Dagher v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 232
•31 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dagher v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 232 |
| CLAIMANT: | Nabil Dagher |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 31 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 1 September 2016; the dispute related to the assessment of whole person impairment (WPI); injuries referred for assessment were neck, left shoulder -fracture of the left clavicle and soft tissue injury; dispute as to presence of radiculopathy; whether disc herniation at the C6/7 level caused by the accident; Held – Panel accepts opinion of Medical Assessor Korber that the disc herniation at C6/7 occurred subsequent to the accident and was not caused by the accident; the Panel did not find radiculopathy; claimant sustained soft tissue injury to the cervical spine; no non-verifiable radicular complaints; assessed as diagnosis related estimate (DRE) impairment category 1 resulting in 0% WPI; fracture left clavicle healed and not result in permanent impairment; claimant sustained soft tissue injury to the left shoulder with aggravation of the pre-existing degenerative changes; due to inconsistency in range of motion shoulder impairment assessed by analogy; mild and inconstant joint crepitation give rise to 2% WPI; Panel finds total WPI of 2%. |
| DETERMINATIONS MADE: | Medical Assessment –Permanent Impairment Review Panel Certificate The Panel revokes the Certificate of Medical Assessor Raymond Wallace dated · fracture of the left clavicle; · cervical spine – soft tissue injury, and · left shoulder – soft tissue injury with aggravation of pre-existing degenerative changes. |
REVIEW PANEL REASONS FOR DECISION
BACKGROUND
On 1 September 2016 Nabil Dagher (the claimant) sustained injury in a motor vehicle accident (the accident).
Insurance Australia Limited t/as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
The medical dispute was initially referred to Medical Assessor Wilding.
Certificate of Medical Assessor Wilding, 17 January 2018
Medical Assessor Wilding issued a certificate dated 17 January 2018. Medical Assessor Wilding reported complaints of neck pain “70% of the time” and pain in the left shoulder radiating down the left arm to the hand. He noted the pain involved the whole arm and was not in a radicular pattern. He also reported a constant frontal headache.
Medical Assessor Wilding concluded the claimant had sustained musculoligamentous strain and aggravation of pre-existing degenerative change in the cervical spine. He assessed DRE Cervicothoracic Category I. He reported there was no paravertebral guarding, and the loss of range of motion was symmetric. He noted altered sensation and complaints of pain down the left arm but found the symptoms in the left arm were not referred from the neck on the basis Mr Dagher stated that the neck pain did not radiate into the trapezii or into his shoulders. He also noted the sensory changes in the left arm were in a non-anatomical distribution and the pain was not in a radicular pattern.
Medical Assessor Wilding concluded there was no evidence of a soft tissue injury to the left arm. He noted power and reflexes in the left arm were normal, the sensory changes in the left upper limb were in a non-anatomical distribution and did not correspond with any nerve root or any dermatome. The nerve conduction study was normal and whilst the EMG study showed minor changes on clinical examination there was no localisation of sensory change to any dermatome or region. He concluded the sensory changes were non anatomical because they involved the whole of the left upper limb.
He assessed the fracture of the left clavicle and soft tissue injury to the left shoulder as giving rise to an 8% whole person impairment (WPI).
On 8 February 2019 the claimant applied for a further assessment in respect of the left shoulder and neck injuries.
Certificate of Medical Assessor Bodel, 13 June 2019
Medical Assessor Bodel issued a certificate dated 13 June 2019 in which he certified the left shoulder and neck injuries gave rise to a WPI greater than 10%.
Dr Bodel stated:
“this gentleman has suffered a disc injury in the cervical spine C5/6 and C6/7, in the early MRI scans there is definite disc pathology confirmed at both levels at the time of the original accident and the original assessment. Clearly there has been a significant deterioration in the MRI scans and clinical findings seen here today since the previous assessment by Dr Wilding.”
Dr Bodel determined however, that the injury was ‘cervical spine soft tissue injury without radiculopathy’ but then assessed the injury as having radiculopathy for the purpose of assessing permanent impairment and awarded 15% WPI.
The insurer sought a review of the assessment of Medical Assessor Bodel.
Review Panel, 6 March 2020 (the first review panel)
On 6 March 2020 the first review panel constituted by Medical Assessor Gibson, Medical Assessor Berry and Medical Assessor Dixon revoked the certificate of Medical Assessor Bodel and certified the left shoulder and neck injuries gave rise to a WPI of 8% not greater than 10%.[2] The first review panel obtained a report from Medical Assessor John Korber dated 4 December 2019 to assist with their determination.
Dagher v IAG Limited t/as NRMA Insurance [2020] NSWSC 1467
[2] AD2 p 27.
The claimant successfully sought a review of the decision of the first review panel in the Supreme Court on the basis procedural fairness had been denied where the first review panel had relied upon the report of Medical Assessor Korber without first making that report available to the parties.
Review Panel, 22 March 2021 (the second review panel)
On 22 March 2021 the second review panel constituted by Medical Assessor Rosenthal, Medical Assessor Kenna and Medical Assessor Assem reviewed the assessment of Medical Assessor Bodel.[3] It was reported since the accident the claimant had developed chronic pain in his neck and down the left arm into the thumb and index middle fingers of his left hand. He reported internal numbness and external numbness in his arm.
[3] AD2 p 34.
The second review panel noted pain behaviours and inconsistencies during the examination and inconsistency between the displayed range of motion observed and that previously observed by Medical Assessors Bodel and Wilding.
The second review panel accepted the claimant had sustained a left shoulder fractured clavicle, a soft tissue injury to the left shoulder and referred pain from the neck to the left shoulder, impacting on left shoulder impingement. The Panel also found a cervical spine injury with possible aggravation of pre-existing degenerative changes of the cervical spine but no evidence of clinical radiculopathy. The Panel accepted the reports of non-verifiable radicular complaints in the left upper limb but found no asymmetry of neck movement and no evidence of radiculopathy.
In assessing WPI the Panel determined it could not use range of motion measurements as a valid parameter of impairment evaluation of the left shoulder where the panel found inconsistencies in range of motion. The panel consider the best method of assessment was by analogy and determined the impairment would be commensurate with mild crepitation of the AC (acromioclavicular) joint.
The second review panel revoked the certificate of Medical Assessor Bodel and certified a 7% WPI, attributing 5% WPI to the cervicothoracic spine and 2% to the left shoulder.
The claimant sought a further assessment. That dispute was referred to Medical Assessor Wallace. The certificate of Medical Assessor Wallace is the subject of this application for review.
CERTIFICATE OF MEDICAL ASSESSOR WALLACE
The following injuries were referred to Medical Assessor Wallace for assessment:
· cervical spine, and
· left shoulder – fracture of the left clavicle and soft tissue injury left shoulder.
Medical Assessor Wallace concluded the claimant sustained a musculoligamentous strain at his cervical spine and aggravation of pre-existing multilevel degenerative spondylosis and fracture of the left clavicle. He reported the fracture of the left clavicle was noted to have healed on MRI investigation of the left shoulder of 27 January 2017, some four months post-accident.
Medical Assessor Wallace found the musculoligamentous strain injury at the cervical spine would have resolved within two years of the accident and the claimant’s current symptoms are due to age-related multilevel degenerative cervical spondylosis which is constitutional in origin and unrelated to the accident.
In a certificate dated 23 September 2022 Medical Assessor Wallace certified the following injuries caused by the motor accident had resolved and gave rise to no assessable permanent impairment:
· cervical spine, and
· left shoulder – fracture of the left clavicle and soft tissue injury left shoulder.[4]
REVIEW PROCEDURE
[4] AD1 p 17.
The claimant filed an application for review of the medical assessment of Medical Assessor Wallace on 20 October 2022.
On 16 November 2022 the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[5]
[5] Section 63(2B) of the MAC Act.
The Personal Injury Commission (Commission) commenced operation on
1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).Under cl 14A(1)(a)(vii) of Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. The President’s delegate referred this application for review to the Panel.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the AMA 4 Guides. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[6]
[6] Clause 1.2 of the Guidelines.
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 Medical Assessor.[7]
[7] 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.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
MATERIAL BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 27 February 2023 (the first Direction) which required each party to file an indexed, paginated bundle of documents they relied upon for the review.
In response to this direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 181 and marked AD1. The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 85 and marked AD2.
Treating medical records
Clinical records of Villawood Medical Centre
On 9 April 2021 Dr Samarasekera reported left shoulder pain, ongoing issues after the accident, pain to the left side of the upper chest wall and reported there was a prominent lump in the region of the left clavicle.[10]
[10] AD1 p 58.
On 16 April 2021 Dr Samarasekera referred the claimant to orthopaedic surgeon
Dr Christopher Smithers in respect of left shoulder pain and on 3 May 2021
Dr Samarasekera referred Mr Dagher to Dr Darweesh Al-Khawaja in respect of neck pain and left hand side numbness.On 15 August 2022 Dr Samarasekera reported the claimant had severe left neck pain with radiculopathy.
Dr Darweesh Al Khawaja
Dr Al Khawaja, neurosurgeon saw Mr Dagher on 31 May 2021 in respect of his left-sided neck pain, left shoulder pain, left scapular pain and left arm and forearm pain radiating to the thumb, index finger and ring finger of the left side.[11]
[11] AD1 p 66.
He noted on examination power and reflexes were normal in both upper limbs. There was sensory deficit involving the lateral aspect of the left shoulder, arm, forearm, and the hand. He referred Mr Dagher for an MRI scan of the cervical spine.
Dr Al Khawaja reviewed Mr Dagher on 7 February 2022 with significant neck pain going to the left arm at C6 and C7 distributions. He suggested bilateral C5/C6 and C6/C7 facet blocks and if unsuccessful suggested Mr Dagher may need surgical fusion of the C5/C6 and C6/C7 levels.[12]
[12] AD1 p 112.
On 2 May 2022 Dr Al Khawaja reported the injection helped very little and Mr Dagher still had significant neck pain and arm pain. Dr Al Khawaja stated when the pain becomes unbearable the only option is surgery.[13]
[13] AD1 p 141.
On 8 September 2022 Dr Al Khawaja reported a new MRI of the cervical spine showed some progression and worsening of the C5/C6 and C6/C7 disc injury. He recommended a SPECT scan.[14]
[14] AD1 p 178.
On 3 November 2022 Dr Al Khawaja reported the SPECT scan showed an inflammatory process at the C6/7 level. He recommended medication, physiotherapy and exercise and if there was no improvement in six months recommended surgical intervention.[15]
[15] AD1 p 181.
Andrew Fayad of Afisio physiotherapy
On 16 August 2021 Mr Fayad recorded objective signs were “left side; signs of radiculopathy, weakness in arm, altered sensation and tenderness through c spine; c4-5 particular”.[16]
[16] AD1 p 98.
Dr Chris Smithers, 31 January 2022
Dr Smithers, orthopaedic surgeon reviewed the claimant on 31 January 2022 by telehealth.[17] He concluded the symptoms including the pain deep in the shoulder radiating to the hand were related to the cervical spine pathology. He noted the MRI had excluded any structural shoulder problem and found the symptoms did not relate to the subacromial bursitis and supraspinatus tendinosis demonstrated on MRI of the shoulder.
[17] AD1 p 110.
Radiological investigations
CT scan of the cervical spine, 1 September 2016 was reported as showing no cervical spine fracture. It noted there was normal vertebral alignment and cervical lordosis was maintained. There was no prevertebral soft tissue swelling.
X-ray of the left shoulder and scapula, 1 September 2016, revealed a comminuted superiorly angulated fracture through the mid shaft of the clavicle. There was no numeral fracture. The glenohumeral alignment was preserved. There was no rib fracture or pneumothorax.
MRI of the cervical spine, 19 September 2016 the report concluded as follows:
“No bony contusion, fracture or subluxation. Mild to moderate disc height loss at C5/6 with a mild disc bulge and a mild disc bulge at C6/7. No evidence of neural impingement. Normal appearance of the cervical cord. The facet joints are maintained.”
CT scan of the left clavicle, 21 December 2016 – the report concluded:
“There is a mid-shaft clavicle fracture with extensive surrounding callus formation. The fracture lines are still apparent. There is no complication identified…”
MRI scan of the left shoulder, 27 January 2017 – the report concluded as follows:
“Degenerative change at the AC joint with subchondral cyst formation and capsular hypertrophy.
Partial thickness tear at the anterior aspect of the supraspinatus tendon involving the articular surface at the enthesis. The remainder of the rotator cuff tendons are unremarkable. There is fluid in the subacromial/subdeltoid bursa anteriorly.”[18][18] AD1 p 176.
MRI scan of the cervical spine and left shoulder, 27 January 2017 – the report concludes:
“● Multilevel cervical spondylotic change at the sites of central canal neural exit foraminal narrowing as described;
· at C6/C7 posterior annular tear ls noted. There is posterior central to left paracentral disc extrusion noted measuring 10.4 mm in craniocaudal height x approximately 14 mm in mediolateral and approximately 4 mm in AP. This is resulting in mild flattening of left anterior aspect of the cord CSF still seen surrounding the cord. There is severe proximal left neural exit foraminal narrowing with impingement of the exiting left C7 nerve root.
· there is mild insertional tendinosis of the terminal 21 mm of the supraspinatus tendon noted with associated early foci of intrasubstance delamination and mild bisurface scuffing-stable.
· there is mild to moderate insertional tendinosis upper half of the subscapularis tendon noted with associated small foci of deep surface and intrasubstance fissuring seen.
· minimal oedema noted in the region of the subdeltoid sub acromial bursa.”[19]
[19] AD1 p 175.
MRI scan of the left brachial plexus, 3 April 2017 was reported as follows:
“There is normal signal within the region of the left brachial plexus. No mass lesions to suggest neuroma or schwannoma. No free fluid or soft tissue oedema to suggest injury. no other pathology detected.”
Nerve conduction studies, 1 May 2017 were reported as follows:
“The NCS was normal including the C8 SNAP. The EMG showed chronic partial reinnervation change noting the injury was in September in C7/8 muscles in both median and radial territory. Changes are real but not marked and there are no active features. As the SNAPs are present we cannot on this test determine whether this is a partial lower plexus/trunk injury or a root injury.”
MRI scan of the cervical spine, 3 September 2018 - the report concludes inter alia:
“At C4/C5 there is a small size posterior disc protrusion, causing mild indentation of the anterior thecal sac, there is no significant neural exit foraminal narrowing on the left and there is mild foraminal stenosis of the right.
At C5/C6 there is a moderate size posterior disc osteophyte complex causing mild indentation of the anterior thecal sac and minimal flattening of the anterior aspect of the cord. Mild facet joint hypertrophic changes.
At C6/C7 posterior annular tear is noted. There is posterior central to left
paracentral disc extrusion measuring 10.4 mm in craniocaudal height x
approximately 14 mm in mediocre lateral and approximately 4 mm AP. This is
resulting in mild flattening of the left anterior aspect of the cord CSFs still seensurrounding the cord. There is severe proximal left neural exit foraminal narrowing with impingement of the exiting left C7 nerve root. On the right side there is mild foraminal stenosis seen.” [20][20] AD1 p 174.
MRI scan of the left shoulder, 3 September 2018 - the report concluded:
“There is callus formation over the previous fracture of the mid-clavicle, which has united.
There are degenerative changes in the AC joint.
There is evidence of supraspinatus tendinopathy with an intrasubstance partial
thickness tear.
There is subacromial bursitis.”MRI scan of the left shoulder and clavicle 13 April 2021: the report concluded:
“United fracture middle third of the clavicular with no recent bony contusion.
Supraspinatus tendinosis with mild subacromial bursitis.Osteoarthritis acromioclavicular articulation with mild hypertrophy.”[21][21] AD1 p 62.
MRI scan of the cervical spine, 29 June 2021 – the comment was as follows:
“Mild disc osteophyte complexes at C5/6 and C6/7 levels. Mild degenerative change at the uncovertebral joints at C5/6 level.”[22]
[22] AD1 p 87.
A CT guided facet joint injection on 29 March 2022 was carried out at the left side of C5/6 and C6/7.
MRI scan of the cervical spine, 18 August 2022 – the report reads:
“No significant prevertebral soft tissue oedema or collection.
The atlanto-axial joint remains congruent. The foramen magnum remains
patent.
At C2/3, there is a shallow central disc osteophyte complex without causing significant central canal or neural foraminal stenosis.
At C3/4, there is a shallow central disc osteophyte complex without causing significant central canal or neural foraminal stenosis.
At C4/5, there is a small posterior central disc annular tear with a shallow
broad based disc osteophyte complex without causing significant central
canal or neural foraminal stenosis.
At C5/6, there is a disc osteophyte complex with a prominent central
component mildly indenting the thecal sac. The neural foramina remain patent.
At C6/7, there is a disc osteophyte complex with a mildly prominent left
foraminal component causing mild left neural foraminal narrowing. The right
neural foramen remains patent.
At C7/T1, no significant central canal or neural foraminal stenosis.”[23][23] AD1 p 129.
Medico-legal reports
Report of Medical Assessor John Korber, 4 December 2019
Medical Assessor Korber, radiologist was asked to review imaging studies by the first review panel.[24]
[24] AD2 p 64.
After reviewing the cervical spine MRI of 19 September 2016, he reported as follows:
“No abnormality is seen in the upper cervical spine.
At the C5/6 level there is disc space narrowing in keeping with a degenerate disc. This is in keeping with the posterior discovertebral bar seen at this level. There is no left sided predominance.
At C6/7 there is normal hydration of the disc. At the C6/7 level there is a discovertebral bar. I agree with the report. There is no evidence of disc herniation. There is no encroachment onto intervertebral foraminae. At the C6/7 level the appearances are almost within normal limits.”
After reviewing the cervical spine MRI of 3 September 2018, he reported as follows:
“MR scans of the cervical spine have demonstrated no alteration at the C5/6 level. There is a discovertebral bar which has not altered since the previous study.
At the C6/7 disc space level there is a huge left sided disc herniation measuring 11 x 17 x 4 mm. This was not present on the previous examination and has occurred since that time. It is displacing the descending C8 nerve root and impinging on the exiting C7 nerve root. This is a new lesion, and not a progression.”
He concluded:
“The very large C6/7 disc extrusion was not present on the first MRI dated 19 September 2016. The C6/7 changes are not a progression of a pre-existing lesion. The 2018 lesion is a new lesion not present in 2016 … C5/6 has not significantly altered.”
Report of Dr Clive Sun, 5 July 2021
Dr Sun assessed the claimant at the request of his lawyers on 20 May 2021.[25] He reported since the accident the claimant had suffered persistent constant burning pain in the neck and left shoulder radiating into the left arm. He also reported numbness in the left hand fingers and that the left arm felt heavy.
[25] AD1 p 51.
On examination he reported the cervical movements were restricted in extension, rotation, and lateral flexion to the left with weakness in the left C6 and C7 distribution. Sensation was intact. He reported left shoulder movements were flexion 100 degrees, extension 30 degrees, abduction 90 degrees, adduction 20 degrees, external rotation 40 degrees and internal rotation 30 degrees.
Dr Sun diagnosed:
· cervical spine C6/7 disc tear and extrusion with left C7 motor radiculopathy;
· left shoulder supraspinatus tendinosis, mild subacromial bursitis;
· united mid third clavicular fracture with no contusion, and
· arthritis of the left acromioclavicular joint.
Dr Sun assessed a 24% WPI.
Report of Dr Ron Muratore, 3 November 2021 and 21 December 2021
Dr Muratore, sports physician assessed Mr Dagher at the request of the insurer.[26] He reported Mr Dagher had left shoulder pain radiating into the arm involving the whole of the arm in a glove distribution to the distal third of the forearm. He also described neck pain which he localised to the area of C7 which radiates into the left arm, with the pain being different to the neck pain.
[26] AD2 p48.
Dr Muratore reported a restricted range of movement in the cervical spine, rotation being three quarters normal range in both directions and accompanied by pain on rotation to the left, flexion and extension were half normal range and extension was accompanied by the report of severe neck pain, lateral flexion was half normal range in both directions
Dr Muratore noted the deformity of the left clavicle which was non-tender. In relation to the cervical spine he stated:
“Mr Dagher reported neck pain radiating to the left arm involving the whole of the arm in a non-dermatomal distribution. He also reported “pins and needles in his thumb, index and middle fingers”, which could be seen to be the distribution of the C6 and C7 dermatomes, which can be described as non-verifiable radicular complaints, as he had no objective clinical evidence of nerve lesion in the described distribution. He reported a global loss of sensation in the left forequarter, and global weakness in the left upper limb, which are non-anatomical and therefore he has no objective clinical evidence of radiculopathy.”
He assessed a 5% WPI on the basis Mr Dagher met the criteria of DRE cervicothoracic category II.
Dr Muratore noted Mr Dagher exhibited inconsistencies during the examination. However, he noted he sustained an injury to the left clavicle and has degenerative changes of the left shoulder joint. He considered he could not use range of motion to assess WPI and therefore used the analogy of crepitus of the AC joint to assess a 2% WPI of the left shoulder.
Dr Muratore diagnosed a comminuted fracture of the left clavicle and reported he may have had a soft tissue injury of the cervical spine.
In relation to the opinion of Dr Sun, Dr Muratore commented:
“I have read the report from Dr Clive Sun dated 2 July 2021, and with great respect I disagree with his conclusion that Mr Dagher has evidence of radiculopathy. In his examination doctor mentioned weakness “in left C6/C7 distribution”. Dr Sun mentioned that sensation was intact. He did not mention reflexes, nor did he mention whether there was any wasting or neural tension signs.
Therefore, based on the criteria described above, Dr Sun cannot make a diagnosis of radiculopathy on examination as he has documented.”
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
“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:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
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 Norrington v QBE Insurance (Australia) Ltd[27] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[27] [2021] NSWSC 548, Norrington.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[28] where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[28] [2016] NSWCA 229, McGiffen.
Even more recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[29] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
SUBMISSIONS
[29] [2021] NSWSC 804, Kinchela.
Claimant’s submissions
The claimant provided submissions dated 19 October 2022 addressing the test to be determined by the delegate, that is where there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.[30]
[30] AD1 p 7.
The claimant submitted that Medical Assessor Wallace did not set out his actual path of reasons as to why he considered that the musculoligamentous strain of the cervical spine would have resolved within two years of the date of accident.
Further, whilst Medical Assessor Wallace found the accident had caused an aggravation of pre-existing multilevel degenerative cervical spondylosis, he did not explain why he considered the claimant’s current cervical spine and left shoulder symptoms which he attributed to multilevel degenerative cervical spondylosis were unrelated to the accident.
The claimant also submits that Medical Assessor Wallace did not explain his path of reasons for rejecting the claim that Mr Dagher suffered from left C7 motor radiculopathy.
The claimant provided earlier submissions in support of the application for a further assessment seeking leave to rely on additional relevant information.[31]
[31] AD1 p 13.
The claimant notes one of the key issues is whether he suffers from radiculopathy noting as follows:
· Medical Assessor Wilding did not find radiculopathy on 17 January 2018;
· Medical Assessor Bodel on 13 June 2019 considered there were “clinical signs of radiculopathy in the left arm”. However, as cervical spine soft tissue injury without radiculopathy was referred to him for assessment, and the parties did not list radiculopathy, he did not include radiculopathy pertaining to the cervical spine in his assessment;
· the first review panel, on 18 February 2020, considered there was radiculopathy, but was of the view that radiculopathy had arisen after the accident. Its decision was set aside by the Supreme Court.
· the second review panel, on 22 March 2021, noted that the claimant “still has neck pain radiating down his left arm into the index, thumb and middle fingers of his left hand”. However, it “found no evidence of clinical radiculopathy in his left upper limb”. It accepted that some of the left arm symptoms, caused by the accident, “appeared to follow a radicular pattern”;
· with the benefit of an MRI of the left shoulder and clavicle on 13 April 2021, Dr Sun found, in his report of 2 July 2021, that there was left C7 motor radiculopathy;
· the claimant’s general practitioner recorded, on 15 June 2021, that the claimant was suffering left neck pain with radiculopathy, and
· the claimant’s physiotherapist reported, on 16 August 2021, the claimant’s objective symptoms as “left side; signs of radiculopathy; weakness in arm; altered sensation; tenderness through c spine; c 4-5 particular”.
Insurer’s submissions
The insurer provided submissions dated 4 November 2022 in response to the application for review.[32]
[32] AD2 p 2.
The insurer relies upon the opinion of Dr Muratore to assert that in his report Dr Sun did not make a diagnosis of radiculopathy where he failed to mention whether there was any wasting or neural tension signs.
The insurer also notes that Medical Assessor Wilding found no radiculopathy, and the second review panel found no clinical evidence of radiculopathy.
The submissions otherwise address the issue to be determined by the delegate, that is, whether the assessment of Medical Assessor Wallace was incorrect in a material respect.
The insurer also provided undated submissions in response to the claimant’s further Application for Assessment of WPI lodged on 22 November 2021. The insurer argued that the asserted presence of radiculopathy in the left upper limb was not new information and nor was it evidence of deterioration.
The insurer submits that the second review panel had before it the MRI of the cervical spine of 5 September 2018 which reportedly showed a C6/7 disc tear with extrusion encroaching the left C7 nerve root and the MRI dated 30 January 2017 which reportedly showed a partial tear of the supraspinatus, subacromial bursitis and arthritis of the acromioclavicular joint. Notwithstanding that evidence the second review panel did not find clinical evidence of radiculopathy.
The insured noted:
·the second review panel at page 5 reported; “The pain levels have increased. He still has neck pain radiating down his left arm into the index, thumb and middle fingers of his left hand. He said this has persisted the whole time since the accident. There have been no new symptoms, but the same symptoms have persisted and increased in intensity”, and
·at page 7 the second review panel concluded: “Some of those left arm symptoms appeared to follow a radicular pattern. The dermatomal distribution of the thumb, index and middle finger are C6 nerve root which does not specifically concord with the MRI findings”.
EXAMINATION
A medical examination was undertaken by Medical Assessors Moloney and Stubbs on behalf of the Panel on 28 April 2023 at the Commission’s medical suites at 1 Oxford Street, Darlinghurst.
Mr Dagher was driven to the medical suite by his brother who runs the office cleaning company where he works. Mr Dagher came to Australia from Lebanon in 1987, has good English and did not require an interpreter. He was helpful and cooperative during the clinical examination but was very fixated on the severity of his injuries and what he felt were injustices in prior medical assessments.
Mr Dagher was born in Lebanon and is 58 years of age. He lives with his wife and five daughters in a four-bedroom single story house he owns. At the time of the accident, he was working for his brother’s office cleaning company having started in 2011. Following his accident, he only worked on a part-time basis of 10 hours per week.
He was also receiving a disability support benefit for total incapacity since 2000 following a work-related accident in 1991 in which he injured his back and suffered an inguinal hernia whilst lifting. The hernia has since been repaired and was no longer an issue, but his back remained troublesome, and he underwent surgery at the L5/S1 level. He pursued a workers compensation claim and this has settled.
His three eldest daughters are pursuing tertiary studies and the younger two are still at school. Recently the family was joined by his mother. She is 92 but is reported to be very spry. Recently he was retrenched from the company which has not recovered from the Covid lockdowns and suitable light duties are no longer available.
The accident occurred on 1 September 2016. He was a front seat passenger in a Subaru wagon driven by his brother. Whilst the vehicle was crossing the Anzac bridge his brother swallowed a throat lozenge and became very distressed. Mr Dagher attempted to control the vehicle. He could not put on the handbrake as the vehicle had a foot parking brake. He had to reach across and attempt to steer the vehicle from the passenger seat. He lost control and the vehicle ran into the concrete gardening balustrades on the inside lane of the bridge. Police, ambulance, and rescue services attended, and the doors of the vehicle were removed to facilitate removal of both
Mr Dagher on the passenger side and his brother on the driver’s side. Effectively the crash was a front on barrier impact.He was taken to Royal Prince Alfred Hospital and treated for a simple but slightly angulated fracture of the left clavicle. Mr Dagher produced a photograph that showed a 1 cm superficial abrasions above his left eyebrow. That laceration has healed perfectly. He was sent home with the arm resting in a sling and resumed limited light work about three months after the accident.
Mr Dagher continues to suffer left anterior shoulder pain. The principal site seems to be in the anterior triangle of the neck immediately above the slight hump caused by callus formation around the fracture site. He was most distressed by this pain and by what he felt was a failure of past assessments to take into account the severity and distress caused by this pain and the impact it has had on his life. It was difficult to get a clear description of the pain as Mr Dagher was much involved with the emotional aspects of the accident. This is a matter for a clinical psychologist. He believes that Dr Al Khawaja plans to do a cervical fusion on his cervical spine for the pain. He sees a psychologist and reports having had over 100 sessions of physiotherapy paid for from his own pocket without benefit. He remains distressed and despondent that no one can fix the problem.
Mr Dagher is 172 cm tall and weighs 83 kg. He is right-handed. He looks to be in excellent health with well-defined musculature in the upper and lower limbs. His walking gait was normal including tiptoe and heel toe walking and there were no apparent restrictions of movement of the neck or shoulders during history taking. The inconsistency with the clinical examination was pointed out to Mr Dagher but he became distracted by the emotional aspect of his injuries, his feeling of injustice and his belief that the serious injury to his cervical spine has been ignored. He reported continuing pain which seems to be present in the anterior triangle but is somewhere “deep inside.” It disturbs his sleep. He takes anti-convulsive medication such as Lyrica for what presumably has been diagnosed as neuropathic pain.
Clinical examination
Mr Dagher seems fit and well-muscled. He had a normal posture. The clinical examination was dominated by inconsistencies. This was pointed out to Mr Dagher but he did not recognise the inconsistencies and attributed them to the severity of his injury.
Cervical spine
During formal examination Mr Dagher held the neck nearly rigid. He had 5/5 strength in the neck musculature to attempted passive movements. He did not appreciate how much he moved his head and neck when giving his history. Tenderness was not experienced primarily in the cervical spine but in the anterior scalene triangular on the left. He showed an abnormal sensitivity to light touch in that region. Sensory mapping was performed with a pinwheel and revealed an area that begins on the lateral side of the sternal insertion of the sterno-mastoid muscle and extends across the whole of the shoulder anteriorly but not posteriorly and down the lateral side of the upper arm and forearm and into the thumb and index and middle finger. In other areas Mr Dagher seemed able to distinguish the repetitive prick sensation of pinwheel. The affected area showed no recognition of pinprick or even of pressure at all.
The girth of the upper arm and forearm were measured and found to be approximately equal between the two sides. The measurements were 30 cm right and left and in the forearm 29 cm right and 28.5 cm left. Examination of the small muscles of both hands showed no wasting in the left hand compared to the right. Motor strength was clinical grade 5/5 for the whole right upper extremity. Clinical strength was very variable in the left upper extremity. Active range of motion was measured in the shoulders and is included in the accompanying table. Biceps, triceps, and supinator jerk were brisk and symmetrical. There was no wasting of any muscle group. The right elbow, wrist and fingers demonstrated full active range of movement. The left elbow, wrist and fingers also showed full active range of movement (with coaxing).
The area of anaesthesia was non dermatomal. Medially it was confined to the terminal branches of the supra clavicular nerves as they passed distal to the clavicle (C2, C3). In the front of the shoulder and arm it represented part but not all the dermatomal areas of C4, C5 and C6 (only consistent with nerve entrapment at three spinal levels.)
Shoulders
The shoulder musculature was well developed and there was no asymmetry in muscle bulk between the sides.
Right
Left
Flexion
130° and consistent
60/50/70°
Abduction
100° and consistent
100/40/50°
Extension
30° and consistent
40° 20° zero
Adduction
40°
30°, 30° plus, 25°
External rotation
70° and consistent
70° and consistent unable to sustain abduction of 90°
Internal rotation
70° and consistent
70° consistent unable to sustain abduction of 90°
Internal rotation
low lumbar
low lumbar
Range of motion was also tested with Mr Dagher lying supine. Much better flexion was obtained with passive movement to confirm the impression that there was no stiffness in either shoulder.
Clavicle
The clavicular fracture is noted to be in the mid shaft. A small bump from the mixture of callus formation at the fracture site and slight residual angulation is noted and is only moderately tender. The pain is complained of was of a “deep fractured clavicle”. The distance between the mid sternal notch and the acromioclavicular joint was measured on both sides. There was no significant loss of left clavicular length as it was within half a centimetre of the un-fractured right clavicle. Significant clavicular loss of more than 2 cm does cause shoulder dysfunction because of protraction of the glenohumeral joint. However, lesser loss such as that experienced by Mr Dagher does not cause shoulder dysfunction.
Mid shaft fractures of the clavicle are common but even with moderate shortening and angulation do not affect shoulder function.
Imaging studies
The Panel was able to review the MRI examinations of the cervical spine. A specialist report was requested of Medical Assessor Korber by the first review panel. The panel reviewed the films and agreed with Medical Assessor Korber’s report.
There were age-related changes on the first imaging studies performed after the accident at C5/C6/7 level on 19 September 2016, some 18 days after the accident. The second MRI performed on 3 September 2018 shows a large left-sided disc herniation measuring 11 × 17 x 4 at the C6/7 level.
The Panel is of the view that the disc herniation seen on the MRI of the cervical spine of 19 September 2018 was not caused by the accident. Typically disc protrusions shrink with time, and this is what is reported on the subsequent MRIs of the cervical spine.
The Panel accepts the opinion of Medical Assessor Korber, an expert radiologist and finds that the disc herniation at the C6/7 level shown on the 3 September 2018 MRI was not caused by the accident where it was not present as of 19 September 2016 and finds that it was a new lesion which occurred subsequent to the accident.
Diagnosis and causation
The Panel notes inconsistency in the claimant’s presentation has been the subject of comment by earlier medical examiners. Medical Assessor Wilding reported Mr Dagher had a better range of motion of the cervical spine whilst he was taking the history than the range exhibited during formal examination. The second review panel noted pain behaviours and inconsistencies during the examination and inconsistency between the displayed range of motion observed and that previously observed by Medical Assessors Bodel and Wilding. Dr Muratore also reported inconsistencies during the examination and concluded Mr Dagher’s presentation was not explicable on a purely organic basis.
Injury to the left clavicle
There is no dispute the claimant sustained a fracture of the left clavicle in the accident. Imaging demonstrates that the fracture of the clavicle has united.
Cervical spine injury
Noting the consistency of complaint and the lack of any significant pre-accident history the Panel finds the claimant sustained a soft tissue injury to the cervical spine caused by the accident.
The panel note that none of their findings on examination are consistent with radiculopathy.
The Panel’s findings as to radiculopathy are consistent with a number of earlier medical opinions. The Panel notes in his certificate dated 17 January 2018 Medical Assessor Wilding found no radiculopathy noting the sensory changes in the left arm were in a non-anatomical distribution and the pain was not in a radicular pattern.
Whilst Medical Assessor Bodel found the presence of radiculopathy when assessing permanent impairment, he stated Mr Dagher had sustained a “cervical spine soft tissue injury without radiculopathy”.
The second review panel accepted Mr Dagher had sustained a cervical spine injury with possible aggravation of pre-existing degenerative changes. However, whilst it accepted the reports of non-verifiable radicular complaints in the left upper limb it found no asymmetry of neck movement and no evidence of radiculopathy.
Whilst Dr Sun noted weakness in the left C6/C7 distribution he found that sensation was normal and did not otherwise comment on reflexes or whether there was any wasting or neural tension signs. The Panel agrees with Dr Muratore that the findings of Dr Sun are not sufficient to substantiate a finding of cervical radiculopathy.
The Panel notes both Dr Muratore and Medical Assessor Wallace were unable to establish radiculopathy on clinical examination.
Left shoulder injury
The Panel does not accept that any left shoulder stiffness is caused by the fractured clavicle which has healed.
Given the claimant’s presentation and the Panel’s findings in respect of the cervical spine the Panel does not consider there has been any referred pain from the cervical spine and accordingly the principle in Nguyen v Motor Accidents Authority of NSW and Anor [2011] NSWSC does not apply.
However, notwithstanding the well documented inconsistencies in the claimant’s presentation the Panel also notes the consistent complaint of left shoulder symptoms since the accident. The imaging demonstrated osteoarthritis of the acromioclavicular joint and tendinitis of the supraspinatus. The Panel finds the claimant sustained a soft tissue injury to the left shoulder with aggravation of the pre-existing degenerative changes as a result of the accident.
Permanent impairment
Left clavicle
The Panel has also determined there is no significant loss of clavicular length which might account for impaired shoulder function.
The Panel finds the fracture of the left clavicle has healed and has not resulted in any permanent impairment.
Cervical spine
The Panel has found the claimant sustained a soft tissue injury caused by the accident. There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. The Panel found no evidence of clinical radiculopathy and no non-verifiable radicular complaints.
In accordance with Table 7 of the Guidelines the cervical spine injury would be assessed as DRE Impairment Category I, resulting in a 0% WPI.
Left shoulder
Whilst the Panel found the claimant had sustained a soft tissue injury to the left shoulder with an aggravation of the pre-existing degenerative changes the Panel notes shoulder movements were variably restricted when measured by the Panel and by comparison to earlier examinations.
Clause 6.50(d) of the Guidelines states:
“If there is inconsistency in range of motion then it should not be used as a valid parameter of impairment evaluation.”
Clause 6.50(e) of the Guidelines states:
“If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The Panel considered all the available clinical and radiological evidence, and notes cl 6.67 of the Guidelines permits an assessment to be completed by analogy. The Panel was of the opinion that the accident related shoulder impairment may be considered analogous to mild and inconstant acromioclavicular joint crepitation. Referring to Table 19 of the AMA 4 Guides at page 3/59 the Panel found there was a 10% impairment from joint crepitation which multiplied by 15% WPI as per Table 18 of the AMA 4 Guides at page 3/58 gives rise to a 1.5% WPI which is rounded up to 2% WPI.
PANEL FINDINGS
The Panel revokes the Certificate of Medical Assessor Raymond Wallace dated
23 September 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI which is not greater than 10%:· fracture of the left clavicle;
· cervical spine – soft tissue injury, and
left shoulder – soft tissue injury with aggravation of pre-existing degenerative changes.
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