Insurance Australia Limited t/as NRMA Insurance v Buac
[2023] NSWPICMP 231
•30 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Buac [2023] NSWPICMP 231 |
| CLAIMANT: | Sasha Buac |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Robert Foggo |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Chris Oates |
| DATE OF DECISION: | 30 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injuries in a motor accident on 4 March 2016; the dispute related to a review of the Medical Assessor’s (MA) Certificate in respect of injuries to the claimant’s cervical spine, left shoulder, lumbar spine, left knee, right knee, and upper digestive system; the application alleged that the medical assessment was incorrect in a material respect; this was because the MA had ascribed to the incorrect percentage impairment in Table 64 on page 85 of the American Medical Association Guides to the Evaluation of Permanent Impairment Version 4 in relation to the partial meniscectomy of both of the claimant’s knees; the Review Panel accordingly determined that it was necessary to re-examine the claimant; Held – the Certificate of the MA is revoked; the degree of permanent impairment caused by the motor accident is 8% whole person impairment. |
| DETERMINATIONS MADE: | Medical Assessment – Whole Person Impairment Review Panel Assessment of Whole Person Impairment The Review Panel revokes the certificate of Medical Assessor Dr Berry dated 8 August 2023 and issues a new certificate determining that: · Cervical spine – 0% · Lumbar spine – 0% · Left knee – 1% · Right knee – 1% · Left shoulder – 4% · Digestive system dyspepsia – 2%. |
REASONS
Background
Sasha Buac (the Claimant) suffered injuries in a motor accident on 4 March 2016.
NRMA (the Insurer), insured the owner and/or driver of the other motor vehicle for liability to pay to the Claimant any damages under the Motor Accidents Compensation Act 1999.
The Review
The medical assessment conducted by Medical Assessor Neil Berry of 8 August 2022 was referred to this Review Panel for determination under Section 63(2B) of the Motor Accidents Compensation Act 1999 (the MAC act).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 provides that the Panel determines how it conducts and determines the proceedings and that it may determine the proceedings solely based on the written application.
Section 7.26(6) of the MAI Act provides that the review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.
All Review Panel members confirmed that they had no previous involvement with this matter, or with the above injured person. All Review Panel members also confirmed that there was no conflict or any other reason that they would be unable to approach this review with an open mind.
Conduct of the review
The parties complied with the Review Panel’s Direction of 13 January 2023, and provided paginated bundles of documents containing all the material upon which they each relied in respect of the Review.
10. The Review Panel met via teleconference on 6 March 2023. The Review Panel directed the claimant to attend a re-examination conducted by Medical Assessor Dr Oates on behalf of the panel on 13 April 2023.
11. After receipt of the examination report of Medical Assessor Dr Oates, the Review Panel determined that it was able, for the reasons set out below, to come to a conclusion without seeking further submissions or material from the parties.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.
Assessment under Review
Medical Assessor Dr Berry had been directed by the PIC to assess injuries to the claimant’s cervical spine, left shoulder, lumbar spine, left knee, right knee, and upper digestive system in accordance with section 58 (1) (d) of the MAC Act.
The assessor certified that the injuries to the claimant’s cervical spine, left shoulder, lumbar spine, left knee, right knee, and upper digestive system gave rise to a permanent impairment of 21%, being greater than the 10% threshold.
MATERIAL BEFORE THE REVIEW PANEL
The Review Panel considered all of the material provided by the parties pursuant to the Review Panel’s Direction of 13 January 2023. However, neither party provided additional submissions or material to that which had already been considered by the President’s Delegate, apart from the Determination of the President’s Delegate of 20 October 2022, set out at pages 115 – 117 of the Claimant’s bundle.
RE-EXAMINATION
The President’s Delegate, in her Determination of 20 October 2022, was satisfied that there was a reasonable cause to suspect the medical assessment was incorrect in a material respect.
This was because the Medical Assessor had ascribed to the incorrect percentage impairment in Table 64 on page 85 of the American Medical Association Guides to the Evaluation of Permanent Impairment Version 4 in relation to the partial meniscectomy of both of the claimant’s knees. The Review Panel accordingly determined that it was necessary to re-examine the claimant.
The Re-Examination Report
Assessor Dr Oates’ report is as follows:
Who attended the assessment
19. Mr Buac attended and was examined unaccompanied by Medical Assessor Oates on 13 April 2023 at Dr Oates’ rooms in Sydney.
HISTORY
Pre-accident medical history and relevant personal details
20. Mr Buac is married. His wife has chronic illness. Their daughter, aged 18, lives with them in a three-storey, walk-up apartment and she attends university.
21. Before the accident, he was fit and active doing yoga, bicycle riding and scuba diving.
22. He does not smoke and drinks wine socially.
23. Pre-accident he was a self-employed mortgage broker, a position he has been in since 2000, and he also has a company doing web page hosting.
24. In 1989 he had a left knee injury from a motor vehicle accident but this settled down with a couple of physiotherapy sessions.
25. He has had no previous problems with the left shoulder, neck, back or right knee.
26. He had an appendicectomy when he was in primary school.
27. In 2014, he had a colonoscopy with banding of haemorrhoids and removal of one polyp following rectal bleeding.
History of the motor accident
28. Mr Buac states he is right hand dominant.
29. He said on 4 March 2016, he was the driver of a Mazda 3 hatchback with his 12-year-old daughter as front seat passenger. They both had seatbelts on.
30. He had come out of a roundabout and was moving at 50kph, when he came to a T-intersection where a Toyota Camry came from his left from the side street and did not give way. He swerved to the right as much as he could but there was an oncoming line of traffic. The Toyota hit Mr Buac’s car on the front passenger door and central pillar, and pushed the car sideways. He did not hit anything else. All of the airbags deployed.
31. He can’t recall how he got out of the car. He had some small cuts on his right arm and forearm. He hit his left knee on the dashboard or console. He had extended his left arm out to the side to protect his daughter at the time of impact. He noticed immediate left knee and left shoulder pain, and then neck and low back pain.
32. No police or ambulance attended. He and his daughter went to the North Strathfield Medical Centre, located at the intersection where the accident occurred, straight afterwards. He is unsure who took the car from the crash site.
History of symptoms and treatment following the motor accident
33. The GP Dr Wimalratne ordered x-rays of the left knee, left shoulder and lumbar spine which showed no fractures.
34. He was treated with Endone and advised chiropractic but instead he saw a physiotherapist, Mr C Wong. He had treatment to the shoulder, back and neck. There was no benefit. He took Endone for about one month and thereafter continued with Panadeine Forte on an as needs basis, using 20 – 40 tablets per month, and Naprosyn 750 SR one daily.
35. He changed GP’s to his usual doctor, Dr Todorovic, Newtown, located near his then place of work.
36. His left knee started giving way without warning and he fell and hit his right knee a couple of times and also slipped on wet tiles outside the physiotherapy clinic, again injuring his right knee.
37. He had an MRI scan of the left knee which showed a complex tear of medial meniscus and an MRI scan of the left shoulder showing an old healed Bankart lesion or old trauma, and mild to moderate AC joint degenerative change.
38. He was adamant that he had never had a dislocation of the left shoulder in the past.
39. He had an MRI of the right knee showing a medial meniscal tear.
40. He then attended a chiropractor from 26 July 2016 to 25 November 2019 intermittently for treatment to the back, neck and shoulder which did help.
41. He was referred to Dr MacDessi, orthopaedic surgeon, regarding the right and left knees.
42. On 4 May 2017, he performed a 30% partial medial meniscectomy of the right and left knees, which Mr Buac funded himself. The operation helped both knees. He did post-operative physiotherapy.
43. Thereafter, he noticed ongoing pain in the knees when walking down steps and he had an updated MRI scan of the knees in June 2019 but was given no further treatment.
44. He developed gastric reflux and flatulence gradually, and after it had been present for a couple of months without abating, he got a referral from his wife’s GP, Dr Soo, to Dr Van der Poorten, gastroenterologist, whom he had seen prior to the accident. He performed a gastroscopy and colonoscopy. The gastroscopy showed linear erosive gastritis in the gastric antrum with flecks of blood and mild ulcerative reflux oesophagitis. The colonoscopy showed internal haemorrhoids which were banded.
45. He had tried Nexium in the past with some benefit to the reflux and Dr Van der Poorten recommended regular Nexium because of his ongoing need for anti-inflammatory medication. He advised continuing a fibre supplement and a diet because of the constipating effect of Panadeine Forte, which would have the potential to exacerbate haemorrhoids.
46. He had continuing left shoulder discomfort, particularly on composite movements of rotation and extension or elevation, and he saw Dr Haber, orthopaedic surgeon. He had an ultrasound scan which showed a partial-thickness supraspinatus tendon tear, and an MRI scan which showed this same finding plus a small labral tear.
47. Dr Haber has recommended rotator cuff repair and he is awaiting the outcome of a liability determination.
Details of any relevant injuries or conditions sustained since the motor accident
48. He has had no subsequent accident or relevant condition develop.
Current symptoms
49. Anterolateral knee pain is present bilaterally, left greater than right, when walking downstairs and inclines. The left knee rarely gives way nowadays.
50. The left side of his neck hurts when he turns his head quickly to change lanes and check the blind spot, and there is soreness at the base of the neck if he has his head forward flexed too long to read or use a computer.
51. Sitting in a chair increases low back discomfort and he has to get up to relieve it.
52. His left shoulder is fine when he is at rest but he gets soreness and impingement symptoms in the left shoulder when reaching upwards or outwards, or putting his arm into a shirt. He gets pins and needles in the left arm to the little finger with shooting pain at times. From his description, the symptoms did not follow a specific dermatome.
Current and proposed treatment
53. Mr Buac attended RPA Pain Clinic about three months ago on referral from the GP to try and get off medications, and he has been given a TENS machine to try to achieve this result.
54. He takes Fluoxetine 20mg twice daily for depression, prescribed by a psychiatrist, Dr Kuljic, Panadeine Forte 20 – 40 tablets per month, Naprosyn 750 SR one daily.
55. He notices if he runs out of the Naprosyn, he gets an increase in neck to left shoulder pain and low back pain.
56. He takes Nexium as required for oesophageal reflux symptoms.
57. He has just started seeing an exercise physiologist at Active Physio Gym and is to be given a set of home exercises as well.
58. Since the accident, he has not been able to do his usual physical activities but is just embarking on a supervised gymnasium strengthening program.
59. His daughter does the housework, as his wife has chronic illness. There is no yard work to do. He is independent with personal care but does have some left shoulder discomfort with removing and replacing shirts.
CLINICAL EXAMINATION
General presentation
60. Mr Buac was of average athletic build with height 183cm and weight 92kg.
61. He was troubled by a lot of flatulence (belching) whilst sitting and relating the history. He commented on a blood spot he saw on his trousers, presumably from haemorrhoids, when he was undressing.
62. He sat with some back discomfort but did not get up from the chair during the interview. He could stand erect and walked without a limp.
63. He transferred without visible discomfort from a chair and on and off the couch.
Cervical spine (cervicothoracic)
64. There was a normal cervical contour with full range of flexion and extension. Lateral flexion was half normal range bilaterally and rotation was two-thirds normal range bilaterally. There was no guarding or muscle spasm and no focal tenderness.
65. There were no non-verifiable radicular complaints. There was no dysmetria.
66. Neurological examination of both upper limbs including reflexes, power and sensation were normal. There was no atrophy with upper arm girth right 30cm, left 30.5cm and forearm girth right 29.5cm, left 28cm.
Lumbar spine (lumbosacral)
67. There was no dysmetria. There was normal lordosis. Flexion and extension were both three-quarters of normal range. Lateral flexion was three-quarters of normal bilaterally. Rotation was three-quarters of normal range bilaterally.
68. He could squat fully and walk on the heels and toes. Axial pressure test negative. There was no muscle guarding or spasm but there was central tenderness in the upper lumbar spine.
69. Neurological examination of both lower limbs, including reflexes power and sensation, were normal. Plantar responses were both flexor. Sciatic nerve root tension sign was negative with supine straight leg raising 60° bilaterally with complaint of tight hamstring and tight calf on the left.
Upper extremity
70. Range of movement measured with a goniometer.
71. Right trapezial ridge was equal in height to the left. There was no significant wasting about the shoulder girdles. There was tenderness anterior and lateral aspect of left shoulder with positive impingement sign.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180° | 150° with a painful arc of movement |
| Extension | 60° | 40° |
| Adduction | 40° | 40° |
| Abduction | 180° | 160° with a painful arc of movement |
| Internal Rotation | 90° | 60° |
| External Rotation | 90° | 70° |
Lower extremity
72. There was some patellofemoral tenderness, left greater than right. There was no patellofemoral crepitus or pain on patellar compression in either knee. Both knee joints were stable in anteroposterior and mediolateral directions.
73. Range of movement measured with a goniometer.
| Knee Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 130° | 130° |
| Extension | 0° | 0° |
Abdomen
74. Soft and non-tender with no liver, spleen or kidneys palpable on deep inspiration. On inspection of the anal area, there were external haemorrhoids with skin tags at the anal verge but no prolapse of haemorrhoids on straining.
Comments on consistency
75. The claimant presented in a straightforward consistent manner and I believe he demonstrated a genuine effort during physical examination.
Imaging
76. Apart from imaging reports already present in the file of evidence, there was an MRI scan left shoulder dated 22 November 2019 but there was no accompanying report.
DIAGNOSIS
Causation and Reasons
77. Soft tissue injury to the cervical spine and lumbar spine related to the accident, and this is based on the GP record of 8 March 2016, which mentions back pain, and the Claim Form of 8 March 2016 and accompanying Medical Certificate.
78. There was a medial meniscal tear of the left knee related to the accident, with direct impact to the left knee, based on the Claim Form dated 8 March 2016. There had been a previous injury to the left knee in 1989 which had resolved.
79. In a letter from the GP dated 27 May 2019 to the solicitor, there is a history of direct impact to the left knee and this was confirmed in the history taken at the Panel examination.
80. There was a consequential injury to the right knee with injury to medial meniscus from the left knee locking and causing falls, injuring the right knee on two occasions, and slipping on tiles on the way to physiotherapy, re-injuring the right knee in May 2016.
81. At the left shoulder, there is a partial-thickness rotator cuff tear and possible labral tear. This is related to the accident, as it is mentioned in the Claim Form of 8 March 2016, in the accompanying Medical Certificate and in the early treatment medical records.
82. There was a pre-accident history of bleeding haemorrhoids dating from 9 January 2014 and the accident is not considered to be a cause of bleeding haemorrhoids.
83. There is dyspepsia (indigestion) with reflux oesophagitis and flatulence, which is related to the motor vehicle accident by way of the need to take anti-inflammatory medication for the musculoskeletal disorders caused by the accident.
PERMANENT IMPAIRMENT
Lumbar spine
84. There is no dysmetria, no guarding, no non-verifiable radicular complaints and no radiculopathy. There are symptoms placing him in DRE Lumbar Category I giving 0% whole person impairment.
Cervical spine
85. There is symmetric loss of active range of motion but no dysmetria, no non-verifiable radicular complaints in a dermatomal distribution, and no radiculopathy.
86. There are symptoms in the left side of the neck and this places him in DRE Cervicothoracic Category I giving 0% whole person impairment.
Left shoulder
87. There is measurable loss of active range of motion which gives rise to an assessable permanent impairment.
88. Flexion 150° gives 2% UEI (upper extremity impairment), extension 40° gives 1%, abduction 160° gives 1% and internal rotation 60° gives 2%. Adding these gives 6% upper extremity impairment, equivalent to 4% whole person impairment.
Right knee
89. There has been a partial medial meniscectomy giving 1% whole person impairment.
Left knee
90. There has been a partial medial meniscectomy giving 1% whole person impairment.
Gastrointestinal system
91. There are symptoms of upper digestive tract dyspepsia causally related to the accident by way of ingestion of non-steroidal anti-inflammatory drugs and this is assessed as 2% whole person impairment under the Motor Accident Guidelines.
92. Lower digestive tract constipation attracts 0% whole person impairment under the Guidelines. As noted above, the condition of haemorrhoids is pre-existing.
93. The combined is 4% by 2% by 1% by 1% giving 8% whole person impairment.
94. Permanent Impairment Table
| Body Part or System | AMA4 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, Chapter 3, Table 73, page 110 DRE I | Yes | 0 | 0 | 0 |
| 2 | Lumbar spine | AMA4, Chapter 3, Table 72, page 110 DRE I | Yes | 0 | 0 | 0 |
| 3 | Left knee | AMA4, Chapter 3, Table 64, page 85 | Yes | 1 | 0 | 1 |
| 4 | Right knee | AMA4, Chapter 3, Table 64, page 85 | Yes | 1 | 0 | 1 |
| 5 | Left shoulder | AMA4, Chapter 3, Figure 38, page 43; Figure 41, page 44; Figure 44; page 45; Table 3, page 20 | Yes | 4 | 0 | 4 |
| 6 | Digestive system dyspepsia | MAPIG 1 June 2018 clause 1.26 page 10, clause 1.247 page 56 | Yes | 2 | 0 | 2 |
* %WPI = percentage whole person impairment
Pre-existing/subsequent impairment
95. Not applicable.
Apportionment
96. Not applicable.
Effects of Treatment
97. Not applicable.
CONCLUSION – PERMANENT IMPAIRMENT
98. Degree of Permanent Impairment caused by the Motor Accident is 8% WPI.
Reasons
The insurer’s submissions of 14 September 2022 (pages 381 – 389 of the Insurer’s bundle) raised the issue of the causation of the injuries to the claimant’s lumbar spine, left shoulder and upper digestive tract. The context of this was the allegation that assessor Dr Berry had not disclosed his path of reasoning in concluding that these injuries were caused by the motor vehicle accident.
In his Diagnosis Causation and Reasons, assessor Dr Oates at paragraph 77 above, finds the connection between the claimant’s lumbar spine symptoms and the accident established by the general practitioner’s notes of 8 March 2016, the claim form of 8 March 2016 and accompanying medical certificate.
As regards the left shoulder, assessor Dr Oates at paragraph 81 above, points to the claim form of 8 March 2016 and accompanying medical certificate, and notes and contemporaneous clinical records as establishing the connection between the motor vehicle accident in the claimant’s left shoulder symptoms.
With respect to the claimant’s upper digestive tract, assessor Dr Oates has at paragraph 81 above, has pointed to the claimant’s consumption of anti-inflammatory medication of the injuries suffered in the motor vehicle accident as being the cause of his upper digestive tract symptoms.
The Panel notes the report of acting Professor van der Poorten of 10 October 2019 (insurer’s bundle page 344) that the claimant has been taking 750 mg of Naprosyn, as well as intermittently using Nurofen, which he finds “is definitely the cause of the gastric erosions.” The claimant’s history of his consumption of anti-inflammatory medication is confirmed by the clinical notes of his general practitioner, who has prescribed or notes the use of anti-inflammatory medication on each occasion he presented to Dr Todorovic after the accident.
Assessor Dr Garvey came to an identical conclusion in his Further Certificate of 11 December 2020, noting that since the accident the claimant “had been taking Naprosyn 750 mg slow release daily and intermittent Nurofen which is the cause of his gastric erosions” (claimant’s bundle page 78.)
The Review Panel accordingly agrees with and adopts the findings and conclusions of assessor Dr Oates.
Conclusions
It therefore follows that the Certificate of assessor Dr Berry is revoked.
Review Panel Certification
This certificate has been viewed by Assessor Cameron and Assessor Oates who have confirmed that they are in agreement.
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