GIO Insurance (Australia) Ltd v Taouk
[2021] NSWPICMP 193
•20 September 2021
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | GIO Insurance (Australia) Ltd v Taouk [2021] NSWPICMP 193 |
| CLAIMANT: | Elias Taouk |
| INSURER: | GIO Insurance (Australia) Ltd |
| REVIEW PANEL: | Principal Member John Harris Dr Richard Crane Dr Shane Moloney |
| DATE OF DECISION: | 20 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- The Claimant was injured in a motor accident; the issue before the Review Panel (RP) was whether he sustained a right shoulder injury and specifically a supraspinatus tear which required surgery; other treatment was sought by way of neurological review for the cervical spine injury; Held -the Claimant did not suffer a right shoulder injury; over a two-month period the Claimant was examined by four different health professionals including an ambulance officer, at hospital and by two different general practitioners with no complaint of right shoulder injury; the hospital notes also indicated normal power in the upper and lower limbs; the right shoulder was not mentioned by the Claimant in the claim form completed approximately six weeks after the motor accident; the minor rear end collision from which the biomechanical forces would have simply pushed the shoulders into the supporting car seat, was most unlikely to have caused anything although may cause a minor soft tissue injury; the tear and degenerative changes shown on MRI may be found in shoulders with no history of trauma; whilst the absence of contemporaneous complaint is not determinative, AAI Ltd v McGiffen, the existence of other evidence such as the claim form Bugat v Foxdid not support injury; biomechanical factors did not favour the claimed injury; QBE Insurance (Australia) Ltd v Shah considered; the proposed treatment to the cervical spine was not reasonable and necessary; observations of the meaning of “necessary” when compared to workers compensation legislation; Clampett v WorkCover Authority of NSW applied; referral to a neurosurgeon for cervical spine condition not necessary because examination findings of Medical Assessor showed normal reflexes, no muscle wasting or sensory changes in a dermatomal distribution in the upper limbs; as there are no documented signs of radiculopathy, no neurosurgical referral is indicated and is not necessary. |
STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT
Medical Assessment – Minor Injury and Treatment and Care
Review Panel Assessment of Minor Injury
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 6 April 2021 and issues a new certificate determining that:
The following injuries:
Cervical spine – soft tissue injury
Thoracic spine – soft tissue injury
Lumbar spine – soft tissue injury
are MINOR INJURIES for the purposes of the Act
The right shoulder was not injured in the motor accident.
Review Panel Assessment of Treatment and Care
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 6 April 2021 and issues a new certificate determining that:
The following treatment and care:
Referral to Dr John Trantalis, orthopaedic surgeon
Referral to Dr Simon McKechnie, neurosurgeon
Request from Professor Murrell, orthopaedic surgeon, for a right shoulder arthroscopic capsular release surgery
DO NOT RELATE TO THE INJURIES caused by the motor accident
The referral to Dr McKechnie, is not reasonable and necessary.
REASONS
Background
Mr Elias Taouk suffered injury in a motor accident on 20 May 2020 when a vehicle collided at “low-moderate speed”[1] into the rear of his vehicle.
[1] Ambulance report.
The Insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Taouk any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the Act).
The issues in dispute are whether Mr Taouk’s injuries are classified as a “minor injury” within the meaning of the Act and whether various treatment related to the right shoulder and the cervical spine should be paid by the Insurer. Pursuant to Schedule 2, clause 2 of the Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act” and “any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24”.
There were two separate applications, that is, the issue of whether Mr Taouk suffered a non-minor injury and the issue of treatment and care for the right shoulder and the cervical spine. Both disputes are determined in this decision particularly as the finding of an absence of right shoulder injury is determinative of that part of the treatment and care dispute.
A medical assessment matter is determined in accordance with Division 7.5 of the Act. This means that the matter is determined at first instance by a medical assessor[2] and, pursuant to s 7.26 of the Act, on review by a review panel.
[2] Section 7.20 of the Act.
The disputes were referred to Medical Assessor Bodel who issued two medical assessment certificates dated 6 April 2021. Medical Assessor Bodel concluded that the Claimant sustained a right shoulder injury which was not a minor injury for the purposes of the Act. The medical assessor otherwise found that the Claimant suffered injuries to the cervical, thoracic and lumbar spines which were minor injuries for the purposes of the Act.
Medical Assessor Bodel also found that Mr Taouk was entitled to various treatment for the right shoulder and the cervical spine.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[3]. Accordingly, if the Claimant’s injuries are only minor then he has no entitlement to treatment and care expenses after 26 weeks. An injured person otherwise cannot recover damages under the Act if the “only injuries resulting from the motor accident were minor injuries”.[4]
[3] Sections 3.11 and 3.28 of the Act.
[4] Section 4.4 of the Act.
10.By letter dated 7 October 2020 the Insurer accepted that Mr Taouk had sustained injuries to the low back and thoracic spine and asserted that these were minor injuries within the meaning of the Act. It denied that the injury to the right shoulder was caused by the motor vehicle accident.
11.The Insurer determined that Mr Taouk had suffered minor injuries and accordingly was not entitled to statutory benefit payments beyond 26 weeks. Such a determination meant that the Insurer disputed any claims for treatment and expenses.
12.Accordingly, the present dispute is whether Mr Taouk has suffered a non-minor injury within the meaning of the Act and whether he is entitled to various treatment and care expenses under the Act.
The Review
13.The applications for referral of the medical assessments to a review panel were made by the Insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[5]
[5] Section 7.26(10) of the MAI Act.
14.On 20 July 2021, the President’s delegate referred the medical assessments to the Review Panel (RP) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act.
15.The RP consisted of Medical Assessor Crane, Medical Assessor Moloney and myself.
16.Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
17.The new review provisions provide[7] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[7] Section 7.26(5A) of the Act.
18.Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a medical assessor.[8]
[8] Section 41(2) of the PIC Act.
19.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules
20.The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the Act.
21.The RP issued a direction to the parties requesting a provision of respective bundles. The parties complied with this Direction.
22.The RP issued a further Direction dated 19 August 2021 in the following terms:
1.Noting the absence of submissions by the parties disputing the clinical findings (as opposed to the submissions on causation) made by Medical Assessor Bodel, the RP considers that a further assessment with the Claimant can be conducted by telephone.
2.Either party can make submissions on this proposed course. Any submissions are to be filed and served by close of business, 26 August 2021.
3.The telephone conference with the Claimant is tentatively scheduled for 1 September 2021 at 3 pm. All RP members will be included in the telephone call.
23.Mr Taouk responded to this Direction in the following terms:
“We refer to the above matter and your direction dated 19 August 2021.
We note the current assessment for treatment determines the request from Professor Murrell, orthopaedic surgeon, for a right shoulder arthroscopic capsular release surgery.
Whilst this is not directly related to your request for submissions, we do however submit that once this surgery takes place it must be determined to be a non-minor injury. In that regard, we do not object to the matter being conducted by telephone.
Should you require further clarification of my submission, I request the opportunity to do so or alternately, face-to-face conference.”
24.There was no response by the Insurer to the further Direction.
Statutory Provisions
25.A minor injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
26.Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
27.Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 7 of the Guidelines commenced on 1 March 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision should be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
28.Clause 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
29.Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[11]
[11] Clause 5.9 of the Guidelines.
30.Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act[12]. In Raina v CIC Allianz Insurance Ltd[13] Campbell J stated:
[12] See s 3B(2) of the Civil Liability Act 2002.
[13] [2021] NSWSC 13 (Raina) at [65].
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
31.These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the Act.
32.However, the observations of his Honour direct the Review Panel’s attention to the provisions of the Civil Liability Act 2002 in determining matters of causation. Other provisions, such as clause 6.6 of the Guidelines provide that the determination of issues of causation is “both a medical decision and a non-medical informed judgement.”
33.The requisite standard of reasons may have been elevated by reason of the amendments to the Act which changed the composition of Review Panels.
34.The only dispute raised by the Insurer in the written submissions filed on the Review of the Minor Injury is whether the Claimant suffered a right shoulder injury which the Medical Assessor found was a non-minor injury for the purposes of the Act.
35.Section 3.24 of the Act relates to the provision of treatment and care. The section relevantly provides:
(1) An injured person is entitled to statutory benefits for the following expenses ("treatment and care expenses" ) incurred in connection with providing treatment and care for the injured person—
(a)the reasonable cost of treatment and care,
….
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
Assessment under Review
36.Medical Assessor Bodel made the following diagnosis of Mr Taouk injuries suffered in the motor accident:
“This gentleman has a soft tissue musculoligamentous injury to the cervical spine and the possible aggravation of some underlying degenerative change. He has a musculoligamentous injury to the thoracic spine and lumbar spine. These injuries are minor injuries for the purposes of the Act on the basis of the medical evidence available at the moment. There is a partial thickness tear of the supraspinatus tendon in the region of the right shoulder which is a non-minor injury for the purposes of the Act.”
37.Later in his reasons the Medical Assessor returned to the diagnosis of the right shoulder. He stated:
“In regard to the right shoulder, there is a non-minor injury because of the partial thickness tear of the supraspinatus tendon as identified in the ultrasound and the MRI scan of the right shoulder. Clinically this has been caused by the motor vehicle accident.”
38.The history recorded by the Medical Assessor was that Mr Taouk was “aware of an immediate onset of neck, right shoulder girdle, right arm and lower back pain.” Presumably, based on this history, the Medical Assessor determined that “clinically” the thickness tear was caused by the motor vehicle accident.
39.In the treatment and care dispute, Medical Assessor Bodel noted no signs of reflex abnormality, no wasting in either forearm, normal grip strength, no sensory loss in a dermatomal distribution and no clinical signs of radiculopathy. Later in his reasons the Medical Assessor concluded that Mr Taouk has suffered a soft tissue whiplash associated disorder involving the cervical spine and has developed rotator cuff pathology with some adhesive capsulitis in the region of the right shoulder.
40.In relation to the request for treatment of the right shoulder, Medical Assessor Bodel stated:
“I agree, based on the clinical presentation, that the surgery as proposed is reasonable and necessary for the management of the injury caused by the motor vehicle accident. The reasoning for this is that there is a rateable restriction of shoulder movement with clinical evidence of associated pathology and ultrasound reference to bursitis and tendinitis.”
41.Medical Assessor Bodel accepted that the referral to Dr Trantalis for a second opinion on the right shoulder was reasonable and necessary.
42.The Medical Assessor observed that the MRI scan of the cervical spine showed minor disc pathology at C4/5 and C5/6. On clinical examination he noted muscle spasm but observed there was “no spinal cord or nerve root compromise and no evidence of compressive myelopathy or radiculopathy”. He anticipated that a referral to Dr McKechnie “would probably amount to a recommendation for further conservative care which may include injections or periradicular block injections but would not include the need for surgery.”
43.The Medical Assessor based part of his reasoning on the need for treatment on the absence of any “history of other accident or injury”.
Submissions
44.The Insurer’s submissions alleging material error and a request that the matter be referred to a review panel raised a dispute that there was any injury to the right shoulder in the motor accident. It noted that the first mention of right shoulder symptoms was on 22 July 2020. This occurred after various examinations by the ambulance officer, at the hospital and by general practitioners on two occasions prior to that date.
45.The Insurer also referred to Mr Taouk’s failure to refer to injury to the right shoulder when he completed the claim form on 2 July 2020.
46.The Insurer submitted that the pathology shown on the radiological investigations revealed widespread degenerative changes which could not be attributed to the subject motor vehicle accident. Had Mr Taouk sustained an acute trauma to the right shoulder, then there would have been evidence of reduced range of motion, testing, reduced strength and pain evidence on clinical examination.
47.In the treatment and care dispute the Insurer repeated its submissions that there was no right shoulder injury. Accordingly, the Insurer submitted that Mr Taouk did not suffer a right shoulder injury and that treatment from Professor Murrell for shoulder surgery and referral to Dr Trantalis for a second opinion did not relate to any injury caused by the motor vehicle accident.
48.The Insurer submitted that Medical Assessor Bodel did not consider the subsequent assault in early July 2020 in circumstances where there were no complaints of neck symptoms for six weeks following the motor accident. Indeed, Mr Taouk failed to disclose the subsequent assault as the Medical Assessor recorded “nil” under the heading relating to previous or subsequent relevant injuries or conditions.
49.The Insurer referred to the clinical findings on examination and the MRI scan of the cervical spine and submitted that there was “an absence of neurological signs in both the Assessor’s assessment and the available medical evidence”.[14] In the absence of clinical indicators it was submitted that the consultation with Dr McKechnie was not reasonable and necessary.
[14] Insurer’s submissions, [43].
50.It was also submitted that the radiological evidence did not reference acute trauma caused by the motor accident.
51.Mr Taouk submitted that there had been no error in the assessment by Medical Assessor Bodel. There was no requirement to address each and every aspect of the material: Golijan v Motor Accidents Authority of New South Wales.[15]
[15] [2012] NSWSC 1106 at [48].
52.Mr Taouk submitted that there was “no evidence in support of the assertion that Assessor Bodel failed to apply the proper test of causation of injury in clauses 6.6 and 6.7 of the Motor Accident Guidelines”.[16]
[16] Claimant’s submissions, [8].
53.Mr Taouk referred to the decision of Coventry v Insurance Australia Ltd[17] as authority for the proposition that it was sufficient that the motor vehicle accident was a material contribution to the occurrence of the impairment.
[17] [2019] NSWSC 1096 at [56].
54.Mr Taouk noted that the absence of contemporaneous evidence was not decisive: Cahill v Insurance Australia Ltd.[18]
[18] [2019] NSWSC 564 at [58].
55.It was further submitted that the balancing of the evidence concerning causation of injury was a matter for the Medical Assessor and he determined, for reasons that “could not be clearer”[19], that Mr Taouk suffered a tear of the supraspinatus tendon.
[19] Claimant’s submissions, [14].
56.In relation to treatment and care, Mr Taouk noted that the motor accident has made a material contribution to the need for treatment: AAI Limited v Phillips.[20] The Medical Assessor clearly decided this issue in the Claimant’s favour.
[20] [2018] NSWSC 1710 at [29] (Phillips).
MATERIAL BEFORE THE REVIEW PANEL
57.The parties filed bundles of documents in accordance with the Direction. The following is a summary of this material relevant to the dispute.
58.An ambulance officer attended upon Mr Taouk following the motor accident. The records from the ambulance service record the following history of the motor accident and examination findings at the scene:
“Pt driver in stationary car, rear ended at low-moderate speed. Experienced whiplash. Did not hit head, Nil LOC. Self-extricated from car. Spoke to other driver. Pt returned to his vehicle and began driving away, then experienced upper back pain – T1. Nil C-Spine pain. O/A Pt sitting in car, well perfused. O/E PT A & O. Neuro: Nil Headache or dizziness. Nil altered movement or sensation. Pt ambulant with normal gait. Pearl 3 fats negative. Cardiac: Nil chest pain, Nil Seatbelt marks. Obs Btf. Resp: NAD, Nil SOB or Inc WOB. Good air entry in all lung fields. GI: Nil Abdo pain, Nil NVD. Administered pain relief. Stable en route.”
59.Mr Taouk was then conveyed by ambulance to hospital. The Emergency Department Discharge referral records the following in relation to the Claimant’s attendance at Bankstown-Lidcombe Hospital:
“35 y/o man presents to ED,
PC: MVA
HPC- Stationary in car about to merge onto adjoining road, hit from behind by other car, speed unknown
- Photos of both cars viewed on pts phone – minimal damage
- Wearing seat belt, no air bags deployed, nil LOC, self extricated from car
- Walking post, whilst on phone developed back pain, accident this pm
PMHx
Denies anyMeds
Nil regularAllergies
NKA or ADRSocial Hx
Works as an electricianO/E
Alert, ambulating w/o difficulty
Talking in sentences, nil SOB, nil CP
Chest-clear AE=LR
No marks to chest, no seat belt signs
No c-spine tenderness, no lateral neck tenderness
No scalp lacerations of haematomas
No facial injuries
Pain on palpation over T3/4 and L3, worse on movement
No numbness, no paraesthesia, no tingling
No motor sensory losses
No incontinence
Abdo-SNT,BS +
Pelvis – NAD
Lower/upper limbs – NAD – normal powerImpression MVA ? whiplash
D/W ED RMO
Xray thoracic spine and lumbar spine ordered”.
60.The hospital notes record a letter with the discharge from the emergency department:
“Dear Doctor
Thank you for the ongoing care of Mr Elias Taouk, 35 yp M who presented to ED with upper thoracic back pain post rear-ended by another vehicle.
Tenderness T3/4 on examination
Neurologically intact
XR showed no fracture
d/c home on PRN panadeine forte
follow up GP to chase formal XR report”.
61.Mr Taouk attended his general practitioner, Dr Islam on 25 May 2020. The following was recorded in the clinical notes of the general practitioner:
“MVA (motor vehicle accident) – On 20/05/2020 and attended to Bankstown Hospital. They did xray – which was normal
O/E – Walking slowly and stiffly
Restricted lumbar flexion and lateral flexions
Unable to walk on heels and toes due to pain at his upper back
Tenderness at the upper-mid thoracic vertebral area present
SLR – normal
Sensation and power in both legs – normal”
62.At that time Dr Islam provided an imaging request for scans to the thoracic and the lumbar spine. He also certified Mr Taouk unfit for work from 25 May 2020 to 29 May 2020.
63.The documents filed by the parties indicate that Mr Taouk consulted Dr Tatiana Gulyaeva, on 2 July 2020. The doctor noted that Mr Taouk attended for “low back and neck pain” and noted the following on examination:
“Cervical spine not tender
ROM limited rotation L >R
Trapezius tender bilaterally
Tender upper thoracic vertebra
Low back – tender paraspinal muscles
Limited flexion due to pain
P/T/R lower limbs normal”.
64.Dr Gulyaeva provided a certificate on 2 July 2020 which diagnosed “low back/thoracic back injury” and certified Mr Taouk unfit for work. The doctor also requested an x-ray of the cervical spine.
65.Mr Taouk signed a statutory declaration in the claim form on 2 July 2020 which he declared to be true and correct. The claim form referred to the rear end collision. In response to the question to outline all injuries in your own words, Mr Taouk answered:
“Back pain ‘lower side’
Neck side
Shocking from driving
Middle back pain”
66.A discharge referral from the emergency department dated 5 July 2020 includes a report of a CT scan of the brain, facial bones and cervical spine.[21] The clinical notes of the scan record that Mr Taouk attended the emergency department after being “assaulted”, “punched to the face” and suffering “neck pain”.
[21] The notes before the RP were limited to one page from the Emergency Department discharge referral.
67.Dr Patrick Wong concluded that the scan showed “no acute intracranial haemorrhage or fracture of the skull, facial bones or cervical spine identified.”
68.Mr Taouk next sought medical treatment on 22 July 2020. The clinical note of Dr Islam on that date is in the following terms:
“Reason for contact
Neck pain
NOTE: PATIENT PRESENTED WITH CT REPORT OF HIS BRAIN< FACIAL BONES AND NECK DONE AT THE HOSPITAL – WHICH WERE NORMALO/E – RESTRICTED NECK MOVEMENTS; TENDERNESS AT THE L. TRAPEZIUS MUSCLE PRESENT”.
69.Dr Islam then provided a certificate referable to the motor vehicle accident specifying the injuries as “neck and R. shoulder and lower back pain”. The certificates dated 12 August 2020 and 10 September 2020 are worded in similar terms.
70.On 22 July 2020 Dr Islam requested an ultrasound of the right shoulder.
71.On 21 August 2020 Dr Nabi recorded that Mr Taouk reported “severe neck, shoulder and back pain”. The doctor was unable to assess range of movement as Mr Taouk “could not tolerate pain”.
72.An ultrasound of the right shoulder dated 8 September 2020 records a clinical history of “MVA, difficult movement, pain”. Dr Pereira, Radiologist, noted that there was a 3mm intrasubstance tear of the supraspinatus tendon “which is otherwise unremarkable”.
73.An MRI Scan of the cervical spine dated 28 September 2020 is reported as showing “muscle spasm with minor C4/5 spondylosis”. The MRI scan of the right shoulder is reported by Dr John Bam Dele as showing a partial thickness tear and acromioclavicular osteoarthritis.
74.Mr Taouk was examined by Professor George Murrell on 4 November 2020. Dr Murrell recorded a history that the right shoulder problem “began” on 20 May 2020 when he was involved in a motor accident. The doctor stated that Mr Taouk “noted neck pain, that then progressed to right shoulder pain”.
75.The examination of the shoulder showed a very restricted range of motion with a diagnosis of frozen shoulder secondary to the motor vehicle accident”. Professor Murrell recommended an arthroscopic capsular release.
RE-EXAMINATION
76.The RP determined that Mr Taouk could be examined by telephone. That decision was made in the course of a serious pandemic where the submissions on the Review were limited to whether Mr Taouk sustained a right shoulder injury caused by the motor vehicle accident and whether proposed treatment related to the accident. The parties were advised of this course and no objection was taken.
77.The Insurer did not dispute in its initial submissions that Mr Taouk suffered injury to the lumbar and thoracic spine as a result of the motor vehicle accident. There was a dispute as to whether Mr Taouk suffered an injury to the cervical spine caused by the motor vehicle accident. Medical Assessor Bodel determined that Mr Taouk suffered a cervical spine injury, but that it was a minor injury as defined under the Act. There were no submissions on Review contesting that finding.
78.In these circumstances, whilst the Review is a new assessment of the issues, the examination findings of Medical Assessor Bodel set out earlier in these Reasons can and should be adopted on Review. Given the absence of contention on review, this is an appropriate course.
79.The objectives of the Personal Injury Commission otherwise provide that it should “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[22] Consistent with these objectives and even though this is a new assessment, the relevant findings of Medical Assessor Bodel can be adopted where there is no dispute. Given the absence of dispute on certain matters and the nature of the issues before the RP, it was appropriate that the matter could proceed by interviewing Mr Taouk by telephone.
[22] Section 3(c) of the Personal Injury Commission Act 2020
80.An important reason for the telephone communication with Mr Taouk was to provide him with procedural fairness to afford him the opportunity of explaining why there was no mention of shoulder injury in his statutory declaration, the ambulance report, Bankstown Hospital discharge summary and General Practitioner records until some months after the MVA.
81.Mr Taouk indicated that three days after his statutory declaration on 5 July 2020, he was assaulted by “up to seven men” and stated that he was unsure of the number as he was being attacked. He also stated that he fell to the ground during the attack and was kicked on his body. He also confirmed he was able to read and write English and agreed with the information he had provided on the statutory declaration.
82.Mr Taouk was informed that the first reference to the right shoulder was on 22 July 2020. On 22 July 2020 Mr Taouk attended Dr Islam and the doctor then requested an ultrasound of the right shoulder. It is a reasonable inference that there was a complaint of a right shoulder problem given the doctor referred Mr Taouk for an ultrasound of that body part at that time.
83.During the consultation with the RP, Mr Taouk stated that he told “all the doctors” about his right shoulder problem following the motor accident, and he did not know why the right shoulder was not recorded, although he considered he may have been more concerned about his back discomfort
84.Mr Taouk stated he was off work for two weeks after the MVA and was then laid off, being told there was no further work available. He confirmed that he had photographs of the damage to the vehicles on his mobile phone and his employment since the accident had been somewhat irregular.
REASONS
Minor Injury
85.The review is a new assessment of the issue of whether Mr Taouk sustained a minor injury.
86.The submissions that Medical Assessor Bodel erred or did not err are relevant to the issue of whether the President’s Delegate was satisfied that they had “reasonable cause to suspect that the medical assessment was incorrect in a material respect”. The submissions are also a guide to what is in dispute and what is not disputed in the reasons provided by the relevant Medical Assessor at first instance.
87.Medical Assessor Bodel determined that Mr Taouk suffered minor injuries to the cervical, thoracic and lumbar spines. Neither party disputed those findings. Accordingly, the RP adopts that aspect of the Medical Assessor’s diagnosis of the cervical, thoracic and lumbar spines.
88.In those circumstances the issue is whether Mr Taouk suffered an injury to the right shoulder, specifically a partial tear of the supraspinatus tendon, which was classified by the Medical Assessor as a non-minor injury for the purposes of the Act.
89.The determination of that dispute required a finding on causation and was undertaken following a telephone call with Mr Taouk and a review of the papers filed in this matter.
90.As the Insurer submitted, there is an absence of evidence of complaint to the right shoulder until the first complaint to a general practitioner on 22 July 2021. In his submissions, Mr Taouk correctly submitted that the absence of contemporaneous complaint was not determinative of the issue of causation.
91.Several recent authorities have discussed jurisdictional error by Review Panels and Medical Assessors in determining the issue of causation solely based on the absence of record in contemporaneous notes.
92.In Norrington v QBE Insurance (Australia) Ltd[23] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
[23] [2021] NSWSC 548 (Norrington)
93.The Court stated:[24]
[24] Norrington at [31].
“In the context of assessment under MACA, there is now a substantial body of authority that a panel which describes the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1).”
94.The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[25] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga[26]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[27]).
[25] [2016] NSWCA 229 at [64]-[66].
[26] [2004] NSWCA 34 at [35] (Davis).
[27] [2014] NSWSC 888 (Bugat) at [31]-[32].
95.QBE Insurance (Australia) Ltd v Shah[28] referred to the absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”[29] between the motor accident and the alleged injury. His honour noted:[30]
[28] [2021] NSWSC 288 (Shah)
[29] Shah at [36].
[30] Shah at [16].
“Soft tissue injury to the neck is commonly described in damages claims by drivers and passengers of motor vehicles that sustain rear end collisions, including where a front end collision has ensued. The biomechanical causation of that type of injury self-evidently involves the body being heavily accelerated and then decelerated in the horizontal plane. The body is restrained by the upright back of the seat and by the seatbelt and it therefore moves forward suddenly then stops suddenly with the corresponding movement of the vehicle. It is well understood that this acceleration and deceleration of the body causes “whiplash” to the neck because of the inertia of the head. In contrast to such cases of soft tissue injury to the neck, there is no obvious or self-explanatory means by which the rotator cuff tendons of either shoulder could be or would be torn by the first defendant’s involvement in the collision that he has described.”
96.The RP accepts that there is an absence of contemporaneous complaint of the right shoulder. Indeed, there was no reference to right shoulder symptoms by four different health practitioners in circumstances where the complaints in August and following were significant. Indeed, the complaint to Professor Murrell was of a frozen right shoulder. That symptomatology is grossly inconsistent with the way Mr Taouk presented to doctors following the motor accident and in early July 2020.
97.The notes provided by the ambulance service and the hospital are detailed. Whilst omissions occur in clinical notes and records from busy health practitioners[31], the detail in those notes suggest precision in questioning and recording. For example, Mr Taouk confirmed that he had photographs of the state of the vehicles on his phone, although he could not remember whether he showed them to the doctor at the hospital. The fact that Mr Taouk had photographs of car damage on his mobile phone is consistent with the comment in the hospital notes that the doctor viewed the photographs.
98.A further matter of precision in the hospital clinical records is that the upper and lower limbs were examined and it was recorded:
“Lower/upper limbs – NAD – normal power”
99.This note is another indication that there was no problem with the right shoulder when Mr Taouk was examined at the hospital following the motor accident. Not only is there an absence of record of right shoulder problems, but there is also a positive record of no upper limb abnormality and normal power.
[31] See for example Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [34]-[36]; Mason v Demasi [2009] NSWCA 227 at [2].
Whilst the absence of record of complaint is not determinative of causation, it is a relevant matter adverse to the acceptance of Mr Taouk’s allegation of right shoulder injury.
Mr Taouk did not refer to the right shoulder when he completed a claim form on 2 July 2020. In his examination he confirmed that he completed the document and could read and write English. He confirmed that the other injuries were his description of what occurred to him.
In Bugat the Court noted that a complaint of injury to a body part in the claim form was relevant. Clearly, the absence of complaint to a body part in a declaration, completed approximately six weeks following the injury, is also a factor relevant to whether a body part was injured. No proper explanation was provided by Mr Taouk in the examination by the Review Panel as to why the right shoulder was omitted when he completed the claim form. However, Mr Taouk confirmed that the injuries he described were “his words” and “that is how I described them”. That answer was given in the context of referring to the description, “Shocking from driving”.
The minor intrasubstance tear of the supraspinatus tendon, detected some three months after the accident with no reported problems from the right shoulder, was not considered to have resulted from the minor rear end collision, from which the biomechanical forces would have simply pushed the shoulders into the supporting car seat, was most unlikely to have caused anything and sometimes may cause a minor soft tissue injury.
The tear and degenerative changes shown on MRI may be found in shoulders with no history of trauma.
The detailed ambulance and hospital notes record a precise history of how the motor vehicle accident occurred. The ambulance notes refer to a rear-ended accident at “low-moderate speed” where Mr Taouk did not hit his head and self-extricated from the vehicle. Mr Taouk was recorded as speaking to the other driver and driving away before experiencing back pain and calling the ambulance. That version was repeated by Mr Taouk when he was interviewed by the Review Panel. Further Mr Taouk did not state during the interview by the RP that he hit his right shoulder in the motor accident.
On 5 July 2020 Mr Taouk reported to an emergency department after being struck in his face following an altercation. He then underwent scans to his face and neck indicating the seriousness of that altercation.
In the examination before the RP, Mr Taouk stated that he was attacked by up to seven people, he was punched in the face and kicked in the body when he was on the ground.
Mr Taouk gave subsequent histories to Professor Murrell and Medical Assessor Bodel of right shoulder pain following the motor vehicle accident. That version was grossly inconsistent with the absence of a reference of history of injury to the right shoulder recorded in the claim form and the detailed examination findings in the hospital notes.
The RP does not accept Mr Taouk’s history provided during his re-examination by the Review Panel. We are not persuaded there was any injury to the right shoulder, or even a minor soft tissue injury which resolved in a short period of time.
Both Medical Assessor Bodel and Professor Murrell accepted a causative link between the right shoulder pathology, particularly the supraspinatus tear, and the motor accident. The doctors provided no reasoning and do not analyse the matters that are set out above. The doctors’ diagnosis of injury appears to be based on an acceptance of symptoms following the motor accident. Accordingly, the RP does not accept their opinions as being persuasive in this matter.
For these reasons, the RP does not accept that the right shoulder was injured in the motor vehicle accident and does not accept that the motor accident caused or contributed to the supraspinatus tear.
Treatment and Care
Based on the conclusion that Mr Taouk did not suffer injury to the right shoulder in the motor accident, there is no entitlement to the cost of treatment for the right shoulder pursuant to s 3.24 of the Act. Accordingly, the proposed treatment and care for the right shoulder, which involved surgery for the tear and referral to a second specialist does not relate to the injury within the meaning of s 3.24(2) of the Act.
Turning to the issue of treatment for the cervical spine, Mr Taouk is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[32], Grove J stated:[33]
“22 I return to the expression "reasonably necessary" in s60. Dictionaries stipulate that "necessary" has relevant definition as "indispensable, requisite, needful, that cannot be done without" - (Shorter) Oxford English Dictionary, 3rd Ed and "that cannot be dispensed with" - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as "reasonably". The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word "necessary" if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of "necessary" in this context.”
[32] [2003] NSWCA 52 (Clampett)
[33] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[34]
[34] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Dr McKechnie is a neurosurgeon. Assessor Bodel recorded slight dysmetria of the cervical spine but normal reflexes, no muscle wasting or sensory changes in a dermatomal distribution in the upper limbs. As there are no documented signs of radiculopathy, no neurosurgical referral to Dr McKechnie is indicated and is not necessary.
There is a second limb to the Insurer’s liability to pay for the costs of proposed treatment. The cost of treatment is not payable if it “did not relate to the injury resulting from the motor accident concerned”.[35]
[35] Section 3.24(2) of the Act.
Mr Taouk submitted, citing Phillips, that it is sufficient that the motor accident materially contributed to the need for treatment.[36] The RP will proceed on the basis that it is a material contribution test in accordance with Mr Taouk’s submission, although it is arguable that the words “did not relate to the injury resulting from the motor accident concerned” suggest an even lower test than “material contribution”.
[36] See [56] herein.
The ambulance officer at the scene of the accident recorded that Mr Taouk was not suffering cervical spine pain. The examination at hospital is recorded as showing no cervical spine tenderness and no lateral neck tenderness.
Indeed, when Mr Taouk eventually complained of neck pain on 2 July 2020, the general practitioner noted the cervical spine was “not tender”.
These findings indicate that various health practitioners examined Mr Taouk’s neck and found no abnormality in the period from the accident until early July 2020.
Accepting that there was a minor injury to the cervical spine sustained in the motor accident, the presence of current symptoms requiring treatment do not relate to the compensable event.
It was not until after Mr Taouk was seriously assaulted and struck in the face on 5 July 2020 that there were significant cervical spine complaints. The absence of any initial relevant symptoms in the cervical spine suggests an absence of a causal relationship between the current need for treatment and the motor vehicle accident.
The RP considers that the referrals to specialists Dr Trantalis or Dr McKechnie or for the tendon release surgery as proposed by Professor Murrell is not consequential upon the motor accident.
Conclusions
The right shoulder was not injured in the motor vehicle accident. In these circumstances the need for any right shoulder treatment does not relate to the motor accident.
The injuries to the cervical spine, thoracic spine and lumbar spine are minor injuries for the purposes of the Act.
The RP is otherwise not satisfied that the proposed treatment and care for the cervical spine is necessary and that it relates to the injury.
John Harris
Principal Member
Dr Richard Crane
Assessor
Dr Shane Maloney
Assessor
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