Insurance Australia Limited t/as NRMA Insurance v Edward
[2022] NSWPICMP 386
•4 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Edward [2022] NSWPICMP 386 |
| CLAIMANT: | Anthony Edward |
INSURER: | Insurance Australia Ltd t/as NRMA Insurance |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Rhys Gray |
MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 4 October 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant sustained a partial tear of the pectoralis major muscle at the myotendinous junction in a motor accident on 5 March 2017; the medical assessment concerned the extent of permanent impairment; on examination the claimant showed gross restriction of movement of the right upper limb; the claimant’s presentation before the Medical Assessors (MA) was inconsistent because the variation in movement was extensive and fell well outside slight deviations that may be expected on repeated testing; the lack of movement was also inconsistent with surveillance; further, there was no wasting in the right upper limb which is grossly inconsistent with the purported negligible range of movement displayed by the claimant to the MAs; the absence of wasting was consistent with adequate daily use; the partial tear could not medically explain the gross restriction in right shoulder/upper limb movement; Held – Panel accepted that the partial tear would cause some loss of adduction; having rejected the claimant’s account of the extent of the loss of range of movement as being inconsistent the assessment was modified in accordance with Clause 1.40 of the Motor Accident Permanent Impairment Guidelines; the partial tear of the pectoral major muscle was assessed as analogous to synovial hypertrophy (mild) glenohumeral joint at 4% permanent impairment. |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 29 March 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is NOT GREATER THAN 10%. |
REASONS
BACKGROUND
Mr Edward (the claimant) suffered injury in a motor accident on 5 March 2017. The insured vehicle failed to slow down and collided into the rear of the claimant’s vehicle (the motor accident).[1]
[1] Insured bundle, page 26.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Edward any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. 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.[3]
[3] Clause 1.2 of the Guidelines.
Mr Edward was assessed by Medical Assessor Wallace who provided a medical assessment dated 29 March 2021. Medical Assessor Wallace assessed Mr Edward’s permanent impairment caused by the motor accident as greater than 10%.
The present application is a review of a medical assessment pursuant to s 63 the MAC Act.
On 23 July 2021, the delegate of the President referred the medical assessment to the Review Panel (the Panel) as they were 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.[4]
[4] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 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 Personal Injury Commission (the Commission).
CONDUCT OF THE REVIEW
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 merit reviewer or a medical assessor.[5]
[5] 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 and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
On 19 October 2021 the Panel issued a Direction to the parties which required respective bundles of documents to be filed.
On 22 October 2021 the insurer’s legal practitioners advised the claimant’s legal practitioner’s that it will “submit the further submissions dated 2 March 2021, surveillance footage and clinical records for consideration by the Review panel, in the interests of justice”.
On that day the insurer’s legal representatives filed its bundle of documents in the Commissions’ portal incorrectly addressing the letter to the State Insurance Regulatory Authority and for the attention of the “SIRA Review Panel”. The insurer stated:
“The Insurer respectfully submits that the Review Panel consider the following evidence, which had not been forwarded to Assessor Wallace (for procedural reasons) at the time of the of the original medical assessment.”
The letter referred to eight discrete categories of documents and material, two of which relate to surveillance footage over periods in July and December 2020. The letter noted that the documents and footage should be considered in the interests of justice and that it “provides an accurate description of the Claimants capabilities”. It concluded that the claimant was provided with the documents and the surveillance in March 2021.
By letter dated 26 October 2021 the claimant adopted the same inaccuracy as the insurer by addressing the correspondence to the “SIRA Review Panel”. The claimant opposed the inclusion of the eight discrete categories of documents and surveillance.
The Panel convened on 29 October 2021 and determined to admit the further material on Review subject to Mr Edward having a reasonable period to provide evidence in response. Reasons were subsequently provided to the parties.[7] In those orders the claimant was directed to file any evidence in reply by 17 January 2022 and given liberty to apply if there was objection to the proposed timetable.
[7] Insurance Australia Ltd v Edward [2021] NSWPICMP 207 (Edward (No 1)).
There was no communication objecting to the proposed timetable as set out in Edwards (No 1). Further, the claimant filed further evidence in response to the insurer’s further evidence.
Statutory provisions/Guidelines
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters”. Medical assessment matters include “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%.”
Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the 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 therefore 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 at 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, therefore, 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. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[8]. In Raina v CIC Allianz Insurance Ltd[9] 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), 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.”
[8] See s 3B(2) of the CL Act.
[9] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE REVIEW PANEL
The insurer filed a bundle of documents in accordance with the initial Direction and the claimant filed further material pursuant to the orders made in Edward (No 1).
Claimant’s statement
Mr Edward provided a statement dated 11 January 2022.[10] He stated that he had an X-ray of the lower back in late 2011. Pain resolved within a short period. He also had an X-ray and ultrasound left elbow and X-ray chest and ribs for pain in these areas in 2014 possibly due to heavy work and gym training which again recovered.
[10] Claimant’s bundle, page 6.
Mr Edward stated that he had a motor vehicle accident in September 2012 and suffered neck and back pain. He recovered fully from that accident and made no claim and did not receive any compensation.
Mr Edward stated that he had a motor vehicle accident on 10 February 2019 when his vehicle was rear ended causing it to hit a tree (the 2019 motor vehicle accident). He suffered injuries to the left arm, back and left leg which improved with time, and he has now recovered from it.
Mr Edward provided evidence on the video surveillance. He said the footage on 27 July 2020 showed him carrying a light bag which weighed less than one kilogram. He stated that the video showing him emptying a rubbish bin involved lifting a bin and placing rubbish in it and he was not moving the bin itself.
Mr Edward agreed that he went to the gym and said that he never denied he did not. He said he tried to stay active but did not do any exercises which would strain his right arm, shoulder or neck.
Mr Edward stated that he works as a security guard on a part-time basis, usually two times per week on a Friday and Saturday and rarely on a Thursday. This is light work compared with his pre-accident work which involved heavy lifting which he can no longer do. On the other days he would be “sitting at home or with my partner, doing very little”.
Mr Edward referred to the footage said to be on 26 December 2020 when he was standing next to the open door of a truck. He stated that the date is wrong, and this occurred in 2021.
Mr Edward completed a claim form on 30 May 2017. In the claim form Mr Edward noted injuries to the neck, back, left shoulder and middle chest - anterior - pectoralis major.[11]
[11] Insurer’s bundle, page 27.
Pre-motor accident records
An X-ray of the lumbosacral spine dated 10 December 2011 described a normal appearance.[12]
[12] Insurer’s bundle, page 354.
An X-ray of the chest and left ribs and scan of the left elbow dated 15 May 2014 are reported as normal.[13]
[13] Insurer’s bundle, page 355.
A left shoulder ultrasound dated 16 May 2014 showed left sided supraspinatus tendinosis associated with subacromial bursitis.[14] An ultrasound guided injection into the left subacromial bursa was performed on 21 May 2014.
[14] Insurer’s bundle, page 356.
A hospital admission record dated 5 September 2012 referred to a rear-ended motor vehicle accident with tenderness in the left trapezius and some pain in the right knee and full range of movement of the neck and both shoulders.[15] Other notes refer to neck and lumbar spine pain.[16]
[15] Insurer’s bundle, page 304.
[16] Insurer’s bundle, page 345.
Radiology
An X-ray of the chest and right ribs on 13 March 2017 is reported as showing a possible undisplaced fracture of the right 8th rib.[17] An X-ray of the right shoulder on 13 March 2017 showed no fracture, no dislocation and no joint effusion.[18]
[17] Insurer’s bundle, pages 130 and 309.
[18] Insurer’s bundle, page 308.
A bilateral shoulder ultrasound dated 13 March 2017 is reported as showing signs of bilateral subscapularis with impingement in the right shoulder. No tears were identified.[19]
[19] Insurer’s bundle, page 53
An MRI scan dated 28 March 2017 showed a partial thickness tear of the pectoralis major muscle, at the myotendinous junction, with associated oedema tracking anteriorly from the level of the tear.[20] There was no complete ‘rupture’ or tear. There was no abnormality or injury to the right shoulder joint, with a normal right rotator cuff with no subacromial bursitis.
[20] Insurer’s bundle, page 33.
General practitioner
Mr Edward attended his general practitioner on 10 March 2017 recording pain in the neck, back, wrist and shoulders, left greater than right.[21] The doctor prescribed Panadeine Forte. This history was subsequently confirmed by the general practitioner in a written report.[22] He noted on examination slight reduction in the range of motion. Left shoulder ++ tenderness.
[21] Insurer’s bundle, page 38.
[22] Insurer’s report, page 424.
A clinical note dated 13 March 2017 reported increasing pain in the right shoulder and referral for an ultrasound.[23] A referral by the general practitioner dated 20 March 2017 referred to back, shoulder and neck pain post motor vehicle accident.[24]
[23] Insurer’s bundle, page 176.
[24] Insurer’s bundle, page 70.
A Liverpool After Hours Clinic note dated 13 March 2017 and signed by Dr Seeto referred to right shoulder drooped due to pain and swelling and tenderness over the left upper chest.[25]
[25] Insurer’s bundle, page 115.
A medical certificate dated 27 March 2017 referred to a medical diagnosis of whiplash, right and left shoulder injury and back pain.[26]
[26] Insurer’s bundle, page 227.
A medical certificate dated 30 March 2017 specified a diagnosis of whiplash, back pain, left shoulder and chest including pectoralis major.[27]
[27] Insurer’s bundle, page 228.
A clinical note dated 19 April 2017 recorded that the motor accident was affecting the claimant’s gym training and that he was “still doing legs but no upper body”.[28]
[28] Insurer’s bundle, page 42.
A clinical note dated 19 June 2017 recorded that Mr Edward was “still unable to do proper bench press due to the torn chest muscle.”[29]
[29] Insurer’s bundle, page 44.
On 8 August 2017 the general practitioner certified Mr Edward fit for work starting with modified duties and increasing slowly.[30] On 26 September 2017 the general practitioner reported that Mr Edward had right shoulder issues and was “still unable to train as normal”.[31] A referral was written for consultation with Dr Herald.
[30] Insurer’s bundle, page 211.
[31] Insurer’s bundle, page 372.
On 23 October 2017 the general practitioner noted that pain was “stable but variable, worse with significant activity”. Reference was made to “Gym ++” and use of supplements. The doctor continued to prescribe Panadeine Forte.
On 27 November 2017 the claimant expressed interest in “spinal injections” and was advised to obtain a CT scan of the neck and back. On 15 January 2018 the general practitioner noted:[32]
“requested clearance certificiate as keen to work
Advised that I am happy to give clearance ofr [sic for] light duty
His claim manager requested full clearance
Advised him to seek clarification & r/v 1 week”
[32] Insurer’s bundle, page 373
The general practitioner continued to prescribe Panadeine Forte. On 10 April 2018 the doctor recorded:[33]
“Pain stable
Pain after gym but loves it & does not want to stop”
[33] Insurer’s bundle, page 374.
On 24 April 2018 the general practitioner recorded:[34]
“pain stable
Gym ++++ reg
Still issues with the torn muscle
Body image issues”
[34] Insurer’s bundle, page 375.
In September, October and November 2018, the general practitioner noted persistent pain and a request by the claimant for stronger medications.[35]
[35] Insurer’s bundle, page 376.
On 15 January 2019 Dr Hatoum recorded:[36]
“Pain stable
anxious re future
wants repair”
[36] Insurer’s bundle, page 378.
The general practitioner noted on 13 February 2019 a motor vehicle accident that occurred on 10 February 2019 when the claimant’s car was back ended and pushed into a tree.[37] Pain was reported in the neck with pins and needles and back pain radiating to the left leg and shoulder pain. Endone was prescribed.
[37] Insurer’s bundle, page 49.
The general practitioner noted on 25 February 2019 that the second motor accident was an exacerbation of the “neck and back injuries that were getting better”.[38]
[38] Insurer’s bundle, page 50.
A certificate of capacity completed by Dr Hatoum certified Mr Edward unfit for work from 10 February 2019 to 10 April 2019. The injuries specified were whiplash, nasal fracture, back pain, rotator cuff (shoulders) and anxiety.[39] On 1 April 2019 Dr Hatoum referred Mr Edward for opinion regarding nasal septum deviation.[40]
[39] Insurer’s bundle, page 215.
[40] Insurer’s bundle, page 218.
A further certificate of capacity dated 25 June 2019 certified Mr Edward fit for four hours per day, four days per week from 27 May 2019 to 25 June 2019.[41]
[41] Insurer’s bundle, page 220.
Dr Jonathan Herald
Dr Herald provided a report dated 4 March 2019[42], described as a review, noting a history
of increasing shoulder pain and stiffness. Examination showed forward elevation to 110 degrees, external rotation to 20 degrees and internal rotation to his waist. End range stiffness and motion of the right shoulder was limited by pain. The doctor recommended repair of the pec major rupture and possible arthroscopy and capsular release if Mr Edward “does have a frozen shoulder”.[42] Insurer’s bundle, page 31.
Dr Herald provided a further report dated 1 March 2020[43] which confirmed that he had examined Mr Edward on one occasion only on 04 March 2019. The doctor noted Mr Edward’s reluctance to undergo surgery due to a friend suffering post-operative complications. Dr Herald noted elevation right shoulder to about 110 degrees - he did have end range stiffness and motion was limited by pain. In 2019, Dr Herald noted a marked deformity of his pec major with a retracted pec major muscle. This was confirmed on MRI scans that he had had a pec major rupture.
[43] AD6.
Dr Herald opined that he could not see any other cause, other than the motor accident, for the shoulder weakness and the pec major rupture. The doctor opined that the tear and frozen shoulder were caused by the motor accident and confirmed that he recommended surgery to repair the tear.
Qualified opinions
Dr Thomson provided a report dated 14 January 2020.[44] Mr Edward then advised that the body parts affected were the right pectoral/shoulder area and less so at the neck. In particular, that the other areas injured by the motor accident had recovered.
[44] Insurer’s bundle, page 11.
Dr Thomson noted the MRI scan of the right shoulder and diagnosed a partial thickness tear of pectoralis major with possible concomitant right frozen shoulder attributable to the motor accident on 5 March 2017. He noted restriction of right shoulder movements (abduction 50 degrees and flexion 40 degrees). In a short supplementary report, the doctor assessed Mr Edward at 14% impairment all due to the right upper extremity.[45]
[45] Insurer’s bundle, page 16.
Dr Thomson provided a supplementary report dated 12 January 2022 commenting on the surveillance.[46] The doctor stated that the bulk of the surveillance shows Mr Edward in a supervisory role at the RSL Club. On one occasion, 26 December 2020 he “momentarily abduct the right shoulder at approximately 50-60” degrees. Similar range was shown opening a boot in July 2020. On other occasions “the right upper limb was usually held in a fully dependent position”. This active abduction noted on surveillance, inconsistent with active movement measured in his report of January 2020.
[46] Claimant’s bundle, page 8.
Dr Thomson stated that the right shoulder abduction in the amount noted was “momentary in every instance and not inconsistent with range of motion” reported to him in January 2020. He saw no reason to vary his previous opinion which accorded with that provided by Dr Wallace in March 2021.
Dr Graham Hall was qualified by the insurer and provided a report dated 20 November 2018.[47] The doctor diagnosed an undisplaced fracture of the right humerus and tear of the right pectoralis major muscle. There was no formal physical treatment at the time. Neck discomfort was noted when Mr Edward leaned forward “for a long time”.
[47] Insurer’s bundle, page 127.
Physical examination showed full range of movement in the neck and back with pain over the right pectoral muscle and tenderness in the adjacent upper arm. Dr Hall diagnosed a tear of the right pectoralis major muscle and recommended referral to an orthopaedic surgeon as he believed surgical repair could be indicated with no neck or back impairment.
Ms Mallinson from Benchmark Rehabilitation assessed Mr Edward in July 2017.[48] Mr Edward informed the author that he drove an automatic Volvo prime mover prior to the motor accident. The report made recommendations about the return to work.
[48] Insurer’s bundle, page 151.
The further report dated 30 October 2017 noted that Mr Edward returned to work in August 2017.[49] This was confirmed in a discussion on 3 October 2017 and text correspondence on 20 October 2017.
[49] Insurer’s bundle, page 168.
2019 motor accident
The hospital progress notes refer to the 2019 motor accident when the claimant’s motor vehicle colliding with a tree. On presentation Mr Edward was complaining of cervical pain with pins and needles and lumbar spine pain.[50] The ambulance report noted complaints of neck pain and lower lumbar pain radiating down the left leg.[51]
[50] Insurer’s bundle, page 312.
[51] Insurer’s bundle, page 321.
On 1 April 2019 Dr Hatoum referred Mr Edward for opinion and management of the nasal septum deviation to Dr Mooney.[52] The insurer for the 2019 motor accident approved the consultation with an ENT surgeon on a without prejudice basis.[53]
[52] Insurer’s bundle, page 466.
[53] Insurer’s bundle, page 464.
On 2 April 2019 Mr Edward completed a claim form for the 2019 motor accident.[54] He stated that his injuries were “whiplash, injury to back, nasal fracture, injury to shoulders, anxiety/shock”. The claim form attached the certificate from Dr Hatoum dated 26 March 2019.[55] That certificate certified injuries as “whiplash, nasal fracture ? await scan, back pain ? disc prolapse + rotator cuff (shoulders) + anxiety/phobia”.
[54] Insurer’s bundle, page 490.
[55] Insurer’s bundle, page 486.
By letter dated 2 July 2019 the insurer for the 2019 motor accident stated that the injuries fell outside the definition of “minor injury”.[56]
[56] Insurer’s bundle, page 502.
Other records
On 29 April 2019 AAI Ltd approved statutory benefits for up to six months for the motor vehicle accident on 10 February 2019.[57]
[57] Insurer’s bundle, page 240.
The surveillance has been viewed by the Panel.
SUBMISSIONS
At the outset we observe that this is a new assessment and there are various submissions directed to persuading the President’s delegate[58] that there was error. Some of the submissions are not particularly relevant to our task save that it suggests that the Panel refrain from repeating the same error.
[58] Or the relevant predecessor.
The claimant filed various submissions opposing the insurer’s application to admit the material. We have addressed these submissions in Edward (No 1) and otherwise considered them where relevant.
Claimant’s submissions dated 15 June 2021[59]
[59] Insurer’s bundle, page 257.
These submissions are generally directed to contesting the insurer’s submissions of error in the original assessment. The claimant also submitted:
- there is no evidence of injury at the gym or that the gym activities exacerbated the injury, and
- there is no evidence of injury to the right shoulder in the subsequent motor vehicle accident.
Insurer’s submissions dated 8 April 2020
The insurer referred to inconsistencies in the claim form between allegations of injury to the left shoulder and an allegation of injury to the right shoulder raising “suspicion as to why there is a change in which shoulder was injured” and “querying whether there was an undisclosed intervening event”.[60]
[60] Insurer’s bundle, page 145.
The insurer submitted that if the claimant does have a frozen shoulder, then “it is because of the following”:
- Mr Edward did not mitigate his losses by having appropriate treatment;
- he caused the injury by attending the gym, and/or
- it was caused by the subsequent motor accident in 2019.
The insurer noted that a frozen shoulder occurred when scar tissue is present in the shoulder joint.
The insurer submitted that Mr Edward advised Dr Hall and Benchmark Rehabilitation that he was driving trucks and “he is a lot more abled than what he claims to be”.[61] It also referred to the wide range of movement viewed by Benchmark Rehabilitation and that Dr Hall found full range of movement of the neck and there was no complaint of back pain to Dr Hall.
[61] Insurer’s bundle, page 146.
The insurer referred to the subsequent motor accident which was significant. The general practitioner recorded neck pain with pins and needles and shoulder pain but did not specify which shoulder.
The insurer submitted that the rib fracture was “not confirmed”.
Insurer’s review submissions dated 21 May 2021[62]
[62] Insurer’s bundle, page 252.
The insurer referred to the issues of causation in the matter and referred generally, without any specifics to “the medical documentation”. There was also reference to inconsistencies to Benchmark Rehabilitation and the subsequent motor vehicle accident.[63]
[63] Insurer’s bundle, page 254.
In respect of the subsequent motor vehicle accident, the insurer noted that the airbags were deployed, and that the general practitioner noted that a shoulder was injured in that accident without specifying which shoulder.
The insurer also referred to the Medical Assessor failing to address the ongoing gym activities and lack of treatment for “an exorbitant amount of time”.[64]
Insurer’s submissions dated 2 March 2021[65]
[64] Insurer’s bundle, page 255.
[65] Insurer’s bundle, page 263.
These submissions were made in relation to the material that was not before the Medical Assessor. The documents have now been admitted on the Review in Edwards (No 1).
The insurer submitted the claimant failed to disclose a prior motor vehicle accident in 2012 and alleged that he did not sustain any injuries. The insurer queried this because he reported to his general practitioner that he was awaiting a settlement “of the old claim arising with Farah lawyer”.
Previous investigations showed an X-ray in the lumbosacral spine on 10 December 2011 and left elbow, chest and left rib scans in May 2014. It was unclear whether these related to the 2012 motor accident. Mr Edward also underwent an ultrasound injection into the left shoulder in May 2014 for treatment purposes.
The claimant was involved in a motor accident in 2019 when he was rear-ended and collided with a tree and sustained a neck injury, aggravation of back pain, aggravation of shoulder problems and anxiety.
The insurer referred to the surveillance footage which showed the claimant working long hours despite his allegation that he was totally incapacitated for work and had withheld his employment status from the insurer. Careful consideration should be given to the footage which shows “free movements with no evident restrictions”.[66]
[66] Insurer’s bundle, page 265.
RE-EXAMINATION
It was determined that Mr Edward should be examined by both Medical Assessors on the Panel particularly in circumstances where the insurer had made allegations of exaggeration.
Mr Edward was examined by Medical Assessor Gray and Medical Assessor Moloney on 19 August 2022. The examination has been delayed on a number of occasions for a variety of reasons including the COVID-19 pandemic. The joint examination report is as follows.
“Mr Edward came into the consultation with a frank depressed affect. He walked with his right upper limb dependent and apparently immobile. He was cooperative, but his answers to questions were variable: sometimes highly specific and to the point; then at other times, quite vague and ‘not remembering’. He initially volunteered that he was, ‘dying slowly’ because of the effects of the subject motor accident.
The reasons for the requirement of a re-examination were outlined to Mr Edward. Further, that we are required to provide a report, which would be sent to the relevant parties and also that aspects could be on the internet. He was advised that the Panel had viewed a surveillance video of him from 2020 that he acknowledged.
Background/Work History
Mr Edward is now 31, born in Iraq where he did his initial schooling, then migrated with his family to Australia in 2002 at the age of 13. He said he obtained qualifications as a diesel mechanic through TAFE and subsequently mostly did truck driving. He said he had been working full-time as a truck driver with his brother’s company, until the subject motor accident in March 2017; later, he modified this by saying that he had worked for his brother as a truck driver full-time, ‘for a while’.
After the motor accident, he said he was off work for some three months before attempting to return to work. He said he was unable to do the heavier aspects required of truck driving because of pain, principally around his right shoulder girdle. With the requirement for lifting, he said he really didn’t return to any fulltime truck driving activities; his brother sold the company and he lost that job.
Mr Edward said that subsequently he had not returned to any consistent work activity, apart from intermittent light security work that mostly involved monitoring. However, the Assessors’ impression was that Mr Edward appeared somewhat evasive in giving a specific history of his work activities, both before and post the subject motor accident; despite repeat questioning, the Assessors were unable to obtain a definite timeline of work history. He is not working currently.
Mr Edward said that he is single and living with his family in their own home. He has a partner, who lives with her family, and they have recently had a child.
In terms of recreation/sporting activity, he said that in the past he had undertaken regular gym work, golf, basketball and dancing. He said he is currently unable to lift anything, and he attends the gym to do some treadmill work only, with no other regular exercise program.
Mr Edward said he does not smoke cigarettes, does not drink alcohol and takes no illicit drugs. He said he had not taken any non-prescribed anabolic steroids.
He has not had a workers compensation claim.
Mr Edward said there had been a previous motor accident that he could not date but agreed it was probably 2012. He said he was the driver of a vehicle, hit in the rear. He initially said there were no injuries, but then said he was in, ‘shock’ with numbness around the neck and was transferred by ambulance. He said it was a minor accident with no material time off work and there had been no settlement, although his car was paid for.
There was a subsequent motor accident on 10 February 2019: Mr Edward said he was the driver and sole occupant of a Mercedes, hit from behind; he then lost control and his vehicle hit a tree; he was wearing a seatbelt and the airbag deployed. The ambulance and police attended, and he was transferred to hospital. He said there was an extensive wait in the emergency department so he left hospital and attended his own general practitioner who organised medications and an x-ray. He recalled a left shoulder injury and a fractured nose.
Mr Edward said that after the 2019 accident all the symptoms he had before that accident had become more marked, ‘more worse’. He said he had experienced increase in back pain and left leg pain, with the onset of pins and needles in the left leg since the second accident.
History of Present Accident
Mr Edward said he was driving home from work in his Mercedes coupe, slowing and turning to the left at an intersection without traffic lights. He recalled being hit from behind by a station wagon type vehicle. He said he was wearing a seatbelt and insisted that the airbags did go off. He said immediately after the accident he, ‘didn’t feel much’. He called a friend to pick him up and his vehicle required towing away.
He said initially he didn’t feel particularly injured, at one day post-accident, ‘I didn’t feel much’. On the second day post-accident, he said he had some soreness and skin discolouration occurring across his anterior chest that he related to the, ‘belt’ (seat belt); the Assessors advised that this bruising across his chest would be inconsistent with a rear injury but consistent with the history of a frontal crash in the subsequent motor accident, to which he did not agree.
Over the subsequent days, he said he felt, ‘worse’ particularly in his neck, back, shoulders and chest.
At about five days he attended his own doctor. His symptoms were more right sided, particularly about the right shoulder. He said that his general practitioner organised, ‘X-rays and stuff’ that included physiotherapy and medication.
Mr Edward was asked whether he got back to work and he said at some stage he tried getting back to normal truck work but couldn’t do it, then part-time light duties, mainly doing forklift driving that didn’t require lifting. He said he had been prescribed Endone when the pain became worse.
Current symptoms
His major problem he said at the moment is his right shoulder, over the upper pectoral region on the right, over the right deltoid region and the right scapular region - generally the right shoulder girdle - with pain extending down to the inner aspect of the right elbow, associated with numbness in the dorsal aspect of the lateral three fingers.
He was concerned that a, ‘spot’ in the centre of his chest was getting darker that he thought might be related to the motor accident.
He said that a tear in his right pectoral muscle was making his right shoulder ‘drop’. He said he was unable to use the right upper limb at all with grossly restricted movement. The symptoms in the right forearm appeared similar to an ulnar neuritis on the right.
With regard to the cervical spine, he said there was, ‘a bit’ in the neck on the right with some posterior scapular pain. There were no other specific cervical symptoms currently and no definite radicular symptoms.
With regard to the lumbar spine, he said there was occasional low back pain, particularly related to long trips of 2-3 hours of driving and this might be associated with some pins and needles in the right leg. He said he was able to function on the treadmill, ‘okay half an hour on and off’. He said that the symptoms on the right side of the neck, ‘come and go’ but the right shoulder pain is constant.
He specifically described paraesthesia from the anterior aspect of the right deltoid area, the inner aspect of the right elbow, as far as the dorsal aspect of the radial right finger.
He said that he was having no particular treatment at present, apart from medication, and he recently purchased a ‘massage chair’.
Currently, he takes multiple medications, including anti-inflammatories, simple analgesics and narcotic analgesia, including:
· Fenac 1 tds
· Tramal 50mg, 1 tds
· Endone 5mg, 1-2 per day but up to 3 per day
· Voltaren 50mg, 1 tds
· Prodeine 1 bd
· Codapane Forte 1 bd.
He said this medication is for a combination of right pectoral, right shoulder and right elbow pain.
Assessor Comment: attempting to obtain a consistent history proved very difficult for both Assessors. Despite careful and repeated questioning, in our assessment, the history related by Mr Edward was quite confusing and variably inconsistent.
Reviewing the History
Mr Edward said that there had been no past history of low back pain or neck pain and said he had never had a problem with either shoulder in the past before March 2017.
He emphasised that he had been recommended to see Dr Herald, orthopaedic surgeon early, soon after the motor accident, to deal with the pectoral muscle problem on the right. He also said that he had been advised to have prompt surgery for this to stop, ‘a frozen shoulder’. However, accompanying file material (Report, Dr Herald of 1 March 2020) documented that he first attended Dr Herald on 4 March 2019, post the subsequent motor accident of 10 February 2019. His memory was that Dr Herald advised to deal with the chest and shoulder disruption and then later to do keyhole surgery for a frozen shoulder.
Mr Edward then became overtly emotional in describing how a 35 year old relative of his was, ‘losing his right arm’. However, despite further questioning, the details of whether this arm was amputated or not, or the circumstances of why this may have been required, were not forthcoming from Mr Edward.
Mr Edward then again emphasised that he had a fully torn pectoral muscle on the right, that he had been referred to a surgeon and that it had required prompt repair; it was because it hadn’t been repaired, that he believed he had a frozen shoulder, and that the situation was deteriorating quite quickly with time. His main concern was the pain and lack of function of the right upper limb.
Examination
On examination, Mr Edward was generally cooperative, but some aspects of the history taking were vague with inconsistencies and aspects of the medical assessment were inconsistent. He had a somewhat depressed affect.
Height 188cm and weight 120k (BMI = 34). Right-handed.
Mr Edward moved readily about the examination room, but with barely perceptible movement of the right upper limb. His right upper limb was apparently actively maintained straight and rigidly at his side, throughout the examination and history taking. He held the right shoulder at a lower level than the left.
There were dominant tattoos over the whole of the right upper limb. There was some distal discolouration of the right upper limb from lengthy dependency; however, there was no temperature gradient between the upper limbs and no trophic changes were evident.
There was a mild thoracic scoliosis convex to the left, but with difficulty in assessing the fixed and mobile components clinically.
In the cervical spine, there were restricted active movements of approximately ¼ normal in flexion/extension, lateral tilt and rotations. There was no dysmetria.
On palpation, there was some tenderness over the lower paracervical musculature on the right and the adjacent upper parathoracic musculature, without guarding.
Throughout the examination of the cervical spine, there was evidence of abnormal pain behaviour with grimacing, pulling away and some degree of hyperventilation. There were no specific radicular complaints.
About the right shoulder girdle, there was generalised tenderness - pan right shoulder girdle tenderness, with no localising tenderness; the tenderness extended over the right trapezius, the right scapula, the right deltoid and proximal pectoral area, the right AC joint, the right lateral collarbone and laterally over the upper arm.
The right pectoralis major tendon was palpable and in continuity, albeit with evidence of chronic partial damage to the lateral aspect and consistent with the MRI description of injury.
Upper limb reflexes were symmetrical but reduced. Lower limb reflexes were symmetrical and normal.
The circumference of both upper arms, measured at the same level above the tip of each olecranon, was equal and measured 35cm; the maximal circumference of both forearms was equal, measuring 32cm.
The active range of movement of the shoulders, measured with a goniometer, as follows:
Movement
Right (°)
Left (°)
Flexion
20/50
160/90/80
Extension
0/10
40/40
Adduction
-10/10
30/60
Abduction
20/40
120/100/80
Shoulder internal and external rotation on the right were negligible and could not be assessed. There was full internal rotation/external rotation on the left.
Attempted passive movement of the right shoulder showed the shoulder to be rigidly fixed with no apparent movement, despite some active movements demonstrated, as per the table above.
The Assessors concluded that this rigidity was due to active restriction of movement at the right shoulder joint by Mr Edward.
Note: this anomaly was brought to Mr Edward’s attention - he said that pain was present in the shoulder and that the shoulder could not move, despite being reminded that there was some active range of movement.
The inconsistencies between shoulder range of movement measurements (above table) were brought to Mr Edward’s attention, and the ranges remeasured multiply. He said that he was unable to actively move the right shoulder further and that the reason for the changes in ranges of movement was because of pain making him, ‘tired’.
In assessing consistency of movement of the shoulders, it was noted that flexion varied between 20 and 50° on the right. Abduction between 20 and 40°.
Despite this active range, attempted passive movements showed negligible movements that the Panel considered was related to active restriction of movement by the claimant.
The Assessors, after further shoulder examination and measurements, found inconsistencies in both the right and left shoulder movements.
On assessing power in the upper limbs, the power of the left upper limb was within normal limits.
In the right upper limb, there was no obvious active movement against resistance in all the proximal muscle groups of the right upper limb.
There was subjective decrease in sensation globally in the right upper limb. There were no specific trophic changes in either upper limb.
He was able to walk on his heels and toes without undue concern. He said that his squat was terminally limited by the onset of low back pain.
The movements of the lumbar spine were symmetrical with no dysmetria but with terminal limitation of movements in each direction. Straight leg raising was restricted to 30° bilaterally by complaint of low back pain. There were no lumbar radicular symptoms.
Lower limb power and sensation were within normal limits. The circumference of both thighs was equal, measuring 54cm. The maximal circumference of both calves was equal, measuring 40cm.
Some subjective decrease in sensation on the back of the right calf and the medial aspect of the right ankle and the sole of the right foot. On the left side, some subjective decrease in sensation on the medial aspect of the distal thigh.
No investigations were available for review.
Further Review of Documentation with Mr Edward
With regard to the former motor accident, Mr Edward said that the symptoms from that had resolved.
With regard to various x-rays of the left arm and chest in May 2014 - the claimant said, ‘whatever is there, is there’ saying he could not recall.
He said he was unable to recall any injection of the left shoulder with ultrasound in May 2014.
Regarding the subject motor accident and returning to work/truck driving - Mr Edward said that he returned to work in about August 2017 on light duties but did not maintain these.
With regard to the rehab report of 30 October 2017, stating that the claimant had returned to work in August 2017, Mr Edward stated that the rehab was happy with his being on light duties.
With regard to ‘lack of surgical treatment caused the right frozen shoulder’
Mr Edward was adamant that he had attended Dr Herald early post the subject motor accident and that Dr Herald was going to ‘join the chest and the shoulder and use keyhole surgery for a frozen shoulder’. He also blamed this delay on causing increasing symptoms and being the predominant cause of lack of use of the right upper limb and continuing symptoms, as outlined in the report earlier.
With regard to ‘gym work caused further injury to the tear and/or right shoulder’
The issue of the surveillance images was discussed with Mr Edward. He was advised that the range of both flexion and abduction of the right shoulder, was considerably greater than currently. He said he acknowledged that his range of movement earlier had been greater but, because he had not had the operation, the shoulder situation had deteriorated to the present state.
Dr G Hatoum’s entry of 10 March 2017 noted pain in the neck, back, wrist and shoulders, left greater than right. Noted that he refused to go to hospital and the pain was worse the day after and since then.
Noted under examination that the left shoulder was markedly tender with marked pain on the day of consultation. Presented with acne the same day.
‘Left shoulder ++ tenderness
today pain ++’
No reference to right shoulder.
The issue of left versus right shoulders was raised with Mr Edward - he was adamant that the left shoulder was not injured in the subject motor accident and that the symptom documentation should refer to the right side.
Entry 13 March 2017 - now reference to, ‘Post MVA pain in the R shoulder ++’. Request for US right shoulder.
Entry of 17 March 2017 was discussed Mr Edward. He was unaware of any humeral fracture or rib fracture that was raised in that entry by Dr Hatoum. ‘Humeral # noted at the hospital (Spiral)’ and ‘CXR report suggests 8th rib fracture’. Endone prescribed.
To direct questioning, Mr Edward said he knew nothing of such injuries and denied any intercurrent injury.
Entry 20 March 2017 ‘Pain esp in the back & the R pectoral /shoulder area’.
Referral to Dr Herald noted. Mr Edward was adamant that he attended Dr Herald at that stage, and not after the second motor accident in 2019, despite Dr Herald’s documentation.
Entry 19 June 2017 - the ability to do a bench press, albeit not, ‘proper’ - this was raised with Mr Edward.
He said that he was very restricted at that stage, particularly just using the left upper limb.
The Assessors raised the documentation of his general practitioner of having acne, ED, muscle tear, abnormal liver function tests and his GP refusing a request for anabolic steroids - Mr Edward denied the use of any anabolic steroid or any other non-prescribed medication.
Entry 26 September 2017 - Dr Hatoum noted a further letter to Dr J Herald. This was raised with Mr Edward, who said that he definitely did go to that appointment at that stage.
However, with regard to advice to travel, in Dr Hatoum’s notes of 26 September 2017, Mr Edward was adamant that he could not recall going to India or elsewhere but did remember going on some type of, ‘tour’.
Entry of Dr Hatoum of 23 October 2017, it was brought to Mr Edward’s attention that his general practitioner noted,
‘Gym ++, Acne, admits to use of supplements ++’. Mr Edward said that he was, ‘trying to do gym’, further saying that, ‘not really’ and that he stayed off for three months. He also said he had never taken non-prescribed steroids.
In the Entry of 15 January 2018, Dr Hatoum noted, ‘requested clearance certificate as keen to work’. Mr Edward said that he tried to work but, ‘no luck at work’. He said they gave him things that were too heavy for him to do with his condition.
Entry 10 April 2018 noted by his general practitioner, ‘pain after gym but loves it and does not want to stop’ - the details of this entry were raised with Mr Edward. He said that he was only on the treadmill at gym, just maintaining his general fitness, implying he was doing no upper limb work at that stage.
Further noted, ‘asking for blood tests as feeling down, despite Huge exc programme’ - this entry was raised with Mr Edward, who said he was not doing a huge exercise program at that stage; if he did do exercise, it was only on the treadmill.
Entry 24 April 2018 Dr Hatoum
‘pain stable
Gym ++++ reg
still issues with the torn muscle
body image issues’
To direct questioning, Mr Edward said that at that stage he was on treadmill only and had considerable pain.
Entry 8 August 2018, Dr Hatoum noted,
‘still +++ gym
Loves the gym as makes him feel better & reduces the pain
Activity (movement ++ to reduce stiffness’) - this detail was shared with Mr Edward who said, ‘Of course’.
Further, issues of addiction/abuse noted along with anxiety and affect and mood management with pain - Mr Edward advised the Assessors that he was aware of these issues.
Entry 15 January 2019 - pain stable, anxious re future and wants repair - referral to Dr Herald.
Entry 13 February 2019 Dr G Hatoum noted that this entry was three days post a subsequent motor accident on 10 February 2010.
Noted to have ‘Pain ++ esp in the neck’.
To direct questioning, Mr Edward said that he had increased pain in the neck and low back pain to the left leg after the 2019 motor accident.
Dr Hatoum noted the accident of 10 February 2019. Mr Edward was the driver of a car that was back-ended by a four-wheel-drive that was also hit by a truck. His car was pushed off the street into a tree ++ damage. The airbag was deployed and hit him in the face.
Pain in the neck (especially with pins and needles) and back, radiating to the left leg and shoulder pain. Ambulance to hospital.
Noted to have stiffness and ++ reduction in the neck ROM ?muscle spasm. Mild paraspinal muscle tenderness, less in the lumbar spine than the cervical spine.
On 18 February 2019 noted by Dr Hatoum to have post MVA pain requiring Endone.”
FINDINGS
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: Insurance Australia Group Ltd v Keen[67] and Insurance Australia Ltd v Marsh.[68]
[67] [2021] NSWCA 287 at [40], [41] and [45].
[68] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the joint examination report of the Medical Assessors and adds the following reasons.
In his original application the claimant sought an assessment of impairment of right pectoralis major muscle rupture, right shoulder (frozen shoulder), neck strain, ribs fracture, back soft tissue and right arm soft tissue.
In early 2020 Dr Thomson recorded the claimant’s statement that, apart from the neck and right shoulder/pectoral, the other body parts had recovered.
In November 2018 Dr Hall recorded a history at that time of “no neck pain” with some discomfort “if he leans forward for a long time”.[69] There was no complaint of back pain, and a full range of back movement was freely performed.[70]
[69] Insurer’s bundle, page 129.
[70] Insurer’s bundle, page 131.
For the following reasons we are satisfied that the soft tissue injuries to various parts of the body apart from the pectoral muscle/right shoulder had recovered prior to the 2019 motor accident.
Cervical spine
We are satisfied that the cervical spine was injured in the motor accident although the condition had recovered prior to the subsequent motor accident
We base this conclusion on:
- the relatively low impact in the motor accident;
- the absence of pathology;
- the findings by Dr Hall in late 2018, and
- the complaints of cervical spine and radicular symptoms following the relatively more serious motor accident in 2019.
The motor accident was relatively minor with no abnormal pathology shown in the post-accident scans.
In late 2018 Dr Hall noted no neck pain with discomfort of Mr Edward “leans forward for a long time”. Most people with a normal cervical spine will get pain if they lean forward for a long period.
The cervical spine was significantly injured in the 2019 motor accident despite what the claimant stated to the medical assessors. This is because the contemporaneous complaints following the 2019 motor accident included radicular symptoms which had never been recorded prior to that time.
Further, the nature of the 2019 motor accident would have placed significant stresses on the cervical spine given the direct impact by the motor vehicle a tree and the deployment of airbags.
We otherwise observe that, leaving aside issues of causation, that the cervical spine condition of the cervical spine in the examination by the medical assessors would have been DRE Category I. This is because there was no observed guarding, nonuniform loss of range of motion or non-verifiable radicular complaints.[71]
[71] Table 7 of the Guidelines.
Right shoulder/pectoralis major muscle
We are satisfied that the claimant suffered a partial thickness tear of the pectoralis major muscle, at the myotendinous junction in the motor accident. That conclusion is based on the contemporality of complaints, the absence of prior symptoms, the specific description of injury in the MRI report and the unanimous medical opinion.
There was no contemporaneous clinical or radiological description consistent with deformity of a ‘complete’ Pec major rupture by his GP. There was no abnormality of the pectoralis major insertion on the early ultrasound.
The initial reference to the left shoulder may have been a mistake by the recording physician, and occur occasionally. Further the claimant was then referred for scans of the right, not the left, shoulder. Caution should be applied before drawing too many conclusions from brief histories in clinical notes: Mason v Demasi[72] and busy doctors “sometimes misunderstand or misrecord histories of accidents”: Davis v Council of the City of Wagga Wagga.[73]
[72] [2009] NSWCA 227 at [2]-[4].
[73] [2004] NSWCA 34 at [35].
We agree with the claimant’s submission that there is no evidence that the pectoralis major muscle was torn through further gym work. Whilst we have reservations in accepting the claimant’s account that subsequent gym work did not involve the upper body - because of the multiple GP entries regarding gym activity and current lack of muscle wasting comparing both upper limbs - we do not conclude that there was further injury to the pectoralis muscle from those activities because there is an absence of evidence supporting the contention.
The insurer otherwise submitted that the claimant had failed to mitigate his loss by failing to undergo the surgery. The medical Assessors did not accept that surgery should necessarily have been undertaken early, considering the MRI findings. The claimant has provided his reasons for being apprehension about a surgical procedure. We accept that the claimant has an honest belief of a poor outcome based on a poor outcome to a friend. We accept that there is a basis for his belief which means that the claimant has satisfied the requisite onus that he has mitigated his loss.[74]
[74] See Arnott v Choy [2010] NSWCA 259 at [151]-[161].
Addressing the assessment of the loss of movement of the right shoulder, we conclude that we cannot accept the claimant’s representation of the extent of the loss of movement.
Clause 1.40 of the Guidelines provides:
“Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of the injured person’s efforts. The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.”
The Panel is not satisfied that the claimant’s presentation before the medical assessors was consistent. This is because the variation in movement was extensive, and fell well outside slight deviations that may be expected on repeated testing.
Furthermore, the medical assessors observed rigidity in shoulder movement and concluded there was active restriction of movement at the shoulder joint by Mr Edward.
Another inconsistency is that the surveillance was undertaken in 2020. The range of movement displayed to Dr Thomson in early 2020 and Medical Assessor Wallace in early 2021 showed significant restriction. These assessments were both before and after the surveillance. It is apparent that the claimant was showing a difference in range of movement on presentation before those medical examiners than he did when in social or work settings as shown in the surveillance.
The explanation by the claimant that the condition has worsened since the surveillance does not explain the gross loss of movement assessed by Dr Thompson in 2020 and Medical Assessor Wallace in early 2021.
Dr Thompson described the surveillance as showing brief movements which were not inconsistent with the claimant’s presentation. We do not agree. The surveillance showed episodes of active elevation and abduction at least to 900.
Further, there was no muscle wasting in the right upper limb which is grossly inconsistent with the purported negligible range of movement displayed by the claimant to the medical assessors. The absence of muscle wasting is consistent with adequate daily use.
We do not accept that the partial tear of the pectoral major muscle can medically explain the gross restriction in right shoulder/upper limb movement. We accept that a partial tear would cause some degree of loss of movement and power, especially by way of right shoulder flexion, adduction and internal rotation.
The MRI defines no right shoulder joint injury or abnormality, no right rotator cuff injury and no subacromial bursitis. There is an isolated partial tear of the pectoralis major muscle, at the myotendinous junction. The claimant’s current clinical presentation to the medical assessors is not typical of a frozen shoulder because the assessors observed and concluded that the gross restriction of all active and passive movement was intentional combined with no muscle wasting and no investigative evidence.
Having rejected the claimant’s account of the extent of the loss of range of movement as being inconsistent, we modify the assessment in accordance with cl 1.40 of the Guidelines.
Our assessment is that the partial tear of the pectoral major muscle is analogous to synovial hypertrophy (mild) glenohumeral joint:
AMA 4, page 3/59 Table 20 ‘mild’ = 10% glenohumeral joint impairment
Page 3/58 Table 18, glenohumeral joint = 36% of whole body.[75]
Thus, 10% of 36% = 4% WPI (3.6 corrected).
This is equivalent to 4% permanent impairment.
[75] AMA 4, Tables 18 and 20, page 59.
CONCLUSION
The certificate issued by Medical Assessor Wallace dated 29 March 2021 is revoked. The new certificate is attached at the commencement of these Reasons.
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