Harb v Allianz Australia Insurance Limited
[2024] NSWPICMP 767
•11 November 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Harb v Allianz Australia Insurance Limited [2024] NSWPICMP 767 |
| CLAIMANT: | Anwar Harb |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Richard Haber |
| DATE OF DECISION: | 11 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; injury in motor accident on 16 April 2020; claimant on push bike struck by insured vehicle; assessment of permanent impairment; review of assessment restricted to rib fractures and pneumothorax and left pleural effusion; claimant failed to attend two arranged medical examinations; warned prior to second failure that non-attendance would result in determination on the papers; no review of other medical assessment where finding made of 10% impairment; no evidentiary basis to assert that there is any assessable impairment due to the fractured ribs, pleural effusion and pneumothorax; doctor qualified by claimant assessed these body parts at 0%; Dr Shatwell found no impairment; scan evidence showed recovery; original Medical Assessor found no impairment; medically implausible that these injuries which had healed in accordance with unanimous medical evidence could result in disability; Guidelines require impairment of respiratory function for any assessable impairment; no evidence supporting impairment of respiratory function; Held – assessment of 0% permanent impairment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel confirms the Medical Assessment Certificate dated 27 October 2023. 2. The Panel confirms the Combined certificate dated 19 February 2024. |
REASONS
BACKGROUND
On 16 April 2020 Mr Anwar Harb (the claimant) was injured whilst riding his bike. The insured vehicle entered the roundabout from the left, did not stop and collided with the claimant.[1]
[1] Claimant’s bundle, p 27.
Allianz Australia Insurance Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Harb any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical assessment matter within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Grainge and dated 27 October 2023 (the medical assessment certificate).[4] Medical Assessor Grainge assessed the lung and ribs.
[4] Claimant’s bundle, p 13.
Medical Assessor Bodel issued a medical assessment certificate dated 10 January 2024 when he assessed the spine.[5] The claimant was unsuccessful in seeking leave to review that medical assessment.
[5] Insurer’s bundle, p 7.
Medical Assessor Bodel concluded that the claimant suffered a soft tissue injury to the chest and left hip with no assessable impairment and discal injury to the lumbar and thoracic spine with dysmetria. The lumbar and thoracic spine were each assessed at DRE Category II resulting in a combined permanent impairment of 10%.
A combined certificate dated 19 February 2024 stated that the injuries caused by the motor accident were not greater than 10%.[6]
THE REVIEW
[6] Claimant’s bundle, p 18.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[7]
[7] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel 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.[8]
[8] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
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 Merit Reviewer or a Medical Assessor.[9]
[9] 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.[10]
[10] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[11]
[11] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration. We have limited our summation of the medical evidence and submissions to the medical dispute on review.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[12] In Raina v CIC Allianz Insurance Ltd[13] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the 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.”
[12] See s 3B(2) of the CL Act.
[13] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused a collapse lung/left pneumothorax and left pleural effusion and fractured ribs. The Medical Assessor stated:[14]
“The lung and rib injuries were caused by energy transfer from the ground or utility vehicle into Mr Harb’s body at the time of the motor vehicle accident leading to his fractured ribs, the fractured ribs leading to lung parenchymal damage resulting in his left-sided pneumothorax and resultant left pleural effusion.”
[14] Claimant’s bundle, p 16.
The Medical Assessor found that these injuries had resolved due to the clinical examination when he noted:[15]
“Since discharge from hospital, Mr Harb’s health has generally improved and he has no issues with mobility or movement, no shortness of breath of breath or chest pain in his back at work and going to the gym 4-5 times a week but is not coaching touch football as it is he is unable to mobilise as well as he did previously, but this is not due to respiratory restriction.”
MATERIAL BEFORE THE PANEL
[15] Claimant’s bundle, p 15.
Pre-existing conditions
The general practitioner’s (GP) note dated 6 June 2016 recorded that the claimant ceased smoking on 1 January 2016.[16]
[16] Claimant’s bundle, p 309.
An X-ray of the chest dated 5 January 2017 noted the claimant was an ex-smoker. The X-ray showed clear lung and pleural spaces with no effusion.[17]
[17] Claimant’s bundle, p 161.
On 24 October 2018 Dr Rofail noted that the claimant had not attended his review for treatment of his severe obstructive sleep apnoea.[18]
[18] Claimant’s bundle, p 216.
Medical records post-accident
The ambulance report noted the claimant was a bicycle rider involved in the accident against a car when the insured vehicle approached the roundabout at low speed and the claimant breaking to enter the roundabout and seeing the vehicle approach, fell from the bike into the into the path of the insured vehicle. The claimant was described by the officer as highly distressed with pain in the back, left pelvis and left chest.[19]
[19] Claimant’s bundle, p 368.
A CT scan of the chest dated 16 April 2020 showed a small left pneumothorax and left pleural effusion fractures of the posterior left 8th, 9th, 10th and 11th ribs and a fracture of the left 12th rib at the level of the costotransverse joint. The X-ray also showed fractures of the right 11th and 12th ribs.[20]
[20] Claimant’s bundle, p 268.
On 19 April 2020 the hospital notes reported that the claimant was well-managed on current oral analgesic but stated that oxy codeine made him drowsy.[21]
[21] Claimant’s bundle, p 378.
The hospital discharge summary dated 19 April 2020 noted admission on 16 April 2020 following a motor accident when the claimant was riding a bicycle and connected with a car at low speed and fell landing on the ground.[22] The summary referred to the findings of trauma shown on the chest CT scan of a small volume left pneumothorax with trace left plural reaction and multiple rib fractures.
[22] Claimant’s bundle, p 284.
On 20 April 2020 the GP noted a small left pneumothorax with small pleural effusion with multiple bilateral rib fractures.[23]
[23] Claimant’s bundle, p 101.
An X-ray dated 27 April 2020 noted the lung fields and pleural spaces were clear and the left pneumothorax had resolved. The left and right rib fractures were unchanged in position and union was not yet complete.[24]
[24] Claimant’s bundle, p 220.
On 28 April 2020 the GP noted a resolved pneumothorax and the effusion was improving.[25]
[25] Claimant’s bundle, p 99.
The certificates of the GP refer to bilateral rib fractures, left pneumothorax and left pleural effusion.[26]
[26] Claimant’s bundle, pp 70 - 79.
On 28 May 2020 the GP noted that the claimant felt better, was still in pain with no regular pain relief.[27]
[27] Claimant’s bundle, p 97.
An X-ray dated 2 June 2020 noted the lung fields and pleural spaces were clear and the right rib fractures and left rib fractures were undergoing progressive healing although union was not yet complete.[28]
[28] Claimant’s bundle, p 139.
Other records
A claim form dated 6 May 2020 referred to the motor accident causing severe bruising on the left side of the torso, broken ribs bilaterally, partially collapsed lung on the left side and other abrasions.[29]
[29] Claimant’s bundle, p 27.
A police report was unclear as to the cause of the collision.[30]
[30] Claimant’s bundle, p 45.
Qualified opinions
Dr Uthum Dias, occupational physician, was qualified by the claimant and provided a report dated 1 April 2022.[31]
[31] Insurer’s bundle, p 21.
Dr Dias stated:
“Mr Harb suffers from chronic left-sided thoracic spine pain, stiffness and discomfort, with associated chronic left lower rib cage pain and discomfort, secondary to an acute impaction injury with associated multiple fractures left-sided ribs (ribs 8, 9, 10, 11 and 12) with an associated left-sided pneumothorax left-sided pleural effusion (the pneumothorax and pleural effusion have clinically resolved).”
Dr Dias opined that the rib cage and abdomen injuries did not qualify for a rateable impairment.
Associate Professor Shatwell, orthopaedic surgeon, was qualified by the insurer and provided a report dated 17 May 2022.[32] The doctor found that the motor accident caused multiple fractures without gross displacement or any flail segments of the chest and a small pneumothorax in the left lung with no requirement for chest drainage. The doctor found no relevant assessable impairment.
[32] Insurer’s bundle, p 51.
SUBMISSIONS
Claimant’s submissions dated 13 April 2023[33]
[33] Claimant’s bundle, p 23.
Theses submission noted the extent of the injuries caused by the motor accident including that the claimant suffered bilateral rib fractures and a left pneumothorax and left pleural effusion. It was asserted that the injuries were greater than 10% whole person impairment.
Claimant’s submissions
These submissions were filed seeking leave to review the medical assessment.
The claimant submitted that the reason of causation involved “mere speculation” and submitted that the “negative findings on causation, injury, impairment were not open for him to make”.
The claimant submitted that the post-accident treating medical records demonstrated evidence of injury and ongoing consistent respiratory complaints that was not present prior to the motor accident. He submitted that the Medical Assessor engaged in mere speculation as to the cause and current state of the claimant’s post-accident lung condition.
The claimant asserted that the Medical Assessor made findings which were inconsistent with the treating and medicolegal evidence and submitted that these inconsistencies were not put to the claimant, and he was not provided with an opportunity to respond. This amounted to a denial of procedural fairness and in breach of cl 6.41 of the Guidelines
Insurer’s submissions dated 2 May 2023[34]
[34] Insurer’s bundle, p 45.
The insurer referred to the opinion of Associate Professor Shatwell dated 17 May 2022 who opined that there was no impairment due to the rib fractures or pulmonary incapacity.
The insurer noted that an ambulance attended the scene of the accident, and the claimant was admitted to hospital.
On 28 April 2020, Dr Bryce, GP, recorded that the pneumothorax had resolved, and the effusion was improving. On 30 June 2020 it was recorded that the fractures were healing but had not fully united.
Insurer’s submissions dated 1 August 2024[35]
[35] Insurer’s bundle, p 2.
These submissions opposed leave to review of the medical assessment. The submissions addressed both medical assessments. We do not refer to the submissions addressing the certificate issued by Medical Assessor Bodel.
The respondent noted that Medical Assessor Grainge found that the motor accident caused fractured ribs and a collapsed lung/left pneumothorax and left pleural effusion which had fully resolved such that there was no assessable impairment.
The insurer submitted that the claimant’s submissions had no merit and should not be accepted. It submitted that the claimant did not set out the “preponderance of the treating evidence” said to be inconsistent with the findings of Medical Assessor Grainge.
The insurer submitted that the claimant erred when submitting there were “negative findings on causation” as the Medical Assessor found causation but held that the symptoms had resolved.
The insurer noted that the claimant has not set out the supposed inconsistencies that were supposed to be put to the claimant and that the opinion of the claimant’s qualified doctor,
Dr Dias, came to a similar conclusion that the fractured ribs and associated left-sided pneumothorax and clinically resolved. Dr Dias found no rateable impairment for these body parts.
RE-EXAMINATION
The Panel requested Mr Harb to be examined by Medical Assessor Haber on
11 September 2024. The claimant did not attend the appointment and subsequently explained his non-attendance “due to an administrative error” as he recorded the wrong date.The claimant’s solicitor then objected to the matter being determined on the papers asserting that the “matter be escalated to the President of the PIC”.
The Panel did not escalate the matter to the President but arranged a further examination scheduled for 6 November 2024. The claimant was advised and agreed to that date.
On 4 November 2024 the claimant’s solicitor advised that the claimant had a “work committee meeting” and would not be attending the medical examination.
On 4 November 2024 the Panel advised the claimant through the portal as follows:
“We note the claimant did not attend the first medical examination due to his error.
The second medical examination was organised at a date and time with his consent.
If the claimant does not attend the examination, then he is on notice that the Panel will be assessing the matter on the papers.”
The claimant did not respond to this message and did not attend the medical examination.
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[36]
[36] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[37] and Insurance Australia Ltd v Marsh.[38]
[37] [2021] NSWCA 287 at [40], [41] and [45].
[38] [2022] NSWCA 31 at [11], [21] and [64].
The Panel determined to assess the matter on the papers for a number of reasons. These include that the claimant has no evidentiary basis to assert that there is any assessable impairment due to the fractured ribs and pleural effusion and pneumothorax.
Secondly, the claimant has shown distain for attending the second medical examination when it was organised at a time for his benefit. The claimant was advised that his non-attendance would mean that the Panel would determine the matter on the papers. The claimant did not respond to the Panel’s message. The second medical examination was organised after the claimant did not attend the first examination due to his purported administrative error.
The claimant’s submissions fail to explain what treating and medicolegal evidence was inconsistent with a finding of nil permanent impairment by the Medical Assessor for the subject body parts. Indeed, as the insurer correctly submitted, Dr Dias who was qualified by the claimant and assessed permanent impairment of these body parts at 0%. Dr Dias stated that these injuries “have clinically resolved”.
Associate Professor Shatwell noted that the claimant had returned to some leisurely activities and that there was no permanent impairment of the healed rib fractures and no impairment relating to any pulmonary incapacity.
The scan evidence shows that the lung pneumothorax had resolved by 27 April 2024 and the X-ray dated 2 June 2020 show the lungs were clear.
Clinically, Dr Dias, Associate Professor Shatwell and Medical Assessor Grainge found that the rib and lung injuries had resolved. There is no evidence that there were ongoing effects of any respiratory condition after a period of three months after the motor accident. The claimant’s submission that the post-accident records showed “ongoing consistent respiratory complaints” is incorrect. The claimant did not refer to any evidence to support this submission.
The claimant’s submission that the Medical Assessor engaged in mere speculation as to the claimant’s condition ignores the clear clinical finding made in the medical examination.
The claimant’s rib and lung injuries healed over a period of three months which is consistent with the records and the nature of the healing expected from these injuries. It is consistent with the medical expertise of this Panel based on the nature of the injuries.
Further, the unanimous medical evidence is that these injuries had healed. It is medically implausible that the nature of these injuries, which had resolved, could somehow cause subsequent disability.
The claimant’s submissions otherwise mischaracterised the findings by Medical Assessor Grainge on the differing concepts of findings on causation of injury as opposed to the assessment of permanent impairment. There were no “negative findings on causation” as the claimant submitted, simply that those injuries did not cause assessable impairment. Indeed, nowhere in the claimant’s submission did it articulate a basis for permanent impairment of these body systems.
To avoid any mischaracterisation, we accept that the claimant suffered injuries to the ribs and lung caused by the motor accident. Medical Assessor Grainge clearly explained how this occurred. We agree with that explanation.[39]
[39] See paragraph 20 herein.
These injuries completely healed over a period of three months. This conclusion is consistent with the clinical records summarised earlier, the clinical findings of Medical Assessor Grainge, Dr Dias and Associate Professor Shatwell and the medical expertise of the Panel that these resolved injuries do not cause ongoing issues.
Finally, we note that the Guidelines and AMA 4 do not provide any basis for assessing any percentage of permanent impairment for a pleural effusion and pneumothorax and undisplaced rib fractures that had healed unless they cause impairment of respiratory function.[40] There is no medical evidence to support any impairment of respiratory function that has clinically resolved.
[40] Guidelines, paragraph 6.229.
CONCLUSION
The medical assessment certificate is confirmed. The combined medical assessment certificate is confirmed.
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