Brown v QBE Insurance (Australia) Ltd
[2022] NSWPICMP 295
•20 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Brown v QBE Insurance (Australia) Ltd [2022] NSWPICMP 295 |
| CLAIMANT: | Paul Brown |
INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL: | Principal Member John Harris Medical Assessor Geoffrey Stubbs Medical Assessor Margaret Gibson |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 30 May 2018 when his motor vehicle was side swiped by the insured vehicle causing his vehicle to tip on its side; the claimant suffered a fracture at T3 and other injuries where impairment was disputed; Held – claimant reassessed at 18% impairment; no substantive legal principles on reassessment; original assessment revoked. |
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 SECTION 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS:
The Panel revokes the certificate dated 23 November 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%:
· thoracic spine fracture at T3;
· cervical spine injury – aggravation of degenerative changes;
· right shoulder – soft tissue injury, and
· left shoulder – soft tissue injury.
REASONS
BACKGROUND
Mr Paul Brown (the claimant) suffered injury on 30 May 2018 when his motor vehicle was side swiped by the insured vehicle causing his vehicle to tip on its side.
QBE Insurance (Australia) Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Brown any damages under the Motor Accident Injuries Act 2017 (the MAI Act).
The present dispute is whether Mr Brown’s “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.[1]
[1] 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 (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] 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 You-Key Ho and dated 23 November 2021. The Medical Assessor assessed the degree of permanent impairment at 9%. The details of that assessment are set out later in these Reasons.
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 the medical assessment for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
On 17 February 2022, the delegate of 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.[4]
[4] 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 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 (the 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.[5]
[5] 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.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
The parties complied with the Panel’s Direction to provide bundles of documents. On 4 April 2022 the Panel issued the following direction which provided in part:
“1. The parties are directed to confer and advise the Panel whether the only spinal fracture caused by the motor accident is the end plate fracture at T3 which is assessed by the respective qualified doctors at 5% impairment. In the absence of agreement, the claimant will be required to bring all original scans to the medical assessment (date to be organised).
2. The referral lists 15 separate injuries to be assessed. The claimant is directed to provide, by close of business, 21 April 2022, an updated list of body parts to be assessed and a short diagnosis (eg soft tissue injury, fracture at T3 etc).”
On 5 April 2022 the claimant replied:
“We do not require the claimant’s thoracic spine or right shoulder injuries to be assessed by the Review Panel. The injuries to be re-assessed are as follows:
1.Cervical spine – injury to cervical spine satisfying criteria for radiculopathy predominantly left sided C6 and C7 dermatomal distributions and diminished supinator jerk on the left.
2.Left upper extremity (shoulder) – musculoskeletal injury to left shoulder consequent upon injury to cervical spine pursuant to Nguyen v MAA & Ors [2011] NSWSC 351.”
On 13 April 2022 the Panel issued the following direction:
“We refer to our directions dated 4 April 2022 and the claimant’s response dated 5 April 2022.
‘The Panel understand from the claimant’s response that the assessment before the Panel is limited to the thoracic spine, right shoulder, cervical spine and left shoulder (whether as an injury and/or pursuant to the reasons articulated in Nguyen v MAA [2011] NSWSC 351).
We note that the Panel’s assessment is a new assessment on all the matters (s 7.26(6)) but that there may be an agreement between the parties of the matters in dispute (s. 7.25).
The claimant is to immediately advise the Panel and the insurer if he agrees with our interpretation of his letter dated 5 April 2021.
The insurer is to advise the Panel by close of business 29 April 2022 if it accepts the claimant’s acceptance of the original Medical Assessor’s assessment for the thoracic spine and/or the right shoulder and to otherwise respond in accordance with paragraph 3 of our Direction dated 4 April 2022.’”
On 14 April 2022 the claimant advised, through the Commission portal the following:
“We refer to your directions of 13 April 2022. The claimant agrees with your interpretation of our letter 5 April 2021 in relation to our client's injuries before the Review Panel.”
The insurer responded by accepting the thoracic spine assessment and requesting that the other three body parts be assessed. It otherwise made submissions on injury and any causal relationship between injury and impairment of the right shoulder. These submissions are discussed subsequently.
ASSESSMENT UNDER REVIEW
Medical Assessor You-Key Ho provided a medical assessment dated 23 November 2021 determining that the permanent impairment of the injuries was not greater than 10%. The Medical Assessor found assessable impairment of the thoracic spine (5%) and the right shoulder (4%). He also found that Mr Brown sustained injuries to the cervical spine, lumbar spine and left ribs (fracture) which had resolved.
MATERIAL BEFORE THE REVIEW PANEL
The Panel requested and were provided with separate bundle of documents.
Initial records
The ambulance report records the following:[8]
“o/a multiple vehicle accident on the Bangor bypass. Driver of a ute states that was stationary in traffic, when a pantec truck has side swiped several vehicles and his car on the drivers side which forced his ute onto it’s side, passenger side down. The pt. self extricated and sat on the road, he also states that he was wearing a seatbelt but no airbags deployed. O/E GCS 15, well perfused, co mid cervical central, down to mid thoracic central tenderness, also co tenderness to his right clavicle and on palpation below umbilical to lower right quadrant abdo tenderness.”
[8] Claimant’s bundle, page 1.
The police report confirmed the general accident involving the driver of the insured vehicle losing control colliding with eight other vehicles.[9]
[9] Claimant’s bundle, page 16.
The hospital records refer to the motor accident when the claimant’s car was hit and “flipped over sideways”. Pain was reported in the cervical and thoracic spine and the right clavicle.[10] Tertiary survey also reveal tenderness on the right shoulder, right wrist and mild epigastric tenderness. Abrasions were noted on the right knee.[11]
[10] Claimant’s bundle, page 18.
[11] Claimant’s bundle, page 18.
Progress during admission noted “ongoing left shoulder pain” and a T7 wedge fracture and L1 crush fracture. Discharge plan include follow up with Dr Saeed Kohan in four to six weeks and follow up with GP “within 1 week ? left shoulder pain”.[12]
[12] Claimant’s bundle, page 18.
Clinical notes at hospital on 1 June 2018 refer to “some shoulder pain”.[13]
Clinical records – general practitioner
[13] Insurer’s bundle, page 65.
Mr Brown first consulted his general practitioner, Dr Brian Law after the motor accident on 5 June 2018. At that time imaging requested was an ultrasound of the right shoulder and
X-rays of both shoulders.[14] A Centrelink medical certificiate dated 19 June 2018 referred to factures to T3 and T7 and left rib.[15][14] Insurer’s bundle, page 91.
[15] Insurer’s bundle, page 256.
A certificate of capacity issued by Dr Law dated 14 August 2018 refers to injuries as “whiplash” and fracture of thoracic spine”.[16]
[16] Insurer’s bundle, page 182.
On 8 February 2019 Dr Law noted left side hand paraesthesia and to assess for carpal tunnel and exclude cervical root aetiology.[17]
[17] Insurer’s bundle, page 84.
Physiotherapy
An Allied health recovery request dated 26 November 2018 referred to whiplash injury and fracture at T3.[18] A further request dated 8 March 2019 also noted pins and needles in the left hand.[19]
Radiology
[18] Claimant’s bundle, page 60.
[19] Claimant’s bundle, page 64.
The scans at hospital showed a likely T7 fracture with approximately 25% loss of height and a compression fracture of L1 vertebral body of approximately 30% loss of height.[20]
[20] Claimant’s bundle, page 21.
CT scan dated 30 May 2018 showed compression fracture at T7 with approximate 25% loss of vertebral height and moderate cervical spondylosis involving C5/6 and C6/7 levels.[21]
[21] Claimant’s bundle, page 35.
X-ray of the right shoulder dated 30 May 2018 noted a clinical history of pain in “right shoulder ? clavicle ?” with no fracture and osteoarthritis in the AC joint.[22]
[22] Claimant’s bundle, page 36.
The CT scan of the thoracic spine dated 31 May 2018 reported a T7 fracture “reduced to 70% vertebral body height”.[23] The bone scan dated 19 June 2018 confirmed the recent fracture of the superior end plate at T3, bilateral joint arthritis at T6/7 and T10/11, old fracture at L1 and moderate osteoarthritis involving multiple joints.[24]
[23] Claimant’s bundle, page 39.
[24] Claimant’s bundle, page 42.
MRI scan of the cervical spine dated 8 October 2019 showed spondylotic change at C5/6 and C6/7.[25]
[25] Claimant’s bundle, page 43.
Specialist treating records
Dr Raymond Wallace, orthopaedic surgeon provided a report dated 13 July 2018 noted the motor accident causing the T3 end plate fracture.[26] Previous history included intermittent pain in the cervical spine associated with carrying out building work.
[26] Claimant’s bundle, page 53.
Present complaints were pain in the right cervical region at C5, C6 and C7 radiating to the bilateral shoulders and intermittent paraesthesia in the right hand with walking. Examination noted tenderness at C5/6, with normal reflexes, power and touch intact and no wasting. Examination of both shoulders were measured with negative impingement signs.
Dr Wallace opined that Mr Brown sustained a Grade II whiplash disorder and fracture of T3 from the motor accident.
On 31 August 2018 Dr Wallace noted that Mr Brown was continuing with a home-based exercise program. Pain in the cervical spine was described as intermittent with no radiation to the shoulders or arms. Neurological examination was normal.[27]
[27] Insurer’s bundle, page 192.
Dr Wallace reviewed Mr Brown on 5 October 2018 noting mild discomfort at C7 with no radiation to the shoulders or arms, no paraesthesia or numbness in the upper limbs. Neurological examination of the upper limbs was normal.[28] The doctor discharged Mr Brown from the Whiplash Clinic.
[28] Claimant’s bundle, page 57.
Other records
The claim form signed by Mr Brown on 11 June 2018 described the motor accident in circumstances similar to the ambulance report. The injuries suffered were described by Mr Brown as:[29]
“Pain down both sides of neck, whiplash, pain in chest, wedge fracture of T7, bump on head, headaches.”
[29] Insurer’s bundle, page 8.
Qualified opinions
Dr Patrick, general surgeon, was qualified by the claimant and provided a report dated 18 November 2020.[30] The doctor obtained a history that Mr Brown’s vehicle was impacted and the ute on the driver’s side was on the roadway. Pain was noticed in the neck, shoulder, chest and lower back.
[30] Claimant’s bundle, page 27.
Dr Patrick noted that the L1 crush fracture was pre-existing from a 2002 boating accident as well as a 2008 injury affecting the neck and left shoulder. The left shoulder condition continued for some years with a diagnosis of supraspinatus impingement.
Dr Patrick diagnosed radiculopathy in the C6 and possibly C7 dermatomes with restricted range of movement in both shoulders.
In an assessment report Dr Patrick assessed losses for the cervical spine, thoracic spine and both shoulders totalling 20%.[31] The thoracic spine assessment was 5% based on the T3 endplate fracture. The doctor otherwise assessed half of the impairment of the left shoulder was pre-existing and the cervical spine had a pre-existing DRE II impairment.
[31] Claimant’s bundle, page 48.
Dr Ian Meakin was qualified by the insurer and provided a report dated 2 March 2020.[32] Examination of shoulders were full range of movement and no signs of residual tenderness on the left lower ribs. Neck movement was symmetrical with discomfort low on the left side. Examination of the thoracic and lumbar spines showed no evidence of muscle spasm or guarding with discomfort reported on the right side posteriorly and adjacent to the T3 vertebrae.
[32] Insurer’s bundle, page 14.
Dr Meakin opined that there was injury to the cervical spine and right shoulder and left 7th rib with complete resolution. There was proven scanned evidence of T3 fracture from the motor accident and fractures at T7 and L1 were longstanding. The doctor opined that the T3 fracture was assessed at 5% with no neurological impairment but some discomfort. The shoulders had full range of movement and cervical spine was assessed at DRE 1 and 0%. The lumbar spine fracture did not relate to the motor accident.
Dr John Bosanquet, orthopaedic surgeon, was qualified by the insurer and provided a report dated 2 February 2021.[33] The doctor noted current symptoms included left sided neck pain with some paraesthesia in the median three fingers. On examination he noted full range of bilateral shoulder movement.
[33] Insurer’s bundle, page 320.
Dr Bosanquet opined that Mr Brown had aggravated degenerative changes in the spine as well as sustaining fractures at T3 and T7. He assessed impairment at 5% based on the thoracic spine.
SUBMISSIONS
Claimant’s submissions dated 8 December 2021[34]
[34] Claimant’s bundle, page 77.
These submissions were filed seeking a review of the Medical Assessment. It was asserted that there was “error” by the Medical Assessor in referring to this as a further assessment when it was the original assessment and that the Medical Assessor purported to assess whether the fracture was a minor injury when that dispute was not before him and had been conceded by the insurer. The Medical Assessor then applied the incorrect test of minor injury
In further submissions dated 23 February 2022 the claimant submitted that a re-examination by the Panel was required to determine permanent impairment which could not be determined on the papers.[35]
Insurer’s submissions undated[36]
[35] Claimant’s bundle, page 80.
[36] Insurer’s bundle, page 4.
The insurer noted the radiology at hospital which referred to fractures at T7 and L1.
The Allied health recovery request did not list any shoulder injury, symptoms or restrictions. Dr Wallace’s opinion is consistent with a whiplash disorder and fracture at T3.
Dr Meakin opined that the motor accident caused soft tissue injury to the neck and right shoulder, fractures to the left 7th rib and T3 level of less than 25%. The rib fracture had resolved.
Dr Bosanquet found that the motor accident gave rise to aggravation of pre-existing cervical, thoracic and lumbar spine changes and caused the fracture at T3. The injury to the left seventh rib had resolved.
Both doctors found that the cervical and lumbar symptoms were 0% caused by the motor accident. The thoracic injury was assessed as DRE II based on a less than 25% compression fracture. The shoulders demonstrated full range of movement which was consistent with Dr Wallace’s examination in mid-2018.
The insurer submitted that the claimant had a number of pre-existing conditions including fractures at T7 and L1, left sided neck and shoulder problems (2009) and a trigger finger. All these conditions should be deducted from the claimant’s permanent impairment.
Insurer’s submissions undated[37]
[37] Insurer’s bundle, page 3.
These submissions were filed opposing the application to review the assessment. It was submitted that the Medical Assessor’s decision on minor injury was not binding. The Medical Assessor otherwise gave a well-reasoned decision based on his clinical judgement.
In a further undated submission in response to the claimant’s submission dated 23 February 2022, the insurer submitted that the Panel must first determine whether the medical assessment “was incorrect in a material respect and that does not require a re-examination”. Otherwise, the insurer conceded that if material error was found then the Panel was required to re-examine.[38]
[38] Insurer’s bundle, page 2.
Insurer’s submission dated 27 April 2022
These submissions were filed in response to the Panel’s directions. The insurer accepted the thoracic spine assessment provided by the Medical Assessor and also accepted that the cervical spine and left upper extremity (shoulder) “be re-assessed”.
In relation to the right shoulder, the insurer submitted:
- There was a lack of immediate complaint.
- Allied Health Recovery request did not list any shoulder injury or symptoms.
- X-ray of the right shoulder dated 30 May 2018 showed no evidence of fracture or abnormality of the glenohumeral joint.
- Dr Wallace found no right shoulder swelling or deformity.
- Dr Bosanquet found full movement.
RE-EXAMINATION
Mr Brown was examined by both Medical Assessors on the Review Panel. Their joint examination report is as follows:
“Mr Brown attended as arranged. He was unaccompanied to the assessment. Present at the assessment were Assessor Stubbs and Assessor Gibson.
PRE- ACCIDENT MEDICAL HISTORY AND RELEVANT PERSONAL DATA
Mr Brown is a builder and mariner by trade.
Prior to the subject accident, he was working in Sydney during summer, where he was s involved in residential house building and renovations and also working as a boat captain. In winters, he has been in Fiji and Tonga as a boat captain.
He denied having any occupational restrictions prior to the subject accident, although he did admit that he would become uncomfortable after a hard day at work.
Mr Brown lives with his wife, they married this year. They live in a double storey house with five steps between the upper and lower levels of the house, the laundry being downstairs.
In relation to his medical history, he said he had had fall in the school gym at 12 or 13 years and had football injuries over the years.
He had surgery to his right elbow (ulnar nerve transposition in 1990) following a fall off a semi-trailer.
He had sustained a fractured L1 vertebrae 20 years ago as a consequence of a boating accident in New Zealand. He was hospitalised in New Zealand for four months.
He has had bilateral hip arthroplasties, left hip in 2005 and right hip in 2011, the latter complicated by a staphylococcal infection which caused him to remain in the hospital for a further month. He said since then he has recovered well and felt he is more mobile and better able to climb stairs.
He has had longstanding gout affecting first his left great toe, then multiple joints including ankle and wrist. He finds he is mostly affected in winter or if he is dehydrated. He now regularly takes Progout and then Zyloprim for an episode of the gout.
He has osteoarthritis affecting both of his hands. He has a ganglion right middle finger.
He had repair of right carpal tunnel syndrome.
Six months ago, he was diagnosed with a benign pituitary tumour. He said he had been referred to an MRI scan of his brain due to complaints of fatigue, said the tumour was an incidental finding.
HISTORY OF THE SUBJECT MOTOR ACCIDENT
Mr Brown was a driver of a four-door utility with tray. He had racks on the back, but nothing on the roof, as he was not working that day. He said he had recently returned to Australia and renewed his building licence and was getting ready to start work.
He said he was in a line of eight cars, he was second from the last stopped on a bend as the vehicles in the traffic in front had banged up. This was when a truck hit the car behind him which then collided with his vehicle. His vehicle was hit on rear driver’s side and had rolled over on to the passenger side. He was suspended in his seat belt. He managed to turn off the ignition. Bystanders arrived and helped him out of the vehicle by the driver side window. There was no loss of consciousness. Then he sat on the side of the road until the ambulance arrived.
HISTORY OF SYMPTOMS AND TREATMENT
Mr Brown was conveyed to St George Hospital where he spent the next four days. He was fitted with a neck brace and diagnosed with a fractured T7 vertebrae. There was bruising to his left leg, painful right shoulder, and fractured left lower ribs. He said after about 48 hours, there was more widespread pains including right wrist and ‘all over.’ He said he was off work for at least three months and his major pain complaint was in relation to his neck.
CURRENT SYMPTOMS
Mr Brown described neck stiffness and pain, particularly restricting looking upwards and turning his head from side-to-side, for instance when checking the right when driving. His neck cracks. He is not having any radicular complaints in the upper limbs.
He does occasionally suffer with vertigo.
He has left-sided rib pains if he coughs or sneezes.
He has tingling in the lateral three fingers of his left hand and always a tingling affecting the whole left hand. Because of this, he visited a hand surgeon Dr Sarah Yong. He notices these symptoms if he lies on his left side.
If he is getting out of a chair, his back feels quite stiff and he notices this especially after an hour or so driving. He finds he needs to have a hot shower in the morning to get moving
He struggles in maintaining fixed postures. He has difficulty getting up from a kneeling position and occasionally would assist himself by leaning on a handrail or wall to get to his feet. He finds he is most comfortable walking in a standing position with his arms at about waist level. He finds reaching okay. High shelves in the house are okay but low shelves not so good. He said his upper arm strength is ‘shot’ in particular in relation to any above-shoulder activities.
Mr Brown said that due to his symptoms, his occupational activities are now restricted, he still does some casual boat work. He has recently started a new job with a marine specialist. He now remains in Sydney for the year because he cannot do his sailing business overseas. He still pilots 32 and 40 foot tall cruises on Sydney harbour to his cruises of four hours duration, so six hours work in total. He said he can’t manage sailing boats any longer due to difficulties looking upwards to check the sails. He no longer rides a motorbike.
He said he had done some house renovations late last year for an acquaintance in Woolooware, but he said he was unable to attend the job on a very regular basis and this was a less formal relationship as he was doing the work for a friend. He said he can no longer do full duties in marine rescue.
CURRENT TREATMENT
Mr Brown continues medication for his gout. He avoids regular analgesics, however, would take some Nuromol or ibuprofen/Panadol as required. He applies hot packs to his neck.
CLINICAL EXAMINATION
Mr Brown was 176 cm tall and weighed 111.5 kg. He had a normal gait. He could walk on heels and toes. He could balance on one or the other leg. He was ambidextrous but chiefly right-hand dominant.
On examination of the neck, there was tenderness with some muscle guarding. Rotation to the right was half normal, to the left one-quarter normal, lateral flexion three-quarters normal bilaterally, flexion and extension half normal.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance. There was no muscle wasting. Upper limb power, sensation, and reflexes were normal and symmetrical. Neurotension testing was negative bilaterally.
On examination of both shoulders, there was bilateral enlargement of the acromioclavicular joints with positive impingement on the right, but not on the left. There is 30 degrees fixed flexion deformity of the right elbow from an old injury.
The shoulder movements were consistent and measured with the goniometer as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Forward Flexion
120 °
130 °
Extension
50 °
50 °
Internal Rotation
70 °
70 °
External Rotation
80 °
80 °
Abduction
115 °
130 °
Adduction
60 °
70 °
Shoulder movements were limited by weakness rather than any pain in the shoulders or referred from the neck.
On examination of the back, forward flexion and extension three-quarters normal. Lateral flexion normal to the right and three-quarters normal to the left. Rotation normal to the left, three-quarters normal to the right. There was no muscle spasm or guarding, and no asymmetry of movements.
Straight leg raising was negative, both sitting and supine. Lower limb reflexes were symmetrical and normal apart from reduced ankle reflex on the right. There was no lower limb muscle wasting.
SUMMARY AND OPINION
The Panel was asked to assess cervical spine and both shoulders.
In relation to the cervical spine, there was asymmetry and muscle guarding, but no radiculopathy. This satisfied the criteria of Cervicothoracic Category II, so 5% whole person impairment.
Shoulder movements as calculating shoulder impairment by goniometer measurements were as follows: Right shoulder 8% UEI (5% WPI), left shoulder 6% UEI (4% WPI).”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[39] The Panel adopts the joint examination findings of the two Medical Assessors and adds the following reasons.
[39] 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[40] and Insurance Australia Ltd v Marsh.[41]
[40] [2021] NSWCA 287 at [40], [41] and [45].
[41] [2022] NSWCA 31 at [11], [21], [64].
The insurer’s submission that we have to error before proceeding to a new assessment is incorrect. Once the matter is referred to a Review Panel, the legislation provides it is a new assessment and the default position is that there should be a re-examination of the claimant: Frost v Kourouche[42]; Sydney Trains v Bashton.[43]
Causation - legal principles
[42] [2014] NSWCA 39 at [9].
[43] [2021] NSWCA 143. See also Briggs v IAG Insurance [2022] NSWSC 372.
Clauses 6.6 and 6.7 of the Guidelines provide:
“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.
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.”
In Peet v NRMAInsurance Ltd[44] the Court reviewed a number of Supreme Court authorities including the observations in Owen v Motor Accidents Authority of NSW[45] when Campbell J stated that it was “well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.[46]
[44] [2015] NSWSC 558 (Peet).
[45] [2012] NSWSC 560 (Owen).
[46] Owen at [27].
More recently in Hunter v Insurance Australia Ltd[47] the Court noted that a Review Panel was obliged to apply the Guidelines (set out above at [64] herein) which “incorporated “common law principles of causation”[48].
[47] [2021] NSWSC 623 (Hunter).
[48] Hunter at [16].
Various authorities have discussed error made by Review Panels and Medical Assessors in determining the issue of causation solely based on the absence or record in contemporaneous notes.
In Norrington v QBE Insurance (Australia) Ltd[49] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
[49] [2021] NSWSC 548 (Norrington).
The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[50] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga[51]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[52]).
[50] [2016] NSWCA 229 at [64]-[66].
[51] [2004] NSWCA 34 at [35].
[52] [2014] NSWSC 888 at [31]-[32].
We note the differences in opinion concerning assessment of the cervical spine by the various qualified opinions. We are not bound by other opinions are our obliged to assess the claimant at the time of assessment. The claimant was consistent with complaints of cervical spine pain and symptoms but does not satisfy any of the signs of radiculopathy as defined in cl 6.138 Guidelines. The cervical spine is assessed at DRE II (5%).
The parties agreed that the thoracic spine fracture at T3 is assessed at 5%.
The insurer’s recent submission accepted that the left shoulder be assessed. It made submissions on the issue of right shoulder injury.
The insurer’s submission that there was no immediate recorded complaint of right shoulder injury is not correct. The ambulance officer noted pain “to the right clavicle” which would include pain in the right shoulder region. Within the hospital notes there is a reference to right shoulder tenderness[53] and the claimant underwent an X-ray of the right shoulder at that time.[54]
[53] Claimant’s bundle, page 18.
[54] Claimant’s bundle, page 36.
Whilst the X-ray of the right shoulder dated 30 May 2018 does not show any fracture or osteoarthritis, it corroborates the clinical notes in the hospital of right shoulder tenderness because investigations were undertaken on that body part. Further, an X-ray will not show soft tissue injuries in the shoulder joint.
We reject the insurer’s submission of a lack of contemporaneous complaint of right shoulder injury. The claimant’s version of right shoulder injury is supported by the hospital notes.
The injury was significant involving fracture at T3 and rib fracture. The claimant was clearly thrown within the vehicle (restrained by a seatbelt) when the vehicle landed on its side. There is no doubt that this type of injury could have injured both shoulders due to the substantial nature of the vehicle of the impact.
The insurer relied on subsequent findings of no deformity or full movement and a lack of reference by the physiotherapist who did not list the right shoulder as an injury.
We accept that Dr Bosanquet’s and Dr Wallace’s findings are inconsistent with those made by the Medical Assessors. We are not bound to accept previous findings and indeed obliged to conduct a new assessment. It is difficult if not impossible to explain the difference in measurements recorded by other practitioners on other occasions however, we are obliged to assess on the day of the examination.
Dr Wallace’s report did not specifically test for range of movement of the shoulders and certainly did not provide a table of measurements.
Dr Bosanquet noted tenderness in left trapezius region although he found full range of movement in both shoulders. He also did not provide a table.
Mr Brown’s shoulder movement was measured by a goniometer by both Medical Assessors on three occasions to ensure consistency. Mr Brown was found to be consistent and genuine, and the Panel accept that there is real restriction, probably on the basis of aggravation of acromioclavicular (AC) arthritis. The nature of the motor accident where Mr Brown was left hanging by his seat belt with the harness across him could aggravate the AC joint. For the reasons expressed earlier, we note the contemporaneous complaints of pain in both shoulders which, with the nature of the motor accident, satisfy the Panel that Mr Brown injured both shoulders.
For these reasons we accept that the motor accident materially contributed to the present impairment found in both shoulders. The right upper extremity is assessed at 5% impairment and the left shoulder at 4% impairment.
Deduction for pre-existing impairment
The insurer referred to pre-existing pathology and submitted that there should be a deduction. Whilst there is no doubt that there were pre-existing complaints in the cervical spine and the left shoulder, the insurer has not established, in accordance with cl 6.31 of the Guidelines, that there was “objective evidence of a pre-existing symptomatic permanent impairment in the same region” at the time of the accident.
The terms of the clause suggest that any onus is on the insurer to satisfy that there should be a deduction for pre-existing impairment because the clause provides that there must be “evidence of a pre-existing symptomatic permanent impairment in the same region”.[55] It is clear from the words of the provision that it must be established that there was objective evidence of a symptomatic pre-existing impairment rather than the concept being disproved by the injured person.
[55] See the discussion of where an onus lies in Vines v Djordjevitch [1955] HCA 19 at [8].
Our comments on onus are consistent with observations by the Court of Appeal of where the onus lies on a deduction for pre-existing conditions under the workers compensation legislation.[56]
[56] See Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [37]. Similar comments were made in Pereira v Siemans Ltd [2015] NSWSC 1133
There is no objective evidence of symptomatic impairment. There is no evidence to show that the cervical spine was previously DRE II or otherwise that the claimant had loss of range of motion of the left shoulder.
Accordingly, no deduction is made pursuant to the cl 6.31 of the Guidelines.
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
The claimant’s permanent impairment is combined and assessed at 18%.
CONCLUSION
The certificate issued by Medical Assessor Ho is revoked. A replacement certificate is issued.
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