Dayan v Allianz Australia Insurance Limited
[2023] NSWPICMP 292
•30 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dayan v Allianz Australia Insurance Limited [2023] NSWPICMP 292 |
| CLAIMANT: | Hammad Dayan |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | John Hugh O’Neill |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 30 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 28 September 2018; the dispute related to the assessment of whole person impairment (WPI) under; review of certificate of Medical Assessor Cameron who assessed 0% WPI; injury to ribs-fracture; head injury; cervical spine; thoracic spine; lumbar spine; right shoulder; left shoulder; left elbow; right knee; left knee; left ankle; treatment dispute re physiotherapy and hydrotherapy; Held – even if head injury sustained it has resolved; no impairment of cognitive function; no abnormal Glasgow Coma Score, no post-traumatic amnesia and no brain imaging abnormality; claimant sustained soft tissue injury to cervical spine, cervical spine; thoracic spine; lumbar spine; right shoulder; left shoulder; left elbow; right knee; left knee; left ankle; all musculoskeletal injuries assessed at 0% WPI; claimant had made good progress with recovery; whilst the claimant remained symptomatic in part, he had regained functional mobility and ongoing passive treatment unlikely to be of benefit; hydrotherapy and physiotherapy related to the injury caused by the accident but not reasonable or necessary in the circumstances. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Certificate of Medical Assessor Ian Cameron dated · ribs – fracture (resolved); · head injury (resolved); · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury; · lumbar spine – soft tissue injury; · right shoulder – soft tissue injury; · left shoulder – soft tissue injury; · left elbow – soft tissue injury; · right knee – soft tissue injury; · left knee – soft tissue injury, and · left ankle – soft tissue injury. ASSESSMENT OF TREATMENT AND CARE The Review Panel affirms the certificate of Medical Assessor Ian Cameron dated |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 28 September 2018 Mr Hamad Dayan (the claimant) was a front seat passenger in a vehicle travelling along Punchbowl Road, Lakemba when the insured vehicle collided with the rear of his vehicle causing it to lose control and spin before slamming into a stationery utility parked on the side of the road (the accident). The claimant knocked his head and asserts he lost consciousness. He had to be cut out of the vehicle and was transported by ambulance to St George Hospital.
Mr Dayan asserts he sustained the following injuries in the accident:
(a) closed head injury;
(b) injury to the ears (TMJ (temporomandibular joint) injury with hearing involvement);
(c) injury to the left ribs;
(d) injury to the cervical spine;
(e) injury to the thoracic spine;
(f) injury to the lumbar spine;
(g) injury to the left elbow;
(h) injury to both knees;
(i) injury to the left ankle;
(j) injury to the nose, and
(k) psychological sequalae.
Mr Dayan has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Dayan under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
A dispute has arisen as to whether the degree of permanent impairment sustained by Mr Dayan as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2(a) of the MAI Act.
A dispute has also arisen pursuant to the provisions of s 3.24 of the MAI Act as to whether the following treatment:
·hydrotherapy program (initial assessment and report) with exercise physiologist Jennifer Chan dated 24 October 2019, and
·a request for physiotherapy per Allied health recovery request (AHRR) request no. 12 dated 18 March 2021;
relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2(b) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment and treatment was referred to Medical Assessor Ian Cameron. He issued a certificate dated 25 August 2022.
Mr Dayan has sought a review of the medical assessment of Medical Assessor Cameron.
CERTIFICATE OF MEDICAL ASSESSOR CAMERON
The following injuries were referred to Medical Assessor Cameron for assessment:
· head – closed head injury;
· ribs – fracture;
· cervical spine – musculo-ligamentous strains with discogenic pathologies and disc injury;
· thoracic spine – musculo-ligamentous strains;
· lumbar spine – musculo-ligamentous strains with discogenic pathologies;
· elbow - soft tissue injury;
· left knee - joint injury, left lateral meniscus tear;
· right knee - joint injury, left lateral meniscus tear, and
· left ankle – ligament tear.
The following treatment disputes were referred to Medical Assessor Cameron for assessment:
· whether the hydrotherapy program (initial assessment and report) with exercise physiologist Jennifer Chan dated 24 October 2019 relates to the injury caused by the motor accident;
· whether the hydrotherapy program (initial assessment and report) with exercise physiologist Jennifer Chan dated 24 October 2019 is reasonable and necessary in the circumstances;
· whether the request for further physiotherapy per AHRR request no.12 dated 18 March 2021 relates to the injury caused by the motor accident,and
· whether the request for further physiotherapy per AHRR request no.12 dated 18 March 2021 is reasonable and necessary in the circumstances.
Medical Assessor Cameron found the requests for treatment relate to therapies following the accident. He found the treatment was causally related to the accident because there would have been no request for the therapies proposed if the accident had not occurred.
However, he concluded there was no justification for hydrotherapy 11 months after the accident and that it would not be consistent with the Clinical Framework for Provision of Health Services.
Medical Assessor Cameron also noted there had been extensive physiotherapy and that further physiotherapy would not be consistent with the Clinical Framework for Provision of Health Services.
Medical Assessor Cameron concluded the proposed treatment did relate to the injuries caused by the accident but found it was not reasonable and necessary in the circumstances.
In relation to permanent impairment Medical Assessor Cameron found there was no evidence of a “closed head injury” and nor was there any evidence of any specific disc injury. He concluded the claimant had sustained a soft tissue injury to the head, cervical spine, thoracic spine, lumbar spine, left elbow, left knee, right knee and left ankle. He also found soft tissue injury and possible fracture of the ribs.
Medical Assessor Cameron assessed a 0% whole person impairment (WPI).
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Cameron was lodged on 19 September 2022 within 28 days of the date on which the Certificate of Medical Assessor Cameron was made available to the parties.[2]
[2] Section 7.26(1)(b) of the MAI Act.
On 25 October 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[3]
[3] Section 7.26 of the MAI Act, AD2 p 6.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
1 March 2021, the new review provisions apply.The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission). [4] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[4] Section 7.26(5A) of the MAI Act.
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.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
On 29 March 2023 the Panel agreed an examination was necessary in respect of the musculoskeletal injuries. In relation to the closed head injury the Panel issued a report to the parties dated 31 March 2023 indicating the Panel did not consider a re-examination of the closed head injury was required because:
(a) the ambulance report states:
“…front passenger of car that was ?rear ended by truck? causing car to hit parked car,… observed to have large damage to rear of vehicle. Pt states he was wearing seat belt, nil airbag deployment, … Pt denies LOC, denies headstrike. …”;
(b) the Glasgow Coma Score (GCS) at the scene was 15 on the four occasions it was assessed;
(c) Mr Dayan was taken to St George Hospital where it was noted “no haematoma, lumps or bumps over head”. The GCS was 15. A precautionary CT brain scan was normal;
(d) at the initial consultation with Dr Lieng on 17 October 2018 there were non-specific symptoms of “fuzzy in head – can’t think clearly; slow to respond; poor sleep/nightmares” together with other physical complaints unrelated to the head;
(e) for impairment of cognitive function to arise from a head injury, the Motor Accident Guidelines (the Guidelines) state the head injury should be associated with one or more significant medically verified abnormalities such as an abnormal post-injury GCS, post-traumatic amnesia or brain imaging abnormality, and
(f) a medical examination over four years post-accident will not assist the Panel in assessing permanent impairment of a closed head injury.
Both parties agreed to the Panel proceeding to determine the WPI dispute in respect of the closed head injury without re-examination.
RELEVANT LEGAL AUTHORITY
Permanent impairment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Guidelines.
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (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.[7]
[7] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“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 non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Treatment
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1)An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a) The reasonable cost of treatment and care,
(b) Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c) If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2)No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Clause 4.79 of the Guidelines provides that:
“People respond differently after a motor accident injury. The insurer must manage claims in a manner that is tailored to the claimant’s individual circumstances and needs, providing support based on best practice and a commitment to early and appropriate treatment and care.”
Clause 4.80 of the Guidelines sets out the principles of the nationally endorsed Clinical Framework for the Delivery of Health Services that the insurer must adhere to in approving treatment and care:
(a) measure and demonstrate the effectiveness of the treatment;
(b) adopt a biopsychological approach consider the whole person and their individual circumstances;
(c) empower the injured person to manage their recovery;
(d) implement goals focused on optimising function, participation and return to work or other activities, and
(e) base treatment on the best available research evidence.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 20 December 2022 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents marked AD1 paginated from pages 1 to 536. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD2 paginated from pages 1 to 630.
Application for personal injury benefits
In the Application for personal injury benefits dated 18 October 2018 the claimant listed injuries to the neck, back, right and left shoulders, right and left leg, to both knees, to both feet, to the jaw/mouth, to right hearing and psychological injury. [8]
[8] AD2 p 24.
Treating medical evidence
Ambulance report[9]
[9] AD2 p 33.
The case description is as follows:
“O/A 23 YOM , front passenger of car that was ?rear ended by truck? causing car to hit parked car,… observed to have large damage to rear of vehicle. Pt states he was wearing seat belt, nil airbag deployment, … Pt denies LOC, denies headstrike. …Firies required to cut car doors off for extrication. Pt c/o pain to C-spine and L) lateral neck, L) lumbar, L) shoulder, L) foot and R) tibia. …”
St George Hospital[10]
[10] AD1 p 244.
The hospital notes state:
“23M Passenger approx. 60km/hr – truck rear ended causing car to hit parked car and spin around
On way to McDonalds for meal
Cannot remember incident properly, had brief LOC
Memory when woke up, glasses missing
Being cut out of seat”
The claimant underwent a CT of the brain, cervical, thoracic and lumbar spine, an
X-ray of the left ankle, an X-ray of the left shoulder/scapula, an X-ray of the right knee and tibia, an X-ray of the left foot, and a chest X-Ray with no fracture or abnormality noted. A diagnosis of soft tissue injuries was made with the following symptoms recorded:“Midline + left sided neck pain
Mid thoracic vertebral pain
Left shoulder pain
Left foot/ankle pain
Right knee/leg pain
Left chest wall pain/sternal pain.”
The claimant was discharged the following day with Paracetamol, Ibuprofen, Targin and Endone and advised to see a physiotherapist if pain persisted for more than one week.
On 17 October 2018 Mr Dayan consulted Dr Tom Lieng, general practitioner (GP) when he reported the accident on 28 September 2018.[11] He reported the trauma assessment included a CT of the brain which showed no bleed and X-rays of the cervical spine, the left shoulder/scapula, the right knee/leg and the left foot, none of which disclosed fracture.
[11] AD1 p 22.
Dr Lieng reported the claimant was complaining of a sore neck, sore shoulders, sore mid and lower back, sore ribs, sore knees, sore left ankle, sore left elbow, difficulty hearing in the right ear, right jaw subluxation, a fuzziness in the head, poor sleep and nightmares. He recommended rest, analgesia and physiotherapy.
On 17 October 2018 the claimant commenced physiotherapy with Complete Allied Health care in respect of his cervical spine, thoracic spine, lumbar spine, bilateral knees, bilateral shoulders, left ankle and left elbow.[12] Various progress reports were issued and on 6 February 2020 it was noted the claimant was attending weekly with treatment consisting of combined manual exercise and exercise based therapy approaches.
[12] AD1 p 181.
On 24 October 2018 Dr Lieng reported the TMJ showed no fracture, the X-ray of the ribs showed no fracture, and the knee was still subluxing on walking and standing.
Mr Dayan complained of poor sleep, mood changes and fear of traffic. He was referred to Ada Wong, counsellor.On 7 November 2018 Dr Lieng reported the TMJ was still sore, and he had ongoing pain in the shins and knees.
On 5 December 2018 Dr Lieng reported the left shoulder was still symptomatic and referred Mr Dayan for an MRI. On 6 December 2018 Dr Lieng reported pain in the right “trap” muscle area, the right lower back, the right knee, and the right jaw. On
24 December 2018 Dr Lieng reported ongoing neck, thoracic and lumbar pain with radicular pain in the left arm and legs.On 15 January 2019 Dr Lieng reported the MRI of the left shoulder showed bursitis and tendinosis, but no tear. He noted pain on abduction. On 6 February 2018 Dr Lieng reported ongoing pain. He certified the claimant fit to work six hours per week. The claimant apparently returned to work at McDonalds working five hours per week. On 23 April 2019 Dr Lieng reported the claimant had been able to upgrade work to 10 hours per week.[13]
[13] AD2 p 197.
On 21 May 2019 Dr Lieng noted the MRI of the left knee showed a displaced lateral meniscal tear. He referred the claimant to Dr Herald.
The claimant saw Dr Jonathan Herald on 3 June 2019.[14] He reported the claimant was still suffering with jaw clicking and hearing loss. He reported the left rib fractures had recovered, the neck and back injury were recovering, and the left elbow injury had resolved. He diagnosed a bucket handle lateral meniscal tear and a right knee possible meniscal tear.
[14] AD1 p 49.
On 18 June 2019 the claimant was certified fit to work 10 hours per week.
The claimant underwent a left knee arthroscopy and a lateral meniscal repair on
25 July 2019.[15] Because of difficulty coping on his return home the claimant was admitted to Alwyn Rehabilitation Hospital from 1 August 2019 to 15 August 2019.[16][15] AD1 p 76, 266.
[16] AD2 p 112.
Dr Herald subsequently noted slow healing and ongoing restrictions in the knee. The claimant was certified unfit for employment and various certificates of capacity/certificates of fitness issued thereafter suggest the claimant has continued to be certified unfit for work since 25 July 2019.
On 13 August 2019 psychologist Peter Mangioni noted the claimant required intensive psychological treatment for pain management and post-traumatic stress symptoms.[17]
[17] AD2 p 185.
On 31 October 2019 Dr Andrew Leaver completed a stage 3 independent physiotherapy assessment.[18] He reported Mr Dayan said he experienced persistent left knee pain, swelling and weakness. He also complained of left shoulder pain, mild intermittent right shoulder pain, pain affecting his right jaw, pain in the neck and headaches. He also reported right-sided lower back pain without referral to the buttocks or lower limbs. He reported Mr Dayan had completed his degree in information technology but had not worked since his earlier knee surgery. Dr Leaver recommended further physiotherapy treatment for residual left knee pain and for other regional pain complaints including the right jaw, neck, left shoulder and lower back.
[18] AD2 p 63.
On 24 October 2019 Jennifer Chen of Compete Allied Health Care issued a Hydrotherapy Program Request for an initial assessment and report.[19] The injured areas were described as cervical spine, bilateral shoulders, thoraco-lumbar spine, left elbow, bilateral knees (left knee three months post arthroscopy – meniscus repair), left ankle and right jaw.
[19] AD2 p 475.
On 11 November 2019 the insurer declined to approve a hydrotherapy program (initial assessment and report) requested by exercise physiologist Jennifer Chen on
24 October 2019.[20] On 4 November 2019 Dr Leaver advised concurrent physiotherapy and hydrotherapy was not recommended as it was an unnecessary duplication.[20] AD2 p 472.
On 18 February 2020 the insurer approved a TENS portable unit.
Jennifer Chen, exercise physiologist of Complete Allied Health Care issued an AHRR number 1 dated 19 February 2020.[21] She stated Mr Dayan reported a constant sharp/throbbing pain in the lower back and in the left shoulder, bilateral knee pain and pain in the elbow. She sought approval for exercise physiology twice a week with a review after eight sessions.
[21] AD2 p 312.
On 23 March 2020 Dr Herald reported on examination the claimant had an effusion in his knee and tenderness over the lateral joint line. He noted the MRI scans showed that the lateral meniscal tear had completely failed and disrupted in the joint.
An AHRR completed by Flora Truong, psychologist noted a diagnosis of “post-traumatic stress disorder”.
The claimant underwent left knee arthroscopic surgery and a lateral meniscal repair by Dr Herald on 14 May 2020.
On 1 June 2020 Dr Herald reported the wounds had healed well and the claimant was mobilising on crutches. The same day the insurer approved eight sessions of physiotherapy for treatment to the left knee.[22] On 6 July 2020 Dr Herald reported on examination the claimant had a full range of motion of his knee and mild effusion.
[22] AD1 p 145.
On 1 October 2020 the insurer approved four fortnightly physiotherapy sessions.
Sam Yeom, physiotherapist of Complete Allied Health Care provided a progress report dated 8 October 2020.[23] The claimant had been attending weekly and he reported slow and gradual functional and symptomatic progress. He reported moderate to severe bilateral knee symptoms with clicking and instability, left shoulder symptoms, cervical, thoracic and lumbar spine pain. He recommended continued fortnightly physiotherapy sessions focusing on the left knee.
[23] AD1 p 121.
On 17 November 2020 Dr Andrew Leaver completed a stage 3 independent physiotherapy assessment.[24] He reported mild intermittent pain and swelling affecting the left knee. He also had persisting but intermittent right knee pain but was reluctant to pursue surgery. He still experienced clicking and locking of the jaw. His neck pain had mostly resolved, and his lower back symptoms had resolved. He reported residual clicking in his left shoulder and an inability to lift overhead.
[24] AD2 p 72.
Mr Leaver reported:
“Mr Dayan reported that he has made very good progress with his recovery over the past 12 months. He reported residual symptoms that are mostly mild and intermittent and reported that he is able to perform most activities of daily living. … Mr Dayan has an established daily exercise and activity program.
Appropriate injury management at this stage would involve reassurance, identification of a social and recreational activity goal, encouragement to continue job seeking and sensibly paced functional activity program. He might benefit from further assistance from his psychologist and vocational rehabilitation provider with these activities. It would be reasonable to seek further advice from his physiotherapist regarding pacing this program. Up to 5 additional treatments sessions over the next six months should be sufficient for this purpose. Ongoing regular physiotherapy appointments, and ongoing provision of passive treatments are not reasonable and necessary. Mr Dayan already has an established exercise and activity program and further instruction and close supervision is not required. Passive treatments will not provide lasting benefit in terms of symptoms or function and are therefore low value care. Continuation of regular physiotherapy appointments is likely to be counter-productive in terms of encouraging dependence and a ‘sick-role’. Physiotherapy treatment requested in AHRR 10, 24/9/2020 in my opinion is therefore not reasonable and necessary.”
Complete Allied Health Care in an AHRR No 11 dated 30 November 2020 sought approval for a further eight sessions to focus on post-op rehabilitation and improving right knee condition in light of increased symptoms due to compensation.[25]
[25] AD1 p 114.
On 22 December 2020 Flora Truong reported Mr Dayan had been progressing well but his mood had deteriorated, and he had become severely depressed.
On 2 March 2021 Dr Lieng provided a referral to Complete Allied Health Care for physiotherapy.[26] The referral states:
“Thank you for seeing Mr Hammad Dayan for physiotherapy. He currently receives treatment for his knees. He reported ongoing pain in the spine (cervical/thoracic/lumbar) and would benefit from treatment.”
[26] AD1 p 112.
AHRR No 12 dated 18 March 2021 completed by Ng Sheung Hang of Complete Allied Health Care sought approval for a further eight physiotherapy sessions at a frequency of every one to two weeks.[27]
[27] AD1 p 104.
Imaging
CT scan 3 regions, 28 September 2018[28]
No fractures seen within the thoracic lumbar or visualised sacral spine.
[28] AD1 p 246.
CT scan of the brain, 28 September 2018
There is no intra or extra-axial haemorrhage. The ventricles and subarachnoid spaces are normal. Grey-white matter differentiation is preserved. No mass effect or herniation syndrome. The visualised calvarium, paranasal sinuses and mastoid air cells are normal.
X-ray left ankle, 28 September 2018[29]
No fractures have been demonstrated. The bony alignments are normal. There is no significant soft tissue swelling.
[29] AD1 p 247.
X-ray left shoulder/scapula, 28 September 2018[30]
There are no fractures within the left shoulder girdle. The bony alignments are normal.
[30] AD1 p 247.
X-ray right knee and tibia – fibula, 28 September 2018[31]
There are no fractures. The bony alignments are normal. There is no joint or suprapatellar effusion.
[31] AD1 p 248.
X-ray left foot, 28 September 2018.[32]
The bones are in anatomical alignment and no fracture or subluxation is demonstrated. There is no focal soft tissue swelling.
[32] AD1 p 248.
X-ray of the left ribs, 23 October 2018. [33]
No rib fracture.
[33] AD1 p 31.
Left shoulder ultrasound, 22 November 2018.[34]
Mild changes of supraspinatus tendinosis, without evidence of tear. Mild subacromial/subdeltoid bursitis.
[34] AD1 p 232.
Right knee ultrasound, 22 November 2018.[35]
Normal right knee ultrasound.
[35] AD1 p 232.
Temporomandibular joint X-ray, 22 November 2018.
Normal bilateral TMJ X-rays.
MRI of the left shoulder, 14 December 2018. [36]
Moderate subacromial/subdeltoid bursitis. Mild tendinosis supraspinatus without rotator cuff tear. No intra-articular glenohumeral joint pathology demonstrated.
[36] AD1 p 29.
MRI of the thoracic spine, 26 March 2019[37]
Normal study.
[37] AD2 p 79.
MRI of the cervical spine, 27 March 2019[38]
C5/C6 dehydration noted.
Given the single level of abnormality as an isolated finding on the background of Mr Dayan’s being 23 years of age, this increases the likelihood of this being traumatic in aetiology.
[38] AD2 p 80.
MRI of the lumbar spine, 27 March 2019.[39]
MRI of the lumbar spine demonstrates no fracture or disc protrusion. I do note mild arthropathy bilaterally at L5/S1. This would be longstanding and the arthropathy does predispose to potential traumatically induced synovitis.
[39] AD2 p 80.
MRI left knee, 20 May 2019[40]
Displaced bucket-handle tear of the lateral meniscus, partially perched onto lateral tibial spine with bulk of the displaced component in the femoral notch adjacent to. posterior tibial root attachment of lateral meniscus. Mucoid degeneration of medial meniscus without tear.
[40] AD1 p 58.
Right knee MRI, 24 July 2019.[41]
There is a tear of the lateral meniscus. The anterior horn and body have been torn at the meniscocapsular junction, displaced/flipped posteriorly, remodelled with the posterior horn and lying within the intercondylar notch. Orthopaedic review is suggested.
[41] AD1 p 223.
Radiograph of the left knee, 7 August 2019[42]
AP and lateral radiographs were obtained. No fracture is demonstrated. The bones appear normal. The suprapatellar pouch is markedly distended. No radiopaque loose body is demonstrated.
[42] AD1 p 84.
Ultrasound of the left knee, 7 August 2019.[43]
There is a moderate anaechoic effusion in the knee joint. No defect of the medial or lateral collateral ligaments or of the extensor mechanism of the knee was demonstrated. There is some fluid in the sheath of the popliteus tendon.
[43] AD2 p 84.
Left knee MRI, 8 November 2019[44]
Discoid lateral meniscus with degeneration and complex tear posterior horn and periphery of the body. Small knee joint effusion.
[44] AD2 p 488.
Left knee X-ray and MRI, 12 March 2020 [45]
Lateral meniscal repair has failed. The repair has failed along the meniscocapsular junction, virtually circumferential, with the meniscal tissue displaced into the intercondylar notch, most obvious anteriorly.
[45] AD1 p 218.
Left knee MRI, 27 July 2020.[46]
Interval resection of lateral meniscus in keeping with partial meniscectomy. No residual tear cleft is demonstrated. Hypoechoic material adjacent to the anterior root insertion of lateral meniscus in keeping with scarring, suspected related to previous displaced meniscal tissue; this would predispose to soft tissue impingement similar to a cyclops lesion in the appropriate clinical setting. This is similar in appearance compared to previous MRI from March 2020; clinical correlation with intraoperative finding is essential to assess for clinical significance. Medial meniscus, cruciate and collateral ligaments intact. Articular cartilage is preserved.
[46] AD1 p 203.
Left knee MRI, August 2020.
Minor tendinosis patellar origin of the patellar tendon, hypoechoic material adjacent to the anterior root insertion of lateral meniscus in keeping with scarring, suspected related to previous displaced meniscal tissue, predispose to soft tissue impingement similar to a cyclops lesion.
Medico legal evidence
Dr John F Davis, occupational physician
Dr Davies assessed the claimant and provided a report dated 26 November 2020.[47] He reported injuries to the neck, back, left shoulder, nose, jaw and knees. He also noted significant seatbelt trauma and an injury to the right ear.
[47] AD1 p 11.
He reported the MRI scan of the left knee demonstrated a bucket handle tear of the lateral meniscus and reported episodes of locking and repair by Dr Herald on two occasions.
He reported the neck and left ankle symptoms had resolved. Mr Dayan had relevantly left shoulder pain and restriction of movement, pain in the lower back, pain in the left knee, and pain in the right knee.
Dr Davis found no asymmetry or instability of the shoulders and a full range of movement on the right side. He noted discrete tenderness over the humeral head on the left side. The active range of movement of the left shoulder was flexion 115º, extension 35º, abduction 70º, adduction 40º, external rotation 90º and internal rotation 55º. There were no abnormal neurological findings in the upper limbs and no wasting.
He found central tenderness at L5/S1 and the active range of movement of lumbar spine was left side flexion 100%, right side flexion 90%, extension 100% and flexion 75%. He found reflexes were all present and straight leg raising was to 85 degrees bilaterally with negative neural tension tests.
Dr Davis noted effusion around the left knee and found range of movement was 0-145 degrees with some palpable crepitus. He noted good stability of the collateral ligaments.
Dr Davis reported no effusion around the right knee but noted tenderness. Range of movement was 0-135 degrees with crepitus. He noted good stability of the medial and lateral collateral ligaments and pain with lateral rotation and extension of the knee.
Dr Davis relevantly diagnosed:
·internal disc derangement at the lumbosacral level;
·left shoulder tendinosis, subacromial/subdeltoid bursitis and impingement, and
·bilateral menisci tears with same AP laxity of the left knee.
Including nasal passage defects Dr Davis assessed a WPI of 24%.
Certificate of Medical Assessor Sidarov[48]
[48] AD2 p 614.
Medical Assessor Sidarov issued a certificate dated 29 September 2022. He was asked to assess psychological injury, namely, adjustment disorder, post-traumatic stress disorder.
Medical Assessor Sidarov reported the claimant continued to experience pain in both knees as well as his left shoulder and back.
He concluded Mr Dayan previously met the criteria for a post-traumatic stress disorder but noted his symptoms had improved over the last two years and he no longer met the diagnostic criteria for post-traumatic stress disorder.
He certified the injury of post-traumatic stress disorder had resolved and did not result in permanent impairment.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 13 September 2022 in support of the application for review addressing the certificate of Medical Assessor Cameron. In summary, the claimant submits:
(a) there was a failure to make an assessment of the claimant’s left shoulder where there is clear evidence of injury, even though it was not referred to in the application form;
(b) the Medical Assessor failed to consider if injury to the left shoulder and or right shoulder was related to the accident and/or if it arose from the cervical spine as per the Nguyen principle;
(c) it is disputed there is no crepitus or instability in the knees. Medical Assessor Cameron acknowledged “ongoing left knee symptoms and also some right knee symptoms”;
(d) it is disputed there was a full range of motion to the left ankle and other lower extremity joints; Medical Assessor Cameron failed to provide measurements to justify his reasoning;
(e) Medical Assessor Cameron was incorrect in concluding there were no significant clinical findings in the cervical spine where he identified a reduced range of motion (to 70% normal) in all planes, and
(f) Medical Assessor Cameron erred in concluding there were no significant clinical findings in the lumbar spine where the measurements show muscle atrophy.
The claimant relies upon cl 1.3 of the MAI Act and submits that one of the objects of the Act is to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries and to maximise their return to work or other activities.
Insurer’s submissions
The insurer provided submissions dated 27 May 2021 in respect of the permanent impairment dispute.[49]
[49] AD2 p 3.
The insurer disputes the claimant sustained any injury to the head noting the NSW Ambulance report stated the claimant denied a head strike and where no airbags were deployed. The insurer notes the St George Hospital notes recorded no haematoma/lumps or bumps over the head and nil evidence of any facial deformity or bruising. It is also noted the GCS was 15. The insurer also notes the normal CT scan of the brain and the TMJ X-ray of 22 November 2018 which was normal.
The insurer submits there is no permanent impairment because of injury to the ribs.
The insurer submits there is no permanent impairment of the cervical spine or the thoracic spine, consistent with the evidence including the opinion of Dr Davis.
The insurer disputes the claimant has sustained permanent impairment of the lumbar spine. The insurer notes Dr Leaver assessed the claimant in the same month as
Dr Davis and found active movements of the trunk were full range and performed in a fluid and unguarded manner and there were no lower limb neurological signs.The insurer disputes any permanent impairment of the elbow consistent with the evidence including the opinion of Dr Davis.
The insurer disputes permanent impairment of the left knee noting the AHRR dated
30 November 2020 confirms the claimant was mobilising independently with nil aid.The insurer disputes the claimant sustained injury to the right knee having regard to the X-ray taken at hospital following the accident and the opinion of Dr Leaver that the claimant had made a full recovery, his residual symptoms were mild and intermittent, and he could perform most activities of daily living.
The insurer disputes any permanent impairment of the ankle consistent with the evidence including the opinion of Dr Davis.
In relation to the physiotherapy dispute the insurer relies on the Certificate of determination – Internal Review dated 14 April 2021 maintaining the decision to decline further physiotherapy as request by Complete Allied Health Care under AHRR dated 18 March 2021.[50] The insurer noted the claimant had undergone at least 91 sessions of physiotherapy to assist in recovery and having regard to that treatment and the report of Dr Leaver concluded the claimant had been provided with sufficient guidance to transition to independent management of his injuries.
[50] AD1 p 349.
The insurer provided submissions dated 7 October 2022 in respect of the review application.[51] These submissions address the question to be determined by the delegate, that is, whether the assessment was incorrect in a material respect.
[51] AD2 p 608.
Relevantly, the insurer submits even if there is found to be crepitus in both knees it would result in a 2% WPI and would not be material to the assessment. The insurer notes that Medical Assessor Cameron found a full range of motion of both knees.
In relation to the left ankle the insurer notes the X-ray of 28 September 2018 concluded no fractures were demonstrated, the bony alignments were normal and there was no significant soft tissue swelling. The insurer submits the radiology is consistent with the findings of Medical Assessor Cameron on the date of the assessment.
In relation to the cervical spine the insurer notes that Medical Assessor Cameron found no symptoms of signs present to justify an assessment of DRE category II in that region and therefore, he was not required to consider whether the shoulder injuries arose from the cervical spine pursuant to the Nguyen principle.
THE MEDICAL EXAMINATION
Mr Dayan attended the examination with Medical Assessor Kenna at his rooms at Market Street, Sydney on 13 April 2023 for an assessment of the musculoskeletal injuries. He spoke fluent English.
Pre-accident medical history and personal details
Mr Hammad Dayan is a 28-year-old male, Pakistani, who has been in Australia some 10 years. He states he is married and since being in Australia for that period of time, has done a number of courses involving the IT industry. He currently remains on a student visa. At the time of my assessment, he had moved from Sydney to Adelaide, where he had been living for the last two years.
Currently he is studying for a Masters degree at Federation University. When asked about finances, he acknowledged that he was totally dependent upon family support who send him money from Pakistan. He has done some security work in the past, but this requires driving and he states that he has accrued demerit points and finds it necessary to limit his driving. Subsequently, he has had difficulty coping.
At the time of the accident, Mr Dayan was a resident of Ashfield and was working at McDonalds part-time. Even at that stage, he was being supported by his parents but denies any prior history of motor vehicle accidents.
Details of the accident
On 28 September 2018, he states he was a front seat passenger in a vehicle. He was wearing a seatbelt. There were no airbags in the car. Their car was hit from behind by a truck and pushed forward into the vehicle in front.
The accident occurred at night. He said he was shocked but doesn’t believe in retrospect he lost consciousness. The car was extensively damaged.
Ambulance and police attended, and he was subsequently taken to St George Hospital where following an initial assessment, he was then discharged. He was observed evidently overnight and then requested discharge on the second day.
History of symptoms and treatment following the accident
Subsequently he saw a GP, Dr Tom Lieng, and his complaints consisted of centralized pain to the cervical, thoracic and lumbar spine, pain involving the left shoulder, elbow to a lesser extent, but particularly the left knee and left ankle to a lesser extent.
He was treated conservatively and then returned to work on modified duties several months later.
The left knee became increasingly problematic, and he was referred to Dr Herald, orthopaedic surgeon. He underwent left knee arthroscopy and meniscal repair (sutured) on 25 July 2019, but the result was not satisfactory and there was a second arthroscopic surgery performed in early 2022 (again sutured). He didn’t undergo any surgery to the right knee, nor did he undergo a meniscectomy.
His most intense symptoms have related to the left knee, and the other symptoms are of a lesser extent.
He had extensive physiotherapy with more than 40 physiotherapy treatments.
Details of any relevant injuries or conditions sustained since the accident
He has not incurred any further injuries since that initial accident as stated, noting that the accident was approaching five years ago.
Current symptoms
He continues to complain of symptoms, despite the injuries been primarily of a soft tissue nature and almost five years ago.
At the time of the assessment, his complaint was one of moderate pain pertaining to the cervical spine, which was central with no radiation towards either shoulder, some interscapular symptoms of moderate intensity and more intense central lower back pain but no radiation into the buttocks or legs.
Pertaining to the upper body, his complaint was one of left shoulder pain which he describes as reasonably intense over the top and back of the left shoulder but moderate anteriorly. There was also some discomfort involving the left elbow.
Pertaining to the lower extremities, his main complaint pertains to the left knee as noted, left ankle to a lesser extent, and his right leg was largely unaffected.
In that respect, he states that his cervical spine has improved over time. Pain is less severe and less persistent and not as frequent. Nevertheless, there continues to be some degree of discomfort which he describes as no more than mild.
There are also interscapular symptoms in part related to the cervical spine and some central lower back pain which he describes as persistent and more severe than the other two regions.
Accompanying the upper body symptoms, he states he has left shoulder pain. Even the right shoulder can be a little bit discomforting, but the left shoulder is the main problematic region. He has had no injections pertaining to the shoulders.
With regards to the left knee, he states that it clicks and can feel unstable. He avoids kneeling and squatting.
CLINICAL EXAMINATION
Findings on clinical examination including specific measurements of range of movement (ROM) (where applicable) of each of the injuries assessed.
Cervical spine
No muscle guarding or spasm was present, there was symmetrically reduced uniform range of motion (stiffness) but no asymmetry present.
There was no neurological deficit in either upper limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
MOVEMENTS RANGE EXHIBITED Flexion 10% restriction Extension 10% restriction Rotation to the right 10% restriction Rotation to the left 10% restriction Lateral bending to the right 10% restriction Lateral bending to the left 10% restriction
Neurological tests
Reflexes
REFLEX LEFT RIGHT TRICEPS JERK Normal Normal BICEPS JERK Normal Normal BRACHIORADIALIS Normal Normal
Sensation
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
Muscle wasting
LEFT (cm) RIGHT (cm) UPPER ARM FOREARM
Muscle power
LEVEL MOTOR POWER LEFT RIGHT C4 5/5 NORMAL NORMAL C5 5/5 NORMAL NORMAL C6 5/5 NORMAL NORMAL C7 5/5 NORMAL NORMAL C8 5/5 NORMAL NORMAL T1 5/5 NORMAL NORMAL 5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
Dural tension tests
TEST RIGHT LEFT PASSIVE NECK FLEXION Normal Normal BRACHIAL PLEXUS STRETCH Normal Normal
Thoracic spine
On inspection of the thoracic spine posture was normal. No tenderness on palpation of the thoracic spine and no muscle guarding or spasm. No neurological deficit evident in either upper limb.
On formal examination of range of movement there was full range of movement as follows:
MOVEMENT RANGE OF MOTION Flexion 100% full Extension 100% full Side bending to the right 100% full Side bending to the left 100% full Rotation to the left 100% full Rotation to the right 100% full
Lumbar spine
No muscle guarding or spasm was present, there was symmetrically reduced uniform range of motion(stiffness) but no asymmetry present.
There was no neurological deficit in either lower limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
MOVEMENTS RANGE EXHIBITED Flexion 15% restriction Extension 15% restriction Rotation to the right 15% restriction Rotation to the left 15% restriction Lateral bending to the right 15% restriction Lateral bending to the left 15% restriction
Neurological tests
Reflexes
REFLEX LEFT RIGHT KNEE JERK Normal Normal ANKLE JERK Normal Normal
LEFT RIGHT Sciatic nerve stretch (straight leg raise) Normal Normal Femoral nerve stretch (prone knee bending) Normal Normal
Sensation
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
Muscle wasting
LEFT (cm) RIGHT (cm) THIGH
(Measured 10cm above the superior pole of the patella)
47 47 CALF
(Maximum circumference)
34 34
Muscle power
LEVEL MOTOR POWER LEFT RIGHT L3 5/5 NORMAL NORMAL L4 5/5 NORMAL NORMAL L5 5/5 NORMAL NORMAL S1 5/5 NORMAL NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
Dural tension tests
TEST RIGHT LEFT PRONE KNEE BEND Normal Normal STRAIGHT LEG RAISE Normal Normal SLUMP Normal Normal
Upper extremities
Right Shoulder
Measurement Reference
(4th ed.)Normal Upper Extremity Impairment Flexion 180° Figure 38 (43) 180° 0 Extension 50° Figure 38 (43) 50° 0 Adduction 50° Figure 41 (44) 50° 0 Abduction 180° Figure 41 (44) 180° 0 Internal Rotation 90° Figure 44 (45) 90° 0 External Rotation 90° Figure 44 (45) 90° 0 Total 0
Left Shoulder
Measurement Reference
(4th ed.)Normal Upper Extremity Impairment Flexion 180° Figure 38 (43) 180° 0 Extension 50° Figure 38 (43) 50° 0 Adduction 50° Figure 41 (44) 50° 0 Abduction 180° Figure 41 (44) 180° 0 Internal Rotation 90° Figure 44 (45) 90° 0 External Rotation 90° Figure 44 (45) 90° 0 Total 0
Both shoulders were measured with a Goniometer.
Elbows
Measurements of the elbows were performed in accordance with the methodology described in s 3.1I Elbow (38-41) of the AMA 4 Guides.
Right Elbow
Measurement Reference
(4th ed.)Normal Upper Extremity Impairment Flexion 140 Figure 32 (40) 140° 0 Extension 0º Figure 32 (40) 0° 0 Supination 80 Figure 35 (41) 80° 0 Pronation 80º Figure 35 (41) 80° 0 Total 0
Left Elbow
Measurement Reference
(4th ed.)Normal Upper Extremity Impairment Flexion 140 Figure 32 (40) 140° 0 Extension 0º Figure 32 (40) 0° 0 Supination 80 Figure 35 (41) 80° 0 Pronation 80º Figure 35 (41) 80° 0 Total 0
Inspection of the elbows was normal. Resisted and passive motions were pain free.
There were no abnormal findings.
Lower extremities
Right and left knees
There is no muscle wasting.
There is symmetry between right and left legs above and below the knee.
Mr Dayan displayed normal gait.
There was no use of a cane or brace and no redness, warmth, swelling, effusion or deformity.
Measurement of the involved calf and thigh are symmetrical with the contralateral side.
Ligamentous and meniscal stress tests are normal and painless.
The knee range is from 0 to 125°.
Manual muscle testing shows normal strength in the extremity.
Note that the knees have normal alignment.
There was no crepitus.
Left/Right Knee Extension 0°
¯
Flexion 135°
0
¯
135°
Motion Normal
Scars Nil
Quadriceps Wasting Nil
Swelling Nil
Collateral Ligaments Intact
Cruciate Ligaments Intact
McMurray’s Test Normal
Patello-femoral joint Normal
Lateral patellar tilt Nil
Lateral drift (with quadriceps contraction) Nil
Gait Normal
Short leg Nil
Atrophy Negative
Weakness Negative
Range of movement Normal
Osteoarthritis Nil
Amputation Nil
Neurological deficit Nil
Reflex sympathetic dystrophy Nil
Vascular Normal
Ankles
Right ankle
There was no apparent swelling and no limping on examination of gait. Mr Dayan was able to walk on toes and heels.
Active Movements
Plantar Flexion 40° Full
Dorsal Flexion 20° Full
Inversion 30° Full
Eversion 20° Full
Lateral collateral ligaments Intact
Medial collateral ligaments Intact
Left ankle
There was no apparent swelling and no limping on examination of gait. Mr
Dayan was able to walk on toes and heels.
Active Movements
Plantar Flexion 40° Full
Dorsal Flexion 20° Full
Inversion 30° Full
Eversion 20° Full
Lateral collateral ligaments Intact
Medial collateral ligaments Intact
Diagnosis and causation of musculoskeletal injuries
Ribs – fracture
Following the accident St George Hospital recorded left chest wall pain/sternal pain although a chest X-ray undertaken did not disclose any fracture or abnormality. On
17 October 2018 Dr Lieng reported Mr Dayan was complaining of sore ribs. On
3 June 2019 Dr Herald reported the rib fractures had resolved.Whilst the claimant initially sustained a rib fracture, that has since healed with both the thoracic spine and rib cage regaining a full asymptomatic range of movement.
The Panel notes the Application for personal injury benefits listed injuries to the neck, to the back, to both shoulders, to both legs, to both knees and to both feet. The Ambulance report also documents injury to the cervical spine, the lumbar spine, the left shoulder, the right tibia, and the left foot. Mr Dayan underwent X-rays to the cervical, thoracic and lumbar spine, to the left ankle, left shoulder, right knee and left foot. As of 17 October 2018, Dr Lieng reported Mr Dayan was complaining of a sore neck, sore shoulders, sore mid and lower back, sore knees, sore left ankle and he also reported a sore left elbow.
Having regard to the medical records and the consistency of reported complaints the Panel is satisfied the claimant sustained soft tissue injury to all injuries referred for assessment, that is the cervical spine, the thoracic spine, the lumbar spine, the left elbow, the right knee, the left knee and the left ankle.
The Panel also finds the claimant sustained soft tissue injuries to both the left and right shoulder, even though they were, inexplicably not referred for assessment. The Panel proposes to undertake an assessment of permanent impairment of both shoulders.
CLOSED HEAD INJURY
The closed head injury was assessed by Medical Assessor O’Neill without examination as agreed by the parties.
The ambulance report states:
“front passenger of car that was ?rear-ended by truck (and) ?causing car to hit parked car. Large damage to rear of vehicle. Patient wearing safety belt. Nil airbag deployment. Denies loss of consciousness. Denies head strike. Patient states was on his phone and remembers back of car being hit. Fireies required to cut car doors off for extrication.”
The GCS at the scene was 15 on the four occasions it was assessed.
Mr Dayan was taken to St George Hospital where it was noted “no haematoma, lumps or bumps over head”. The GCS was 15. A precautionary CT brain scan was normal.
At the time of the initial consultation by Dr Lieng on 17 October 2018 there were non-specific symptoms of “fuzzy in head – can’t think clearly; slow to respond; poor sleep/nightmares” together with many physical complaints unrelated to the head.
There are no subsequent complaints or concern recorded by treating doctors with respect to any possible head injury.
For impairment of cognitive function to arise from a head injury the Guidelines state the head injury should be associated with one or more significant medically-verified abnormalities such as an abnormal post-injury GCS, post-traumatic amnesia or brain imaging abnormality.
None of these was present in this case. Indeed, there is some doubt Mr Dayan suffered a head injury at all where it was reported by the ambulance service that
Mr Dayan denied suffering a head strike in the accident and denied suffering a loss of consciousness.Even if there was a head injury the Panel notes Medical Assessor Cameron stated the “soft tissue injury to the head has resolved”.
ASSESSMENT OF PERMANENT IMPAIRMENT
Head injury
The head injury is not assessable as causing permanent impairment. While Mr Dayan may have had an impact to the head, there are no recorded abnormalities on the GCS, there was no recorded post-traumatic amnesia or brain imaging abnormalities associated with brain trauma. The criteria set out in cl 6.164; page 113 of the Guidelines are not satisfied.
Musculoskeletal injuries
Permanent impairment is assessed as set out in the following table:
Permanent Impairment Table
| Body Part or System | AMA Guides/ The Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical Spine DRE I | ch3,pgs102-107,AMA4 Tables 7 & 8 The Guidelines | Yes | 0 | 0 | 0 |
| 2 | Thoracic spine DRE I | ch3,pgs 102-107,AMA4 Tables 7 & 8 The Guidelines | Yes | 0 | 0 | 0 |
| 3 | Lumbosacral Spine DRE I | ch3,pgs 102-107,AMA4 Tables 7 & 8 The Guidelines | Yes | 0 | 0 | 0 |
| 4 | Right shoulder | ch3, 3.1, pgs15-74 T 1-32 The Guidelines | Yes | 0 | 0 | 0 |
| 5 | Left shoulder | ch3, 3.1, pgs15-74 T 1-32 The Guidelines | Yes | 0 | 0 | 0 |
| 6 | Left elbow | ch3, 3.1, pgs15-74 T 1-32 The Guidelines | Yes | 0 | 0 | 0 |
| 7 | Right knee | Ch3, 3.2,pgs 75-94 T35-69 Figs 52-60 AMA IV | Yes | 0 | 0 | 0 |
| 8 | Left knee | Ch3, 3.2,pgs 75-94 | Yes | 0 | 0 | 0 |
| 9 | Left ankle | Ch3, 3.2,pgs 75-94 T35-69 Figs 52-60 AMA IV | Yes | 0 | 0 | 0 |
* 0%WPI = percentage whole person impairment
Degree of permanent impairment caused by the accident whole person impairment
The Panel finds a 0% WPI.
Permanent impairment ratings take symptoms into account; however, the percentage permanent impairment is not a direct measure of disability. A finding of 0% permanent impairment indicates that there was an injury caused by the accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 0%.
TREATMENT DISPUTE
The following treatment disputes were referred for assessment:
(a) whether the hydrotherapy program (initial assessment and report) with exercise physiologist Jennifer Chan dated 24 October 2019 relates to the injury caused by the motor accident;
(b) whether the hydrotherapy program (initial assessment and report) with exercise physiologist Jennifer Chan dated 24 October 2019 is reasonable and necessary in the circumstances;
(c) whether the request for further physiotherapy per AHRR request no.12 dated 18 March 2021 relates to the injury caused by the motor accident, and
(d) whether the request for further physiotherapy per AHRR request no.12 dated 18 March 2021 is reasonable and necessary in the circumstances.
In light of the claimant’s current clinical presentation and where it is now in excess of four years since the accident the Panel does not consider that a hydrotherapy program or further physiotherapy would result in any further benefit to the claimant.
The claimant has since moved to Adelaide and re-entered the workforce.
The clinical examination by Medical Assessor Kenna indicated Mr Dayan had regained overall reasonable mobility. Whilst he continues to complain of ongoing symptomatology, he has undergone a substantive amount of treatment and there is no clearly defined benefit to be gained by undergoing further physiotherapy or hydrotherapy.
The efficacy of the ongoing physiotherapy was reviewed by Mr Leaver, consultant physiotherapist. On 31 October 2019 he recommended further physiotherapy but on review on 17 November 2020 he reported Mr Dayan had made good progress with his recovery over the preceding 12 months and had established a daily exercise and activity program. Whilst Mr Dayan remained symptomatic in part, he had regained functional mobility and Mr Leaver did not consider ongoing passive treatment was likely to be of benefit.
The Panel agrees with Mr Leaver that in view of the claimant’s recovery he had essentially maximised the benefit of the therapeutic approach which can be provided by either hydrotherapy or physiotherapy.
Whilst the Panel accepts the referral for hydrotherapy and for physiotherapy relate to the injury caused by the accident the Panel considers neither treatment option to be reasonable or necessary.
CONCLUSION
The Panel revokes the Certificate of Medical Assessor Ian Cameron dated
25 August 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 0%:· ribs – fracture (resolved);
· head injury (resolved);
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· right shoulder – soft tissue injury;
· left shoulder – soft tissue injury;
· left elbow – soft tissue injury;
· right knee – soft tissue injury;
· left knee – soft tissue injury, and
· left ankle – soft tissue injury.
In respect of the treatment dispute the Panel affirms the certificate of Medical Assessor Ian Cameron dated 25 August 2022.
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