Insurance Australia Limited t/as NRMA Insurance v Bosmans
[2024] NSWPICMP 445
•8 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Bosmans [2024] NSWPICMP 445 |
| CLAIMANT: | Albert Bosmans |
| INSURER: | IAG Ltd t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 8 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of medical assessment under section 63; medical dispute about permanent impairment; Medical Assessment Certificate (MAC) assessed permanent impairment at 21%; cervical spine, lumbar spine, thoracic spine and bilateral shoulders referred to Medical Review Panel; history of several motor accidents before and after subject accident not disclosed to earlier assessors; insurer submits causation, presentation, credit and age of the claimant are relevant factors to take into consideration; Motor Accident Permanent Impairment Guidelines (2018) considered; Medical Review Panel questioned claimant on inconsistencies; Held – accident mechanism is consistent with injuries claimed; accident caused frank ligamentous cervical injury; bilateral shoulders included under Nguyen principal; thoracic and lumbar spine condition resolved; permanent impairment assessed at 12%; MAC revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 following the Review Panel reviewing whether the subject motor accident on 20 August 2016 caused injuries to the claimant resulting in permanent impairment greater than 10%. 1. The Review Panel revokes the certificate dated 11 October 2023 and issues a new certificate. 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: soft tissue injury; (b) left shoulder: restricted shoulder motion secondary to neck pain (Nguyen principle); (c) right shoulder: restricted shoulder motion secondary to neck pain (Nguyen principle); (d) thoracic spine: soft tissue injury – resolved; (e) lumbar spine: soft tissue injury – resolved, and (F) chest: soft tissue injury – resolved. |
REASONS
BACKGROUND
Mr Bosmans (the claimant) was a seat belted front seat passenger in his brother-in-law’s Holden sedan on 20 August 2016. His brother-in-law took evasive action to avoid hitting a pedestrian and drove the car to the right hitting a foundation.
Mr Bosmans struck his head and face on the dashboard and suffered facial injuries. His brother-in-law drove him to Campbelltown Hospital. The Emergency Department noted Mr Bosmans was complaining of neck and chest pain with facial injuries to his left eyelid, forehead abrasion and lip laceration.
The hospital scanned the claimant’s neck, which demonstrated cervical spine ligament damage. The hospital treated this with a hard collar.
When Mr Bosmans followed up this assessment a partial compression T2 fracture was revealed, that had not been evident in 2013 studies. There were no new traumatic injuries in the lumbar spine. The re-examination report will contain more detail.
There have been earlier disputes in this claim between the insurer and the claimant about the permanent impairment rating. The Personal Injury Commission (Commission) and the preceding entities have convened earlier medical assessments and review panels.
The insurer applied for Review under s 63 of the Motor Accidents Compensation Act 1999 (the MAC Act) to review Medical Assessor Alan Home’s further assessment dated 11 October 2023.
The President of the Commission constituted this Review Panel (the Panel) on 15 February 2024.
Medical Assessor Home assessed that the 2016 accident caused injuries that inflicted permanent impairment on the claimant that he rated as 21%.
The President’s delegate referred the medical assessment to the Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the application’s particulars.[1]
[1] Section 63(2B) of the MAC Act.
The Commission has arranged for the Panel to assess:
(a) cervical spine: soft tissue injury;
(b) left shoulder: restricted shoulder motion secondary to neck pain (Nguyen principle[2]);
(c) right shoulder: restricted shoulder motion secondary to neck pain (Nguyen principle);
(d) thoracic spine: fracture of T2, soft tissue sprain;
(e) lumbar spine: soft tissue injury, aggravation of degenerative changes, and
(f) chest: soft tissue injury.
[2] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351
STATUTORY PROVISIONS
The statutory 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 Panel
The Panel considered all aspects of the assessment under review.
The Panel met on 25 March 2024 to discuss how this review should proceed.
The Panel considered the parties’ submissions which are set out at Appendix C.
The Panel decided re-examining the claimant was required. Both Medical Assessors examined Mr Bosmans on behalf of the Panel on 10 May 2024 at the Commission’s medical suites.
Documentation
The Panel considered the documentation set out in Appendix D.
REVIEW PANEL FINDINGS
Mr Bosmans attended the Commission’s medical suites on 10 May 2024. He attended with his wife. The Medical Assessors explained to Mr Bosmans what the dispute was about, and the processes involved in its resolution. He said to the Medical Assessors that he understood this explanation.
Relevant medical history
Mr Bosmans has been involved in several motor vehicle accidents before the subject accident on 20 August 2016. He gave the following history to the Panel and addressed the history in statements dated 3 April 2018 and 3 May 2024.
In 1971 he fractured his L2 vertebra and his left femur in a motorcycle accident.
Another motor bike accident in 1997 fractured his sternum as well as L1 vertebra. That accident left him with some residual back pain, and in 2005 he sought “specialised stem cell transplant” in Europe to try and combat some of his pain. He stated that this was effective in decreasing the intensity of his low back pain, but he has had some ongoing back pain ever since.
He was in another motor vehicle accident in 2009 but maintained that he suffered no significant injury.
He was at work in 2014 when he injured his lower back lifting. He had persisting problems of low back pain after this. Immediately before the motor vehicle accident in 2016 he had low back pain without neurological symptoms. He was receiving regular treatment and was only working part time on account of his symptoms. He denies he had any persistent neck pain or shoulder pain but stated that from time to time he might get short-lived aches or stiffness around his neck or shoulders, typically from unaccustomed activity. He does not have any history of upper or thoracic back pain.
Mr Bosmans’ statement dated 3 May 2024 addressed a 25 July 2012 accident. He told the Medical Assessors he had largely forgotten about it. He remembers a temporary neck injury, and he did not pursue compensation.
The 2012 injuries had resolved by 2016.
He does not recall the October 2017 accident, which the insurer referred to.
In the 2019 accident he said his wife was driving and hit a tree and he claimed for property damage. He did not claim for an injury, because he was not injured.
His chiropractor is in Ulladulla.
Subject accident
In the subject motor vehicle accident, he was the front seat passenger in a vehicle that struck a solid foundation head-on whilst attempting to avoid an individual involved in an alleged road rage incident. At the time of impact Mr Bosmans was leaning forward with his seat belt fully extended. The impact jerked him forward so that he hit his head on the dashboard. He sustained injuries to his face; his teeth and he was immediately aware of some neck pain. The pain at that time was in the left side of the neck and radiated toward his left trapezius. He also had some pain in the upper part of the chest. His low back pain was also exacerbated but he volunteered that it has resolved to how it was before the subject accident. He attended a hospital after the accident. The hospital assessed him and performed an MRI of the cervical spine. This demonstrated a ligamentous injury to the back of the neck, specifically the interspinous ligament. This would be entirely consistent with a forced flexion injury to the neck.
There was a suspicion of a T2 vertebral body fracture based on initial imaging, but the MRI did not find any oedema to indicate that it was an acute injury.
Unfortunately, Mr Bosmans has had ongoing problems with neck pain since then. It has become worse over time. He has had chiropractic treatment and uses analgesic medications. He takes Panadeine forte every few days and Endone every three days. Dr Darwish is his neurologist. Dr Darwish noted the absence of any radiculopathy or myelopathy and considered there was no indication for surgical management.
His current symptoms are pain in both sides of his neck. He perceives his pain on the posterolateral aspect of the lower neck on each side. It is bounded superiorly by the C3 spinous process, inferiorly by the C7 spinous process and extends laterally to the acromioclavicular joint across the top of his trapezius. It is more marked on the left. With right rotation he experiences shooting pain into the back of the head on the left side. With left rotation he experiences exacerbation of his right-sided neck pain. He notices that his arm movements precipitate this pain in these areas, specifically abduction of the arm on the left, which can trigger his sharp left-sided head pain, but all shoulder movements can aggravate his pain. He has not had any investigations directed at the shoulder joints.
He feels some intermittent tingling in the hands, more on the left than the right. The examiners confirmed that all fingers in each hand were affected. He has also had some tingling in both feet, again affecting all the toes. The foot symptoms are intermittent and positional, typically worse with sitting.
Mr Bosmans was asked specifically about whether he has other symptoms from the 2016 accident. He denied symptoms elsewhere other than some radiation of his left trapezius pain anteriorly onto the chest wall from time to time.
The Medical Assessors asked him specifically about any upper thoracic pain, and he denied this. He confirmed that his low back pain was now approximately the same in site and severity as before the accident, and any exacerbation had been temporary.
The Panel notes that dental, facial, and psychological injuries have been separately assessed and are outside the scope of this review.
He denied involvement in any subsequent accidents or any subsequent injuries. Mention of accidents in 2017 and 2019 in the insurer submissions appear to relate to accidents involving his wife, when he was not in the car.
Examination findings
Mr Bosmans was cooperative with the examination. He was 172cm tall and weighed 85kg. He required some help with removing his T-shirt due to pain on flexing and abducting his arms.
Cervical spine
There was tenderness over both trapezii, left more than right, and to a lesser extent the mid neck. There was no guarding or spasm.
He had asymmetrical loss of movement in the cervical spine as follows:
Movement Fraction of normal range Flexion 2/3 Extension 1/2 Right rotation 1/3 Left Rotation 1/3 Left lateral flexion 1/4 Right Lateral Flexion 1/4
His upper limb neurological examination revealed normal power in all groups with some pain inhibition on certain positions of the left shoulder. Biceps, triceps, and supinator reflexes were all intact and symmetrical. Pin prick and light touch sensation were normal across all dermatomes.
There was no asymmetrical wasting of the upper am or forearm. The specific measurements were:
Right Left Upper limb circumference, 10cm above elbow crease 27cm 27cm Upper limb circumference, 10cm below elbow crease 22.5cm 22.5cm
Thoracic spine
There was normal rotation, flexion, and extension of the thoracic spine. There was no guarding or tenderness, and no loss of sensation over any of the thoracic dermatomes.
Lumbar spine
He had a decreased lordosis of the lumbar spine. There was no guarding or spasm.
There was symmetrical loss of movement in the lumbar spine:
Movement Fraction of normal range Flexion 2/3 Extension 2/3 Right rotation 2/3 Left Rotation 2/3 Left lateral flexion 2/3 Right Lateral Flexion 2/3
Straight leg raise was 70o on both sides with negative sciatic stretch tests.
Power in the lower limbs was normal. Ankle jerk, knee jerk and adductor reflexes were present and symmetrical. Light touch and pinprick sensation were intact across all dermatomes.
There was no asymmetrical wasting of the thigh or calf muscles. The specific measurements were:
Right Left Thigh circumference, 10cm above upper pole of the patella 41cm 40cm Maximum calf circumference 34cm 34cm
Shoulder movements
Shoulder movements were assessed with a goniometer. Each movement was measured three times on separate occasions. Results are in degrees.
Attempt Flexion Extension Abduction Adduction Internal rotation External rotation Right 1st 110 50 130 40 70 60 2nd 120 50 130 40 60 50 3rd 130 50 130 30 80 20 Left 1st 130 50 80 30 70 50 2nd 80 40 110 40 90 30 3rd 120 30 80 20 80 20
Movements were limited by trapezius pain on the ipsilateral side. There was no unilateral wasting of the rotator cuff or shoulder musculature.
Consistency
The Panel asked Mr Bosmans about the inconsistency it saw between the ranges of motion found on different attempts in the shoulders. Mr Bosmans explained that these movements were causing varying degrees of pain that prevented further movement.
The examiners considered this was a reasonable explanation for the observed variation and noted that Mr Bosmans appeared to be making a genuine effort. In addition, there were no movements more than those observed on formal assessment seen during the rest of the assessment, including dressing, and undressing and when he was demonstrating the site of pain in his back and neck with his hands.[3]
[3] Clause1.40 Motor Accident Permanent Impairment Guidelines (Guidelines).
The Medical Assessors considered the inconsistency in each shoulder’s range of movement (ROM) and decided it was an appropriate use of their clinical skill and judgement to assess the claimant’s permanent impairment based on the best ROM he demonstrated that day.[4]
[4] Clause 1.41 Guidelines.
Conclusions
The Panel concludes that the 2016 accident injured Mr Bosmans’ cervical spine. The contemporaneous evidence of new symptoms and the interspinous ligament disruption on the first cervical spine MRI obtained after the accident support this finding. There was no radiculopathy as neurological examination of the upper limbs was normal. There was dysmetria on cervical movements, so he meets the criteria for diagnosis related estimates (DRE) II which attracts a 5% whole person impairment.
The Panel found that the T2 wedging was not acute at the time of the accident as the MRI findings showed no oedema, arguing against any acute fracture. The scan did show mild pre-vertebral soft tissue swelling and the hospital records referred to mild pain at T1 and T2. The Panel accepts there was a soft tissue injury to the upper thoracic spine, which has resolved, because there are no ongoing symptoms and there was no tenderness or other examination findings indicative of continuing injury.
The Panel found that the accident caused a soft tissue injury and temporarily exacerbated Mr Bosmans’ lumbar spinal pain, but it did not cause a lasting effect based on the history Mr Bosman gave the Panel at the examination. The Panel therefore considered that the accident did not cause an assessable lumbar spine impairment, because the motor vehicle accident-related soft tissue injury resolved. He has the background of two well documented vertebral fractures preceding the subject accident which would meet criteria for DRE IV leading to a whole person impairment (WPI) of 20% based on Tables 70 and 72 in the AMA 4th edition guides.
The Panel did not find that any evidence of direct injury to either shoulder, but there was pain referred from the cervical spine to the trapezius exacerbated by shoulder movements. The Panel therefore considered that he had an assessable shoulder impairment under the Nguyen principle. The Panel applying clause 1.40 of the Guidelines considered that the maximum range found on examination today should be utilised to determine the degree of impairment. That results in the following table:
AMA Figure AROM (degrees) AROM (degrees) Shoulder Movements RIGHT UEI (%) LEFT UEI (%) Flexion 38 130 3 130 3 Extension 38 50 0 50 0 Adduction 41 40 0 40 0 Abduction 41 130 2 110 3 Internal rotation 44 80 0 90 0 External Rotation 44 60 0 50 1 Total 5 Total 7
Permanent Impairment Table
Applying Table 3 of the AMA guides, the WPI arising from the right shoulder is 3%, and from the left shoulder 4%.
The table is set out at Appendix E.
Panel deliberations
The Panel met again on 20 May 2024.
The Panel decided to adopt the joint Medical Assessors’ examination report and the impairment assessment as evidence and its conclusions.
The Panel noted the insurer’s submissions summarised at Appendix C, which urge that the claimant should be assessed with the history of earlier and subsequent accidents and the earlier Medical Assessors’ certificates as well considering the claimant’s age and credit.
The Panel considered that the examination, Mr Bosmans answers to its questions during the examination and his statements addressed the insurer’s concerns.
Further, the Medical Assessors’ examination and testing yielded different outcomes to the earlier assessments.
The claimant’s credit was not a relevant factor in this Panel’s findings.
Panel’s decision
The Panel found that the motor accident caused the following injuries:
(a) cervical spine: soft tissue injury;
(b) left shoulder: restricted shoulder motion secondary to neck pain (Nguyen principle);
(c) right shoulder: restricted shoulder motion secondary to neck pain (Nguyen principle);
(d) lumbar spine: soft tissue injury, aggravation of degenerative changes, and
(e) chest: soft tissue injury.
The Panel found that the following injuries were now asymptomatic, and were considered to have resolved with no assessable permanent impairment:
(a) lumbar spine soft tissue injury, and
(b) chest.
The Panel considered that the following injuries caused permanent impairment above 0%:
(a) cervical spine: soft tissue injury 5%;
(b) left shoulder: restricted shoulder motion secondary to neck pain (Nguyen principle) 4%, and
(c) right shoulder: restricted shoulder motion secondary to neck pain (Nguyen principle) 3%.
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 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 Panel’s permanent impairment findings about the injuries caused by the motor accident are different to Medical Assessor Home’s further assessment dated 11 October 2023.
Accordingly, the 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
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 Motor Accident Permanent Impairment Guidelines (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:
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 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.”
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 Assessor’s findings
The Commission referred the permanent impairment dispute to Medical Assessor Home for further assessment because the claimant provided additional material, which showed it was arguable that the claimant’s condition had deteriorated since Medical Assessor Crowle examined Mr Bosmans to issue medical assessment certificate dated 3 October 2018.
Medical Assessor Home certified on 11 October 2023 that the subject accident caused injuries that he assessed with a permanent impairment of 21%:
| Body part or system | AMA 4 Guides/Guidelines references (chapter/page/table) | Permanent | Current % WPI* | % WPI from pre-existing or subsequent causes | % WPI due to subject accident | |
| 1 | Cervical spine | Chapter 3, Page 103 Section 3.3h Table 70, Page 108 Table 73, Page 110 | Yes | 5% | 0% | 5% |
| 2 | Right shoulder | Chapter 3, Page 41 Section 3.1j Figure 38, Page 43 Figure 41, Page 44 Figure 44, Page 45 Motor Accident Authority Guidelines effective from 1 June 2018, Paragraph 1.40 Nguyen principle | Yes | 6% | 0% | 6% |
| 3 | Left shoulder | See right shoulder | Yes | 7% | 0% | 7% |
| 4 | Thoracolumbar | AMA 4, chapter 3 page 106 | Yes | 5% | 0% | 5% |
| 5 | Lumbosacral | AMA 4, chapter 3 page 102 | Yes | 20% | 20% | 0% |
| 6 | Chest | SIRA guidelines | Yes | 0% | 0% | 0% |
| Total | 21% |
Medical Assessor Home decided the subject accident did not cause Mr Bosmans anterior wedge fracture at L1 and L2 and superior and plate fractures at T3 and T6 with six rib fractures.
Medical Assessor Crowle’s assessment dated 3 October 2018 attributed the claimant’s lumbar sacral permanent impairment to injuries he had suffered before the accident. She only allowed 5% for the thoracic spine and 2% for the left shoulder. She found zero percent permanent impairment in the cervical spine and right shoulder.
APPENDIX C
Parties’ disputes and issues
Claimant’s submissions
On 11 August 2023 the claimant submitted that the claimant’s condition had deteriorated since Medical Assessor Crowle’s MAS Certificate of 3 October 2018 assessed 7% permanent impairment. This was comprised of 20% for the lumbar spine, 5% for the thoracic spine and 2% for the left shoulder, less the entire lumbar spine impairment to pre-existing wedge fractures.
The claimant submitted the cervical spine MRI dated 22 February 2022 is reported on by Dr Robinson, radiologist as follows:
"There is a degree of degenerative disc and bony disease. These changes have progressed slightly at C5-6 when compared to the prior study." (emphasis added)
The claimant submitted the radiologists report provided powerful objective evidence of a deterioration of his condition, which would also plainly be capable of having a material effect on the previous assessment.
Report of Dr Dixon dated 28 June 2022
Dr Dixon has provided a supplementary report addressing Dr Robinson’s findings.
Dr Dixon records as follows:
"The MRI indicates posterior bulging of the C5-6 di The MRI of the cervical spine dated 22 February 2022 is reported on by Dr Robinson, radiologist as follows:
‘There is a degree of degenerative disc and bony disease. These changes have progressed slightly at C5-6 when compared to the prior study’."
Dr Dixon's report support the claim that the deterioration reflected in the MRI is material to the level of whole person impairment in the cervical spine and shoulder. Dr Dixon’s opinion is that the changes will cause increasing stiffness (or impaired range of motion) in the cervical spine, and not only pain.
This corresponds with Dr Dixon's whole person impairment assessment of 19% provided in his report dated 21 April 2021, which is higher than the 18% impairment assessment provided in July of 2017.
This represents an evolution of the disc disruption following the subject accident and would further impact on his ability to work, due to the increasing neck pain and stiffness and shoulder brachialgia"
Dr Dixon's report supports the submission that the deterioration reflected in the MRI is material to the claimant's level of whole person impairment in the cervical spine and shoulder, given his opinion that the changes will give rise to increasing stiffness (or impaired range of motion) in the cervical spine, and not only pain.
Insurer’s submissions
The insurer’s submissions summarised below are a combination of the submissions to the Commission in respect of the claimant’s application for further assessment and the insurer’s application for a review panel. The insurer urges that the claimant should be assessed with the history of earlier and subsequent accidents, as well as considering the claimant’s age and credit.
The MRI scan dated 22 February 2022 was undertaken when the claimant was 70 years old. Dr Andrew Robinson compared the imaging to the earlier imaging taken on 28 March 2017 and reported that:
“There is a degree of degenerative disc and bony disease. These changes have progressed slightly at C5/6 when compared to the prior study. Otherwise, the appearances are substantially stable.”
Medical Assessor Crowle viewed several investigations including the MRI cervical spine dated 28 March 2017, which noted ‘multi-level degenerative changes’, and MRI cervical spine dated 12 December 2017 which noted ‘multi-level degenerative changes in the cervical spine with spondylosis at C3/4, C4/5 and C5/6’. Similarly, a bone scan (whole body bone scan with SPECT/CT) dated 20 August 2018 identified ‘mildly active right C4/C5 facet arthritis, active degenerative changes at multiple levels in cervical spine, thoracic spine and lumbar spine…’
Based on those scans, the MRI of 22 February 2022 is neither evidence of a deterioration or additional relevant information capable of influencing Assessor Crowle’s assessment.
Dr Dixon’s report dated 28 June 2022 commented on the MRI discussed above. Further, the claimant did not provide Dr Dixon with a complete history or any other information on which to provide his opinion.
Dr Dixon, in his report dated 18 July 2017, stated that the claimant sustained a whiplash injury to the neck which included ‘radicular complain with occipito frontal headaches’. Assessor Crowle took this report into consideration and the claimant’s alleged injuries and found ‘no radicular complaints or radiculopathy’ which was consistent with improvement of soft tissue injuries with the passage of time.
Noting the claimant’s age, the complex myriad of factors and events the claimant did not disclose, the insurer submits that there was no evidence of a deterioration of injuries arising from the subject accident. Dr Dixon did not explore the relevant history and therefore did not examine causation.
The insurer submits the claimant’s statement dated 4 August 2022 was not evidence of a deterioration or provide additional relevant information.
The insurer notes that the claimant has not disclosed the further accidents in any of his statements or to any doctors or MAS assessors.
The claimant has an extensive history of insurance claims. The claimant made a personal injury claim with Allianz for a soft tissue injury to his cervical and lumbar spine on 25 February 2012 and a workers’ compensation claim with QBE following a lower back injury on 15 July 2014 (Claim no: SF1175351154).
The Allianz records dated 5 February 2013 refer to the motor vehicle accident on 25 July 2012 and allege neck injury with disabilities including pain, tenderness, and restriction of movement. The ambulance record and Campbelltown Hospital admission summary dated 25 July 2012 notes that the claimant complained of neck pain after that accident.
The insurer learned about further motor vehicle accidents involving the claimant on 9 October 2017 and 11 May 2019.
Note the motor vehicle accident that occurred on 11 May 2019, in which the claimant, driving DWB67W, lost control of the vehicle and hit a tree in a single vehicle accident.
Although these accidents were not disclosed to any doctors, the insurer highlights that:
(a) the claimant attended his GP, Dr Girgis on 14 May 2019 for ‘follow up MVA 20/8/16 -- pain/depression--’ with the following noted: severe back pain; headache; upper back pain; depressed. There is no notation of the accident on 11 May 2019, which the insurer submits is relevant;
(b) the claimant reported no injury after the subject motor vehicle accident to Dr Stephenson;
(c) the claimant did not disclose subsequent motor vehicle accidents to Dr Rikard-Bell;
(d) Medical Assessor Dr Gertler assessed the claimant on 14 May 2020, but the claimant did not disclose the accident on 9 October 2017 or 11 May 2019;
(e) the claimant reported to Dr Teoh that he stopped work on 1 March 2018, after the further motor vehicle accident on 9 October 2017 (see page 85 of the claimant’s bundle of documents);
(f) the claimant did not report the subsequent accident to Assessor Michael John McGlynn at the assessment on 28 August 2018 (see page 94 of the bundle);
(g) Assessor Crowle commented that, at the assessment of 12 September 2018, the claimant “stated that he has not been involved in any further accidents or injuries.” This is clearly inaccurate.
The insurer submits that the subsequent accidents must be considered when considering the application as well as the presentation and credit of the claimant.
The insurer criticised Assessor Homes’ lack of details on causation when it applied for review.
That application submitted that the claimant being unable to recall the 2012 motor vehicle accident is not evidence of it not having occurred. This is essentially the only reference to the 2012 accident within the Assessor’s certificate and the Assessor therefore does not consider how this accident - in which the claimant sustained a cervical spine injury - impacts the assessment.
The records of Dr Magdy Girgis, annexed to the insurer’s reply, include various references to the 2012 accident and injuries and include various claims documents.
Despite summarising some of the evidence before him, the Assessor did not engage with the material when formulating his opinion on diagnosis or causation.
Further, Assessor Home did not consider whether the claimant’s complaints were consistent with the ordinary aging process.
Assessor Home simply accepted the claimant’s verbal response that he could not recall a motor vehicle accident in 2012 despite the records of Dr Magdy Girgis. This should be brought to the claimant’s attention during the assessment.
Assessor Home summarised the MRI cervical spine report dated 4 July 2013 as well as the cervical spine imaging reports after the subject accident on pages 7 and 8 but he does not analyse them. Assessor Home failed to consider and comment on whether the changes on assessment, from Assessor Louise Crowle’s certificate, could be explained by pre-accident causes or the usual aging process.
Assessor Home refers to Orthopaedic Surgeon Dr Brian Stephenson’s report dated 3 May 2022 to support the bilateral shoulder assessment, (but) the insurer submits that there are marked changes in at least flexion of the left shoulder.
Assessor Home failed to address how any change in range of motion of the shoulders bilaterally was causally related to the motor vehicle accident, particularly noting the pre-accident changes on the cervical spine imaging.
APPENDIX D
Documentation
Neurosurgeon Darwish issued reports dated 11 October 2016, 15 November 2016, 9 May 2017, 21 November 2017, 23 January 2018, 6 March 2018 and 8 May 2018 outlining progress. Dr Darwish opined that the MRI scans supported a new T2 fracture. He did not find radiculopathy or nerve root or spinal cord compression. He advised the surgery was not needed.
Dr Guirgis noted in two certificates in 2016 that the accident caused neck pain, a left-sided facial injury, back injury, blurred vision, painful shoulder sternal and anterior rib fractures.
Dr Drew Dixon's report dated 18 July 2017 assessed the claimant's permanent impairment.
Dr Brian Stephenson's report dated 31 October 2019 referred to the claimant using Panadeine Forte and Endone to treat his motor accident -related headache, neck pain and back pain.
Dr Drew Dixon's further report dated 21 April 2021 diagnosed the accident caused the following injuries:
· whiplash neck injury with post-traumatic stiffness and dysmetria. Facet arthralgia and shoulder brachialgia with trapezial muscle pain. The accident aggravated previously a symptomatic degenerative changes.
· Bilateral shoulder brachialgia, with right shoulder post-traumatic stiffness
· thoracic back strain with T2 fracture and post-traumatic stiffness
· lower back aggravation with post-traumatic stiffness.
· He assessed permanent impairment at 18% including the thoracic spine.
· Dr Stephenson's further report dated 3 May 2022 noted greater restriction in both shoulders.
Dr Dixon's report dated 28 June 2022 referred to a cervical spine MRI performed 21 February 2022, which showed changes had progressed.
There was a 4 July 2013 cervical spine MRI, which showed changes, which the Panel contrasted with the several cervical spine MRI scans taken after the subject accident.
APPENDIX E
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical Spine | Table 73 AMA 4th edition guides | Yes | 5 | 0 | 5 |
| 2 | Right Shoulder | Fig 38, 41 and 44 AMA 4th edition guides and table 3 | Yes | 3 | 0 | 3 |
| 3 | Left Shoulder | Fig 38, 41 and 44 AMA 4th edition guides and table 3 | Yes | 4 | 0 | 4 |
| Total | 12% |
* %WPI = percentage whole person impairment
Total whole person impairment arising from the accident is therefore 12%.
0
1
0