Insurance Australia Limited t/as NRMA Insurance v Lepre
[2024] NSWPICMP 432
•3 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Lepre [2024] NSWPICMP 432 |
| CLAIMANT: | Matthew Lepre |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Clive Kenna |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 3 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment and earning capacity; T-bone collision; contemporaneous complaints of cervical and lumbar pain; subsequent reference to bilateral shoulder pain probably referred pain from neck rather than shoulder injury; bilateral shoulder injury otherwise not explained by the mechanism of the motor accident; examination by Medical Assessor; no assessable impairment of any body part; claimant operator of business which sells educational product; managerial role; examination findings not supportive of current impairment of earning capacity; nature of soft tissue injuries consistent with a six-month period of impairment of some earning capacity; Held – claimant did not sustain any permanent impairment; claimant suffered partial impairment of earning capacity for a period of six months. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment 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% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the Medical Assessment Certificate dated 20 December 2023 and certifies that the following injuries caused by the motor accident does not give rise to a permanent impairment greater than 10%: · cervical spine; · lumbar spine; and · thoracic spine. Medical Assessment – Earning Capacity THE DEGREE OF IMPAIRMENT OF EARNING CAPACITY OF THE INJURED PERSON AS A RESULT OF THE INJURY THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 2. The Panel revokes the Medical Assessment Certificate dated 20 December 2023 and certifies that the injuries to the cervical, thoracic and lumbar spines caused by the motor accident give rise to a degree of impairment of earning capacity as a result of the injury for a 6-month period after the motor accident. We are not satisfied that the claimant has a loss of the degree of impairment of earning capacity post 6 months after the motor accident. |
REASONS
BACKGROUND
On 2 January 2018 Mr Matthew Lepre (the claimant) was injured whilst driving his motor vehicle. The insured driver exited a driveway turning across the path of and collided with the claimant’s vehicle.[1]
[1] Insurer’s bundle, p 107.
Insurance Australia Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Lepre any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in this medical dispute are whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%” and “the degree of impairment of the earning capacity of the injured person that has resulted from the injury caused by the motor accident”. These constitute medical assessment matters within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
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).
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, Fourth Edition (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Bodel and dated 20 December 2023 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to 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.[5]
[5] Section 7.26(5) of the MAI Act.
Pursuant 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 Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
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.[6]
[6] 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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
STATUTORY PROVISIONS
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.[9] In Raina v CIC Allianz Insurance Ltd[10] 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.”
[9] See s 3B(2) of the CL Act.
[10] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both 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.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused a soft tissue whiplash associated disorder in the cervical spine, a rotator cuff tear of the supraspinatus tendon in the right shoulder, tendinitis in the left shoulder and soft tissue musculoligamentous injuries to the thoracic and lumbar spine.
In respect of impairment of earning capacity, the Medical Assessor stated:
“This gentleman does have ongoing restrictions in regards to his chosen field of work. The work is predominantly computer-based and because of his neck and shoulder girdle pain and upper back pain, he has difficulty with prolonged sitting, bending, pushing, pulling, and use of the arms overhead. This does cause some discomfort and interferes with concentration, which is important to him in the type of business that he undertakes, according to his statements in that regard.”
The Medical Assessor assessed impairment of the cervical spine at 5%, the right shoulder at 6% and the left shoulder at 2% resulting in a combined permanent impairment of 13%.
MATERIAL BEFORE THE PANEL
The parties filed bundle of documents for the Panel’s consideration.
The material provided by the insurer included documents which, it submitted in its application for review, should not have been considered by the original Medical Assessor.
Pre-existing conditions
In late 2014 the claimant noted pain in the lower abdomen after lifting boxes on the previous day.[11]
[11] Insurer’s bundle, p 58.
In March 2015 the claimant underwent a hernia operation.[12]
[12] Insurer’s bundle, p 56.
On 21 May 2015 the general practitioner (GP) noted tenderness over the back of the upper trunk and neck.[13]
[13] Insurer’s bundle, p 55.
On 29 May 2015 the GP noted back and shoulder pain, tender over shoulder girdles with full range of motion.[14]
[14] Insurer’s bundle, p 54.
On 1 June 2015 the GP noted back and shoulder pain which was not getting better, and the claimant wanted to see a physiotherapist.[15]
[15] Insurer’s bundle, p 54.
On 9 June 2015 the GP noted back pain and the claimant was having physiotherapy.[16]
[16] Insurer’s bundle, p 54.
The clinical records from 2015 to late 2016 refer to complaints of stress and anxiety.[17] Clinical records in 2015 refer to an inguinal hernia and the denial of a workers compensation claim.[18]
[17] Insurer’s bundle, pp 41 – 50.
[18] Insurer’s bundle, pp 47 - 52.
The clinical records of the GP in 2017 refer to unrelated medical conditions.[19]
[19] Insurer’s bundle, p 41.
Medical records post-accident
The CT scan of the cervical and lumbar spine dated 4 January 2018 noted the motor accident with pain and tenderness in the upper neck and lower back.[20] The scan showed loss of cervical lordosis with no evidence of disc protrusion or significant foraminal narrowing in the cervical spine. There was diffuse bulging at L4/5 and L5/1 without evidence of nerve root impingement.
[20] Insurer’s bundle, p 62.
The clinical note of the GP dated 9 January 2018 referred to the motor accident with ongoing neck and back pain.[21]
[21] Insurer’s bundle, p 36.
A certificate of capacity dated 16 February 2018 referred to neck and back pain and certified the claimant unfit for work.[22]
[22] Insurer’s bundle, p 112.
An Allied health recovery request for osteopath dated 23 April 2018 referred to injury to the cervical, thoracic and lumbar spine.[23]
[23] Insurer’s bundle, p 80.
A medical certificate dated 25 April 2018 noted lumbar sprain and neck pain and limited capacity to working one hour per day, five days per week.[24]
[24] Insurer’s bundle, p 94.
There are various references in the clinical notes in 2018 to ongoing back, neck and bilateral shoulder pain since the motor accident.[25]
[25] Insurer’s bundle, pp 30 - 36.
A medical certificate dated 19 May 2018 limited work capacity to email checking 45 minutes per day.[26]
[26] Insurer’s bundle, p 89.
A referral for chiropractic and massage dated 12 June 2018 referred to the neck, upper and lower back and both shoulders.[27]
[27] Insurer’s bundle, p 140.
The MRI scan of the right shoulder dated 13 June 2018 showed supraspinatus tendinopathy with interstitial tears, tiny tears of the anteroinferior labrum and supraspinatus and subscapularis tendinopathy.[28]
[28] Insurer’s bundle, p 133.
The MRI scan of the left shoulder showed mild distal subscapularis and supraspinatus tendinopathy with no evidence of a tear.
An Allied health recovery request for osteopath services dated 26 June 2018 referred to the neck, thoracic spine, low back and both shoulders.[29]
[29] Insurer’s bundle, p 135.
A medical certificate dated 21 July 2018 limited capacity to working with the computer 90 minutes per day.[30]
[30] Insurer’s bundle, p 97.
On 4 September 2018 the GP noted that the claimant had ongoing back, neck and both shoulder pain since the motor accident and was having chiropractic treatment and massage with slow improvement.[31]
[31] Insurer’s bundle, p 29.
A medical certificate dated 29 September 2018 restricted capacity to “checking computer” 90 minutes per day.[32]
[32] Insurer’s bundle, p 88.
The claimant underwent umbilical hernia repair in early October 2018.[33]
[33] Insurer’s bundle, p 28.
A certificate of capacity dated 16 October 2018 referred to the neck, back and shoulder sprains with capacity of two hours per day, five days per week.[34]
[34] Insurer’s bundle, p 86.
On 29 October 2018 and 7 January 2019, the GP noted ongoing pain in the back, neck and shoulders.
On 17 July 2019 the GP noted ongoing pain in the back, neck and shoulders which was slowly getting better. Examination showed no tenderness at the back, neck and shoulders with full range of motion.[35]
[35] Insurer’s bundle, p 26.
The claim form dated 16 February 2018 referred to the motor accident causing neck, upper and lower back injuries.[36]
[36] Insurer’s bundle, p 106.
The osteopath provided a report dated 25 June 2018 noting treatment commencing on
17 April 2018.[37] The history was of symptoms to the neck, mid thoracic and lumbar spine, along with bilateral shoulder pain and numbness in both hands and down the left leg.[37] Insurer’s bundle, p 240.
Dr Trautman diagnosed cervical whiplash, thoracic spine strain, discal injury at L4/5 and L5/S1, rotator cuff tear in the right shoulder and tendinopathy in the left shoulder.[38]
[38] Insurer’s bundle, p 243.
Other records
A police report dated 20 February 2019 referred to the motor accident, noted paramedics attended and conducted checks on the occupants of both vehicles and stated that neither occupant needed to be treated.[39]
[39] Insurer’s bundle, p 131.
SUBMISSIONS
Claimant’s submissions dated 4 March 2024[40]
[40] Claimant’s bundle, p 2.
These submissions were filed opposing the review of the medical assessment.
The claimant submitted that the reference by the Medical Assessor to settlement documents was not a material error.
The claimant submitted that there was no obligation to refer to cls 6.5 to 6.7 of the Guidelines. He submitted that it was evident that the Medical Assessor had provided reasons on the causal nexus.
The claimant submitted a disagreement with the Medical Assessor’s findings on impairment and his decision not to allocate any pre-existing impairment ratings due to the workers compensation claim did not constitute an error. The basis for this submission was unclear.
The claimant further submitted that it was more likely that the pre-existing history was identified by the Medical Assessor as irrelevant and as it was more than four years before the motor accident.
The claimant described in some detail the pre-existing clinical notes and noted that most of the entries related to the abdomen and post-operative recovery and were not orthopaedic injuries as the insurer asserted.
The claimant submitted that since 1 June 2015 the claimant had seen his GP for 63 consultations and there was no reference to any symptoms in his shoulder or spine. He submitted in light of the foregoing that there was no rateable impairment for any pre-existing injuries or condition.
Insurer’s submissions dated 10 May 2021[41]
[41] Insurer’s bundle, p 239.
Theses submissions requested approval of an offer of settlement as the claimant was unrepresented. The submissions are irrelevant save as to note that the GP on
16 February 2018 certified the claimant as having suffered a lumbar and neck sprain caused by the motor accident.
Insurer’s submissions dated 12 February 2024[42]
[42] Insurer’s bundle, p 2.
These submissions sought leave to review the medical assessment. The insurer submitted that the correct determination would result in a finding of permanent impairment less than 10% and a finding that there is no degree of impairment of earning capacity that has resulted from injuries sustained in the motor vehicle accident.
The insurer submitted that various documentation considered by the Medical Assessor should not be considered as they were only relevant to the assessment by the Member assessing the value of the claim.
The insurer submitted that the Medical Assessor failed to consider records from Prestons Medical Centre and incorrectly concluded there were no previous medical issues whereas the records show prior workers compensation claims and complaints of low back, neck and shoulder pain in 2015.
The insurer submitted that the claimant ceased osteopathic treatment in 2019 and any ongoing treatment was self-directed home-based exercise.
The insurer submitted that there were inadequate reasons for the conclusion that there was an ongoing causal relationship between the clinical presentation and the motor vehicle accident. It was submitted that the Medical Assessor failed to address causation in accordance with cls 6.5-6.7 of the Guidelines.
The insurer submitted that the conclusion by the Medical Assessor that there was no past history of any medical illness was incorrect and referred to prior workers compensation claims for a hernia and stress and anxiety throughout 2014 to 2016 and references in the clinical notes to back and shoulder pain (mid 2015).
The insurer noted that the claimant is earning a significantly larger amount post-accident and has been travelling extensively overseas to conduct his business. It was submitted that a complete and accurate history was not considered by the Medical Assessor.
RE-EXAMINATION
Mr Lepre was examined by Medical Assessor Kenna on 18 June 2024. The examination report is as follows:
“Medical Assessor Kenna examined the claimant on 18 June 2024 at the Personal Injury Commission rooms, Level 8, 1 Oxford Street, Darlinghurst, NSW.
Mr Lepre attended alone.
No interpreter was required.
HISTORY
Pre-accident medical history and relevant personal details
Matthew Lepre is a 31-year-old male, single, currently working in his own business and he is self-employed. When asked about his business, he states it is an online educational company. He employs a number of people, both in Australia and overseas, and it appeared from discussion that he sells educational product specifically in relation to marketing and start-up companies, that is people wishing to commence in business and he markets financial or educational programs produced by the company.
By way of background, he has a Bachelor of Medical Science from the University of Western Sydney but saw an opportunity in the above market and therefore subsequently has not pursued that line of employment or activities. To quote him, he has ‘followed his passion.’
He grew up on the Central Coast and lived there until 12 years ago and then moved to Sydney.
With regards to relevant past history, he acknowledges he has been involved in a few minor traffic accidents in which he has incurred no injuries, and he was unable to give any specific dates, as none of them he stated required medical attention.
The only relevant injury he states was in a lifting incident in workers comp in 2015 for which he developed an umbilical hernia, requiring two episodes of surgery in 2020. He states he has since fully recovered from that.
Other than that, he sustained an injury to his right shoulder when he was 13 years of age, when he fractured a clavicle (collarbone) and he states he absolutely made a full recovery and was not left with any residual loss of movement pertaining to the right shoulder.
Therefore, with regards to past history, he denies any prior history of injury or symptoms pertaining to the cervical or thoracolumbar spine or either shoulder, excluding the above comment.
Post this motor vehicle accident, he has not been involved in any motor vehicle accidents since 2 January 2018, a period of some six years ago.
As a result of soft tissue injuries incurred, he states he has had no operations, injections or procedures but states he has never fully recovered with lost time impacting his business potential.
History of the motor accident: 2ND January 2018
The accident occurred on 2 January 2018. He was the driver of a car. There was a front seat passenger. Both were wearing seatbelts. It was in the early evening and it was not dark when a car unexpectedly pulled out of a driveway from the left-hand side and he T-boned the other car on the driver’s side as he had no time to take evasive action.
The incident he stated occurred too quickly, with the rapid reversal of the car out of the driveway, that he was unable to stop in time and as noted, ran into the driver’s side of the vehicle. The impact he states was high and his car had to be towed away and was beyond repair.
Ambulance attended but he was unsure about police.
He subsequently went home and then saw his general practitioner.
History of symptoms and treatment following the motor accident
The initial consultation was on 2 January 2018 with a complaint of neck and back pain. GP clinical examination indicated no focal neck tenderness with a full range of movement of both the neck and back. Neurologically he was intact. Medications were prescribed and he was recommended for physiotherapy.
It was affecting his work activities, noting that he was self-employed and did computer work most of the day.
It was noted on consultation of 9 January (Dr Monsur) that he came in for a CT of the cervical and lumbar spine results, which were done by another GP.
He also had associated chest pain but no neurological symptoms. Bowel and bladder unaffected. (Radiological reports discussed later).
Treatment was conservative and he states he only had a few treatments, be it chiropractic or physiotherapy. He would feel better in the short-term but then subsequently he was back to square one within a short period of time. Generally speaking, he describes his symptoms as he would put up with it.
Over the years, he has sought osteopathic treatment but as noted he has never completely recovered with regards to his spinal symptoms.
Associated with that was ongoing self-directed home-based exercises and although it was initially stated he didn’t do any weights and doesn’t attend the gym, he acknowledged subsequently that he may use weights at home.
Normally he states with regards to his self-employed business, pre-MVA, he would work 8-10 hours per day, five days per week, but now he states as a result of ongoing symptoms, he only works 4 hours, 5 days per week, as he needs constant breaks and stretching.
So what activities require such hours?
When questioned on the background, he acknowledges he wasn’t completely sure how many people he employed, but there were 25 full-time people and possibly 50 part-time, all essentially under contract. When asked further, he states he designs PowerPoint presentations for his business and then this is available for response from people who sign onto the business with regards to reply and be involved in chat lines. He describes himself very much as a marketeer and previously as a student, he would sell digital books.
He no longer sees his previous treating general practitioner.
Details of any relevant injuries or conditions sustained since the motor vehicle accident
Nil.
Current symptoms
His main complaint is cervical pain which he describes as intense with associated temporal headaches, intermittent.
Associated with that is isolated, not connected, right shoulder pain but no referral into the right upper limb, and milder pain pertaining to the left shoulder, again isolated and no referral into the left upper limb, and isolated from the cervical spine, i.e. no Nguyen component.
Also associated he states with the symptoms are persistent interscapular pain (mid-thoracic spine) and that he does have lower back pain, but it is mild to moderate, central with no radiation.
CLINICAL EXAMINATION
General presentation
Findings on clinical examination including specific measurements of range of motion (ROM) (where applicable) of each of the injuries assessed.
Cervical spine (cervicothoracic)
No muscle guarding or muscle spasm present, full range of motion and no asymmetry present.
No neurological deficit evident in either upper limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
On formal examination of range of movement there was full range of movement as follows:
MOVEMENTS
RANGE EXHIBITED
Flexion
100% full
Extension
100% full
Rotation to the right
100% full
Rotation to the left
100% full
Lateral bending to the right
100% full
Lateral bending to the left
100% full
NEUROLOGICAL TESTS:
REFLEXES:
REFLEX
LEFT
RIGHT
TRICEPS JERK
Normal
Normal
BICEPS JERK
Normal
Normal
BRACHIORADIALIS
Normal
Normal
SENSATION: Normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
MUSCLE WASTING
LEFT (cm)
RIGHT (cm)
UPPER ARM
34
34
FOREARM
31
31
MUSCLE POWER
LEVEL
MOTOR POWER
LEFT
RIGHT
C4
5/5
NORMAL
NORMAL
C5
5/5
NORMAL
NORMAL
C6
5/5
NORMAL
NORMAL
C7
5/5
NORMAL
NORMAL
C8
5/5
NORMAL
NORMAL
T1
5/5
NORMAL
NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
DURAL TENSION TESTS:
TEST
RIGHT
LEFT
PASSIVE NECK FLEXION
Normal
Normal
BRACHIAL PLEXUS STRETCH
Normal
Normal
Thoracic spine (thoracolumbar)
On inspection of the thoracic spine posture was normal. No tenderness on palpation of the thoracic spine and no muscle guarding or spasm. No neurological deficit evident in either upper limb. On formal examination of range of movement there was full range of movement as follows:
MOVEMENT
RANGE OF MOTION
Flexion
100% full
Extension
100% full
Side bending to the right
100% full
Side bending to the left
100% full
Rotation to the left
100% full
Rotation to the right
100% full
Lumbar spine (lumbosacral)
No muscle guarding or spasm present, full range of motion and no asymmetry present.
No neurological deficit evident in either lower limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
On formal examination of range of movement there was full range of movement as follows:
MOVEMENTS
RANGE EXHIBITED
Flexion
100% full
Extension
100% full
Rotation to the right
100% full
Rotation to the left
100% full
Lateral bending to the right
100% full
Lateral bending to the left
100% full
NEUROLOGICAL TESTS
REFLEXES
REFLEX
LEFT
RIGHT
KNEE JERK
Normal
Normal
ANKLE JERK
Normal
Normal
LEFT
RIGHT
Sciatic nerve stretch (straight leg raise)
Normal
Normal
Femoral nerve stretch (prone knee bending)
Normal
Normal
SENSATION: Normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
MUSCLE WASTING
LEFT (cm)
RIGHT (cm)
THIGH
(measured 10cm above the superior pole of the patella)
equal
equal
CALF
equal
equal
MUSCLE POWER
LEVEL
MOTOR POWER
LEFT
RIGHT
L3
5/5
NORMAL
NORMAL
L4
5/5
NORMAL
NORMAL
L5
5/5
NORMAL
NORMAL
S1
5/5
NORMAL
NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
MUSCLE ATROPHY: nil
THIGH
LEFT = RIGHT
CALF
LEFT = RIGHT
No unilateral muscle atrophy present.
DURAL TENSION TESTS
TEST
RIGHT
LEFT
PRONE KNEE BEND
Normal
Normal
STRAIGHT LEG RAISE
Normal
Normal
SLUMP
Normal
Normal
Upper extremity
Right Shoulder: full range of motion
Measurement
Reference
(4th ed.)
Normal
Upper Extremity Impairment
Flexion
180°
Figure 38 (43)
180°
0
Extension
50°
Figure 38 (43)
50°
0
Adduction
50°
Figure 41 (44)
50°
0
Abduction
180°
Figure 41 (44)
180°
0
Internal Rotation
90°
Figure 44 (45)
90°
0
External Rotation
90°
Figure 44 (45)
90°
0
Total
0
Goniometer measured
Inspection of the right shoulder was normal. Arc, resisted motions, and passive motions were pain free on the right. There was no abnormal tenderness. Impingement tests were negative.
Left Shoulder: full range of motion
Measurement
Reference
(4th ed.)
Normal
Upper Extremity Impairment
Flexion
180°
Figure 38 (43)
180°
0
Extension
50°
Figure 38 (43)
50°
0
Adduction
50°
Figure 41 (44)
50°
0
Abduction
180°
Figure 41 (44)
180°
0
Internal Rotation
90°
Figure 44 (45)
90°
0
External Rotation
90°
Figure 44 (45)
90°
0
Total
0
Goniometer measured
Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.
Comment on consistency
Whilst Mr Lepre continues to complain of clinical symptoms, physical examination was normal
There was no clincial evidence of radiculopathy and radiological examination excludes any fractures or cartilagenous tears.
Radiological reports
4/1/2018 – CT cervical and lumbar spine – Conclusion: No evidence of cervical or lumbar spine fractures. Lumbar spine: Diffuse disc bulges at L4/5 and L5/S1 without evidence of nerve root compression.
Causation
At the time of the accident and shortly thereafter, there are clinical notes from the treating GP with regards to complaint of both neck and lumbar pain, i.e. diagnosed as sprains. That being the case, it is accepted that the initial neck and back symptoms are causal to the motor vehicle accident-but that’s some 6 years ago now.
However subsequent to that, there has been no mention of direct injury to either shoulders, although I note GP comment from Dr Hussain of 7 June 2018, where besides ongoing neck and back pain, there is complaint of right and left shoulder pain, with the right shoulder clicking, although examination indicates a full range of movement and no focal tenderness.
To that extent, an x-ray of the right shoulder was ordered (but I have not seen the result). It is to be noted in perusal of the GP notes, that treatment is based on chiropractic and massage, and that he would feel a bit better post those treatments.
Further comment on 25 July 2018 also with regards to pain involving both shoulders since the motor vehicle accident.
Permanent Impairment Table
| Body Part or System | AMA Guides/ The Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident |
| Cervical Spine DRE I | ch3, pgs102-107,AMA4 Tables 7 & 8 The Guidelines | Yes | 0 | 0 | 0 |
| Thoracic spine | ch3, pgs102-107,AMA4 Tables 7 & 8 The Guidelines | Yes | 0 | 0 | 0 |
| Lumbar Spine DRE I | ch3, pgs 102-107,AMA4 Tables 7 & 8 The Guidelines | Yes | 0 | 0 | 0 |
| Right shoulder | ch3, 3.1, pgs15-74 T 1-32 The Guidelines | Yes | 0 | 0 | 0 |
| Left shoulder | ch3, 3.1, pgs15-74 T 1-32 The Guidelines | Yes | 0 | 0 | 0 |
* 0%WPI = percentage whole person impairment
Comment with regard to employment and earning capcaity
As noted in Medical Assessor Bodel’s report of 20 December 2023, he determined that the injured person does have a degree of impairment of earning capacity that has resulted from the injury caused by the motor accident.
This statement was discussed directly with the claimant and on the tenet that the motor vehicle accident had impacted (possibly severely) his earning capacity in his own company. From that I was able to glean the following.
He is continuing to work and has worked throughout.
He has not lost any time from work from the point of view of complete cessation of employment. His complaint is that he cannot do the sheer number of hours that he used to do previously to drive the business forward. Nevertheless, he acknowledges he is working every day and even on his own admission, doing at least 4-5 hours per day every day, however he needs to take breaks and walk around.
When asked about the impact to turnover of the company, he acknowledged that it has fluctuated over time, but the current turnover/gross would hit a record of $15 million for this financial year.
When asked about his income, he was unsure of such (but he did quote $3 million at one stage, then maybe it could be $1.5m – but this varied presumably due to accountancy input).
Mr Lepre comes across as someone who is aggrieved and drew his comparison with Jeff Bezos, current Executive Chairman at Amazon, and saw himself in a somewhat similar but early mode, whereas he had to drive the business through substantive hours and therefore from that perspective, stated he felt aggrieved that the accident had in actual fact caused a direct impact with regards to his earning capacity, as he simply couldn’t work the hours as required.
On the other side of the coin, with regards to his overall presentation, he is a very fit looking young man and although he denies going to the gym, it would appear from his muscle contour that he certain works out with weights. Mr Lepre accepted that he works out with weights at home.
In conclusion, a number of years have elapsed since the motor vehicle accident which would explain his overall current presentation now, bearing little resemblance to the initial GP reports.
I would accept that there is strong initial causation with regards to cervical, thoracic and lumbar spine.
That the shoulders only mentioned some 3-4 months post motor vehicle accident and possible in a Nguyen capacity.
That he has not undergone any investigations for such, nor has there been any hint of such.
Also noting that his treating general practitioner did examine the shoulders in possibly May/June 2018 and recorded a full range of movement which is similar to my assessment.
Hence, while he complains of symptoms, there are no clinical signs to support this as one would expect in a 31-year-old male who sustained soft tissue injuries in a motor vehicle now over six years ago, that any initial soft tissue injury has long since resolved.
From the current clinical presentation and history taken, I believe there is no impairment of earning capacity that has resulted from any initial soft tissue injuries caused by the motor vehicle accident.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[43]
[43] Section 7.26(6) of the MAI Act.
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[44] and Insurance Australia Ltd v Marsh.[45]
[44] [2021] NSWCA 287 at [40], [41] and [45].
[45] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the precise examination report provided by the Medical Assessor supplemented by the following further reasons.
The examination findings of Medical Assessor Kenna show that there is no assessable impairment of the referred body parts. The claimant’s assessment of the degree of permanent impairment is 0%.
The issue of deduction for any pre-existing impairment similarly does not arise due to the 0% assessment. We note that the clinical records show that the claimant had pre-existing neck, shoulder and back symptoms in May and June 2015. There is an absence of relevant record after that time.
Whilst we accept the accuracy of the clinical records over the applicant’s recollection, the issue of pre-existing deduction does not arise. The prior symptoms, for the reasons set out below, probably indicates that the pathology shown in the scans for the right shoulder and lower back were present in 2015.
In relation to the shoulders, there is no recorded contemporaneous complaint of shoulder symptoms. The absence of complaint is relevant but not determinative of the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[46] and AAI Ltd v McGiffen.[47]
[46] [2021] NSWSC 548 (Norrington).
[47] [2016] NSWCA 229 at [64]-[66].
There is no explicable medical basis why there would be any left shoulder injury as the claimant did not describe any impact to that body part.
Similarly, the claimant did not describe direct trauma to the right shoulder. Any right shoulder injury in those circumstances could only be caused through the seatbelt over the right shoulder which was unlikely to have caused or aggravated any pathology shown on the MRI scan. The minor tears noted on the MRI scan are probably constitutional. That conclusion is consistent with the previous complaints of shoulder pain evidenced by the clinical notes in 2015.
Accordingly, we do not accept that the motor accident caused direct injury to either shoulder.
Despite the delayed onset, we accept that there may have been some referred pain to the shoulders from the neck in 2018 consistent with some of the histories recorded in the clinical notes..
We accept that the motor accident probably caused soft tissue injuries to the cervical and lumbar spine evidenced by the contemporaneous complaints of injury.
The scan evidence of the cervical spine is normal. We do not accept that the motor accident caused anything other than soft tissue injuries.
The scan evidence shows degenerative pathology in the lower lumbar spine. We consider that pathology was likely pre-existing because of the prior low back complaints in 2015, the scan evidence showing degenerative pathology at two levels and the fact that the lower back is well protected from injury in a motor accident. The examination undertaken by Medical Assessor Kenna shows no objective symptoms which supports any other conclusion.
We accept that the motor accident caused a soft tissue injury to the lumbar spine.
There is an early absence of reference of injury to the thoracic spine although it is mentioned in an Allied health recovery request dated 25 April 2018. The present examination showing lack of symptoms, absent of complaint for periods and lack of pathology indicates that there may have been a soft tissue injury to the thoracic spine which has healed over a short period.
The medical assessment matter on earning capacity is framed as “the degree of impairment of the earning capacity of the injured person that has resulted from the injury caused by the moor accident”.
The question is unlike the issue of permanent impairment as the effects of earning capacity will vary over time. We also accept that the fact that the claimant is earning large sums of money at this stage does not preclude a finding that he has some limitations on capacity.
Mr Lepre asserts that he is limited to working 4 to 5 hours per days everyday as opposed to a pre-accident capacity of up to ten hours per day.
Mr Lepre’s work duties are sedentary and he can modify his duties accordingly. Mr Lepre is the owner of his business. There is no reason, based on the physical examination findings of Medical Assessor Kenna, that Mr Lepre cannot undertake lengthy hours managing others, and discussing matters with employees and clients. Mr Lepre’s work is not solely limited to computer keyboard work. As a successful entrepreneur, he is clearly capable of performing full duties as the manager of a successful company which, on his own admission, just reached an annual gross turnover of $15 million. He is clearly capable of travelling as required in his business.
The medical evidence for the first 12 months provides detail of limitations of earning capacity. The certificates overstate the degree of loss of earning capacity. For example, the certificate on 18 May 2018 limited the claimant to 45 minutes per day which is an excessive limitation given the nature of the claimant’s injuries and the scope of his duties. Similarly, the certificate in September 2018 limited work capacity to 90 minutes per day for computer work appears an over statement of loss of work capacity at that time.
We accept that there was a degree of impairment of earning capacity for a period of up to six months which partially restricted the claimant from his normal duties. However, we do not accept, based on the nature of the soft tissue injuries, that Mr Lepre was as incapacitated as is stated in the medical certificates.
Following that six-month period, we do not accept that the nature of the soft tissue injuries, given the nature of the claimant’s duties, caused any loss of earning capacity. Based on the examination findings of Medical Assessor Kenna and the nature of the work duties, we do not accept that the claimant has a present impairment of earning capacity.
CONCLUSION
The medical assessment certificates are revoked. Replacement certificates are issued at the commencement of these Reasons.
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