Few v QBE Insurance (Australia) Limited
[2024] NSWPICMP 872
•19 December 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Few v QBE Insurance (Australia) Limited [2024] NSWPICMP 872 |
CLAIMANT: | Jason Few |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 19 December 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 29 August 2018 when the insured utility vehicle reversed into him, crushing him between the utility vehicle and a truck; assessment of permanent impairment for injuries to the pelvis, lower back, buttocks and hips; weight gain greater than 30kg; claimant re-examined by Medical Review Panel (Panel); where injuries to the neck, thoracic spine, right shoulder and digestive system – intestinal motility disorder, were not referred to the Personal Injury Commission for assessment as part of the medical dispute of the medical assessment matter and therefore not before the single medical assessor for assessment; where the claimant requested the Panel to assess the non-referred injuries; Mandoukos v Allianz Australia Insurance Ltd applied; Held – the medical dispute before the Panel is limited to the matters in dispute before the single medical assessor; the certificate of the single medical assessor is revoked as the Review Panel reached different conclusions on the assessment of permanent impairment. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under ss 7.26 (7) and (9) of the Motor Accident Injuries Act 2017 (the MAI Act) The issue determined by the Review Panel is 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%. Determination
· buttocks – soft tissue injury (gluteal haematoma) with residual organised haematoma causing swelling; · lumbar spine – soft tissue injury; · abdomen – weight gain greater than 30kg; · hip – bilateral decreased range of motion and hip pain; · pelvis – pain and soft tissue injury and right gluteal haematoma, and · sacrum/Coccyx – chronic pain. |
STATEMENT OF REASONS
BACKGROUND
On 29 August 2018, the claimant, Jason Few, was involved in a motor accident when by a utility vehicle insured by QBE, reversed into him, crushing him between the utility vehicle and a truck.
The claimant claimed that in the accident, he sustained injuries to his pelvis, lower back, groin, buttocks, testicles, hips and right shoulder. He also claimed to have developed a psychological injury.[1]
[1] Page 450 of the claimant’s bundle.
The insurer accepted liability to pay the claimant statutory benefits and damages arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of his claim for common law damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant had suffered whole person impairment (WPI) exceeding 10% for his physical injuries caused by the accident.
To resolve the dispute, pursuant to s 7.20(1) of the MAI Act, the claimant made an application to the Personal Injury Commission (Commission) to be referred for a medical assessment.
In that application (dated 7 October 2022), the claimant listed the following injuries for assessment:
· lumbar spine – chronic lumbar pain;
· sacrum/coccyx – chronic pain;
· buttocks – right large haematoma and ongoing pain; numbness and reduced sensation; gluteus muscle tear, partial thickness tear;
· pelvis – pain and soft tissue injury and right gluteal haematoma;
· male reproductive – groin injury;
· hip – bilateral decreased range of motion and hip pain; antalgic gait;
· abdomen – weight gain greater from 30kg, and
· psychiatric condition – persistent depressive disorder, with intermittent major depressive episodes, with current major depressive episode, with anxious distress.
The President of the Commission referred the male reproductive groin injury and the psychiatric or psychological injuries to other Medical Assessors for assessment.
The remaining physical injuries were referred by the President to Medical Assessor Cameron for assessment.
On 26 August 2023, the Medical Assessor issued a certificate finding that the claimant’s injuries gave rise to a permanent impairment of 1%.
THE REVIEW APPLICATION
On 25 September 2023,[2] pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment of the Medical Assessor Cameron to a review panel for review. Accordingly, the review application was made in conformity with the time prescribed by s 7.26(10) of the MAI Act.
On 20 October 2023, the President determined that the medical assessment should be referred to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor David Gorman, Medical Assessor Margaret Gibson and Member Maurice Castagnet (the Panel).
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.[4]
[4] 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. The panel may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
RELEVANT LEGISLATION AND GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[7]
[7] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.2.
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[8]
[8] Clause 6.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[9]
[9] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“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, medical practitioners they may be, 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.”
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[10]
MEDICAL ASSESSMENT UNDER REVIEW
[10] [2022] NSWSC 372 (Briggs (No 2)) at [73].
In his certificate, Medical Assessor Cameron found that the following injuries were caused by the motor accident:
· buttocks – soft tissue injury (gluteal haematoma) with residual organised haematoma causing swelling, and
· lumbar spine – soft tissue injury.
The Medical Assessor found that the following injuries were not caused by the motor accident:
· abdomen - weight gain greater than 30kg;
· buttock - 10cm subcutaneous fluctuant mass; gluteus muscle tear, partial thickness tear; numbness and reduced sensation; right, large hematoma and ongoing pain;
· hip - antalgic gait; bilateral decreased range of motion and hip pain;
· lumbar spine - chronic lumbar pain;
· pelvis - pain and soft tissue injury and right gluteal hematoma, and
· sacrum/coccyx - chronic pain.
At paragraph 19 of his certificate, the Medical Assessor found that the motor accident also caused a soft tissue injury to the pelvis. However, at paragraph 22, the Medical Assessor indicated that an injury to “Pelvis: pain and soft tissue injury and right gluteal haematoma” was not caused by the motor accident.
The Medical Assessor stated that there was no evidence of specific injuries to either hip.
The Medical Assessor assessed the injury to the buttocks as giving rise to a WPI of 1% and the injury to the lumbar spine as giving rise to a WPI of 0%.
The Medical Assessor indicated that “weight gain” was not an assessable injury.
SCOPE OF THE MEDICAL ASSESSMENT MATTER BEFORE THE PANEL
In submissions to the Panel dated 23 December 2023, the claimant indicated that apart from the injuries that were listed for assessment in his original application to the Commission dated 7 October 2022, he also sustained the following injuries in the accident:
· Neck;
· thoracic spine, intrascapular region;
· right shoulder pain, and
· intestinal motility disorder.
The claimant submitted that as the Panel will be conducting the review as “a new assessment of all matters with which the medical assessment is concerned” in accordance with s 7.26(6) of the MAI Act, the claimant has included the above injuries for assessment of permanent impairment.
The claimant submitted that by way of supporting evidence for the assessment, he has included in his evidentiary bundle of documents to the Panel, the medical reports of orthopaedic surgeon, Dr James Bodel dated 16 May 2023 and gastrointestinal surgeon,
Dr Anthony Greenberg dated 18 April 2023.
The Panel notes that Dr Greenberg assessed WPI of 2% for intestinal motility disorder as an impairment of the digestive system[11] and that Dr Bodel assessed WPI of 6 % for the right shoulder as an upper extremity impairment.
[11] Page 55 of the claimant’s bundle.
The insurer indicated to the Panel that the reports of Dr Greenberg and Dr Bodel were not served upon the insurer until on 20 November 2023, which was well after the certificate of Medical Assessor Cameron dated 26 August 2023, was issued. On that basis, it could not therefore be said that the alleged digestive impairment was part of the dispute before Medical Assessor Cameron and therefore the matter cannot be referred to the Panel for assessment.
The insurer says that its position is consistent with the decision of the Court of Appeal in Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71 (Mandoukos).
The Panel accepts the insurer’s submissions for the reasons that follow.
Section 7.17 in Part 7 (Dispute Resolution), Division 7.5 (Medical Assessment) provides:
“In this Part—
medical assessment means an assessment of a medical assessment matter under this Division.
medical dispute means—
(a) a dispute between a claimant and an insurer about a medical assessment matter; or
(b) an issue arising about a medical assessment matter in proceedings before a court for damages or in connection with the assessment of a claim by the Commission”
The provisions of s 7.17 were considered in Mandoukos.
At [73], Stern JA said:
“The phrase ‘about a medical assessment matter’ in s 7.17 does not mean that the medical dispute necessarily encompasses the whole of the medical assessment matter. Rather, a dispute between a claimant and an insurer about a medical assessment matter, in s 7.17, is a reference to the dispute which has in fact arisen between a claimant and an insurer, albeit that, to fall within the definition of ‘medical dispute’ in s 7.17, that dispute must relate to the subject matter of a medical assessment matter.”
and at [78]:
“Thus, the medical dispute ‘about a medical assessment matter’ will, in each case, be a question of fact depending upon the ambit of the dispute between the parties at the relevant time having regard to the competing claims made. Whilst it is of course possible that a dispute about a medical assessment matter might comprise the whole of the relevant medical assessment matter, that is not necessarily so "
In this matter, it is apparent from the claimant’s own submissions that in his original application to the Commission dated 7 October 2022, he did not include any injury to the digestive system, neck, thoracic spine or the right shoulder as part of the “medical dispute” referred “for assessment as a medical assessment matter”. Consequently, it follows that none of those injuries were referred by the Commission to Medical Assessor Cameron for assessment as the medical assessment matter (the non-referred injuries).
The medical dispute now being reviewed by the Panel is limited to the matters in dispute before Medical Assessor Cameron. The non-referred injuries are not part of that dispute.
This medical review panel cannot assess the non-referred injuries. That is not to say that the non- referred injuries cannot be assessed by a Medical Assessor.
MATERIAL BEFORE THE PANEL
The claimant submitted a paginated and indexed bundle of documents comprising of 484 pages and the insurer submitted a paginated and indexed bundle of documents comprising of 673 pages.
The Panel considered the material filed by the parties.
The Panel directed the parties to make submissions regarding the scope of the medical dispute that is the subject of the medical assessment matter before the Panel. That issue was discussed earlier in these reasons under its own heading.
In regard to that issue, the Panel also considered the written submissions of the parties dated 2, 6 and 7 November 2024.
SUBMISSIONS
Claimant’s submissions
The claimant’s submissions may be summarised as follows:
(a) the Medical Assessor fell into error when conducting his assessment of the claimant’s hip injury by enquiring whether the accident caused a specific injury to the hips rather than enquiring whether the accident was a contributing cause to the symptoms in the hips;
(b) the Medical Assessor fell into error by failing to conduct his assessment in accordance with the principle in Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351 (Nguyen) in that there need not be a direct injury to the hips in order to consider whether an injury to another part of the body has resulted in an impairment in the hips;
(c) the Medical Assessor fell into error in the same way regarding his assessment of the claimant’s weight gain and injury to the pelvis;
(d) once the weight gain is determined to be causally related to the accident, the resultant impairment ought to be considered as being causally related to the accident, and
(e) similarly, there need not be a separate injury to the pelvis as a contribution by the accident to the impaired body part is sufficient for an assessment of impairment to proceed.
Insurer’s submissions
The insurer’s submissions may be summarised as follows:
(a) weight gain does not give rise to an assessable permanent impairment under AMA 4, which was correctly noted by the single Medical Assessor;
(b) the insurer says that in Nguyen, Hall J determined that when an injury to the cervical spine results in referred pain to the shoulder, which in turn creates a permanent impairment of the shoulder, that permanent impairment can be attributed to the subject accident. There is no mechanism for the claimant to be assessed as suffering from any injury to the hips or pelvis, or indeed any weight gain in accordance with the Nguyen Principle, nor has the claimant provided any explanation as to what injury he has suffered that has resulted in a permanent impairment of the hips, pelvis or his alleged weight gain;
(c) there is no evidence of the claimant suffering from a permanent impairment of the hips from either as a direct injury or an injury to another region causing referred permanent impairment, and
(d) given that the claimant referred a soft tissue injury to the pelvis for assessment, the Medical Assessor was in fact required to determine whether a ‘direct injury’ such as a soft tissue injury was suffered by the claimant.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel that is directly relevant to the matters under review, may conveniently be summarised as follows.
Pre-accident records
According to the material before the Panel, there is no evidence of any pre-accident treatment or any condition relating to the buttocks, lumbar spine, hips, buttocks and pelvis.
The claimant’s statement
In his application for personal injury benefits dated 2 October 2018, the claimant described his injuries as follows:
“Back pain, bad brussin [sic], right shoulder pain, lower back pain, heaps off [sic] swelling, scratches and scareds [sic] in my back.”[12]
[12] Page 471 of the claimant’s bundle.
Post-accident records
Clinical records of Coffs Harbour Health Campus
At 4:05pm on 29 August 2018, the following notes were recorded in the emergency department by nurse, Robyn Obrien:
“Patient crushed momentarily between ute & truck at workplace. Walker in. Pain right buttock and lower left back. Denies other injury. Given Nurofen & paracetamol as charted. Awaiting effect. Obs as charted.” [13]
[13] Page 178 of the claimant’s bundle.
At 4:12pm, the following notes were recorded by Dr Catherine Lunter:
“caught between stationary truck and UTE which was reversed into him
caught himself on right buttock/abdomen
denies injury to head/neck
thinks he moved through a gap
car moved forward
mobilised afterwards
pain around right buttock with numbness”[14]
[14] Page 177 of the claimant’s bundle.
On examination, the following observations were made by Dr Lunter:
“abdo – large body habitus, abrasions over right flank and apron crease. No active bleeding, minimal tenderness abrasion over right lower lumbar region. Patch of numbness size of hand, tone, power, sensation and reflexes normal in lower limbs
No verbal tenderness
PERL”[15]
[15] Page 177 of the claimant’s bundle. PERL is an abbreviation for “Pupils Equally Responsive to Light”.
At 4:38pm, the following notes were recorded by the emergency department by nurse Patricia Barnes:
“walked into ED
History of being crushed between ute and back of truck today – intermittent crush approx “few seconds.” Pain now rt hip and rt buttock – obviuos [sic] bruisign [sic] and superficial abrasions to rt hip.”[16]
[16] Page 178 of the claimant’s bundle.
The CT scan of the abdomen (portal venous phase) performed on 29 August 2018 made the following findings:
“there is a large haematoma, centred upon the medial aspect of right gluteous maximus in close proximity to the sciatic nerve. There is no evidence of active bleeding. The liver, gallbladder, spleen, adrenal glands, pancreas are all unremarkable. No focal abnormalities are identified with small or large bowel. Allowing for moderate degenerative changes in the symphysis pubis, lower lumbar spine, and sacroiliac joints, there is no convincing evidence of acute fracture or dislocation. Incidental note is made of bilateral pars interarticularis defects L5 and S1.”[17]
Clinical records of Tristar Medical Group
[17] Page 176 of the claimant’s bundle.
The clinical records of the general medical practice, Tristar Medical Group recorded the following consultations and treatment:
(a) 8 September 2018 – presented with pain in lower back 5 days a week; says he got crushed between a truck and a utility at work; went to Coffs Harbour Hospital; says he almost lost his life and feel thankful to be alive. On examination – walking with difficulty; using crutches; consider physiotherapy; prescribed pain medications.[18]
[18] Page 214 of the claimant’s bundle.
(b) 17 September 2018 – complained of pain in the tail bone and right buttock; says he was hit really hard; pain does not radiate; no neurological symptoms. On examination – gluteal muscle tenderness, coccyx tender; no loss of sensation, power and tone, lower limb normal; referred for physiotherapy; MRI of lumbosacral spine and pelvis requested.[19]
[19] Page 215 of the claimant’s bundle.
(c) 2 October 2018 – complained of pain the gluteal region, seeing physiotherapist; non-compliant with medication. On examination – right gluteal, no redness, no swelling, some tenderness; better than last visit; antalgic gait; not with walking stick at the moment. [20]
[20] Page 216 of the claimant’s bundle
(d) 29 October 2018 – attended for Workcover certificate; seeing physiotherapist; minimal pain in the right thigh; no swelling; muscle pain. [21]
[21] Page 217 of the claimant’s bundle.
(e) 8 November 2018 – complained of flare up with back pain, lifted 5 litres of fluid and developed pain and swelling in his back. On examination – mild swelling on the tail bone.[22]
[22] Page 217 of the claimant’s bundle.
(f) 7 December 2018 – attended for Workcover certificate; improving.[23]
[23] Page 218 of the claimant’s bundle.
(g) 15 January 2019 – attended for review; pain in the right gluteal has gone; says the area feels swollen. [24]
[24] Page 219 of the claimant’s bundle.
(h) 15 February 2019 – complained of swelling in the right gluteal; worse after hard weeding. [25]
[25] Page 220 of the claimant’s bundle.
(i) 15 March 2019 – attended for Workcover certificate; says he feels much better since not bending over to do hand weeding. On examination – swollen right gluteal area; not inflamed. MRI scan of the gluteal region requested.[26]
[26] Page 220 of the claimant’s bundle.
(j) 12 April 2019 – MRI discussed; pain improving. On examination gluteal region, tender.[27]
[27] Page 221 of the claimant’s bundle.
(k) 10 May 2019 – attended for review; “pain ceased”; numbness in gluteal area; has been doing pre-injury duties.[28]
[28] Page 475 of the insurer’s bundle.
(l) 31 August 2020 – flare up with gluteal haematoma; pain today; area was red; consider removal of haematoma if concerning or frequent flare up.[29]
[29] Page 481 of the insurer’s bundle.
(m) 22 February 2021 – attended for back pain review; has a new claim for an old injury; flared up in October 2020; worse with the role they gave him at work; back pain radiating to right buttock.[30]
[30] Page 230 of the claimant’s bundle.
(n) 24 February 2021 – attending for review; lower back pain. On examination – back pain radiating to buttock; referred for physiotherapy.[31]
[31] Page 231 of the claimant’s bundle.
(o) 9 March 2021 – complained of lower back pain, bilateral hip pain, seeing physiotherapist. On examination – bilateral hip tender, not swollen, no deformity, movement restricted; lower back tender, some restriction. [32]
[32] Page 231 of the claimant’s bundle.
(p) 6 April 2021 – attended for review, pain in lower back; seeing physiotherapist; advised to continue physiotherapy and weight reduction.[33]
[33] Page 231 of the claimant’s bundle.
(q) 4 May 2021 - attended because of flare up of back pain; advised to continue physiotherapy.[34]
(r) 1 June 2021, 22 June 2021, 21 July 2021, 18 August 2021 – complained of flare up of lower back pain. [35]
(s) 15 September 2021 – reported that he has attended pain management assessment with Dr Graham Wright. [36]
(t) 7 October 2021 – telephone consultation – complained of back being sore. [37]
(u) 15 October 2021 – attended for Workcover certificate. No improvement in lower back pain. [38]
(v) 15 November 2021 -attended for Workcover review; lower back pain; depressed mood; seeing physiotherapist and psychologist. [39]
(w) 13 January 2022 – complained of flare up of back pain a few days ago; seeing physiotherapist. On examination – lumbar spine mildly tender, some restriction flexion range of movement and lateral flexion. [40]
(x) 10 February 2022 – complained of back pain; told to see neurosurgeon; says he does not want surgery, he prefers to see surgeon who would do “lap band” for weight management.[41]
(y) 11 March 2022 – complained of back pain still; says he is not able to work.[42]
(z) 10 May 2022, 7 June 2022 and 5 July 2022 - complained of back pain; intermittent; worse with certain activities.[43]
[34] Page 233 of the claimant’s bundle.
[35] Page 235 of the claimant’s bundle.
[36] Page 239 of the claimant’s bundle.
[37] Page 240 of the claimant’s bundle.
[38] Page 240 of the claimant’s bundle.
[39] Page 241 of the claimant’s bundle.
[40] Page 243 of the claimant’s bundle.
[41] Page 496 of the insurer’s bundle.
[42] Page 497 of the insurer’s bundle.
[43] Page 498 of the insurer’s bundle.
According to the clinical records of Park Beach Family Practice (which the Panel understands, is part of the Tristar Medical Group) there were consultations with the claimant on 19 January 2023, 14 June 2023, 12 July 2023, 18 August 2023 and 15 September 2023 for complaints of lower back pain.[44]
[44] Pages 424-427 of the insurer’s bundle.
Beach Street Family Practice
According to the clinical records of Beach Street Family Practice, the following notes of consultations with the claimant were recorded:
(a) 10 November 2020 - had an exacerbation of his back injury in August 2018; was asked to pick up several pots off the ground, very light weight but repetitive action; pain in lumbar back extending over to the right; no radiculopathy, no weakness; wakes up stiff and improving during the day. On examination – no midline back pain, pain in the upper right gluteal on palpation; normal range of movement of “T/L/C spine”.[45]
(b) 24 November 2020 – second harder massage left him sore; reason for visit - back pain.[46]
(c) 21 January 2021 – hurt back yesterday; was trying hand weeding; sharp pain to mid back, “shock” up the spine; today feels back to normal; intends to see physiotherapist tomorrow.[47]
[45] Page 70 of the insurer’s bundle.
[46] Page 71 of the insurer’s bundle.
[47] Page 72 of the insurer’s bundle.
Radiological investigations
According to the clinical records of the Tristar Medical Group, an MRI scan of the spine - lumbosacral and soft tissue pelvis was apparently performed on 17 September 2018, but these image studies do not appear to be before the Panel.
An MRI of the pelvis performed on 5 April 2019 by Dr Sohrabh Memon recorded the following conclusion:
“The right gluteal haematoma is reduced in size to the previous study, in keeping with slow evolution of a partial thickness maximus muscle tear. No additional injury is identified.”[48]
[48] Page 76 of the claimant’s bundle.
An X-ray of bilateral hips and pelvis performed on 9 March 2021 recorded the following findings:
“Mild to moderate degenerative changes of the femoroacetabular joints bilaterally, with joint space loss and subchondral sclerosis. Minor bilateral acetabular overcoverage. Subtle bony prominence identified in the region of the right femoral head and neck junction.
No fracture, dislocation, or destructive bone lesion is identified.”[49]
[49] Page 516 of the insurer’s bundle.
According to the clinical records of the Tristar Medical Group, an MRI scan of the lumbar spine and coccyx was also apparently performed on 9 March 2021, but these image studies do not appear to be before the Panel.
Clinical records of Hoys Physiotherapy (Hoys)
According to the clinical records of Hoys, the claimant received several sessions of physiotherapy treatment in the period 24 September 2018 to 4 December 2018 for his “lower back injury”.[50]
[50] Pages 80-88 of the claimant’s bundle.
According to a report issued by physiotherapist, Lyn Jennison, the claimant reported right shoulder pain a week after the accident and that his lumbar/right hip injury had been improving.[51]
[51] Page 89 of the claimant’s bundle.
Clinical records of Ergofix Physiotherapy & Ergonomics (Ergofix)
According to the clinical records of Ergofix, the claimant received several sessions of physiotherapy treatment in the period 24 April 2019 to August 2019[52] for his “haematoma and glute max tear”.[53]
[52] Pages 396-433 of the claimant’s bundle.
[53] Page 433 of the claimant’s bundle.
Clinical records of Mid North Coast Physiotherapy
According to the clinical records of Mid North Coast Physiotherapy, the claimant received several sessions of physiotherapy treatment in the period 13 November 2020 to 3 May 2021 for the chief complaint of “lower back pain”.[54] On 16 April 2021, treatment was also given for hip pain.[55]
[54] Pages 146 -172 of the claimant’s bundle.
[55] Page 149 of the claimant’s bundle.
Medico-legal evidence
The claimant was assessed by occupational physician, Dr Andrew Porteous at the request of his lawyers.
In a report dated 10 June 2021, Dr Porteus noted that the claimant reported that he had chronic lumbar back pain and that his right buttock was numb.
Dr Porteous believed that there was a pelvis area crush injury and bruising in the lower back, groin and buttocks with a remaining collection for a large haematoma in the right buttock. He noted that some of this was seen to separate some gluteus minimus fibres indicating there had been a small partial thickness tear.[56]
[56] Page 73 of the claimant’s bundle.
Dr Porteous also believed that an aggravation, acceleration, deterioration or exacerbation of pre-existing lumbar back degenerative change was more likely than not given the associated new description of a lumbar disc.[57]
[57] Page 73 of the claimant’s bundle.
Dr Porteous was of the opinion that all of these injuries were caused by the accident in view of all the symptoms occurring since the accident.[58]
[58] Page 74 of the claimant’s bundle.
The claimant was assessed by orthopaedic surgeon, Dr Simon Kinny at the request of the insurer. In a report dated 15 July 2021 he expressed the opinion that as a result of the accident, the claimant sustained a traumatic haematoma of the right buttock (gluteus maximus) and bruising around the lower lumbar region.[59]
[59] Page 42 of the insurer’s bundle.
The claimant was assessed by orthopaedic surgeon, Dr Murray Hyde Page at the request of the insurer. In a report dated 13 April 2022, Dr Hyde Page expressed the opinion that the claimant had suffered a crush injury in the accident, a soft tissue injury to the lumbar spine associated with bruising and haematoma formation in his buttocks. He noted that the claimant had become morbidly obese since the accident and this has made his back symptoms much worse.[60]
[60] Page 37 of the insurer’s bundle.
Dr Hyde Page assessed a WPI of 0% for the lumbar spine injury.
The claimant was examined by orthopaedic surgeon, Dr James Bodel at the request of his lawyers. In a report dated 16 May 2023, Dr Bodel noted that the claimant complained about pain in his neck and over the top of his right shoulder, lower back pain, pain in both hips and buttocks and thigh pain.[61]
[61] Page 37 of the claimant’s bundle.
Dr Bodel diagnosis was an extensive haematoma formation on the lower part of the back and a probable soft tissue strain in the sacrococcygeal region and the lumbar spine. On examination, there was some haematoma over the top of the right buttock but the dark bruising at the time of the injury had now resolved. Dr Bodel believed there was also a soft tissue injury to the neck and a probable rotator cuff injury in the right shoulder.[62]
[62] Page 38 of the claimant’s bundle.
Dr Bodel was of the opinion that these injuries were a consequence of the accident.[63]
[63] Page 40 of the claimant’s bundle.
He assessed a WPI of 11%, attributing 5% to the lower back injury and 6% to the right shoulder injury.[64]
[64] Page 42 of the claimant’s bundle.
RE-EXAMINATION
The claimant was re-examined by Medical Assessor Gorman on behalf of the Panel on
20 March 2024. The claimant’s ex-partner also attended as a support person.
Pre-accident medical history and relevant personal details
The claimant lives at Sawtell, near Coffs Harbour, with his brother. He has five children aged 33, 25, 23, 17 and 14 years.
At the time of the motor accident, the claimant had been working on a farm for about 13 years. He said this was a job that required standing all day. He said he had some obesity but this was not as significant as now.
The claimant said his health was otherwise good. He smokes approximately 20 cigarettes a day. His alcohol intake currently is 60-80gm per day.
History of the motor accident
On 29 August 2018, the claimant was at work picking blueberries. He was hit by a ute that backed into him and he was crushed between the rear of the ute and a truck. He was “pinned” by the ute which was being driven by his boss. He screamed at the time and he reported that his boss did not seem concerned.
The claimant had severe pain. He was driven to the Emergency Department of Coffs Harbour Hospital. He had an assessment. There was substantial bruising to his buttocks.
History of symptoms and treatment following the motor accident
Subsequently, the claimant saw his usual general practitioner. There was ongoing buttock region pain. The claimant had returned to work following suitable duties. These occurred on and off for several years. Eventually, he could not continue.
The claimant said that since the accident, he had gained a very large amount of weight. He said that he has been consuming considerable amounts of alcohol.
Details of any relevant injuries or conditions sustained since the motor accident
Nil reported.
Current symptoms
The claimant said he had bilateral buttock and hip pain. He said he had difficulty walking. The pain now radiates down the back of his legs. The pain “over the tailbone” is now worse. He still is aware of the right buttock haematoma. The claimant said that he felt “fat and lazy”. He was much less active.
He has gained 50kg. He said that before the accident he was “overweight” but he is much worse now.
The claimant said he is driving only to a limited extent. His ex-partner did all the driving from Newcastle to Sydney for the examination. He said he is limited in his abilities to do things at home. His income is from workers compensation payments.
Current and proposed treatment
Current medications are:
· Eleva for depression,
· Panadeine Forte (6 per day maximum but now only 20 per month), and
· an anti-hypertensive.
He continues to attend his general practitioner monthly.
General presentation
The claimant is right-handed, 163cm in height and weighs 150.1kg. This is a BMI of 56.5 – this is in the morbid obesity range. He was 120kg at the time of the accident – his BMI was then 45 which is still in the severe obesity range.
He walked unaided without a limp but slowly.
Clinical examination - lumbar spine
In the lumbar spine there was markedly and symmetrically reduced range of motion (to 1/2 normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a diffuse prominence over the right buttock due to the haematoma with an area of numbness over the right buttock, approximately 10cm x 7cm.
Clinical examination - lower extremities
There was inconsistent movement at both hips that the claimant said was due to variable pain. The maximum observed flexion was to 80 degrees. The maximal movements are recorded below:
| Hip Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 80° | 80° |
| Extension | 0° | 0° |
| Adduction | 10° | 10° |
| Abduction | 20° | 20° |
| Internal Rotation | 10° | 10° |
| External Rotation | 20° | 20° |
There was a full range of motion at both knees. There was no crepitus or instability.
There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities although he reported intermittent “pins and needles” in the legs.
Comments on consistency
There was inconsistent movement at the claimant’s hips. He said that this was due to variable pain from the hips.
DETERMINATIONS - PERMANENT IMPAIRMENT
Causation and reasons
In the motor accident at work on 29 August 2018, the claimant sustained multiple soft tissue injuries to his pelvis, buttocks and lumbar spine. The Panel notes that there was right hip pain recorded on admission at the hospital but there is no evidence of specific hip joint pathology.
The claimant has gained a substantial amount of weight following the accident and this is likely to increase his disabilities. His increased intake of alcohol and associated obesity and inactivity have resulted in increased joint stiffness and pain in the hips leading to impairment.
Diagnosis and reasons
The diagnoses are listed below and these are consistent with the available clinical records and the information provided by the claimant.
Summary of injuries referred for assessment
The following injuries WERE caused by the motor accident:
· buttocks – soft tissue injury (gluteal haematoma) with residual organised; haematoma causing swelling);
· lumbar spine – soft tissue injury;
· abdomen -weight gain greater than 30kg;
· hip-bilateral decreased range of motion and hip pain;
· pelvis- pain and soft tissue injury and right gluteal hematoma, and
· sacrum/coccyx- chronic pain.
Permanent impairment
The determination as to permanent impairment is made in accordance with the AMA 4 and Part 6 of the Guidelines.
Buttocks – soft tissue injury (gluteal haematoma) with residual organised haematoma causing soft tissue swelling)
The soft tissue injury has resolved but there is a residual organised haematoma that is present. This is assessed by analogy with reference to fat necrosis (cl 6.267 of the Guidelines) because it is similarly an abnormality of subcutaneous tissues. In this situation the TEMSKI table is used which is Table 6.18 of the Guidelines.
The claimant’s impairment of the skin due to this condition is 1% WPI, with reference to this Table, because he is conscious of the skin condition, he is easily able to locate the skin condition, there is no colour contrast and no trophic changes, the anatomic location is not usually visible and there is contour deficit, no effect on ADL, no treatment and no adherence.
Lumbar spine – soft tissue injury
The lumbar spine injury (injury to the lumbosacral spine) is assessed with reference to the Diagnosis Related Estimate method.
The claimant has “no significant clinical findings” with reference to the lumbosacral spine, and therefore DRE Lumbosacral Category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation.
Abdomen: Weight gain greater than 30kg
This is not an assessable impairment.
Hip: Bilateral decreased range of motion and hip pain
The reduced hip range of motion is related to his morbid obesity and his inactivity causing joint stiffness. While he did have direct trauma in the region of the right hip he did not have any direct trauma on the left hip. However, the hip range of motion has been persistently restricted due to the increasing obesity (related to the accident) and inactivity related to the accident. Therefore, based on range of motion, he has been assessed for a permanent impairment.
Applying Table 40 on page 78 of the AMA 4 results in 2% WPI (mild) because of his restrictions in flexion, external rotation, abduction and adduction.
However, the Guidelines state:
“Where there is loss of motion in more than one direction/axis of the same joint, only the most severe deficit is rated - the ratings for each motion deficit are not added or combined.” [65]
[65] Clause 6.85, page 97.
Therefore, each hip has a 2% WPI. For the bilateral hips the WPI is 4%.
Pelvis: Pain and soft tissue injury and right gluteal hematoma
There is no assessable impairment due to any pelvic injury – the right gluteal haematoma is discussed above.
Sacrum/coccyx: Chronic pain
The pain in the coccygeal region does not result in any impairment in the absence of any bone injury or neurological changes.
Total WPI
The total WPI is therefore 5%.
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Buttocks – gluteal haematoma | TEMSKI Table 6.18 | Yes | 1% | 0% | 1% |
| 2 | Lumbar spine – soft tissue injury | Table 72 on page 110 of AMA 4th Edition | Yes | 0% | 0% | 0% |
| 3 | Abdomen – weight gain | Nil assessable | Yes | 0% | 0% | 0% |
| 4 | Hip – bilateral decreased range of motion and pain | Nil assessable | Yes | 4% | 0% | 4% |
| 5 | Pelvis – pain and soft tissue injury and right gluteal haematoma | Gluteal haematoma assessed as above – nil others assessable | Yes | 0% | 0% | 0% |
| 6 | Sacrum/ Coccyx – chronic pain | Nil assessable | Yes | 0% | 0% | 0% |
* %WPI = percentage whole person impairment
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination findings of Medical Assessor Gorman in relation to the injuries to the buttocks, lumbar spine, abdomen, hips, pelvis and sacrum/coccyx.
CONCLUSION
As the Panel has reached different conclusions in relation to the injuries caused by the motor accident and the assessment of permanent impairment, the Panel revokes the certificate of Medical Assessor Cameron and issues a replacement certificate. The new certificate of the Panel is attached at the commencement of these reasons.
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