Caldwell v Allianz Australia Insurance Ltd
[2025] NSWPICMP 437
•19 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Caldwell v Allianz Australia Insurance Ltd [2025] NSWPICMP 437 |
CLAIMANT: | Caldwell |
INSURER: | Allianz Australia Insurance Ltd |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Dr Shane Moloney |
MEDICAL ASSESSOR: | Dr Drew Dixon |
DATE OF DECISION: | 19 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of treatment and care; causation; shoulder surgery; improved symptoms following disputed surgery; impact of exacerbating injuries; persistent symptoms to right shoulder; arthroscopic debridement and lateral clavicle excision; variable but persistent symptoms since accident; injury caused or materially contributed to by motor vehicle accident; meaning of reasonable and necessary; claimant always symptomatic and suffering pain; Held – treatment and care relate to the injuries and reasonably necessary; MAC confirmed. |
DETERMINATIONS MADE: | 1. The Panel confirms the certificate of Medical Assessor Phillip Truskett dated The following treatment and care relate to the injuries caused by the motor accident: · arthroscopic debridement and lateral clavicle excision relates to the injury caused by the accident. The following treatment and care are reasonable and necessary in the circumstances: · arthroscopy right shoulder and lateral clavicle excision is reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Belinda Caldwell (the claimant) is a 44-year-old woman who was injured in a motor vehicle accident on 1 January 2022. Following the accident, the claimant lodged an Application for Personal Injury Benefits, and the parties agreed that she had sustained non-threshold injuries.
The claimant sought approval to undergo a right shoulder arthroscopic debridement and lateral clavicle excision noting that she had undergone a right shoulder arthroscopic decompression and biceps tendinosis and rotator cuff repair on 29 August 2022.
Following a review the insurer declined to approve the proposed surgery to her right shoulder as they formed the view that they did not consider it to be reasonable and necessary or causally related to the subject accident.
Thereafter the claimant lodged an Application for Assessment of Treatment and Care – Causation and was examined by Medical Assessor Phillip Truskett on 14 November 2024. In a Certificate dated 21 November 2024 the Medical Assessor determined that the proposed treatment and care relates to the injury caused by the motor vehicle accident and is reasonable and necessary in the circumstances.
The insurer sought a review of this certificate and in a decision dated 6 February 2025 the President’s delegate, Kenneth Ho, certified that he was satisfied there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The matter was referred to this Medical Panel.
The Panel issued directions for the provision of the material before Medical Assessor Phillip Truskett at the time of his assessment and this material has now been uploaded by the parties. The Panel met in this matter and determined that it was appropriate to examine the claimant and thereafter that there be a further conference to settle the certificate.
The insurer, on a without prejudice basis, gave approval for the proposed surgery to be performed on the claimant. This was done on 24 February 2025. Notwithstanding this, the insurer has confirmed that they wish the review the application to proceed and the point, which is whether the surgery which the claimant has undergone and for which the insurer has paid, was caused by the motor vehicle accident and was reasonable and necessary.
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 the 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 Personal Injury Commission (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
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
Re-examination
The claimant attended at the medical suites at the Commission on 9 May 2025. She was unaccompanied. She was examined by Medical Assessor Shane Maloney.
Pre-accident history
Ms Caldwell stated she was in good health prior to the accident. She had been studying sonography at a private institution and working part-time as a subcontractor delivering for Australia Post. She was unable to continue the sonography course as the organisation lost accreditation.
At present, she is a single mother with two children and lives on a small farm property with her mother.
She states that there have been no previous injuries to those assessed today in the past.
History of motor accident
Ms Caldwell was driving her motorbike on 1 January 2022 when a car suddenly changes lanes and crossed in front of her causing a front on impact. She was thrown from the motor bike and landed on her right side. She had a brief loss of consciousness in the event but was wearing a helmet at the time. Police and ambulance arrived but she was picked up by her mother and taken home.
History of symptoms and treatment following the motor accident
Her mother drove her to Prince of Wales Hospital where she was assessed in the emergency department and after X-rays diagnosed with a fracture of her right great toe. This was treated by a moon boot and recovered. She also had right shoulder pain at the time and attended her general practitioner (GP) three days later. Due to dizziness an MRI scan of the brain was organised sowed no abnormality.
About three weeks later there was a consultation with the treating GP with persistent right shoulder pain and an ultrasound was performed.
The claimant attempted to return to work in mid-February for Australia Post deliveries but was unable to lift heavy items and eventually stopped work. Initially she was treated by a chiropractor for the right shoulder pain and later referred to Dr Dao, an orthopaedic surgeon who organised an MRI. Dr Dao undertook a right shoulder arthroscopy and acromioplasty with biceps tendinosis and rotator cuff repair at Prince of Wales Hospital on 29 August 2022. She wore a sling for eight weeks and undertook physiotherapy. Ms Caldwell then moved to Maitland and changed her GP.
The panel notes that the claimant, following this surgery, was more susceptible to injury or damage to her right shoulder. This proved to be the case. It does not alter the panel’s view that the origin of the injury to the claimant’s shoulder was the motor vehicle accident and consequently, the subsequent surgical procedure she has undergone was caused wholly or in part by the motor vehicle accident.
In January 2023, she was lifting a cover over a small caravan which cause immediate pain in the right shoulder. A repeat MRI was organised, and the physiotherapist strapped the shoulder which was beneficial. Physiotherapy continued and she was pregnant at that time.
In April 2023, she was employed to do hair braiding at the Easter show. There were supposed to be three women doing this work and the other two did not arrive. With this repetitive work there was a flareup in right shoulder pain which was again treated with strapping. Her second child was born on 1 July 2023. Cortisone injection to the right shoulder was undertaken in September 2023 with slight improvement to her symptoms.
In December 2023, the tradesmen had not completely installed roof insulation at the farm and so she attempted to finish the last few pieces. This caused a further flareup in the right shoulder with pain over the acromioclavicular joint and she consulted Dr Dao in February 2024. At that time, he noticed tenderness over her right acromioclavicular joint and lateral clavicle. MRI was arranged and showed bone marrow oedema to the lateral clavicle region.
Following the issuing of the certificate of Medical Assessor Truskett on 21 November 2024 the insurer gave approval for repeat arthroscopy of the right shoulder which was undertaken on 24 February 2025 by Dr Dao. Since then, she has been provided with home assistance and physiotherapy at Maitland. She consulted Dr Dao two weeks ago and he was happy with the result and instructed her to avoid martial arts and boxing. She states that she is feeling much better since then.
There have been no further relevant injuries or conditions sustained since the motor accident apart from mentioned above.
Current symptoms
There is still some discomfort in the right shoulder which wakes her at night if she sleeps on it. She is able to drive normally and recently drove from Sydney to Maitland. Walking is not a problem. If she gets slight pain, she takes Panadol occasionally.
Physiotherapy is beneficial and she still sees a psychologist which is funded by the insurance company. There is an appointment to see Dr Dao in two months' time.
Clinical examination
The claimant presented with a recent surgical scar to her right shoulder consistent with the surgical procedure performed in February this year. The claimant confirmed that, following this surgery, she was in considerably less pain than she was prior to the surgery being performed, had a slightly increased range of motion to her shoulder and expressed confidence that the surgical surgery has led to a significant improvement in her symptoms and an increase in her capacity to undertake activities of daily living.
Panel’s findings
The panel is satisfied that the claimant sustained an injury to her right shoulder in the accident of 1 January 2022. The claimant was complaining of right shoulder pain at the time of the accident. The claimant was being treated for right shoulder problems in January 2022 and underwent chiropractic treatment and Cortisone injections into her right shoulder in the months following the motor vehicle accident. She came under the care of Dr Allen in June 2022 who noted pain coming from the claimant’s long of head biceps tendon. The claimant underwent a right shoulder arthroscopy, a chromeoplasty, biceps, tendinitis, and rotator cuff repair on 29 August 2022. It was noted that there was a small partial thickness supraspinatus tear, the head of the biceps tendon was frayed, a SLAP tear was also noted.
Whilst the claimant made a good recovery and had an improved range of motion and lifting capacity, she confirmed that she did not completely recover from the shoulder surgery. The claimant aggravated the shoulder by undertaking some tasks including lifting the cover from her caravan and performing braiding work at the Royal Easter show.
The claimant remained under the care of Dr Dao but did not undergo any further surgery at this time noting that she gave birth in July 2023. In December 2023 she suffered further aggravation of her shoulder condition whilst replacing insulation in a ceiling. She had an injection of Cortisone into her shoulder which provides some temporary relief.
The surgery which the claimant has undergone that provided her with significant relief and can clearly see to be of benefit to the claimant. Noting this history the panel of the view that the treatment was caused by the motor vehicle accident and was reasonably necessary in the circumstances and of benefit to the claimant.
The parties are in agreement that there is contemporaneous evidence of a right shoulder injury caused by the motor vehicle accident. The medical material clearly identifies regular symptomology and treatment to the claimant’s right shoulder from the time of the accident up to the panel’s examination. This includes the right shoulder arthroscopy, acromioplasty and rotator cuff repair performed on 29 August 2022.
The insurer made submissions that the claimant’s treating surgeon, Dr Dao, had stated that the AC joint symptoms were in keeping with the overloading of the AC joint. The panel notes to clarification by Dr Dao dated 11 April 2024 in which he states that the claimant had no AC joint symptoms prior to the motor accident. This is clearly borne out by the medical material. Whilst the claimant may not have been the best patient in respect to her use of her arms since the surgery in 2022 this does not alter the panel’s findings that the injury to the claimant’s shoulder was caused by the subject motor vehicle accident.
The panel notes the insurance company has made the cost of the surgery in 2025 and the claimant reports a significant improvement in her symptoms following this surgery.
Conclusion
The following treatment and care relate to the injuries caused by the motor accident:
arthroscopic debridement and lateral clavicle excision, and
41. arthroscopy right shoulder and lateral clavicle excision.
The panel notes the disputed procedures have been performed and the claimant confirms an improvement in her symptoms.
Accordingly, the panel is on the view that the treatment the claimant has undergone has benefited her and assisted in her recovery.
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