Cho v Allianz Australia Insurance Ltd
[2022] NSWPICMP 62
•29 March 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Cho v Allianz Australia Insurance Ltd [2022] NSWPICMP 62 |
| CLAIMANT: | Chang Ho Cho |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL: | Principal Member John Harris Dr Shane Moloney Dr Wing Chan |
| DATE OF DECISION: | 29 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- The claimant was involved in a motor accident on 8 July 2016 when he sustained soft tissue injuries to the cervical and lumbar spines; claimant subsequently underwent discectomy at L4/5 held to be causally related to the accident; reference made to contemporaneous notes which referred to radiating right leg pain; Held- the claimant was examined by Medical Assessor Chan; claimant had no cervical spine symptoms and was assessed at DRE Category I; claimant had no signs of radiculopathy within the meaning of clause 1.138 of the Motor Accident Permanent Impairment Guidelines (the Guidelines); assessment of DRE Category II made for the lumbar spine; surgical scar assessed at 0% in accordance with Table 18 of the Guidelines and principle of best fit; finding made that claimant did not injure his right leg; references in notes to symptoms in right leg were radicular features form the low back and not a discrete injury; claimant assessed at 5% whole person impairment; original assessment confirmed. |
| DETERMINATIONS MADE: | The Panel confirms the certificate of Medical Assessor Cameron dated 8 March 2021. |
REASONS
BACKGROUND
Mr Chang Ho Cho (the claimant) suffered injury in a motor accident on 8 July 2016 when another vehicle collided into the rear of his vehicle.
Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay Mr Cho any damages under the Motor Accidents Compensation 1999 (the MAC Act).
The present dispute between the parties is whether the 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 MAC Act.[1]
[1] See ss 57 and 58 of the Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. 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 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 the
MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Ian Cameron and dated 8 March 2021. The details of that assessment are set out later in these Reasons.The application for referral of a medical assessment to a Review 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 63(7) of the Act.
On 9 August 2021, the delegate of the President referred the medical assessment to the Review Panel (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 63(2B) of the Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, clause 14F(2) of the Personal Injury Act 2020 (the PIC Act), the RP consists of two medical assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
CONDUCT OF THE REVIEW
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.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Cameron examined Mr Cho and provided a Medical Certificate dated 8 March 2021. The Medical Assessor found that Mr Cho sustained a soft tissue injury to the neck and back which resulted in lumbar spine surgery and non-verifiable radicular complaints. The impairment of the surgical scar was assessed at 0% and the cervical spine at 0%.
The Medical Assessor concluded that Mr Cho suffered a 5% permanent impairment as a result of the motor accident.
SUBMISSIONS
The claimant submitted that the Medical Assessor failed to refer to clause 1.138 of the Guidelines which specified the criteria for establishing radiculopathy.
The claimant also asserted that there was a right leg/foot injury and relied on a medical certificate dated 30 September 2016 which referred to right leg pain.
In its Reply submissions, the insurer asserted that the neck injury had resolved. It submitted, consistent with the opinion of Dr Keller, that the motor accident caused a temporary aggravation of a pre-existing spondylolisthesis in the lumbar spine.
The insurer submitted that there was no right leg injury and the claimant made “no reference to any medical opinion at all referring to the right foot”. It otherwise submitted that there was no error by Medical Assessor Cameron.
MATERIAL BEFORE THE REVIEW PANEL
The Panel requested and were provided with two bundles of material provided by the parties.
The insurer also provided access to extensive surveillance. The Panel confirms that it has viewed the surveillance.
Medical records
The first consultation after the motor accident with the general practitioner, Dr Kim, was on 11 July 2016. At that time Mr Cho was complaining of neck stiffness and low back pain.
An x-ray of the entire spine dated 15 July 2016 showed no fracture and a bilateral pars defect at L5.
A report from Campsie Physiotherapy dated 15 July 2016 stated that Mr Cho had neck and lower back pain with radiation on the right thigh. A further report dated 9 August 2016 noted that the neck pain had gradually improved but that low back pain had persisted with L4/5 radiculopathy.
On 13 September 2016 Dr Dugal performed a selective CT guided right L4 and L5 nerve root injection.
A medical certificate dated 30 September 2016 described the injury as:
“Whiplash injury of the neck
Lumbargo with right leg pain.”
The diagram in the certificate shows pain in the neck, right side of the low back and back of the right thigh.
A lumbar spine MRI scan dated 2 March 2017 reported by Dr Dugal showed a L4/5 broad based protrusion compressing the L4 nerve roots.
An exercise physiology assessment on 24 November 2016 reported low back pain.
On 2 December 2016, Dr Damodaran, neurosurgeon, noted severe low back pain with ride sided symptoms and subjective sensory numbness in the L5 distribution. On 3 March 2017 Dr Damodaran described a right L5 radiculopathy and recommended a repeat L5 nerve root block and consideration given to a L4/5 microdiscectomy.
On 19 May 2017 Dr Damodaran noted no improvement despite multiple cortisone injections and recommended a microdiscectomy.
On 1 September 2017 Dr Chew performed a CT guided right L5 perineural injection.
On 27 November 2017 Dr Damodaran reported that Mr Cho underwent a L5 discectomy two weeks previously and that radicular pain had resolved.
The Concord Hospital clinical notes refer to the lumbar spine surgery under the care of Dr Damodaran which proceeded without complications save as to a fall in the bathroom due to post-operative dizziness. After the fall Mr Cho had an x-ray of the hip and pelvis. No bony abnormality was detected.
Dr Damodaran provided a report dated 26 March 2019. The doctor stated that he last examined Mr Cho on 24 November 2017 when the leg pain was “improving”. The doctor opined:
“Mr Cho prior to the accident did not have any back pain or neuropathic leg pain. He was successfully running a cleaning company. Following the accident due to the significant back pain and nerve pain, he unfortunately had to stop working. Given the picture of an acute disc prolapse at L4-5 and bilateral pars defect, it is likely that [the] motor vehicle accident has played a significant role in contributing to the L4-5 disc prolapse and subsequent nerve root compression and symptoms. The L4-5 pars defect can be traumatic and can also be congenital in nature. It is highly likely that the motor vehicle accident has played a significant contributing role in the development of the spinal issues.”
Mr Cho completed a claim form[7] which described the injuries as:
“Lower back injury with radiating
Pain to right leg
Neck injury Shock/anxiety.”
[7] The claim form is incorrectly dated on the claimant’s birthday.
Qualified opinions
Dr Andrew Keller, Occupational Physician, was qualified by the insurer and provided a report dated 10 October 2017. The doctor noted moderate to severe restriction from a pre-existing condition aggravated by the motor accident.
In a further report dated 11 October 2018, Dr Keller opined the effects of the motor accident “would be expected to be temporary and should have fully recovered in the two years since his accident”. The doctor opined that the surgery was to treat the lumbar spondylolisthesis which was constitutional.
Dr Endrey-Walder was qualified by Mr Cho’s lawyers and provided two reports. In his first report dated 3 September 2018, Dr Endrey-Walder noted that the right leg pain had returned following the surgical procedure and Mr Cho suffered from chronic lower back pain. The doctor assessed Mr Cho as suffering from 12% permanent impairment due to the injury to the lumbar spine.
In a further report dated 8 March 2019, Dr Endrey-Walder noted that there was no history of lumbar pain prior to the accident and that the operation was on account of significant right-sided sciatica.
Dr Tim Ho, pain specialist was qualified by Mr Cho’s lawyers and provided a report dated 24 February 2019. The doctor opined that the cervical spine injury had resolved, and that Mr Cho continued to suffer from chronic low back pain and neuropathic right leg pain.
Other Medical Assessor opinion
Medical Assessor Dixon provided a certificate dated 24 July 2019 when he concluded that the proposed lumbar spine surgery recommended by Dr Damodaran was reasonable and necessary in the circumstances and related to the injury sustained in the motor accident. The Medical Assessor opined that Mr Cho has a pre-existing pars defect which had been aggravated by the motor accident and stated:
“[T]he motor accident caused the L4/5 disc protrusion above the level of his pre-existing asymptomatic spondylolisthesis and the claimant had significant right sciatic due to the disc prolapse as well as low back pain and had reasonably symptomatic relief of the sciatic pain after the procedure.”
Surveillance material
The surveillance material is quite extensive. Five surveillance video files with a total recording time of 120 minutes were received. The surveillance video showed Mr Cho being able to bend forward to pick up things from the ground, lean into the rear compartment of his van through the side door to do things, climbed into the rear of his van with the rear van door opened. Footage also showed Mr Cho lifting a blue mop bucket and a floor mop which he threw into an industrial bin. The video showed Mr Cho able to carry a box of things from the shop to his van, lift a black bag of rubbish from one overfilled household/Council rubbish bin to another Council rubbish bin in the nature strip outside his residence and showed that he was able to stand and watch a football match for approximately half an hour.
In May 2017 Mr Cho was observed driving a van to various commercial premises.
Surveillance at other times shows Mr Cho watching a football game, smoking, moving a garbage bin, carrying boxes and driving a white van.
RE-EXAMINATION
Mr Cho was examined by Medical Assessor Chan on 10 March 2022. The Medical Assessor’s report is as follows:
“The claimant, Mr Chang Ho Cho, identified by his NSW driver’s licence attended by himself. A Korean interpreter Ms Jin hee Lee, attended throughout the assessment by telephone link (nearly two hours in duration).
Mr Cho said he came to the assessment by public transport. The RAT test performed after his arrival at the surgery at 9.50 am, read at 10.10 am, was “Negative”
History
Pre-accident medical history and relevant personal details
Mr Cho had been a physical education teacher in Korea. He came to Australia in 1988. He had worked as a cleaner with various employers since his arrival in Australia. At the time of the accident, he was working as a cleaner at Kingsford Smith Airport (Domestic Airport), Terminal 2.
In 2005, he injured his lower back and had recovered with no residual complaint.
History of the motor accident
On the day of the accident, Mr Cho said he was driving home after work as a cleaner at Terminal 2. It was raining and the road was wet. At approximately 700-800 metres from his home in the suburb of Belfield, his car stopped behind a car that was waiting to make a right hand turn into a driveway. His stationary car was hit in the rear by another vehicle. The rear of his car was damaged, but he was able to drive home in his car. No ambulance or police attended the scene of the accident.
History of symptoms and treatment following the motor accident
Mr Cho said he wore a seat belt. After the impact of the collision, Mr Cho said he felt some pain in the right side of his lower back, the right hip area and some stiffness in his neck. The pain in the lower back radiated to the right leg and to the sole of his right foot. On enquiry, Mr Cho replied that he had no injury to his shoulders, arms, knees, and ankles and feet after the collision. He was able to get out of his car.
The following day after the accident, in addition to the pain in the right side of his lower back, he had stiffness in the neck which he said lasted for a few days after the accident.
The accident took place on a Friday. His GP, Dr Kisup Kim was not working that weekend. He saw Dr Kim the following Monday. Dr Kim referred him to have an x-ray of his cervical, thoracic, and lumbar spine which did not reveal any fracture. He was treated with analgesic Panadeine Forte and Lyrica. He said he could not tolerate the Lyrica and had stop taking it. He was referred to a physiotherapist for treatment which he had for a few months.
The physiotherapy treatments did not help his lower back pain. He then had hydrotherapy. He said the hydro-therapist was very pushy asking him to walk in the pool despite the pain in his lower back was worse when he exercised in the hydrotherapy pool.
Mr Cho had an injection to his lower back on 13.9.16 which did not improve his lower back pain. Dr Kim referred him to see Dr Damodaran, a neurosurgeon whom he consulted on the 2/12/16.
On the 1.9.17 he had another CT scan lumbar spine and CT guided right L5 selective perineural injection by Dr Melvin Chew.
Dr Damodaran reviewed his low back pain on the 11.9.17. In view of failure of his low back pain to improve with the injection, Dr Damodaran organized his admission to the Concord Hospital where he had right-sided L4-5 microdiscectomy and rhizolysis on the 7.11.17. Mr Cho said the pain in his lower back decreased after the surgery.
On the 9.11.2017, during convalescence in Concord Hospital, he slipped and fell in the bathroom. He said he fell and landed on his right hip/back. The Panel noted that the Concord Hospital discharge referral stated that he had an x-ray of his right hip and pelvis on the 10.11.17. The x-rays did not reveal any fracture. He said that low back pain had been troubling him after the surgery and he had not work since the subject accident.
In addition, Mr Cho had been referred to psychiatrist and psychologist to manage his depression.
Details of any relevant injuries or conditions sustained since the motor accident
On the 9.11.2017, during convalescence in Concord Hospital, he slipped and fell in the bathroom. He said he fell and landed on his right hip/back. The Panel noted that the Concord Hospital discharge referral stated that he had an x-ray of his right hip and pelvis on the 10.11.17. The x-rays did not reveal any fracture.
Current symptoms
With regard to his neck, he said that he had some stiffness, but no pain in his neck. He had no complaint in his shoulders and upper limbs (arms, elbows and hands). Mr Cho had no complaint in his thoracic spine.
He said he has pain all the time in the right side of his lumbar spine. The pain in the lumbar spine sometimes shoots down to the lateral side of his thigh, the right leg and to the lateral part and sole of the right foot. The low back pain was worse when he bends towards the right side or leans forward.
Mr Cho stated that he had no pain in his right and left knees, ankles and feet.
Mr Cho lives in a house which has a few steps from street level to the front door way of the house. He has a home help and is able to get about. He could drive to the local shopping centre.
Current and proposed treatment
Mr Cho takes Tramadol for pain relief practically every night. He said that he had some imaging done last month and he had an appointment to see a specialist next month about his persisting low back pain. He could not tell me the name of the specialist. I asked him to let the Panel know the imaging report and name of the specialist he will be seeing through Personal Injury Commission.
Additional evidence
Medical report of Dr Miles McCaffrey, neurosurgery registrar, Neurosurgery Clinic, Wollongong Hospital, dated 04.2.22.
The Panel noted that Mr Cho had right L4/5 microdiscectomy and rhizolysis to his lower back on the 7.11.17 at Concord Hospital, he said that his back pain was better after the surgery. On the 9.11.17, two days after the surgery, he had a fall in the bathroom in the hospital and landed on his right hip area. He had x-ray of the right hip and pelvis at Concord Hospital on the 10.11.17 and no fracture was seen on the x-rays. Hence, he did had an injury through a fall after the surgery. However, it was two days, not two weeks after the surgery to his back as stated in this report.
The Panel also noted that the report stated that “He has no pain in the LLL (left lower limb)” and “There are no UL (upper limb) symptoms” which were the findings of the Review Panel member at the examination of Mr Cho on the 10.3.22.
The Panel noted that following clinical examination findings of his lumbar spine in this report which are relevant with respect to the criteria of radiculopathy 1.138 of the Guidelines listed below.
1.Loss or asymmetry of reflexes – Mr Cho had sluggish but symmetrical jerk (tendon) reflexes
Positive sciatic nerve root tension signs – Positive in the right leg
Muscle atrophy - no measurement of the girth of his thigh or calf of the legs were documented, or were not conducted.
Muscle weakness that is anatomically localized to an appropriate spinal nerve root distribution – Dr McCaffrey’s report stated that power was 4/5 in right hip flexion [L1/2], knee flexion [S1], knee extension[L3/4] and big toe extension [L5].The power assesses was slightly below normal and span across six spinal nerve roots . This was consistent with global weakness of the lower limb. The slight muscle weakness was Not anatomically localized to AN appropriate spinal nerve root distribution. Hence, the finding of 4/5, slight muscle weakness does not meet the criteria for radiculopathy. In addition, Dr McCaffrey also rightly pointed out that this assessment was “heavily influenced by pain”.
Clause 1.141 of Guidelines states - “Global weakness of a limb related to pain inhibition or other factors thus not constitute weakness due to spine nerve malfunction.”
Sensory loss that is anatomically localized to an appropriate spinal nerve root distribution - The diminished sharp sensation over the anterior thigh [L2/3] and lateral calf [L5/S1] was not localized to AN appropriate spinal nerve root distribution. Hence does not meet the criteria for sensory loss that is localized to an appropriate spinal nerve root distribution.
Clause 1.138 of the Guidelines states that radiculopathy is the impairment caused by dysfunction of a spinal nerve root and is present if there are two or more of the above five listed criteria. With only one criteria being met, positive sciatic nerve tension sign, at the examination by Dr McCaffrey, Mr Cho did not have radiculopathy of the lumbar spine at this examination.
Hence the examination findings of Dr McCaffrey on the 4.2.22 was similar to Medical Assessor Chan’s examination findings conducted on 10 March 2022 save as to finding of a positive sciatic nerve tension sign.
Clinical Examination
General presentation
Mr Cho is of average physique. He walked into the consulting room with a normal gait. He could walk or stand on his heels and on his toes.
Cervical spine (cervicothoracic)
Mr Cho had the normal curvature in the cervical spine. There was no tenderness, muscle spasm or guarding in the paravertebral muscles of the cervical spine. Active flexion and extension of the cervical spine was one third of the normal range. Active rotation of the cervical spine to both sides was three quarter of the normal range. Active lateral flexion to both sides was half of the normal range. Hence there was no asymmetry in the range of movement of the cervical spine.
Upper limb tendon reflexes and power were equal and normal in both arms. Touch sensation was present in both upper limbs with the whole of her right upper limb’s perception of touch being slightly duller than the left arm. There no sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. The girth of the arm being 29 cm in both arms and the girth of the forearm being 31 cm in both forearms, measured at the same distance from the lateral epicondyle of each elbow. Hence, there was no muscle atrophy in his right upper limb when compared to his left upper limb.
As there were no clinical findings of asymmetry of reflexes, muscle atrophy, muscle weakness and no sensory loss that is anatomically localised to an appropriate spinal nerve root distribution, he did not have signs of cervical radiculopathy consistent with clause 1.138 of the Guidelines.
Lumbar spine (lumbosacral)
Mr Cho had the normal curvature in the lumbar spine. A vertical midline scar 4cm in length was noted in the lower lumbar spine. The claimant was not conscious of the scar which had good colour match with the surrounding skin. The claimant could locate it approximately. There was no contour effect, no trophic changes on the scar and the suture marks were barely visible. The location of the scar was not visible with his usual clothing. The scar had no effect on any ADL and no adherence to the underlying structures. The scar required no treatment.
On palpation there was no tenderness, muscle spasm or muscle guarding in the paravertebral soft tissue of the lumbar spine. Active flexion of the lumbar spine was half the normal range and extension of the lumbar drug lumbar spine was a quarter of the normal range. He had the full range of motion on active lateral flexion of the lumbar spine to the left side and to the right side was three quarter of the normal range. Hence there was asymmetry in the range of movement of the lumbar spine.
Tendon reflexes and power were present, equal and normal in both lower limbs. Touch sensation was duller in the whole of the right leg compared to the left leg with no sensory loss anatomically localised to an appropriate spinal nerve root distribution. The girth of the right and left thigh measured at 10 cm from the upper pole of the patella was 46 cm, and the girth of the right and left calf measured at the same distance from the lower pole of the patella was 41 cm in the right leg and 40 cm in the left leg. Hence, there was no muscle atrophy in the right lower limb when compared to the asymptomatic left lower limb. The sciatic stretch test was conducted with Mr Cho sitting on the examination couch with his legs ‘hanging’ freely over the side of the couch. He was asked to extend his knee, one at a time, as best as he could and the sciatic stretch test was performed. The sciatic stretch test was negative in both lower limbs.
Mr Cho had complained of pain in the right lumbar spine, sometimes radiating to the right leg. As there was no diminished loss of sensation, loss of power or diminished reflexes that is anatomically localised to an appropriate spinal nerve root distribution, he had non-verifiable radicular complaints.
As there were no clinical findings of asymmetry of reflexes, muscle atrophy, muscle weakness and no sensory loss that is anatomically localised to an appropriate spinal nerve root distribution, Mr Cho did not have signs of lumbar radiculopathy consistent with section 1.138 of the Guidelines.
Upper extremity
Mr Cho had no complaint in his shoulders and had full range of movement in the shoulder, elbow and wrist joints of both upper limbs.
Lower extremity
Mr Cho had a full range of movement in the knee and ankle joints of both lower limbs.
Comments on consistency
Mr Cho was co-operative throughout the assessment and there was no inconsistency in the history and physical examination.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the Act.
The Panel adopts the comprehensive examination report of Medical Assessor Chan and adds the following comments.
Causation - legal principles
Clauses 1.5 – 1.7 of the Guidelines provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 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.
1.7 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.”
In Peet v NRMAInsurance Ltd[9] the Court reviewed a number of Supreme Court authorities including the observations in Owen v Motor Accidents Authority of NSW[10] 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”.[11][9] [2015] NSWSC 558 (Peet).
[10] [2012] NSWSC 560 (Owen).
[11] Owen at [27].
More recently in Hunter v Insurance Australia Ltd[12] the Court noted that a Review Panel was obliged to apply the Guidelines (set out above at [46] herein) which incorporated “common law principles of causation”[13]. The Court held that the Panel then erred by applying a notion of a requirement that there be a “direct” consequence when it was sufficient that “an indirect, but forseeable consequence, was sufficient to establish causation”.[14]
[12] [2021] NSWSC 623 (Hunter).
[13] Hunter at [16].
[14] Hunter at [20].
A number of recent 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[15] 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.
[15] [2021] NSWSC 548 (Norrington).
The Court stated:[16]
“In the context of assessment under MACA, there is now a substantial body of authority that a panel which describes the question of causation solely on the basis of the existence of otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1).”
[16] Norrington at [31].
The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[17] 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[18]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[19]).
[17] [2016] NSWCA 229 at [64]-[66].
[18] [2004] NSWCA 34 at [35].
[19] [2014] NSWSC 888 at [31]-[32].
Cervical spine
Mr Cho stated in his claim form that he sustained a neck injury. There was a contemporaneous complaint of neck pain to the general practitioner and physiotherapist.
Both Dr Kim and the physiotherapist opined that Mr Cho sustained a whiplash injury.
Mr Cho said to Medical Assessor Chan at the examination that he had some stiffness in his cervical spine after the accident. Currently, he has no pain in the cervical spine and no complaint in his upper limbs in relation to his neck. At this examination by the member of the Panel, Mr Cho had no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular symptoms and he did not have signs of cervical radiculopathy consistent with clause 1.138 of the Guidelines. The examination findings in his cervical spine were consistent the descriptor for DRE l, 0% WPI cervicothoracic spine table 73, page 110 of AMA 4.
Whilst we are not bound by other assessments, we note that the cervical spine was not assessed by any doctor as DRE Category II.
Dr Endrey-Walder was qualified by Mr Cho and found no ongoing cervical spine symptoms in 2018. In 2019, Dr Ho observed that Mr Cho did not mention the cervical spine.
Dr Keller examined Mr Cho in 2017 and 2018. In the 2017 report there is no reference to a cervical spine injury. In 2018, Dr Keller noted “full symmetrical range of motion in the cervical spine wihtout spasm or signs of radiculopathy”.
Lumbar spine
The clinical notes record that Mr Cho suffered from lumbar pain in 2005. As the insurer noted, there is an absence of records pre-dating the motor accident.
The Panel relies on Mr Cho’s history that he was asymtomatic prior to the motor accident. That history is consistent with Mr Cho’s history that he was active and running a cleaning business.
Mr Cho had stated in the Motor Accident Personal Injury Claim Form that he had “lower back injury with radiating pain to right leg”.
Dr Kim stated in the medical certificate dated 30.9.16 that Mr Cho had “Lumbago with right leg pain”.
Dr Kim had referred Mr Cho to have an x-ray of his lumbar spine. The lumbar spine
x-ray report dated 15 July 2016 stated that that there was “no acute fracture seen in ….Lumbosacral spine and there were bilateral L5 pars defects”. The bilateral pars defects were part of spondylolisthesis of his lumbar spine and was not caused by the subject accident.The report of physiotherapist, Mr William Choi dated 15 July 2016, stated that Mr Cho had “lower back pain with radiation on his right thigh”.
Mr Cho had CT scan lumbar spine on 13 September 2016. The report did not find any evidence of bony fracture in the lumbar spine.
There is an abundance of contemporaneous records that Mr Cho sustained an injury to the low back resulting in right sided radicular features.
Based on the clinincal history, we accept that opinion of Dr Damodaran set out at [32] herein. That opinion is consistent with the conclusion reached by Medical Assessor Dixon. Accordingly, we accept that the motor accident materially contributed to the surgery undertaken by Dr Damodaran: AAI Ltd v Phillips.[20]
[20] [2018] NSWSC 1710.
Dr Keller provided no explanation as to how the effects of the lumbar spine injury purportedly ceased in circumstances where there was a consistent complaint of ongoing low back and right leg symptoms. That opinion is rejected.
Approximately a month before the re-examination, Mr Cho was seen by Dr McCaffrey, neurosurgery registrar in the Neurosurgery Clinic of Wollongong Hospital, Dr McCaffrey found that he had no clinical signs that were consistent radiculopathy of the lumbar spine as defined by clause 1.138 of the Guidelines.
Dr Endrey-Walder assessed Mr Cho at 12%. That conclusion appears to be based on findings of radiculopathy which were not present in the recent examination.
Mr Cho has pain in the lower back which radiated to his right leg. There was no muscle spasm, muscle guarding or tenderness in his lumbar spine. There was dysmetria in the range of motion in the lumbar spine. However, there were no clinical findings consistent with the criteria for radiculopathy of the lumbar in accordance with clause 1.138 of the Guidelines. The examination findings at this assessment are consistent with the descriptors for DRE ll, 5% WPI, Lumbosacral Spine, table 72, page 110 of AMA 4.
Skin
A vertical midline scar 4cm in length was noted in the lower lumbar spine resulting from the surgery. The claimant was not conscious of the scar which had good colour match with the surrounding skin. The claimant could locate it approximately. There was no contour effect, no trophic changes on the scar and the suture marks were barely visible. The location of the scar was not visible with his usual clothing. The scar had no effect on any ADL and no adherence to the underlying structures. The scar required no treatment.
Using Table 18 of the Guidelines[21] and the principle of best fit, the Panel assesses the impairment of the scarring in his lower back as 0%. This is because, other than being able to locate the scar, all other criteria warranted an assessment of 0%.
[21] Page 58.
Right leg injury
The right leg was not injured in the motor accident.
There was never any assertion by Mr Cho that he injured his right leg. The reference in the medical certificiate relied upon as the basis for supporting a right leg injury is consistent with the entire evidence that Mr Cho developed radicular symptoms into the right leg following the motor accident rather than any specific injury to any part of the right leg.
Mr Cho did not assert in the claim form that he injured his right leg in the motor accident. He then stated that there was “radiating pain to right leg”. An assertion of injury in a claim form is relevant to the detemination of injury to a particular body part: Bugat v Fox[22]. Logically, the absence of reference is also relevant to a determination that the body part was not injured in the motor accident.
[22] [2014] NSWSC 888 at [31]-[32].
Dr Endrey-Walder was qualified by Mr Cho and conducted two examinations. There is no reference in those reports to right leg injury although the doctor does refer to right sided radicular symptoms. Dr Ho was also qualified by Mr Cho and that doctor did not record a right leg injury.
Dr Kim has no record of a right leg injury.
There was no mention in the physiotherpaist’s letter dated 15 July 2016 of an injury to the right leg.
Mr Cho confirmed to Medical Assessor Chan at the examination that he did not suffer a right leg/foot injury in the motor accident.
The pain in the lumbar spine had radiated to the right leg and sometimes to Mr Cho’s right foot. The pain that radiated to his right leg and sometimes to his right foot was referred pain from the lumbar spine and not an injury to the right leg.
Observations on surveillance
The surveillance does not impact on the Medical Assessor’s examination findings or the Panel’s findings on causation. We otherwise observe that Medical Assessor Chan found Mr Cho’s presentation as consistent.
Assessment
The clinical notes of Dr Kim in 2005 then record that Mr Cho had chronic lumbargo. The pars defect is likely pre-existing. However there is no objective evidence of
pre-existing impairment in accordance with clause 1.31 of the Guidelines. This conclusion is consistent with the history that Mr Cho was in full-time employment prior to the motor accident. No deduction is warranted in these circumstances.We do not accept the insurer’s recent submission that the fall at the hospital is a subsequent condition for which there should be a deduction pursuant to clause 1.34 of the Guidelines because:
(a) the fall was causally related to the surgery which itself was related to the motor accident;
(b) the fall otherwise did not affect the assessment of impairment.
The lumbar spine is assessed at 5% permanent impairment in light of the surgery caused by the motor accident. That condition is obviously permanent. The cervical spine and skin do not rate as any assessable impairment.
CONCLUSION
For these reasons the Medical Assessmment provided by Medical Assessor Cameron is confirmed.
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