Insurance Australia Limited t/as NRMA Insurance v Mangogna
[2023] NSWPICMP 508
•10 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Chapman v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 508 |
| CLAIMANT: | Lance Chapman |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Michael Inglis |
| MEDICAL ASSESSOR: | Rhys Gray |
| MEDICAL ASSESSOR: | Geoffrey (Paul) Curtin |
| DATE OF DECISION: | 10 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Threshold dispute; claimant was involved in a motor accident on 5 July 2018; his vehicle had stopped moving when it was struck from behind by a truck; claimant said that he could not recall any specific trauma or contact to his body from any internal structural part of his vehicle; he believed his right foot was on the foot brake, and he hit the brakes hard, whilst his right elbow was leaning against the window; Medical Assessor Moloney determined that the claimant suffered musculoligamentous injuries to the cervical spine, right shoulder and left shoulder and that these were minor injuries not capable of assessment; he determined that the claimed injuries to the left hip osteoarthritis, right hip osteoarthritis, left shoulder, and scarring to the hip were not caused by the motor accident; the Medical Review Panel (Panel) determined that history was all important, having considered all the available material and noting that the history of continuity of symptoms first appeared in the clinical notes of a physiotherapist, Mr Coleman, some months after the accident, in relation to the right hip; the Panel determined that the claimant in the accident suffered a minor injury to the cervical spine and did not suffer injury to the right and left shoulders or right and left hips; Held – the certificate assessing the permanent impairment was confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel confirms the certificate dated 13 November 2021. |
STATEMENT OF REASONS
INTRODUCTION
Lance Chapman (the claimant) sustained injury in a motor accident on 5 July 2018.
He was the driver of a four-wheel drive utility, heading north on the Cahill Expressway in Sydney in heavy traffic. His vehicle had stopped moving when it was struck from behind by a truck. Although he had seen the truck approaching in his mirror, the claimant did not anticipate the impact which he has described as “a heavy whack” and, “a big hit”.
He was restrained by his seatbelt, no airbag was fitted and he says that he could not recall any specific trauma or contact to his body from any internal structural part of his vehicle. He did not report any part of his body sustaining a direct impact. He says that at the time of the impact, he believed his right foot was on the foot brake and he hit the brakes hard, whilst his right elbow was leaning against the window.
He was not pushed into the vehicle in front, he was able to drive his vehicle away but the steel framework of the utility tray at the back had been bent, he believes as a result of being impacted by the truck’s bullbar.
NRMA (the insurer) insured the owner and/or driver of the truck for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The issues in dispute are 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 MAI Act.
The claimant alleges that he suffered impairment to the following body parts by reason of the motor accident:
(a) cervical spine;
(b) right shoulder;
(c) left shoulder;
(d) left hips;
(e) right hip, and
(f) scarring to the hip.
The review
The application for referral of the medical assessment of Medical Assessor Moloney to a Review Panel (Panel) was made on 20 December 2021 by the claimant, within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[1]
[1] Section 7.26(10) of the MAI Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that 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.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[2] that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[2] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[3]
[3] 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 Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
All Panel members have had no previous involvement with the claimant or with this matter.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[5]
Assessment under Review
[5] Section 7.26(6) of the MAI Act.
Medical Assessor Moloney determined that the claimant sustained musculoligamentous injury to the cervical spine, right shoulder, left shoulder and left hip.
He determined that these were minor injuries not capable of assessment.
He determined that the following claimed injuries were not caused by the motor accident:
● left hip - osteoarthritis;
● right hip - osteoarthritis;
● left shoulder - musculoligamentous injury, and
● scarring - hip.
He further determined that a decision as to whether these injuries were minor or not was not required for the purposes of the Act.
MATERIAL BEFORE THE REVIEW PANEL
Review Application
No material was provided by the claimant or the insurer other than the documents that had been uploaded onto the portal.
Claim form
I am unable to read the date on the claim form, but in relation to the injuries said to have been suffered in the accident, the claimant identified the injuries as “Whiplash-Neck”. There is no reference to any other body parts being injured.
Claimant’s statement
In his statement dated 20 October 2020 the claimant says as follows:
“11 The impact of the collision was sudden and severe, pushing my vehicle forward. I instinctively jammed my right foot down on the brake pedal and was able to avoid crashing into the rear of the vehicle in front of me. I was immediately thrown violently, forwards and backwards within the constraints of my seatbelt and as a result I was in shock and immediately felt the onset of instant pain and discomfort in my neck and chest, which radiated through into my right hip and thigh.
12 The police and ambulance attended the scene of the accident. After receiving initial assistance from the ambulance officers, I did not feel the need to go to hospital. Despite being in extreme shock and feeling sore all over my body, I just wanted to go home and recuperate. I exchanged information with the insured driver and was able to drive my damaged utility from the scene of the accident.
13 Shortly after the accident, I returned home and was not feeling very well. I was still feeling extremely anxious and was experiencing severe headaches and constant pain and discomfort in my neck, shoulders, lower back, right hip and right leg. After taking pain relieving medication, I retired to bed in the hope that I had only suffered minor injuries and that with some rest, the pain would slowly disappear.
14. As a result of the subject motor vehicle accident, I suffered a severe whiplash type injury to the neck and an injury to the right hip”.
In his statement, the claimant then sets out his treatment history referring to consultations with his general practitioner, Dr Tass James between 6 July 2018 and 17 August 2018 when he says he was referred by Dr James to Mr Doug Coleman, physiotherapist. In that statement, the claimant does not suggest that he reported any symptoms in his right hip or thigh to Dr James. Those consultations took place on 6 July 2018, 10 July 2018,
20 July 2018, and 15 August 2018.On 8 December 2018, the claimant wrote to Dr Sischy wherein he said:
“After some thought, subsequent to my last visit with you on 6/12/18, I have never complained to you of right Hip pain leading up to my accident. At the time of the accident where I was rear ended, with my right foot fixed on the brake (I was stationary when the collision occurred due to heavy traffic on the Harbour Bridge), I experienced a sharp sensation in my right hip. This pain, however, was completely overridden by the whiplash pain. I have reported changes to my right hip on occasions, but my main goal was to fix my Cervical/Thoracic pain.
My next appointment with a doctor is with Dr Michael Solomon on 28/12/18.
Following the accident, there has been a slow but steady increase in right hip pain. Also, there has been an increase in lower back and right leg pain, which has developed over the months. It has become chronic of late and I am unable to cope with the pain and require medication to relieve the ongoing pain and discomfort. Please note there has been no approval for any treatment on my right Hip.
Could please check your case history to verify what I am putting in print is correct.”
Medical certificate
Dr James provided two medical certificates.
Physiotherapist
Notes made available by Mr Coleman, physiotherapist, indicate that the claimant was referred to him for treatment by Dr James on 15 August 2018. The notes indicate that a history was taken in these terms “post-injury some are R hip symptoms”. Underneath the words hip symptoms is another note, “cross six weeks 3-1-19”.
The notes indicate that the claimant was afforded treatment on 17 August, 27 August and
29 August, but that treatment, it appears was to the cervical spine only. Similarly, the cervical spine was treated on 7 September 2022. There is then a gap in the notes until
7 December on which occasion it was noted that “R HIP still problem”.Then on the 19 December, the notes record, “there is a change in all R hip movements. There is a visible decrease in muscle mass in all groups around the R hip. Gentle mobilisation of the R hip in all ranges of motion”. It is also noted that the claimant was given some exercises to strengthen the right hip muscle groups.
Mr Coleman also completed two medical certificates. The first is dated 10 October 2018, which predates the referral date. That certificate records a complaint of “RIGHT HIP PAIN”. Complaints are also noted in relation to the cervical and thoracic spine.
In a second certificate dated 12 December 2018, the physiotherapist records,
“HE IS ALSO EXPERIENCING R HIP PAIN AND DIFFICULTY WITH FUNCTIONAL ACTIVITIES. CERVICAL/THORACIC PAIN, DECREASED NECK RANGE.
HE IS EXPERIENCING INCREASED R HIP PAIN AND DIFFICULTY WITH WEIGHTBEARING ACTIVITIES.”
Dr Michael Solomon
Dr Michael Solomon, the claimant’s treating surgeon who performed the hip replacement reported to Dr Sischy on 28 December 2018. In that report, he notes that he recorded the following history from the claimant:
“He was doing quite fine until six months ago. He was involved in a motor vehicle accident when he was rear-dash ended by a six tonne truck. He slammed his right foot on the brakes and ever since then has had ongoing pain. He also had neck pain due to a mild whiplash in injury.”
On the basis of the history with which he was provided, Dr Solomon opined:
“Whilst his arthritis has been present for a number of years and there is no doubt that at some point his hip would need replacing, ever since he had the accident, his hip has become symptomatic and has not let up. The accident has therefore brought forward the timing of his surgery.”
Qualified opinions
Dr James Bodel, orthopaedic surgeon, reported to the claimant’s solicitors on
11 February 2020 following his examination of the claimant on 11 February 2020.His report Dr Bodel notes being provided with the following history:
“He was stationary behind a long line of peak hour evening traffic.
Suddenly he was hit from behind by a large, “six tonne truck”. He was pushed forward but did not strike the vehicle in front. He was shocked immediately after the accident and aware of an immediate onset of severe pain in the neck and also pain in the region of the right hip and thigh….
His neck pain has slowly improved but never completely resolved, but his hip pain has rapidly deteriorated. The physiotherapy did help the neck but it was of no real benefit in the hip.”
On the basis of the history provided and material available to him, Dr Bodel diagnosed that the claimant had suffered a soft tissue whiplash injury associated disorder involving the cervical spine, rotator cuff pathology involving the right and left shoulders, and the aggravation of previously asymptomatic or relatively asymptomatic degenerative change in the right hip caused by the motor vehicle accident. In a separate report, Dr Bodel assessed that the claimant had an accessible whole person impairment of 6% for the right upper extremity, 2% for the left upper extremity, 15% for the right hip replacement, and 1% for scarring pursuant to the TEMSKI scale.
In relation to the right hip, Dr Bodel deducted 10% for pre-existing abnormality which was causing some intermittent symptoms. Accordingly, he assessed the total rateable whole person impairment at 21%.
SUBMISSIONS
Claimant’s submissions
In support of the application for a review, the claimant's solicitor submitted very detailed submissions which I have had regard to.
Specifically, it was submitted on behalf of the claimant that:
“7. The assessment of Assessor Moloney is incorrect as:
a.The incorrect test was applied to determine whether the claimant suffered any injury to his hip (left and right), left shoulder and scarring of his hip.
b.The claimant was denied procedural fairness, by reason of:
I.Proper reasons not having been provided;
II.Not dealing with a clearly articulated issue raised by the claimant; and
III.Failing to raise a matter adverse to the claimant with him.”
In relation to the complaint that Medical Assessor Moloney had applied the “incorrect test”, it was submitted that:
“13.Assessor Moloney had no regard to the claimant’s reporting about an immediate onset of symptoms in his right hip, see at [11], [12], and [15] of his statement dated 27 October 2020 as such, he has not considered all the material before him.
14.Furthermore, Assessor Moloney considered the absence of contemporaneous notation of symptoms in the clinical records to be fatal and favoured against any hip injury. That approach ignores the comments of Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and in Mason v Demasi [2009] NSWCA 227 at [2] about the caution which should be taken when considering clinical notes.
15.The entry from Dr Sischy, general practitioner, at South Maroubra Medical Practice, on 11 December 2018 amplifies the error committed by Assessor Moloney in placing undue weight on the clinical notes. There Dr Sischy recorded that he [the claimant] needs to go back to his other LMO to discuss the events as the physio feels his problems exacerbated by this MVA [sic and emphasis].
16.Assessor Moloney has also completely misunderstood the physiotherapy records in that they support the immediate onset of symptoms after the accident. The first page of A17 and R3 provides “post-injury some R hip symptoms”. While it might be said that note is vague, that only highlights the error in placing undue reliance on clinical notes and ignoring what is contained within the claimant’s statement.
17.Indeed, the approach adopted by Assessor Moloney almost perfectly aligns with the error identified by Hulme JA in Bugat v Fox [2014] NSWSC 888 at [32]:
‘While I accept that, as an administrative decision maker, the Panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ – Allianz Australia Insurance Ltd v Motor Accident Authority of NSW (2006) 47 MVR 46; [2006] NSWSC 1096 at [36] - in expressing themselves the way they have, the Panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so, they erred, the error being one apparent on the face of the record.’
18.Based on the reasons given, it is also clear that Assessor Moloney only turned his mind to whether the ‘injury’ to the claimant’s hip had been caused by the accident. That is not the test as it suffices for the accident to have contributed to that ‘injury’ which then necessitated the hip surgery. On that exercise, the surgery, which is an incident of the injury, is not ‘minor’ injuries.”
It was also submitted in the application for the review that the claimant had been denied procedural fairness by reason of the alleged failure by Medical Assessor Moloney to raise a matter adverse to the claimant with him at the time of the examination.
It was further asserted that Medical Assessor Moloney failed to provide proper reasons.
In particular it was submitted:
“31.While not an “argument”, the contemporaneous complaints of hip symptoms in the claimant’s statement was the “real question to be decided” but despite that, it was not dealt with at all. It follows the claimant was not afforded natural justice.”
The review application was successful and which brings the matter before the currently constituted Medical Review Panel.
Insurer’s submissions
Although the insurer’s submissions were not successful in resisting determination that a review was required, it is of assistance to note some of the submissions made by the insurer. In particular, the insurer submitted:
“The Assessor has clearly explained that ‘if the accident had caused an acute flare-up, it would be expected that the range in function and pain would have been more immediate and within a week or so of the accident.’ The fact that Mr Chapman attended a physiotherapist for several months before right hip dysfunction and pain was recorded indicates that it is not causally connected to the motor accident.…”
It is evident that the Medical Assessor’s determination is consistent with what was reported by the claimant in the statement and available medical evidence. That is, the claimant confirmed the right hip symptoms had resolved one day following the accident and did not experience symptoms again or require treatment until several months later.
The Medical Assessor has also provided a clear explanation that the right hip replacement surgery is not causally related to the accident:
“The treating orthopaedic surgeon, Dr Solomon, gave an initial opinion that he had no doubt that at some point the right hip would need a total replacement and stated that the accident may have brought forward the time of surgery. However, there is no evidence that the accident actually altered the symptoms and signs in the right hip. Therefore, I consider that there was no injury to the right hip sustained in the subject accident.”
It is clear that whilst the Medical Assessor has taken into consideration the opinion of Dr Solomon, however, upon review of available evidence, the Medical Assessor considered that there is no indication that there is a flare-up of the pre-existing condition as a result of the subject accident. Therefore, there is no evidence to indicate the right hip symptoms post-accident led to the need of right hip replacement surgery.
RE-EXAMINATION
Medical Assessors Gray and Curtin examined the claimant on 2 September 2022 and reported in the following terms:
“History
1. Pre-accident medical history and relevant personal details.
Mr Chapman said he had enjoyed good general health prior to the accident on 5/07/2018.
He was born and raised in Sydney, completed his higher school certificate then worked for a newspaper for several years as a journalist. He obtained employment with Sydney Water, where he worked full-time in years administration for 38 until his retirement in 2018, with no current employment.
He has had a long held interest ln horse racing and horse riding, since strapping racehorses at school. He said that he last rode a horse about three months ago.
He fell off a horse ln 2012 and sustained a lower back injury (fractures of the right transverse processes of L2, 4), but said the symptoms from the low back had subsequently settled completely.
Some years ago, he made a workers compensation claim for a fractured nose sustained in a football accident while working for Sydney Water, with no other workers compensation claim.
Mr Chapman denied any past history of being injured in a motor accident
He does not smoke cigarettes and does not regularly drink alcohol.
At the time of the motor accident, he was taking propranolol for an irregular heartbeat together with a statin and medications for reflux; .currently taking lnderal, Somac and a statin.
There was no past history of surgery apart from gastroscopies and the more recent right total hip replacement (THR).
Mr Chapman reported no history of injury to his neck, shoulders or hips prior to the motor accident; he had sone osteopathic treatment for intermittent stiffness in his neck in the past but no investigations.
There was no prior history of discomfort in his right or left hip, and no history of any imaging or treatment of the hips or shoulders required prior to the accident.
Mr Chapman is now divorced ‘a single father’ - living with his three teenage children and he does all the housekeeping.
2. History of motor accident
Mr Chapman stated that he sustained injuries in a motor vehicle accident on the 05/07/2018. He was the driver of a four wheel drive utility, going south on the Cahill Expressway in heavy traffic. He had stopped moving when struck from behind by a truck. Although he had seen the truck approaching in his mirror, he did not anticipate the impact, which he said was, ‘a heavy whack’ and, ‘a big hit’ quite a shock to him.
He was restrained by his seatbelt, no airbag was fitted, and said he could recall no specific trauma or contact to his body from any internal structural part of his vehicle he did not report that any part of his body sustained a direct impact. He said at the time of the impact, he believed his right foot was on the fool brake and he hit the brakes hard while his right elbow was leaning against the window.
He was not pushed into the vehicle in front. He was able to drive his vehicle away but that the steel framework of the utility tray at the back had been bent, he believed, by the truck’s bulbar.
3. History of symptoms and treatment following the motor accident
Mr Chapman stated that immediately after the accident he was aware of discomfort in his neck, being pain from the base of the back of his neck going into both proximal trapezius areas. He said that his whole body was, ‘in shock’ but acknowledged that he was able to exit his vehicle promptly without apparent concern. To direct questioning, Mr Chapman said he was not aware of any immediate discomfort from his shoulders or his hips. He was questioned specifically about this, because this opinion was at variance with his letter dated 8/12/2018 to Dr Sischy, when he stated that immediately after the accident he experienced a sharp sensation in his right hip, symptoms which were completely overridden by the whiplash pain. The letter also states that there had been a slow but steady increase ln these symptoms follow ng the accident, a description that was not repeated to the assessors.
An ambulance attended the accident scene and advised him that he was safe to drive away, and that he should attend his local doctor for further care.
The day after the accident he consulted Dr Tass James, General Practitioner (GP). He normally consulted Dr A Sischy GP at a different practice, and whose records with
Mr Chapman extended over a.t least the previous seven years. Those records do not reveal any prior symptoms relating to his neck, shoulders or hips.Dr James’ clinical notes of the 6/712018 referred to the car accident the previous day, and that Mr Chapman complained of a sore neck which was stiff on examination.
Although other symptoms were not recorded, Mr Chapman now states that he did in fact report some discomfort in his right leg, ‘a bit of pain the next day’, pointing to the proximal right leg that he said settled.
When questioned about this in some detail, he said that the discomfort was mainly in the region of the right thigh, and that these symptoms gradually settled over the following week; he said he didn’t notice any issue with regard to the left hip or leg.
Mr Chapman said that at that time, he had also reported discomfort in his ‘right shoulder’; however. after further direct enquiry from Mr Chapman, the assessors concluded that the ‘right shoulder’ symptoms related to the side of the neck and the adjacent right trapezius area, not to the right shoulder itself. Mr Chapman said that any symptoms of discomfort in his left shoulder and left hip were mild and had completely settled within a couple of days. He said Dr lames gave him some analgesics that he believed was Panadeine Forte and thought he took some Nurofen himself.
Mr Chapman was reviewed again by Dr lames on the 10/7/18 and 20/7/18 when the brief clinical notes made reference to neck pain only and recorded the results of a cervical spine x-ray which showed degenerative changes only.
The next clinical entry from Dr James did not occur until the 11/12/18, five months later when there is the first report of pain in the right hip and leg to Dr James, and that he already had an appointment to see an Orthopaedic surgeon (Dr Solomon) about this.
Two days after the accident Dr James referred Mr Chapman to Mr D Coleman, Physiotherapist, whom he saw regularly over the ensuing five months. Mr Chapman said that the physiotherapist had been, ‘dealing with my hips all along.’ An AHHR dated 15/8/l8 from Mr Coleman refers to, ‘post injury some right hip symptoms’, but immediately below this entry there is an additional date of 03/01/2019, the relevance of which is uncertain. There is a so an AHRR dated 10/10/2018 from Mr Coleman which refers to cervical/thoracic pain, limited neck movement and right hip pain. The document contains no reference to any shoulder symptoms. Mr Colemans’ subsequent clinical entries refer only to the neck, until the 23/12/18, when there is an entry ‘today complains of ongoing right hip...’ Further down the same page there is an entry dated 19/12/18 (which is not in continuity with earlier entries) which recorded right hip stiffness and recommended a plan of gentle mobilisation and strengthening exercises. Assessor comment: the issue of specific right hip symptoms and treatment, early post-accident, was explored with Mr Chapman ln some detail however, the assessors were unable to obtain a consistent history. Mr Chapman quoted that the physiotherapist had noted that he had seen him, ‘hobbling’ and advised it was his hip and to see his GP. However, Mr Chapman was unable to define when this occurred,
4. Details of any relevant injuries or conditions sustained since the motor accident
In December 2018 Mr Chapman consulted Dr Sischy again regarding his right hip. An x ray (3/12/2018) showed severe osteoarthritic changes at the right hip joint to
Dr Michael Solomon, Orthopaedic surgeon, who carried out a right hip replacement or 20/02/2019. Dr Solomon was of the view that the arthritis had been present for a number of years, that there was no doubt that at some point his hip would need replacing, but that the accident had brought forward the timing of this surgery; Mr Chapman appears to have an uncomplicated recovery from this surgery.Mr Chapman denied any subsequent injury to the neck, shoulders or hips.
5. Current symptoms
Mr Chapman complained of ongoing stiffness and discomfort ln his neck, mainly on the right side. He said that a sudden jolt to the neck (eg jolt on a tractor) could result in a sharp pain radiating down his right arm, having occurred recently about three months earlier, then some months before that, with no paraesthesia. He also complained of intermittent headaches.
He said that his ‘right shoulder’ remained stiff and sore but pointed to the right trapezius area, and that he had difficulty sleeping on his right side as a result. The assessors felt symptoms described as ‘right shoulder’ were cervical symptoms with some radiation to the right trapezius area, not radiation to or intrinsic to, the right shoulder proper. He said that the ‘left shoulder.’ was, ‘not so bad’ .
With regard to the hips he was reasonably asymptomatic; he did not report any restriction in his capacity to walk, saying he could do several kilometres of walking. He did not report any difficulty going up stairs. He experiences, ‘a hurting’ if he stands too long, but was unable to locate the source of the ‘hurting’.
He reported a “dull feeling” in the left hip but was unable to locate this.
He said that he was aware of the scar on his right hip, and he thought the scar was unsightly, but otherwise it did not bother him.
6. Current and proposed treatment
Mr Chapman is not currently receiving any formal treatment in respect of injuries sustained in the motor vehicle accident; his children give him massages for his neck.
Clinical Examination (Assessors Dr R Gray and Dr P Curtin)
7. General Presentation
Mr Chapman was a large Caucasian man of 65 years with a BMI of 32.6 (182 cm and 108 kg). He was pleasant, well-groomed and dressed, and was cooperative with the interview and examination.
He was a detailed historian, sometimes vague about his symptoms and inclined to wander away from questions being posed to him with some inconsistency.
Mr Chapman moved easily without an obvious limp. He was able to walk on his toes, then on his heels.
Cervical spine: examination of active neck movements showed terminal restriction of flexion/extension, lateral tilt and rotations, with no evidence of dysmetria. There was minimal tenderness on the right side of the neck, without guarding. There was tenderness in the proximal aspect of the right trapezius with no guarding. There were no radicular symptoms or clinical signs.
ln the thoraco lumbar spine there was a full .range of flexion/extension, with some limitation of lateral tilt but this was symmetrical without dysmetria. There was no tenderness and no guarding. There were no radicular symptoms or signs.
Shoulders: examination of the shoulders revealed no evidence of wasting. There was slight stiffness of the right shoulder compared to the left (chart below).
There was no limitation of shoulder movements by any cervical spine considerations or complaint.
The power of shoulder abduction was within normal limits and equivalent both sides. There was no impingement elicited.
Note: there was a barely perceptible fine line scar extending for 6 cm over the point of the right shoulder with no suture marks, and Mr Chapman appeared unaware of its presence.
Assessor comment: Mr Chapman could recall no former right shoulder injury or surgery. Despite this, the assessors concluded that there had probably been an injury or medical condition about the right shoulder in the past, potentially affecting current movements.
Shoulder Movement
Active ROM Measured RIGHT
Active ROM Measured LEFT
Flexion
140°
150°
Extension
40°
50°
Adduction
45°
50°
Abduction
160°
160°
Internal Rotation
30°
50°
External Rotation
90°
90°
Upper limbs: in the upper limbs, there was no specific deficit elicited - the reflexes were symmetrical and normal, with no power deficit, There was no muscle wasting lo measurement, and no sensory loss,
Hips: there was no localising tenderness about either hip.
Examination of the right hip revealed a mature, soft flat scar extending for 11 cm on the antero-lateral aspect of the hip. The scar was slightly depressed, and there were no suture marks. There was no significant loss of sensation in relation to the scar.
There was a reasonable range of movements in both hips, with some slight restrictions on the right side compared with the left (see below)
Hip Movement
Active ROM Measured RIGHT
Active ROM Measured LEFT
Flexion
110°
130°
Extension
No fixed flexion
No fixed flexion
Adduction
30°
30°
Abduction
40°
70°
Internal Rotation
20°
30°
External Rotation
30°
50°
Lower limbs: there was some wasting of the right thigh (47 cm, measured 10cm above the superior border of the patella) compared with the left thigh (49 cm); the assessors felt this disparity was consistent with the right THR.
Maximum circumference of the calves was symmetrical.
Lower limb reflexes were symmetrical with no sensory or power loss.
Both knees were stable on examination with a full range of movement, and with no evidence of patello-femoral crepitus.
X-ray and MRI cervical spine. Not sighted - in documents
X-ray Right Hip, 3/12/2018 (MAS attachments p18) “there is severe osteoarthritic changes noted in the right hip with bone on bone articulation and sub cortical cystic formation and osteophyte ptosis. Bony remodelling is noted on the femoral head. There is loss of the usual femoral head/neck junction offset which would have predisposed the patient to a cam type femoro acetabular impingement. No acute fracture or dislocation. A well corticated bony fragment of the lateral aspect of the left femoral head appears well corticated and chronic in nature. Are the pelvic brim is intact”
8. Comments on consistency
As noted throughout the report above, there were inconsistencies between the history given to the assessors, and those expressed ln his letter of the 8/12/18 and medical documentation.
Aspects of the certificate of Assessor Molonev and the medicolegal reports of Dr J Bodel 11 February 2020, were reviewed with the claimant:
Under item 9 on page 3, Assessor Moloney noted that prior to the accident he had been active, riding horses, swimming and surfing on a regular basis. To direct questioning, Mr Chapman said the last proper surfing he had undertaken was six to seven years ago,
Under item 11, Mr Chapman was advised that the Assessors had noted that his GP had recorded a ‘sore neck’ the day after the motor accident. Mr Chapman said the worst pain was his neck and he said this came from, ‘just a whack’, and also said that he didn’t think it was his hip at that stage
On asking about his shoulders, Mr Chapman could describe no specific injury to either shoulder from the motor accident, except for trapezius muscle complaints.
On referring to Mr Chapman’s statement of 8 December 2018, Mr Chapman described, ‘a sharp sensation in my right hip’ and this aspect was discussed with Mr Chapman. On asking him to outline where the ‘right hip’ pain was, at different times of the consultation, Mr Chapman described different anatomical areas being affected. on further questioning, he said that he did notice some discomfort in the proximal thigh area in the day or so after the accident but this settled.
With regard to the report of Dr J Bodel (20 February 2020), under ‘History Relating to the injury’ on page 2, Dr Bode noted, ‘He was shocked immediately after the occident and aware of an immediate onset of severe pain in and also pain in the region of the right hip and thigh’ … ‘He developed an increasing neck pain and right hip pain and he states that the police and the ambulance did attend but he did not go to hospital’ .
The issue of right hip pain early post-accident was again raised with Mr Chapman - he described some generalised pain but he was unable to consistently point to an area where pain was located immediately post-accident, except discomfort in the proximal thigh area thar settled a day or two later.
Panel Comment: Dr Bodel’s above history, is not consistent with the medical documentation by the GP, nor the current recollection of the claimant.
CONCLUSIONS
Right hip: the assessors concluded that there was no evidence of any specific physical injury to the right hip joint sustained in the motor vehicle accident on the history available, apart from the opinion expressed by Mr Chapman on 8/12/18.
ln particular, no indication that there was any aggravation or exacerbation of symptoms from the longstanding/pre-existing and marked right hip arthritis, as there was no obvious mechanism of injury apart from his sudden pushing down of the brake pedal; the assessors concluded that without an early (day or two) precipitation of hip symptoms there would be no mechanism for a material injury/force to injure the longstanding right hip arthritis.
X-ray of December 2018 show advanced arthritic changes right hip that would naturally symptomatically deteriorate in the short term, requiring consideration of total hip replacement.
Mr Chapman did give the history to the Assessors of a possible soft tissue contusion/strain in the soft tissue of the proximal right thigh/pelvis for some days post-accident (localisation by Mr Chapman variable to questioning by the Assessors and not noted independently by his GP) that resolved fully over some days. The Assessors did not consider that this presentation was a right hip joint injury, but a possible soft tissue injury to the thigh.
That is, the history given by Mr Chapman together with the documentation supplied suggested that any right thigh symptoms following the accident were not localised to the right hip joint and were minor and transient. It is clear that Mr Chapman had severe longstanding osteoarthritic changes in the right hip. Had any aggravation of this arthritis occurred during the accident, one would expect hip related symptoms to appear immediately or at least within a few days. Mr Chapman did not describe any such symptoms, and documentary evidence of hip discomfort did not appear until the 10/10/18 in the AHRR submitted by his physiotherapist. Notwithstanding the opinion of Dr Solomon his treating surgeon, there was no evidence that the accident resulted in any aggravation of the underlying osteoarthritis of the right hip. There was no evidence of any injury to the left hip.
Right shoulder: there was no evidence that the accident resulted in any injury to either shoulder, and it appeared to the assessors that his symptoms of ‘right shoulder’ pain are related to some discomfort and stiffness in the trapezius muscle adjacent to the right side of the neck. The Nguyen principle was not applicable because, during the examination and the associated questioning by the assessors, there was no limitation of shoulder movements by any cervical spine complaints/consideration; movements of the right shoulder did not precipitate neck symptoms. There was no rateable impairment of the cervical spine. There was no evidence of injury to the left shoulder.
Cervical Spine: The Assessors concluded there was a soft tissue injury to the cervical spine caused by the motor accident, with no radiculopathy. Radiology documented long standing degenerative changes with some mild intermittent symptoms in the past.
Minor injury Cervical Spine
DRE l= 0% WPl.
Right and Left Shoulders; Right and Left Hips - no injury caused by the motor accident”
CONCLUSIONS AND FINDINGS
In determining this matter, history is all important.
The first written account of the injuries sustained by the claimant is contained in his claim form. In the claim form, the claimant states that he suffered a whiplash injury to the neck and makes no reference to sustaining any other injuries.
The claimant made two statements, the first of which is dated 22 October 2020 and is referred to in more detail. In that statement at paragraph 11, he says that following the collision, he “immediately felt the onset of pain and discomfort in my neck and chest which radiated through into my right hip and thigh”.
At paragraph 13 in his statement, he says:
“shortly after the accident, I returned home and was not feeling very well. I was still feeling extremely anxious and was experiencing severe headaches and constant pain and discomfort in my neck, shoulders, lower back, right hip and right leg.”
At paragraph 26 in his statement, the claimant says that by late November 2018,
“my lower back and right hip pain had increased so much so that I had difficulty functioning and getting on with my daily tasks. I began to limp and noticed a constant clicking in my right hip. I had difficulty bending, walking, turning, ascending and descending stairs, standing or sitting for prolonged periods of time and interrupted sleep. I also struggled putting on my socks and shoes and I experienced difficulty driving and getting into and out of my motor vehicle.”
There can be no doubt that there was a marked deterioration in the claimant’s symptoms and capacity to perform even mundane tasks in November of that year.
Mr Coleman, the physiotherapist first note is dated 15 August 2018. Those notes record “injury some R hip symptoms” and then there is an oblique reference to the date
3 January 2019. The notes in relation to treatments afforded on 17, 27 and 29 August, record the treatment to the cervical spine but not the hip.On 19 December 2018, the notes record “there is a change in all R hip movements. There is a visible decrease in muscle mass in the groups around the R hip”.
At that treatment, Mr Coleman notes for the first time “there is some referred pain into the R shoulder with palpation of C4, C5, C6”.
It was recorded that the treatment of the claimant did not commence with Mr Coleman until 15 August, there is also a certificate from him dated 10 August 2018. In that report, he noted that he assessed the claimant for cervical and thoracic pain, limited neck movement and right hip pain.
In a certificate dated 12 December 2018, Mr Coleman notes again that he assessed the claimant for cervical and thoracic pain following a whiplash injury and added “he is also experiencing a hip pain and difficulty with functional activities”.
As is referred to in more detail earlier in this decision, both Drs Bodel and Solomon have expressed the opinion that despite the significant degenerative change in the right hip, the accident brought on the need for the hip replacement earlier than would otherwise have been necessary. In forming that opinion, each of those doctors was reliant upon the history that they obtained from the claimant of ongoing symptoms in the right hip almost from the date of the accident.
At the re-examination on 2 September 2022, Medical Assessors Gray and Curtin record the following history as having been taken from the claimant:
“To direct questioning, Mr Chapman said he was not aware of any immediate discomfort from his shoulder or his hips. He was questioned specifically about this, because this opinion was at variance with his letter dated 8 December 2018 to
Dr Sischy, when he stated that immediately after the accident, he experienced a sharp sensation in his right hip, symptoms which were completely overwritten by the whiplash pain. The letter also states that there had been a slow but steady increase in these symptoms following the accident, a description that was not repeated to the assessors.”In relation to the relevant history, Medical Assessors Gray and Curtin further note that:
“The day after the accident, he consulted Dr Tass James, general practitioner (GP). He normally consulted Dr A Sischy GP at a different practise, and those records with Mr Chapman extended over at least the previous seven years. Those records do not reveal any prior symptoms relating to his neck, shoulders or hips. Dr James’ clinical notes of 6/7/2018 referred to the car accident the previous day and that Mr Chapman complained of a sore neck which was stiff on examination.
Although other symptoms were not recorded, Mr Chapman now states that he did in fact report some discomfort in his right leg, ‘a bit of pain the next day’, pointing to the proximal right leg that he said settles. When questioned about this incident in some detail, he said that the discomfort was mainly in the region of the right thigh, and that these symptoms gradually settled over the following week; he said he didn’t notice any issue with regard to the left hip or leg.
Mr Chapman said at the time, he had also reported discomfort in his ‘right shoulder’; however, after further direct inquiry from Mr Chapman, the assessors concluded that the “right shoulder” symptoms related to the side of the neck and the adjacent right trapezius area, not to the right shoulder itself. Mr Chapman said that any symptoms of discomfort in his left shoulder and left hip were mild and had completely settled within a couple of days. He said Dr James gave him some analgesics that he believed was Panadeine Forte and thought he took some Nurofen himself.
Mr Chapman was reviewed again by Dr James on 10/7/18 and 20/7/18 when the brief clinical notes made reference to neck pain only and recorded the results of a cervical spine x-ray which showed degenerative changes only.
The next clinical entry from Dr James did not occur until 11/12/18, five months later when there is the first report of pain in the right hip and leg to Dr James, and that he already had an appointment to see an orthopaedic surgeon (Dr Solomon) about this.”
The Medical Assessors in the report then referred to the clinical notes of Mr Coleman, physiotherapist. In relation to the history, the Medical Assessors concluded:
“Assessor Comment: the issue of specific right hip symptoms and treatment, early post-accident, was explored with Mr Chapman in some detail; however, the assessors were unable to obtain a consistent history. Mr Chapman quoted that the physiotherapist had noted that he had seen him, “hobbling” and advised that it was his hip and to see his GP. However, Mr Chapman was unable to define when this occurred.”
Recorded the relevant history as follows:
“He said that his ‘right shoulder’ remained stiff and sore but pointed to the right trapezius area, and that he had difficulty sleeping on his right side as a result. The assessors felt symptoms described as ‘right shoulder’ were cervical symptoms with some radiation to the right trapezius area, not radiation to or intrinsic to, the right shoulder proper. He said that the ‘left shoulder’ was not so bad.
There was scarring to the right shoulder. In this regard, the assessors noted
Mr Chapman could recall no former right shoulder injury or surgery. Despite this, the assessors concluded that there had probably been an injury or medical condition about the right shoulder in the past, potentially affecting current movements.”Later in the report, the Medical Assessors when considering the opinion of Dr Bodel of 20 February 2020 recorded in their report:
“The issue of right hip pain early post-accident was again raised with Mr Chapman - he describes some generalised pain but he was unable to consistently point to an area where the pain was located immediately post-accident, except discomfort to the proximal thigh area that settled a day or two later.”
The Medical Assessors noted that Dr Bodel’s history was not consistent with the medical documentation by the general practitioner, nor the recollection of the claimant at the time of their examination. As a result of the history obtained, the documentary records available to them and their findings on examination, the Medical Assessors concluded:
“Conclusion
Right hip: the assessors concluded that there was no evidence of any specific physical injury to the right hip joint sustained in the motor vehicle accident on the history available, apart from the opinion expressed by Mr Chapman on the 8/12/18.
In particular, no indication that there was any aggravation or exacerbation of symptoms from the longstanding/pre-existing and mark right hip arthritis, as there was no obvious mechanism of injury apart from his sudden pushing down of the brake pedal; the assessors concluded that without an early (day or two) precipitation of hip symptoms, there would be no mechanism for a material injury/force to injure the longstanding right hip arthritis.
X-ray of December 2018 show advanced arthritic changes hip that would naturally symptomatically deteriorate in the long term, requiring consideration of a total hip replacement.
Mr Chapman did give the history to the assessors of a possible soft tissue contusion/strain in the soft tissue of the proximal right thigh/pelvis for some days post-accident (localization by Mr Chapman variable to questioning by the Assessors and not noted independently by his GP) that resolved fully over some days. The assessors did not consider that this presentation was a right hip joint injury, but possible soft tissue injury to the thigh.
That is, the history given by Mr Chapman together with the documentation supplied suggested that any right thigh symptoms following the accident were not localised to the right hip joint and were minor and transient.
It is clear that Mr Chapman had severe longstanding a osteoarthritic changes in the right hip. Had any aggravation of his this arthritis occurred during the accident, one would expect hip related symptoms to appear immediately or at least within a few days. Mr Chapman did not describe any such symptoms, and documentary evidence of hip discomfort did not appear until 10/10/18 in the AHRR submitted by his physiotherapist. Notwithstanding the opinion of Dr Solomon, his treating surgeon, there was no evidence that the accident resulted in any aggravation of the underlying osteoarthritis of the right hip. There was no evidence of any injury to the left hip.
Right shoulder: there was no evidence that the accident resulted in any injury to either shoulder and it appeared to the assessors that his symptoms of “right shoulder” pain are related to some discomfort and stiffness in the trapezius muscle adjacent to the right side of the neck. The Nguyen principle was not applicable because, during the examination and the associated questioning by the assessors, there was no limitation of shoulder movements by any cervical spine complainants/consideration; movements of the right shoulder and did not precipitate neck symptoms. There was no rateable impairment of the cervical spine. There was no evidence of injury to the left shoulder.
Cervical spine: the assessors concluded there was a soft tissue injury to the cervical spine caused by the motor accident, with no radiculopathy. Radiology documented longstanding degenerative changes with some mild intermittent symptoms in the past.”
Having considered all the available material and noting that the history of a continuity of symptoms from the date of the accident first appears in the clinical notes of Mr Coleman, in relation to the right hip, the Medical Assessors determined that the claimant in the accident suffered a threshold injury to the cervical spine and did not suffer injury to the right and left shoulders or right and left hips.
Having considered all the available evidence, the decision of the review panel is that the certificate dated 13 November 2021 is confirmed is confirmed.
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