George v AAI Limited t/as GIO
[2025] NSWPICMP 126
•27 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | George v AAI Limited t/as GIO [2025] NSWPICMP 126 |
CLAIMANT: | Tanya George |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Terence O'Riain |
MEDICAL ASSESSOR: | Tai-Tak Wan |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 27 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review; claimant’s application; accident on 20 May 2018 as pedestrian; whole person impairment (WPI) dispute; certificates from Medical Assessors dated 14 July 2022 (musculoskeletal) and 28 July 2022 (brain injury) assessed combined WPI at 9% (9% & 0% WPI); claimant applied for reviews; Review Panel met in 2023; assessments delayed because claimant not at maximum medical improvement (MMI); claimant re-examined; claimant’s statement on brain injury impact; Held – different clinical findings to original assessments; musculoskeletal conditions 6% WPI; brain injury 0% WPI; Medical Assessors preferred objective evidence in neuropsychological impairment to claimant’s statements; Review Panel revoked and replaced original medical certificates and combined impairment certificate; permanent impairment not greater than 10%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment of Degree of Permanent Impairment Replacement certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. This certificate refers to two medical disputes referred to this Panel arising from the accident dated 20 May 2018. 2. The Panel has assessed that the degree of permanent impairment that has resulted from musculo-skeletal injuries caused by the accident is 6%. It follows that the Panel finds that the degree of impairment is not greater than 10%. 3. This is a different permanent impairment to Medical Assessor Dixon's assessment and certificate issued on 14 July 2022. 4. Accordingly, the Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate. 5. The Panel has assessed that the degree of permanent impairment that has resulted from the brain injury caused by the accident is 0%. It follows that the Panel finds that the degree of impairment is not greater than 10%. 6. The Panel made different clinical findings to Medical Assessor Cameron's assessment and certificate issued on 28 July 2022. 7. Accordingly, the Panel revokes the latter certificate and issues a new Permanent Impairment Certificate. 8. Further, this Panel revokes Lead Medical Assessor Cameron’s combined assessment certificate dated 29 July 2022 and issues a replacement combined assessment certificate under s 7.26 (8) of the Motor Accidents Injuries Act 2017 stating the combined injuries caused by the accident were assessed at permanent impairment of 6% which is not greater than 10%. |
REASONS
BACKGROUND
The insurer bears the liability for the claim for damages arising from the claimant's injuries under the Motor Accidents Injuries Act 2017 (MAI Act).
The claimant was injured in a car accident as a pedestrian on 20 May 2018.
There is a dispute between the parties about the amount of permanent impairment[1] resulting from the claimant’s injuries caused by the accident. The claimant referred the dispute to the Personal Injury Commission (Commission) following s 2 (a) of sch 2 of the MAI Act for a Medical Assessor to determine.
[1] Permanent impairment and whole person impairment (WPI) are synonyms. The phrases tend to be used interchangeably.
The Commission referred the following injuries for assessment on the question of permanent impairment:
· Head – closed head injury with concussion;
· Brain – traumatic brain injury (TBI) with migrainous features;
· Knee – right knee. Major trauma with damage to AC and MCL ligaments;
· Lumbar spine – musculoskeletal injury. Persistent aggravation of previously asymptomatic degenerative lumbar spondylosis with L3/4, L4/5 and L5/S1 disc protrusions and associated multilevel annular tears, secondary to an acute impaction injury;
· Thoracic spine – musculoligamentous injury;
· Cervical spine – musculoligamentous injury. Aggravation of previously asymptomatic degenerative cervical spondylosis with an associated disc protrusion at the C5/6 level;
· Leg – right fibula head fracture;
· Hand – persisting post traumatic right sided carpal tunnel syndrome as a result of her involvement in the accident, a condition which continues to remain mildly symptomatic, and
· Right wrist – sensory deficit of the median nerve.
The Commission referred the permanent impairment disputes to Medical Assessor Dixon and Medical Assessor Cameron who produced impairment assessments dated 14 July 2022 and 28 July 2022. These assessments address the orthopaedic injuries and the head/brain injury, respectively.
Assessments under review
Musculoskeletal injuries
Medical Assessor Dixon found that the claimant’s thoracic spine condition had resolved and assessed the balance of the referred injuries at 9%, being 8% for the right knee and 1% right thumb (hand). All the other injuries were assessed as 0%.
The claimant applied to the President of the Commission under s 7.26 of the MAI Act to refer both assessments to a Review Panel on the grounds that each of the medical assessments were incorrect in a material respect.
In respect to Medical Assessor Dixon’s certificate the claimant submitted that the assessment was incorrect in a material respect because the Assessor “does not indicate how he arrives at 4% Lower Extremity Impairment”.
The claimant also submitted that:
“the claimant is left with no way of knowing the basis upon which table 56 has been used to assess the claimant’s right lower extremity impairment. There may be a mistaken reference to table 56, but there is no way of discerning what the correct table is because no other reasoning in relation to permanent impairment is provided.The claimant cannot ascertain what combinations of lower extremity assessment have been used nor whether they are permissible combinations in accordance with table 6.5 of the Permanent Impairment Guidelines[2]”.
[2] This refers to the Motor Accident Guidelines (current version 9.3) (Guidelines)
The claimant submitted Medical Assessor Dixon’s path of reasoning was deficient.
The claimant also provided submissions about the right thumb and wrist assessments.
The Commission’s Presidential delegate referred Medical Assessor Dixon’s medical assessment to a Review Panel (Panel) on 4 October 2022 as R-M10529835/22.
Brain injury
Medical Assessor Cameron’s impairment assessment addressed the alleged head and brain injuries. The Medical Assessor assessed the brain injury as 0% permanent impairment as a result of the accident.
Specifically, the claimant submitted that Medical Assessor Cameron’s certificate used the wrong Guidelines as he refers to a combination of the Motor Accident Permanent Impairment Guidelines (MAPIGS) which apply to accidents before 1 December 2017, and the correct Motor Accident Guidelines (Guidelines) when assessing permanent impairment.[3]
[3] These guidelines only apply to accidents before 1 Dec 2017, which are to be assessed following the Motor Accidents Compensation Act 1999. Cl 6.164 of the Motor Accident Guidelines version 9.3 uses the same wording and applies to claims under the MAI which uses the same wording.
Following the steps set out at cl 1.164 of the MAPIGS, the Medical Assessor found that he could assess the claimant’s permanent impairment arising from her head injury because he agreed
“there was evidence of a significant impact to the head or a cerebral insult, or that the motor accident involved a high-velocity vehicle impact… and one or more significant, medically verified abnormalities such as an abnormal initial post-injury Glasgow Coma Scale score, or post traumatic amnesia, or brain imaging abnormality.”
He found that the accident caused a mild traumatic brain injury with ongoing cognitive symptoms, as well as musculoskeletal pain.
He also found Ms George did not have an assessable permanent impairment related to a traumatic brain injury because there are no medically verified abnormalities in level of consciousness, brain imaging abnormalities or post-traumatic amnesia.
He also found there was headache or migraine on occasions but this is not an assessable impairment.
The claimant submits that cl 6.166 of the Guidelines sets out the process for assessing permanent impairment from disturbances of mental status and integrative functioning: “Table 6.9 in these Guidelines - the clinical dementia rating (CDR), which combines cognitive skills and function, must be used for assessing disturbances of mental status and integrative functioning.”
Medical Assessor Cameron assessed mental status impairment referring to the “Modified Clinical Dementia Rating Scale”.
It was not apparent what modifications Medical Assessor Cameron applied to the CDR scale detailed in Table 6.9.
It was also submitted that although Medical Assessor Cameron wrote he did not find any medically verified abnormalities in relation to post-traumatic amnesia, amnesia was referred to in the ambulance and hospital records, and in the claimant’s history. He did not state why he would not consider those records medically verified.
The claimant submitted that using a “Modified Clinical Dementia Rating Scale” is not permissible when assessing permanent impairment for a brain injury, and there were scant and in some instances no justification recorded for scores of zero in relation to the 6 categories referred to at page 6 of that certificate.
The claimant submits for example, in relation to Judgment and Problem Solving the Medical Assessor wrote “there are no difficulties.”, without recording how he determined that there were no difficulties. The certificate does not record asking the claimant if she could undertake intellectually demanding tasks, or if she was able to return to work after the accident.
Similarly, in relation to Community Affairs the justification is that “based on the available information there are no restrictions related to brain injury.” The claimant submits it is not apparent what information the Medical Assessor obtained about the claimant’s ability to function in her job or go shopping or engage in social activities post-accident.
Furthermore, there is evidence of impairment. Medical Assessor Cameron states that: “Ms George said she had difficulty with memory and concentration, and she felt very unsettled.” Medical Assessor Cameron did not include that in calculating the impairment.
It is not apparent why he rejected this, or what information he preferred. It was also not apparent whether Medical Assessor Cameron accepted that there was impairment but attributes the impairment to the claimant’s psychiatric injury.
Relating to Home & Hobbies, the justification is that “based on the available history there were no restrictions that relate to the brain injury.” However, the claimant submits the assessor did not ask about the claimant’s home life, hobbies and intellectual interests’ after the accident and these questions are not recorded in the report.
Medical Assessor Cameron was referring to the available history or information without specifying what he relied on. This was deficient.
The Commission’s Presidential delegate referred Medical Assessor Cameron’s medical assessment to a Panel on 14 October 2022 as R-M10531499/22.
The President of the Commission constituted this Panel to review both permanent impairment assessments.
There is a combined permanent impairment certificate dated 29 July 2022 (M10417336/21), which will be set aside if either of the above certificates are not affirmed.
STATUTORY PROVISIONS
The statutory provisions, relevant case law on causation and the Guidelines[4] are set out at Appendix A.
[4] Version 9.3.
Matters considered and decided by the Panel
The Panel convened on 8 February 2023. The Panel discussed the insurers application seeking that Member O’Riain recuse himself from this Panel.
The insurer applied for that step because the Commission had earlier allocated the application to assess damages to Member O'Riain when the insurer applied for directions to produce documents. He made those directions and remitted that application to the Stood Over list.
The insurer submitted in this case there was a risk of perceived bias, but the insurer did not particularise its basis for asserting that.
Member O’Riain referred to the NSW Judicial Commission’s Civil Trials Bench Book chapter on apprehended bias for guidance.
The insurer did not express what might lead Member O’Riain to decide his part of the review other than on “its legal and factual merits”; and there were no submissions or evidence of a “logical connection” between the Member making directions to produce increasing the prospect of the Member departing from the legal and factual merits in deciding this review. [5]
[5] [1-0020] Apprehended bias
Member O’Riain declined to recuse himself from this Panel because issuing directions to produce documents did not require him to examine the merits of the damages claim.
Member O’Riain has informed the Commission’s registry that the eventual damages assessment should be referred to another Member when the medical disputes are resolved.
The Panel decided it was necessary to re-examine the claimant; Medical Assessor Gorman would assess the musculoskeletal conditions, while Medical Assessor Tai-Tak Wan would assess the brain injury. The Medical Assessors decided they would examine the claimant jointly and apply the latest version of the Guidelines.
The Panel noted the claimant lives in South Australia and sought submissions about her availability to attend any re-examination.
The claimant submitted in late March 2023 that she was undergoing treatment with a South Australian brain injury rehabilitation service and that she has had surgery. The claimant's submissions state that the re-examination should be delayed because she would not be at maximum medical improvement for at least a further 12 weeks.
The Commission followed up with the claimant's lawyer quarterly until the claimant answered she was able to attend the Commission’s medical suites on 19 September 2024.
Submissions
Claimant’s submissions
In addition to the submissions supporting review were that the Panel must carry out a fresh assessment of the claimant’s head injury.
Before the Panel can assess whole person impairment assessment of the central nervous system, the Panel must be satisfied that the evidence satisfies the criteria in cl 6.164 of the Guidelines. That section provides:
“For an assessment of mental status impairment and emotional and behavioural impairment there should be:
(a) evidence of a significant impact to the head or a cerebral insult, or that the motor accident involved a high-velocity impact, and
(b) one or more significant, medically verifiable abnormalities such as an abnormal initial post-injury Glasgow Coma Scale score, or post traumatic amnesia, or brain imaging abnormality.”
The submissions were confident that the claimant would satisfy that criteria because Medical Assessor Cameron had found that she did. The claimant submitted that the more difficult task for the Panel is assessing the disputed whole person impairment using the CDR. The claimant’s position is that the Panel must carefully analyse each of the CDR criteria and provide reasons for each score.
Dr Maria Paul, Consultant Physician SA Brain Injury Rehabilitation Service report dated
18 January 2023 indicates that the claimant undertook a rehabilitation program (from January until the end of March, through Brain Injury Rehabilitation Community & Home (BIRCH), in relation to her cognitive difficulties. More recent material was provided shortly before examination.
Musculoskeletal injuries
Since Medical Assessor Dixon assessed the claimant’s other physical injuries (including the right knee), the claimant underwent a right knee arthroscopy.
The claimant provided treating orthopaedic surgeon Peter Stavrou’s reports dated 6 December 2022, 31 January 2023, and 28 February 2023. The claimant is still receiving physiotherapy.
Noting that the claimant had right knee surgery, it will also be necessary for the Panel to assess whole person impairment associated with scarring.
Insurer’s submissions
The insurer submits the claimant’s medical history before the accident is relevant to the disputed injuries.
In 2016 Northcare Physio’s records confirm the claimant sought treatment. The hand-written consultation notes record two attendances:
(a) On 9 March 2016, the claimant reported on and off issues with her feet. There is also reference to some ‘yellow flags,’ and that the claimant thought about the pain “all day every day.”
(b) On 21 June 2016, the notes recorded the claimants feet were “really sore,” though her hips were feeling better. The claimant used “very catastrophising language,” and saying, “it’s dreadful” and “it’s permanent.”
On 9 March 2016, the notes included a diagram suggesting lumbar spine/hip pain and shoulder/scapular pain:
To manage this the claimant received education on her complaint with prescriptions for pain education and manual therapy. Any permanent impairment assessment should include these entries to calculate and deduct pre-existing conditions.
The claimant took almost three years before she reported right arm symptoms to her GP
Dr Muldaliar on 1 April 2021. The GP referred the claimant to Dr Yau for treatment.Dr Yau’s letter dated 6 May 2021confirmed that the claimant did not wish to pursue an opinion at that time.
Five months later the claimant attended A/Prof Steel to report her right arm symptoms.[6] She reported to the A/Prof that her right arm radicular pain had only developed within the past six to twelve months. A/Prof Steel then referred the claimant back to Dr Yau for an opinion closer to home.
[6] A/Prof Steel letter to the claimant’s GP dated 19 February 2019 refers to consistent thoracic, lumbar and C/2-C4 neck pain since the accident.
Dr Yull, spinal clinician assessed the claimant on Dr Yau’s behalf, on 30 November 2021.
Dr Yull noted that the claimant said that she had experienced significant neck and arm pain since the accident. A/Prof Steel had noted that these symptoms had only become active within the past year.With respect to consulting Dr Yull, the only treatment provided was with respect to her anti-depressant medication. Dr Yull also noted the presence of facet arthritis on the claimant’s scans. She did not tell him that she had lower back pain in 2016.
A/Prof Steel nor Dr Yull’s reports do not record questioning the claimant on the delay in reporting her symptoms or explain why these symptoms arose almost three years after the accident.
Dr Yau, Dr Yull or A/Prof Steel’s reports do not include the claimant referring to lower limb injuries.
Medico-legal evidence insurer’s evidence
The insurer relies on Dr Keller, Mr Raue, Dr Newlyn, and Dr Mellick’s reports.
Dr Keller’s report dated 29 December 2020 states the specialist “expected Ms George to recover from the physical effects of the accident within three to six months from the accident. It is not clear to me that her current physical complaints relate to any lasting injuries caused by the accident.”
Mr Raue, occupational therapist from VCC vocational assessment reported on 8 November 2021 that when he asked about her medical history, the claimant only disclosed using anti-depressant medication and did not refer to the items above.
Mr Raue noted that she went out socially once a week to meet friends. Mr Raue opined that was inconsistent with the claimant’s reported restrictions. Dr Newlyn reported that the claimant still socialised with friends and family, despite stating that she “can’t do anything.”
Mr Raue noted that the claimant provided lengthy and elaborate responses to questions, and seemed quite agitated when describing injuries, and the failure of various parties to appreciate the severity of her problems. The claimant was also recorded to be extremely pain focused.
The insurer submits that the claimant’s ongoing complaints are a result of a pain syndrome and not a diagnosable, permanent impairment.
Psychiatrist Dr Newlyn’s report dated 9 November 2021 noted the claimant told him that she had been taking Zoloft before the accident, but not for more than a month. Dr Newlyn reviewed the records of her GP and noted that the claimant had been using Zoloft for longer than a month and the GP prescribed it before the claimant moved to Sydney in 2018. The notes also show she had been prescribed Normison, Temazepam, Valium and Antenex.
Additionally, the claimant had seen a counsellor for her domestic violence after the accident. The claimant described her marriage as abusive and reported that she had depressive symptoms during her marriage.
Dr Newlyn diagnosed Persistent Depressive Disorder. He noted the claimant’s GP noted these symptoms in 2000 and they were present immediately before the accident. The claimant’s symptoms had increased since the accident. Dr Newlyn stated that a diagnosis of Generalised Anxiety or PTSD was not warranted.
Dr Newlyn assessed 5% WPI and deducted 1% for pre-existing conditions.
Associate Professor Brew, neurologist assessed the claimant on 6 May 2021 and found relatively mild cognitive difficulties that were likely related to chronic pain, as well as a degree of depression and anxiety.
A/Prof Brew only refers to her anxiety and depression as pre-accident conditions. He seems unaware of the history above.
He does not record right hand or wrist symptoms. This appointment was only six weeks after the claimant was referred to Dr Yau regarding her right upper limb weakness. The insurer expected the claimant to report those symptoms to A/Prof Brew or for him to note those symptoms during the exam.
Neurologist Dr Ross Mellick’s report dated 9 March 2022 did not assess a brain injury or any other neurological condition. Further, Dr Mellick disagreed with A/Prof Brew’s findings that the claimant had permanent impairment due to vertigo. Mellick’s examination did not find any significant vertigo and no permanent cognitive impairment.
Dr James Bodel’s orthopaedic surgeon’s report dated 24 August 2021 does not refer to the 2016 complaints but he noted anxiety and depression. That would have coloured Dr Bodel’s functional capacity assessment.
Dr Bodel opined that the claimant could return to employment, with restrictions. However, the claimant had not returned as she was anticipating involvement in a property development business in the future.
Dr Bodel noted that the claimant said her thoracic spine had recovered reasonably well.
He did not find wrist or hand restriction or clinical upper limbs radiculopathy signs. Dr Bodel saw the claimant four months after she was referred to Dr Yau. The insurer expected the claimant to report these symptoms, or that Dr Bodel would have Dr Mudaliar’s referral dated 1 April 2021.
The claimant waited until 30 November 2021to use the referral and seek treatment after not seeking an opinion in May 2021.
The insurer submits failing to report right hand or wrist symptomology at the time of the accident or to A/Prof Brew and Dr Bodel indicates that the claimant did not sustain these injuries in the accident.
Consistency
Mr Raue indicated the claimant’s skills were in the average range, but he could not tell whether she was exerting her full skills and abilities. Further, he found her verbal problem solving performance was less than what Mr Ting[7] measured. Mr Raue observed that Mr Ting seemed to accept this as her genuine effort, but this was well-below what Mr Raue expected given her history of owning and running a business.
[7] Occupational therapist Horace Ting for Injury Assess report dated
12 March 2021
Mr Raue noted the claimant complained of multiple physical problems and memory and attention deficits. He tested those points. He opined her performance indicated she exaggerated her memory and concentration problems. The test results were well below samples of patients with clearly diagnosed brain trauma, pain, or depression.
This did not mean that she does not have pain or difficulties, but she was pain focused. The suggested exaggeration makes it difficult to accept other aspects of her performance.
The claimant’s physical injuries are largely soft tissue and cannot exceed 10% WPI.
Documentation
The Panel also considered the documentation in the parties’ bundles. The list of documents are set out in appendix B.
Shortly before the re-examination date the claimant’s lawyers filed a bundle of documents marked AALD 290824. This included the claimant’s updated statement dated 28 August 2024. The insurer also provided a bundle of documents including the Royal Adelaide Hospital – post-BIRCH program medical review clinical notes.
The Panel considered the application to admit additional documents was relevant to the Panel’s review. The claimant was assessed in 2022, and the recent statement addressed her current state of health.
The parties agreed this material was relevant and accordingly it was admitted for consideration in order to facilitate the dispute of the resolution following with rule 67(C)(4) of the PIC Rules and Part 7 Division 2.
Claimant’s statement
The claimant’s statement dated 28 August 2024 was made with her lawyer’s assistance, which specifically addressed the changes she experienced since the accident, which she relates to her head injury.
She states after she read and re-read Medical Assessor Cameron’s certificate, her opinion was that the assessor did not understand the traumatic brain injury’s impact on her daily life as she was unable to express the full impact during that examination. The following paragraphs under this heading are extracted from this most recent statement.
After Medical Assessor Cameron examined her, she feels she needed to do more to help the doctor understand the brain injury impact. She struggles to get the words out. She attempts to answer questions, but her answers are long-winded and often forgets the original question.
She dreads the questioner’s confused looks when she answers.
It is difficult for her to provide concise answers, which has led to doctors only recording parts of her answers. The impression recorded is often the opposite of what she is trying to communicate.
Her recollection is that before the accident she was a highly functioning professional. She ran a successful gourmet food business in Adelaide with her ex-husband, working over 40 hours a week. Before the accident she managed to successfully develop properties and co-ordinated her household.
She was highly active and not easily fatigued.
In 2016, she was able to arrange a European family holiday for about three months visiting at least eight countries and managed all of the logistics.
Since the accident, she experiences not being completely present in most interactions, but in particular during medical appointments.
The claimant has had neuropsychological testing and soon after she was referred to South Australia’s Brain Injury Rehabilitation Community and Home Service (BIRCH). The BIRCH doctors have supported her rehabilitation for over two years.
BIRCH has helped her understand that the brain injury seriously impacts her short term memory. She frequently forgets important appointments, codes, and passwords to access services.
The claimant provided the example of memory loss since the accident was often forgetting to lock both the gate and backdoor at home. She will not know how long the door has been unlocked and she fears for her safety. She sometimes think it is safer to stay inside with the door locked. This upsets her.
Being out in the world constantly reminds her of the brain injury.
She has problems inside her home too, such as when warming up a dinner in the oven and she becomes distracted. The smoke alarm has gone off because she forgets. She feels unsafe because it worries her that cooking and ironing are now dangerous activities for her.
BIRCH helped her to obtain a Disability Pension and arranged a home living assessment. Now iCare pays for her fortnightly house cleaning.
She says she mostly only understands the TV news headlines, or a show’s basic story, but she cannot provide specific answers.
She tends to forget important expenses like utilities and pays as soon as she receives a bill to manage this.
BIRCH suggested she keep a detailed diary to track her daily needs and actions. She checks her diary before bed. If she has an appointment the next day, she manages this by placing her hand bag and diary on the dining room table to remind her.
BIRCH suggested she use her phone alarm function to help her manage although it is. difficult to properly operate her iPhone. Her children help when they are available. They are patient but often ask her how many more times she will ask the same question. Sometimes the Apple Store helps her but the instructions do not get through. Before the accident she was technologically adept. This loss of competence is embarrassing.
She had to change her GP soon before she made this statement. During the early examinations with the new GP, Dr Erica they talked at cross purposes. Despite the GP’s best efforts and knowing she had a brain injury; they still could not understand each other. It became easier when the claimant’s current partner attended a medical appointment. The GP prefers her to bring her partner to appointments and the GP will mark the claimant’s diary to assist her memory.
Travelling to unfamiliar places is difficult because of sensory overload – lights, noises, people speaking are overwhelming and disorienting.
She believes travel overseas could not be possible without a lot of support. Thinking about travelling to Sydney for upcoming medical appointments with the Commission’s assessors is worrying her.
Feeling overwhelmed also happens in social settings, because she feels she cannot express herself clearly and even close friends do not know how to deal with her although they are understanding. Interacting with new people is confusing, too. She finds it hard to assert herself, which is vastly different from her personality before the accident.
She is not working and she attributes this at least partially to the brain injury. Memory deficits, difficulties communicating and tendency to fatigue are all contributing factors.
Before the accident she had few hobbies because she was working and bringing up a family. However, before the accident, she could create a meal, often without a recipe every day.
Since the accident she understands the thought and complexity that went into her cooking. Timing the cooking, applying ratios, and adapting when ingredients were unavailable was something she could manage before the accident.
Since the accident she can only manage simple recipes including using packaged sauces.
REVIEW PANEL FINDINGS
Examination Report
On 19 September 2019, Ms George flew from Adelaide, SA to attend the re-examination with Medical Assessors Tai-Tak Wan and David Gorman at the Commission’s medical suites. She was unaccompanied in the examination suite but a man she described as her ‘good friend’ waited in the waiting area.
Initially she was stressed because she left all her documents in the aeroplane. Her friend left to pick up the documents and returned.
The assessment lasted two hours.
The Medical Assessors explained to Ms George that it was reviewing Medical Assessor Ian Cameron’s certificate dated 28 July 2022 for WPI disputes on traumatic brain injury, and Medical Assessor Drew Dixon’s certificate dated 14 July 2022 for WPI assessment of spine, upper and lower limb injuries.
The Medical Assessors jointly questioned the claimant about the history and examined the claimant.
The accident happened on 20 May 2018 when she was 53 years old. The claimant is now 59 years old and currently lives in Adelaide. She is not working and receives the disability support pension.
The Commission referred the same injuries it had referred to Medical Assessors Cameron and Dixon injuries for assessment.
History
Pre-Accident Medical History and Relevant Personal Details
During the examination, the Medical Assessors noted that the claimant gave the following history. Ms George said she was self-employed working with her now ex-husband running a produce store in Adelaide. At the time of the accident, she was visiting Sydney looking for business opportunities.
Past Health
Ms George denied any other history of accidents, injuries or other relevant conditions sustained before the accident.
She has history of hysterectomy and removal of a bone from her right knee. She also has history of mild asthma, and depression / anxiety before the accident.
She has no allergies.
Social History
Ms George was born in Australia. She studied up to year 12 and then attended a college or TAFE for 18 months studying accountancy. She said her academic performance in school was average and was ‘pretty good in every subjects.’ Her worst subject was ‘public speaking.’ She could not remember her HSC score.
She first worked as an ‘accountant secretary’ for a few years, basically helping clients doing tax returns. Then she ran a business ‘Ingle Farm Gourmet Foods’ with her ex-husband for 20 years until 2018. (Ingle Farm is a suburb in Adelaide). She then worked as a property developer from 2018 to 2021 and then stopped working.
She lived with her mother and an adult son in Adelaide at the time of the accident.
She said she now lives alone in a single storey house with no steps. She has two adult sons, and her younger son often comes to help in housework. She shops a few times a week.
She said she is a chronic smoker of 5-10 cigarettes per day and a social drinker, but Medical Assessor Michael Hong’s certificate dated 26 July2022 refers to a history of alcohol drinking problems.
She has good friends and meets them regularly.
History of the accident
Ms George said on 20 May 2018 (she could not remember the time of the accident), she was a pedestrian going to buy a newspaper. While she was walking on a road (she could not name it), a vehicle hit her. The last thing she could remember before she was unconscious was that she was going shopping, and she saw a tall man walking with a child.
The ambulance notes show that the service received the call to attend at 10:14 am that morning and the claimant was delivered to St Vincent’s Hospital (SVH) emergency department (ED) about 10:54 am. [8]
[8] Ambulance records page 356 claimant’s document bundle.
The next thing that she could remember when she regained consciousness was in the ED. This suggested to the Medical Assessors that the retrograde amnesia was in term of minutes, and the anterograde amnesia was in term of hours. She believed both the Police and the ambulance came to the scene.
History of symptoms and treatment following the accident
Ms George said she had bruises and pain all over the body after the accident. She could not recall the hospital staff testing her memory in the ED or after admission. She believed that she was hit on the right side of body. There was some laceration of the scalp that required stitches. She stayed in SVH for two days. She was discharged home after some imaging. She said she has sustained the following injuries from the accident:
· Head injury and brain injury
· Multiple spine, upper limb, and lower injuries.
She said she has not seen any rehabilitation physician or brain injury specialist in NSW.
She stayed in Sydney from 2018 to 2020 then returned to Adelaide. During her time in Sydney, she had a brace on her right knee. She had physiotherapy. She saw knee surgeon Dr Simon Tan who recommended hydrotherapy.
She saw knee, foot, and ankle surgeon Dr Peter Stavrou in Adelaide on 20 April 2020. He noted ACL and medial collateral laxity with patella-femoral crepitus. He did not feel that surgery was required then, and he felt most of the symptoms came from the anterior knee and patella-femoral joint. However, he performed an arthroscopy on the injured knee in late 2022.[9]
[9] page 166 claimant’s document bundle.
Ms George saw neurosurgeon A/Prof Timothy Steel on several occasions after the accident. On 24 August 2021 she told him about right C6/7 distribution pain with subjective weakness. He considered foraminotomy on the right at C6 and C7. He opined the lumbar spine only needed conservative care.
She has seen a neuropsychologist asking her many questions, although she could not name her.
She could not recall seeing an occupational therapist or a vocational rehabilitation service regarding return to work (RTW).
Details of any relevant injuries or conditions sustained since the accident
Ms George denied any subsequent injuries.
Current Symptoms
The Medical Assessor recorded her current complaints are as follows:
· Low back pain. It is a constant dull ‘debilitating’ ache but she could not give a pain score. It is relieved by sitting and leaning forward. The low back pain is the worst pain.
· Pain in right hand and right shoulder. The pain in hand is basically at the base of thumb, mainly a tightness. She may have tingling of right thumb and all fingers. She has been told that she has carpal tunnel syndrome. She had a right shoulder cortisone injection a few years ago, but that did not help.
· Pain in right knee. She said she was offered surgery (there was an arthroscopy in 2022).
· Sometimes she has pain in the neck. She feels that this is associated with the right arm pain.
· She does not have any thoracic spinal pain.
· Sleep is poor because of both early waking and late sleeping. She takes sleeping pills regularly.
· Memory is not good, especially recently. E.g. she may forget what she was told the day before. She has to write a shopping list before she goes to shopping. However, she has no problem in her work and can remember the appointment. She does not use any memory aid. She does not get lost although she drives regularly, as she uses a GPS. She said she finished her bachelor’s degree in 2019 although she got a lot of help from the college. Her mother did not report any change in her personality.
· When asked specifically about head and brain injury symptoms, she said she has headache from time to time over the whole head. She has ‘light sensitivity’ during headache. She feels tired all the time.
· She said her memory, particularly short-term memory, has got worse particularly in the last several months. She said there was change in personality after the accident. She is less social than before. She said she did some community service prior to the accident but is not doing that now. She said she is less efficient than before. e.g. as a ‘property developer’ some projects took her 18 months to finish although previously she took only a few months for similar projects.
· She said her depression has been getting worse after the accident. She has been seeing a psychologist, although it was not clear whether she is seeing a psychiatrist. She said she learnt ‘pelvis exercise’ from the psychologist.
· Her bowel and bladder functions are normal.
She said at most she can sit for several minutes, stand for zero minutes, and walk for 10 minutes. She can drive only locally, up to five km distance from home. The Medical Assessors noticed that she could sit for 1.5 hours during the interview.
She is independent in her personal hygiene care and most activities of daily living (ADL). She has a cleaner who comes once every fortnight.
She says that around the house she “can only do bits and pieces at a time.” She needs to lean on the shopping trolley. She often gets take-away and purchases pre-packaged chopped vegetables.
Current and proposed treatment
Ms George stated that she has been taking the following medication:
· Escitalopram 20 mg/day;
· Amitriptyline 10 mg nocte;
· Temazepam 10 mg nocte;
· Naprosyn SR 750 mg as necessary;
· Panadeine forte or equivalent when necessary, and
· Panadol osteo, 2 tablets three times a day as necessary
Recently she got a new GP as her previous GP has retired, but she feels that the new GP does not understand her as well. She sees a psychologist at Brain Injury SA fortnightly. The focus is on her anxiety and depression. She sees an orthopaedic surgeon when it is necessary. She said she received physiotherapy but that has ceased now. She does not do any regular sport.
Findings on clinical examination
Clinical Examination
Ms George appeared at the examination as orientated and alert. She is 165 cm tall, and weighs 83 Kg, which gave a BMI of 30.
She walked independently without a walking aid in a normal symmetrical gait. She could walk on tiptoes, on heels, and in tandem (heel-toes) way. She had no problem in squatting, while complaining about pain in the hips and the knees. She could dress and undress independently. She could get on the examination couch independently. She is right hand dominant.
The Medical Assessors noted that there was a well healed surgical scar on the left thumb and near the base of the toe but she could not remember the details of the surgery. There were also well healed arthroscopy portal scars.
Cervical spine
She had a normal and symmetrical range of motion. There was no muscle spasm nor guarding. There was no dysmetria, no non-verifiable radicular complaints and no evidence of radiculopathy.
Power, sensation, and reflexes in the upper limbs was normal.
Thoracic spine
She had normal and symmetrical thoracic spinal movements with no tenderness over the thoracic spine. There was no radiating pain or sensory change around the chest.
Lumbar spine
She had normal and symmetrical range of motion in the lumbar spine. There was no guarding nor muscle spasm.
Power, sensation, and reflexes in the lower limbs were normal. There were no sciatic nerve tension signs.
Upper extremities
She was tender over the right first metacarpophalangeal joint at the base of the thumb.
There was no upper limb wasting – biceps circumference was 32cm on both right and left. Forearm circumference was 26cm on the right and 25.5cm on the left, which was within normal limits, given that she is right hand dominant.
There was a normal and equal range of motion in the shoulders, elbows, wrist, and fingers.
Lower extremities
Her gait was symmetrical and normal.
There was a scar on the left great toe and well healed arthroscopy scars.
There was no wasting in the lower limbs. Thigh circumference was 51.5cm bilaterally. The right calf circumference was 40 cm and the left 39.5 cm.
There was no crepitus in the right knee. There was no swelling. There was mild medial collateral laxity with no ACL laxity. The range of motion was from 0 to 90 degrees.
Head and cranial nerves
Examination of the head showed no conspicuous scars, swellings, or deformities. Smell sensation was normal. Visual fields tested by confrontation were normal on both eyes. There was no nystagmus or diplopia found. Pupils were equal and reactive. Visual acuity was grossly normal. There was no gross hearing loss. There were no other motor or sensory deficits in the face and head. All the cranial nerves were intact. There was no difficulty in communication, both in expression and comprehension. There were no cerebellar signs found. Romberg test was normal.
Mental State Screening
She scored 28/30 in Folstein Mini Mental test (MMSE). She was still a bit stressed because she forgot her papers in the aeroplane. She lost two points in short term verbal memory recall tests. She scored 5/5 both in the serial 7 test and the reverse spelling test. She had no problem in copying figures including 3-dimensional cubes. She had no problem in alternating sequences. She drew a clock showing the current time quick and well.
Regarding written arithmetic tests, she got the correct answer for addition and subtraction, but declined to attempt multiplication and division, saying that she normally uses a calculator to do it. She gave good answers when asked to explain some common proverbs. She gave good answers quickly when asked for three differences but could only provide one answer when asked for three similarities between an apple and an orange.
In summary, there was no evidence of cognitive impairment detected clinically in the mental state screening tests. Medical Assessor Tai-Tak Wan’s opinion was that the slight difficulty during the short term verbal recall test was mostly due to inadequate attention and being upset about forgetting her paper on the aeroplane.
Abstract thinking and executive function were within normal limits. Clinically, Medical Assessor Tai-Tak Wan could not find any evidence of cognitive impairment from the accident.
Mental status screening may not detect subtle change in mild traumatic brain injury, and a comprehensive neuropsychological test would help clarify the situation. Medical Assessor Tai-Tak Wan refers to the neuropsychologist’s report below.
Medical Assessor Gorman’s examination findings of spine, upper limb, and lower limbs are set out below.
Documentation review
Relevant Imaging Studies and Other Investigations
The claimant did not bring any X-ray films or reports to the assessment.
The Panel Members have reviewed the reports of the following investigations enclosed in the supporting documentation:
· MRI right knee – 18 April 2020 showed an undisplaced fracture of the head of the fibula and strain of the ACL and MCL ligaments. In the patella-femoral joint there was central patellofemoral chondral fibrillations and mild chondral thinning.
· MRI cervical spine – 25 November 2020 – minor C5/6 changes with no nerve root or cord compression.
· Bone scan/SPECT – 26 March 2019 – discovertebral and facet changes in the cervical and lumbar spines – avid bilaterally at L3/4 and L2/3 as well as T4/5 with discovertebral uptake at C5/6.
· X ray and ultrasound of both wrists – degenerative changes in carpo-metacarpal joints of both thumbs; synovial thickening of carpometacarpal joints consistent with arthropathy; mild flattening of both median nerves within the retinaculum.
Summary of relevant documentation provided for the initial assessment
The ambulance record created on the day of the accident reads:
“FEMALE 52 FROM SIDE OF THE ROAD IN WOOLLOOMOOOLOO THIS AM, THE PT WAS? HIT BY A CAR TURNING RIGHT AT APPROX 20-30KM HR, THE PT IS AMNESIC TO EVENTS,? LOC, O/A PT SUPINE, ALERT, OBIVOUS HEAD INJURIES, NIL SOB, O/E W/P, N/T, N/C, PEARL, GCS 15, C/O PAIN TO THE L OCCIPITAL REGION WITH OPEN HEAD INJURY NON BOGY, MINOR BLOOD LOSS, C/O CONTUSION TOR EYEBROW, NIL NECK PAIN, NIL OTHER HEAD INJURIES, NIL CHEST PAIN OR SOB… NIL PAIN TO HIP/PELVIS REGION, MINOR ABRASIONOS TO BOTH ELBOWS, =STRE IN ALL LIMBS, NO OTHER INJURIES FOUND, GIVEN AS STATED WITH SOME EFFECT, NOAD POST HEAD TO TOE …”. Glasgow Coma Scale (GCS) was 15 on observation.
Although Medical Assessor Tai-Tak Wan notes there might be a brief loss of consciousness (LOC) (brief, if LOC was present, as she was conscious when ambulance arrived), no features of PTA were reported. It was a relatively low speed accident and she was a pedestrian.
The SVH “Discharge Summary Referral” states that the claimant was admitted on
20 May 2018 and discharged on 22 May 2018. While she was at SVH she was admitted to the General Surgical trauma team under the care of Dr. Fenton Lee. She was found to progress well and safe to discharge.Dr Aiasha Saikal, intern for Dr Fenton-Lee recorded:
“… Presentation: … Hit by car as pedestrian, turning right at approx. 20-30km/h… Amnesic to events? LOC… Wound to occipital region … Hematoma/laceration to right eye… Abrasions to elbow…
“OE: … GCS 15, PEARL … Pelvis binder intact, cervical collar on… left occipital laceration, right eye haematoma, Abdomen SNT, PR done, log roll no tenderness, no upper or lower limb deformity … left elbow abrasion, pain in right knee…
“Issues: 1. Head wound: Washed, sutured with 3.0… 2. Right knee pain. analgesia provided… weight bearing as tolerated reviewed by PT, cleared and education given. Xray: NAD. …right knee pain reviewed by orthopaedics team on 21.5.18, for RICE management. PT provided tubigrip for right knee pain and ice applied on 21.5.18…
3. DVT Prophylaxis: - Heparin and TEDs, Mobilizing with PT…
“Ms. George was tolerating food and drink and mobilizing on the ward. Her pain was managed with analgesia and given Omeprazole, to good effect. She was found to
progress well and found safe to discharge home…”
“Plan: 1. Cephalexin … 2. Paracetamol and Ibuprofen for pain relief… 3. GP To kindly follow up for suture removal in 7 days … 4. Outpatient social work input… 5. Omeprazole 40mg daily for 5 days… “
CT brain, CT cervical spine, X-ray pelvis and Xray Chest of 20 May 20218 were normal.
In a neuropsychological report dated 15 June 2022, Alexandra Harry, a clinical neuropsychologist in South Australia stated that she assessed the claimant at the claimant’s South Australian GP Dr Thoo’s request on 6 June 2022 and 8 June 2022. Another neuropsychologist Dr Wendy Barsdell performed the second part of the test because Dr Harry got COVID.
Ms Harry did a battery of common psychometric tests, and she estimated the premorbid intellect was average. Her results showed:
“… relatively intact visuo-spatial reasoning but reduced verbal reasoning. Working memory was within expected premorbid limits, but speed of information processing was reduced and slowed. With regard to memory, learning was relatively sound for simple and repeated information, but learning of narrative information was moderately reduced, suggesting her capacity was overwhelmed by more complex information. Delayed recall was significantly reduced on expectations across modalities and impaired, with limited benefit from the provision of cues and prompts. With regard to executive functioning, performances were generally intact, with the exception of semantic verbal fluency which was moderately reduced and marred by a significant number of repetitions….
“Ms George’s results on psychological questionnaires indicated significant difficulties with mood symptoms, extreme difficulties with post-concussion symptoms across domains, and feelings of helplessness, hopelessness, and loss of control as a result of these symptoms and her perceptions of her illness….”
She concluded that, “…Ms George’s self-report of the circumstances around her accident in May 2018 suggest she sustained a mild traumatic brain injury at that time. In my view, against this background, symptoms related to this injury would have resolved by the time of the current assessment (i.e., four years later). In particular, the reductions shown on assessment in verbal reasoning and memory appear inconsistent with the outcomes usually seen following a mild traumatic brain injury…
“Given the extent and severity of Ms George’s symptoms, in my opinion, issues other than traumatic brain injury are contributing to her day-to-day difficulties. It is noted her presentation and difficulties are consistent with a prolonged post-concussive syndrome. Therefore, multi-disciplinary evidence-based treatment aimed at managing her emotional distress, fatigue, pain, and post-injury coping and adaptation is strongly recommended to assist Ms George to improve her day to day functioning (see for example the Ontario Guidelines for management of prolonged symptoms) and improve her mood. In my opinion, appropriate management of her symptoms is most likely to lead to an improvement in her memory and other cognitive difficulties….”
Summary of other relevant documentation
Medical Assessor Ian Cameron’s certificate dated 28 July 2022 stated he assessed the claimant on 21 June 2022.
He said, “… she had adequate concentration and adequate delayed recall. She scored 29/30 on Mini Mental state Examination…”. All cranial nerves were intact and no focal neurological signs in the peripheral nervous system, with normal gait and normal cervical spine. Apparently, he had not seen Alexandra Harry’s neuropsychological report. He concluded that there was mild TBI. He assessed 0% WPI for the mild TBI.
In an “Application to admit late documents” (AALD) dated 13 September 2024, the claimant solicitor submitted that the Panel should consider that:
“the need to consider the surgery undertaken by the claimant on 22 December 2023 and associated surgical scarring when assessing whole person impairment… The application of clause 6.164 of the guidelines in relation to the claimant’s traumatic brain injury….”
There were multiple reports from Dr Maria Paul, a rehabilitation physician of SA Brain Injury Rehabilitation Service (SABIRS). Some of the reports apparently were captured with a mobile phone, and barely legible. These reports were re-submitted to the Panel in January 2025 in a legible form.
In a report dated 23 June 2023 entitled “Entire Visit Record”, Dr Paul stated that she reviewed the claimant on 18 June 2023.Spinal surgeon Dr Y H Yau had referred Ms George to her.
Dr Paul noted the claimant said the BIRCH program helped her to become a lot more organized. She was linked to BISA (Brain Injury South Australia). Her younger son Adam has left to work in Western Australia. The older son Michael lives in Adelaide and is supportive. She said she is a social drinker and denied drinking problems. She attended a gym twice a week. She only sat for brief period and kept standing up due to discomfort when sitting.
In a report dated 12 August 2024, Dr Paul stated that she reviewed the claimant on
5 August 2024. The claimant was wearing dark glasses, and showed some papers, including “… neuropsychology report from Emma Fitzgerald….”Medical Assessor Tai-Tak Wan believed this was Alexandra Harry’s report dated
15 June 2022 mentioned above. Medical Assessor Tai-Tak Wan noted that it appeared that Dr Paul did not assess the claimant’s mental functions.The claimant told Dr Paul that she “… tries not to go out socially as she has difficulties in these environments….” On examination, the claimant scored 21/30 in Montreal cognitive assessment (MoCA), “…she lost points for visual-spatial executive function… she lost points for attention and mental arithmetic. She lost points for language, for verbal fluency and her delayed recall score was only 1 out of 5… “.
In a report to the claimant’s solicitor dated 11 September 2024, Dr Paul stated that,
“… She didn’t appear to have PTA (Post Traumatic Amnesia) testing in St Vincent’s Hospital Sydney, which might have led to a traumatic brain injury diagnosis being missed. The fact she remained confused and disoriented for over a week suggests that she was in PTA for over a week which puts her in a category of severe brain injury….”
It is not clear where Dr Paul got the history from, as it is different to the histories reported in Ms Harry’s neuropsychological report, and Medical Assessor Cameron’s reasons.
The claimant only stayed in SVH 2-3 days, so it was determined that she was not confused when SVH discharged her and it was unlikely that she was had PTA for over a week.
Conclusions
Diagnosis and Causation
According to the history she gave, physical exam findings, radiological investigations, ambulance record, SVH discharge summary, neuropsychological report, and information from documentation, the Medical Assessors were satisfied that she sustained multiple injuries as a result of the accident:
· Brain – mild traumatic brain injury
· Right hand and wrist – soft tissue injuries.
· Right knee soft tissue injury and fibular fracture
· Cervical spine – soft tissue injury
· Lumbar spine – soft tissue injury
· Thoracic spine – soft tissue injury – now resolved.
Head injury/Brain injury
There was evidence of closed head injury, as there was a laceration of the scalp requiring some suturing. It was possible that there was a brief loss of consciousness but that is not well documented.
On the basis of the claimant’s history given during this examination and claimant's statement dated 21 January 2021, there was very brief retrograde amnesia (probably in terms of seconds) and short anterograde amnesia (in terms of hours).
Medical Assessor Tai-Tak Wan tested Ms George for MMSE and she scored 28/30 on
19 September 2024. while Medical Assessor Cameron’s MMSE test resulted in 29/30 on 21 June 2022.Dr Paul reported a score of 21/30 in MoCA on 16 January 2023, which was out of the line with other specialists’ assessments. It was also inconsistent with the neuropsychologist Ms Harry’s findings. GCS scores were normal with the Ambulance and in the hospital emergency department.
Having considered all the history, cognitive assessments, normal brain scan findings and the neuropsychologist report, the Medical Assessors determined there was a mild traumatic brain injury sustained in the accident. The Medical Assessors discerned no evidence of cognitive impairment which was similar to Medical Assessor Cameron’s findings, and consistent with the findings of the neuropsychologist’s testing.
The Panel agreed with Ms Harry’s reports that the claimant sustained a TBI from the accident.
The Medical Assessors on this Panel agree that the symptoms related to this mild TBI would have resolved by the time of Ms Harry’s assessment (i.e., four years later).
In particular, the reductions shown on assessment in verbal reasoning and memory appear inconsistent with the outcomes usually seen following a mild traumatic brain injury.
Given the extent and severity of Ms George’s symptoms, in the Medical Assessors’ opinion, issues other than traumatic brain injury are contributing to her day-to-day difficulties.
The Medical Assessors noted that there were significant psychosocial factors, such as separation from the ex-husband two months before the accident and a history of depression starting prior to the accident.
The Medical Assessors considered the claimant’s statement dated 28 August 2024 should carry less weight because it stated what the claimant believed or claimed and there was no additional relevant objective information.
Right hand and wrist
There was a soft tissue injury to the wrist with symptoms consistent with median nerve compression. The symptoms are only intermittent now and there are no signs of median nerve compression.
Right knee soft tissue injury and fibular fracture
There was an undisplaced fibular fracture from direct trauma in the accident. This direct trauma caused medial collateral and anterior cruciate strain documented at times after the accident. The only laxity now is in the medial collateral ligament.
Cervical spine
In the cervical spine she had a soft tissue “whiplash” injury at the time of the accident. Her symptoms remain but now without any arm radiation.
Lumbar spine
She has had lumbar spinal pain since the accident caused by the forces involved in the accident. There is ongoing pain without any leg radiation.
Thoracic spine
She did have thoracic spinal pain after the accident due to the forces involved in the accident, but that has now resolved.
PERMANENT IMPAIRMENT ASSESSMENT
Head injury and traumatic brain injury
The scalp laceration has healed satisfactory with scar not identifiable. There was no permanent impairment.
There was no skull fracture, therefore the impairment of the head injury was that of the associated TBI.
Ms George complains of occasional headache ‘migraine.’ However, headache and most other pain, including migraine, is not separately assessable under Guidelines, see paragraph 6.162, “Headache or other pain potentially arising from the nervous system, including migraine, is assessed as part of the impairment related to a specific structure.”
Nervous System Injury is assessed according to Paragraph 6.156 to 6.176, and Table 6/9 and 6/10 of the Guidelines. To assess the mental status and integrative function, CDR is used. However certain pre-requisite criteria has to be satisfied, according to paragraph 6.164 before Medical Assessors can assess the mental status impairment with emotional and behavioural impairment.
Medical Assessor Tai-Tak Wan’s determined that in Ms George’s case, the second part of the prerequisite criteria had not been satisfied, as although there was evidence of a significant head injury (scalp laceration), and it was a pedestrian vs car accident, there was no significant medically verified abnormalities such as abnormal initial post-injury GCS score, or post traumatic amnesia, or brain imaging abnormality.
Clinically, there was no evidence of existing cognitive impairment due to organic cause. Her symptoms could be due to other factors such as psychosocial factors and pre-existing depression.
Even if the Medical Assessors assessed the brain injury impairment using the CDR method (Table 6.9 Guidelines), the WPI due to brain injury sustained in the accident would be 0% WPI because:
· Memory score (M) will be questionable, as although the claimant complains of memory problem, it is not confirmed by MMSE and neuropsychological assessment, M=0.5.
· Orientation (O) score is none, as she is fully orientated, O=0
· Judgment and problem solving (JPS) score is 0, as shown from the mental status screening and neuropsychological assessment, and she has returned to study and completed her degree, JPS =0
· Community affairs (CA) score is questionable, as she reported she becomes less socialized, CA=0.5
· Home and hobbies (HH) score is none, as the life at home, and intellectual interests were well maintained, HH=0
· Personal care (PC) score is none, as she is fully capable of self-care, and other secondary scores are mostly also 0, PC=0.
· Since all secondary categories are scored less than M score (primary category), therefore the CDR score = secondary scores =0.
According to Table 6.10, CDR=0 would be assessed as 0% WPI.
The claimant has depressive features. However, as the CDR score is 0, and there was pre-existing depression, the Medical Assessors determined it was likely the psychological symptoms were not due to organic brain damage but related to psychological conditions, therefore, the emotional and behaviour impairment is 0% WPI, because according to the paragraph 6.164 of the Guidelines, the emotional and behavioural impairment cannot be assessed.
Upper extremities – right hand and wrist
There was a soft tissue injury to the right wrist with symptoms consistent with median nerve compression – the symptoms are only intermittent now and there are no signs of carpal tunnel compression – she has no assessable impairment.
Lower extremities – right knee and fibular fracture
She had an undisplaced fibular fracture and ACL and MCL strain documented. There is now restriction in flexion of the right knee which has been persistent and gives her a “mild” impairment (4% WPI or 10% LEI) based on Table 41 on page 78 of AMA 4th Edition. She also has mild medial ligamentous laxity giving her a 3% WPI or 7% LEI based on Table 64 on page 85 of the AMA 4th Edition. Combining 10% and 7% using Combined Value Chart, p.322, AMA4 will give 16% LEI. Using Table 6.4 of the Guidelines, it corresponds to 6% WPI. The total right knee impairment is therefore 6% WPI.
Cervical spine
She still has intermittent neck pain but no restriction in movement and no non-verifiable radicular complaints. There is no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There is no radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Guidelines. She has DRE I impairment giving her a WPI of 0% based on Table 73 on page 110 of the AMA 4th Edition.
Lumbar spine
She has some lumbar pain but no asymmetry of motion and no radiating symptoms. There is no radiculopathy using the criteria of radiculopathy listed in paragraph 6.138 of the Guidelines. She has a DRE I impairment giving her a WPI of 0% based on Table 72 on page 110.
Thoracic spine
She had a soft tissue injury to the thoracic spine but her symptoms have completely settled – there is now no assessable impairment.
Scarring
She has small (less than 1cm) arthroscopy scars which were well healed, not raised or pigmented and difficult to see. They would rate 0% WPI using the TEMSKI scale.
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to accident | |
| 1 | Head / brain injury | Sectioins 6.160- 6.170, Guidelines ver 8.2 | Yes | 0 | 0 | 0 |
| 2 | Right hand and wrist | Nil relevant | Yes | 0 | 0 | 0 |
| 3 | Right knee and fibular fracture | Table 41 on page 78 and Table 64 on page 85 | Yes | 6% | 0% | 6% |
| 4 | Cervical spine | Table 73 on page 110 | Yes | 0% | 0% | 0% |
| 5 | Lumbar spine | Table 72 on page 110 | Yes | 0% | 0% | 0% |
| 6 | Thoracic spine | Nil relevant | Yes | 0% | 0% | 0% |
| 7 | Scarring | TEMSKI scale | Yes | 0% | 0% | 0% |
Total WPI = 6%
Consistency of presentation
In general, the clinical presentations were consistent with the complaints.
The Panel noted the insurer’s submissions about the claimant’s credit.
In terms of inconsistency in the past Alexandra Harry report dated 15 June 2022 noted:
(a) The claimant said that when she was discharged from hospital, she did not feel ready to leave. Because her pain was too high and she was unable to lift her head off the pillow.
(b) She asked to go to a private hospital but was told that was not possible because that hospital (probably St Vincent's Private Hospital) was full.
(c) She reports one of her sons living with her becomes irritated when he has to repeat information to her.
(d) The claimant told Ms Fitzgerald she had had two years of psychological counselling since the accident. This is once every three weeks.
(e) Her interview behaviour displayed mild bewilderment, comments about the difficulty of questions, mildly disorganised language with some distress when completing the psychological questionnaires.
(f) She was making adequate efforts during the assessment.
(g) The verbal attention and working memory was within expected limits.
(h) Her information processing speed was significantly reduced and within below average range.
(i) The verbal skills were significantly reduced. However, her visual-spatial skills were largely intact.
(j) She displayed some moderate impairment on new learning.
(k) The executive functions were largely intact, albeit there was below average semantic verbal fluency.
(l) She reported her moderately depressed mood, but with severe anxiety and stress symptoms.
(m) Although she had moderate headaches and no nausea after the concussion all her other physical, thinking sleep and emotional functions were severely symptomatic.
(n) She reports she does not understand her illness.
The neuropsychologist did not have access to Ms George's hospital discharge, imaging reports or hospital clinical notes.
The neuropsychologist agreed there was a mild traumatic brain injury, which should have resolved by the time of the assessment. However, the neuropsychologist opines that her difficulties are consistent with a prolonged post concussive syndrome, which is a common sequel for traumatic brain injury.
In terms of her discharge from hospital being against her wishes, and before she was fit to return home there are inconsistencies over some years.
Occupational therapist Horace Ting for Injury Assess noted in his report dated
12 March 2021 that she discharged herself, because she feared she was going to be involuntarily detained for mental health reasons.
The insurer submitted that historical inconsistencies or lack of references about pre-injury conditions in 2016, her treatment and discharge over the last seven years should negate the claimant’s credit.
The Panel declined to make that finding because although tribunals including Medical Panels want to hear histories recalled with certainty the reality is that most people do not recall events that reliably. Vulnerable people who have suffered head injuries, who take potentially mood altering medication, and who have suffered trauma may not be thought of as reliable witnesses. The courts take this and the recollection altering effect of time passing into account when weighing evidence and credit.[10] Tribunals must be cautious about making findings on a party’s or a witness’ credit, especially when other factors are involved.
[10] James Thomas Stevens v DP World Melbourne Ltd (ACN 000 049 301) [2022] VSCA 285 at para 44; Riechelmann v McCabe [2024] NSWCA 37.
Panel deliberations
The Panel adopted the Medical Assessors examination report and permanent impairment assessment as evidence.
The Panel agreed that the findings about the claimant’s musculoskeletal injuries were uncontroversial. Given the passing of the time and treatment, it was reasonable that the permanent impairment had been assessed as less than when Medical Assessor Dixon assessed her.
There was discussion amongst the Panel Members about the Medical Assessors’ conclusions that the symptoms, which the claimant attributes to her brain injury are actually associated with her emotional and psychological state.
The Guidelines state at cl 6.164 that a brain injury assessor must consider the neuropsychological report if it is available, and the Panel gave more weight to the experienced neuropsychologist’s conclusion than the claimant's history, or even other specialists' opinion, because the psychometric tests are more objective and validated.
The cl 6.164 criteria were not satisfied because although there was evidence of a significant impact to the head (scalp laceration) and it was a pedestrian vs car accident, there were no significant medically verified abnormalities such as abnormal initial post-injury GCS score, or post traumatic amnesia score, or brain imaging abnormality.
The claimant’s lawyer submitted that the Panel must carefully analyse each of the CDR criteria and provide reasons for each score. The Panel noted this and considered the reasons given in this decision were sufficient.
Summary of injuries referred to the Panel and caused by the accident
The following injuries WERE caused by the accident:
· Head – mild traumatic brain injury
· Cervical spine – soft tissue injury
· Thoracic spine – soft tissue injury – now resolved
· Lumbar spine – soft tissue injury
· Right knee – undisplaced fibular fracture and ligamentous strain
· Right wrist and hand – soft tissue injury
None of the injuries referred to the Panel WERE NOT caused by the accident.
The insurer had submitted that the 2016 attendances at the physiotherapist relating to lower back pain were sufficient to calculate any pre-existing impairments under cl 6.31 of the Guidelines. However, the Panel determined that the information was insufficient for that purpose.
There were no subsequent injuries that would make it necessary to calculate impairment under cl 6.34 of the Guidelines.
Apportionment was inapplicable.
PERMANENCY OF IMPAIRMENT
Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent impairment (Fourth Edition) (AMS 4) (p 315) as follows:
• permanent impairment is unlikely to change substantially and by more than 3% in the next year with or without medical treatment and is consider permanent by definition, and
• Ms George’s symptoms have remained stable for the last 6-12 months. There is no specific treatment planned. The Panel believes that her impairment is stable for the assessment of permanent impairment.
DETERMINATIONS – PERMANENT IMPAIRMENT
This permanent impairment determination is made in accordance with the AMA 4 and Part 6 of the Motor Accident Guidelines.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
Conclusion
This certificate refers to two medical disputes referred to this Panel arising from the accident dated 20 May 2018.
The Panel has assessed that the degree of permanent impairment that has resulted from musculo-skeletal injuries caused by the accident is 6%. It follows that the Panel finds that the degree of impairment is not greater than 10%.
This is a different permanent impairment to Medical Assessor Dixon's assessment and certificate issued on 14 July 2022.
Accordingly, the Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate.
The Panel has assessed that the degree of permanent impairment that has resulted from the brain injury caused by the accident is 0%. It follows that the Panel finds that the degree of impairment is not greater than 10%.
The Panel made different clinical findings to Medical Assessor Cameron's assessment and certificate issued on 28 July 2022.
Accordingly, the Panel revokes the latter certificate and issues a new Permanent Impairment Certificate.
Further, this Panel revokes Lead Medical Assessor Cameron’s combined assessment certificate dated 29 July 2022 and issues a replacement combined assessment certificate under s 7.26 (8) of the Motor Accidents Injuries Act 2017 stating the combined injuries caused by the accident were assessed at permanent impairment of 6% which is not greater than 10%.
APPENDICES
APPENDIX A
Statutory Provisions
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines 9.3 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, 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 CL Act (NSW), ss 5D 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.”
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘ . it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, 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: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.
In respect of any injury or impairment before or after the accident which would justify any negative causation findings, the basis for this needs to be higher than the level of ‘mere speculation’ in the absence of any identifiable evidence. Such speculation must be dismissed as per the principles enunciated in Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236.
In particular, such findings must follow the Guidelines paragraphs 6.31 to 6.34 which set out what must be considered when assessing impairment from conditions before or after the accident.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
APPENDIX B
Documents list
- Claimant’s statements dated 21 January 2021 and 28 August 2024;
- NSW Ambulance records;
- St Vincent’s Hospital Discharge Summary Referral, dated 22 May 2018;
- St Vincent’s Sports Med records including A/Prof Simon Tan’s reports in 2018-2019;
- Application for Personal Injury Benefits, dated 29 May 2018;
- Kathee De Lapp physiotherapy report dated 12 July 2018;
- Therapy Max (Jane Hodgson) physiotherapy report dated 30 July 2018, 12 September 2018 15 October 2018;
- Medical Assessor Home’s DRS Certificate –Treatment (Physical), dated 29 November 2019
- Rehabilitation Plan, dated 6 September 2019;
- Specialised Health Initial Assessment Report, dated 10 April 2020
- Psychiatrist Dr Ben Teoh’s reports dated 5 March 2021;
- Dr Thomas Newlyn report dated 9 November 2021
- Dr Andrew Keller’s report dated 29 December 2020;
- Dr Uthum Dias’ reports dated 15 February 2021 and 9 March 2022;
- Dr James Bodel orthopaedic surgeon’s reports dated 24 August 2021 and 9 March 2022;
- Orthopaedic surgeon Peter Stavrou’s reports dated 6 December 2022, 31 January 2023, and 28 February 2023
- Dr Horace Ting’s report for Injury Assess on functional capacity evaluation, vocational interview, and testings dated 12 March 2021.
- 8 November 2021 VCC vocational assessment report (Raue)
- A/Prof Bruce Brew’s neurologist reports dated 5 & 6 May 2021.
- Neurologist Dr Ross Mellick’s report dated 9 March 2022
- Alexandra Harry neuropsychology assessment report dated 15 June 2022
- Prospect Medical Centre (Dr Muldaliar GP) updated records;
- Dr Glen Sheh’s records;
- Sydney GP Dr BH Foo records;
- Dr George Dracopoulos records;
- Uplift Psychological Services records;
- East Adelaide Clinic records;
- Darlinghurst Medical Centre records;
- Norwood Village Medical & Dental Centre records;
- Anxiety Disorders Clinic records;
- Certificates of Capacity/Fitness x8 dated 28 May 2018, 28 February 2019, 31 March 2019, 30 April 2019, 29 May 2019, 31 May 2019, 30 September 2019, and 20 February 2020.
- Clinical notes of Royal Adelaide Hospital – post-BIRCH program medical review (Dr Maria Paul created 5 August 2024
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