Insurance Australia Limited t/as NRMA Insurance v Mendiratta
[2024] NSWPICMP 615
•30 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Mendiratta [2024] NSWPICMP 615 |
CLAIMANT: | Dinesh Mendiratta |
INSURER: | IAG Ltd t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence O’Riain |
MEDICAL ASSESSOR: | Ian Cameron |
MEDICAL ASSESSOR: | Clive Kenna |
DATE OF DECISION: | 30 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); threshold injury and whole person impairment (WPI); Medical Assessor found 11% WPI; non-economic loss; spinal soft tissue and bilateral shoulder injuries claimed; insurer applied for review disputing causation and WPI; threshold injury dispute resolved in psychiatric assessment; re-examination; Held – Medical Assessment Certificate revoked; accident caused 4% total WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment of Degree of permanent impairment and threshold injury Replacement Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Review Panel’s assessed that the accident caused injuries with a different permanent impairment to Medical Assessor Home’s assessment and certificate issued on 2. Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate. 3. The motor accident caused injuries with a total percentage permanent impairment of 4%. The total permanent impairment is not greater than 10%. 4. The Panel affirms Medical Assessor Home’s threshold injury certificate issued on 12 February 2024. |
REASONS
BACKGROUND
These reasons address permanent impairment and threshold disputes under the Motor Accident Injuries Act 2017 (MAI Act).
Mr Mendiratta sustained injuries in a motor vehicle accident on 1 September 2020, as the seat-belted driver of a taxi with one rear seat passenger and one front seat passenger travelling along Kildare Road, Blacktown when a car came from his left impacting his passenger side of his car.
The Fire Brigade had to cut the front passenger side open. The claimant was able to open his door to get out of his side of the car. An ambulance took him to Blacktown Hospital where the hospital took CT scan images of the neck, head and spine. The hospital did not detect any fractures. The hospital discharged him the same day, after the staff observed his condition.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages and statutory compensation under the MAI Act. The insurer denied liability for damages on the basis the claimant’s injuries were “minor” as defined under s1.6 of the MAI Act.
The claimant applied to the Personal Injury Commission’s (Commission) for medical assessment – minor injury and permanent impairment.
The Commission referred the following injuries for assessment on the question of threshold injury:
· cervical spine-C4/5 disc protrusion;
· lumbar spine-L5/S1 posterior annular tear;
· head-soft tissue injury;
· left shoulder-tendinopathy of supraspinatus tendon and intrasubstance partial thickness tear, and
· right shoulder- partial thickness tear of supraspinatus tendon.
The Commission referred the following injuries for assessment on the question of permanent impairment:
· cervical spine- soft tissue injury;
· lumbar spine- soft tissue injury;
· head- soft tissue injury;
· left shoulder- soft tissue injury, and
· right shoulder- soft tissue injury.
Medical Assessor Home assessed the claimant’s physical injuries on 13 March 2023. He issued a certificate dated 17 March 2023 assessing minor injury under Schedule 2, s 2(e) of the MAI Act and permanent impairment under Schedule 2, s 2(a) of the MAI Act.
He found the accident caused all the referred injuries.
Following the MAI Act definition, he assessed the right and left shoulder injuries as non-minor injuries (now non-threshold), and the remainder of the injuries as minor (now threshold). The finding of non-minor injuries established the claimant could claim damages under the MAI Act.
In an amended certificate dated 3 November 2023 Medical Assessor Home eventually also assessed the permanent impairment as:
· cervical spine-soft tissue injury 5%;
· lumbar spine-soft tissue injury 0%;
· left shoulder- soft tissue injury 3%, and
· right shoulder- soft tissue injury 3%.
This was 11% permanent impairment, which established that the claimant could claim non-economic loss damages.
Meanwhile, after the assessment the insurer lodged several additional documents including imaging records and clinical notes plus the following:
(a) Dr Andrew McIntosh, collision and biomechanics engineer’s report dated
22 June 2023;(b) Associate Professor Michael Shatwell, orthopaedic surgeon’s report dated
24 July 2023;(c) Dr John Korber, radiologist’s report dated 2 August 2023;
(d) Dr Andrew Keller, occupational physician’s report dated 10 August 2023, and
(e) SIRA past claim search dated 15 August 2023.
These documents were admitted as late documents.
The clinical records revealed that the claimant had pathology and rotator cuff tears to both shoulders before the motor vehicle accident and had a workers compensation claim for the right shoulder in 2018/2019. Medical Assessor Home did not have these documents when he assessed the claimant on 13 March 2023. The other material commented on the claimant’s medical condition and whether the accident mechanism could have caused the claimed injuries.
The insurer applied on 7 September 2023 for further medical assessment on the basis that the above material could have a material effect on the outcome of the earlier assessment. That application led to Medical Assessor Home assessing the threshold injury and permanent impairment issues for the injuries listed above again on 8 February 2024.
The Medical Assessor addressed all the material the insurer submitted after the earlier assessment.
On 8 October 2023 psychiatric Medical Assessor Samson Roberts certified that the claimant’s psychiatric condition was a non-threshold injury. He did not assess permanent impairment, but the non-threshold injury issue is now spent for the purpose of establishing that the claimant is entitled to claim damages.
Medical Assessor Home’s further assessment certificate dated 12 February 2024 determined the accident caused all the injuries referred to him. He also found the same injuries were now all threshold injuries as defined in the MAI Act.
He assessed permanent impairment as follows:
· cervical spine- soft tissue injury; underlying degenerative change (5%);
· lumbar spine-soft tissue injury (0%);
· right shoulder- soft tissue injury (3%), and
· left shoulder- soft tissue injury (3%).
The permanent impairment remained as 11% satisfying the threshold for non-economic loss.
The insurer applied to the President of the Commission for review stating that the assessment was incorrect in a material respect, and the Medical Assessor failed to deduct pre-accident permanent impairment in either shoulder.
The Commission’s presidential delegate Jeremy Lum referred the medical assessment to a Review Panel (this Panel) on 8 April 2024.[1] The delegate based his decision to refer Medical Assessor Home’s further assessment to this review on the basis that the Medical Assessor omitted to address physiotherapy notes dated 22 July 2019, which the insurer asserts could enable a Medical Assessor to calculate the right shoulder’s permanent impairment before the subject accident.
[1] Section 7.26(5) of the MAI Act.
STATUTORY PROVISIONS
The statutory provisions, relevant case law on causation and the applicable Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.
Assessment under Review
Medical Assessor Home’s findings in the further assessment are summarised in Appendix B.
Matters considered and decided by the Review Panel
The Panel met on 13 May 2024 to discuss how this matter may proceed.
Reviewing the submissions, the only live dispute relates to the permanent impairment assessment. The submissions indicate the parties accept Medical Assessor Home’s most recent threshold injury dispute outcome.
Section 7.25 of the MAI Act does not allow for the parties to agree about exempting a threshold injury dispute from assessment.
If the parties did not want the Panel to review that dispute, then the applicant insurer could discontinue that dispute, or the parties could agree that the Panel can rely on the
12 February 2024 certificate as a sole evidence to resolve that dispute.The Panel notes the dispute referred to a work injury in November 2018 in respect of the right shoulder, clinical notes show a left shoulder injury in 2017 and a reference to one visit to the general practitioner (GP) in early 2022 regarding a painful neck after playing badminton. The insurer submits that the Panel should calculate permanent impairment and deduct those from any impairment related to the accident.
The Panel discussed the insurer’s bundle, which was excessive at 4,376 pages.
The Panel referred in its report to the parties to the High Court decision in Gamestar Pty Ltd v Lockhart [1993] HCA 79; (1993) 112 ALR 623. The Court observed in the absence of submissions referring to specific documents that a tribunal is not required to search for references within documents where the submissions do not specifically address the materials. The Panel also commends the comments of Bellew J in Bevan v Bingham [2023] NSWSC 19 concerning the obligation of legal practitioners to place only the necessary evidence before the decision maker.
The Panel considers many of the documents contained in the insurer’s bundle irrelevant to the disputes the Panel must consider. The insurer was informed about the issues the Panel needed fixed.
Accordingly, the Panel directed the insurer, on or before 10 June 2024 to rectify the issues. The insurer complied with the directions.
The Panel also considered the workers compensation settlement outcome could be relevant, and submissions should address whether the Panel should consider any other material as well as physiotherapist Joel Fernandez’s clinical note entry dated 28 May 2019, which sets out a diagnosis of right shoulder impingement, rotator cuff tear and right-sided acromial bursitis to assess permanent impairment before the subject accident.
The Panel considered re-examining the claimant was required. Medical Assessor Cameron agreed to examine the claimant on the Panel’s behalf on 19 July 2024 and write a report.
The parties provided the relevant CD scans to the Panel before the examination.
REVIEW PANEL FINDINGS
Documentation
The Panel considered the documentation in the parties’ bundles. That is summarised in Appendix D.
Re-examination
Mr Mendiratta attended unaccompanied for reassessment by Medical Assessor Cameron at Hornsby on 17 July 2024.
Background
Mr Mendiratta lives at Quakers Hill. He is currently living alone as his wife and two children moved out about a month ago. His children are aged 9 and 7 and both have health issues. There has been considerable family stress.
Mr Mendiratta said that his past health had generally been good. With prompting, he recalled that there had been a shoulder problem in about 2017 or 2018. He said he could not recall which shoulder was affected. He said that his shoulder problem subsequently resolved, and he was able to work as a taxi driver.
History of injury
On 1 September 2020 Mr Mendiratta was working as a taxi driver, and he had passengers in the vehicle. A vehicle hit the passenger side of the taxi.
Mr Mendiratta was taken by ambulance to Blacktown Hospital where he had assessments. He subsequently consulted his GP, Dr Saeed.
There was input from multiple other medical practitioners and there was also physiotherapy.
Mr Mendiratta said that further physiotherapy had been recommended but this had not been provided for 12 months. He was unhappy about that.
Current status
Mr Mendiratta said he had pain from his left and right shoulders. There was also low back pain. He did not mention specific symptoms related to his cervical spine.
Current medications are Panadeine Forte or other analgesics. The GP continues to be
Dr Saeed.Mr Mendiratta said he had recently started driving. He has had work trials, but he has not returned to any sort of work on a regular basis.
Examination
Mr Mendiratta is right-handed, 177cm in height and weighs 98kg.
Mr Mendiratta was co-operative. He was psychologically distressed at his current life situation and his condition after the motor accident.
At the cervical spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
At both shoulders there was inconsistent movement that Mr Mendiratta said was due to variable pain from the shoulders. The maximum observed movements at both shoulders were abduction 90 degrees, adduction 30 degrees, flexion 90 degrees, extension 30 degrees, external rotation 80 degrees, internal rotation 80 degrees.
There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
Circumferences of the upper extremities were right 28cm and left 28cm.
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was moderately and symmetrically reduced range of motion (to 60% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both knees. There was no crepitus or instability.
There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
Circumferences of the lower extremities were right 43cm and left 43cm.
Mr Mendiratta walked with a normal gait.
Imaging
The claimant provided imaging studies as follows:
· X-ray lumbosacral spine, 13 August 2013, showed a fracture of T6;
· CT thoracic and lumbosacral spine, 13 August 2013, showed a compression fracture of T6, and
· right shoulder MRI, 21 January 2019, showed tendinitis and interstitial tears.
Summary
In the motor vehicle crash on 1 September 2020 Mr Mendiratta sustained soft tissue injuries to his cervical spine, lumbar spine and he also sustained soft tissue injuries to both shoulders.
Mr Mendiratta is currently psychologically distressed and, due to pain, there is inconsistent movement at both shoulders.
The Panel notes that “Head – soft tissue injury” had been listed as an injury in the subject motor accident. There is no clear documentation of this injury. This is no medically verified abnormality of Glasgow Coma Score, post-traumatic amnesia or brain imaging abnormality. The Panel concluded that a soft tissue injury to the head could have occurred, but it had resolved.
The Panel agreed with Medical Assessor Home’s opinion about Dr McIntosh’s biomechanical report dated 22 June 2023. Dr McIntosh’s report speaks against the likelihood the accident could cause the injuries claimed. Medical Assessor Home discounted the report’s findings regarding the physical injuries that would result from the accident, on the following bases:
“Firstly, the severity of damage to vehicles seen on photographs is not determinative of injuries. It is known that low speed and minor motor vehicle damage do not always reflect the type and severity of injuries that could be sustained... ‘Statistical analysis and literary reviews do not provide definitive answers to the question of whether a car accident causes the claimant’s injury. This is because statistics and studies are based on persons with no previous injuries or relevant conditions. There are limited studies of side on collision victims as set out by Dr McIntosh at point 65 of his report… ‘The claimant has a pre-existing shoulder and spinal conditions that would make him vulnerable to injury. Therefore, relatively minor forces involved in an accident can nevertheless cause physical injury in these circumstances… ‘The opinion of
Dr McIntosh is further limited in this case due to the absence of images of the nearside of the claimant’s vehicle, his inability to observe the damage to the vehicles or their data recorders.”The Panel agreed with Medical Assessor Home’s opinion with reference to causation of injuries to the shoulders in the subject motor accident. Medical Assessor Home reported in his certificate that in;
"relation to the shoulder complaints, there is early documentation of right-sided shoulder pain. The mechanism of the accident involving a side-on collision could cause local damage to the supraspinatus tendon from the impact of the driver’s side window, which is recorded by his treating general practitioner, or due to traction injury to the tendon from the claimant’s hand position on the steering wheel in a side-on collision. On balance, I am satisfied that the MRI scan changes of a supraspinatus tear is considered to be a traumatic finding, notwithstanding the underlying degenerative changes in the tendon structure and associated mild arthritis in the AC joint. Similarly, there is a partial thickness tear in the left shoulder supraspinatus tendon against the background of tendinopathy. On balance, I find it is probable these represent traumatic tears noting the onset of shoulder pain, documented within 10 days of the accident."
The Panel had access to physiotherapy records from 22 July 2019. These records were not available to Medical Assessor Home. These records showed restriction of flexion and abduction to 140 degrees. These movements were significantly greater than present at the time of the re-examination. The Panel concluded that these movements could not be used to apportion current impairment because, due to inconsistency, use of range of motion to assess permanent impairment was not valid (cls 6.40 and 6.41 Motor Accident Guidelines). Hence assessment is modified, and the reasons are given below.
Impairment evaluation
Cervical spine – soft tissue injury
The neck injury (injury to the cervicothoracic spine) is assessed with reference to the Diagnosis Related Estimate (DRE) method from Chapter 3.3h of AMA4. Mr Mendiratta has “no significant clinical findings” with reference to this spinal region, and therefore DRE Cervicothoracic Category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE category II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits; nerve tension signs were negative and there was no weakness or loss of sensation.
Lumbar spine – soft tissue injury
The lumbar spine injury (injury to the lumbosacral spine) is assessed with reference to the DRE method. Mr Mendiratta has “no significant clinical findings” with reference to the lumbosacral spine, and therefore DRE Lumbosacral Category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE category II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, likewise there were no non-verifiable radicular complaints. Reflexes were within normal limits; nerve tension signs were negative and there was no weakness or loss of sensation.
Left shoulder – soft tissue injury
Due to pain, movements of this shoulder were inconsistent. In this regard the Motor Accident Guidelines, section 6.40 are noted: “The medical assessor must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the Assessor should modify the impairment estimate accordingly, describing the modification and outline the reasons in the impairment evaluation report”. It is, in the judgment of the assessor, not appropriate to rely on the measured range of motion in this case.
The clinical information does not show that there are major significant pathological changes present in this shoulder, although it is accepted that a tendon injury could have occurred as a result of the subject motor accident. Therefore, the assessment of permanent impairment is made by analogy, and it is determined that the impairment would be equivalent to mild crepitation (section 6.24 of the Motor Accident Guidelines) and see Table 19 page 59 AMA4 Guides at the acromioclavicular joints (see Table 18, page 58 AMA4 Guides) and therefore would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation.
Right shoulder – soft tissue injury
Due to pain, movements of this shoulder were inconsistent. In this regard the Motor Accident Guidelines, section 6.40 applies equally as in respect to the left shoulder. It is, in the judgment of the assessor, not appropriate to rely on the measured range of motion in this case.
The clinical information does not show that there are major significant pathological changes present in this shoulder, although it is accepted that a tendon injury could have occurred as a result of the subject motor accident. Therefore, the assessment of permanent impairment is made by analogy, and it is determined that the impairment would be equivalent to mild crepitation (section 6.24 of the Motor Accident Guidelines) and see Table 19 page 59 AMA4 Guides at the acromioclavicular joints (see Table 18, page 58 AMA4 Guides) and therefore would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation.
| Body Part or System | AMA Guides/ MAA Guidelines References (chapter/ page/table) | Stabilised (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1. | Cervical spine – soft tissue injury | Chapter 3, page 103 (AMA4) | Yes | 0 | 0 | 0 |
| 2. | Lumbar spine – soft tissue injury | Chapter 3, page 102 (AMA4) | Yes | 0 | 0 | 0 |
| 3. | Left shoulder – soft tissue injury | Chapter 3, Table 18, page 58 AMA4 | Yes | 2 | 0 | 2 |
| 4. | Right shoulder – soft tissue injury | Chapter 3, Table 18, page 58 AMA4 | Yes | 2 | 0 | 2 |
| Total | 4 |
Panel deliberations
The Panel met again on 2 August 2024.
The Panel decided to adopt Medical Assessor Cameron’s examination report with its conclusions and impairment assessment as evidence.
The subject accident caused the injuries referred to the Panel for review. The Panel noted the 2017 and 2018 work injury claims regarding the left and right shoulder but decided the subject accident had aggravated those conditions.
It is reasonable in this case to hypothesise that inconsistency could have been influenced by Mr Mendiratta’s psychological and mood conditions from before and after the accident rather than an attempt to mislead.[2]
[2] Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 and Richelmann v McCabe [2024] NSWCA 37 [134]-[141].
Further, the claimant’s account of the accident, which is a sudden and uncontemplated event, the passing of time, how it would affect his existing spinal and shoulder conditions, and the impact on his mental health can vary does not impugn his credit about what he is experiencing now.
The Panel agreed with Medical Assessor Cameron’s summation on Medical Assessor Home’s opinion about Dr McIntosh’s biomechanical report dated 22 June 2023.[3]
[3] Insurer’s bundle page 3,655.
The Panel considered that explanation to be adequate to address the insurer’s argument on that point.
Panel decision
The Review Panel found that the motor accident caused the following injuries:
· cervical spine- soft tissue injury;
· lumbar spine- soft tissue injury;
· right shoulder- soft tissue injury, and
· left shoulder- soft tissue injury.
The Review Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
· cervical spine- soft tissue injury;
· thoracic spine- soft tissue injury, and
· lumbar spine- soft tissue injury.
The Review Panel considered that the following injuries caused permanent impairment above 0%:
· right shoulder- soft tissue injury at 2%, and
· left shoulder- soft tissue injury at 2%.
Permanent impairment
The motor accident caused injuries with total percentage permanent impairment of 4%. The total WPI is not greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
The Review Panel’s permanent impairment assessment provided a different outcome to Medical Assessor Home’s assessment dated 12 February 2024.
Accordingly, the Review Panel will revoke this certificate and issue a new Permanent Impairment Certificate.
Threshold injury
The motor accident caused threshold injuries.
Conclusion
The Review Panel’s assessed that the accident caused injuries with a different permanent impairment to Medical Assessor Home‘s assessment and certificate issued on
12 February 2024.Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate.
The motor accident caused injuries with a total percentage permanent impairment of 4%. The total permanent impairment is not greater than 10%.
The Panel affirms Medical Assessor Home’s threshold injury certificate issued on
12 February 2024.Each Panel member has reviewed this decision and agreed with the findings.
APPENDICES
APPENDIX A
Statutory Provisions
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines 9.2 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 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 Commission.
The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] 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), ss 5D 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.”
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.
APPENDIX B
Original Assessor’s findings
The Commission referred the threshold injury and permanent impairment disputes to Medical Assessor Home for further assessment after his earlier assessment dated 27 October 2023.
The Presidential delegate found on 1 November 2023 that there was additional relevant information or deterioration of the injury capable of having a material effect on the outcome of the previous assessment.
The insurer submitted that further medical documents have been received after the assessment of Medical Assessor Home to indicate that the claimant had significant pre-accident pathology to at least his back and both shoulders and he did not disclose those injuries to the Medical Assessor.
The additional documents are as follows:
(a) Quakers Hill Family Practice printed 28 March 2023.
(b) Clinical Record from Norwest Medical Imaging (Document A4).
(c) Records received from Western Imaging Group (Document A5).
(d) Records from Dr Marcus Cheah, orthopaedic surgeon dated 9 January 2019.
(e) Records received from Railway Medical Centre, (Document A16).
(f) Reply to a request for further particulars dated 23 May 2023.
(g) Section 6.26 Direction dated 29 March 2023.
(h) Search provided by SIRA detailing previous workers’ compensation claim to the shoulders in an injury dated 21 November 2018 and a workers’ compensation file received from Allianz Workers Compensation, documenting a right shoulder injury lodged 21 November 2018.
(i) The collision biomechanic report of Dr Mackintosh dated 22 June 2023.
(j) Report from Associate Professor Michael Shatwell dated 24 July 2023.
(k) Report of Dr John Korner dated 2 August 2023.
(l) Report of Dr Andrew Keller dated 18 June 2023 and 10 August 2023.
He confirmed that he developed spontaneous onset of left shoulder pain which he attributed to bus driving activities around January 2017 for which he underwent ultrasound examination. There was a corticosteroid injection and a brief period of physical therapy.
He did not know he had a supraspinatus tear.
He confirmed the onset of right shoulder pain in September 2018. This was from driving a bus too.
He confirmed he was treated for that condition, but he was unaware that the scans had shown an interstitial tear of the supraspinatus tendon.
His right shoulder condition settled, and he was asymptomatic leading up to the subject accident.
He did not recall any other medical problems.
The claimant had an episode of back pain in 2013 from which he recovered.
In the subject accident, his vehicle was struck on the passenger side. Blacktown Hospital recorded onset of neck and back pain.
Imaging demonstrated underlying cervical and lumbar spondylosis.
Cervical spine imaging demonstrated diffuse disc osteophyte bulge at C4/5, multi-level disc desiccation but no annulus fissure.
The cervical spine injury was a soft tissue injury with underlying cervical spondylosis.
The lumbar spine was a soft tissue injury too. Imaging demonstrated a possible small posterior annulus tear and a mild diffuse disc bulge. Home found that on balance, the imaging findings in the lumbar region are degenerative in nature.
The claimant does not report radicular complaints.
The claimant suffered bilateral aggravation of underlying rotator cuff pathology.
Medical Assessor Home found differently to Dr Keller. He found spinal dysmetria with reduced range of right-sided rotation and muscle guarding at the current assessment. Shoulder motion was consistent at this assessment. When tested, there was reliable restriction of flexion and abduction at the current assessment, as initially found by Dr Keller. He did not find a greater range of motion when he distracted the claimant.
Apart from the referred head injury, which none of the parties adduced evidence to support or rebut, all injuries were assessed as soft tissue injuries. Medical Assessor Home certified all the referred injuries as threshold injuries for the purpose of s1.6 of the MAI Act.
He assessed permanent impairment at 11% set out in the introduction to the reasons.
APPENDIX C
Parties’ disputes and issues
Insurer’s submissions on WPI
The insurer disputes that the accident caused any injuries which exceed 10% permanent impairment.
The insurer relies on occupational physician Dr Keller reports, dated 7 December 2021 and 28 February 2022 [R7&R8]. Dr Keller considered it possible that the claimant had suffered soft tissue strains to the cervico-thoracic spine and both shoulders. He noted that the claimant reported losing consciousness up to 10 minutes at the scene, although the NSW Ambulance report did not record loss of consciousness and a normal range of motion in the neck.
Dr Keller opined the accident did not cause shoulder tendinopathy or bursitis as it was likely to be degenerative in nature and common in his age group. He assessed considered the claimant’s disputed injuries were threshold. There was no evidence of full thickness tendon tears or bony injuries. Dr Keller assessed the claimant as having a 0% whole person impairment due to any injuries sustained in the motor vehicle accident.
The insurer also relies on orthopaedic surgeon Associate Professor Shatwell’s reports, dated 1 November 2022 and 8 November 2022 [R12&R13]. Assoc Prof Shatwell considered the accident caused soft tissue injuries which would have settled within 3 weeks. He found the MRI scans of the neck, lumbar spine and both shoulders were not due to trauma and would be considered within normal limits in comparison with the findings in asymptomatic individuals of the same age.
He assessed the claimant as having a 0% whole person impairment.
Any injuries sustained were soft tissue injuries which have resolved.
Claimant’s submissions on permanent impairment
The Panel viewed the claimant’s submissions on this dispute, which the claimant’s lawyers authored these on 14 October 2022. They do not address why a Medical Assessor should find permanent impairment greater than 10%.
The claimant submitted reports to the Panel from psychiatrist Dr Mukesh Kumar dated 16 May 2023 and 25 August 2023. These reports addressed the claimant’s psychiatric state. Although Medical Assessor Cameron noted Mr Mendiratta appeared anxious and depressed when the assessor examined him, this was not relevant to the findings on the claimant’s physical permanent impairment.
APPENDIX D
Documentation
The Review Panel considered the following documentation as well as Medical Assessor Home’s certificates.
Pre-accident:
Patient Records from Quakers Hill Family Practice refer to back pain documented 12 August 2013. There is a past history of a wedge fracture at T6 and thoracic spine fracture with lower back pain There is an episode of left thoracic back pain in November 2023 following a collision whilst playing cricket.
Dr Fernandes on 16 January 2017 recorded left shoulder pain complaint with pain of 4-5 weeks duration after lifting boxes. After a scan there was left supraspinatus tendinosis and left subacromial bursitis diagnoses 24 January 2017.
Back pain was reported in June 2018.
Railway Road Medical Centre records documents an episode of acute left-sided neck pain whilst playing badminton recorded by Dr Thiruvengadam on 11 February 2022. This was an acute episode of left-sided neck pain.
The previous work-related right shoulder condition was noted along with treatment from 23 November 2018. By 28 May 2019 at First Point Physiotherapy in Quakers Hill, the treating physiotherapist diagnosed right shoulder impingement, rotator cuff tear and right-sided acromial bursitis. The claimant returned to pre-accident capacity by July 2019
Post-accident:
Personal Injury Claim Form dated 24 September 2020 details the accident on 1 September 2020.
Ambulance report dated 1 September 2020 sets out a version of the accident.
Discharge Summary from Blacktown Hospital dated 1 September 2020 sets out the 41-year-old male was brought in by ambulance and provides its version. Claimant was able to ambulate at the scene, but ambulance staff administered Methoxy, which is to treat acute trauma pain. The examination found tenderness over the cervical spine, tenderness over the thoracic and lumbar spine. There were no upper or lower limb injuries. CT scans of the brain and spine were performed with no traumatic abnormality was noted. There was an old wedging of the vertebral bodies of T5 and T6. The patient was discharged on the same day.
United Medical Care in Lakemba recorded on 10 September 2020 noted complaints of neck and back tenderness, shoulder bilateral, all directions stiff with restricted motion. Ongoing symptoms are documented 15 September 2020 and 1 October 2020, predominantly left-sided neck pain radiating to the shoulder and arm with heaviness and numbness in the left upper limb.
Dr Sheikh rehabilitation and pain management consultant in Prestons, opines injuries to the neck, lower back and both shoulders.
Allied Health Recovery Request commence 5 February 2021 details physiotherapy treatment directed towards complaints of neck pain, back pain and numbness in the right leg.
Dr Guirgis, orthopaedic surgeon’s report dated 23 March 2021 details early neck complaints, right greater than left shoulder and lower back pain. Corticosteroid injections and imaging of the shoulders are discussed.
Dr Alan Nazha, pain specialist report dated 31 August 2021 by Telehealth, recommends further imaging with a bone scan of the back. There is also discussion about PRP injections.
Dr Andrew Keller report dated 7 December 2021.
MRI imaging of the neck and back and review by Dr Guirgis on one occasion in 2020. Injections and surgery did not proceed. He complained of intermittent pain in both shoulders and intermittent and daily neck and middle back pain. He had reduced standing, walking, lifting and driving tolerances. He needed assistance with activities of daily living, heavier cleaning and yard work. He found symmetrical neck motion, normal sensibility in the upper extremities, hesitate shoulder motion which was variable, full symmetrical motion of the thoracic and lumbar spine. Dr Keller opined that the imaging findings in the shoulders were likely to be degenerative in nature.
Medical Assessor Home found differently to Dr Keller. He found spinal dysmetria with reduced range of right-sided rotation and muscle guarding at the current assessment. Shoulder motion was consistent at this assessment.
Dr Keller opined the injuries were minor on 28 February 2022.
Dr James Bodel’s report dated 23 February 2022, documents ongoing complaints of pain in the neck, both shoulders and the lower back. He found evidence of cervical dysmetria, restricted motion of both shoulders which were symmetrical with impingement at each shoulder. Lumbar spine motion was symmetrical. He found that the left shoulder injury represented a non-minor injury due to the finding of an intra-substance partial thickness tear of the left supraspinatus tendon. Similarly, the right shoulder tendon injury was considered a non-minor injury. He found that there was degenerative disc disease in the cervical and lumbar spines. He opined whole person impairment rating of 5% for the cervical spine, 6%WPI for each upper extremity with a total of 16% WPI.
Associate Professor Michael Shatwell’s report date 24 July 2023 opined that the imaging changes of both shoulders were degenerative in nature because of underlying tendinopathy. There were no signs of bruising in either shoulder. It appears there were injections, but Dr Chia did not review Mr Mendiratta.
Associate Professor Michael Shatwell found that the cervical spine motion was symmetrical and normal when distracted. He found no objective neurological abnormality in the upper extremities. There was marked restriction of active motion of both shoulders, restricted motion of the lumbar spine that was greater during movements on and off the couch and when distracted. He found that the shoulder girdle motion was also less hesitant and range of motion greater than those demonstrated in the formal part of the examination. There were no objective sensory abnormalities in the lower extremities.
Associate Professor Michael Shatwell opined that the ongoing symptoms described were not related to the motor vehicle accident and he found that based on the history it was unlikely there were severe soft tissue injuries sustained on the basis of the ambulance officer’s assessment and that of the Emergency Department doctors at Blacktown Hospital. There was no follow-up until 9 days later. He was fully mobile after the accident. There were no signs of shoulder injury at the Blacktown Hospital. He found that the subsequent imaging demonstrated no acute injuries. He opined that the MRI scan changes did not reveal signs of an acute injury and were normal for a man of this age and build. He did not find there was objective evidence of any musculoskeletal injury caused by the accident. He went on to state that the injuries would have stabilized within a few weeks of the incident described.
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