Insurance Australia Limited t/as NRMA Insurance v Francisco (No 2)
[2023] NSWPICMP 272
•15 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Francisco (No 2) [2023] NSWPICMP 272 |
| CLAIMANT: | Shannon Francisco |
INSURER: | Insurance Australia Limited t/as NRMA |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Tom Rosenthal |
| DATE OF DECISION: | 15 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of threshold (then minor) injury and insurer’s review of Medical Assessor Bodel’s decision under section 7.26; Held – claimant tore or further tore the soft tissues of his rotator cuff in the accident which was a non-threshold injury; surgery to repair torn rotator cuff included screwing anchors into bone which is also a non-threshold injury; Reed v Allianz Australia Insurance Limited applied and followed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Bodel issued in proceedings number M10459744/21 and dated 16 August 2022. |
STATEMENT OF REASONS
INTRODUCTION
Shannon Francisco was involved in a motor accident on 10 March 2021. He was riding his motorcycle with a friend who had an issue with their motorbike and pulled over to the side of the road. The claimant followed to render assistance and was hit from behind by a car.
The claimant says he injured his shoulder and arm in the accident. He made a claim for statutory benefits against NRMA, the third-party insurer of the vehicle that hit his motorbike.
A medical dispute has arisen in the course of that claim as to whether the claimant’s only injuries sustained in the car accident were minor (now threshold) injuries.[1]
[1] The statutory benefits scheme was amended in 2022. The term “threshold” injury replaced the term “minor” injury and this amendment applies to all claims regardless of the date of the accident. While the medical dispute and submissions in respect of this matter have referred to “minor” injuries, the decision made by this Panel will reflect the current terminology of “threshold” injuries.
The claimant referred the dispute to the Personal Injury Commission (Commission) for assessment and on 16 August 2022 Medical Assessor Bodel determined both disputes in the claimant’s favour.
The insurer lodged an application for review of the decision. On 20 October 2022 a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the reviews. On 29 November 2022, the President convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mr Francisco’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. Under ss 3.11(1) and 3.28(1) of the Act, as they apply to Mr Francisco’s claim, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.[2] In a damages claim, no damages are recoverable if the claimant’s injuries are “threshold” injuries.
[2] The legislative amendments referred to in footnote 1 above, included an amendment to increase the availability of statutory benefits to 52 weeks for people with threshold injuries. That amendment only relates to persons injured in accident occurring after 1 April 2023.
Threshold injury
A threshold injury is defined in s 1.6 of the MAI Act as a “soft tissue injury”.[3] Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
[3] The scheme provides for threshold psychiatric injuries however in the light of the injuries sustained by Mr Francisco and the matter before the Panel those provisions will not be considered.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a soft tissue injury.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury.
Dispute resolution
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A review under s 7.25 of the MAI Act is not necessarily confined to the issues raised in the application but is a de novo assessment that is “a new assessment of all the matters with which the medical assessment is concerned”.
Rule 128 of the Personal Injury Commission Rules (Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Bodel examined the claimant on 17 June 2022 and issued his reasons on 16 August 2022. He was asked to assess:
(a) whether the injuries caused by the motor accident were minor injuries;
(b)
whether left arthroscopic rotator cuff repair surgery requested on
9 July 2021 relates to the injuries caused by the accident, and
(c) whether the surgery was reasonable and necessary in the circumstances.
Medical Assessor Bodel took the following history from the claimant:
(a) the claimant had a number of longstanding health issues, was in receipt of the Disability Support Payment (DSP) and was not employed at the time of the accident;
(b) he had a history of a fractured skull;
(c) the claimant had bariatric surgery and reduced his weight from 193 to 85 kg. The Panel notes this history may be incorrect. The records suggest the claimant did not reduce his weight to 85kg but has reduced his weight by 80 – 85 kg;
(d) the claimant also has a history of mental health issues;
(e) of particular relevance to this dispute is that the claimant had previous right shoulder surgery;
(f) the claimant was hit from behind by someone driving at about 60kmph and he was thrown off his motorbike landing heavily on his left side injuring his left shoulder. The Panel notes there is some controversy about this history;
(g) he saw his general practitioner, had X-rays and ultrasounds and later an MRI scan and arthrogram which confirmed a full-thickness tear of the supraspinatus and infraspinatus tendon;
(h) he was referred to Dr Lieu an orthopaedic surgeon who recommended surgery, and
(i) the claimant takes analgesic medication and wants to have the surgery.
The claimant was 45 years of age at the time of his examination and weighed 110 kg. On examination he had a good range of neck movement, and no signs of radiculopathy were reported.
His shoulders were examined, and the claimant had restricted motion in both the right shoulder (operated on before the accident) but more so on the left. There were signs of impingement detected by Medical Assessor Bodel.
Medical Assessor Bodel reviewed the documentation and noted there was no evidence of any pre-accident left shoulder symptoms. He quotes the entry in the GP notes of
11 March 2021 which does not have a history of the claimant falling.
Medical Assessor Bodel accepted that the claimant suffered a full-thickness tear in the left shoulder as a direct consequence of the motor accident which he says is supported by the contemporaneous documentation.
Medical Assessor Bodel determined that the injury was not a minor (now threshold) injury and that the arthroscopic repair was related to that injury and was reasonable and necessary in the circumstances.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer’s submissions in support of their review application say:
(a) there is evidence of pre-accident left shoulder complaints two weeks before the accident;
(b)
there is inconsistency in the history obtained in that the claimant told
Medical Assessor Bodel the accident occurred when the claimant was thrown from his motor bike falling heavily on his left shoulder whereas the history given to the GP was that he did not fall but landed on his feet after being hit;
(c) the fact that imaging found the tear after the accident does not mean that the tear was caused by the accident. Causation requires consideration of whether the mechanism of accident could have caused the injury and did cause the injury, and
(d) the Medical Assessor’s reasons were insufficient.
The insurer’s further submissions[4] confirm that causation of the left shoulder injury and the left shoulder surgery is in issue. The insurer says that criteria for determining whether treatment is reasonable and necessary includes:
(a) the treatment must be directly related to the injuries caused in the accident;
(b) the treatment must be aimed at helping the claimant get back to their usual activities;
(c) the treatment must be appropriate for that type of injury;
(d) the treatment should be provided by an appropriately qualified health professional, and
(e) the treatment must be cost effective.
[4] The submissions are dated 2 March 2023 and are Document AD2 in the Commission’s file.
The insurer takes the Panel back to the original submissions and says:
(a) the history given by the claimant to his GP does not mention the shoulder – the insurer submits there is no contemporaneous evidence of injury to the left shoulder;
(b) the claimant attended Liverpool Hospital on 19 October 2020 with complaints of right shoulder pain and that “it would be reasonable for [him] to favour the right shoulder and have relied on and strained the left shoulder” before the accident;
(c)
the claimant attended Liverpool Hospital with left shoulder pain on
21 February 2021 reporting the onset of pain due to exercising on a rowing machine. An X-ray was undertaken;
(d) the claimant complained of left shoulder pain to his GP on 23 February 2021 who refers to discharge advice and says the claimant was swollen in the area of his biceps and was “surprised at the pain?” Endone was given;
(e) Dr Lieu refers to the claimant having been referred back for review and since his last review for the right shoulder he has made a full recovery – the insurer says this is evidence of bilateral shoulder problems, and
(f) the claimant did not report injury, did not require ambulance and did not attend hospital on the day of the accident and continued riding.
Claimant’s submissions
The claimant says in response to the review application:
(a) the entry in the hospital notes from 21 February 2021 refers to a left bicep strain due to a sore arm from overuse on a rowing machine and that he did not receive treatment for his left shoulder before the accident, he used a heat pack and recovered before the accident;
(b) the claimant says the version of events given to Medical Assessor Bodel is correct, he was hit from behind and came off his bike, while trying to hold onto his bike he and the bike dropped to the ground. The claimant appears to acknowledge the lack of clarity concerning the note “landed on his feet” but says the claimant’s left shoulder injury is consistent with him trying to hold the bike up after the accident, and
(c)
the Medical Assessor had noted both the entry in the GP’s notes dated
11 March 2021 and the note on 17 March that the claimant’s pain was now localised to the left shoulder.
Procedural matters
Medical Assessor Bodel was referred the two separate medical assessment matters to assess and determine. He did that by issuing a single document comprising:
(a) the certification in proceedings M10459744/21 concerning the dispute about surgery;
(b) the certification in proceedings M10439373/21 that the claimant’s shoulder injury was not a minor injury, and
(c) a set of reasons setting out his findings in relation to both matters.
The claimant lodged two separate applications for review which have been referred by the President to the same Panel members, these proceedings and proceedings numbered R-M10534776/22 (concerning the dispute about surgery).
On 2 December 2023 the Panel advised the parties it intended to hear both proceedings together and issued directions to the insurer for a single bundle of documents incorporating the documentation and submissions from both parties in both proceedings.
On 14 February 2023 the Panel met and reported to the parties. The Panel requested:
(a) confirmation from the claimant whether he had the surgery (noting he had been on the public hospital waiting list since 2021);
(b) a concession from the insurer that leaving aside the issue of causation, the claimant’s rotator cuff injury would be a non-minor (now non-threshold) injury, and
(c) consideration by the insurer that on either mechanism of injury (being thrown from the bike and landing on his shoulder or falling from the bike but landing on his feet) the attempt at keeping his motorbike upright after being hit could lead to a rotator cuff tear.
The Panel advised the parties of the medical examination date and directed the parties to provide any final submissions and a response to the matter raised in the report, the insurer by 3 March and the claimant by 21 March 2023.
The Panel received final submissions from the insurer dated 2 March 2023.[5] The insurer agreed that leaving aside the issue of causation:
(a) the pathology of rotator cuff tear would be a non-minor (now non-threshold) injury, and
(b) the surgery to repair it would be reasonable and necessary.
[5] Document AD2 in the Commission’s electronic file.
The claimant did not respond to the Panel’s directions within the time frame requested and did not provide any further submissions. On further prompting from the Panel, the claimant advised, on 22 May 2023 (two days before the re-examination) that he had his left shoulder surgery on 28 March 2023. The Panel relayed a message to the parties requesting a copy of the operation report relating to that surgery.
Upon receipt of the re-examination findings of Medical Assessor Stubbs, the Panel relayed a message to the Panel whether the surgery that had taken place in March was the surgery that is the subject of the dispute and if so confirmation of what Medical Assessor Stubbs had recorded that the insurer had paid for the surgery.
On 7 June 2023 (the day of the Panel’s second preliminary conference) the claimant responded advising that NRMA had “approved” the surgery. The claimant provided a copy of Dr Lieu’s records which included a letter dated 4 November 2022 suggesting the insurer had approved the claimant’s surgery. A copy of that letter and two further letters indicate they were sent to NRMA.
On 7 June 2023, the insurer’s solicitor responded to the Panel’s query saying NRMA had not paid for the surgery. The Panel sought a copy of the approval letter and NRMA’s list of payments. There are invoices totalling $13,030 that are on the list that have not been paid and are marked as pending. This includes invoices to Sydney Southwest Private Hospital ($8,524.30) and Dr Tran, anaesthetist ($4,418) in respect of services provided on 28 March 2023. However, there are also payments that have been made after 4 November 2022 and others after the date of the surgery including to Dr Lieu, Prime Physiotherapy and Jim’s Mowing for domestic care services (which includes three payments for services rendered before the surgery).
On 14 June 2023, the Panel was advised that on 15 November 2022, NRMA wrote to the claimant advising him:
“Your request for Left Arthroscopic Rotator Cuff Repair is approved as follows on a without prejudice basis.”
The letter did not disclose what the “without prejudice” related to and the Panel is therefore proceeding on the basis that there remains a dispute about the shoulder surgery and the threshold injury.
The Panel has resolved to issue two separate decisions reflecting the two separate medical assessment matters referred to the Commission and assigned to Medical Assessor Bodel.
REVIEW OF THE EVIDENCE
The Panel adopts the review of evidence contained within paragraphs [37] to [67] in the related proceedings[6].
[6] R-M10534779/22 Shannon Francisco v Insurance Australia Limited t/as NRMA (1).
RE-EXAMINATION FINDINGS
The Panel adopts the re-examination findings contained within paragraphs [68] to [86] in the related proceedings
CONSIDERATION OF THE ISSUES IN DISPUTE
Does the claimant have a non-threshold injury to his left shoulder?
The Panel adopts the findings made in the related proceedings as follows:
(a) Mr Francisco had some pre-existing left rotator cuff pathology at the time of the motor bike accident;
(b) Mr Francisco experienced left shoulder pain immediately after being hit from behind and while struggling to maintain control of his heavy motorbike;
(c) Mr Francisco injured his left shoulder in the accident and either tore or further tore the soft tissues of his rotator cuff in the accident, and
(d) the surgery to repair the torn rotator cuff soft tissues is related to the injuries sustained in the accident and reasonable and necessary in the circumstances.
The Panel has noted the absence of pre-accident imaging and has considered the post-accident imaging and has formed the view that the claimant tore or further tore his rotator cuff tendons and ligaments (soft tissues) in the accident. That tear, or further tear is a “complete or partial rupture of tendons, ligaments, menisci or cartilage” within the meaning of s 1.6(2) of the MAI Act and is therefore not a threshold injury for the purposes of the MAI Act.
Is the surgery to the claimant’s left shoulder a non-threshold injury?
The Panel also notes that the claimant has recently had arthroscopic rotator cuff repair surgery performed and as recommended by Dr Lieu. Medical Assessor Stubbs observed three recently healed arthroscopy portal scars in the claimant’s left shoulder.
The operation report states that a part of the shoulder anatomy was removed (the bursa) and that anchors were fixed, and the medical members of the Panel note that these anchors would have been fixed to the claimant’s humerus by screws drilled into bone. The Panel is of the view that the surgery has impacted or affected more than the soft tissues in the left shoulder.
In Reed v Allianz Australia Insurance Ltd[7] the claimant was found to have sustained soft tissue injuries caused by the accident which aggravated pre-existing facet joint arthritis resulting in pain which ultimately led to spinal surgery. The panel in Reed accepted that the motor accident materially contributed to the surgical procedure and that the procedure involved the cutting of skin, tendons, ligaments, and cartilage.
[7] [2022] NSWPICMP 287 (Reed).
In Reed the panel concluded the context of the definition of minor (now threshold) injury in the MAI Act is directed to what is caused by the motor accident and found that where there was a causal connection between the motor accident and the surgery, the claimant must be found to have sustained a non-threshold injury.
This Panel accepts the panel’s reasoning in Reed and has, in the related proceedings found there is a causal nexus between the accident and the left shoulder arthroscopic surgery on 28 March 2023. The nature of the surgery to the claimant’s shoulder has involved the cutting of skin, tendons, ligaments and the drilling into bone.
As a result of the surgery the Panel is satisfied that Mr Francisco has sustained a non-threshold injury caused by the accident.
CONCLUSION
As the Panel has come to the same view as Medical Assessor Bodel about the nature of the claimant’s left shoulder injury, if follows that the Panel should affirm his certificate.
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