Bowen v QBE Insurance (Australia) Limited
[2024] NSWPICMP 507
•29 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Bowen v QBE Insurance (Australia) Limited [2024] NSWPICMP 507 |
CLAIMANT: | Susan Bowen |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Mohammad Assem |
DATE OF DECISION: | 29 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Whole person impairment (WPI); pre accident medical history; injuries to cervical spine and lumbar spine; effect of medication; clinical examination; active range of movement; neurological deficits; positive compression test; bilateral shoulder complaints; absence of pelvic symptoms following accident; delay in reporting injury to knee; Held – Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical assessment – Whole Person Impairment Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Johnothan Herald dated 6 October 2023 and issues a new certificate determining that the following injuries were caused by the motor accident: (a) 5% whole person impairment (WPI) consequent on cervical soft tissue spinal injury; (b) 5% WPI in respect of the soft tissue lumbar spinal injury, and (c) 0% WPI in respect to her bilateral shoulder complaints. |
STATEMENT OF REASONS
INTRODUCTION
Susan Bowen (the claimant) is a 45-year-old woman who sustained injuries in a motor vehicle accident on 8 July 2020. An Application for Personal Injuries Benefit (APIB) was lodged by the claimant and on 19 October 2022 the claimant had requested the insurer concede her injuries exceeded 10% whole person impairment (WPI).
On 21 October 2022 the insurer declined to make this concession and thereafter the claimant applied to the Personal Injury Commission (Commission) for an assessment of WPI.
The claimant was examined by Medical Assessor Johnathan Herald on 14 September 2023 who, in a certificate dated 6 October 2023 certified that the claimant’s injury had rose to a WPI of 10%. This was consequent of a soft tissue injury to the claimant’s cervical spine (5%), lumbar spine (5%) and injuries to both ankles, both knees, both shoulders and her pelvis.
The claimant sought a review of this determination and in a certificate dated 11 January 2024 the President’s delegate Golnaz Majtahedi, certified that she was satisfied that there was a reasonable cause to suspect the medical assessment was incorrect in a material respect according to the matters referred to the Review Panel.
The Review Panel convened and made directions for the provision for all material which was before Medical Assessor Herald, including the late documents.
ASSESSMENT SUBJECT TO REVIEW
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A (1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
As to the threshold injury constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the Motor Accident Injuries Act 2017 (MAI Act).
A medical assessment matter is determined in in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The applicant insurer has sought a review of a certificate of Medical Assessor Herald and submits that the medical material does not support a finding that the claimant sustained a threshold injury.
MEDICAL REPORT
The claimant was examined on 31 May 2024 at 9.00am by Medical Assessor Andrew Dixon and Medical Assessor Mohammad Assem. She was unaccompanied.
Pre-Accident medical history and relevant personal details
Ms Susan Bowen is a 36-year-old right hand dominant lady who was employed for four years as a sales representative for Burson Auto Parts while engaging in sports car racing as a hobby, although she denies involvement in a racing car accident. She has had subsequent falls downstairs after the motor vehicle accident, which she attributes to her back giving way. Ms. Bowen also worked for four years as a business development manager for Disc Brakes Australia and most recently as a business development manager for Motor Traders Association until her position was made redundant two months ago. She is currently looking for work but reports to be hindered by chronic pain and fatigue.
Ms Bowen has a history of depression and migraine headaches. Otherwise, she describes herself as generally well and healthy prior to the motor vehicle accident.
History of the motor vehicle accident
On 8 June 2020, Ms Bowen was driving a dual-cab Toyota Hilux four-wheel drive Ute during an onsite visit and stopped at a red light in a 70km zone. She was hit from behind by a truck she believes was speeding. The impact pushed her forward into the intersection but there was no secondary collision. She reports that she hit her head on the windscreen, resulting in immediate neck and back pain. The vehicle was drivable, but she was unable to drive it due to shock and pain. A friend picked her up, and the vehicle was later repaired. Neither the police nor ambulance attended the scene.
She reported the incident and was off work for about a week. She was given anti-inflammatory tablets and analgesics such as Endone, Tramadol, and Valium. Her neck pain and migraines worsened, leading to referrals to a neurologist, psychiatrist, psychologist, and physiotherapist. She also reported shoulder pain that began a few days after the accident.
It was brought to Ms Bowen's attention that her knee and shoulder complaints were not documented by any of her treating doctors or physiotherapists. In response she expressed confusion as to why this was the case. She claims that her physiotherapist was treating her knee injury and that her shoulder symptoms were probably not documented as they were only occurring intermittently.
History of symptoms and treatment following the motor vehicle accident
Ms Bowen experienced increasing pain radiating from her neck to her upper limbs and from her back to her lower limbs. She had vertigo and vomiting two weeks post-accident, resulting in a visit to Westmead Hospital where she was diagnosed with a concussion and referred to a spinal surgeon, Dr Kam, who found no organic cause for her pain.
She was given cortisone injections into her cervical spine and lumbar spine without any benefit. She tried cannabidiol (CBD) oils, but due to driving restrictions, she could not continue. She is now reluctant to take any analgesia apart from Paracetamol if necessary.
Current symptoms
Ms Bowen continues to suffer from chronic pain, including neck pain radiating to the upper trapezius, back pain, bilateral knee pain in the patellofemoral compartment and popliteal fossa. She also reports intermittent pain involving both shoulders.
Her neck pain disturbs her sleep, causing her to wake up numerous times at night. She reports intermittent pins and needles in her hands, feet, knees, and lower back and is unable to kneel.
She has difficulty squatting and bending, and her knees sometimes give way, accompanied by audible crepitations. Ms Bowen estimates she can drive for 60 minutes before needing a 15-minute break and can walk for 30 minutes with pain.
She lives in Greystanes with her partner and 7-year-old son. Her partner handles housework, and they have paid assistance for gardening. She is unable to lift heavy groceries.
Current and proposed treatment
Ms Bowen currently takes Lovan for depression, Saphris for sleep, and dexamphetamine for concentration. She avoids taking analgesics except for Panadol and Maxalt for migraines.
Clinical examination
General presentation: Ms Susan Bowen appeared to be anxious and had a depressed affect. She demonstrated pain behaviour in the form of grimacing and vocalisation. She was informed at the time of the not to engage in any manoeuvre beyond what she could tolerate which may cause harm or injury. She is 160cm in height and 63kg in weight.
Cervical spine (cervicothoracic): on examination of the cervical spine, she has tenderness over the mid cervical facet joints and the trapezius muscle, but no spasms. She describes intermittent “pins and needles” to her upper limbs, shoulder girdle region and interscapular area did not correspond with a specific dermatomal pattern. She has a positive Spurling’s test.
Cervical movements were variable on repeated testing. There was no consistent asymmetry of movement or spinal dysmetria. Shoulder flexion and extension varied from 1/2 to 1/3 normal range. Lateral flexion varied from 1/2 to 3/4 of normal range and rotation varied from 1/2 to 3/4 normal range.
Neurological examination to her upper limbs is intact to tone, power, and reflexes. The compression tests to her cervical spine appeared positive. The upper arm circumference is 30cm on the right and 29cm on the left. Forearm circumference is 22cm bilaterally.
Lumbar spine (lumbosacral): on examination of the lumbar spine, there is tenderness in the left paravertebral region at the level of the L5 vertebra, but no spasm. She has a reasonable range of motion with forward flexion to 2/3 of range and lateral flexion to 2/3 of range, which is to her knees. Extension is limited to 1/2 of range. Neural tension signs were mildly positive with pain reported in popliteal fossa. Sensation was normal. Tone, power, and reflexes were normal. Babinski was negative.
Upper extremity: examination of both shoulders revealed restriction in both shoulders that was limited by pain. Her movements were variable on repeated testing due to pain reported in the neck, upper back, and latissimus dorsi.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
180°
180°
Extension
50°
50°
Adduction
40°
40°
Abduction
170°
170°
Internal Rotation
80°
80°
External Rotation
60°
60°
Lower extremity: the circumference of her right thigh was 0.5cm greater than the left when measured 10cm above the superior pole of the patella. There was no measurable difference in circumference of her calves. Examination of both knees reveals tenderness and patellofemoral crepitations bilaterally, but no instability. Neural tension signs were mildly positive. Knee flexion is 130 degrees bilaterally, and knee extension is normal. She reported that her ankle was swollen but both ankles demonstrated a normal range of motion in plantar flexion, dorsiflexion, inversion and eversion.
Assessment of WPI
Cervical spine
Ms Bowen suffered a whiplash injury to her cervical spine that is supported by the contemporaneous medical evidence. She attended Oatlands Family Practice with neck complaints and was diagnosed with a whiplash injury. She underwent radiological imaging of her cervical spine and received treatment. On clinical examination, there was no muscle guarding, spasm or spinal dysmetria. She did not have any radicular symptoms corresponding to a specific dermatomal pattern. There were no focal neurological deficits, but the compression test was positive. The MRI of the cervical spine dated 11 October 2020 had noted no identifiable sequela of trauma, no signs of fractures, vertebral body heights preserved, posterior fossa structures of normal appearance and no identifiable disc protrusion. Given that there was a positive compression test, she was therefore given the benefit of the doubt (MAA Guidelines, paragraph 6.70, p 94) and awarded a Diagnosis-related estimate (DRE) Cervicothoracic Category II or 5% WPI (AMA 4, 3/104).
Lumbar spine
Ms Bowen’s back symptoms were documented soon after the accident. She consulted her general practitioner on 8 July 2020 complaining of back pain. Her symptoms were documented in her APIB and initial certificate of capacity. On clinical examination, there was no muscle guarding, spasm or spinal dysmetria. She did not have any radicular symptoms corresponding to a specific dermatomal pattern. There were no focal neurological deficits, but the neural tension signs were mildly positive. The MRI of the lumbar spine dated 20 July 2020 noted normal vertebral body alignment, intervertebral disk heightened spaces maintained and was otherwise unremarkable. Given that neural tension signs were mildly positive with pain reported in popliteal fossa, she was therefore given the benefit of the doubt (MAA Guidelines, paragraph 6.70, p 94) and awarded a DRE Lumbosacral Category II or 5% WPI (AMA 4, Table 72, p 110).
Shoulders
Ms Bowen’s bilateral shoulder complaints were causally related to the accident. They were documented by her general practitioner on 8 July 2020. A plain X-ray of on 8 July 2020 was reported to be normal. Her shoulder complaints were documented in her APIB and initial certificate of capacity. On clinical examination, shoulder movements were normal but caused discomfort at remote sites including neck, latissimus dorsi and interscapular area. There was no assessable WPI (AMA 4, Figures 38, 41 and 44 pages 43-45).
Pelvis
There is no evidence to support the alleged injury to Ms Bowen's pelvis. Despite her claims, the initial impact of the accident would have likely propelled her back into her seat rather than forward, minimizing the likelihood of a direct pelvic injury. Contemporaneous records, including general practitioner visits, physiotherapy notes, and certificates of capacity, do not document any pelvic injury. Additionally, a pelvic ultrasound performed on August 11, 2020, revealed no pathology consistent with trauma from the accident. The absence of any mention of pelvic symptoms in the immediate aftermath of the accident further undermines the credibility of her claims regarding a pelvic injury.
Knees
The findings of patellofemoral joint instability, lateral patellofemoral impingement and crepitus during examination do not, of themselves establish causation. If the Review Panel were to accept such findings as indicative of accident-related disabilities this would imply that any instance of crepitus, regardless of the time lapsed, could be attributed to any accident. This perspective would undermine the importance of timely and consistent medical documentation. Given the gap in reporting knee symptoms and the absence of significant abnormalities in the subsequent bilateral knee and ankles CT scans the panel is not satisfied that there is a connection between the motor vehicle accident and the condition of the claimant’s knee.
Ankles
There is no supporting evidence for the claimed ankle injuries. Ms Bowen’s initial medical records following the accident do not reference any ankle pain or injury. The first documented ankle complaints appeared much later and were not consistently mentioned in her early medical records, physiotherapy notes, or certificates of capacity. A bilateral knee and ankle CT scan on 17 February 2022, did not reveal any significant abnormalities, further suggesting that the reported ankle symptoms are not related to the motor vehicle accident.
CONCLUSION - WPI
The claimant has suffered injury to cervical spine, lumbar spine and both shoulders. She sustained a 5% WPI consequent on cervical soft tissue spinal injury, a 5% WPI in respect of the soft tissue lumbar spinal injury a 0% WPI in respect to her bilateral shoulder complaints.
The panel finds the claimant did not sustain injuries to her pelvis, knees or ankles.
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