Hollman v QBE Insurance (Australia) Limited
[2024] NSWPICMP 580
•19 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Hollman v QBE Insurance (Australia) Limited [2024] NSWPICMP 580 |
CLAIMANT: | Daniel Hollman |
INSURER: | QBE (Insurance) Australia Limited |
REVIEW PANEL | |
MEMBER: | Terence O'Riain |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 19 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); medical dispute about permanent impairment; Medical Assessor (MA) found accident did not cause injuries and declined to assess impairment; review based on MA failing to consider clinical evidence of lumbar spine and shoulder injuries; parties agreed on referred injuries under rule 70 of Personal Injury Commission Rules 2021; early complaints recorded of cervical and lumbar spine and left shoulder; first clinical note of right shoulder complaints eight months after accident; GP note on long consultation 15 December 2020 addresses delay in recording right shoulder symptoms and how accident could injure claimant; parties did not refer to this note; re-examination; Briggs v IAG Limited t/a NRMA Insurance and Bugat v Fox considered; Held – accident caused soft tissue injuries to cervical spine, lumbar spine, and bilateral shoulders; permanent impairment not greater than 10%; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment of Degree of Permanent Impairment Replacement Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The motor accident caused injuries with a total percentage permanent impairment of 9%. The total permanent impairment is not greater than 10%. 2. The Review Panel’s assessed that the accident caused injuries with a different permanent impairment to Medical Assessor Gothelf’s assessment and certificate issued on 3. Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate. |
REASONS
BACKGROUND
This is a permanent impairment dispute under the Motor Accident Injuries Act 2017 (MAI Act).
Daniel Hollman (claimant) was injured in a motor accident on 14 February 2020.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages and statutory compensation under the MAI Act.
The claimant referred a permanent impairment dispute to the Personal Injury Commission (Commission) to assess:
· lumbar spine – aggravation of underlying degenerative change;
· cervical spine – soft tissue injury;
· left shoulder – bursitis, and
· right shoulder – bursitis.
The parties agree these are the injuries to be assessed.[1]
[1] Joint statement of facts and issues date 12 June 2024.
Medical Assessor Todd Gothelf examined the claimant and issued his assessment outcome in a certificate dated 27 October 2023 only addressing the lumbar spine and right shoulder. He found that the motor accident did not cause the injuries he believed were referred to him for assessment and declined to assess impairment.
The claimant applied to the President of the Commission for review, submitting that the assessment was incorrect in a material respect and the Medical Assessor failed to consider clinical evidence which supported a causal nexus between the accident and the claimant’s lumbar spine and bilateral shoulder conditions. The claimant also referred to Medical Assessor Gothelf failing to examine the cervical spine.
The Commission’s presidential delegate Ratula Gupta referred the medical assessment to a Review Panel (this Panel) on 9 April 2024.[2]
[2] Section 7.26(5) of the MAI Act.
STATUTORY PROVISIONS
The statutory provisions, relevant case law on causation and the applicable Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.
Assessment under Review
Original Medical Assessor’s findings
These are summarised in Appendix B
Matters considered and decided by the Review Panel
The Review Panel considered all aspects of the assessment under review.
The Panel met on 21 May 2024 to discuss how this review should proceed.
The Panel considered the parties’ submissions which are set out at Appendix C.
The Panel agreed it was not clear whether Medical Assessor Gothelf addressed the actual substance of the medical disputes, i.e., was he supposed to assess causation and impairment for more than the right shoulder and lumbar spine conditions.
The review application mentions other body parts. Further, the Panel noted the attached medical reports do not contain any notes about the claimant explaining the reasons for the late complaint about the right shoulder and whether there were any intervening causes.
The parties were directed to provide a statement of joint facts and issues to confirm the substance of the medical dispute, which was supplied and referred to in the first footnote.
The Panel decided re-examining the claimant was required. Medical Assessor Moloney examined Mr Hollman on 5 July 2024 at the Commission’s medical suites and wrote the report on behalf of the Panel.
REVIEW PANEL FINDINGS
Documentation
The Panel considered the documentation set out in Appendix D.
Re-examination
Mr Hollman attended the Commission’s medical suites unaccompanied.
Mr Hollman walked into the medical suite with a normal gait, but he was somewhat distressed as he was running late after arriving on a train, then walking carrying a large suitcase (containing radiological studies of himself and wife).
His height was measured at 187cm, and his weight was 89kg.
Pre-accident history
Mr Hollman stated that he was in good health before the accident. There had been a fracture of his right wrist in 2010 which was healed with a cast, and he had a hyperextension injury of the right knee from playing football which was treated with physiotherapy. He also sustained a laceration to the medial left thigh working as a carpenter.
At the time of the accident, he was a forklift driver for Toll which started three weeks before the accident. He was employed as a permanent casual. He was married and lives with his wife and has no children.
History of motor accident
Mr Hollman was driving his work HiLux van on 14 February 2020 when a car pulled out of a driveway and hit the passenger front side of his car. He states that he was shaken by the accident, but he was able to get out of the car and later drive home. He was wearing a seatbelt at the time and airbags were not deployed. The police or ambulance officers did not attend the scene of the accident.
History of symptoms and treatment following the accident
Mr Hollman states that he consulted his general practitioner (GP) on the same day and was prescribed analgesics and later consulted a chiropractor. The initial symptoms recorded in his GP’ s notes were pain in the left shoulder, neck and low back.
He was not happy with the GP’s treatment, so he referred himself to see neurosurgeon Professor Mark Sheridan, who saw him on 22 April 2021. The professor organised scans and recommended conservative treatment.
Professor Sheridan commented on 17 May 2021 and 20 May 2021 that the damage he saw in Mr Hollman’s scan was consistent with injuries to his cervical and lumbar spine.
The GP’s notes show Mr Hollman was pre-occupied with his cervical and lumbar spine conditions. The first GP note referring to the right shoulder was on 20 August 2020.
At a recent visit to Prof Sheridan in March 2024, he was told that he had annular tears to the lower lumbar disc, but surgery was not suggested. He also consulted pain specialist
Dr Davies in April 2024 who recommended physiotherapy and a possible epidural injection.Mr Hollman told Medical Assessor Moloney that he developed pain in the right shoulder about six months after the accident but is unsure why this happened. In the claimant’s statement dated 3 May 2023 he refers to the right shoulder beginning to become painful in mid-2020, but he does not assign a connection with the right shoulder and the accident.
His GP noted on 12 October 2020 in what reads like a long consultation that Mr Hollman said the “Pain was in right shoulder at time accident but got better then flared in August.”[3]
[3] Claimant’s bundle of document page 89 of 651.
In what reads as another long telehealth consultation on 15 December 2020 the GP notes:
“Right shoulder pain: Daniel did have shoulder pains along with his neck pain in Feb 2020 after the accident but was asked to rest for his neck/back pain and his right shoulder pain gradually reduced, however since he has been trying to do some light duties, he has noticed his right shoulder pain gradually increasing since August 2020. I have conducted a shoulder examination which showed painful abduction of the right shoulder with impingement signs and hence organised an USS which showed a tear of the right subscapularis and inflammation of his right subacromial bursa. This injury could have occurred from the MVA with his arms absorbing the shock through the steering wheel and transferring that energy to the shoulder girdle. For this injury I propose a USS guided steroid injection and 3-6 months of physiotherapy.”[4]
[4] Claimant’s bundle of document page 93 of 651.
The Panel did not discern any submissions or reports which referred to this note.
There have been no further injuries sustained to the referred body parts since the accident, although there are two references to falls at home, one in 2022 and another in 2023.
As well as Medical Assessor Gothelf assessing his injuries for permanent impairment, Medical Assessor Home produced a certificate dated 15 June 2021 on the issue of whether Mr Hollman suffered what was then known as a non-minor injury.[5] That Medical Assessor examined Mr Hollman’s right shoulder and lumbar spine. He found a nexus between the accident and the cervical spine soft tissue injury with aggravation of underlying developmental change in the lumbar spine.
[5] Section 1.6(2) MAI Act.
Medical Assessor Home found the accident did not cause his right shoulder condition, because of the time lapsed.
Current symptoms
Mr Hollman has persistent low back pain which is centrally located and soreness over the lateral right hip region which he notices when he gets out of the car. This pain increases with any lifting. He occasionally gets pins and needles in a global distribution in both legs which settles after a few minutes and seem to occur after prolonged sitting.
He has constant pain over both shoulders, in particular over the top of the shoulders and upper lateral arms. There is constant discomfort in the intrascapular region. The shoulder pain increases with any movement above shoulder height or extension. He has a poor sleep pattern due to pain.
Mr Hollman can drive for up to 45 minutes before low back pain commences, and he is able to walk short distances. At home, he mows the lawn in short intervals and does light vacuuming.
Recently he commenced working part-time for four hours a day one to two days per week doing office work. He considers that the back and shoulder pain is getting worse.
Current treatment
Recently, Mr Hollman has been prescribed amitriptyline 25 mg at night and baclofen 1 – 3 times a day. He consults his chiropractor on a fortnightly basis. These visits are self-funded.
CLINICAL EXAMINATION
Cervical spine
On inspection there was a normal contour of the cervical spine and on testing range of movement flexion/extension side bending and rotation were all at 50% of the expected range with no asymmetry. On palpation there was tenderness over the paravertebral muscles of the lower cervical spine, but no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs his reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 32cm bilaterally (10cm above the olecranon process) and in the upper forearm 29cm bilaterally (5cm below the olecranon process).
Lumbar spine
Mr Hollman walked with a normal gait and was able to walk on his heels and toes. Squatting was limited to 50% of expected range due to his low back pain. On testing range of movement, flexion was at 50% of expected range but extension was extremely limited to 10% of expected range. Side bending was at 50% of expected range bilaterally as was rotation. Thus, dysmetria was present in the lumbar spine. On palpation, Medical Assessor Moloney found there was tenderness over the gluteal muscles bilaterally in the lower lumbar sacral spine, but no guarding or spasm noted.
Straight leg raise when lying was at 70° bilaterally and 80° when seated with negative sciatic nerve root tension signs.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no muscle wasting was apparent with the circumferences of the lower thighs both measuring 45 cm (10 cm above the superior patella pole) and at the maximum circumference of the calves 39 cm bilaterally. On testing for sensation, there was decreased sensation over the medial right calf and ankle. There was also decreased sensation over the lateral foot and big toes bilaterally to light touch and pinprick. This was not in a dermatomal distribution.
Shoulders
On inspection of the shoulders no wasting was apparent and on passive movement no crepitus was detected. Active movements were measured using a goniometer and repeated. The restriction in movement of the shoulders was due to anterior shoulder pain with no referral from the cervical spine. Impingement tests were slightly positive bilaterally.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 140° | 140° |
| Extension | 40° | 50° |
| Adduction | 40° | 40° |
| Abduction | 140°/90°/120° | 140°/90°/100° |
| Internal Rotation | 80° | 80° |
| External Rotation | 80° | 80° |
I discussed with Mr Hollman the variability in shoulder movement and that Medical Assessor Home had recorded a full range of movement of both shoulders.
Initially, Mr Hollman was able to nearly clap his hands above his head which indicates good abduction but on formal testing this became very variable. He states that he has good and bad days to explain variability in range of movement.
Medical Assessor Moloney explained to Mr Hollman that this inconsistency in movement meant it would not be appropriate to measure any impairment using range of movement for both shoulders.
Causation and impairment
Cervical spine – soft tissue injury
The treating GP reported that Mr Hollman had neck pain 10 days after the accident and in subsequent interviews. This was investigated with a CT of the cervical spine in September 2020 and Medical Assessor Moloney accepted that the accident caused this injury.
Medical Assessor Moloney determined that this injury is 0% WPI with a classification DRE category I. At the time of this examination there was no dysmetria, no guarding on palpation and no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs.
Lumbar spine – soft tissue injury
The treating GP recorded that Mr Hollman had low back pain on the day of the accident and on subsequent consultations. This was investigated with an X-ray one month after the accident and subsequent CT and MRI scans. Medical Assessor Moloney accepted that the accident caused this injury.
At the time of this examination, there was dysmetria on testing range of movement of the lumbar spine but no guarding and no signs of radiculopathy in the lower limbs. There were no non-verifiable radicular complaints with sensation loss in a non-dermatomal distribution. This gives a classification DRE category II which is 5% WPI.
Shoulders
The treating GP recorded left shoulder pain 10 days after the accident. The GP also recorded left shoulder pain on his certificate of capacity on 25 February 2020. However, an ultrasound of the left shoulder was not done until December 2022 which is over two years after the accident. Medical Assessor Moloney accepted that the accident caused this injury.
Mr Hollman’s treating doctors did not mention any right shoulder pain in their notes until six months after the accident. The first time his GP recorded right shoulder pain associated with scapula pain was on 20 August 2020. A physiotherapist recorded right shoulder pain on
25 May 2022 when it was stated that he had fallen the day before that consultation which had aggravated the shoulder. The GP referred him for an X-ray and ultrasound in September and October 2020, which reported partial-thickness partial with intrasubstance tear of the subscapularis tendon. Mr Hollman told Medical Assessor Moloney that he was unsure why the right shoulder pain started six months after the accident.There is also the clinical note on 15 December 2020 of a long consultation about the right shoulder, which addresses when the claimant first noticed the condition and how the accident could have caused it.
Medical Assessor Moloney did not find any referral of pain from the cervical spine to either shoulder with neck or shoulder movement which negates the Nguyen principle.[6]
[6] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
Panel deliberations
The Panel met again on 17 July 2024.
The Panel decided to adopt Medical Assessor Moloney’s examination report with its conclusions and impairment assessment as evidence.
The Panel discussed whether the right shoulder was injured in the accident and if so, the shoulders would need to be determined by analogy rather than range of movement due to inconsistency on testing at the time of the re-examination and chronologically with other examinations.
Although the insurer’s submissions attempted to suborn the claimant’s credit, when it referred to the claimant’s activities, e.g. helping to build a shed and clinical entries in 2022, the Panel was satisfied that the claimant was doing his best to present himself honestly.
The treating physiotherapist on 25 May 2022 recorded a full range of movement of the left shoulder and on 17 September 2020 the treating GP reported a full range of movement of the left shoulder but decreased range of movement of the right shoulder.
There is an eight-month gap before the right shoulder complaint was noted.
Mr Holman’s current recall is tenuous re his right shoulder although his left shoulder (now settled) was mentioned at the time he first saw his GP. Ultrasounds showed right shoulder bursitis and partial rotator cuff tear (subscapularis) injury.
Medical Assessor Moloney considered whether the Nguyen principle could apply as trapezial muscle pain radiating to the right shoulder from the claimant's neck. However, his testing did not detect that sort of pain.
The GP’s analysis of the mechanism of the accident demonstrates it could have caused a right shoulder injury, as well as the left shoulder condition. The Panel is aware that a lack of contemporaneous complaints does not alone determine a causal link with an accident, but it is relevant evidence.[7] The Panel is also aware of the Briggs No. 2[8] warning that causation is not to be determined on the basis of scientific certainty, but on the balance of probabilities.
[7] Bugat v Fox [2014] NSWSC 888.
[8] Briggs No. 2 [2022] NSWSC 372.
The GP’s notation on 15 December 2020 shows the GP spent time with this patient to be better informed about why there was an apparent delay in symptomology. The GP noted he also considered the nexus between the accident and a right shoulder condition. This note was taken when the claimant was actively seeking rehabilitation from the accident’s effects and before any permanent impairment dispute.
The GP’s 15 December 2020 note explains the delay in reporting symptoms.
While Medical Assessor Gothelf commented that he thought the severity of the accident was not capable of injuring the claimant’s right shoulder it is known that low speed and minor motor vehicle damage do not always reflect the type and severity of injuries that could be sustained. The Panel does not have expertise to assess the severity of the accident and whether it could cause the claimed injuries.
Further, there is a lack of data about the accident, so attempting to decide whether an accident was capable of injuring a claimant would be speculative.
The Panel declines to exclude a nexus between the accident and the right shoulder condition on that basis.
The GP’s note on 15 December 2020 balanced against the delay in reporting the condition is evidence capable of persuading the Panel that the accident probably caused or materially contributed to the claimant’s right shoulder condition. The accident caused a soft tissue injury in that body part.
Right shoulder impairment
This injury is assessed by analogy due to inconsistency on testing range of movement at the time of Medical Assessor Moloney’s examination and in the past by other assessors. Using table 18 of AMA 4th edition, the acromioclavicular joint is 15% WPI and 10% mild impairment of this joint using table 19 gives 1.5% WPI which is rounded up to 2%.
Left shoulder impairment
This injury is assessed by analogy due to inconsistency on testing range of movement at the time of Medical Assessor Moloney’s examination and in the past by other assessors. Using table 18 of AMA 4th edition, the acromioclavicular joint is 15% WPI and 10% mild impairment of this joint using table 19 gives 1.5% WPI which is rounded up to 2%.
Panel decision
The Review Panel found that the motor accident caused the following injuries:
· cervical spine soft tissue injury;
· lumbar spine soft tissue injury;
· right shoulder soft tissue injury, and
· left shoulder soft tissue injury.
The Review Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
· cervical spine.
The Review Panel considered that the following injuries caused permanent impairment above 0%:
· lumbar spine at 5%;
· left shoulder at 2%, and
· right shoulder at 2%.
Permanent impairment
The motor accident caused injuries with total percentage permanent impairment of 9%. The total WPI is not greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
The Review Panel’s permanent impairment assessment provided a different outcome to Medical Assessor Gothelf’s assessment dated 27 October 2023.
Accordingly, the Review Panel will revoke this 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
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines 9.2 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the 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.”
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI 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
The Commission referred the permanent impairment dispute to Medical Assessor Gothelf. The Commission issued Medical Assessor Gothelf’s certificate on 27 October 2023.
Medical Assessor Gothelf noted the Commission had referred the following body parts to be examined:
· right shoulder – bursitis
· lumbar spine – severe compression to L4/5, L5/S1 vertebrae, nerve roots with disc bulge of those vertebrae.
The assessor included Mr Hollman’s cervical spine and left shoulder with the above body parts when the assessor noted Mr Hollman’s history before the accident.
The assessor examined and tested both upper limbs and the lumbar spine. He referred to the cervical spine as part of the injury matrix when commenting on the claimant’s consistency. He discounted Mr Hollman’s complaints about the right shoulder, because they were not part of the initial complaints, and the claimant’s doctors did not address that body part until seven months after the accident. Based on that delay the assessor found there was no apparent nexus with the accident and that condition.
The assessor’s decision on causation accepts the accident caused cervical and lumbar spine strain. He also initially noted he accepted the accident caused a left shoulder injury.
Medical Assessor Home certified on 15 June 2021 that the accident caused a desiccated L5/S1 and a disc bulge at L4/5 with no resulting radiculopathy. He found so because the claimant was a young person who was previously asymptomatic. However, Medical Assessor Gothelf found it was pre-existing degenerative change, which could not be attributed to the accident, despite consistent complaints since the accident.
Medical Assessor Gothelf also found the injury mechanism was unlikely to cause a left shoulder injury. This finding was based on the 10-day delay between the accident and the initial complaint about neck and left shoulder pain. He did not consider a Nguyen principle connection with either shoulder. He found the accident caused the neck problem.
He declined to assess permanent impairment on any body part.
APPENDIX C
Parties’ disputes and issues
Insurer’s submissions
There are significant causation issues. The accident was not serious enough to require the police or ambulance, and he drove home. The accident did not cause or aggravate the claimant’s injuries. The claimant’s injuries would not satisfy the non-economic loss threshold.
Orthopaedic surgeon Dr Raymond Wallace’s ARC report dated 8 May 2020, certified the claimant was fit to return to fulltime work. Dr Wallace also said this in March 2020, and the claimant disputed that when he saw his GP that same month.
The insurer refers to the clinical note, dated 13 August 2020 of Dr Ranessa Sebastian, which states “Donna says that Daniel never mentioned pain from the mva [verbatim].”
Dr Wallace also notes in May 2020 that the claimant was helping his father-in-law build a shed just three months after the motor accident.
The Allied Health Recovery Request dated 25 May 2022, mentions an accident in which the claimant fell up the stairs.
Documented in the discharge summary of Campbelltown Hospital, dated 27 October 2021, the claimant was patting a dog who lunged at him, resulting in the claimant falling backwards, the claimant attended the hospital after this accident.
The claimant first complained of right shoulder pain to his general practitioner, on 12 October 2020. This was 8 months after the subject accident.
The insurer contends that the interval between the date of the accident and the claimant's initial report of right shoulder pain, imparts significant doubt on the cause of the injury.
The right shoulder x-ray dated 28 October 2020 did not show any injury.
The Allied Health Recovery Request dated, 25 May 2022 notes “wearing a sling as he advised he slipped and fell on the stairs yesterday and aggravated this.”
The insurer submits that claimant did not sustain any injury to his right shoulder in the subject accident.
The insurer relies on Dr John Bosanquet, who opines the claimant has “aggravated pre-existing facet joint changes”. This is consistent with the MRI of the lumbar spine, noting a “desiccated L5/S1 disc”.
The dehydration of the L5/S1 disc, known as desiccation, is a degenerative injury and therefore preexisting.
Dr Wallace, in his report dated 11 March 2020, obtained a history that “[the claimant] he has previously suffered an episode of lumbar spinal pain but did not require treatment”.
In addition, there was a subsequent injury to the claimant's spine. The consultation dated 30 March 2023, the claimant’s general practitioner noted “1 month ago had fall down steps and landed on back and that aggravated things”.
The insurer submits the claimant's WPI for his lumbar spine should be assessed at 5% in line with the assessment of Dr Bosanquet.
Claimant’s submissions
The claimant relies on Dr James Bodel, orthopaedic surgeon’s report dated 28 June 2023 in which he had assessed the claimant’s injuries at a permanent impairment level of greater than 10%, being 20%.
In respect of whether the accident injured Mr Hollman’s lumbar spine, the claimant referred to the opinions of Prof Sheridan, Medical Assessor Home and Dr Bosanquet which support the accident causing either a direct injury or aggravation of existing facet joint changes.
In respect of whether the accident caused a cervical spinal injury the claimant refers to Dr Wallace and Dr Bodel’s opinion with a bone scan dated 20 May 2021 showing inflammation at C6/7.
To support the accident being linked to the claimant’s left shoulder complaints the claimant relies on Dr Choudhry’s contemporaneous notes and Dr Wallace. These doctors recorded complaints of left shoulder pain soon after the accident.
Supporting the right shoulder pathology the claimant refers to the reports made to another general practitioner. The claimant urges that an assessor should not be placing too much weight on apparent delay reporting the symptoms.
The claimant urges any assessor to consider the Nguyen principle to assess both shoulders, if that assessor is not satisfied of a direct injury causing changes.
APPENDIX D
Documentation
The Review Panel considered the following documentation as well as Medical Assessor Gothelf’s certificate.
Medical Assessor Home’s minor injury certificate dated 15 June 2021.
Dr James Bodel report for the claimant’s lawyers dated 28 June 2023: the doctor opined that the accident injured the claimant’s cervical and lumbar spine and both shoulders, which resulted in assessable impairment in all body parts. He diagnosed rotator cuff pathology in the right and possibly left shoulders.
Specialised Health Exercise Physiology clinical notes up to 16 May 2023
Prof Mark Sheridan’s clinical notes up to 12 May 2023
Nature Concepts Naturopath clinical notes up to 20 December 2023
Optimal Health Medical Centre clinical records up to 24 April 2023
The claimant’s statement dated 3 May 2023
Dr John Bosanquet’s report for the insurer dated 29 November 2022: he opined the claimant “aggravated pre-existing facet joint changes”. This is consistent with the MRI of the lumbar spine, noting a “desiccated L5/S1 disc”.
Dr Bosanquet assessed the claimant's lumbar spine WPI at 5%. The doctor appears to have confused the right with the left shoulder, because he addresses the history of the right shoulder as if there were contemporaneous complaints and the left shoulder was notified “some months after the accident.”
Medical
APPENDIX E
Permanent Impairment Table
The Panel calculated the degree of permanent impairment of the injuries caused by the motor accident as follows:
| 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 | AMA table 73 | Yes | 0% | 0% | 0% |
| 2 | Lumbar spine | AMA table 72 | Yes | 5% | 0% | 5% |
| 3 | Left shoulder | AMA table 18, 19 MAA guidelines 6.40,6.41 | Yes | 2% | 0% | 2% |
| 4 | Right shoulder | AMA table 18,19 MAA Guidelines 6.40,6.41 | yes | 2 % | 0 % | 2 % |
* %WPI = percentage whole person impairment
0
3
0