Insurance Australia Limited t/as NRMA Insurance v Dean
[2024] NSWPICMP 824
•4 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Dean [2024] NSWPICMP 824 |
| CLAIMANT: | Jainal Dean |
| INSURER: | Insurance Australia Limited t/as NRMA |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 4 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 7 August 2020 when the insured motor vehicle ran a red light and collided with the claimant’s vehicle as it moved through an intersection; assessment of permanent impairment of injuries to the cervical spine, thoracic spine, lumbar spine, right shoulder and knees; claimant re-examined by Review Panel; Held – original assessment of 20% revoked and replacement certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The issue determined by the Review Panel is 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%. 1. The Review Panel revokes the certificate of Medical Assessor James Bodel dated 6 October 2023. 2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment not greater than 10% (6%): · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury; · lumbar spine – soft tissue injury; · right shoulder – fracture of the clavicle; · left knee – soft tissue injury, and · right knee – soft tissue injury – resolved. |
STATEMENT OF REASONS
BACKGROUND
On 7 August 2020, the claimant, Jainal Dean, was involved in a motor accident when a motor vehicle insured by NRMA ran a red light and collided with the right front side of the claimant’s vehicle as it moved through an intersection.
The claimant claimed that in the accident, he sustained injuries to his cervical spine, thoracic spine, lumbar spine, right shoulder and knees.
The insurer accepted liability to pay the claimant statutory benefits and damages arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of his claim for common law damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant had suffered a whole person impairment (WPI) exceeding 10% for his injuries caused by the accident.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act.
The Commission referred the matter to Medical Assessor James Bodel for assessment.
On 6 October 2023, the Medical Assessor issued a certificate finding that the claimant’s injuries caused by the accident, gave rise to a permanent impairment of 20%.
THE REVIEW APPLICATION
On 22 November 2023, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment of the Medical Assessor to a review panel for review. It appears that the Medical Assessor’s certificate was issued to the parties on 25 October 2023. Accordingly, the review application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[1]
[1] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Shane Moloney, Medical Assessor Margaret Gibson and Member Maurice Castagnet (the Panel).
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.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
RELEVANT LEGISLATION AND GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]
[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.2.
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[6]
[6] Clause 6.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]
[7] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three medical assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]
MEDICAL ASSESSMENT UNDER REVIEW
[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Medical Assessor found that the injuries caused by the accident were a fracture of the right clavicle, a rotator cuff tear to the right shoulder, soft tissue injuries aggravating previously asymptomatic degenerative change in the cervical spine, thoracic spine and lumbar spine and an aggravation to the left knee where there was probably also a minor fracture.
The Medical Assessor also found that the accident caused a right knee effusion and pain in the left leg radiating from the lower back, but these injuries had resolved.
The Medical Assessor assessed a WPI of 5% for the cervical spine injury, a WPI of 0% for the thoracic spine injury, a WPI of 5% for the lumbar spine injury, a WPI of 8% for the right clavicle/right shoulder injury and a WPI of 4% for the left knee injury, giving rise to a permanent impairment of 20%.
There was no deduction for any pre-existing permanent impairment.
MATERIAL BEFORE THE PANEL
The insurer submitted a paginated and indexed bundle of documents comprising of 896 pages and the claimant submitted a paginated and indexed bundle of documents comprising of 1,267 pages.
There were no additional documents submitted by either party.
The Panel considered all of the material filed by the parties.
SUBMISSIONS
Insurer’s submissions
In the review application, the insurer made submissions to the President’s delegate for the purpose of having the medical assessment referred to a review panel. The Panel otherwise found that there was nothing in those submissions that were directly relevant to the Panel’s task at hand. There were no further submissions made by the insurer directly to the Panel.
Claimant’s submissions
The claimant did not make any submissions to the President’s delegate in reply to the insurer’s review application and did not make any submissions directly to the Panel.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel that is directly relevant to the matters under review, may conveniently be summarised as follows.
Pre-accident medical records
A left shoulder, X-ray and ultrasound performed on 9 February 1999 showed no evidence of bony trauma. There was evidence of supraspinatus tendonitis and limitation of movement and impingement of the supraspinous tendon beneath the acromion with abduction, but no tendon tear.[9] There was no available evidence before the Panel to show the reason for this radiological investigation.
[9] Page 781 of the claimant’s bundle.
An MRI of the lumbar spine performed on 24 July 2003 showed aged related lumbar disc desiccation, no disc protrusion or central stenosis or nerve root compressive lesion but some early lower lumbar facet joint anthropathy.[10] There was no available evidence before the Panel to show the reason for the radiological investigation.
[10] Page 779 of the claimant’s bundle.
An unspecified radiology report of 16 February 2005 (performed as a result of complaint of back pain) revealed mild reduction in bone density, presence of sclerosis in the right sacroiliac joint and the L3 superior end plates.[11]
[11] Page 269 of the claimant’s bundle.
A report from consultant physician, Dr David Manohar dated 11 October 2006, referred to an MRI scan of the right shoulder showing a full thickness tear, apparently performed following complaints of right arm pain.[12]
[12] Page 769 of the claimant’s bundle.
The clinical records of the Liverpool Medical Centre (the general practitioner (GP) records) recorded that at a consultation on 4 December 2007, there was a complaint of back pain, pain medication (Brufen and Panadeine Forte) was prescribed.[13]
[13] Page 360 pf the claimant’s bundle.
An X-ray of the right knee performed on 12 January 2009, showed narrowing of the patello-femoral and medial tibio-femoral joint compartment, minor sclerosis of the articular surfaces and marginal osteophytic lipping and degenerative change involving the tibio-fibular articulation.[14] There was no available evidence before the Panel to show the reason for the radiological investigation.
[14] Page 715 of the claimant’s bundle.
A left shoulder ultrasound performed on 18 May 2010, confirmed the presence of subscapularis tendonitis mild biceps tenosynovitis and bursal thickening and impingement and abduction.[15] According to a report from Mr Kurt Fittler, exercise physiologist, dated
18 July 2012 based on a referral for clinical exercise, there was a history of “previous left shoulder fracture; L4 fracture; bilaterial knee regeneration.” It was recorded that the referral was because of pain due to arthritis in the neck, back, hips and knees which was hindering the claimant’s capacity for functional movement and activities of daily living.[16][15] Page 688 of the claimant’s bundle.
[16] Page 944 of the claimant’s bundle.
A CT scan of the right knee performed on 25 June 2014, revealed that there was evidence of previous cruciate ligament trauma, small intra-articular effusion and tricompartmental degenerative change. According to a Discharge Referral from Fairfield Hospital, the claimant underwent a right total knee replacement on 2 March 2015.[17]
[17] Page 965 of the claimant’s bundle.
A right shoulder ultrasound performed on 30 May 2016 (on the suspicion of rotator cuff tendinitis) showed signs of supraspinatus tendinitis, fluid in the biceps tendon sheath and subdeltoid bursa, with no evidence of tear or impingement.[18]
[18] Page 1,107 of the claimant’s bundle.
A CT of lumbar spine performed on 31 May 2016 (because of complaints of low back ache) showed multilevel degenerative changes, multifactorial moderate bilateral moderate spinal canal stenosis and moderate bilaterial foraminal narrowing at L4/5.[19]
[19] Page 1,116 of the claimant’s bundle.
A left shoulder ultrasound performed on 1 June 2016 (on the suspicion of rotator cuff tendinitis) showed signs of subscapularis and supraspinatus tendinitis, with impingement, but no evidence of tear.[20]
[20] Page 1,108 of the claimant’s bundle.
According to the GP records, there was a consultation for severe back pain on 14 February 2017.[21]
[21] Page 948 of the claimant’s bundle.
On 9 and 16 October 2017, CT guided injections in the lumbar spine was performed targeting the right and left L4/5 facet joints.[22]
[22] Page 1,052 and 1,027 of the claimant’s bundle.
According to a Discharge Referral from Fairfield Hospital, the claimant underwent a left total knee replacement on 16 July 2019.[23]
[23] Page 618 of the claimant’s bundle.
A left knee ultrasound was performed on 21 February 2020 (because of swelling and pain following the total knee replacement) showed moderate suprapatellar bursal collection, quadriceps tendinitis and focal echolucency. A repeat ultrasound was recommended to exclude any partial tear.[24]
[24] Page 566 of the claimant’s bundle.
According to the GP records, there was a consultation for left knee pain on 7 May 2020. Panadeine Forte was prescribed.[25] There was a referral for a specialist (whose name is illegible) on 20 May 2020 because of left shoulder pain and stiffness.[26] There was a consultation on 28 July 2020 because of continuing “pain Lower back (sacrum region) (L) sided.”[27]
[25] Page 444 of the claimant’s bundle.
[26] Page 687 of the claimant’s bundle.
[27] Page 452 of the claimant’s bundle.
Claimant’s statement
In his application for personal injury benefits dated 10 September 2020, the claimant described his injuries as follows:
“Chest, right ribs, right shoulder injury, musculo-skeletal pains, neck injury”.[28]
[28] Page 32 of the claimant’s bundle.
Post-accident records
The GP records referred to the following consultation notes:
(a) 8 August 2020 – claimant reported that his vehicle was hit “Headon” on the right -side bumper; air bags were deployed; complained of pain in the right shoulder, right clavicle and ankle (details of any other injuries were illegible);[29]
(b) 13 August 2020 – claimant complained of chest pain, neck pain, subcostal pain;
(c) 19 August 2020 – no ankle swelling, body pain worse in right shoulder;[30]
(d) 4 September 2020 – knee pain;[31]
(e) 19 September 2020 – claimant complained of pain in right shoulder clavicle, neck and left knee; walking with the help of walking stick;
(f) 23 September 2020 – pain at the back of the head radiating to the upper back,[32] and
(g) 1 October 2020 – a CT scan of right clavicle, a MRI of the left knee and ultrasound of the left lower leg were requested.[33]
[29] Page 336 of the claimant’s bundle.
[30] Page 457 of the claimant’s bundle.
[31] Page 460 of the claimant’s bundle.
[32] Page 467 of the claimant’s bundle.
[33] Page 339 of the claimant’s bundle.
An ultrasound and X-ray of the right shoulder performed on 10 August 2020 showed a full-thickness tear of the anterior supraspinatus tendon measuring 14x14mm, subscapularis tendinopathy, subacromial/subdeltoid bursitis and features of bursal impingement.[34]
[34] Page 541 of the claimant’s bundle.
A CT scan of the right clavicle performed on 28 September 2020 showed a comminuted fracture of the medial end of the right clavicle.[35]
[35] Page 516 of the claimant’s bundle.
An MRI of the left knee performed on 19 November 2020 showed that there has been total knee replacement with no fracture identified.[36]
[36] Page 486 of the claimant’s bundle.
An MRI of the lumbar spine performed on 31 March 2021 showed bilaterial L4/L5 facet arthropathy and neutral foramina stenosis and multilevel small disc bulges.[37]
[37] Page 36 of the claimant’s bundle.
Dr Rajat Mittal
The claimant was referred to orthopaedic surgeon, Dr Rajat Mittal for right shoulder pain, left knee pain and left ankle pain.
Dr Mittal initially saw the claimant on 9 December 2020 and reviewed him on 6 January 2021 and 19 May 2021.
On the first visit, Dr Mittal noted that there was reduced left ankle range of motion, in particular around the anterior aspect.[38] There were no specific comments made about the left ankle at the subsequent visit on 6 January 2021.
[38] Page 808 of the insurer’s bundle.
Dr Mittal was of the opinion that the claimant may have sustained a small stress reaction injury from to the left knee[39] which would improve with non-operative management.[40] At the last visit on 19 May 2021, the claimant reported that his left knee pain was improving.[41] On examination, Dr Mittal noted that there was minimal tenderness.[42]
[39] Page 38 of the claimant’s bundle.
[40] Page 38 of the claimant’s bundle.
[41] Page 46 of the claimant’s bundle.
[42] Page 46 of the claimant’s bundle.
Dr Mittal referred the claimant to orthopaedic surgeon and shoulder specialist, Dr David Lieu for further management of the shoulder injury.[43]
[43] Page 38 of the claimant’s bundle.
Dr David Lieu
Dr Lieu saw the claimant on 3 February 2021 and 22 March 2021. His reports bearing the same dates are before the Panel.
Dr Lieu was of the opinion that the claimant sustained a right clavicle medial fracture which was not united. He noted that the fracture fragments were small and unlikely to heal. He believed that any sort of stabilisation procedure with or without excision of the fracture fragments would be high risk surgery both in terms the high risk of failure and given the claimant’s comorbidities.[44]
[44] Page 27 of the claimant’s bundle.
Medico-legal evidence
Dr Jonathan Herald, orthopaedic surgeon, was qualified by the claimant. He provided a report on 8 April 2022.
Dr Herald was of the opinion that the motor accident caused an aggravation of spondylosis in the lumbar and cervical spines, a soft tissue injury in the left knee which caused instability and inability to walk without support, a right shoulder rotator cuff re-tear and a right clavicle medial fracture.[45]
[45] Page 16 of the claimant’s bundle.
Dr Herald assessed WPI of 5% for the injury to the cervical spine, 5% for the injury to the lumbar spine, 8% for the injury to the right shoulder, 10% for the injury to the left knee (after a deduction of 10% for pre-existing impairment) which gave rise to a permanent impairment of 25% on the combined values charts.[46]
[46] Page 21 of the claimant’s bundle.
Dr Robert Breit, orthopaedic surgeon, was qualified by the insurer. He provided two reports dated 21 July 2022 and 14 November 2022. He was of the opinion that the claimant would have sustained injuries given the force of the accident and his age “but not to the extent that he would have one believe”.[47] On that basis, Dr Breit indicated that he could not assess individual body parts, and he instead assessed the claimant’s “overall injuries” under clauses 6.40 and 6.41 of the Guidelines (relating to inconsistency) as giving rise to WPI of 9% as a result of the accident.[48]
[47] Page 839 of the insurer’s bundle.
[48] Page 817 of the insurer’s bundle.
RE-EXAMINATION
On 24 July 2024, the claimant was re-examined by Medical Assessor Moloney on behalf of the Panel. The claimant attended in person and unaccompanied.
Pre-accident history
The claimant stated that he was now retired. He had previously worked as a manager at Woolworths. He is married and lives with his wife who he now cares for, with dementia.
Due to osteoarthritis, he has had a total knee replacement in both knees. There was a previous injury to the left shoulder which he had injured at work. He has been treated arthroscopically. He stated that prior to the accident, he was able to play golf once a week and was reasonably active despite ischaemic heart disease, high blood pressure, diabetes and Gastro-oesophageal reflux disease (GORD). He is now 84-years-old.
The motor accident
The claimant as the driver of his car, was about to enter a shopping centre when another car failed to give way and collided with the right front side of his car. Ambulance and police officers attended. He stated he had pain “everywhere” at that time, and in particular, over the right anterior shoulder due to the seatbelt. He was transported to Liverpool Hospital where he was assessed and then discharged.
History of symptoms and treatment following the motor accident
He consulted his GP, Dr Goyal when he had pain over the right shoulder, neck, back and chest wall. There was also some aggravation of left knee pain. His GP referred him for physiotherapy and to Dr Mittal to assess his knees and to Dr Lieu to assess the right shoulder.
About one month after the accident, he had severe vertigo and was admitted to Fairfield Hospital until it settled. He then developed increased low back pain which was treated by a chiropractor.
There have been no further injuries or accidents since this subject accident.
Current symptoms
There is a constant pain in the left side of the lower back which radiates in a global distribution down the left leg which swells occasionally at night in bed. He has stiffness in the right shoulder and pain radiates up to the lateral right side of his neck but no referral of pain into the right arm. He developed pain in the left wrist and hand which occurred at the time he had vertigo and fell, but he says this was not related to the motor accident.
There is persistent pain in the right side of the neck and right trapezius muscle. He states that the left shoulder is now asymptomatic. He has a poor sleep pattern due to low back pain. He is able to drive his car.
Current treatment
Present medication is Lyrica 150mg at night, Panadeine Forte one to two tablets at night, Panadol as needed and medication for his diabetes and cardiac problems.
He consults his GP when necessary and has no physiotherapy but attends a chiropractor occasionally. Recently he has been able to obtain massages by the aged care system on a weekly basis.
Clinical examination
The claimant walked into the room with a shuffling gait relying on a wheelie walker and had a very stooped posture. He states that he is right-handed. His height was measured at 168cm and weight 97.7kg.
Cervical spine
On inspection, he has a very kyphotic upper spine posture and on testing range of movement, flexion was 50% of expected range and extension 25% of expected range but this limitation in extension was related to his kyphotic posture. The medical examiner did not consider that this is asymmetry. Side bending was 50% of expected range bilaterally and rotation was 75% of expected range bilaterally with no asymmetry. On palpation, there was tenderness in the left paravertebral muscles and right trapezius muscle.
On neurological examination of the upper limbs, reflexes were of small amplitude but symmetrical with normal power and a slight decrease in sensation in the right arm in a global distribution but not including the hand. This was non-dermatomal. No muscle wasting was apparent with the circumference of the upper arms 26cm bilaterally (10cm above the olecranon process) and in the upper forearms 25cm bilaterally (5cm below the olecranon process).
Thoracic spine
On inspection, he has a very kyphotic thoracic spine with no asymmetry on testing, flexion/extension side bending and rotation which were all 50% of expected range. On palpation there was no tenderness over the thoracic spine region or guarding and no signs of radiculopathy or non-verifiable radicular complaints around the chest wall.
Lumbar spine
He was unsteady when walking independently and was unable to walk on his heels and toes and squatting was also very restricted due to this. On testing range of movement, flexion/extension was 50% of expected range as was side bending with no asymmetry. On palpation, there was tenderness over all the lumbar spines and gluteal muscles with no guarding or spasm noted in the lumbar musculature. Straight leg raise was 60° on the left and was limited by calf and knee pain and 80° on the right. Sciatic nerve root tension signs were negative.
On neurological examination of the lower limbs, reflexes were of low amplitude but equal with normal power and a slight global decrease in sensation in the left leg. No muscle wasting was apparent with the circumference of the lower thighs, 42cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves, 36cm bilaterally.
Shoulders
On inspection, there is a bony swelling over the medial clavicle due to the previous fracture and on palpation tenderness over the right acromioclavicular joint. Passive movement was possible to 150° bilaterally and was limited by generalised pain in the right shoulder region. Active movements were measured using a goniometer and repeated three times. There was a normal range of movement (ROM) of the elbows.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 100°= 5% UEI 150° Extension 50°= 0% UEI 60° Adduction 50°= 0% UEI 60° Abduction 90°= 4% UEI 150° Internal Rotation 70°= 1% UEI 80° External Rotation 70°= 0% UEI 80°
Knees
There are bilateral knee replacements. On palpation no effusions were apparent and no joint laxity. On testing range of movement, flexion was 130° on the right and 110° on the left with 0° extension bilaterally.
No radiological studies were available for inspection.
Causation and permanent impairment
Cervical spine – soft tissue injury
The treating GP recorded that the claimant had neck pain immediately after the accident. The medical examiner of the Panel accepts that there was a soft tissue injury sustained in the accident to the cervical spine. Medical Assessor Bodel came to the same conclusion. At the time of the re-examination, there was no dysmetria on testing range of movement with no guarding and no signs of radiculopathy or non-verifiable radicular complaints that were in a dermatomal pattern. This gives a classification of Diagnosis-related estimate (DRE) 1 which is 0% WPI. The medical examiner of the Panel notes that Medical Assessor Bodel recorded dysmetria, but this was not apparent at the time of the re-examination.
Thoracic spine – soft tissue injury
There was initial pain in the upper back and shoulder girdle region which occurred soon after the accident and was soft tissue in nature. At the time of the re-examination, the medical examiner of the Panel found there was no dysmetria on testing range of movement, no guarding and no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region. The medical examiner of the Panel accepts that there was a soft tissue injury sustained in the accident to the thoracic spine. This gives a classification DRE 1 which is 0% WPI. Medical Assessor Bodel came to the same conclusion.
Lumbar spine – soft tissue injury
The claimant had low back pain immediately after the accident. The medical examiner of the Panel accepts that he sustained a soft tissue injury to his lumbar spine as a result of the accident. At the time of the re-examination, there was no dysmetria on testing range of movement but a symmetrical reduction in all planes. No guarding or spasm in the lumbar musculature and no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs. This gives a classification DRE 1 which is 0% WPI.
Knees – soft tissue injury
The treating GP had recorded that the claimant had left knee pain immediately after the accident and he was referred to an orthopaedic surgeon, Dr Mittal. Dr Mittal assessed his left knee with an X-ray to check the total knee replacement which was in good position and was treated conservatively. The medical examiner of the Panel accepts that there was a soft tissue injury to the left knee caused by the accident and on testing range of movement, there is 0% WPI.
There is no documentation of an actual injury to the right knee joint at the time of the accident and he may have had some initial soreness there. However, the treating orthopaedic surgeon, Dr Mittal only recorded left knee pain when he examined him as did the other orthopaedic surgeon, Dr Lieu. If there was a soft tissue injury to the right knee caused by the accident, on today’s examination, the medical examiner of the Panel finds that such injury has now resolved.
Shoulders – fracture right clavicle
The treating GP recorded immediate pain in the right shoulder and in particular, right clavicle pain immediately after the accident. This was investigated with an MRI which confirmed a medial clavicle fracture that was not suitable for a surgical correction. The treating orthopaedic surgeon, Dr Lieu considered that although the fracture was unlikely to heal it would be high risk surgery and treated it with a CT guided cortisone injection. The medical examiner of the Panel accepts that this injury was caused by the accident.
This injury is assessed by range of movement. Due to previous injuries, the left shoulder including bursitis noted in an ultrasound in 2017, could not be used for a deduction for the non-injured shoulder. Using Figures 38, 41 and 44, a total of 10% upper extremity impairment (UEI) has been determined. Table 3 of AMA 4 converts this to 6% WPI.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination findings of Medical Assessor Moloney in relation to the injuries to the cervical spine, thoracic spine, lumbar spine, right shoulder, left knee and right knee.
CONCLUSION
The Panel has come to a different conclusion about the assessment of permanent impairment. Accordingly, the Panel revokes the certificate of Medical Assessor Bodel and issues a replacement certificate. The new certificate of the Panel is attached at the commencement of these reasons.
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