Daley v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 243
•19 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Daley v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 243 |
| CLAIMANT: | Leanne Daley |
| INSURER: | Insurance Australia Limited t/a NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 19 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 19 June 2018; Medical Assessor (MA) Nigel Menogue determined whole person impairment (WPI) was not greater than 10%; the MA diagnosed that the injuries to the left shoulder, right elbow and left knee gave rise to a WPI of 8%; Medical Review Panel (MRP) attended an examination of the claimant and found permanent impairment of the left shoulder which equated to 3% WPI; MRP assessed WPI at 11%; Held – the Certificate of the MA was revoked, and a replacement Certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Menogue, dated 7 July 2023. 2. The Panel substitutes its determination and certifies that the injuries caused by the motor accident give rise to a whole person impairment of 11% for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
Leanne Daley was involved in a motor vehicle accident on 19 June 2018.
She alleges that she sustained a number of injuries.
NRMA has admitted that its insured driver caused the accident.
Ms Daley made a claim for compensation and a medical dispute has arisen about the degree of her whole person impairment (WPI) and this has been referred to the Personal Injury Commission (Commission) for assessment.
Medical Assessor Nigel Menogue assessed the dispute and certified on 7 July 2023, that the degree of permanent impairment as a result of the injuries caused by the accident was not greater than 10%.
Ms Daley lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 11 October 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment. The President’s delegate has convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Ms Daley’s claim and entitlements to compensation is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In accordance with the common law as modified by the MAI Act, an injured person can be awarded damages for both economic losses and damages for non-economic loss.
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13 and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded, and disputes must be referred to a Medical Assessor for determination.
Permanent impairment assessment
The degree of an injured person’s permanent impairment resulting from their injuries is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA4 Guides is relevant.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Menogue’s, further medical assessments and the review of medical assessments by this Panel.
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 a panel reviewing a decision of a medical assessor.
15.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
CAUSATION
Guidelines
With respect to causation, the MAI Guidelines provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 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 the Personal Injury Commission) in considering such issues.
6.6 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 nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(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).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd[2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam[2013] HCA 19, where Allsop P explained the tests of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
In Briggs (No. 2), Wright J set out some fundamental principles of how medical assessors are required to approach the question of causation in accordance with the guidelines (in the context of errors made by the second review panel). His Honour said, at [75] – [77]:
“This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made “a non-medical informed judgement” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
ASSESSMENT UNDER REVIEW
Medical Assessor Menogue certified that the injuries caused by the accident, gave rise to a permanent impairment of 8%, namely:
(a) left shoulder - soft tissue injury – aggravation of pre- existing AC joint disease;
(b) right elbow – soft tissue injury and,
(c) left knee – soft tissue injury.
Medical Assessor Menogue noted the injuries referred for assessment:
(a) arm - right elbow and right soft tissue injury;
(b) cervical spine - Strain/soft tissue injury to neck;
(c) left knee - soft tissue injury;
(d) low back - soft tissue injury;
(e) left shoulder - overuse due to favouring the right shoulder and arm, and
(f) right shoulder - rotator cuff tear and soft tissue injury.
Medical Assessor Menogue at [8] noted the medical history, personal history and the details of the accident.
He considered that Ms Daley had a “significant past medical history” which he summarised under the Rose Meadow Medical Centre list of musculoskeletal morbidities:
(a) 12 July 2004 – low back pain;
(b) 2005 – thoracolumbar spondylosis;
(c) 23 January 2012 – degenerative disc disease L5/S1;
(d) 2015 – left elbow lateral epicondylitis and,
(e) 2015 – fibromyalgia – bilateral supraspinatus tendinosis, pain involving elbows, hips, knees and pelvis. There was a restless leg syndrome. There was glucose intolerance (see Dr Pile report 27 March 2015).
He took a history of the prior imaging of the thoracic spine, noting multiple wedging and associated degenerative disc disease. She underwent X-ray and ultrasound of the right shoulder in September 2013. The imaging noted a degenerative right AC joint with subacromial spurring and ultrasound noted supraspinatus tendinosis without tear but associated subacromial bursitis. The ultrasound also commented on the degenerate right AC joint.
History of the motor accident
Medical Assessor Menogue took a history of the accident.
On 19 June 2018 at approximately 1.30pm, Ms Daley was seated in a pharmacy waiting to pick up medication for her husband. She told Medical Assessor Menogue that she had been to the pharmacy some minutes earlier and had picked up a number of medications. Realising that one medication was missing, she returned to the pharmacy, and was asked to take a seat whilst this medication was dispensed. While she was sitting in a chair, a car crashed through the pharmacy wall.
Ms Daley told Medical Assessor Menogue that there was debris flying around her and she recalls a shelf falling on her right shoulder. The assistant said that she should quickly move behind the counter for protection and when standing up, she became aware of acute onset left knee pain.
An ambulance attended and she was taken to Campbelltown Hospital where she was assessed, imaging taken of the right shoulder and right elbow, and following a period of observation was discharged home (driven by her daughter). She rested at home for the next day and visited her general practitioner (GP) (Dr Tran) on 21 June 2018.
History of symptoms and treatment following the motor accident
At [10], Medical Assessor Menogue noted the subsequent history.
Dr Tran noted symptoms relating to the right shoulder, right elbow/arm and left knee. She was advised to rest and continue with the pain-relieving medication that she had been prescribed for fibromyalgia.
Returning to the GP, she was referred for physiotherapy and for an ultrasound of the left knee. [Dr Tran had noted the X-ray and ultrasound of the right shoulder and elbow.]
The ultrasound of the left knee performed on 2 August 2018 queried a lateral meniscal tear. A bone scan performed on 8 August 2018, did not identify any occult injury.
As a result of the ultrasound finding, she underwent MRI of the left knee on 10 August 2018. The imaging noted degenerative changes in the patellofemoral joint and the medial compartment, which were age-related. There was no evidence of marrow oedema to suggest any acute intra-articular pathology; The menisci were intact.
Analgesia, regular GP visits and physiotherapy was the mainstay of her treatment but her symptoms failed to settle. She was referred to a surgeon (Dr Nough) whom she saw on
17 June 2019. The presenting picture was one of right shoulder discomfort, together with left knee pain.An MRI of the right shoulder on 31 May 2019 noted a degenerate right AC joint which had been previously seen on earlier right shoulder imaging. There was evidence of supraspinatus and infraspinatus tendinosis without tear. There was associated subacromial bursitis.
Following the assessment by Dr Nough, an MRI was performed of the left knee, but this identified minor degenerative changes involving the medial compartment only, which were considered to be age-related.
Conservative treatment was continued, together with steroid injections involving the right shoulder and the left knee. These were ineffective and an arthroscopy was undertaken of the right shoulder on 16 November 2019. She underwent an acromioplasty and subacromial bursectomy, together with an excision of the distal clavicle.
Subsequent reviews did not result in evidence of significant improvement.
She continued to experience shoulder pain, although an improvement in range of motion was noted.
Despite physiotherapy, her right shoulder symptoms continued and a second arthroscopy was performed on 11 December 2020, followed by excision of a subacromial ossicle.
Further steroid injections were recommended, and these provided short-term relief.
She underwent a nerve block to the right shoulder in 2022 and this provided some benefit for a longer period.
In regard to the left knee, she underwent a number of steroid injections without long-term benefit. Medical Assessor Menogue noted that she underwent X-ray of the lumbosacral spine on 4 July 2021, and this identified the pre-existing degenerative disease at L4/5 and L5/S1 and associated facets that had been referred to earlier.
No reference was made to the management of any neck disorder and no imaging was undertaken of the neck at any stage.
In July 2022, Ms Daley complained of left shoulder pain, which she considered to be an overuse, as she was not using her right arm (she is right hand dominant). An MRI was performed of the left shoulder on 1 July 2022 noting degenerative changes involving the supraspinatus and infraspinatus tendons but no evidence of rotator cuff tear. There was evidence of subacromial bursitis.
Ms Daley had been consulting with a psychologist (Ms Casey) and sees her on a weekly basis. She also has enrolled in the St Vincent’s psychological program.
She still continues to see her GP on a regular basis.
Current symptoms
At [12], Medical Assessor Menogue noted the claimant’s current symptoms.
Cervical spine – Nil symptoms.
Left shoulder – Nil symptoms, although she did complain of reduced range of movement involving the left shoulder and was fearful that if she performed arc and elevation movements involving the left shoulder, this would result in an increase in discomfort.
Right shoulder – pain – She described an intermittent ache over the greater tuberosity area, which can extend to the right supraclavicular region. She had difficulty sleeping on her right side. She denied any spread of discomfort from the neck/ shoulder region to the right upper limb. She denied any symptoms of pain or sensory change involving the left upper limb.
Right elbow – Nil symptoms – She did provide a history of aching in the right elbow if she was holding her arm still for a period of time, such as reading a book. She denied symptoms of pain or sensory changes distal to the right elbow.
Lumbar spine – pain – She described a mostly constant, left of centre, left lumbar ache that was localised but could migrate to the mid-line upper lumbar region. She denied any spread of pain or sensory changes involving the lower limbs.
Left knee – pain – She described an intermittent anterolateral and anteromedial ache involving the left knee. She told him that she had had a number of falls recently when walking and had developed right knee pain and was seeking management support for this symptom.
Medical Assessor Menogue noted there was no evidence that she sustained any right knee injury in the subject accident.
THE CLINICAL EXAMINATION
The results of the clinical examination conducted by Medical Assessor Menogue are set out in [14] General presentation, [15] Cervical spine (cervicothoracic), [16] Thoracic and lumbar spine (thoracolumbar) and relevantly, [17] Upper extremity.
Upper extremity
Medical Assessor Menogue noted on examination, the shoulders showed the bony and soft tissue contours to be equivalent with no rotator cuff or spinate muscle wasting. There was tenderness on palpating the right acromioclavicular joint when compared with the left. The following shoulder movements were obtained (goniometer verified):
Measurement RIGHT
Measurement LEFT
Flexion
100°
160°
Extesion
20°
40°
Adduction
30°
40°
Abduction
90°
140°
Internal Rotation
70°
70°
External Rotation
70°
70°
Power throughout the range was equivalent.
Medical Assessor Menogue at [18], reported his findings from the lower extremity.
Summary of relevant radiological and medical imaging and other investigations
At [21], Medical Assessor Menogue summarised the relevant radiological and medical imaging and other investigations.
As to the MRI of the right shoulder of 31 May 2019 he noted:
“MRI right shoulder – Degenerate right AC joint. Evidence of supraspinatus tendinosis without tear. Evidence of infraspinatus tendinosis without tear. There is associated subacromial bursitis.”
In respect to the MRI of the left shoulder of 1 July 2022, he noted:
“MRI left shoulder – Supraspinatus tendinosis and infraspinatus tendinosis only. No evidence of rotator cuff tear. There is evidence of subacromial bursitis.”
At [23] on Causation and reasons, Medical Assessor Menogue noted:
“In the motor vehicle accident of 19 June 2018, Ms Daley sustained an aggravation of her pre-existing right shoulder pathology, an impact injury to the right elbow, and a soft tissue injury to the left knee.
Imaging has been performed of these regions, together with GP and physiotherapy records, all indicating management of the above three regions. The evidence studied has not identified or supported a causal relationship between the subject accident and the cervical spine, left shoulder or lumbar spine.
In order for causation to be established with these regions of the body, there needs to be some evidence identifying symptoms and/or signs in that post-accident period that would justify a causal relationship to be established. No such evidence exists re these three regions.
The first imaging undertaken of the lumbar spine was on 4 July 2021 – three years post-accident. No imaging has been undertaken of the cervical spine at any stage.
No imaging has been undertaken of the left shoulder at any stage.
When one considers the above evidence, and based on today’s history and examination, I am satisfied that there is sufficient evidence to establish a causal relationship between the subject accident and the right shoulder, right elbow and left knee, but insufficient evidence to establish a causal relationship between the subject accident and the cervical spine, left shoulder and lumbar spine.”
At [24] under Diagnosis and reasons, Medical Assessor Menogue said of the right and left shoulders:
“There is no evidence of an injury involving the left shoulder. No physiotherapy has been initiated and no imaging undertaken of the left shoulder until 1 July 2022 – four years post-accident. This imaging notes age-related changes involving the rotator cuff without tear.
As causation is not established between the subject accident and the left shoulder, no diagnosis can be made.
There is evidence of discomfort and pain involving the right shoulder and this has been well documented in the body of this report. There has been early imaging undertaken of the right shoulder.
Over the ensuing post-accident period, there is sufficient evidence to establish ongoing treatment and I consider that she has sustained a soft tissue injury to the right shoulder which probably takes the form of an aggravation to the acromioclavicular joint.
Arthroscopy on two occasions has been undertaken, mostly directed towards the AC joint. No rotator cuff repair has been undertaken, as no rotator cuff injury had been diagnosed at surgery.
I therefore diagnose an aggravation to her pre-existing right degenerate acromioclavicular joint. I consider the surgery undertaken to be reasonable and necessary.”
At [25] Medical Assessor Menogue concluded that the injury to right shoulder – soft tissue injury was an aggravation of a pre-existing AC joint degenerative disease and that examination of the right shoulder utilising AMA Guides Edition Four, Figures 38, 41 and 44, would indicate that the right shoulder would attract 13% upper extremity impairment from reduced range of motion. This converted to 8% WPI.
SUBMISSIONS
Claimant’s submissions of 31 August 2023
Ms Daley submits there is an error on page 1 of the medical assessment certificate. Medical Assessor Menogue refers to the injury to left shoulder on page 1. This was inconsistent with the table on page 17 which recorded impairment to the right shoulder. There was an error in the history obtained by the Medical Assessor in making his determination of causation in relation to the left shoulder injury.
Ms Daley submits that no earlier complaints of left shoulder pain were noted by the Medical Assessor. He then went on to determine that the Ms Daley’s left shoulder injury was not causally related to the motor vehicle accident.
The conclusion arrived at by the Medical Assessor was based on an incorrect history.
Dr Nouh, the claimant’s treating specialist in his report dated 11 November 2020 to Dr Huy Tran recorded the following:“Leanne is now about one year post arthroscopic decompression on her right shoulder. Unfortunately, she is not settling down and continues to experience significant impingement pain in the subacromial region. This is now affecting her left shoulder which is causing her even more pain due to overuse. With regards to Leanne’s left shoulder it is worthwhile getting an MRI scan and organising an ultrasound guided cortisone injection into the left subacromial bursa.”
Accordingly, there was a clinical history of Ms Daley sustaining injury to her right shoulder in the motor vehicle accident on 19 June 2018, which required her to undergo surgery to her right shoulder on 16 November 2019 with significant post-surgery impingement pain and the onset of left shoulder pain in 2020 within 12 months of the surgery and not in July 2022 as the Medical Assessor recorded.
Ms Daley’s complaints of left shoulder problems were consistent with the findings on examination made by the Medical Assessor. Range of movement measurements were obtained on examination by the Medical Assessor and recorded in the table on page 9 of the medical assessment certificate. Those measurements recorded a reduction of range of movement in the left shoulder which we have correlated with the impairment tables and summarized in the Table below:
Shoulder
Measurement (degrees) LEFT
Upper Extremity Impairment
Flexion
160
1%
Extension
40
1%
Adduction
40
0%
Abduction
140
2%
Internal Rotation
70
1%
External Rotation
70
0%
Total UEI
5% UEI
Total WPI
3% UEI
Ms Daley submits the 3% WPI for the left shoulder combined with the 8% WPI for the right shoulder give rise to an assessment of 11% WPI.
Insurer’s submissions in reply of 21 September 2023
The Review Panel summarises the insurer’s submissions by reference to paragraph number:
[4.1] The claimant submits that the Medical Assessor refers to an aggravation of pre-existing AC joint disease of the left shoulder in his conclusion on page 1 of the Certificate which is inconsistent with the impairment table on page 17 of the Certificate which refers to the right shoulder being assessed at 8% WPI.
[4.2] It is submitted by the claimant that the Medical Assessor erred in obtaining the claimant’s medical history in relation to the left shoulder. On page 6 of the Certificate, the Assessor noted that the claimant complained of left shoulder pain in July 2022 as a result of overcompensating for her right arm. The claimant submitted ‘the onset of left shoulder pain [was] in 2020 within 12 months of the surgery and not in July 2022 as the Medical Assessor recorded.’
[4.3] The claimant relies on the treating report of Dr Nouh dated 11 November 2020. While Dr Nough refers to overuse of the left arm, Dr Nough also reported that the claimant was improving from a shoulder point of view, although the claimant’s (unrelated) background of fibromyalgia caused generalised muscle pain around the shoulder.
[4.4] Dr Dryson was qualified by the claimant and in his report of 25 May 2021 stated: ‘No information is available in relation to any pathology in the left shoulder but loss of range of movement on the left does appear to be more marked than what would be expected for Ms Daley’s age. It may well be that there is an unrelated injury or disease condition in the left shoulder, in which case no deduction would be made from the assessment of the right shoulder.’
[4.5] Although Dr Dryson referred briefly to the claimant’s pre-existing fibromyalgia in the initial report dated 25 May 2021, the impact on the claimant - and whether fibromyalgia was the underlying cause of the claimant’s complaints was not properly explored or explored at all. In any event, Dr Dryson essentially conceded that the left shoulder issues could be unrelated to the accident.
[4.6] The insurer, in its Internal Review Certificate dated 16 December 2021, advised the claimant that the decision dated 11 November 2020 to decline the request for left shoulder MRI and injection was affirmed. This was on the basis that the claimant had pre-existing left shoulder symptoms including fibromyalgia and tendinosis/rotator cuff strain and Dr Dryson’s opinion that the left shoulder was not a current complaint/symptom and was not causally related to the subject accident.
[4.7] This is consistent with Dr Keller’s opinion in report dated 14 December 2021.
[4.8] The insurer disputes the claimant’s submission that there is a clinical history of left shoulder injury sustained in the subject accident which is capable of attracting 3% WPI and combined with 8% for the right shoulder, gives rise to an assessment of 11%.
[4.9] The insurer further submits that the findings were available to the Medical Assessor on the evidence before them and the Medical Assessor provider a clear path of reasoning for coming to their decision.
OTHER MEDICAL EVIDENCE
Rosemeadow Medical Centre notes GPs
The GP entry notes symptoms relating to the right shoulder and elbow and left knee. These initial entries make no reference to symptoms relating to the cervical spine, lumbar spine or left shoulder.
On 22 August 2011 Dr Huy Tran noted that Ms Daley was experiencing:
“Right shoulder pain
Relieved by treatment in the past – treatment stable with no complications in the past”
On 25 August 2014 Dr Huy Tran saw Ms Daley again and noted:
“c/o R shoulder pain on and off few times/ month, sometimes need sling few days”
On 21 June 2018 Dr Huy Tran noted:
“Reason for visit
MVA
right elbow and shoulder injury
Examination
Tenderness at lateral shoulder, limited extension to 10-degree, abduction 45 degree and flexion 100 degree”
On 15 May 2019 Dr Huy Tan examined Ms Daley and commented:
“Right shoulder symptoms &signs unchanged – pain, tenderness, muscles spams, decreased range of movements persists”.
On 6 November 2020, the GP noted that:
“MVA 19/6/18
Right shoulder arthroscopy in the past but pain worsened.
Left shoulder pain due to overuse compensating for right”
The right shoulder MRI report dated 31 May 2019
The report by Dr Stephen Morris noted:
“1. Mild supraspinatus and infraspinatus tendinosis. No tendon tear
2. Acromioclavicular osteoarthritis with hypertrophy encroaches into the subacromial space. Mild subacromial/subdeltoid bursitis.”
The right shoulder MRI report dated 9 July 2020
The MRI report documented:
“Findings: The post-surgical changes at the acromioclavicular joint.(ACJ) with decompression/ excision of the lateral portion of the clavicle demonstrates satisfactory appearances. There is a small volume of fluid and adipose tissue at the ACJ. No inflammatory changes are seen. The post-surgical changes following the subacromial decompression also shows satisfactory appearances…”
Report of Dr Nough, orthopaedic surgeon
On 9 September 2019, Dr Nough examined Ms Daley and documented:
“Leanne returned to see me today with ongoing pain in her right shoulder, despite physiotherapy and two cortisone injections. The first injection did improve her pain for a few days, but the pain then recurred more severely, due to the fact that she was using her shoulder more. The second injection did not help.
Leanne’s MRI scan does show hypertrophic arthritis of the AC joint with encroaching osteophytes and subacromial bursitis, but no cuff tear… For her right shoulder, she may end up needing an arthroscopy and decompression on her shoulder.”
The report from Dr Nough dated 11 November 2020, noted Ms Daley was one year post arthroscopic subacromial decompression of the right shoulder with the recent complaints of left shoulder pain due to overuse. A repeat arthroscopy and debridement of the right shoulder was recommended.
On 3 March 2021, Dr Nough commented that Ms Daley was three months post repair arthroscopy of the right shoulder and excision of exostosis. He noted she had continued to improve from a shoulder point of view, however due to her background of Fibromyalgia, she continued to have generalised muscle pain around the shoulder.
Reports of Jessica Jackowski, physiotherapist
Ms Daley received treatment form Ms Jackowski who noted on 24 May 2021:
“Leanne is currently receiving treatment for the lower back, left knee, and right shoulder. Over the last several weeks, Leanne has reported little improvement with regard to her pain and functional capacity… Leanne also reports ongoing difficulty performing her physiotherapy home exercise program secondary to pain and reduced tolerance for physical exertion.”
On 19 July 2021, Ms Jackowski noted Ms Daley experienced fluctuations in the severity of her symptoms throughout the week and at times “almost bed- bound due to the back and/ or knee pain”.
Dr Andrew Keller, occupational physician, medicolegal report
On 14 December 2021, Dr Keller provided a report after examining Ms Daley. He provided an assessment of WPI in accordance with the AMA4 guides and the Motor Accident Guidelines for the assessment of permanent impairment:
“In my opinion, the only evidence for injury relating to the subject event is right shoulder pain. Although it is clear that she has had right shoulder arthroscopy and acromioplasty with surgery possible on two occasions and that this is causing her pain and restriction of motion, it is my opinion that this relates to degenerative changes that pre-date the accident and not to any lasting effect from the accident. I have no objective evidence of lasting injuries to the right shoulder that lead to assessable impairments to date. I would deduct 100% of all restriction of motion in the right shoulder to her prior and constitutional conditions. It is not clear to me that there is evidence to support any other diagnoses, disabilities or impairments attributable to the subject accident.”
RE- EXAMINATION BY THE REVIEW PANEL
Medical Assessor Drew Dixon and Medical Assessor Michael Couch re- examined the claimant on Friday 15 March 2024 via Teams.
History of the accident
The medical examiners took a consistent history of how the accident happened.
Ms Daley had gone back into a pharmacy to obtain a prescription for her husband and while sitting in the pharmacy, a vehicle crashed through the pharmacy wall, and shelving fell onto her right shoulder.
She sustained injuries to the right shoulder, right elbow and left knee. When she stood up, she became aware of acute knee pain.
An ambulance took her to Campbelltown Hospital where she had imaging of her right shoulder and elbow and then was discharged home, being driven by her daughter.
The medical examiners took a history of subsequent medical treatment and investigations.
She saw her GP, Dr Tran, on 21 June 2018, two days after the accident and was referred for X-rays and ultrasound of the right shoulder, right elbow and left knee and referred for physiotherapy.
She subsequently had an MRI of the left knee which showed degenerative changes in the patellofemoral joint and medial compartment, and she was prescribed analgesia and anti-inflammatories.
Ms Daley did have a background of fibromyalgia for which she had taken anti-inflammatories over the years and had rheumatology review. More recently, while taking anti-inflammatories, she had had reflux, and these had to be ceased and she required medication for it.
The medical examiners noted that Ms Daley’s GP referred her to an orthopaedic surgeon
Dr Nough, who reviewed her on 17 June 2019 with complaints of pain in her right shoulder and left knee pain.An MRI of the right shoulder in May 2019 showed degenerative changes in the AC joint and supraspinatus and infraspinatus tendonosis without tear and subacromial bursitis.
Ms Daley subsequently had a steroid injection to the right shoulder and left knee where she had degenerative changes in the patellofemoral joint and medial compartment on MRI.
On 16 November 2019, Ms Daley had arthroscopic acromioplasty to her right shoulder together with excision of the distal clavicle. Post-operatively, although her course was uneventful, there was no significant improvement and she continued to have shoulder pain, despite physiotherapy and a second arthroscopic procedure was performed on
11 December 2020 with excision of a subacromial ossicle.Ms Daley had further cortisone injections which did not provide sustained relief. A nerve block to the right shoulder in 2022 did not provide sustained benefit. She had a further steroid injection to her left knee.
She reported that during the convalescent period, the fibromyalgia with back pain flared up which she attributed to her altered gait due to knee pain and she had X-rays arranged of the lumbosacral spine which showed degenerative disc disease at L4/5 and L5/S1.
She reported any neck pain she had at the time had settled. She has had no imaging for it.
Medical examination
On review by Microsoft Teams with Medical Assessor Couch and Medical Assessor Dixon, the claimant presented in a straightforward manner. There was no embellishment.
Ms Daley reported pain and stiffness in her right shoulder with difficulty elevating the arm above shoulder height and because of this, she had been favouring her left shoulder with pain and stiffness. It was felt that because of the severe nature of the injury to the shoulder and because of the arthroscopic surgery with acromioplasty and subsequent excision of the subacromial ossicle without sustained benefit, that she had to favour this right shoulder, leading to overuse of the left shoulder with pain and stiffness.
She reported her right elbow had settled. She reported she had residual pain in the lumbar spine in the midline with some back ache on the left but no radicular complaint.
She complained of ongoing pain in her left knee with anteromedial and anterolateral pain. She reports she had a number of falls with her knee giving way. She had night pain in the left knee and morning stiffness and some difficulty weight bearing and difficulty using steps and a rail has been installed at her house with four steps and she was unable to squat or kneel. She was not aware of audible retropatellar crepitus or locking of her knee.
Medical Assessor Menogue noted in the certificate dated 7 July 2023, having assessed the claimant on 22 June 2023, that there were no symptoms in her neck or right elbow but there was pain in her right shoulder and reduced range of motion of her left shoulder and some pain in her lower back as well as the anterior pain at her left knee. His findings were that there was no dysmetria of the cervical spine and no neurological deficit of the upper extremities.
In the thoracolumbar spine, Medical Assessor Menogue had not found dysmetria, the sciatic nerve root stretch test was negative and there was no neurological deficit in either lower extremity. With the shoulders, he found moderate stiffness of the right shoulder and mild stiffness of the left shoulder. He felt the arthroscopic portals at her right shoulder were well healed and not distinguishable and there were no rateable features when assessed using the TEMSKI Table.
Medical Assessor Menogue had found a full range of motion of her right elbow, and he had found satisfactory range of motion of her left knee, 0 degrees through to 120 degrees and on the right knee, 0 degrees to 140 degrees and no associated retropatellar crepitus. He found no ligamentous instability.
The examiners enquired of Ms Daley as to whether there were there any other matters she wished to discuss and she volunteered that prior to the subject accident she had received long standing treatment for fibromyalgia with anti-inflammatories and rheumatology review. She reported a history of restless leg syndrome and that she was aware of low back pain which, in the certificate, was noted as far back as 2004 and thoracolumbar spondylosis diagnosed in 2005 and degenerative disc disease in 2012 and fibromyalgia in 2015 with bilateral supraspinatus tendonosis and pain involving the elbows, hips, knees and pelvis and a glucose intolerance. She had been taking Metformin for this.
Her current medications included Panadeine Forte eight times a day and Panadol four times a day and Tramal 50mg twice a day. Her Mobic has been stopped. She was taking medication for reflux. She now does take Lyrica (Pregabalin) for fibromyalgia.
Ms Daley volunteered that she was the carer for her husband and did all the household chores and personal care that he required before the subject accident and although she had fibromyalgia and took medication, she was quite active and did all her household chores. Nowadays, she requires the assistance of her daughter, particularly for lifting and carrying heavy groceries, doing heavy household cleaning and hanging the clothes, which she was not able to do able to the garden, and her son-in-law does the yard work.
Consideration given by the Review Panel to the submissions
At the first MRP meeting, the Review Panel resolved it would be necessary to conduct a medical examination in order to address the parties’ submissions regarding causation according to s 6.5 of the Guidelines.
Causation
Ms Daley submitted there was an error in the history obtained by Medical Assessor Menogue in making his determination of causation in relation to the left shoulder injury.
Ms Daley submitted that there was a clinical history of the claimant sustaining injury to her right shoulder in the motor vehicle accident on 19 June 2018, which required her to undergo surgery to her right shoulder on 16 November 2019 with significant post-surgery impingement pain and the onset of left shoulder pain in 2020 within 12 months of the surgery.
On examination via Teams, Ms Daley reported to the Medical Assessors she was experiencing pain and stiffness in her right shoulder with difficulty elevating the arm above shoulder height and because of this, she had been favouring her left shoulder with pain and stiffness. It was felt that because of the severe nature of the injury to the shoulder that she had to favour this right shoulder, leading to overuse of the left shoulder with pain and stiffness.
On 21 September 2023, the insurer issued submissions in reply, disputing the claimant’s submission that there was a clinical history of left shoulder injury sustained in the subject accident.
In paragraph [4.5] of the submissions, the insurer submitted that “Dr Dryson essentially conceded that the left shoulder issues could be unrelated to the accident.”
The insurer relies on the report of Dr Dryson of 25 May 2021 who commented:
“No information is available in relation to any pathology in the left shoulder but loss of range of movement on the left does appear to be more marked than what would be expected for Ms Daley’s age. It may well be that there is an unrelated injury or disease condition in the left shoulder…”
Taking into consideration both parties’ submissions, the Panel accepted the mild stiffness of Ms Daley’s left shoulder was a consequential injury following her severe right shoulder injury and two arthroscopic operations without sustained benefit, leading to her favouring her right shoulder and overusing her left shoulder.
Conclusions reached by the Medical Review Panel
The Medical Review Panel concluded on the basis of the medical examination, that
Ms Daley’s impairment was as follows:(a) that for the post-traumatic stiffness of the right shoulder and milder post traumatic stiffness of the left shoulder that the Medical Assessor found, had been accepted by the Panel;
(b) that for the right shoulder was 13% upper extremity impairment which equates to 8% WPI, and
(c) that for the mild stiffness of her left shoulder was 5% upper extremity impairment which equates to 3% WPI.
This gave a total from the Combined Values Chart of 11% WPI. There was no deductible component.
That for her cervical spine she reported no symptoms on examination, as found by the Medical Assessor at DRE category I, was confirmed.
There was no assessable impairment for her lower back as this was not reported until some 12 months after the accident where she has a longstanding history of back pain, and the Panel felt her low back pain was not causally related to the injuries received in the subject motor vehicle accident. Medical Assessor Menogue found a soft tissue injury to the lumbar spine.
Medical Assessor Menogue also found a soft tissue injury to the left knee, with a satisfactory range of motion and no retro-patellar crepitus, with no assessable impairment. The Panel concurs with his findings of a soft tissue injury. The injury to the lumbar spine was pre-existing.
This gave a final impairment of 11% WPI for the right and left shoulders and no assessable impairment for the right elbow or left knee.
Determination
The Review Panel revokes the certificate of Medical Assessor Menogue, dated 7 July 2023.
The Panel substitutes its determination and certifies that the injuries caused by the motor accident give rise to a WPI of 11% for the purposes of the MAI Act.
0
2
0