on the claimant to nominate the injuries referred to the dispute.
The insurer referred to the decision of the Court of Appeal in Mandoukos v Allianz Australia Insurance Ltd[60] and the decision of Chen J at first instance and submitted that it was not the task of the insurer or the Medical Assessor to “ferret around and construct a claim” from the material annexed to the claimant’s application.
[60] [2024] NSWCA 71 (Mandoukos).
The insurer submitted that the Medical Assessor considered pre-accident functioning and the pre-accident evidence in reaching conclusions concerning the assessable impairment of the left hip and the right knee.
The insurer submitted that the Medical Assessor assessed in accordance with cl 6.50 of the Guidelines.
RE-EXAMINATION
Mr Bogdanovski was examined by Medical Assessor Gorman on 22 January 2025. The examination report is as follows:
“Pre-accident medical history and relevant personal details
Mr Bogdanovski is a 68-year-old man. Currently he lives in Newcastle. He does some casual bar work only. At the time of the motor accident in June 2021 he was working as a bus driver on a casual basis. He usually averaged about 30 hours a week (or more). He was also a handyman for several rental properties.
He lost his job as a bus driver after the accident because he couldn’t upgrade to full duties after the car accident.
Mr Bogdanovski had a serious fall in 2004, injuring both knees. He developed progressive changes which led to a right patellofemoral compartment arthroplasty by Dr Chris Dunkley.
He had arthritis in his left hip diagnosed in 2010. This was not symptomatic after his 2004 fall but he was told that the fall probably contributed to his ongoing symptoms he was told. He said that the left hip was “not 100% but manageable”. He said that he was not seeking a left hip surgery prior to the accident. Dr Young had told him that he did not need the replacement.
Mr Bogdanovski also had a right cubital tunnel decompression some 10 years ago. There were some residual symptoms in the right ulnar nerve distribution.
History of the motor accident
On 12 June 2021 Mr Bogdanovski was involved in a motor vehicle accident. He says a car travelling in the opposite direction crossed the centre line and hit the front of his car, mainly the driver’s side. He was wearing a seatbelt. He says both cars were subsequently written off.
History of symptoms and treatment following the motor accident
He went to Cessnock Hospital (not by ambulance) complaining of right foot and ankle pain from the direct impact. He also had left elbow pain and some pain in his left hand from hitting the car console. He also recalled the left hip hitting the console.
He had an x-ray of his right ankle in hospital which did not show any fractures.
His right ankle became quite swollen in the days after the accident but this gradually resolved.
The left arm and left hip were his main complaints. He was initially treated conservatively with simple analgesics and physiotherapy.
With ongoing symptoms, he was referred to Dr Andrew Myers (Hand Surgeon) for review of the elbow and carpal tunnel symptoms. He had a nerve conduction study which was equivocal. Dr Myers subsequently performed a left carpal tunnel release and ulnar nerve decompression.
He was referred also to Dr Stephen Kemp (Upper limb Orthopaedic Surgeon) regarding the elbow symptoms in August 2021. Radiological imaging identified chronic changes in the common extensor tendon as well as bursitis in the shoulder and changes in the distal biceps tendon.
He saw Dr Brindley who diagnosed him with a “frozen shoulder” based on the clinical presentation. The physiotherapist has reported a gradual increase in range of movement with conservative treatment.
His left hip remained symptomatic. He needed to take Panadeine Forte to be able to do his bar work.
He underwent a left total hip replacement via posterior approach on 14 June 2022 at Lake Macquarie Private Hospital. He paid for this himself.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
He reported ongoing right ankle pain with radiation as well from the right knee to the right ankle. It is painful when he walks. When he drives he uses cruise control if it is a long drive.
The right knee ‘bothers him a lot’. He has trouble walking initially when he stands until it loosens up. He had the partial arthroplasty in 2004 and it was going well – however, since the accident he had had more symptoms.
He gets cramps in his left hand. It is not numb but is not as dextrous. It cramps when he tries to pick up small things.
He has discomfort in his left elbow and cannot fully straighten it.
His left hip is much better although he still gets some discomfort after long walks. When he uses the “elliptical” exercise machine at home he feels it “clicking”. The left hip can be sore if he sits for too long. He cannot drive a manual car as he cannot use the left leg on the clutch for too long.
He cannot now sleep on his left side because his shoulder and hip “bother” him. He can use his left arm to wash his hair.
Current and proposed treatment
He is not having any active physical therapies.
He still has Panadeine Forte if he stands for a long period.
CLINICAL EXAMINATION
General presentation
He was a well looking man whose height was 166cm and weight 79.8kg.
Upper extremity
The carpal tunnel scar is difficult to see. There is a small scar over his left medial epicondyle.
In the left elbow 10° of extension and flexion was to 130 degrees. Rotation is full.
Elbow movements
Right (degrees)
Left (degrees)
Flexion
140
130
Extension
0
10 short of full extension
There is no weakness in the intrinsics of his hand – his grip is normal. Sensation is normal on the palmer surface of his hand. There is some residual altered sensation on the upper two-thirds on the ulnar side of his forearm.
He isn’t tender over the AC joint nor over the shoulder joint. He isn’t tender on his deltopectoral groove. The ranges of motion are outlined below, consistent on 3 attempts and measured by goniometer.
Shoulder movements
Right (degrees)
Left (degrees)
Flexion
180
140
Extension
50
50
Abduction
180
130
Adduction
50
50
Internal rotation
80
60
External rotation
80
80
Lower extremity
He walks unaided with a mildly abnormal gait favouring his right knee which was slightly flexed.
There was no wasting – thigh circumference was 46cm on both sides 10cm above the patella and the maximal calf circumference was 36 cm on the right and 37cm on the left.
He was Trendelenburg negative.
He has a good range of movement of his left total hip replacement equal to the right side.
His leg lengths are equal.
Hip movements
Right (degrees)
Left (degrees)
Flexion
100
100
Extension
20
20
Adduction
30
30
Abduction
40
40
Internal rotation
30
30
External rotation
50
50
There was mild swelling of his right knee. He indicated anterior knee pain.
There was a 9cm diagonal scar above and lateral to the right patella.
Knee movements
Right (degrees)
Left (degrees)
Flexion
100
130
Extension
5 degrees short of full extension
0
There was a normal range of ankle and hindfoot movements with no swelling or tenderness.
Ankle movements
Right (degrees)
Left (degrees)
Dorsiflexion
10
10
Plantar flexion
50
50
Hindfoot movements
Right (degrees)
Left (degrees)
Inversion
30
30
Eversion
20
20
Comments on consistency
He was cooperative and consistent.
Diagnosis and reasons
Mr Bogdanovski was involved in a motor vehicle accident on 12 June 2021. This caused soft tissue injuries to the right ankle and left shoulder and elbow. He also suffered an aggravation of pre-existing arthritis of the left hip and an aggravation of the right knee arthroplasty.
Mr Bogdanovski suffered an aggravation injury to the left hip.
The soft tissue injury to the right ankle is still symptomatic.
Although there was pre-existing degeneration in his left shoulder, the direct trauma in the accident caused and aggravation which has continued to cause mild restriction in movement.
He also had pre-existing degenerative features in his left elbow including the chronic changes in his common extensor origin – this was aggravated.
He did develop symptoms of carpal tunnel syndrome which were caused by a direct blow against the centre console. This has been treated with a carpal tunnel release - transposition of the ulnar nerve was also performed. There is some very mild residual altered sensation in the ulnar distribution of his nerve, in the upper two-thirds of his forearm, not involving his hand.
Causation and reasons
His left shoulder symptoms are causally related to the subject accident. He developed adhesive capsulitis which has required physiotherapy. He’s been left with a mild loss of movement.
The left elbow symptoms were causally related to the subject accident. Even though he had chronic changes in his common extensor origin, this was asymptomatic at the time of the subject accident. He subsequently developed some sensory changes which required surgery. He has a reasonable range of movement although there is some slight altered sensation in the upper two thirds of his left forearm, which is particularly tender if he knocks it.
The right ankle injury is causally related to the subject motor accident. He developed immediate pain and swelling although this has now resolved. He presents with a full range of ankle and subtalar movement and no residual deformity or swelling but does have some symptoms after use.
DETERMINATIONS – PERMANENT IMPAIRMENT
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
Left Shoulder:
Figure 38; Flexion to 140° - 3% UEI, Extension to 50° - 0% UEI Figure 41; Abduction to 130° - 2% UEI, Adduction to 30° - 1% UEI Figure 44; Internal rotation 60° - 2% UEI, External rotation to 80° - 0% UEI This equates to 8% upper extremity impairment. Using Table 3 this converts to 5% WPI.
Left Elbow: Figure 32; Flexion to 130 – 1% UEI, Extension to 10° – 1% UEI. This equates to 2% UEI. Using Table 15 for the maximum sensory deficit of the ulnar nerve (above mid forearm) is 7% UEI. This is then multiplied based on the level of sensory impairment based on Table 11. The multiplier is 26% in his case – lower end of Grade 3. The sensory deficit is therefore 2% (rounded up). Using the Combined Values Chart, this equates to 4% UEI for the regional impairment of his elbow. Using Table 3 this converts to 2% WPI.
Carpal tunnel – there is no residual sensory or motor change in the distribution of the median nerve and therefore no impairment.
Left Hip: The accident caused an aggravation to his underlying pathology. He is assessed as having a ‘good’ result from his hip replacement. Using Table 65 on page 87 –
a. he has slight pain (40 points);
b. he has no limp, supportive device and can walk 3 blocks (27 points);
c. he can climbs stairs, can put on shoes and socks with difficulty, can sit for 1 hour and can use public transport (11 points);
d. he has no adduction, internal rotation, external rotation, flexure contracture or leg length discrepancy (5 points);
e. he has ranges of motion which are normal (giving him 5 points). This totals 88 points which, using Table 64 on page 85 gives him a ‘good result’ and therefore 15% WPI.
Right Knee: He has flexion to 100° and flexion 5 degrees less than 0 degrees. Using Table 41 this equates to a ‘mild’ impairment at 4% WPI – the impairments for flexion and extension are not added. There is a previous patella-femoral replacement unrelated to the motor accident which is assessed at 15%.
Right Ankle: There is no assessable impairment for the right ankle as a result of the accident.
Permanent Impairment Table
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident |
| Left shoulder | Chapter 3 – Figure 38, 41, 44 and Table 3 on page 20 | Yes | 5% | 0% | 5% |
| Left elbow | Chapter 3 – Figure 32; Table 15; Table 3 | Yes | 2% | 0% | 2% |
| Left hip | Chapter 3; Table 64 | Yes | 15% | 10% | 5% |
| Right knee | Chapter 3; Table 41 | Yes | 15% | 15% | 0% |
| Carpal tunnel | Nil assessable | Yes | 0% | 0% | 0% |
| Scarring (TEMSKI | TEMSKI scale | Yes | 1% | 0% | 1% |
* %WPI = percentage whole person impairment
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[61]
[61] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[62] and Insurance Australia Ltd v Marsh.[63]
[62] [2021] NSWCA 287 at [40], [41] and [45].
[63] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination report provided by the Medical Assessor supplemented by the following further reasons.
In Mandoukas the Court held that there is no obligation by a Medical Assessor to consider “a matter [unless it] falls within the ambit of the medical dispute referred for assessment”.[64]
[64] Mandoukos at [90].
This construction was consistent with the meaning of medical dispute in the workers compensation legalisation considered by the Court of Appeal in Skates v Hills Industries Ltd[65] and Scone Race Club Ltd v Cottom.[66]
[65] [2021] NSWCA 142 (Skates) at [30] per Basten JA and [44]–[50] per Leeming JA.
[66] [2024] NSWCA 34 at [47]–[48], [53] applying Skates at [44].
The insurer’s submission that the scope of the medical dispute is determined by the referral is incorrect and contrary what was decided in Skates.[67] The referral document does not determine the scope of the dispute which is “crystallized by the correspondence”[68] making the claim.
[67] Skates at [44] – [48].
[68] Skates at [46].
The carpal tunnel is referenced by Dr Lee and the scarring was assessed for permanent impairment at 1%. Whilst these body parts were not part of the referral, they formed part of the claim.
Right ankle
The claimant suffered a soft tissue injury to the right ankle. This conclusion is consistent with the contemporaneous records of complaint of injury and absence of any relevant pathology shown in the X-ray.
The findings of the Medical Assessor, consistent with other findings, show that there is no assessable impairment of that body part.
Left elbow
Injury to the left elbow caused by the motor accident is supported by the contemporaneous complaint and the description of injury of trauma to left arm. Dr Powell, qualified by the insurer, provided a sound basis for the causal connection between the symptoms in the left elbow and the motor accident.
As Medical Assessor Gorman noted, the post-accident scans show pre-existing pathology although the condition appeared asymptomatic prior to the motor accident. The claimant required surgery and suffers from ongoing sensory loss on the upper two thirds of the forearm in the ulnar nerve distribution.
The impairment due to the sensory loss was incorrectly assessed by Medical Assessor Harrington. Medical Assessor Gorman has provided the correct method of assessing for sensory loss in the left forearm.
Carpal tunnel
There is no weakness in the intrinsics of his hand and the claimant’s grip is normal. Sensation is normal on the palmer surface of his hand. There is therefore no evidence of persisting carpel tunnel compression and no impairment.
Left shoulder
The insurer noted that there was no initial complaint of left shoulder symptoms at hospital or in the claim form. The absence of contemporaneous complaint is relevant but not determinative to the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[69] and AAI Ltd v McGiffen.[70]
[69] [2021] NSWSC 548 (Norrington).
[70] [2016] NSWCA 229 at [64]-[66].
We note that the claim form refers to injury to the left “upper arm” which does not exclude injury in the left shoulder.
The ultrasound of the left shoulder dated 14 July 2021 showed acute subacromial bursitis of the left shoulder. That pathology suggests recent trauma.
Further the fact that the scan occurred at that time shows that the complaint was raised at a prior time with Dr George who organised the referral.
There is an absence of prior left shoulder problems. The mechanism of the motor accident where the left arm struck the steering wheel explains the bursitis shown in the ultrasound.
Finally, we note that Dr Kemp, shoulder surgeon on 9 August 2021 who then diagnosed the claimant with adhesive capsulitis. The history recorded by the doctor was of pain since the motor accident.[71]
[71] Insurer’s bundle, p 36.
In our view these matters satisfy that the motor accident caused bursitis and the development of adhesive capsulitis in the left shoulder.
The impairment has been assessed by the Medical Assessor. This assessment is similar to the findings of Medical Assessor Harrington in December 2023.[72]
[72] Claimant’s bundle, p 26.
There is no basis to make any deduction for any pre-existing impairment of the left shoulder.
We note that the right shoulder had unrelated issues. In May 2023 Dr Kemp described a right frozen shoulder which had troubled the claimant “for many years”.[73] The right shoulder is not considered a base line for assessing left shoulder impairment.
[73] Claimant’s bundle, p 192.
Right knee
The claimant suffered from a significant pre-existing condition in the right knee and had undergone a right patella-femoral replacement in 2013. Subsequent records reported ongoing right knee symptoms with crepitus on the lateral side.[74] In February 2019 the claimant referred to a “significant problem with my right knee”.[75]
[74] See [27] herein.
[75] Claimant’s bundle, p 322.
In view of the chronic condition, we do not accept the claimant’s submission that the right knee was asymptomatic at the time of the motor accident.
The insurer otherwise correctly noted the absence of post-accident treatment of right knee symptoms following the motor accident although the right knee is referenced in the claim form.
The mechanism of aggravation caused by the motor accident to the right knee condition is not self-evident from the claimant’s description.
Further, the claimant suffered a fall shortly before April 2023 landing on his right side.[76] It is likely that the claimant’s present condition relates to the chronic pre-existing issues and subsequent fall.
[76] Insurer’s bundle, p 52.
For these reasons, we are not satisfied that the motor accident has any causal condition to the present right knee condition.
Left hip
The histories show that the claimant had a significant pre-accident left hip condition. Left hip pain from osteoarthritis was first noted in 2010 when an X-ray noted mild hip osteoarthritis. Scans in 2016 described moderate osteoarthritis. Dr Young had already foreshadowed a left total hip replacement in April 2017. The September 2021 scan taken after the motor accident basically described the pre-existing accident pathology.
There is contemporaneous and other evidence that supports the claimant’s case that there was significant exacerbation of the claimant’s left hip symptomatology caused by the motor accident.
First, the pre-motor accident was a significant collision with the left hip hitting the console. The initial hospital notes refer to sharp pain in the left groin when ambulating. When the claimant again saw the treating specialist in August 2019, Dr Dunkley noted new groin pain which was certainly emanating from the left hip. The physiotherapist in November 2021 also recorded a significant exacerbation of left hip pain since the motor accident.[77]
[77] See [55] herein.
Secondly, the fact that the claimant had a significant underlying arthritic hip made him more susceptible to further injury from trauma. The contemporaneous onset of left groin pain is a powerful indicator of aggravation of the pre-existing condition.
Thirdly, the claimant had not seen the treating hip specialist since 16 October 2019. The claimant returned to Dr Dunkley within the short period of two months after the motor accident.
Fourthly, the applicant underwent left hip surgery in June 2022, within 12 months of the motor accident.
These facts are all consistent with the claimant’s history that there was an increase in left hip symptomatology caused by and following the motor accident. We do not accept the claimant’s submission that the left hip was “entirely asymptomatic prior to the accident” and doubt that there was a legitimate basis to make the submission. However, we accept that whilst the left hip condition was chronic, the claimant was managing his condition and engaged in employment as a bus driver on a casual basis.
The claimant is required to show that there is a material contribution between the motor accident and the need for treatment which has resulted in permanent impairment: AAI Limited v Phillips.[78]
[78] [2018] NSWSC 1710 (Phillips) at [29].
The medical assessment matter before the Panel is the degree of permanent impairment of the claimant that “has resulted from the injury caused by the motor accident”.[79] That application of the common law test of causation in assessing the degree of impairment that has resulted from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[80] These principles are well settled and equally apply to the causal test of the degree of impairment under the MAI Act by reason of the similar statutory language.
[79] Schedule 2 Part 2(a) of the MAI Act.
[80] [2019] NSWCA 324.
Based on the above factual findings, we are satisfied that the left hip surgery was significantly brought forward by reason of the increased left hip pain caused by the motor accident. The pre-existing treatment shows, that, whilst the surgery was contemplated and would have occurred at some point, there were efforts to delay the surgery for as long as practical. The surgery occurred 12 months after the motor accident indicating the proximity to the collision.
Our opinion on causation differs from other medical practitioners such as Dr Powell and the original Medical Assessor. We have explained why we have reached a different conclusion based on the above findings and the application of the proper test of causation.
The claimant underwent a left total hip replacement with a good result. Those clinical findings are contained within the examination report of Medical Assessor Gorman. This conclusion is consistent with other findings in this matter and is assessed at 15% in accordance with Tables 64 and 65 of AMA 4.[81]
[81] See also cl 6.95 of the Guidelines.
There must be a deduction for the pre-existing symptomatic left hip condition under cl 6.31 of the Guidelines.
The MRI scan dated 2 September 2021 referred to the left hip joint space being “significantly reduced” and described advanced left hip joint osteoarthritis. The degeneration shown in this scan pre-existed the motor accident because it is medically impossible for further visible degeneration to occur in the three-month period post the motor accident.
An MRI scan of the left hip dated 1 June 2016 showed moderate osteoarthritis of the left hip joint with superior joint space loss/chondromalacia and associated cysts.
The cartilage interval in a healthy hip should be 4mm. Arthritis which is minor is considered at 3mm, moderate is associated with a 2mm interval and severe osteoarthritis with cartilage thinning at 1mm. The worst-case scenario is 0mm cartilage interval which is bone on bone.
The cartilage interval at the time of the motor accident was probably 1mm. It was not bone on bone as the radiologist in September 2021 described the hip joint space as “significantly reduced”, not totally reduced.
Arthritis in the hip is assessed under Table 62 of AMA 4.[82] A 1mm cartilage interval in the hip is 10% impairment. This assessment represents the deduction pursuant to cl 6.31 of the Guidelines as there must be a deduction for the pre-existing symptomatic permanent impairment in the same region at the time of the accident.
[82] This is confirmed by cl 6.88 – 6.92 of the Guidelines.
Skin/Temski
The scarring was assessed by Dr Lee at 1% and forms part of the claim for permanent impairment.[83]
[83] Claimant’s bundle, p 73.
We have considered all factors under Table 6.18 of the Guidelines[84] when assessing best fit for the carpal tunnel, elbow and hip surgery scars.
[84] Guidelines at p 132.
The scarring from the carpal tunnel and elbow surgeries scars are barely visible but able to be easily located by Mr Bogdanovski, have a good colour match, no staple marks, no contour defect, no effect on ADLs, no treatment is required and there is no adherence.
The scar from the hip replacement is easily visible on medical examination and about 16cm in length, easily locatable by the claimant and he is conscious of the scar. There is colour contrast with the surrounding skin but obscured by usual clothing, is slightly widened, there are faint suture marks visible, no contour effect, no adherence nor any effect on ADLs or need for treatment.
Considering the scarring in totality and applying a best fit, the scarring is assessed as 1% whole person impairment based on the TEMSKI scale.
Subsequent fall
The claimant fell on his right side in early 2023. There is no evidence that this fall aggravated the assessments of the left elbow, left shoulder and left hip. We have noted that the effects of the fall on the right side may have affected the right knee and that this fall and the pre-existing condition probably explains the present right knee condition.
Permanent
We are satisfied that the impairment is permanent within the meaning of cls 6.19 and 6.20 of the Guidelines because the condition is well stabilised with little change in the condition since the examination of the previous Medical Assessor. The claimant does not require further surgery and does not require treatment that will impact on permanent impairment in the foreseeable future.
CONCLUSION
The Panel concludes that the degree of permanent impairment of the claimant that has resulted from the injuries caused by the motor accident is greater than 10% and is assessed at 13%. A new certificate is attached at the commencement of these Reasons.
[TO1]Seems to be word missing - eg increase left hip “pain” or “symptoms”?
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