Chaaya v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 474
•22 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Chaaya v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 474 |
| CLAIMANT: | Joseph Chaaya |
INSURER: | IAG Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Michael Couch |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 22 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Assem dated 26 September 2022; claimant injured in motor vehicle accident on 7 September 2020 in rear end collision with limited impact; claimant injured his cervical spine, lumbar spine, right shoulder and right hand; parties agreed that injuries to the cervical spine, lumbar spine and right shoulder are threshold injuries; the only matter for determination was the injury to the claimant’s right third metacarpophalangeal joint; issue of causation concerning the MCP joint; claimant had prior injury to his right hand in 2008; Panel satisfied that the claimant did have an injury to his third right MCP joint consisting of a partial tear of a superficial component of the radial collateral ligament but the Panel was not satisfied that this injury was causally related to the accident; Held – certificate of MA Assem affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel is satisfied that the claimant does have an injury to his third metacarpophalangeal (MCP) joint consisting of thickening of the radial collateral ligament, with slight clinical laxity. However, the Panel concludes that this is not causally related to the accident. 2. As the Panel has concluded that the injury to the claimant’s third MCP joint is not causally related to the accident, it is not required to consider if it is a threshold injury. 3. The Panel affirms the certificate of Medical Assessor Assem dated |
STATEMENT OF REASONS
Background
This is a review of a certificate of Medical Assessor Assem (the Medical Assessor) dated 26 September 2022.
The following injuries were referred by the Personal Injury Commission (Commission) to the Medical Assessor for assessment:
(a) cervical spine – neck pain;
(b) lumbar spine – low back pain;
(c) right shoulder – right shoulder pain, and
(d) right hand – partial tear of superficial component of the radial collateral ligament of the third MCP joint.
The Medical Assessor found the following injuries caused by the motor accident:
(a) cervical spine – soft tissue injury;
(b) lumbar spine – soft tissue injury, and
(c) right shoulder – soft tissue injury,
were minor injuries (now referred to as a threshold injury) for the purposes of the Motor Accident Injuries Act 2017 (the MAI Act).
As to the injury to the claimant’s right hand, the Medical Assessor concluded;
“With regards to his right hand, Mr Chaaya was unable to describe a specific mechanism of injury that occurred in the motor vehicle accident which I can directly attribute to the pathology identified. In a rear end collision,
Mr Chaaya would have been pushed back into his seat rather than forwards, therefore unlikely to sustain any significant injury to his right hand. Had he sustained a significant injury to his right hand that resulted in a ligament tear, he would have experienced immediate pain, stiffness, weakness and swelling around the MCP joint.Soft tissue injuries usually cause immediate discomfort that tends to improve with time. He has a previous history of symptoms involving both hands that were attributed to arthritis and there were reports of some erosive changes on radiological imaging consistent with long standing degenerative changes. The delayed development pain in his right hand (3rd MCP joint) that later increased in intensity is consistent with underlying degenerative or inflammatory arthropathy rather than an acute traumatic injury. For the reasons given above, I was not satisfied that the alleged injury to his right hand was causally related to the subject motor vehicle accident.”
The Medical Assessor was not satisfied that the injury to the claimant’s right hand was caused by the accident.
The claimant has sought a review of the decision of the Medical Assessor. However, for the purposes of this application, the claimant accepts the assessments made by the Medical Assessor in relation to the determination of causation of the claimant’s cervical spine, lumbar spine and right shoulder injuries as all being causally related to the subject motor vehicle accident.
The claimant also accepts the assessments made by the Medical Assessor in relation to the determination of the claimant’s cervical spine, lumbar spine and right shoulder injuries as being soft tissue injuries and falling within the definition of threshold/minor injury for the purposes of the MAI Act.
Whilst this is a review de novo, as the claimant accepts the findings of the Medical Assessor going to the cervical spine, lumbar spine and right shoulder, these areas of injury will not be reconsidered by the Panel. The Panel confirms that these injuries are threshold injuries.
The review is only for the claimant’s right hand partial tear of superficial component of the radial collateral ligament of the third metacarpophalangeal (MCP) joint.
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The accident
The accident occurred on 7 September 2020. The claimant was driving a Nissan X-Trail vehicle with his wife as a front seat passenger. Whilst stationary at a set of traffic lights on Boulevard Road, Wiley Park, the insured car collided with the rear section of the claimant’s car. The claimant has stated that on impact, his body was thrown back into the seat. He was wearing a seat belt restraint. The claimant could not recall what happened afterwards.
The legislation
Part 7 of the MAI Act contains provisions relevant to the resolution of disputes. Division 7.5 provides for the internal review by insurers of medical disputes before a matter can be referred for medical assessment, procedures for medical assessment and the ability for a party to seek one further medical assessment and the review of medical assessments.
The claimant’s application for review is made under s 7.26 of the MAI Act. Pursuant to s 7.26(5A) the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original Medical Assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
14.Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before the Panel.
The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and Rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.
Issues for consideration
Clause 5.6 of the Motor Accident Guidelines (the Guidelines) provides guidance to treating practitioners, medico-legal practitioners and Medical Assessors as to how to conduct a medical assessment and is set out below:
“5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on
1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
The claimant’s submissions
It is submitted that the assessment made by the Medical Assessor is wrong in a material respect in that it determined that the claimant’s ‘right hand injury’ in the form of a ‘partial tear of superficial component of the radial collateral ligament of the third MCP joint’ was ‘not caused by the motor accident’.
Rather, it is submitted that a proper assessment should result in a finding that the claimed ‘right hand injury’ was caused by the subject motor vehicle accident and satisfies the definition of a non-threshold injury for the purposes of the MAI Act.
The claimant submits that the Medical Assessor has ignored and/or failed to adequately consider the history provided by the claimant, facts presented to him during the medical assessment and the supporting evidence provided by the claimant’s treating medical providers.
The claimant submits that the Medical Assessor has ignored and/or failed to adequately consider the fact that, at the time of the accident, the claimant was holding the steering wheel. The claimant refers to page 8 of the certificate of the Medical Assessor where he states:
“With regards to his right hand, Mr Chaaya was unable to describe a specific mechanism of injury that occurred in the motor vehicle accident which I can directly attribute to the pathology identified. In a rear end collision, Mr Chaaya would have been pushed back into his seat rather than forwards, therefore unlikely to sustain any significant injury to his right hand.”
The claimant submits that consequential to this failure, the Medical Assessor failed to explore the plausibility of hand and wrist trauma resulting from absorbing impact in the circumstances of this case where the claimant was holding the steering wheel during the rear-end collision.
The claimant says that the prospect or possibility of arriving at a different conclusion is reasonable and is substantiated by the determination of Medical Assessor Home in his certificate dated 24 October 2022. Medical Assessor Home was required to determine a related treatment and care dispute regarding the claimed treatment of the provision of a hand splint (Linked application: M10443418/21).
The claimant submits that incidental to determining the treatment and care dispute, Medical Assessor Home was required to assess whether the claimed right hand injury was caused by the subject motor vehicle accident.
The claimant has highlighted that on page 9 of his certificate, Medical Assessor Home states:
“The mechanism of the accident involved a rear-end collision whilst the claimant was holding his steering wheel. He recalls a violent impact from the rear.
It is plausible that the right hand was jarred in its position on the steering wheel. The injuries to the right third knuckle would arise due to a forceful adduction of the middle finger which could arise due to the forces on the hand of a turning wheel at the time of the impact.
To direct enquiry today, the claimant cannot recall precisely what happened to his right hand at the time of the impact, but he recalls he was holding the wheel.
The diagnosis is a tear of the radial collateral ligament of the middle finger (third) MCP joint of the right hand with a minor strain of the index finger (second) MCP joint of the corresponding hand.
I find that the injury arose from the subject motor vehicle accident. The type of injury diagnosed cannot occur spontaneously and requires prior trauma. It does not arise due to underlying arthropathy or arthritis.
In the absence of interval trauma, or falls, it is most likely that the right hand injury occurred at the time of the motor vehicle accident, noting the claimant also sustained injuries to the neck and right shoulder, reflecting a significant degree of force from behind.”The claimant submits that the immediate right-hand pain following the subject accident was present however, not recorded by the treating doctor in the initial consultation. The claimant says that it is noted that the claimant lodged the Application for Personal Injury Benefits on or about 14 September 2020, that is, about a week following the subject accident (date of accident: 7 September 2020). The claimant returned to his doctor in about mid-October 2020, reporting persisting pain at the 2nd and 3rd MCP joint.
The claimant submits that this persisting pain prompted referral by his treating general practitioner (GP) to undergo radiological investigations and specialist review. The claimant’s treating orthopaedic surgeon, in his report dated 7 July 2021, refers to the claimant’s right-hand condition as “metacarpal injuries” and states that he “expects the ligaments to heal by three months following the injury but quite often it may take some time for the rehabilitation to help settle down the symptoms completely” [AR4- At A4].
The claimant submits that the Medical Assessor failed to consider these factual circumstances and the reporting of the claimant’s treating specialist, Dr Dao, that documents a right hand ‘injury’, impacting the accuracy of the assessment. The claimant says that the Medical Assessor appears to be unaware of the claimant’s initial right-hand pain following the subject accident.
The claimant refers to Medical Assessor Home who noted on pages 8-9 of his certificate;
“The claimant recalls that he experienced immediate right hand pain but this was not initially addressed by his doctor. He recalls that he returned to his doctor in mid- October 2020, within five weeks of the accident, reporting persisting pain at the region of the right third knuckle.”
The claimant submitted that Medical Assessor Home had an awareness of the initial complaints and had regard to the material provided in the application and assessment and was able to arrive at a conclusion regarding causation of the claimed right hand injury that was contrary to that of Medical Assessor Assem.
Following this, the claimant submitted that the assessment conducted by Medical Assessor Assem and recorded in the Certificate dated 26 September 2022 is ‘wrong in a material respect’ as it fails to consider important factual circumstances and their logical implications as well as relevant medical documentation that support a finding that the claimant’s claimed right hand injury results from the subject accident.
The claimant further submits that Medical Assessor Assem failed to provide sufficient detail to explain how drastically different symptoms as well as radiological findings in pre-accident and post- accident pathology are explained by “underlying degenerative or inflammatory arthropathy rather than an acute traumatic injury”. The claimant says that pre-accident scans found “normal bony alignment seen bilaterally and the joint spaces are preserved. No erosions or osteophytes. No fracture. The soft tissues appear unremarkable” and were prompted by symptoms of general pain at the wrists that had subsided and were not present at the time of the accident. Whereas, the claimant submits, post-accident scans indicated: “… features of strain…” as well as “…superficial component partial thickness tear involving the radial aspect 3rd digit proximal interphalangeal joint on its dorsal surface…” and were prompted by symptoms of pain localised to the area around the right third knuckle.
The claimant submits that had the Medical Assessor found that the claimant’s right-hand injury was related to the subject accident, he would have assessed whether the claimed hand injury would fall under the definition of non-minor/threshold injury for the purposes of the MAI Act. The claimant says that an assessment of this kind would have yielded a finding that the claimant’s claimed right-hand injury would be classified as a threshold injury due to the presence of a “partial thickness tear involving the radial aspect 3rd digit proximal interphalangeal joint on its dorsal surface”, which was found following the accident.
Within the claimant’s bundle of documents at pages 244-270 inclusive, there are unidentified handwritten notes, some of which are upside down. The Panel does not know the author of the documentation and there do not appear to be any submissions going to these handwritten notes.
The Panel notes that most documents are not identified in the claimant’s bundle, there is no pagination, no compliance with a procedural direction nor was a Panel direction to the claimant complied with for production of investigative scans.
The insurer’s submissions
The insurer submits that with regard to his right hand, the claimant was unable to describe a specific mechanism of injury that occurred in the motor vehicle accident which can be directly attributed to the pathology identified. In a rear end collision, the insurer says that the claimant would have been pushed back into his seat rather than forwards. The insurer submits therefore that the claimant would have been unlikely to sustain any significant injury to his right hand.
The insurer says that had the claimant sustained a significant injury to his right hand that resulted in a ligament tear, he would have experienced immediate pain, stiffness, weakness and swelling around the MCP joint.
The insurer says that soft tissue injuries usually cause immediate discomfort that tends to improve with time. The insurer says that the claimant has a previous history of symptoms involving both hands that were attributed to arthritis and there were reports of some erosive changes on radiological imaging consistent with long standing degenerative changes. The insurer says that the delayed development pain in his right hand (3rd MCP joint) that later increased in intensity is consistent with underlying degenerative or inflammatory arthropathy rather than an acute traumatic injury.
The insurer submits that, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. The insurer says that this aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant’s condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.
The insurer says that per Pham v Shui [2006] NSWCA 373, the Review Panel is not bound by the decisions of other Medical Assessors.
The insurer highlights the property damage photos and the expected minimal forces involved in the subject accident. In support of this the insurer has submitted two photographs purporting to be evidence of the damage sustained to the claimant’s car with red arrows pointing to the damage.
[IMAGES UNABLE TO RENDER]
The insurer submits that minimal damage occurred and that this is consistent with the lack of contemporaneous records of complaints of injury to the right hand. Further, the insurer says that it was not only the medical records but also the claimant’s own claim form which failed to record any complaints about injury to his right hand.
The insurer submits that the difference between the X-ray prior to the subject accident and a subsequent MRI can readily be explained by the differences in the imaging technologies as well as the passage of time between the two imaging reports.
The insurer submits that the subject accident and the forces involved could not and did not cause the relevant pathology.
The insurer further submits the pathology is consistent with the claimant’s pre-existing issues, the passage of time, and the claimant’s occupation.
The insurer says that rendering an underlying degenerative pathology symptomatic does not necessarily equate to the subject accident causing the pathology.
The insurer submits that the injuries sustained in the motor vehicle accident fall within the definition of a minor/threshold injury under the following:
(a) section 1.6(2) of the MAI Act;
(b) clause 4 of the Motor Accidents Injuries Regulation 2017, and
(c) the Guidelines.
The insurer says that the claimant underwent an MRI of the right hand on
24 March 2021 which supported that the injury to the right hand is chronic in nature and not acute, therefore unlikely to have been caused by the subject motor vehicle accident.The insurer says that there is no evidence that the claimant sustained an injury to any nerves or that there is a complete or partial rupture of tendons, ligaments, menisci or cartilage. Based on imaging, this is not correct.
Medical evidence
There is limited medical evidence available from the parties.
Clinical notes of Dr Dimitri are attached but these do not provide assistance to the Panel noting that some of the records are handwritten and illegible and in some cases, pages are upside down.
There is within the bundles, a certificate of Medical Assessor Home as well as a certificate from Medical Assessor Assem.
Allied Health Recovery Requests (AHRR) and Benchmark rehabilitation reports were also attached.
Dr Dimitri completed a certificate of capacity/certificate of fitness on
15 September 2020 noting pain in the claimant’s lower back, right shoulder and neck. He arranged radiological imaging to the affected areas. The claimant did not refer to any symptoms involving his right hand until around 13 October 2020.Dr Dao, orthopaedic surgeon examined the claimant several times and recommended conservative management. There was pain on valgus stress of the middle finger MCP joint. He advised that surgery was not indicated but there was a risk of developing arthropathy in the MCP joints due to ongoing instability as a consequence of the ligament injuries. He expected that the injuries would have resolved three months following the accident but advised the claimant that sometimes the symptoms do not settle completely.
An X-ray of the claimant’s right hand on 16 October 2020 was normal apart from small marginal cysts seen in some interphalangeal joints suggesting an underlying erosive arthropathy.
AHRR number 1, dated 17 October 2020, refers to injuries involving the claimant lower back, neck, right shoulder and right hand. An initial needs assessment was completed by Benchmark Rehabilitation on 17 November 2020. This noted that the claimant was having difficulty managing his domestic activities of daily living.
Dr Dao arranged an MRI scan of the claimant’s right hand on 24 March 2021 that showed features of a strain involving the radial aspect of the joint capsule at the second and third MCP joints. It was reported that there was likely a superficial component partial thickness tear involving the radial aspect of the third digit proximal interphalangeal joint on its first dorsal surface.
Scans/investigations
X-ray right hand dated 16 October 2020:
“No fracture or dislocation seen. Incidental small cysts are seen in the capitate of no clinical relevance. Some marginal cysts are seen at some of the interphalangeal joints. There are no osteophytes. ? Query – Is there a history of underlying erosive arthropathy? Bone mineralisation remains satisfactory. Correlation with serology was suggested.”
MRI right hand dated 24 March 2021. It was commented upon within this investigation report that there were features of strain involving radial aspect of joint capsule at the 2nd and 3rd digits MCP joints. The report concluded further that there was a likely superficial component partial thickness tear involving the radial aspect 3rd digit proximal interphalangeal joint on its dorsal surface.
Pre-accident imaging X-ray of both hands dated 29 November 2016:
“Clinical information – painful joints of both hands. Findings: There is normal bony alignment. Joint spaces are preserved and there are no erosions or osteophytes, no fractures and the soft tissues appear unremarkable.”
Medical examination
The claimant was examined on behalf of the Panel by Medical Assessor Couch and Medical Assessor Dixon. Their examination report follows;
“History
An Arabic interpreter, Mr Rahmi George Ibrahim Sawaqued, was arranged to attend by telephone. In the event, Mr Chaaya spoke quite adequate English and communication throughout the examination was in English. At the end of the assessment, the assessors spoke with the interpreter, who confirmed with
Mr Chaaya that he had been satisfied with the quality of communication throughout.The assessors commenced by going through the history recorded by Assessor Assem in his certificate of 24 October 2022. Mr Chaaya confirmed this history recorded and did not correct or add to it. Mr Chaaya confirmed that since the accident he has been doing less work in his private cleaning business. He added that he had lost a lot of clients since then.
In relation to the upper limbs, Mr Chaaya’s main complaint was of pain in the metacarpophalangeal joint of the right middle finger.
Clinical examination
Mr Chaaya presented in a straightforward manner and was cooperative throughout.
While the cervical and lumbar spines and lower extremities were examined, these areas are not relevant to the outcome of the examination.
Upper extremities
Mr Chaaya was wearing a light plastic dynamic splint on the middle finger of the right hand. This was removed for examination. Hands were clean and very soft with no callouses – consistent with his history of no longer doing physical cleaning duties.
On palpation, Mr Chaaya reported tenderness over the MP joint of the right middle finger but not over the PIP. On careful examination, there was slight but definite medio-lateral laxity of the metacarpophalangeal joint (MCP). Pain was produced on drawer test of this joint. There was also some pain on stressing the radial collateral ligament of the proximal interphalangeal joint (PIP), without attendant laxity. (Examination of the corresponding joints in the left middle finger was entirely normal).
Range of movement of the right and left middle fingers were measured with a goniometer as tabulated.
Right
Left
MP
Flexion
70°
90°
Extension
0°
0°
PIP
Flexion
50°
100°
Extension
0°
0°
DIP
Flexion
30°
60°
Extension
0°
0°
Upper limb girths were measured 12 cm proximal and distal to the lateral epicondyle of the elbow. The right forearm measured slightly less than the left at 18 cm, compared with 19 cm (Mr Chaaya reported that he is right handed). The right upper arm measured 25.5 cm and the left 24.5.
Biceps, triceps and brachioradialis reflexes were all present, normal and equal. Power of intrinsic muscles was normal in both hands and there was no detectable wasting of these. Grip strength was normal on the left but moderately limited on the right (apparently due to pain in the MP joint). Power of all other muscle groups in both upper limbs was normal and symmetrical, as was sensation.
As noted above, there was some tenderness to palpation over the right shoulder girdle. AROM of both shoulders was carefully measured with a goniometer, as tabulated.
Right
Left
Flexion
80°
170°
Extension
50°
50°
Abduction
110°
150°
Adduction
40°
40°
External Rotation
80°
80°
Internal Rotation
70°
70°
Elevation on the right scapula was noted on resisted right shoulder movements.
Assessors’ conclusions after the examination
1. The cervical spine would probably be rated as DRE II (as opposed to I, based on Assessor Assem’s examination) but is still a threshold injury.
2. There was also some dysmetria and muscle guarding in the lumbar spine which would be best categorised as DRE II, but again this is a threshold injury.
3. Right shoulder. The assessors found similar restriction of AROM in the right shoulder to that found by Assessor Assem. The assessors would classify this as a soft tissue injury and as a threshold injury.
4. The Assessors examination of the right middle finger
withrevealed persistent pain, tenderness and restricted AROM in the MP joint, with evidence of ligamentous laxity. However, the X-ray finding of an avulsion fracture in 2008 strongly suggests that the ligamentous laxity was due to an old injury. There was also some pain on stressing the radial collateral ligament of the proximal interphalangeal joint (PIP), without attendant laxity.”
The Panel adopts the report and findings of Medical Assessor Couch and Medical Assessor Dixon.
Causation
The Guidelines
The Guidelines identifies the test for causation at cls 6.6 and 6.7.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 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.”
The authorities
In Owen v Motor Accidents Authority (NSW),[1] Campbell J said:
“Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the Medical Assessor’s constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling[2] at p 500 [87] that the Medical Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is 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 Civil Liability Act 2002, s 5D. (See s 3B(2)).”[3]
[1] [2012] 61 MVR 245; [2012] NSWSC 650.
[2] Ackling v QBE Insurance (Australia) Limited [2009] NSWSC 881.
[3] At [27].
The Civil Liability Act 2002
Section 5D of the Civil Liability Act 2002 (CLA) needs to also be considered when assessing causation.
72.Section 5D of the CLA provides:
“General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”
There are two elements to address when assessing causation under s 5D(1):
“factual causation”;[4] and
[4] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
“scope of liability”.[5]
[5] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing “factual causation” and “scope of liability” involves the making of value judgments.[6]
[6] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The Medical Assessor found the following injuries were caused by the accident:
(a) cervical spine- soft tissue injury;
(b) right shoulder – soft tissue injury, and
(c) lumbar spine – soft tissue injury.
The Medical Assessor however, found that the following injury was not caused by the accident:
(a) right hand – partial tear of superficial component of the radial collateral ligament of the third MCP joint.
The claimant’s Application for personal injury benefits dated 14 September 2020 makes no reference to any disability to the right hand. This says, “ I have r shoulder, lower back and neck pain”.
A doctor’s certificate from Dr Dimitri dated 15 September 2020 refers to neck pain, low back pain and right shoulder pain but says nothing about the claimant’s right hand.
A certificate of fitness dated 27 August 2021 makes no reference to a hand/finger injury but it does say that treatment is needed for hand therapy/pain killers. This notation however, is nearly 12 months post-accident.
AHHR 17 October 2020 refers to lower back, neck, right shoulder and right hand.
At page 168 of the claimant’s bundle of documents, this shows a referral dated
14 January 2021 from Dr Dimitri to Dr Dao which refers to a car accident on
7 September 2020, the claimant having knocked his right hand and complaining of pain and difficulty in movements of his right hand.Medical Assessor Home provided a certificate of 11 October 2020.
Medical Assessor Home referred to the claimant’s Application for Personal Injury Benefits which noted that the claimant was involved in a motor vehicle accident on
7 September 2020 with injuries to the right shoulder, lower back and neck pain. There was no reference to a hand or finger injury.A Certificate of Capacity dated 15 September 2020 sets out injuries to the claimant’s neck, lower back, and right shoulder only.
The insurer refers to the subsequent imaging with MRI scans of the right hand dated 24 March 2021 showing a strain involving the aspect of the joint capsule at the second and third digits metacarpal phalangeal joints with a likely superficial component, partial thickness tear involving the radial aspect, third distal proximally to phalangeal joint on its dorsal surface. The Panel accepts that use of the word “likely” by the radiologist is an indication that the conclusion is more than probable.
Further osteophytic degenerative changes were noted at the interphalangeal joints and at the first digit metacarpal articulation.
The insurer notes that injury to the right hand was not indicated on the Application for Personal Injury Benefits, nor on any of the Certificates that have been completed since the date of accident.
The insurer submits that right hand pain was first reported to the physiotherapist on
17 October 2020 and that the claimant was referred to Dr Dao due to knocking his hand.The insurer submits that the MRI scan supports that the injury to the hand is chronic in nature and not acute and therefore unlikely to have been caused by the subject accident.
The insurer’s position is that the request for treatment is related to a chronic injury of the right hand and is not related to any injury resulting from the subject accident.
The claimant states that he sustained injuries in the accident on 7 September 2020. He states that he was the seat-belted driver of a Nissan X-Trail SUV struck from behind whilst stationary. His vehicle was pushed forward, however, there was no secondary forward collision.
To Medical Assessor Home, the claimant said that he could not recall precisely what happened to his right hand at the time of the impact but recalls he was holding the wheel.
The claimant said that he recalls that he attended his GP, on the same day with early complaints of pain in his neck, both shoulders and right hand. The Panel notes however, that the medical records do not show any contemporaneous complaint of pain to his right middle finger. The claimant informed Medical Assessor Home that he recalled that his doctor told him that his hand pain would likely settle but that he should return later, if pain persisted to further assess it.
The claimant provided a history that due to persisting right hand pain in the region of his right third knuckle, he returned to his doctor in October 2020. He was then referred for plain radiographs of the right hand. These were performed on 16 October 2020. There was no evidence of a fracture or dislocation and no other relevant injuries in the region of pain.
Due to persisting pain, he was referred on to an upper limb surgeon, Dr Dao whom he attended in February or March 2021. He was then referred for MRI scans of the right middle finger MCP and proximal inter-phalangeal (PIP) joints with findings of thickening of the radial collateral ligament and capsule of the third digit MCP joint and the adjacent index finger MCP joint with minor capsular damage in the region of the third digit proximal to the phalangeal joint.
Regarding causation, Medical Assessor Assem said;
“Mr Chaaya was involved in a motor vehicle accident on
7 September 2020. The contemporaneous medical evidence supports soft tissue injuries to the cervical spine, lumbar spine and right shoulder. He had symptoms immediately after the accident, underwent radiological investigations and received treatment. However, there was no evidence of an injury to a nerve, complete or partial rupture of tendons, ligaments, menisci or cartilage. On clinical examination he did not have any focal neurological deficits that would satisfy the diagnosis of radiculopathy as defined in paragraph 5.9, p 86-87 Motor Accident Guidelines, January 2019. The injury to the cervical spine, lumbar spine and right shoulder are therefore minor injuries per the Act.With regards to his right hand, Mr Chaaya was unable to describe a specific mechanism of injury that occurred in the motor vehicle accident which I can directly attribute to the pathology identified. In a rear end collision,
Mr Chaaya would have been pushed back into his seat rather than forwards, therefore unlikely to sustain any significant injury to his right hand. Had he sustained a significant injury to his right hand that resulted in a ligament tear, he would have experienced immediate pain, stiffness, weakness and swelling around the MCP joint.Soft tissue injuries usually cause immediate discomfort that tends to improve with time. He has a previous history of symptoms involving both hands that were attributed to arthritis and there were reports of some erosive changes on radiological imaging consistent with long standing degenerative changes. The delayed development pain in his right hand (3rd MCP joint) that later increased in intensity is consistent with underlying degenerative or inflammatory arthropathy rather than an acute traumatic injury. For the reasons given above, I was not satisfied that the alleged injury to his right hand was causally related to the subject motor vehicle accident.”
Panel conclusion on causation
The accident would appear minor in nature. The claimant has not disputed the cost of repairs to his car nor has he disputed the photographs of the car which are relied upon by the insurer as depicting the damage caused in the rear end collision of
7 September 2020.
Regarding the tear, this is in the middle finger PIP and not an injury in the MCP joint. The other joints are not referred to by Medical Assessor Assem. The MCP which is referred to is not where the tear occurred.
There are conflicting issues concerning the claimant’s complaint that he suffered a tear of the radial aspect of the 3rd digital pip joint. The usual outcome immediately after an injury of this nature is to feel extreme pain. The accident was minor in nature and unlikely to cause a large transference of movement and power, in the experience of the Panel, treating similar injuries arising from low impact rear end car accidents.
The claimant did not make a general complaint of pain in his right hand when he completed his application for personal injury benefits on 14 September 2020, seven days after the accident. His first recorded complaint of pain was around
13 October 2020, five weeks after the accident. In the medical experience of the Panel, had the claimant suffered a tear in a joint of his right middle finger at the time of the accident, he would have experienced acute pain immediately, and not five weeks later.In the claimant’s submissions, he says that the Medical Assessor has ignored and/or failed to adequately consider the fact that, at the time of the accident, the claimant was holding the steering wheel. The claimant makes reference to page 8 of the certificate of the Medical Assessor where he states:
“With regards to his right hand, Mr Chaaya was unable to describe a specific mechanism of injury that occurred in the motor vehicle accident which I can directly attribute to the pathology identified. In a rear end collision, Mr Chaaya would have been pushed back into his seat rather than forwards, therefore unlikely to sustain any significant injury to his right hand.”
The claimant submits that consequential to this failure, the Medical Assessor failed to explore the plausibility of hand and wrist trauma resulting from absorbing impact in the circumstances of this case where the claimant was holding the steering wheel during the rear-end collision. The Panel can only respond to this submission by noting that if the steering wheel was held in anything other than the usual manner, then it cannot be explained why the right middle finger of the claimant would have been injured, as alleged. The claimant can add no information about how the injury occurred. There is no evidence before the Panel about this.
The claimant says that he informed Medical Assessor Home that he could not recall precisely what happened to his right hand at the time of the impact. He said that he recalled that he was holding the wheel. He informed Medical Assessor Home that his vehicle was pushed forward after being struck from behind whilst stationary.
The photographs of the damage to the claimant’s car, provided by the insurer, indicate relatively minor damage. The only damage shown is to the right rear side of the car, but the repair invoice does show repairs to items on both sides of the car which would suggest a complete rear end collision. However, the photographs suggest more of an oblique/sheer impact. The insurer has provided a copy of an undated repair tax invoice for the claimant’s car, which is not disputed by the claimant. The total cost of repairs, including parts and labour, was $1,940.74.
The claimant relies on the reasons provided by Medical Assessor Home however, this Panel is not bound by that decision.
Medical Assessor Home said that it was plausible that the right hand was jarred in its position on the steering. He said that the injuries to the right third knuckle would arise due to a forceful adduction of the middle finger which could arise due to the forces on the hand of a turning wheel at the time of impact.
Whilst the accident occurred on 7 September 2020, and the claimant made no immediate complaint of pain about his right hand or thumb, he nevertheless must have made some complaint to warrant an X-ray of the right hand on 16 October 2020, a little over five weeks after the accident. Medical Assessor Home found that the injury arose from the subject motor vehicle accident. He said that “in the absence of interval trauma, or falls, it is most likely that the right-hand injury occurred at the time of the motor vehicle accident, noting the claimant also sustained injuries to the neck and right shoulder, reflecting a significant degree of force from behind”. This is a matter of speculation to some degree. Medical Assessor Home accepts that there was a significant degree of force in the rear end collision but the photographs of the damage do not confirm this, tending to show minor damage only consequent upon a minor impact.
The claimant has given though, no indication that he suffered any trauma such as a fall following the accident and before the scan on 16 October 2020.
The insurer says that the impact was too light to cause the complaint of a tear to the MCP joint and that the pain being complained of was consistent with underlying degenerative or inflammatory arthropathy rather than an acute traumatic injury. Without the claimant making any immediate complaint of pain following the accident, that submission has some strength. However, a tear of the MCP joint is more likely to arise from trauma than degenerative disease. The Panel accepts the insurer’s submission that the difference between the X-ray prior to the subject accident and the subsequent MRI can be explained by the differences in the imaging technologies as well as the passage of time between the two imaging reports.
However, it is the opinion of the Panel that to attribute an injury to the claimant’s MCP joint of the right third finger when there is no documented claim of injury to the finger until five weeks post-accident is a matter of considerable speculation.
In 2008, the claimant had an X-ray of his right hand. This occurred on
18 November 2008 and showed a bony fragment at the base of the right middle finger. It was an avulsed fragment. In the Panel’s opinion, this suggests a pre-existing laxity of an old injury.The MRI scan of the right hand of 24 March 2021 concluded that there was a likely superficial component partial thickness tear involving the radial aspect third digit proximal interphalangeal joint wants dorsal surface. This would be regarded as a non-threshold injury if the Panel was satisfied that the injury is causally related to the accident, but the Panel is not so satisfied.
Conclusion threshold injury
The Panel has considered the following injury for assessment:
(a) right hand – partial tear of superficial component of the radial collateral ligament of the third MCP joint.
The Panel is satisfied that the claimant does have an injury to his third MCP joint consisting of thickening and laxity of the radial collateral ligament. However, the Panel concludes for the reasons given, that this is not causally related to the accident.
As the Panel has concluded that the injury to the claimant’s third MCP joint is not causally related, it is not required to consider if it is a minor injury.
DETERMINATION
The Panel is satisfied that the claimant does have an injury to his third MCP joint consisting thickening and laxity of the radial collateral ligament. However, the Panel concludes that this is not causally related to the accident.
As the Panel has concluded that the injury to the claimant’s third MCP joint is not causally related to the accident, it is not required to consider if it is a threshold injury.
The Panel affirms the certificate of Medical Assessor Assem dated
26 September 2022.
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