Dragas v Allianz Australia Insurance Limited
[2024] NSWPICMP 215
•9 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dragas v Allianz Australia Insurance Limited [2024] NSWPICMP 215 |
| CLAIMANT: | Dusko Dragas |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 9 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; multiple treatment disputes; claimant involved in a motor accident on 18 November 2017; Medical Assessor (MA) Bodel determined that the proposed treatment for two right shoulder joint steroid injections were both reasonable and necessary; Medical Review Panel attended re-examination; Held – the right shoulder steroid injections were related to the subject accident and reasonable and necessary under the circumstances; the other injuries sustained in the subject accident were of a soft tissue nature on the background of underlying age-related degenerative change; certificate of MA Bodel affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the Certificate of Medical Assesor James Bodel, dated |
STATEMENT OF REASONS
INTRODUCTION
Mr Dusko Dragas (the claimant) was injured in a motor vehicle accident on
18 November 2017.The insurer is liable to pay Mr Dragas any damages including the cost of medical treatment and domestic assistance, under the Motor Accidents Compensation Act 1999 (the MAC Act).
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 63 of the MAC Act, on review by a review panel.
The following treatment disputes were referred by the Personal Injury Commission (Commission) for assessment:
(a) whether bi-monthly consultations with an orthopaedic surgeon for a period of five years is causally related to the injury sustained in the subject accident;
(b) whether bi-monthly consultations with an orthopaedic surgeon for a period of five years is reasonable and necessary in relation to the injury sustained in the subject accident;
(c) whether surgery to the cervical spine and costs associated with post-operative care and rehabilitation is causally related to the injury sustained in the subject accident;
(d) whether surgery to the cervical spine and costs associated with post-operative care and rehabilitation is reasonable and necessary in relation to the injury sustained in the subject accident
(e) whether surgery to the lumbar spine and costs associated with post-operative care and rehabilitation is causally related to the injury sustained in the subject accident;
(f) whether surgery to the lumbar spine and costs associated with post-operative care and rehabilitation is reasonable and necessary in relation to the injury sustained in the subject accident;
(g) whether two-space right shoulder joint steroid injections are causally related to the injury sustained in the subject accident;
(h) whether two-space right shoulder joint steroid injections are reasonable and necessary in relation to the injury sustained in the subject accident;
(i) whether bilateral knee joint arthroscopies are causally related to the injury sustained in the subject accident;
(j) whether bilateral knee joint arthroscopies are reasonable and necessary in relation to the injury sustained in the subject accident;
(k) whether bilateral knee replacements within a 5–6-year period are causally related to the injury sustained in the subject accident, and
(l) whether bilateral knee replacements within a 5–6-year period are reasonable and necessary in relation to the injury sustained in the subject accident.
The medical disputes were referred to Medical Assessor Bodel who certified that the following treatment:
(a) two – right shoulder joint steroid injections,
does relate to the injuries caused by the motor accident.
Medical Assessor Bodel further found that the following treatment:
(a) surgery to the lumbar spine and costs associated with post-operative care and rehabilitation;
(b) bilateral knee joint arthroscopies
(c) surgery to the cervical spine and costs associated with post-operative care and rehabilitation;
(d) bi-monthly consultations with an orthopaedic surgeon for a period of five years, and
(e) bilateral knee replacements within 5–6-year period,
did not relate to injuries caused by the accident:
Medical Assessor Bodel found that the following treatment and care relating to the injuries caused by the accident:
(a) two – right shoulder joint steroid injections,
were reasonable and necessary in the circumstances.
Medical Assessor Bodel found that the following treatment and care:
(a) surgery to the lumbar spine and costs associated with post-operative care and rehabilitation;
(b) bilateral knee joint arthroscopies;
(c) surgery to the cervical spine and costs associated with post-operative care and rehabilitation;
(d) bi-monthly consultations with an orthopaedic surgeon for a period of five years, and
(e) bilateral knee replacements within 5–6-year period,
were not reasonable and necessary in the circumstances.
THE REVIEW
Mr Dragas requested referral to a Review Panel (the Panel) on the basis that there was reasonable cause to suspect that the Medical Assessor was incorrect in a material respect.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties filed bundles of documents in accordance with the initial Direction.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act. In Raina v CIC Allianz Insurance Ltd Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the panel… to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
MATERIAL BEFORE THE REVIEW PANEL
The Review Panel had all the material that was before the Medical Assessor and also had access to the material in the bundles of the insurer and claimant, dated 16 October 2023 and 10 October 2023, respectively.
The Review Panel reviewed such materials to the extent that they were relevant.
Qualified opinions
Dr Thomas Sheehan
In the section ‘Work Capacity and Occupational Fitness (Past/ Present/ Future)’ of his report, Dr Sheehan comments that the motor vehicle accident has rendered Mr Dragas totally and permanently unfit for his former normal duty occupation as a gyprock fixer.
According to Dr Sheehan:
“Mr Dragas’ prognosis is considered to be poor because of the multiple nature of his collision caused injuries, which will continue to cause him to suffer from pain and stiffness in many areas of his body form now on despite the provision of additional treatment, which will only serve to minimise his discomfort to some extent.
Further it needs to be appreciated that those injuries which the subject has sustained will result in the acceleration of degenerative disease within those regions of his body which have been damaged.”
He noted that in the future, Mr Dragas would require the following treatments:
(a) monthly visits to his GP, with that requirement being ongoing;
(b) a pharmaceutical allowance associated with each GP attendance, and
(c) fortnightly physiotherapy, hydrotherapy, and remedial massage, with those interventions being required throughout the foreseeable future.
The above physical therapies were recommended by Dr Sheehan in order to keep him “…as comfortable as possible”.
Dr Sheehan further noted that:
“…it is anticipated that this man will require cervical spine and lumbar spine surgery long before he reaches retirement age… Mr Dragas will also require at least two more spaced right shoulder injections of steroid… it is expected that the subject will undergo bilateral knee joint arthroscopies in order to further assess his pathology in those joints…”
He concluded that very considerable medical expenses will be incurred in the near future by Mr Dragas whilst his ongoing collision caused symptoms are managed.
Dr Robin Mitchell, medico legal report
Dr Robin Mitchell, consultant occupational health physician, noted that Mr Dragas had developed pain in the neck, right shoulder, mid back, and lower back with radiation to the lateral upper right leg, and also pain in each knee, after a motor vehicle accident on
18 November 2017, when he hit the dashboard with both knees.
The doctor acknowledged that Mr Dragas’ pain continued, and in February 2018, he was referred to orthopaedic surgeon, Dr Medhat Guirgis, who diagnosed mechanical derangement of the cervical spine, causing right C6/7 radiation and impingement into the right shoulder, and mechanical derangement of the lumbar spine causing left proximal L5/S1 radiation.
Dr Mitchell found Mr Dragas’ symptoms appeared to be of a soft tissue nature, in the absence of any apparent significant underlying injury, either clinically or radiologically.
The doctor further noted that there were no lasting injuries caused by the subject motor vehicle accident and that work in a full-time capacity, would not have any potential to aggravate his symptoms.
Vocational Capacity Centre (VCC) Report, 6 January 2021
The VCC report noted there were several inconsistencies in Mr Dragas’ presentation suggesting the impact of behavioural factors on his physical performance level. Inconsistencies were apparent in the discrepancy between his spontaneous movement patterns and his formal test results, in the lack of correlation between the clinical findings and the extensive level of functional limitation displayed and in the lack of objective physical signs of restriction during manual handling testing.
Mr Dragas could only be considered as capable of undertaking a range of work that falls in the sedentary and semi-sedentary work categories.
Mr Dragas did not display the ability to undertake the duties of his pre- injury position, working as a gyprock fixer, and whilst this was due to his self-limited performance, he was not necessarily recommended to return to such a role. This was due to the noted physical signs associated with the noted degenerative changes affecting the shoulders, the knees, and the movement restriction at the different levels in the spine.
Relevant radiological and medical imaging and other investigations
The claimant did not provide any X-rays or other tests to Medical Assessor Bodel at the medical examination.
Medical Assessor Bodel noted that he had seen the report of MRI scans for the cervical spine, lumbar spine, and right shoulder, dated 12 September 2022, which had been ordered by Dr Guirgis.
These show minor degenerative disc disease in the cervical and lumbar spine and the rotator cuff pathology in the region of the right shoulder, to which he refers to in his Reasons.
Medical assessment by Medical Assessor James Bodel
In general presentation, Medical Assessor Bodel noted that Mr Dragas was 55 years of age. He could rise slowly from the chair and walk with a broad-based and somewhat unsteady gait pattern but no limp. He weighed 92kg and was 175cm tall.
Medical Assessor Bodel found that at the cervical spine Mr Dragas has tenderness in the trapezius muscle at the base of the neck on the right-hand side, with a reduced range of neck flexion, extension, and rotation. This was most restricted on rotation to the left and it caused pain at the base of the neck on the right. Therefore, there was dysmetria.
He noted the reflexes were present and equal in both upper limbs. There were no measurable signs of wasting in either arm above the elbow or forearm below the elbow. There was no wasting of the small muscles of the hand and no reflex abnormality or objective sign of sensory loss in a dermatomal distribution in either upper limb.
In the thoracic spine, Mr Dragas had a good range of lateral bending and rotation of the thoracic spine and no restriction of chest wall movement.
Medical Assessor Bodel found that Mr Dragas had tenderness over the lumbar spine on the right-hand side, adjacent to the sacroiliac joint. There was some muscle guarding. He reached forward in flexion with his hands to the knees and there was backache at this point and also on extension with a restricted range of lateral bending to the left. He had dysmetria on clinical testing.
Straight leg raising was unimpaired at 80° on both sides and there was no neurological abnormality in the lower limbs. There was no wasting in either thigh or calf. There was no restriction of hip, knee, ankle or subtalar movement and no reflex abnormality or sensory impairment in a dermatomal distribution and no clinical signs of radiculopathy in the lower limbs.
Mr Dragas had a restricted range of shoulder movement on the right-hand side and there was generalised wasting in the right shoulder girdle with tenderness over the rotator cuff anteriorly on the right.
The range of movement was recorded in the table which follows:
Shoulder Movements
Active ROM Measured RIGHT
Active ROM Measured LEFT
Flexion
120°
180°
Extension
30°
50°
Adduction
10°
50°
Abduction
90°
180°
Internal Rotation
50°
90°
External Rotation
50°
90°
There was impingement in the right shoulder and tenderness over the rotator cuff on the right-hand side but no instability.
In the lower extremity, there was no leg length inequality. He had a full range of hip, knee, ankle and subtalar movement and no neurological abnormality of the lower limbs, as indicated above.
Medical Assessor Bodel commented that Mr Dragas presented with a consistency of presentation, particularly in the region of the right shoulder, where there was definite rotator cuff pathology and wasting consistent with the clinical findings.
Mr Dragas had asymmetry of neck and back movement, which was consistent with the ongoing clinical abnormalities.
There was no localised restriction of knee, ankle, or subtalar movement.
Medical Assessor Bodel concluded that the two – right shoulder joint steroid injections had been both reasonable and necessary, and undertaken as a consequence of injury sustained in the subject accident.
He noted the reason was that the MRI scan did show evidence of rotator cuff pathology.
For all of the other requested treatments, Medical Assessor Bodel found there was no causal relationship to the motor vehicle accident, nor were they reasonable and necessary.
Claimant's submissions of 17 August 2023
Mr Dragas’ solicitor provided submissions, which the Panel briefly summarises.
Mr Dragas submits that the Certificate of Medical Assessor Bodel is incorrect in a material respect under s 63 (2) of the MAC Act due to Medical Assessor Bodel’s errors in assessment of the claimant's treatments in dispute, with regards to causation and necessity.
Mr Dragas submits that Medical Assessor Bodel does not offer any reasons for his disagreement that the treatment for the claimant’s injuries were caused by the accident and reasonable and necessary. The claimant submits this failure of Medical Assessor Bodel to explicate continues throughout the certificate.
Medical Assessor Bodel does not offer reasons for his agreement with the insurer's proposition and does not elaborate on why he finds that the other injuries except the claimant's shoulder injections were not causally related or reasonably necessary.
Mr Dragas submits that Medical Assessor Bodel himself finds that the claimant has significant injuries if WPI were being assessed in this certificate.
Mr Dragas submits that other MRI evidence regarding the claimant’s injuries was before Medical Assessor Bodel, and some were even referred to in his Medical Certificate, yet were ignored, with no reason offered why the MRI evidence of the right shoulder injury was sufficient evidence of causation, and other MRI evidence regarding other injuries was insufficient.
Mr Dragas submits that Medical Assessor Bodel conducted no analysis whatsoever in exploring any alleged alternative causes of the claimant's injuries.
Mr Dragas submits that Medical Assessor Bodel may have expressed some reservations regarding the speed of the accident, but he nominates no alternative cause of the claimant's significant injuries, which are evident on multiple objective radiological scans. Mr Dragas submits that in the absence of any other cause of these injuries - no alternative cause of which are is nominated by Medical Assessor Bodel - the causation of the claimant's injuries by the subject motor vehicle accident is accepted by all medical practitioners, including the injuries to the claimant's neck, back, right shoulder and knees by Medical Assessor Menogue and the Review Panel.
Mr Dragas further submits that at minimum, the motor vehicle accident was a contributing cause of the claimant's injuries, and absent evidence, discussion, or exploration of other causes by Medical Assessor Bodel, the claimant submits that he has misapplied the causation test by finding that these claimed treatments to body parts found to be injured in the subject motor vehicle accident had no causal relationship to the motor vehicle accident.
Mr Dragas submits that Medical Assessor Bodel does not explicitly cite the reason he has found that the treatments apart from the right shoulder injections have no "causal relationship" to the motor vehicle accident, and the absence of reasons is an error in itself, as the claimant will expound. However, if Medical Assessor Bodel's brief comments relating to the motor vehicle accident’s impact speed were elaborated by interpretation to become the reasons cited for Medical Assessor Bodel's finding, then his failure to put these allegations of inconsistency would be an error which denied the claimant procedural fairness.
Medical Assessor Bodel does not provide sufficient analysis and reasons for his conclusions regarding causation, baldly stating he finds no "causal relationship" between the motor vehicle accident and the sought treatment of the neck, back and knees, and failing to state his reasons for this finding.
Mr Dragas submits that the Proper Officer need only find there is “reasonable cause” to suspect a material error. Any error that is not trivial, insignificant, or immaterial is sufficient to trigger a review under s 63 of MAC Act, whether or not the correction of the error is capable of altering the outcome, following the principle of Meeuwissen v Boden [2010] NSWCA 253.
Insurer’s submissions of 8 September 2023
The insurer submits that the entirety of the document contains the Medical Assessor’s reasons with respect to the matters certified and that the reasons must be read as a whole in order to appreciate the relevant pathway of reasoning.
The insurer submits there is no inherent inconsistency between an acceptance of symptomology and a finding that treatment to the same part of the claimant’s body is not causally related to the accident or reasonable and necessary.
There is no inherent contradiction between the available imaging and the Medical Assessor’s findings with respect to the presence of injury generally.
The insurer’s position is that the Medical Assessor has considered the available evidence with respect to the causes of the claimant’s injuries on pages 8-10 of the certificate.
The insurer notes that the claimant provided a history of the accident to Medical Assessor Bodel [page 5] which is largely consistent with that provided by the insured driver. In the circumstances the insurer disputes that there is any relevant inconsistency that could have been put to the claimant.
The insurer concludes that Medical Assessor Bodel provided detailed analysis as to his consideration of the available radiology, treating records, his clinical examination and information about the circumstances of the accident. This analysis appropriately sets out the pathway of reasoning employed to reach his findings with respect to causation for the claimed treatment types.
Re- examination by the Medical Review Panel
Medical Assessor Margaret Gibson examined the claimant for the Review Panel on
22 March 2024 at 3pm. An interpreter of the Serbian language was available to assist (by telephone).
Mr Dragas advised that he had not bought any imaging studies with him.
Background
Mr Dragas was born in Croatia, and he had moved to Serbia prior to moving to Australia in 1994.
After arriving in Australia, he had worked on a contract basis as a Gyprock fixer.
Mr Dragas further told Medical Assessor Gibson that he had worked on a full-time basis up until the subject accident and that following the accident he was off work totally for one week before resuming work, but on light duties.
Mr Dragas had then performed these light duties for a period of 18 months until he felt unable to continue because of pain.
Mr Drags said that prior to the accident his duties as a Gyprock fixer had included applying plaster and installing Gyprock, including installation of suspended ceilings and use of equipment such as drills. He said that whilst on light duties he was carrying Gyprock offcuts, cleaning the worksite, and installing wall insulation.
When asked specifically about his income post-accident, Mr Dragas said that he was only generating half of the income he had prior to the accident, as his hours were reduced and the tasks, he could perform restricted.
Further Mr Dragas told Medical Assessor Gibson that in relation to his past medical history, he said he sustained a hairline fracture to his right lower leg in 2014. This had healed without requiring any surgical procedures.
History of subject accident
Mr Dragas had been driving a Mitsubishi Tribute Dual Cab utility.
He had his seat belt fastened and there were no passengers in the vehicle.
Mr Dragas had proceeded through the intersection of Macquarie and Argyle Streets in South Windsor. He said there were two lanes merging. A car in front of him had stopped, so he had as well, which was when his car was rear-ended by a small sedan. He said the impact was such that the smaller vehicle almost went under his utility. There was no front-end impact, so no air bag deployment.
Mr Dragas recalled his whole body being thrown forward. He felt his knees had contacted the dashboard and he had severe whiplash. Apart from that he couldn’t recall his body making any direct impact with the inside of the vehicle. On specific questioning, there were no visible injuries, no bruising, swelling, or bleeding visible.
Mr Dragas was able to get himself out of the vehicle and exchange details with the other driver. Following this he had driven home, although he noted that his utility had issues with gear shifting as the gearbox had been damaged by the impact. His car was later repaired via the insurer, and this had taken approximately two weeks.
Mr Dragas said that on the day following the accident he had visited his regular general practitioner at the time, Dr Adel Zaki, at the Liverpool Family Medical Centre. Then, on the Tuesday after the accident, he had attended general practitioner, Dr Todorovic in Liverpool. He explained that he had chosen this doctor because he could speak his language and communication was easier.
Mr Dragas was prescribed paracetamol. He was referred to physiotherapist Mr Vladimir Colovic and had 8-9 months of physiotherapy but said that the treatment was providing only short-term relief of his symptoms.
Mr Drags was then referred to Dr Medhat Guirgis, orthopaedic surgeon. Mr Dragas confirmed he had first visited the doctor on 2 October 2018, and he continued to see him on a regular basis ever since.
Mr Dragas said that he was referred for a steroid injection to his right shoulder.
This was performed at Rayscan Imaging on 10 October 2018. Mr Dragas said he obtained some temporary relief lasting for 2-3 days. He couldn’t recall whether he had a second injection to his right shoulder. At some point after the accident, he estimates approximately two years, he developed swelling in his right knee and the knee was drained. He also had steroid injection to the right knee.
When Medical Assessor Gibson asked Mr Dragas specifically about proposed surgical procedures to his neck, low back, and knees, from his recollection these were recommendations made by Dr Guirgis. He could not recall having seen any other specialists.
Currently, Mr Dragas reported suffering with posterior neck pain and, at times a feeling of numbness in the neck. Pain spreads towards his right shoulder girdle. He said he also had noticed numbness over both shoulders. There was pain and pins and needles spreading down his right arm to the right hand. On clarification, these symptoms did not conform to any radicular distribution.
On specific questioning, apart from symptom referral to the neck, there were no specific right shoulder complaints.
When Medial Assessor Gibson asked about back pain, he indicated pain spreading from the neck, down to the upper back and to the lower back. Mr Dragas said this was present most of the time, with radiation to right greater than left leg over anterior thigh, shin, soles of the feet.
Mr Dragas currently takes 2-3 Panadeine Forte tablets every few days. Alternatively, he would take one Celebrex tablet.
Mr Dragas said the Panadeine Forte upsets his stomach and this is why he takes Celebrex instead as he found this less likely to cause symptoms. He takes an Endep tablet several times a week and 1-2 Somac tablets every few days.
Mr Dragas had continued to visit Dr Todorovic and Dr Guirgis. There was no other treatment at present and no other treatment planned.
Clinical Examination by Medical Assessor Gibson
On examination, Mr Dragas was 174cm tall and weighed 89kg. He was wearing a fitted button-down shirt, jeans, and sneakers. He had a muscular build. He had a normal gait. He was able dress and re-dress and climb on and off the examination couch.
On examination of the neck, there was diffuse tenderness. On formal assessment there was half normal flexion and extension, three-quarters normal lateral flexion, two-thirds normal rotation. However, movements were greater at other times during the assessment. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance. There was reduced sensation involving the entire right upper limb. Upper limb reflexes and power were normal bilaterally.
On examination of both shoulders, movements were variable. Active shoulder movements as measured with a goniometer were as follows:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 90°/100° | 150°/180° |
| Extension | 30°/20° | 50°/50° |
| Internal Rotation | 70°/50° | 80°/80° |
| External Rotation | 70°/50° | 80°/80° |
| Abduction | 90°/110° | 140°/180° |
| Adduction | 40°/20° | 40°/50° |
When asked about the variability in his neck and shoulder movements, Mr Dragas explained it was due to pain.
On examination of the lower limbs, circumferential measurements were equivalent, therefore there was no muscle wasting. There was normal power and reflexes. There was reduced sensation affecting the entire right leg. Neurotension signs were negative.
On examination of both knees, flexion was 120 degrees bilaterally with no crepitus or instability demonstrated. Extension was full bilaterally.
THE PANEL’S CONSIDERATION OF THE PARTIES SUBMISSIONS
The Panel resolved it was necessary to conduct a medical examination of the claimant in order to address the parties’ submissions.
Radiological imaging
Mr Dragas submits that MRI evidence regarding his injuries was before Medical Assessor Bodel, yet were ignored, with no reason why some of the MRI evidence was insufficient.
The Panel considered the relevant radiological imaging.
The reports of the MRI scans of the cervical spine and lumbar spine performed
12 September 2022, were consistent with minor degenerative disc disease. The MRI scan of the right knee performed 17 May 2018 had shown patellofemoral chondrosis, grade 3 chrondrosis of the medial femoral condyle, chronic femoral attachment ACL rupture and lateral meniscal tear with small paracentral cyst. The MRI scan of the left knee performed
17 May 2018, had shown synovitis due to possible villonodular synovitis, intact cruciates and no meniscal injury.The first available imaging of the right shoulder was performed 15 March 2018. This was on referral from Dr Guirgis, who had noted clinical findings consistent with impingement. The report had shown “… tendinosis of the subscapularis and supraspinatus with intrasubstance delaminating tears of the supraspinatus”.
Medical Assessor Gibson also noted that Dr Robin Mitchell, had commented that the “…MRI carried out on the right shoulder identified long-standing significant degenerative changes which, on the history available, were asymptomatic prior to the subject motor vehicle accident”.
Cervical spine
Mr Dragas submits that neck pain and dysmetria qualify as DRE category II or 5% WPI, and this is a significant finding of neck injury. In the examination, Medical Assessor Gibson diagnosed Mr Dragas had no muscle spasm or guarding, and no asymmetry of movements.
Lumbar spine
Mr Dragas submits that his shoulder impairments would total at least more than 1% WPI. Medical Assessor Gibson, on behalf of the Panel, examined active shoulder movements at paragraph [98] with a goniometer and noted movements were variable. However, the Panel notes that for a treatment dispute, it is not required to calculate WPI as part of the examination and there is no inherent inconsistency between an acceptance of symptomology and a finding that treatment is not causally related to the accident or reasonable or necessary.
Causation
Mr Dragas submits that Medical Assessor Bodel did not offer any reasons for his disagreement with the proposition that the treatment for the claimant’s injuries was caused by the accident and reasonable and necessary, nor did he elaborate on why he found that the other injuries except the claimant's shoulder injections were not causally related or reasonably necessary.
The Panel notes, Mr Dragas was a 56-year-old right-handed man who was involved in a rear-end motor accident on 18 November 2017. Following the accident, he was able to drive his vehicle home. He had not attended for any medical attention until the next day. He had not required any hospital admission or immediate imaging following the accident.
Mr Dragas visited a Serbian speaking general practitioner, Dr Velobir Todorovic on
22 November 2017. The doctor completed a medical certificate which listed injuries to neck, right shoulder, upper and lower back and both knees. This certificate being completed within days of the subject accident.Over the years, Mr Dragas had received conservative treatment with medications, physiotherapy, and steroid injections to his right shoulder.
The Panel’s conclusion on the basis of the above evidence, was that there had been an injury to the right shoulder, by way of initiation of aggravation, that could probably be addressed by steroid injection. Therefore, the right shoulder steroid injections were related to the subject accident and reasonable and necessary under the circumstances.
The Panel finds that there was no clinical indication based on the Panel’s examination and no imaging findings that would provide any indication for any surgical procedure or even surgical review for the neck, low back or either knee. It was the Panel’s opinion that these injuries sustained in the 2017 subject accident were of a soft tissue nature on the background of underlying age-related degenerative change, and the natural history of such injuries is for resolution with conservative, rather than surgical measures.
Conclusion
The Review Panel concluded that on the basis of the re-examination, the history and the clinical examination, documents and material considered of the claimant, the certificate of Medical Assessor Bodel is affirmed.
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