Glibo v Transport Accident Commission of Victoria
[2022] NSWPICMP 351
•7 September 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Glibo v Transport Accident Commission of Victoria [2022] NSWPICMP 351 |
| CLAIMANT: | Laura Glibo |
INSURER: | Transport Accident Commission of Victoria |
| REVIEW Panel | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Dr Tai-Tak Wan |
| MEDICAL ASSESSOR: | Dr Margaret Gibson |
| DATE OF DECISION: | 7 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Accident occurred on 15 May 2018; injury to cervical spine, lumbar spine and left shoulder; causation of left shoulder injury considered; pre-existing left shoulder complaints and treatment; no complaints or treatment for left shoulder from December 2017 until shortly after motor vehicle accident; panel satisfied left shoulder injury causally related to motor vehicle accident; claimant found to have 5% WPI of cervical spine only. |
| DETERMINATIONS MADE: | The Panel revokes the certificate of Medical Assessor Sharp dated 2 April 2021 The Panel determines that the following injuries were caused by the motor accident: · Cervical spine - soft tissue injury; · Lumbar spine – soft tissue injury, and · Left shoulder - soft tissue injury. The injuries caused by the motor accident have a total whole person impairment of 5%. |
Background
This is an application by the claimant for review of the decision of Assessor Sharp of
2 April 2021.The following injuries were referred to Assessor Sharp for assessment of the claimant’s whole person impairment (WPI):
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· shoulder (left but not stated in certificate) – soft tissue injury/strain.
Assessor Sharp determined that the left shoulder injury was not caused by the accident.
Assessor Sharp found a 5% WPI of the cervical spine and 5% WPI of the lumbar spine giving a total WPI of 10%.
The accident occurred on 15 May 2018. The claimant was driving along Old Northern Road, Glenhaven when a car travelling in the opposite direction collided with the claimant’s car. In the rear seat was the claimant’s grandson. The claimant says that following the accident she had bruising to her right hand and right thigh which was sore and badly bruised. At the time she was not feeling any other pain. Whilst the claimant said in her statement that she felt nauseous on the day the accident, it was not until the following day, she says, that she had vomiting for nearly two hours. She said that she also had a bad headache as well as a throbbing thigh and she began to feel pain in her left shoulder and left side of her neck.
Each of the claimant and the insurer have provided their respective bundles of documents pursuant to a direction of the Panel dated 27 January 2022. Both bundles of documents have been read by the Panel.
The Panel undertook an examination of the claimant on 8 March 2022 by Dr Wan. His findings form part of this report and are adopted by the Panel.
Submissions
Each of the claimant and the insurer have provided their respective submissions to the Panel.
The claimant’s submissions
The claimant has submitted, amongst other things:
(a) the assessor copied sections of the insurer’s documents marked R1 and R2 and included them in his certificate;
(b) the assessor did not assess the degree of permanent impairment of the upper extremity;
(c) the assessor did not review and evaluate all the available evidence, and
(d) the assessor did not prepare a certificate using the methods in the Motor Accident Guidelines (the Guidelines).
The claimant says that the assessor did not refer to the claimant’s submissions and they have not been addressed.
The claimant says that the assessor did not analyse the history of symptoms and treatment following the accident. She says that the history of treatment did not end on 9 July 2018 noting that the claimant submits the assessor commented on two dates the claimant received treatment from her general practitioner (GP) being 16 May 2018 and 9 July 2018. The claimant says that she has received treatment from the date of the accident to date.
The claimant says that in part, the assessor has copied the insurer’s submissions.
The claimant says that the assessor did not view the two discs of imaging brought to the assessment by the claimant as he did not have the necessary equipment for this.
The claimant says that the assessor has reached a conclusion that his findings comply with the definition of a minor injury however, the claimant says that the assessor was not asked to address minor injury and in any event he could not reach that diagnosis having regard to the deficiencies of his assessment.
The claimant says that when reviewing section 22 of the certificate on pages 9 and 10, the reasons set out do not address why the assessor found the left shoulder injuries were not caused by the accident. The claimant says that all the assessor has done is to copy and adopt the insurer’s submissions.
The claimant says that had the assessment been conducted in accordance with the Guidelines then the claimant’s degree of permanent impairment would be found to be greater than 10%.
The claimant provided further submissions dated 15 March 2022.
The claimant says that in the Rouse Hill Medical Centre notes there is a reference to the claimants left shoulder, cervical spine and lumbar spine on the following dates:
(a) 17 April 2016 at pages 604/656 of AD 10;
(b) 19 April 2016 at pages 603/656 of AD 10, and
(c) 28 December 2017 at pages 598/656 of AD 10.
The claimant attended the medical centre on 19 April 2016 and received an explanation of a CT scan of the lumbar spine dated 18 April 2016. There are no further references to the claimant’s lumbar spine in the treatment records until after the accident on 15 May 2018.
The claimant submits that she was seeing Mr Hornby, chiropractor, since 24 May 2017 for treatment of the left trapezius, shoulder and neck pain as well as vertigo and headaches – see pages 262/656 of AD 10. The claimant submits that the notes show improvement of the claimant’s condition with treatment and the treatment ceased in December 2017.
The claimant submits that on 28 December 2017 she attended the medical centre with the history recorded of left shoulder pain two years prior to this and left sided neck muscle pain. An MRI scan of the left shoulder took place on 29 December 2017. This is referred to by the claimant in her statement on 9 October 2020.
Amongst other things, the MRI scan of the left shoulder of 29 December 2017 found no cuff tear or focal chondral pathology evident – see pages 605 to 606/656 of AD 10.
The claimant submits that there was neither treatment nor complaint regarding the left shoulder, cervical spine or lumbar spine thereafter until 18 May 2018 when she was injured in the accident.
The claimant submits that the clinical notes of the medical centre record ongoing treatment following the accident of the claimant’s left shoulder, cervical spine and lumbar spine and these areas are mentioned in certificates of fitness provided by the claimant’s GP – see pages 293 to 410 of AD 10.
The claimant submits that she had left shoulder thickening of the bursa prior to the accident but at the time of the accident she did not have symptoms. She said that she was working and was not restricted.
The claimant submits that Dr Dixon, orthopaedic surgeon, in his report of
17 June 2020 assessed 17% WPI and that this assessment is correct. This assessment consists of 5% WPI for the cervical spine at DRE category II and 5% WPI for the lumbar spine at DRE category II and 7% WPI for the left upper extremity.In the claimant’s submissions at page 536 of AD 10, reference is made to the claimant attending Rouse Hill Medical Centre. The claimant says that this occurred when appointments were difficult to obtain at Kenthurst Medical Centre or when convenient to her while she was at work. In 2017 the claimant says that she attended that practice for treatment of diverticulitis.
It is further submitted that the claimant told Mr Hornby that she had diverticulitis in 2017- see his note dated 25 October 2017. The claimant saw Dr Gill for treatment. He has mentioned in the PBS records dated 5 November 2020 for a prescription dated
26 July 2017. The claimant saw Dr Gill for treatment of diverticulitis and was treated at Rouse Hill Medical Centre and also Norwest Private Hospital. The claimant submits that there is no gap in the Kenthurst Medical Centre notes.The claimant refers to the insurer’s submission in paragraph 30 that there was no complaint of lumbar pain until February 2019. The claimant says that this is incorrect. The claimant submits that both the application for personal injury benefits dated
25 May 2018 and the certificate of fitness dated 25 May 2018 both record low back pain. The claimant also submits that low back pain is referred to after the accident in various certificates of fitness dated 21 June 2018, 4 August 2018, 13 September 2018 and 11 October 2018.
The insurer’s submissions
The insurer has referred to the claimant’s pre-accident treatment and has referred to physiotherapy treatment undertaken by the claimant from May to December 2017.
The insurer says that on 2 June 2017 the claimant’s chiropractor, Bryan Hornby, wrote to the claimant’s GP (R4) saying that he had been treating the claimant for “left neck, shoulder and vertigo”. The chiropractor reported that the claimant had “decreased range of motion in lumbar and cervical as well as postural tilting”. The insurer says that it was clear that symptoms continued because the claimant had an MRI scan of her left shoulder on 29 December 2017 (R5) which the insurer noted was undertaken for “chronic pain with cracking”. The insurer submitted that the MRI was reported as being consistent with impingement.
The insurer submitted that it is clear, when considering the notes of Kenthurst Medical Centre that the claimant must have been seeing another GP around this period of, presumably, June to December 2017, for two reasons:
(a) there is a gap in the notes from July 2017 to February 2018, and
(b) there is no referral to the MRI of 29 December 2017.
The insurer says that on the information available to it, it is clear that the claimant had left shoulder problems and restriction in movement of her neck and lumbar spine in the lead up to the accident and for which she had chiropractic treatment and radiology. The insurer says that not enough is known about these conditions. Specifically, the insurer says that there seems to be a gap in the GP’s notes and that these GP records ought to be identified and provided. That is not a matter for the Panel but rather for the insurer to pursue and provide any outstanding documentation.
With respect to causation, the insurer refers to the notes of the claimant’s GP whom she attended the day following the accident. It was recorded that the claimant felt fine the day of the accident but woke with pain and discomfort across her shoulder and neck. The insurer says that this is very different from the version provided in the claimant’s statement which says that after the accident she was confused and dazed with overnight vomiting and bruising to the right thigh.
The insurer says that there was no complaint of lumbar pain to the doctor and that any complaint involving the lumbar spine does not appear in the medical records until February 2019, more than 18 months after the accident. On this basis the insurer says there is no causal link with respect to the lumbar spine. This has been addressed by the claimant.
The insurer says that whilst Dr Dixon assessed 7% WPI of the left shoulder, he was not given a history that the claimant had issues with her left shoulder five months before the accident and was suspected to have ligament damage. The insurer says that Dr Dixon was not provided with the MRI of 29 December 2017 or the MRI report. Nor, the insurer submits did Dr Dixon have access to the clinical records from that time and which have also not been provided to the insurer.
The Review
On 22 November 2021 the President’s delegate referred the medical assessment to the Review Panel (the Panel) as she was satisfied that there was reasonable cause to suspect that the medical assessment of Assessor Sharp was incorrect in a material respect having regard to the particulars set out in the application.
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 cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[1] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[1] Section 7.26(5A) of the MAI Act.
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.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
Causation and the Guidelines
[4] Section 7.26(6) of the MAI Act.
The Guidelines identify the test for causation at cls 6.6 and 6.7.[5]
The authorities
In Ackling v QBE Insurance (Aust) Ltd, [6] Johnson J indicated the task of a review panel in assessing whether an injury was caused by the relevant accident is “a practical one.” His Honour also observed that when undertaking the task of assessing causation, a review panel will derive practical assistance from the Guidelines.[7]
[6] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[7] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.
In Owen v Motor Accidents Authority (NSW)[8] Campbell J adopted the Justice Johnson’s approach with a caveat touching upon the Civil Liability Act 2002 (the CLA):
“Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor’s constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that 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 Civil Liability Act 2002, s 5D. (See s 3B(2)).”[9]
[8] [2012] 61 MVR 245; [2012] NSWSC 650.
[9] At [27].
As mandated by Justice Campbell in Owen, section 5D of the CLA needs to also be considered when assessing causation.
47.Section 5D of the CLA provides:
“General principles
A determination that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”
There are two elements to address when assessing causation under s 5D(1):
· “factual causation”,[10] and
· “scope of liability”.[11]
[10] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[11] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing “factual causation” and “scope of liability” involves the making of value judgments.[12]
[12] There is a conflict between s 5D and the guidelines. Section 5D requires the use of the “but for” test and the guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”[12] For the purposes of this Review, the Panel does not consider anything turns on this apparent conflict, given the medical evidence does not give rise to an assessment involving multiple causes.
Medical examination
The following is a report of Medical Assessor Wan:
“The claimant attended the assessment alone. Her husband was in the waiting room.
History as given by the injured person
Pre-Accident medical history and relevant personal details
Ms Glibo is 53 years old, unemployed. She worked full time as a colour consultant for her husband’s company (a painting/decoration company) but stopped working since the subject motor vehicle accident (MVA). She still helps her husband preparing invoices about once a week Past Health.
Ms Glibo denied any other history of accidents, injuries or other relevant conditions sustained prior to the subject MVA. When I asked her about her shoulder pain in 2017, she could not give much detail.
She said her past health was otherwise good.
She denied any history of allergy to medication.
Social history
She was born in Lebanon. She came to Australia when she was 1 years old.
After finishing Year 12 of high school with a Higher School Certificate, she did a course on ‘building colour consultation’ from a private college. She then worked in a company with her ex-husband. She divorced from her first husband in 2000. She then married again with her current husband in 2005. She then worked as customer services for a company for one year, then working as ‘stock / booking’ for another company for two years, and then worked as colour consultant for her husband’s company since 2010.
She lives with her husband (50 years old) and a son (25 years old) in a 2-storey house. There are 10 steps at home, and she reported no problems walking the steps.
She is a non-smoker and non-drinker.
She used to play netball and soccer when she was young, but now likes to do walking, swimming and hiking.
History of the motor accident
Ms Glibo reported that on 15 May 2018, at around 8:30am, she was driving her car along the Old Northern Road with her 3 years old grandson sitting in a baby seat at the back. She was seat-belted with a headrest in the seat. Her car was hit by another vehicle head-on. There was no loss of consciousness and she was able to get out of the car with the assistance of two male passers-by. She was shaken after the accident, worrying about her grandson. Her grandson was uninjured. Her husband and son came to the scene to help her in about 15 minutes.
Her car was then towed away and later written off. Neither police nor ambulance came to the scene, but she reported the accident to the police one week later.
She did not go to the hospital after the accident. She felt alright on that day apart from some bruises on the left thigh. However, she could not sleep well that night and complained of neck and back pain
She consulted a GP at Kenthurst Medical Centre next morning.
History of symptoms and treatment following the motor accident
Ms Glibo stated that shortly after the subject MVA, she had pain in the neck, lower back, trapezius muscle regions, left thigh and left leg. She consulted her GP at Kenthurst Medical Centre. She was diagnosed to have whiplash injury, and was given Voltaren tablets, and physiotherapy. She also complained of phobia to driving with dizziness and anxiety. She took Stemetil (available at home) for that.
She changed to her current GP Dr Basiri, since seven years ago.
She has had physiotherapy locally since 2019, about two times a week. She has hydrotherapy about twice a week since last year. She said hydrotherapy helps her more, “allowing more movements”.
She was referred to see a psychologist, Tony Georginis, since two years ago. She saw him initially once a week, now once every three weeks.
She has been referred to see a neurologist Dr Geevasinga for headache. She was given Botox injection to the neck and head regularly. The last Botox injection was given about six weeks before this examination.
She has been seeing a pain specialist, Dr Jane Standen, for last two years. She was last seen by Dr Standen the week prior to this examination. She was given clonidine, diclofenac and some other medicine. She has tried TENS (transcutaneous electrical stimulation) machine, which gives her some relief. She finds it difficult to apply the electrode herself. She needs her husband to assist her on using the TENS.
She received an ultrasound guided cortisone injection to her left shoulder in 2019, which did not give any relief. She has not received any cortisone injections to her neck or back.
She said she has seen a psychiatrist Dr Kim Nguyen since six months after the subject MVA. She was told that she has post-traumatic stress disorder (PTSD). She was given antidepressant. She usually saw the psychiatrist once every fortnight but she had stopped seeing her because the psychiatrist has retired.
She has not seen any neurosurgeon, orthopaedic surgeon or rehabilitation physician.
She has been seen by an occupational therapist a few times regarding return to work, but could not give any further details.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Glibo denied any history of other significant accidents, injuries or other relevant conditions sustained since the subject MVA.
Current symptoms
Her current complaints are as follows:
(a) neck pain, 8/10 in Visual Analogue Scale (VAS). She described this as a constant ‘sharp, heavy and dull pain’. It is relieved by moving the neck, or using topical pain cream or taking painkillers. She finds that she cannot sleep on her left side because of the neck pain;
(b) pain in left thumb, index finger and middle fingers, was estimated at about 7/10 in VAS. It is a constant ‘pin and needles pain’. It is relieved by massage or using pain killers or using topical pain cream. There is no pain in the right hand;
(c) she had left shoulder pain initially but there is not much shoulder pain now;
(d) lower back pain was estimated at 7/10 in VAS. It is an intermittent ‘dull heavy pain, just like brushing teeth’. It may be triggered when she bends over a basin;
(e) sometimes she may have pain in left leg, estimated at up to 7/10 in VAS. It is an intermittent pin and needles going to all left times. Sometimes it may be burning or tingling. However, there was no leg pain at the time of assessment;
(f) sleep is poor, usually due to late sleeping, and
(g) she said she may have some constipation from time to time but has diarrhoea or loose stool on other days.
She reported no problems in her bladder functions.
She said that, at most, she can sit for 15 minutes, stand for 10 minutes, walk for 15 minutes. She said she could only drive locally and slowly.
She is independent in her personal hygiene care and most activities of daily living (ADL). She said that prior to the subject MVA, she did most of the domestic duties. Since the subject accident, her husband has to do more housework.
Current and proposed treatment
Ms Glibo stated that she has been taking the following medication:
(a) Norflex 100 mg, one tablet twice daily;
(b) Magnesium glycinate;
(c) Norspan patches 5 mg patch weekly;
(d) Compund cream with clonidine and diclofenac, two to three times a day;
(e) Endep 10 mg nocte;
(f) Venlafaxine 150 mg mane and 75 mg nocte, and
(g) Panadol rapid or extra, 1-2 tablets daily, as necessary.
She has seen her physiotherapist and psychologist regularly.
She sees her GP Dr Basiri regularly. She also sees Dr Standen and Dr Geevasinga from time to time. She may also see other specialists when referred by her GP.
Dr Standen has provided several reports to the claimant’s GP. No reference is made by Dr Standen to any pre-existing shoulder disability of the claimant but only symptoms following the accident.
There is no plan for any surgery or surgical procedures.
Clinical examination
Examination on 28 March 2022 showed that Ms Glibo was oriented and alert. She was 164 cm tall, and weighed 69 kg. She walked independently, without any walking aids, in a normal symmetrical gait. She had no problems walking on tip toes or on heels, or squatting. She had good high level balance and could walk in a tandem (heel-toe) way. She could dress and undress independently. She could get on and off the examination couch independently. She is right-hand dominant.
CERVICAL SPINE (Cervicothoracic)
Examination of the neck showed mild tenderness over the left trapezius region but no muscle spasm or guarding. She complained of a pins and needles sensation in the left thumb, index and middle fingers, which corresponded to the C6 dermatome. While the claimant complained of a pins and needles sensation, it was a subjective feeling and could not be confirmed clinically. There was mild but symmetrical restriction in active movements in rotation and lateral flexion. All the measurements are those of active movements. All the active ranges of movements (ROM) of the spine were measured using a goniometer and inclinometer:
Cervical spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
Normal
Normal
4/5 normal
4/5 normal
4/5 normal
4/5 normal
There was no evidence of dysmetria (asymmetrical loss of motion).
THORACIC SPINE (Thoracolumbar)
Examination of the upper back showed mild tenderness over the left trapezius muscle but no muscle spasm or guarding. Active movements of the thoracic spine were symmetrical and within normal limits. There was no evidence of any non-verifiable radicular complaints:
Thoracic spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
Normal
Normal
Normal
Normal
Normal
Normal
LUMBAR SPINE (Lumbosacral)
Examination of the lower back showed no tenderness muscle spasm or guarding. Active movements of the lumbar spine were normal range with no asymmetry. There was no clinical evidence of dysmetria. There were no complaints of lower limb symptoms that corresponded to a specific nerve root territory and therefore there were no non-verifiable radicular complaints:
Lumbar spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
Normal
Normal
Normal
Normal
Normal
Normal
Straight leg raising was 80° on both sides in supine position and 90° in sitting position.
UPPER EXTREMITY
Examination of the upper limbs showed no muscle wasting. Measurement of mid-arm circumference showed that the right side was 0.5cm larger than the left side which was within normal limits considering she is right hand dominant. Measurement of mid-forearm circumference showed that the right side was 0.5 cm larger than the left, which is within normal limits, given that she is right-hand dominant. Muscle power was normal in both upper limbs, both proximally and distally. Reflexes were normal and symmetrical in the upper limbs. There was no radicular sensory impairment to pain and touch in the upper limbs.
Examination of the shoulders showed tenderness in the left the trapezius muscle. Active movements of shoulders were symmetrical and largely within normal limits. [All the measurements are those of active movements. All the active ranges of movements (ROM) of the limbs were measured using a goniometer]:
Shoulder
Flexion
Extension
Abduction
Adduction
Internal Rotation
External rotation
Right /°
170
50
175
50
80
80
Left /°
170
50
175
50
80
80
Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.
Examination of the wrists and hands showed no deformity or swelling. Active movements of the wrists, hands and fingers were all symmetrical and within normal limits.
LOWER EXTREMITY
Examination of the lower limbs showed no muscle wasting. Measurement of mid-thigh circumference and mid-calf circumference showed that they were equal on both sides. Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical on both lower limbs. There was no sensory impairment in either lower limb.
Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. FABER test was normal on both sides. Active movements of the hips were within normal limits:
Examination of the knees showed no deformity, swelling or effusion. There was no crepitation on moving the knees. There was no excessive anterior-posterior or medial-lateral laxity, suggesting that the cruciate and collateral ligaments were intact. McMurray’s test was normal on both sides, suggesting that the menisci were intact. Active movements of both knees were symmetrical and within normal limits.
Examination of the ankles showed no deformity or swelling. Active movements of the ankles and feet were symmetrical and within normal limits.
Examination of the abdomen and chest was unremarkable.
Consistency of Presentation
Overall, the clinical findings are consistent with the complaints.
Review of Documentation
Relevant Imaging Studies and Other Investigations
I have reviewed all of the films and reports in the bundles of documents provided by the parties and make the following comments about the of the following investigations brought to the assessment by the claimant:
·MRI left shoulder of 29 December 2017, taken at Synergy radiology, reported by Dr Tej Dugal – which showed thickened subacromial / subdeltoid bursa associated with thickening of the coracoacromial ligament which could be implicated in subacromial/subdeltoid impingement.
·CT Brain and Petrous temporal bone of 2/8//2018, taken at Synergy Radiology, reported by Dr Irene Yew Lan Tan – which showed no significant abnormality, although radiologist stated that small acoustic neuroma could not be excluded, and suggested MRI scan if clinically suspected.
·Xray Chest, CT cervical spine, and Injection left shoulder under ultrasound guidance of 27 February 2019, taken at Synergy Radiology, reported by Dr Louis Shulman – which showed no abnormal findings in the Xray Chest
CT cervical scan showed C6/7 moderate disc space narrowing with a vacuum phenomenon within the degenerative disc and a moderate disc osteophyte complex. There was C5/6 moderate disc bulging with calcification within the disc margin, uncinate process hypertrophy and bilateral moderate bony neuroforaminal narrowing. There was mild disc building in C2/3, with mild bilateral neuroforaminal narrowing. There was C3/4 mild left sided neuroforaminal narrowing, moderate left-sided zygapophyseal joint degeneration. There was also moderate bilateral zygapophyseal joint degeneration at C7/T1
The Panel observes that these degenerative changes are non-specific and not uncommon in asymptomatic populations of the age of the claimant. It usually takes years and months to develop, and more likely to be pre-existing.
·MRI Cervical Spine of 8 March 2019, taken at Synergy Radiology, reported by Dr Craig Harris – which showed cervical spine degenerative changes with foraminal narrowing notably involving the exiting left C6 and C7 nerve root. Less marked changes were noted on the right side.
·MRI lumbar spine of 8 April 2019, taken at Synergy Radiology, reported by Dr Craig Harris – which showed L4/5 left foraminal disc bulging, abutting and slightly displacing the exiting left L4 nerve root.
·CT middle ear and temporal bones of 13 September 2019, taken at Synergy Radiology, reported by Dr Andrea Dart – which showed no abnormal findings.
·MRI Brain / IAM of 13 September 2019, taken at Synergy Radiology, reported by Dr John Ly – which show no abnormal findings. In particular there was no acoustic neuroma or retro cochlear pathology.
Overall, having reviewed the radiological investigations, I agree with the reports of the radiologists.
Summary of Relevant Documentation Provided for the Initial Assessment
Medical Evidence
Assessor Sharp referred to chiropractic treatment on 2 June 2017 and that the chiropractor reported to the claimants GP that he had been treating the claimant for her left neck, shoulder and vertigo. The assessor referred to the chiropractor reporting that the claimant had a decreased range of motion in the lumbar and cervical spine as well as postural tilting. The chiropractor continued to provide regular treatment. First treatment occurred on 24 May 2017 although Assessor Sharp said that the nature of that treatment was not clear.
The assessor noted that it seemed that the claimant’s symptoms continued as she had an MRI of her left shoulder on 29 December 2017 (R5) and that this was said to have been done for “chronic pain with cracking”. The assessor said that the clinical records of Rouse Hill Medical Centre noted in an entry on 28 December 2017 a history of left shoulder pain for two years as well as left sided neck muscle pain. Examination of the left shoulder was normal but there was reference to a “cracking sound+” in the notes.
Assessor Sharp said that on the information available to him about the claimant’s condition before the accident, she had left shoulder problems and restriction in movement of her neck and lumbar spine. For this she sought chiropractic treatment and radiology. Assessor Sharp said that on the information provided, not enough is known about these conditions.
The claimant said that she attended Dr Gaudry on 9 July 2018 at Kenthurst Medical Centre. Dr Gaudry reported that her neck pain was improving
The claimant had said that she had constant pain in the left side of her neck. She said that symptoms had remained the same for three months prior to this examination and report, noting that the certificate is dated 2 April 2021 but the certificate of Assessor Sharp does not say when the examination actually took place.
The assessor noted that when the claimant attended her GP on the day following the accident, he did not consider it necessary for scans to be undertaken but referred the claimant for physiotherapy. There was no complaint of lumbar pain. The assessor referred to the notes of Mr Hornby, chiropractor which recorded that the claimant had issues with her left shoulder for 11 months before the accident. The assessor noted the attention to the left shoulder on 29 December 2017 for chronic pain with cracking. On this basis, the assessor opined that on the balance of probabilities he would not accept that the accident caused an impairment to the claimant’s left shoulder.
Assessor Sharp found a 5% WPI for the cervical spine and 5% WPI for the lumbar spine
In a report of Benchmark dated 17 April 2019, there is reference to the claimant saying that she believed she had a cortisone injection to the left shoulder independently on 8 March 2019 hoping that it may assist in reducing neck pain. This would not appear to be treatment of the left shoulder but rather, indirect treatment through the left shoulder to assist neck pain.
Dr Basiri from Kenthurst Medical Centre provided a certificate of capacity/certificate of fitness on 25 May 2018. She noted low back pain, neck pain, shoulder pain, bruising on right thigh amongst other things. Dr Gaudry, also from Kenthurst Medical Centre, provided a certificate of 13 September 2018 in which he referred to lower back and neck pain amongst other things but nothing about the shoulder. Dr Khiroya, also from the same practice, issued a certificate of fitness and predominantly referring to lower back and neck pain amongst other things. Up until a period of capacity of 2 September 2019, there is no mention of left shoulder pain.
Dr Dixon provided a report of 17 June 2020. This was an examination by audiovisual means. Measurements were taken as part of the examination but it seems that these measurements were undertaken by the claimant’s husband.
Dr Dixon made no reference to any pre-existing condition or treatment. He only referred to an MRI scan of the cervical spine of 8 March 2019 and an MRI of the lumbar spine of 8 April 2019.
Dr Dixon provided a diagnosis of a whiplash injury to the claimant’s neck with post traumatic stiffness and dysmetria here was no reference to any shoulder investigations. He reported that this was consistent with exiting C6 and C7 nerve roots, less marked changes on the right. There were disc bulges at C5/6 and C6/7which Dr Dixon said was consistent with the radicular complaint in her left upper limb.
Dr Dixon provided a diagnosis of a;
(a) whiplash injury to the claimant’s neck with post traumatic stiffness and dysmetria, aggravation of lower cervical spondylosis with C5/6 and C6/7 disc bulges and foraminal stenosis more marked on the left with radicular complaint with intermittent paraesthesia in her left hand;
(b) left shoulder strain with trapezial muscle and deltoid pain with post traumatic stiffness and impingement on abduction and subacromial bursitis clinically;
(c) trapezial muscle pain following her neck strain injury, and
(d) low back strain injury with post-traumatic lumbar stiffness with dysmetria and L4/5 disc lesion with left thigh sciatica due to L4 nerve root pressure on that side with discal abutment.
Dr Dixon said that the diagnosis was causally related to the injuries received in the accident.
Dr Dixon provided a further report dated 10 September 2020. In this report he noted that the claimant attended for a check of measurements.
The claimant complained of persisting stiffness of her cervical spine with forward flexion decreased by one quarter, extension decreased by one third and lateral flexion to the left decreased by one quarter and decreased to the right by one third.
The insurer has submitted that Dr Dixon was not provided a history that the claimant had issues with her left shoulder five months before the accident and was suspected of having ligament damage. The insurer says that Dr Dixon was not provided with either the MRI scan or MRI report and did not have access to the clinical records around the time of the MRI report. The insurer also says that Dr Dixon did not have access to the records from the chiropractor who treated the claimant pre-accident. The insurer says that this establishes an element of restriction in the cervical spine for a significant period before the accident.
Dr Standen provided a report for the claimant which was also prepared through audiovisual means. Dr Standen referred to the claimant having a whiplash type presentation with nociceptive cervical pain, headaches and vertigo as well as episodic left upper limb radicular pain and left lower limb radicular pain. The claimant informed Dr Standen that she was using a TENS machine with significant clinical benefit.
Reasons
The Panel considers that if the claimant had a pre-existing condition of her left shoulder and ongoing symptoms, then it is likely that between January 2018 to May 2018 inclusive, she would have sought further treatment. The clinical records do not support this.
The Panel is also mindful of the comments of the court in Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548. Brereton JA said [32]: “The cases show that while the presence or absence of a contemporaneous record of a complaint is relevant in this context, it must not be treated as conclusive of the question of causation, not least because it is possible that causation may exist without a documented contemporaneous complaint.”
In Fraser v AAI Limited trading as GIO as agent for the Nominal Defendant [2020] NSWSC 1333, Campbell J said [57] ‘As I have said, this is only one of a number in a series of cases emphasising that to treat primary clinical records as decisive of causation will almost always result in jurisdictional error. This may be formulated as a failure by the Review Panel to direct itself to the question actually posed by s58(1)(d) resulting in ‘a purported and not real exercise of its statutory function’. The question of the merits of Mr Fraser’s claim, of course, is nothing to do with the court. But he is entitled to have his claim determined according to law and in conformity the requirements of the governing statute, in this case the Motor Accidents Act 1999’.
In Norrington, Brereton JA went further and said [40] “It is not in doubt that an assessor, and a review panel, is entitled, in deciding the question of causation, to consider, and to give weight to, contemporaneous medical records. The absence of any record of a complaint of particular symptoms following an accident might be a powerful indicator that a particular injury was not associated with the accident. On the other hand, is not decisive: there are many reasons why a complaint might not be made, or recorded, promptly following an incident”. The absence of a complaint or a record of complaint is not of itself decisive and should not mean that the claimants claim cannot succeed.
We must, as a Panel, consider whether, in the absence of a reported complaint between January to May 2018 inclusive, the claimant might have injured her left shoulder, as she claimed, in the accident. Clinically there is no permanent impairment of the left shoulder.
There is no other evidence before the Panel to indicate that the claimant might have suffered injury to her left shoulder as a result of another unrelated incident or as a result of a pre-existing condition before 15 May 2018.
On balance, the Panel accepts that the claimant did suffer an injury to her left shoulder on 15 May 2018.
The claimant did suffer an injury to her lumbar spine in the accident however, at the time of examination, the effects of the accident to that area of disability are minimal.
The insurer disputes that complaints of substance were made by the claimant with respect to her cervical spine injury and her lumbar spine injury. However, the claimant submits that the clinical notes of the claimant’s treating GP record ongoing treatment following the accident of the claimants left shoulder, cervical spine and lumbar spine and these areas are mentioned in certificates of fitness provided by the claimant’s GP – see pages 293- 410 of AD 10. The Panel accepts this. The Panel is satisfied that contemporaneous complaints of injury to the claimant’s shoulder, cervical and lumbar spines were made by the claimant to her GP and arise out of the accident.
Conclusions
Diagnosis and Causation
Given all the evidence available, including the history provided by the claimant, the physical findings, investigation reports, other medical reports, and all information from the supporting documentation, it is clear that Ms Glibo, 53 years old, was a restrained driver in a vehicle having a head-on collision with another vehicle on 15 May 2018, although it was not clear about the speed of the cars. Her 3 years old grandson at the back seat was uninjured. She did not go to the hospital and consulted her GP the next day.
She complained of pain in her neck and back after the accident, but later also complained of left shoulder pain. However, GP clinical notes showed that she complained of left shoulder problems in 2017 and had an MRI of the left shoulder of 29 December 2017 (about 4 ½ months prior to the subject MVA) which showed degenerative changes of bursitis and impingement. In her statement of 9 October 2020, the claimant says that she had an MRI on 29 December 2017 to “reassure myself about thickening of the bursa on my shoulder needed no further attention. I had some messages afterwards which were a treat for me’.
She also complains of pins and needles sensation in left hand consistent with C6 dermatome distribution, a non-verifiable radicular complaint. However, there was no evidence of cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2. There is no loss or asymmetry of reflexes, no positive sciatic nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. She also complains of intermittent pain in her left leg affecting all the toes. It does not follow any dermatomal distribution or peripheral nerve distribution, and so does not represent a non-verifiable complaint. There was no evidence of lumbar radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, of the guidelines, version 8.2. There is no loss or asymmetry of reflexes, no positive sciatic nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
She had MRI left shoulder on 29 December 2017. There was no complaint about the left shoulder from that time until soon after the accident.
Summary of Injuries Listed by the Parties and Caused by the Accident
The following injuries WERE caused by the motor accident:
·Cervical spine –soft tissue injury
·Lumbar spine – soft tissue injury
·Left shoulder – soft tissue injury
Permanency of Impairment
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition) (AMA4) (p.315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
It has been 3 years since the subject MVA, all the affected physical injuries have stabilised.
Determinations
Permanent Impairment
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA4) and the Motor Accident Guidelines version 8.2 (MAG).
Degree of Permanent Impairment
·Cervical spine injury
There is tenderness but no muscle spasm or guarding. There are features of non-verifiable radicular complaints. There is no evidence of radiculopathy
Using Table 6.7, MAG, it is classified as DRE (Diagnosis Related Estimate) category II. Using Table 73, page 110, AMA4, it corresponds to 5% WPI.
·Lumbar spine injury
There is no tenderness, muscle spasm or guarding in the lumbar spine. There is no evidence of radiculopathy. There is no evidence of any non-verifiable radicular complaints. Active movements of lumbar spine are normal.
Based on the results of the examination, at the time of examination, and using Table 6.7, MAG it is classified as DRE category I. Using Table 72, p. 110, AMA4, it corresponds to 0% WPI.
Body Part or System
AMA Guides/ Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
1.
Cervical spine
Table 73, p. 110, AMA4
Yes
5
0
5
2.
Lumbar spine
Table 72, p. 110, AMA4
Yes
0
0
0
* %WPI = percentage whole person impairment
·Left shoulder injury
The claimant was being treated for a left shoulder condition prior to the accident. She says though that this had resolved prior to the accident and when she last sought investigation about this by way of an MRI scan of the left shoulder on 29 December 2017, this was only for the purpose of certainty of resolution.
There is however, some contemporaneous evidence of a left shoulder injury at the time of the accident and a complaint about this immediately after the accident recorded in the GP notes the day following the accident when it was recorded that the claimant woke with pain across her shoulder and neck. However, it was not until July 2018 that the claimant made a more detailed complaint about her left shoulder.
The Panel says that the attributability of the left shoulder condition to the accident is equivocal but she does appear to have been symptom free at 29 December 2017. On balance, with the accident occurring on 15 May 2018 and no treatment having been sought for the left shoulder since 29 December 2017, the Panel is of the finding that the left shoulder injury is attributable to the accident.
| Left shoulder | Flexion | Extension | Abduction | Adduction | Int. Rotation | Ext rotation |
| Angle° | 170 | 50 | 170 | 45 | 80 | 80 |
| UEI % | 1 | 0 | 0 | 0 | 0 | 0 |
| AMA4 figure, page | Fig.38, p.43 | Fig.41, p.44 | Fig.44, p.45 | |||
The left shoulder impairments are then added together = 1 % UEI
Right shoulder
Flexion
Extension
Abduction
Adduction
Int. Rotation
Ext rotation
Angle°
170
50
170
45
80
80
UEI %
1
0
0
0
0
0
AMA4 figure, page
Fig.38, p.43
Fig.41, p.44
Fig.44, p.45
The right shoulder impairments are then added together = 1 % UEI
Since the right shoulder is uninjured, therefore contralateral deduction is required.
Therefore the left shoulder impairment due to the accident is 1%-1%=0%, UEI.
Using Table 3, p.20, AMA4, the UEI are then converted to whole person impairment (WPI). 0 % UEI corresponds to 0 % WPI.
Apportionment
Nil
Pre-existing/subsequent impairment
Nil
Effects of Treatment
Nil
A Current % permanent impairment 5%
B Pre-existing/subsequent % permanent impairment 0%
C Adjustments % for effects of treatment 0%
Final % permanent impairment 5%”
The Panel adopts the findings of Examining Panel member Assessor Wan.
Conclusion
The determination is as follows:
The following injuries were caused by the motor accident:
· cervical spine - soft tissue injury;
· lumbar spine – soft tissue injury, and
· left shoulder - soft tissue injury (the initial list of injuries referred to Assessor Sharp only mentioned “….shoulder -soft tissue injury/strain…” but did not specify right or left. However only left shoulder MRI was undertaken in December 2017. She only complains initial pain in left shoulder, which has now largely settled).
The injuries caused by the motor accident have a total WPI of 5%.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”
0
3
0