Harris v Allianz Australia Insurance Limited
[2024] NSWPICMP 645
•12 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Harris v Allianz Australia Insurance Limited [2024] NSWPICMP 645 |
CLAIMANT: | Thomas James Harris |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Terence O’Riain |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Clive Kenna |
DATE OF DECISION: | 12 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute as to permanent impairment; review of Medical Assessment Certificate (MAC); whole person impairment assessed at 9%; claimant was the driver when the insured vehicle struck car on driver’s side; claimant reported experiencing gradually worsening pain in his neck, lower back and both shoulders; no causation issues; Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd applied; Held – whole person impairment assessed at 12% for injuries to cervical spine, lumbar spine and left shoulder; MAC revoked. |
DETERMINATIONS MADE: | Medical Assessment – Permanent impairment Review Panel Certificate Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 following this Panel reviewing whether the subject motor accident caused injuries to the claimant resulting in permanent impairment greater than 10% 1. The Panel revokes Medical Assessor Wijetunga’s permanent impairment certificate dated 2. The motor accident caused the following injuries, which are assessed as a combined permanent impairment of 12%, which IS GREATER THAN 10%: (a) cervical spine; (b) lumbar spine, and (c) left upper extremity. |
REASONS
BACKGROUND
On 7 November 2017 Mr Harris was driving his 2014 Chrysler when a car came out of its driveway which resulted in the insured driver’s car T-boning Mr Harris’s vehicle on the driver’s side door.
He reports that three to four hours after the accident he experienced pain in the neck, shoulder, and lower back.
There is a dispute between the insurer and the claimant about the level of permanent impairment rating, which was initially referred to the Medical Assessment Service, and eventually to the Personal Injury Commission (Commission).
Following s 63 of the Motor Accidents Compensation Act 1999 (the MAC Act) the President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor Nelukshi Wijetunga’s further assessment dated 10 October 2022 (the Review).
The Medical Assessor found that the claimant’s degree of whole person impairment (WPI) arising out of the accident is 9%.
Following cl 128(1) of the Personal Injury Commission Rules 2021 (the PIC Rules) the Panel ‘is to conduct and determine the proceedings in accordance with procedures determined by the panel’.
The Commission has arranged for the Panel to assess:
(a) Cervical spine — chronic non-specific cervical spine pain with associated loss of range of movement in right and left shoulders; acute soft tissue injury; tender to palpitation in the midline and in the right and left cervical paraspinal musculature from the level of C 2 to T1; extension of cervical spine limited to two thirds of the normal range by pain, stiffness and discomfort; lateral flexion on right side limited to one third of the normal range and on the left side to one half of the normal range by pain, stiffness and discomfort; lateral rotation limited on right side to two thirds of the normal range and on left side the three quarters of normal range by pain, stiffness and discomfort in cervical spine region; central and paraspinal tenderness up to occipital area.
(b) Lumbar spine — L3/4; left foraminal herniation in contact with the exited left L3 nerve root, foraminal stenosis, far lateral annual tear; L4/5: broad herniation causing foraminal stenosis; L5/S1: central herniation — more pronounced on left and possibly contacting the origin of the S1 nerve root, moderate muscular guarding noted on palpitation of lumbar region, flexion of lumbar spine limited to two thirds of normal range by pain and discomfort; chronic non-specific lumbar spine pain, with associated intermittent non-verifiable left lower limb radicular symptomatology, and associated L3/4 and L5/S1 disc protrusions; muscular stiffness and guarding over L3, L4, L5 and S1 area; focal tenderness over the left L3, L4, L5 and S1 facet joints; central low back pain — intensity of 8/10 on average.
(c) Right shoulder — soft tissue injury; tender to palpitation posteriorly and medially in the region of the left trapezial musculature; abduction of left shoulder limited to 130 degrees and flexion to 140 degrees before being limited by pain and discomfort in left trapezial muscular region.
(d) Left arm — soft tissue injury.
(e) Left leg — soft tissue injury.
STATUTORY PROVISIONS
The statutory provisions, authorities on causation and the Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.
Assessment under Review
Original Medical Assessor’s findings
These are set out in Appendix B.
Matters considered and decided by the Review Panel
The Review Panel considered all aspects of the assessment under review.
The Panel considered the parties’ submissions which are set out at Appendix C.
The Panel met on 21 March 2023. It issued directions and arranged a re-examination.
T Medical Assessor Couch conducted on behalf of the Panel.
Due to the Medical Assessor and then the claimant contracting COVID-19 the examination did not take place until 4 March 2024.
Further, Medical Assessor Berry became ill and was forced to retire, so the Commission reconstituted the Panel with Medical Assessor Kenna replacing the former Medical Assessor. This has led to further delays.
REVIEW PANEL FINDINGS
Documentation
The Panel considered the documentation set out in Appendix D.
Medical examination
Mr Harris attended the Commission’s medical suites alone on 4 March 2024 and was examined over a period of one hour.
He confirmed that he had been unable to attend the previous appointment arranged in December 2023 because of COVID-19 and had been off work for three to four weeks because of this. He said that he had received two doses of COVID-19 vaccine and although he still had a slight nagging cough, was otherwise well. Temperature was measured at 36.5 degrees centigrade.
Medical Assessor Couch explained the role of the Review Panel and the examining Medical Assessor. Mr Harris indicated he understood.
Pre-accident medical history and relevant personal details
Mr Harris said that he grew up in Botany and after school started working in the family steel fabricating business. For the past eight years he had been driving hire cars instead. He is single and continues to live in Botany with his parents.
At the age of 16 he injured his right knee while playing rugby league and had some form of arthroscopic surgery. He denied further symptoms since then. He said he had put on a lot of weight in the last four to five years, commenting that he previously was very active, including walking and going to the gym. He thought that he had weighed around 100kg at the age of 20 and said that he was concerned about his obesity. He said that he was “already prediabetic” but was not taking medications for this. Since December 2023 he had lost about 25kg through intermittent fasting.
Mr Harris also said that about 15 years earlier, he had sustained a lower back injury from manual handling while working for McDonalds. He had a workers' compensation claim and was off work for one to two weeks. Treatment consisted of physiotherapy only and he returned to work normally. He denied any previous injuries or symptoms in his neck or shoulders.
History of the motor accident
Mr Harris said that on 7 November 2017 he was alone, driving a Chrysler 300C (a large sedan) hire car in Rose Bay. It was Melbourne Cup Day. He estimated his speed as 45-50 kmph. A SUV vehicle reversed out of a driveway from his right, traversing the road and striking the right front panel and driver’s door of the Chrysler. He was asked the speed of the other car and he replied that it “shot out pretty quick”. Mr Harris was wearing a seatbelt, and airbags did not activate. His car remained driveable, and he was able to open the driver’s door, although it was noisy to do so. Subsequently, the driver’s door, wheel, front quarter panel and the region around the offside headlight were replaced/repaired. He exchanged details with the other driver and no emergency services attended. He did not recall striking any part of the inside of the car and recalled that his seatbelt tensioned itself on impact.
History of symptoms and treatment following the motor accident
Mr Harris said that he first noted pain in his neck and low back – the latter more on the left side, on the day after the accident. When he was asked about the shoulders, he replied “shoulder and neck – this region”, placing his right hand over the left trapezius muscle.
He thought that he might have seen his usual general practitioner (GP) the next day. (Records from his usual GP, Maroubra Medical & Dental Centre, show doctor’s entries from 2012 until April 2023. Around the time of the subject accident, he attended in August and September 2017 with a middle ear infection and next in April 2018 complaining of numbness in his left arm for three days. There was no mention of the motor vehicle accident and no mention seen in subsequent attendances in 2018 and 2019.) It appears that he subsequently attended Dr Eric Lim of Workers Doctors in Parramatta in relation to this accident.
Mr Harris recalled treatment including physiotherapy and a CT-guided injection to his low back and he had an MRI of his lumbar spine. He thought he had seen a specialist for his low back pain, who had recommended the injection, which did not help. He had not received injections or other invasive treatment to his neck or shoulders. When asked when he had last seen a doctor in relation to his claimed injuries, he replied, “it’s been a while, I’d say.” He thought this had not been in 2024 but he probably had seen a doctor about his injuries in 2023. He recalled last having physiotherapy more than a year ago – the insurer had paid initially for about 10 sessions but subsequently he found it too expensive. He received treatment to his neck, the left shoulder (but not the right) and his low back.
Return to activities after the accident
Mr Harris said that he had been off work for three or four weeks and then returned to work on “light duties”. He recalled working three to four hours a day, often in two blocks of about two hours. He said that he still could not manage more than three hours driving in one session and never worked more than 30 hours per week. When asked what was limiting him, he said it was neck and back pain. Mr Harris added that he now owns his own 2019 Mercedes Benz and because he cannot work enough hours, employs other drivers as well.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Harris denied any such injuries or conditions.
Current symptoms
Neck
Mr Harris said this was sore most of the time and it feels very stiff. He described pain mainly on the left side, radiating to the left trapezius muscle region. He said that pain does not radiate distally in either upper limb, although “sometimes it makes my left hand numb as well”. On questioning he said that this affected his whole left hand. He uses hot and cold packs on his neck for relief.
Low back
Mr Harris described pain, pointing to the lumbosacral area. This is more intermittent than the neck pain but occurs daily and can be quite bad at times. He said that his low back is generally better resting and worse with “bending or moving around too much”. Jolting (for example, driving over a speed bump) is painful. He described radiation to the posterolateral thighs and lower calves, going on to describe this as more tingling than pain. He said this did not occur often – perhaps once a week, and it depended on how bad his back pain was.
Right shoulder
Mr Harris denied any symptoms in the right shoulder.
Left shoulder
Mr Harris described pain in “this area here – there’s nothing else”. (He put his right hand on the left trapezius muscle region while describing this.) Because pain from the shoulder joints often disturbs sleep, he was asked about sleep disturbance. He said that his neck is sore in bed and also sometimes the region of the left trapezius but did not describe being woken by pain in either shoulder joint proper.
Current treatment
Mr Harris said he was no longer taking any prescription medications. He said that if pain is worse, he may take two Nurofen or Panadol once or twice per day.
Lifestyle factors
Mr Harris does not smoke cigarettes and drinks alcohol very rarely.
Physical examination
Mr Harris presented as a quite cheerful, morbidly obese young man. He had long dark hair in a ponytail and a medium-length beard. He gave a reasonably clear history, but showed definite abnormal pain behaviours with exaggerated efforting, grimacing and odd noises during active movements of the neck and left shoulder.
Height was 171cm. He was above the 150kg limit of the Commission’s medical suites’ scales. He thought that he now weighed 195kg, having previously reached a maximum of 210kg. This would give a calculated BMI of 67 (the healthy weight range being a BMI of 20-25). Chest girth measured 150cm, waist more than 160cm and hips more than 160cm.
He was able to sit in a standard office chair during the interview and to get in and out of the chair. He moved somewhat slowly when climbing onto a heavy-duty examination couch and was only asked to lie supine. He was able to remove his T-shirt for examination and replace it afterwards and his shorts were left on. He had some difficulty reaching his socks and sneakers but was able to remove them and replace them after the examination. He walked with a slow waddling gait, consistent with his obesity, and bilateral valgus knee alignment was noted.
Cervical spine
Posture of the cervical spine was within normal limits. On palpation he reported slight tenderness over the cervical spine in the midline. The left trapezius muscle was quite tender to palpation and tense compared with the right trapezius. During formal examination there was quite marked apparent restriction of active range of motion (AROM) of the cervical spine. There was some variability. Flexion varied between half and two-thirds of normal and extension between one-quarter and half of normal. Lateral flexion was one-third of normal bilaterally; rotation was approximately half of normal bilaterally with possibly slightly better range to the right than the left.
Mr Harris performed all these movements slowly and cautiously, accompanied by grimacing and describing a pinching sensation. He was also noted to move his head and neck somewhat more freely during conversation – he was asked if he could explain this – he said that he possibly tenses up during formal examination. He was also asked why these movements were limited and he mentioned “pain from all the movement”. (Thus, the main sign was tenderness and muscle guarding of the left trapezius muscle. There was equivocal dysmetria.) Mr Harris was not describing non-verifiable radicular complaints in the upper limbs, and as can be seen below under “Upper Extremities”, there were no objective findings of cervical radiculopathy.
Lumbosacral spine
Palpation with Mr Harris standing revealed no tenderness over the lumbosacral spine. AROM of the lumbosacral spine was measured with Mr Harris standing with knees straight. Flexion was about half of normal– he was able to reach fingertips to his knees. Extension was also about half of normal – on questioning he described flexion as more painful than extension. Lateral flexion was full to the right, but only half of normal to the left with reported pain. Spinal rotation was tested with Mr Harris seated in a chair to stabilise the pelvis – rotation was approximately 20 degrees bilaterally. Although this movement mainly occurs in the thoracic spine, he did describe some low back pain. Palpation of the lumbar paraspinal muscles while standing on alternate feet (in order to further assess for muscle guarding/spasm) was not satisfactory because of his obesity.
Thus, the only significant abnormal sign in the lumbosacral spine was dysmetria in lateral flexion. There was no detectable muscle guarding or spasm. He was not describing non-verifiable radicular complaints in the lower limbs. As can be seen below under “Lower Extremities”, there were no objective signs of lumbosacral radiculopathy – the apparent sensory changes over the whole left lower limb (also noted previously by Medical Assessor Wijetunga) were non-dermatomal in distribution.
Upper extremities
Hands were clean and soft with no callouses. The right upper arm measured 54cm in girth, the left 53.5 cm, and both forearms measured equally at 39cm. Both upper limbs were neurologically normal with intact and symmetrical biceps, triceps and brachioradialis reflexes, normal power, and preserved sensation bilaterally.
The right shoulder was clinically normal with very minor painless restriction of AROM, consistent with his body habitus. In the left shoulder he reported possibly minor tenderness over the glenohumeral joint but tenderness to palpation was principally over the tense, left trapezius muscle.
AROM was moderately restricted in the left shoulder. There were marked abnormal pain behaviours during testing of AROM in the left shoulder, with marked grimacing, apparently marked effort, and some evidence of active resistance. He reported pain in the left trapezius muscles at the limits of flexion and abduction.
Right
Left
Flexion
140°
90°
decreasing to 70°
Extension
50°
20°
Abduction
150°
80°
decreasing to 60°
Adduction
20°
0°
Internal Rotation
80°
30°
External Rotation
80°
50°
Impingement signs were negative bilaterally.
Lower extremities
Both thighs measured 78cm in girth, 10cm proximal to the patella. Both calves measured equally at 55cm. Knee jerks and ankle jerks were normal and symmetrical and power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) was normal bilaterally. Light touch sensation was normal in the right lower limb, but sensation to both light touch and pinprick were described as diminished over the whole left lower limb in a non-anatomical distribution.
Straight-leg-raising while lying supine was 40 degrees on the right with a complaint of low back pain. It was only 20 degrees on the left, again with complaint of low back pain – sciatic stretch testing did not reproduce any lower limb symptoms.
Functionally, Mr Harris was able to take a few steps with weight on the balls of his feet and heels just off the floor, and then with weight on his heels and forefeet off the floor. When asked to perform a squat, he declined to do this (which was reasonable, considering his weight).
Conclusions following re-examination
Mr Harris was a challenging subject for assessment, because of his gross obesity and abnormal pain behaviours.
A whiplash injury of the cervical spine might be expected from this type of accident. This examination showed some features of Whiplash-associated Disorder Grade II (WAD II), with muscle guarding in the left trapezius muscle. Because of his abnormal illness behaviours, inconsistency, and self-limitation, dysmetria could not be determined. This injury could be assigned to DRE Cervicothoracic Category II, giving 5% WPI.
However, the Panel notes that Medical Assessor Wijetunga described a normal range of movement of the cervical spine.
There probably is some genuine restriction of AROM in the left shoulder, secondary to his neck injury and muscle guarding in the left trapezius muscles. Because of his general presentation with abnormal pain behaviours and variability of movement, AROM is not a reliable method for impairment assessment. Also, the apparent loss of AROM was considerably greater than might be expected secondary to a cervical whiplash injury.
Two per cent WPI by analogy with mild crepitation of the acromioclavicular joint (Tables 18 and 19 of AMA4) is considered reasonable for the left shoulder (on Page 13 of her Certificate, Medical Assessor Wijetunga used a similar approach, for similar reasons).
There is now no evidence of injury to the right shoulder. Mr Harris does not describe any symptoms in the right shoulder and the minor observed restriction of AROM (which was completely pain-free), was entirely consistent with his gross obesity. (The examining Medical Assessor considered that it would have been virtually impossible for Mr Harris to achieve the full AROM expected in a young man of normal body habitus).
There was some dysmetria in the lumbosacral spine (in lateral flexion only). This is in fact different from the observations of Medical Assessor Wijetunga, who found restriction only in flexion. His reported sensory impairment over the whole left lower limb (also noted by Medical Assessor Wijetunga), does not fit a known anatomical or pathological pattern. Based on dysmetria and lateral flexion, the lumbosacral spine could be assigned a DRE Lumbar Category II, giving 5% WPI.
Mr Harris did not describe symptomology of left leg which indicated a discrete injury to the left leg. His symptoms involving the left leg are an extension of his lower back symptoms.
Panel deliberations
The Panel met again on 28 May 2024 and on 9 September 2024.
The Panel decided to adopt Medical Assessor Couch’s examination report and his impairment assessment as evidence. This impairment assessment is set out at Appendix E.
There were no pre-existing impairments to deduct.
The Panel discussed whether the claimant was consistent in his presentation at the examination.
Medical Assessor Couch confirmed that he was consistent, although he thought the claimant exhibited pain behaviour disproportionate to his condition.
There were no other examples of inconsistencies. The claimant’s credit was not a relevant factor in this Panel’s findings.
There have been no other injuries to the referred body parts since the subject accident.
Panel decision
The Review Panel found that the motor accident caused the following injuries:
(a) cervical spine whiplash associated disorder;
(b) left and right shoulder under Nguyen principle, and
(c) lumbosacral spine.
The Review Panel found that the accident did not cause a left leg injury.
The Review Panel found that the right shoulder condition has resolved.
The Review Panel considered that the following injuries caused permanent impairment above 0%:
(a) cervical spine whiplash associated disorder 5%;
(b) left upper extremity 2%, and
(c) lumbosacral spine 5%.
Permanent impairment
The motor accident caused injuries with total percentage permanent impairment of 12%. The total WPI is greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. A finding of 0% WPI indicates the motor accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
The Review Panel’s permanent impairment findings about the injuries caused by the motor accident are different to Medical Assessor Wijetunga’s further assessment certificate dated
10 October 2022.
Accordingly, the Review Panel will revoke that certificate and issue a new permanent impairment certificate.
Each Panel member has reviewed this decision and agreed with the findings.
APPENDICES
APPENDIX A
Statutory Provisions, authorities and guidelines
Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.
Section 60 of the MAC Act provides either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary on page 316 of the AMA4 Guides as follows ‘Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This involves a medical decision and a non-medical informed judgement.
1.7 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
In Briggs Wright J reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty.[1] His Honour stated at [70]-[72]:
[1] Briggs No. 2 [2022] NSWSC 372.
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC Act.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
APPENDIX B
Original Medical Assessor’s findings
Medical Assessor Wijetunga further medical assessment calculated 9% total permanent impairment.
The mechanism of the accident clinically correlated with the stated injuries.
Diagnosis, causation, and reasons
Mr Harris was involved in a motor vehicle accident which this Medical Assessor did not consider major because there were no airbags deployed, no police or ambulance attended the scene, and his car was not written off. The Medical Assessor referred to the accident severity throughout the certificate, despite little information about the accident’s severity, other than deployment of airbags.
Mr Harris described bilateral shoulder pain, neck pain and lower back pain.
The accident mechanism correlates with injuries to these areas. However, in the absence of any airbag deployment or any direct trauma to his shoulders and given his presentation of pain in the trapezii muscle with an absence of any anterolateral shoulder pain, there is no evidence of any discrete shoulder injury.
Dr Dias’ report, dated 3 August 2021, reflected this where he states that his shoulders do not reflect innate pathology in his right and left shoulder region, but rather reflects referred pain from his cervical spine condition. Similarly, Dr Keller’s assessment diagnosed cervical and lumbar spine soft tissue strains but no evidence of shoulder joint injury.
The neurological examination of his cervical spine does not reveal any signs of discogenic origin. Neither are there any findings documenting discogenic pathology or neural impingement in imaging.
His clinical presentation was related to muscular tenderness around both the paraspinal muscles of the cervical spine and trapezii muscles extending to both shoulders. Therefore, both the cervical spine and bilateral shoulder presentation, correlate with a diagnosis of whiplash associated disorder.
The neurological examination of the lumbar spine does not reveal any signs indicative of radiculopathy or does not reflect neural impingement, which would correlate to the lumbar spine. There are no signs or symptoms nor specific injury reflecting a discrete left leg injury. His presentation reflects an extension of lower back pain to his left leg. Therefore, his symptoms in the left leg are related to his lumbar spine diagnosis. There is no discrete injury related to the left lower leg causally related to the motor accident.
Therefore, the diagnosis is musculoligamentous strain of the lumbar spine.
Mr Harris’ describes a deterioration of his neck condition, which may also impact on pain perceived in the shoulder, however, the Medical Assessor found it was not medically plausible that this would result in such a significant restriction in range of movement of his shoulders which would be related to the trapezii.
A significant restriction of motion, as Mr Harris demonstrates, is more likely to be reflected with discrete shoulder pathology.
Mr Harris did not describe left leg symptoms which indicated a discrete injury to the left leg. The left leg symptoms are an extension of his lower back symptoms.
Referred pain is considered as a part of the lumbar spine injury.
The accident caused the following injuries and permanent impairment:
• Cervical spine – soft tissue injury 0%
• Lumbar spine – soft tissue injury 5%
• Left shoulder – referred pain from the cervical spine 2%
• Right shoulder – referred pain from the cervical spine 2%
APPENDIX C
Parties’ disputes and issues
Claimant’s submissions
The Medical Assessor Wijetunga certified in March 2019 that the claimant's total personal impairment was 9%. She certified the claimant's permanent impairment consisted of 2% each for the left and right shoulder, 0% for the cervical spine and 5% for the lumbar spine. The claimant applied for further assessment of permanent impairment in submissions dated 1 February 2022.
Occupational physician Dr Uthum Dias reported on 3 August 2021 that the claimant's condition attributable to the subject accident had deteriorated and assessed permanent impairment of the above body parts totalling 18%.
Insurer’s submissions
There were no discrete injuries to either shoulder. The insurer disputed that Dr Dias’ report provided evidence of deterioration. The claimant reported left shoulder symptoms as early as 30 June 2014 when they had an ultrasound of both shoulders which demonstrated evidence of bursitis and that this was associated with work related repetitive strain injury from documentation in 2015. Further, the left shoulder was not initially a focus of the claimant’s complaints. Drs Lim, Dias, Keller, and Assessor Wijetunga all found that the shoulder symptoms were referrable to the cervical spine. The claimant had at times reported being asymptomatic in his shoulders and he had reported not experiencing symptoms for a period of six months.
The insurer raised a history of right shoulder dating back to 2010 when Mr Harris was diagnosed with right shoulder subacromial bursitis. Dr Dias opined that the claimant’s impairment to right shoulder had improved since his last examination in 2018.The Panel noted Dr Andrew Keller’s report dated 29 March 2022 stated that all the conditions should have resolved by the time he examined him. He commented that the claimant’s obesity was probably the cause of any restrictions, but he did not provide anything to support that hypothesis.
APPENDIX D
Documentation
The Review Panel considered the following documentation:
· Medical Assessor Wijetunga’s further medical assessment certificate issued on 10 October 2022 with the earlier certificate;
· the claimants’ review application and attached documents;
· the insurer’s reply and attached documents, and
· all the documents which were provided to Medical Assessor Wijetunga before the assessment under review.
APPENDIX E
Permanent Impairment Table assessed by Medical Assessor Couch
| 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 | AMA4, Ch 3, pg 103 | Yes | 5 | 0 | 5 |
| 2 | Left shoulder | Figures 38, 41 and 44 on pages 43, 44 and 45 of AMA 4th Edition | Yes | 4 | 0 | 2 |
| 3 | Lumbar spine | AMA4, Ch 3, pg 102 | Yes | 5 | 0 | 5 |
| Total | 12 |
* %WPI = percentage whole person impairment
0
5
0