Gadsden v QBE Insurance (Australia) Limited
[2024] NSWPICMP 795
•26 November 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Gadsden v QBE Insurance (Australia) Limited [2024] NSWPICMP 795 |
| CLAIMANT: | Lyle Gadsden |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Stephen Boyd-Boland |
| MEDICAL ASSESSOR: | Leslie Barnsley |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 26 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment, physical injury; cervical spine, lumbar spine, left shoulder, and right shoulder; Medical Assessor (MA) Ho found that the injuries were caused by the motor accident to the cervical spine, lumbar spine, left shoulder, and right shoulder; MA Ho assessed whole person impairment (WPI) as 10% for right shoulder; re-examination by Panel; the Panel found that the following injuries were caused by the motor accident cervical spine, lumbar spine, and right shoulder; the Panel found that injury to the left shoulder was not caused by the motor accident; consideration of pre-existing impairment and clauses 6.31, 6.32 and 6.33 of the Guidelines; the Panel assessed WPI as 0% to cervical spine, 0% to lumbar spine, and 7% right shoulder; finding a total 7% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 7%; the Panel revoked the earlier certificate and issued a new certificate. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.26 of the Motor Accident Injuries Act 2017 1. The following injuries caused by the motor accident give rise to a permanent impairment of 7% and is not greater than 10%: (a) cervical spine being soft tissue injury; (b) lumbar spine being soft tissue injury, and (c) right shoulder being soft tissue injury. 2. Given the Panel’s findings, the certificate of Medical Assessor Yiu-Key Ho dated |
STATEMENT OF REASONS
BACKGROUND
On 1 September 2019, Lyle Gadsden (the claimant) sustained injury in a motor vehicle accident (the motor accident).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer.
In this context claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Claims are initiated by lodgement of an Application for Personal Injury Benefits and also an application for Damages under Common Law arising out of the motor accident against the insurer. The legislation provides a scheme of statutory benefits (under part 3) and lump sum damages (under part 4).
Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
Claims for damages include damages for economic losses and possibly non-economic loss resulting from accident-related injuries.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available.
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13 and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for medical assessment.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage).
This constitutes a medical dispute within the meaning of the MAI Act.
A medical assessment was conducted by Medical Assessor Yiu-Key Ho who subsequently provided a certificate dated 1 June 2023 (the Initial Assessment).
The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Yiu-Key Ho for assessment:
(a) cervical spine;
(b) lumbar spine;
(c) left shoulder, and
(d) right shoulder.
The Medical Assessor’s Certificate
Medical Assessor Yiu-Key Ho found that the following injuries were caused by the motor accident:
(a) cervical spine being soft tissue injury;
(b) lumbar spine being soft tissue injury;
(c) left shoulder being soft tissue injury, and
(d) right shoulder being soft tissue injury.
Medical Assessor Yiu-Key Ho determined the degree of permanent impairment as follows:
Body part or System
Permanent
Yes/No
Current %WPI
%WPI from pre-existing or subsequent causes
%WPI due to motor accident
1
Right shoulder
Yes
11%
1/10 (1%)
10%
The Review
The claimant lodged an application for review of the assessment of Medical Assessor Yiu-Key Ho.
On 21 September 2023 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
The President of the Commission then convened a panel to conduct the review.
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 decision maker. A ‘new decisionmaker’ 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 provisions apply.The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 41(2) of the PIC Act.
22.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 the proceedings and may determine the proceeding solely based on the written application.
The Review Panel was comprised of two specialist medical practitioners and a legal member. The Panel met on a number of occasions and provided Directions to the parties.
The Review is not a stand-alone hearing but a process involving the Panel seeking evidence, including additional material provided by the parties and further submissions, and potentially further medical examination, then meeting on a number of occasions to discuss the evidence before the Panel and to reach a view on the relevant issues and reduce that to written reasons.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion: 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] and [64].
Both the claimant and the insurer are legally represented and have the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MAI Act.
Whilst the review is by way of a new assessment of all matters with which the medical assessment is concerned this occurs in the context of the initial assessment and certificate, the application for review of the assessment and the determination to conduct a review.
The following injuries were referred by the Commission for assessment:
(a) cervical spine being soft tissue injury;
(b) lumbar spine being soft tissue injury;
(c) left shoulder being soft tissue injury, and
(d) right shoulder being soft tissue injury.
Material before the Review Panel
Directions were issued by the Review Panel.
The parties were asked to provide submissions for the purpose of the Review addressing various specific issues.
The parties provided documentation to the Review Panel.
The insurer provided:
(a) a bundle of documents “DISP - Gadsden - Submissions in reply to application for panel review of Assessor Ho’s Certificate (with enclosures)” being 363 pages.
The claimant provided:
(a) a bundle of documents “Claimant's Submissions in Support of a Review Application - Dated 1 September 2023” being 7 pages.
The insurer relied upon submissions dated 15 September 2023.
The claimant relied upon submissions dated 1 September 2023.
Pursuant to s 7.26(6A) the panel agreed that Medical Assessor Les Barnsley would conduct the medical re-examination of the claimant for the purposes of the review.
In Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 Justice Basten referred to Court of Appeal comments on the volume of material which is routinely provided to Medical Assessors. Justice Basten confirmed that in reasons accompanying a certificate there was not a need to refer to all the documentation to which he or she has had access, but rather to be discriminating as to that material.
The Panel does not intend to refer to each and every document in the substantial volume of material before it, but only those documents considered significant to the issues in dispute.
The claimant’s submissions
The claimant lodged an application for review of the assessment of Medical Assessor Yiu-Key Ho.
The claimant did not take issue with the conclusion of Medical Assessor Yiu-Key Ho that that the following injuries were caused by the motor accident.
(a) cervical spine being soft tissue injury;
(b) lumbar spine being soft tissue injury;
(c) left shoulder being soft tissue injury, and
(d) right shoulder being soft tissue injury.
The claimant took issue with the assessment of permanent impairment made by Medical Assessor Yiu-Key Ho in relation to the following injuries:
(a) cervical spine being soft tissue injury;
(b) lumbar spine being soft tissue injury;
(c) left shoulder being soft tissue injury, and
(d) right shoulder being soft tissue injury.
The claimant’s submissions provide that the claimant was examined by orthopaedic surgeon Dr James Bodel who produced a report dated 11 October 2021. Dr Bodel found an impairment of 5% for the cervical spine, 5% for the lumbar spine, 7% for the right upper extremity and 2% for the left upper extremity. Dr Bodel set out the claimant’s symptoms when compared to the Medical Assessor.
The claimant’s submissions note Dr Bodel found an impairment of 2% to the left upper extremity. The claimant’s submissions note that at page 3 under the heading “current symptoms” there is no reference whatsoever to the left shoulder. The Medical Assessor was required to clearly provide whether the claimant has symptoms in the left shoulder and if not, why, and what he tested for.
The claimant’s submissions note the Medical Assessor found an impairment of 11% with respect to the right shoulder and they deducted “1/10”. The claimant challenges this deduction.
The insurer’s submissions
The insurer did not take issue with the conclusion of Medical Assessor Yiu-Key Ho that that the following injuries were caused by the motor accident:
(a) cervical spine being soft tissue injury;
(b) lumbar spine being soft tissue injury;
(c) left shoulder being soft tissue injury, and
(d) right shoulder being soft tissue injury.
The insurer took issue with the assessment of permanent impairment made by Medical Assessor Yiu-Key Ho in relation to the following injuries:
(a) right shoulder being soft tissue injury.
The insurer challenges the deduction made in respect of assessment of permanent impairment in relation to the right shoulder.
The insurer notes that Medical Assessor Ho has identified the presence of a chronic supraspinatus tear as a likely contributing factor to impairment in the right shoulder.
This is consistent with the pre-accident treating evidence which demonstrates that the claimant sustained right shoulder injury in a previous accident in 2012. Following this accident, the claimant intermittently reported chronic pain to his general practitioner, with recorded comments that the claimant was “not keen” for interventions such as injections or surgery.
The insurer contends that if Medical Assessor Ho accepted that the chronic tear had resulted in pre-existing impairment and associated restriction, he was required to estimate this pre-existing impairment and deduct the same from his assessment findings.
Re-examination of the claimant
Pursuant to s 7.26(6A) the panel agreed that Medical Assessor Les Barnsley would conduct the medical re-examination of the claimant for the purposes of the review.
Mr Gadsden was examined by Medical Assessor Les Barnsley at the Commission’s rooms on 22 March 2024. He attended with his wife as a support person. Niamh Gallagher, a member of the Commission’s staff was present for the duration of the assessment as an observer. At the end of the examination, Mr Gadsden spontaneously volunteered that the assessment had been conducted politely and respectfully and thanked Medical Assessor Barnsley for the thoroughness of the examination.
At the outset the purpose of the assessment was outlined to Mr Gadsden. It was explained that the assessment did not have the same confidentiality as a standard medical appointment. It was explained to Mr Gadsden that there would not be any involvement in the treatment of his problems. The types of questions and the nature of the examination within outlined to Mr Gadsden.
In the past Mr Gadsden has been diagnosed with type 2 diabetes mellitus. He was also on cholesterol lowering therapy. He has had a bypass graft for coronary artery disease.
In 2012 Mr Gadsden was involved in a motor vehicle accident. He was driving a Vauxhall Viva and he was repeatedly hit on the driver’s side by a truck that was attempting to change lanes. The impact resulted in Mr Gadsden suffering from significant shoulder pain. He recalls not being able to lift the arm after the accident. He cannot recall the details of any investigations and treatment that he had at that time but does recall that he was offered surgery. He declined this as he is not keen on surgery. He said that the pain lasted for several years, and he managed it with exercises. He claimed that it was completely relieved prior to the motor vehicle accident in 2019. Immediately prior to the accident, he was experiencing no shoulder symptoms and was not aware of any loss of range of movement. Functionally, he was able to start a pull-start petrol lawnmower with his right arm as well as the engines on his model boats that were also pull starts. He denies any other injuries or prior symptoms.
The current accident took place on 1 September 2019. He was a pedestrian crossing a road. He has incomplete recollection of the incident. He remembers firstly lying over the car bonnet and then lying across the road in front of the car with the car's engine still running. He was taken by ambulance to Shellharbour Hospital and thinks that he had right shoulder pain at that time. Over the next few days, he had right shoulder, right hand and right foot pain. At some point, he could not remember when, he developed some low back and some neck pain. However, he was adamant in stating that these had both fully resolved and confirmed this in response to direct, closed-ended questions.
Mr Gadsden was seen by Dr Vakil in the first few days after the accident. At that time, he was experiencing pain over the right third finger, mainly on the posterior aspect of the wrist radiating proximately to the distal forearm. He also had pain along the anterior aspect of the right ankle extending from the distal tibia to about 3cm beyond the ankle joint line. He does not recall having any left shoulder symptoms at that time or any time subsequently. Again, this was confirmed with negative responses to direct close ended questions.
Mr Gadsden has not had any persisting low back or neck pain. He has had no neurological symptoms to suggest radiculopathy or non-verifiable radicular symptoms in either his arms or legs. He has had some persistence of the right-hand pain. He was unsure of the exact site of pain in his hand and stated that the pains were not shooting electric or tingling, but he eventually had nerve conduction studies performed in 2023 which he understands demonstrated carpal tunnel syndrome. He went on to have surgery for his carpal tunnel syndrome in July 2023. He was initially pain free for a few months but unfortunately the pain has now returned with some altered sensation in the hand.
Mr Gadsden’s right foot pain has persisted. He describes it as over the anterior portion of the ankle radiating up into the leg and down into the foot. He experiences pain and clicking when walking up and down stairs and on the flat. He had not noticed any swelling and does not describe any numbness tingling or weakness in the foot. He is not being aware of any loss of movement in the ankle.
Mr Gadsden has had persistent right shoulder pain with significant impairments in function. There is no proximal radiation to the neck and no distal radiation to the arm. The pain is located over the shoulder cowl and deltoid. The pain has been associated with a loss of movement so that he has difficulty reaching above his head and does notice diminished carrying capacity with the right hand in contrast to his situation prior to the accident in 2019.
He was specifically asked if he had pain other than in the right hand, right foot and right shoulder. He denied any pain elsewhere. He has not had any other investigations or treatment for his foot but has had the nerve conduction studies and carpal tunnel release for the right hand.
In terms of current treatment, Mr Gadsden is unsure of his medications, but he assured me that he is not on any analgesics or anti inflammatories. He has been offered surgery for the right shoulder but has declined.
Examination findings
Mr Gadsden was cooperative with the examination. At times his responses to questions were tangential and interpretive rather than providing a response to the question that had been asked. He was examined in a hospital gown. His gait appeared normal, and he commented that he was not getting any clicking in the right foot today. He was able to stand on his heels, his toes and both legs independently.
Lumbar spine
Lumbar spinal movements were generally restricted consistent with his age. There was no asymmetry of lumbar movements when assessing flexion, extension, lateral flexion and rotation. There was no guarding or spasm on palpation of the lumbar spine. Lower limb neurological examination was unremarkable. Specifically, power was intact in all muscle groups including plantar flexion and dorsiflexion. Light touch sensation was intact over all dermatomes. Deep tendon reflexes were symmetrical but globally reduced. The circumference of both calves was 34 centimeters measured 12cm distal to the inferior pole of the patella. The circumference of both thighs was 38cm measured 10cm proximal to the upper pole of the patella.
Cervical spine
An examination of the cervical spine there was some symmetrical restriction of rotation to 75% of full range. This would again be consistent with his age. Flexion and extension were symmetrical and lateral flexion was 25° on both sides. There was no guarding or spasm on palpation of the cervical musculature. With the exception of altered sensation in the right hand (see below) and decreased grip in the right hand, there were no neurological abnormalities in the upper limbs. Power, reflexes and light touch were intact. The circumference of the biceps was 27cm on the right and 28cm on the left measured 10cm above the lateral epicondyle. The circumference of the forearms were 26cm on each side measured 10cm below the lateral epicondyle.
Shoulders
On examination of the shoulders there was bony prominence of the right acromioclavicular joint. There was no asymmetric wasting of the rotator cuff musculature. The following table details the range of movement in degrees obtained with repeated testing using a goniometer. Considering the consistency of range noted, and the precipitation of right shoulder pain by these maneuvers a third measurement was not performed.
Flexion
Extension
Abduction
Adduction
External Rotation
Internal Rotation
Right
1st
90
50
90
30
60
80
2nd
120
40
90
30
60
80
Left
1st
130
50
100
40
80
70
2nd
130
50
100
40
80
80
Feet and ankles
On examination of the right foot and ankle there was no swelling. There was no crepitus detectable on active or passive movement of the foot and ankle. On the right plantar flexion was 25° dorsiflexion was 30° eversion 25° and inversion 25°. On the left plantar flexion was 45° dorsiflexion was 30° eversion was 25° and inversion was 40°.
Hands
An examination of the hands he had obvious osteoarthritic changes in the distal and proximal interphalangeal joints. There was no asymmetry of the abductor policis brevis bulk. Grip strength was decreased on the right compared to the left. Abductor policies brevis power appeared normal on both sides. There was no crepitus on movement of the wrist joint and no synovial thickening was noted in the wrist or finger joints. A scar was noted over the palmar aspect of the wrist consistent with his carpal tunnel surgery. There was subjectively decreased sensation over the median nerve distribution of the right hand compared to the left. This was not associated with any painful sensation. The right fourth finger had different sensations on its medial and lateral aspect.
Mr Gadsden was consistent in his presentation today.
In summary, Mr Gadsden has a prior history of a right shoulder injury and documented rotator cuff disease and tear following a motor vehicle accident in 2012. He would appear to have made an excellent functional recovery from this and his right shoulder is reported to be asymptomatic prior to the motor vehicle accident in 2019.
Following the motor vehicle accident in 2019 Mr Gadsden has complaints of injuries to his right hand, right foot and right shoulder. On specific questioning he denied any left shoulder symptoms. He attributes the current loss of movement in his left shoulder to “old age”.
He has evidence of generalised osteoarthritis in his hands and has developed carpal tunnel syndrome which was operated on in 2023. He has complaints of pain in the right anterior ankle with clicking and there is some loss of movement in the ankle without other features of arthritis such as bony prominence or synovial swelling.
He states that he had some neck and back pain early after the motor vehicle accident but spontaneously volunteered that this had resolved. This was confirmed through direct questioning.
The panel considers that of the injuries referred for assessment there are no persisting symptoms in the left shoulder, the neck or the back. Therefore, there is no assessable injury caused to these areas by the motor vehicle accident. With regard the right shoulder the panel considers that there has been an aggravation of a pre-existing problem rendering it symptomatic and therefore the right shoulder injury is caused by the motor vehicle accident. There are additional complaints of pain in the right hand and the right foot and ankle, but these are outside the scope of this review panel.
The assessment of the right shoulder depends upon whether the left shoulder movements found at examination are accepted as a baseline. In the absence of symptoms in the left shoulder the restricted range of movement noted could be taken as the baseline for assessment of the right shoulder. However, it was uncertain if the right shoulder would have had the same range as the left prior to the accident, so the left shoulder range of movement was not used as a baseline (see paragraph 204). As the right shoulder was asymptomatic prior to the motor vehicle accident in 2019 no pre-existing impairment needs to be considered.
AMA Figure
AROM (degrees)
AROM (degrees)
Shoulder Movements
RIGHT
UEI (%)
LEFT
UEI (%)
Flexion
38
120
4
130
3
Extension
38
50
0
50
0
Adduction
41
30
1
40
0
Abduction
41
90
4
100
4
Internal rotation
44
60
2
80
0
External Rotation
44
80
0
80
0
Total
11
Total
7
Mr Gadsden has no assessable impairment of the neck or low back problems. Even if he did the findings today are DRE category I of each part which represents a 0% WPI.
The Panel accepted the examination report from Medical Assessor Les Barnsley, set out above.
The Panel accepted and adopted the findings and clinical opinions of Medical Assessor Les Barnsley, set out above.
Issues for the Review
Pursuant to s 7.26(5) of the MAI Act the review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. That involves a consideration of the nature of the dispute not just following the initial assessment but prior to the initial assessment.
Schedule 2, cl 2(a) of the MAI Act, involves a determination of two issues:
(a) whether the injury (was) caused by the motor accident, and
(b) the degree of permanent impairment of the injured person that has resulted from the injury.
The Panel was required to determine whether the following injuries were caused by the motor accident:
(a) cervical spine;
(b) lumbar spine;
(c) left shoulder, and
(d) right shoulder.
The Panel was required to determine the degree of permanent impairment resulting from the following injuries:
(a)cervical spine;
(b)lumbar spine;
(c)left shoulder, and
(d)right shoulder.
Review of the evidence
Dr Rimmer provided a report dated 2 June 2021. Dr Rimmer noted injuries including right shoulder, right hip, right knee and right foot.
Dr Rimmer reported that the cervical spine was normal on examination, right shoulder no evidence of periscapular wasting… Non tender to firm palpation throughout. Equal range of motion of left and right shoulders, right Hip: normal gait …non-tender to firm palpation. Equal left and right hip range of motion.
In relation to the right knee: range of motion 0 - 120° (right=Left) and pain free, right foot/ankle: he was able to tiptoe and heel weight bear without difficulty. Range of motion of the left and right ankle was equal. Neurovascular system right foot intact.
Dr Rimmer assessed WPI as follows:
(a) right shoulder 0% WPI;
(b) right hip 0% WPI;
(c) right knee 0% WPI, and
(d) right foot/ankle 0% WPI.
Dr Bodel provided a report dated 11 October 2021.
Dr Bodel noted:
“This gentleman was struck by a motor vehicle while crossing the road on Sunday morning at about 7:00am on 01 September 2019. He is of the view that he may have been deliberately struck by the driver. He was thrown up onto the bonnet of the vehicle and apparently hit the windscreen and he next recalls being on the ground with people helping him to the safety of the side of the road.”
Dr Bodel notes injury to the neck and interscapular region of the thoracic spine as well as the right shoulder.
Dr Bodel diagnosed closed head injury, soft tissue musculoligamentous injury to the cervical spine, rotator cuff tear to the region of the right shoulder, mild rotator cuff injury to the left shoulder, musculoligamentous injury to the lower back, contusion to the right hip and direct blow to the front of the right knee.
Dr Bodel found WPI as follows:
(a) DRE Cervicothoracic category II 5% WPI;
(b) DRE Lumbosacral Category II, 5% WPI;
(c) right upper extremity 7% WPI, and
(d) left upper extremity impairment 2% WPI.
Medical Assessor Yiu-Key Ho noted:
“He was hit by a car as a pedestrian on 1 September 2019 and suffered an injury, mainly to the right side of the body, on the right shoulder and the right foot. He did not have any particular treatment to the right foot as it gradually settled down and with not much complaint, while the right shoulder remains sore and stiff.”
The main problem is in the right shoulder. He does not complain about neck pain or back pain anymore, they both subsided around a year after the injury.
Medical Assessor Yiu-Key Ho accepted that the cervical spine, lumbar spine, left shoulder and right shoulder injuries were caused by the accident.
Causation
The Guidelines set out the relevant considerations in relation to causation in Part 6 specifically cls 6.5, 6.6 and 6.7.
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 (Briggs) his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries…”
In Briggs Wright J confirmed that the relevant legal test in relation to causation does not require scientific certainty. It is not to be determined on the basis of scientific certainty, but on the balance of probabilities. A finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible.
The question to be considered is whether the injury was caused or materially contributed to by the accident. It is also noted the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible.
Whether the cervical spine injury (was) caused by the motor accident?
In the certificate dated 1 June 2023 Medical Assessor Yiu-Key Ho concluded that the cervical spine injury was caused by the motor accident.
Medical Assessor Yiu-Key Ho diagnosed the injury as soft tissue injury.
The insurer did not dispute the conclusion that the claimant sustained an injury to the cervical spine.
The claimant did not dispute the conclusion that the claimant sustained an injury to the cervical spine.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed the various medical opinions provided.
Medical Assessor Les Barnsley made a medical determination that the motor accident could have caused or contributed to the cervical spine injury.
We accepted the medical determination of Medical Assessor Les Barnsley and accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the cervical spine injury.
Medical Assessor Les Barnsley diagnosed the cervical spine as soft tissue injury.
Having considered the dynamics of the accident, the reported symptoms of cervical spine pain contemporaneously with the accident, the ongoing complaints in relation to the cervical spine and the consideration of these issues by the other medical professional we accepted that the cervical spine injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the cervical spine injury was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the cervical spine injury.
Whether the lumbar spine injury (was) caused by the motor accident?
In the certificate dated 1 June 2023 Medical Assessor Yiu-Key Ho concluded that the lumbar spine injury was caused by the motor accident.
The insurer did not dispute the conclusion that the claimant sustained an injury to the lumbar spine.
The claimant did not dispute the conclusion that the claimant sustained an injury to the lumbar spine.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed the various medical opinions provided.
Medical Assessor Les Barnsley made a medical determination that the motor accident could have caused or contributed to the lumbar spine injury.
We accepted the medical determination of Medical Assessor Les Barnsley and accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the lumbar spine injury.
Medical Assessor Les Barnsley diagnosed the lumbar spine as soft tissue injury.
Having considered the dynamics of the accident, the reported symptoms of lumbar spine pain contemporaneously with the accident, the ongoing complaints in relation to the lumbar spine and the consideration of these issues by the other medical professional we accepted that the lumbar spine injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the lumbar spine injury was satisfied.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the lumbar spine injury.
Whether the left shoulder injury (was) caused by the motor accident?
In the certificate dated 1 June 2023 Medical Assessor Yiu-Key Ho concluded that the left shoulder injury was caused by the motor accident.
Medical Assessor Yiu-Key Ho diagnosed the injury as soft tissue injury.
The insurer did not dispute the conclusion that the claimant sustained an injury to the left shoulder, specifically a soft tissue injury as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the left shoulder, specifically a soft tissue injury as a result of the motor accident.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed the various medical opinions provided.
Medical Assessor Les Barnsley made a medical determination that the motor accident could have caused or contributed to the left shoulder injury.
We accepted the medical determination of Medical Assessor Les Barnsley and accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the left shoulder injury.
The Panel accepts the evidence was to the effect that:
(a) the claimant had no significant left shoulder symptoms prior to the accident;
(b) the claimant was not receiving treatment in relation to left shoulder immediately prior to the accident;
(c) the circumstances of the accident as described did not suggest any direct trauma to the left shoulder (although this was possible);
(d) at the time of the accident the claimant did not assert that there was any direct impact to the left shoulder (although this was possible);
(e) at the time of the accident the claimant did not assert the onset of immediate pain in the left shoulder, and
(f) there was a significant delay between reports of symptoms in the left shoulder after the accident.
The medical records do not include an account of left shoulder symptoms at the medical consultation immediately following the accident.
Whilst Dr Bodel diagnosed mild rotator cuff injury to the left shoulder the basis for this was not set out in detail in the report. This opinion was not consistent with the other medical opinions.
Medical Assessor Les Barnsley considered that the delay between the accident and reported symptoms in relation to the left shoulder was significant.
Having considered the dynamics of the accident, the reported symptoms of pain contemporaneous with the accident, the onset of complaints in relation to the left shoulder and the consideration of these issues by the other medical professional we did not accept that the left shoulder injury was caused or materially contributed to by the accident.
Whether the right shoulder injury (was) caused by the motor accident?
In the certificate dated 1 June 2023 Medical Assessor Yiu-Key Ho concluded that the right shoulder injury was caused by the motor accident.
Medical Assessor Yiu-Key Ho diagnosed the injury as soft tissue injury.
The insurer did not dispute the conclusion that the claimant sustained an injury to the right shoulder.
The claimant did not dispute the conclusion that the claimant sustained an injury to the right shoulder.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed the various medical opinions provided.
Medical Assessor Les Barnsley made a medical determination that the motor accident could have caused or contributed to the right shoulder injury.
We accepted the medical determination of Medical Assessor Les Barnsley and accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right shoulder injury.
Medical Assessor Les Barnsley diagnosed the right shoulder as an aggravation of a pre-existing problem in the right shoulder rendering it symptomatic.
The Panel accepts the evidence was to the effect that:
(a) the claimant had significant right shoulder symptoms prior to the accident;
(b) the claimant had received treatment in relation to right shoulder prior to the accident;
(c) the claimant had no significant right shoulder symptoms immediately prior to the accident;
(d) the claimant was not receiving treatment in relation to right shoulder immediately prior to the accident;
(e) the circumstances of the accident as described did suggest direct trauma to the right shoulder;
(f) at the time of the accident the claimant did assert the onset of immediate pain in the right shoulder;
(g) shortly after the accident the claimant sought medical treatment in relation to the right shoulder, and
(h) there is medical opinion to the effect that the right shoulder injury was caused by the motor accident.
Having considered the dynamics of the accident, the reported symptoms of right shoulder pain contemporaneously with the accident, the ongoing complaints in relation to the right shoulder and the consideration of these issues by the other medical professional we accepted that the right shoulder injury was caused or materially contributed to by the accident.
The panel considers that there has been an aggravation of a pre-existing problem rendering it symptomatic and therefore the right shoulder injury is caused by the motor vehicle accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the right shoulder injury was satisfied.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the right shoulder injury.
Causation conclusions
The Review Panel found that the following injuries were caused by the motor accident:
(a) cervical spine;
(b) lumbar spine, and
(c) right shoulder.
The Review Panel found that the following injuries were NOT caused by the motor accident:
(a) left shoulder.
Permanent impairment
As noted earlier, permanent impairment is to be assessed in accordance with Chapter 6 of the Guidelines which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
Assessment of the spine generally
Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions:
(a) cervicothoracic;
(b) thoracolumbar, and
(c) lumbosacral.
If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories, and a number of indicia provided (see Table 7).
The first is diagnosis-related estimate (DRE) category I which is selected if there are symptoms which may include pain.
DRE category II requires:
(a) pain with guarding, or
(b) non-uniform range of motion – dysmetria, or
(c) non-verifiable radicular complaints defined in Table 6.8 as:
(i) symptoms (shooting pain, burning sensation, tingling), and
(ii) which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE category III requires radiculopathy which is defined in cl 6.138 as:
“dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(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.”
The degree of permanent impairment of the injured person that has resulted from the cervical spine injury?
In the certificate dated 1 June 2023 Medical Assessor Yiu-Key Ho diagnosed the injury as soft tissue injury.
Medical Assessor Yiu-Key Ho concluded that the permanent impairment resulting from the cervical spine injury was 0%.
The insurer did not dispute the conclusion that the permanent impairment resulting from the cervical spine injury was 0%.
The claimant disputed the conclusion that the permanent impairment resulting from the cervical spine injury was 0%.
The Panel had considered the material provided including the report from Dr Bodel dated 11 October 2021, the account provided by the claimant of his symptoms in relation to his cervical spine and the findings on examination were not as found by Dr Bodel.
The findings on examination by Medical Assessor Les Barnsley, as set out above, fall within DRE category I.
The Panel assessed the cervical spine injury as DRE category I.
The degree of permanent impairment of the injured person that has resulted from the lumbar spine injury
In the certificate dated 1 June 2023 Medical Assessor Yiu-Key Ho diagnosed the injury as soft tissue injury.
Medical Assessor Yiu-Key Ho concluded that the permanent impairment resulting from the lumbar spine injury was 0%.
The insurer did not dispute the conclusion that the permanent impairment resulting from the lumbar spine injury was 0%.
The claimant disputed the conclusion that the permanent impairment resulting from the lumbar spine injury was 0%.
The Panel had considered the material provided including the report from Dr Bodel dated 11 October 2021, the account provided by the claimant of his symptoms in relation to his lumbar spine and the findings on examination were not as found by Dr Bodel.
The findings on examination by Medical Assessor Les Barnsley, as set out above, fall within DRE category I.
The Panel assessed the lumbar spine injury as DRE category I.
Having concluded that the lumbar spine injury had resolved we did not need to assess permanent impairment.
The degree of permanent impairment of the injured person that has resulted from the left shoulder injury
In the certificate dated 1 June 2023 Medical Assessor Yiu-Key Ho diagnosed the injury as soft tissue injury.
Medical Assessor Yiu-Key Ho concluded that the permanent impairment resulting from the left shoulder injury was 0%.
Having concluded that the left shoulder injury was not caused by the motor accident we did not need to assess permanent impairment.
The degree of permanent impairment of the injured person that has resulted from the right shoulder injury
In the certificate dated 1 June 2023 Medical Assessor Yiu-Key Ho diagnosed the injury as soft tissue injury.
Medical Assessor Yiu-Key Ho concluded that the permanent impairment resulting from the right shoulder injury was 10%. This included a finding of an 11% permanent impairment and reducing this by 10% because of pre-existing injuries.
The insurer disputed the conclusion that the permanent impairment resulting from the right shoulder injury was 10%.
The claimant disputed the conclusion that the permanent impairment resulting from the right shoulder injury was 10%.
Based on the assessment set out above, in relation to his right shoulder his UEI is 11%, and WPI is 7%. The relevant AMA tables for this calculation are set out in the table in paragraph 85 and Pie Charts 38, 41 and 44, Pages 43-45, AMA 4 Guides.
The claimant demonstrated a less than average range of movement in the uninjured, left shoulder. This was considered with reference to s 6.51 of the Guidelines. The Panel considered that it was uncertain whether the injured joint would have had similar findings to the uninjured joint before injury, so the left shoulder range of movement was not used as a baseline.
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then it’s possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
In terms of evaluating the value of the pre-existing impairment for that condition, the Panel at first considered cl 1.51 of the Guidelines. This clause permits the use of a contralateral uninjured joint as a baseline if there is a “reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury”.
The Panel noted that he had sustained a prior injury to the right shoulder. This was asymptomatic before the motor vehicle accident.
The preferred methodology for estimating the value of the pre-existing impairment is that of the range of motion model.
The capacity of an assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides page 10:
“For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
Even if we could have been satisfied that it was evidence of such a pre-existing symptomatic permanent impairment, the evidence was not such that the extent of any pre-existing permanent impairment could have been ascertained with any certainty.
The Panel was not satisfied that there was sufficient objective medical evidence of a pre-existing symptomatic permanent impairment in the same region sufficient to determine that, at the time just prior to the motor accident the claimant had a pre-existing symptomatic permanent impairment which would attract an impairment rating.
The findings on examination by Medical Assessor Les Barnsley, as set out above, provide for a 7% WPI.
The Panel determined that the permanent impairment resulting from the right shoulder injury was 7%.
Permanent Impairment Conclusions
The Panel determined the degree of permanent impairment as follows:
Body part or System
Permanent
Yes/No
Current %WPI
%WPI from pre-existing or subsequent causes
%WPI due to motor accident
1
Cervical spine
Yes
0%
0%
0%
2
Lumbar spine
Yes
0%
0%
0%
3
Right shoulder
Yes
7%
0%
7%
Conclusions
Given the Panel’s findings, the certificate of Medical Assessor Yiu-Key Ho dated
1 June 2023 is revoked.The following injuries caused by the motor accident give rise to a permanent impairment of 7% and is not greater than 10%:
(a) cervical spine;
(b) lumbar spine, and
(c) right shoulder.
0
3
0